Delhi District Court
Beckodan Abdul Rahiman vs . State Of Kerala Air 2002 Sc 1810, Was on 29 September, 2018
State V.Sahil @ Sahid
IN THE COURT OF PAWAN KUMAR MATTO,
SPECIAL JUDGE (NDPS), ADDITIONAL SESSIONS JUDGE,
NORTH WEST, ROHINI COURTS, DELHI
New Sessions Case Number : 359/17
State
versus
1) Sahil@ Sahid
Son of Sh. Mahmood
Resident of F7, Jhuggi No.11,
HGI, Labour Colony, Sultanpuri,
Delhi.
First Information Report Number : 194/17
Police Station : Sultanpuri
Under section : 20 (b) (ii) c of NDPS Act
Date of registration of the charge
sheet in this court : 07.06.2017
Final Arguments concluded on : 20.09.2018
Date of judgment : 29.09.2018
JUDGMENT
Page 1 State V.Sahil @ Sahid
1. Brief facts of the case as mentioned in the report u/s./ 173 of Cr.PC are that on dated 09.03.2017 at 6:45 PM SI Pramod alongwith Ct. Parteek, Ct. Ashok and secret informer had left the police station vide DD No. 24A and arrived at HGI Labour Colony near underpass Railway Line and requested to 45 passersby to join the raiding party. But, they have shown their helplessness and left the spot without disclosing their names and SI Parmod had directed to the members of raiding team to take positions and started waiting for the accused Mohd. Sahil @ Sahid, who arrived at the spot at 7:25PM and he was carrying sack of plastic on his head and the secret informer had pointed out about accused Sahil and SI Pramod had pointed out to the members of the raiding team about the accused and SI Pramod with the help of the raiding team had apprehended to the accused and this accused had disclosed his name as Sahil. It is also stated that this accused was apprised about his right to be searched in the presence of the Gazetted Officer or the Magistrate. He was also apprised that arrangement of such officer could be done at the spot and accused was also apprised that prior to his search, he could conduct the search of the members of the raiding team or their vehicle and accused was also apprised about the meaning of the Gazetted Officer and the Magistrate and notice u/s. 50 of the NDPS Act in the Hindi language was also served. Original copy thereof was given to the accused and the contents of the said notice were also read over to the accused and after knowing about his such right, the accused had refused to exercise such rights and his refusal was also recorded in writing and finding it to be correct, the accused had signed the same and SI Parmod had opened the sack and checked its contents and found green bunches and on seeing and smelling the same, it was revealed that the Page 2 State V.Sahil @ Sahid same was GANJA and the said plastic sack containing GANJA was weighed on the electronic weighing machine and its total weight was revealed as 22kg 150grams and the separate weight of plastic sack was revealed as 150 grams. Two samples of 200 grams each were separated from the contraband and their parcels were prepared, which were marked as Mark A 1 and A2 and remaining GANJA was kept in the same sack of the plastic, which was given Mark A and all the three parcels were sealed with the seal of PK and FSL form was filled. Sample seal was also affixed thereon and the seal after use, was handed over to Ct. Ashok and all the sealed parcels and FSL Form were seized and accused was booked U/S 20 of NDPS Act for having illegal possession of 20 KG Ganja and parcels, form of FSL and carbon copy of Fard Makbuzgi of Ganja were sent for handing over to the SHO and Rukka was sent for handing over the same to the DO for registration of FIR through Ct. Prateek and after registration of the FIR the investigation was handed over to SI Shravan Kumar and Ct. Prateek had handed over the rukka and copy of the FIR to SI Shravan, who arrived at the spot and SI Pramod, accused and other staff met him at the spot and handed over notice U/S 50 of the NDPS Act and SI Shravan had written FIR No. 194/17 thereon and this SI Shravan had prepared the site plan at the instance of SI Pramod. He had recorded the statements of Prosecution Witnesses U/S 161 of Cr. PC and arrested the accused and since then accused is behind bars and he had also recorded the disclosure statement of the accused and on dated 10.03.2017 an information U/S 57 of NDPS Act was sent by SI Pramod to the higher officer and accused Sahil @ Sahid was produced in the court of Duty Metropolitan Magistrate and he was remanded in police custody for 2 days. It is also mentioned that the efforts were made Page 3 State V.Sahil @ Sahid to trace the supplier of the contraband, but, he could not be found and on dated 16.03.2017, the accused was remanded in judicial custody and on dated 22.03.2017, the exhibits were sent to the FSL through Ct. Surender Singh and on completion of the investigation, chargesheet u/s.20 of the NDPS Act was filed against the accused. Copy of the chargesheet was supplied to the accused.
2. On finding prima facie case, charge under section 20 (b)( ii ) (c) of NDPS Act was framed against accused Sahil @ Sahid, to which, he pleaded not guilty and claimed trial. Accordingly, accused was put on trial.
3. In order to prove its case, the Prosecution has examined 9 witnesses.
4. ASI Tejpal Singh, has been examined as PW1. He was also cross examined by the Ld. Counsel for the accused.
5. Whereas, Inspector Ashok Kumar has been examined as PW 2. He was also cross examined by Ld. Counsel for accused.
6. Whereas, MHCM HC Mahender Singh has been examined as PW 3. He was also cross examined by Ld. Counsel for accused.
7. Whereas, HC Surender Singh has been examined as PW 4. He was also cross examined by Ld. Counsel for accused.
8. Whereas Ct. Parteek has been examined as PW 5. He was also cross Page 4 State V.Sahil @ Sahid examined by Ld. Counsel for accused.
9. Whereas, Sh. Jitender Kumar, Senior Scientific Officer (Chemistry), FSL, Rohini has been examined as PW 6. He was also cross examined by Ld. Counsel for accused.
10. Whereas, SI Pramod Kumar has been examined as PW 7. He was also cross examined by Ld. Counsel for accused.
11. Whereas, Darade Sharad Bhaskar, Superintendent of Police Dadra and Nagar Haveli has been examined as PW 8. He was also cross examined by Ld. Counsel for accused.
12. Whereas, SI Shravan Kumar has been examined as PW 9. He was also cross examined by Ld. Counsel for accused.
13. On the completion of the evidence of the prosecution, the statement of the accused u/s 313 of Cr.PC was recorded, wherein, all the incriminating evidence produced by the prosecution was put before him and the accused has denied the correctness of evidence of the prosecution, led against him and he took the plea that he has been falsely implicated in the present case.
14. I have heard the Ld. Counsels for the parties.
15. The Ld. Addl. PP for the State has submitted that in the case in hand, 22kg 150 grams ganja has been recovered from this accused, which was Page 5 State V.Sahil @ Sahid found in plastic katta and further submitted that the secret information was received by SI Parmod and he had reduced the said secret information in writing vide Ex.PW2/A1 and DD No.23 A as Ex.PW7/A was also written and copy Ex.PW2/A1 were given to Inspector Ashok and Inspector Ashok had sent the same to the ACP who has been examined as PW8. He has further submitted that thus provisions of Section 42(1) and 42(2) of NDPS Act have been complied with. He has further submitted that notice under Section 50 of NDPS Act was also served on the accused, but, he had refused to be searched in the presence of the Gazetted Officer or the Magistrate and he has also refused to take search of the members of the raiding team and their vehicle. He has also submitted that this accused was carrying a katta of plastic, from which, 22kg 150 grams ganja was recovered and further submitted that MHC(M) has been examined as PW3 who has proved the copy of register No.19 as Ex.PW2/B and further submitted that reports under section 57 of NDPS Act regarding the seizure of ganja Ex.PW2/C and arrest of the accused Ex.PW2/D have been proved on record, which were sent to the ACP and further submitted that first IO has been examined as PW7 and ACP has been examined as PW8 whereas Duty Officer has been examined as PW1 who has proved the FIR and affidavit u/s.65B of Indian Evidence Act and submitted that parcels were sealed and sent to the police station and PW2 had also put his seal on the parcels and same were deposited in the malkhana and further submitted that since PW4 HC Surender had taken the parcels to the FSL on 22.03.2017 and submitted that since Scientific Officer has been examined as PW6, who has proved that exhibits were found in sealed condition in the FSL and the report of FSL Ex.PW6/A reveals that the contraband recovered from the accused is Ganja Page 6 State V.Sahil @ Sahid and thus testimony of the prosecution witnesses remained consistent. So, this accused is liable to be convicted under Section 20(b)(ii) (c) of NDPS Act as commercial quantity of Ganja was recovered from him.
16. On the other hand, Ld. Counsel for accused has submitted that in the case in hand, ASI Tejpal, duty officer has been examined as PW1 and submitted that his testimony is inconsistent to the testimonies of PW7 and PW9. As, he has stated in his examination in chief that he had received the rukka at 9.25PM on 09.03.2017 and submitted that since tehrir Ex.PW7/D reveals that the time of ravanagi is 9.25PM, so how could PW1 receive the rukka at 9.25pm and further submitted that this PW1 has deposed in examination in chief that rukka was sent by SI Sharvan Kumar (PW9). Whereas, SI Parmod Kumar who has been examined as PW7 has deposed that he had sent the rukka, so the testimony of this witness is inconsistent to the testimony of SI Parmod (PW7) and further submitted that this PW1 has deposed in his crossexamination that SHO and SI Sharvan were present at the spot, whereas, SHO has been examined as PW2, and he has deposed in his crossexamination that he did not go at the spot and thus, the testimony of this prosecution witness is inconsistent to the testimony of PW2. He has also submitted that PW3 MHC(M) has deposed in the court that articles taken during the personal search of the accused were deposited in the malkhana on the same day i.e. on dated 09.03.2017 and submitted that PW9, SI Sharvan Kumar has deposed in his crossexamination that this accused was taken to hospital at 12.30AM on 10.03.2017 and he had deposited the articles taken during the personal search of the accused with the MHC(M) at about 12.45AM on 10.03.2017 and submitted that thus, the Page 7 State V.Sahil @ Sahid testimony of this witness PW3 is inconsistent to the testimony of PW9 and copy of register no.19 Ex.PW2/B is also doubtful being erroneous, as the entry therein is done on dated 09.03.2017 and further submitted that in view of the inconsistencies in the statements of PW3 and PW9 and their testimonies are full of suspicion and thus, they are not reliable. It is further submitted in the tehrir, FIR and in the report u/s.173 of CrPC, it is nowhere mentioned that the secret information was ever reduced in writing or any such information was supplied to the Higher Officers. Had any such information reduced into writing or received by higher officer, it could be mentioned in the tehrir, FIR and report u/s.173 CrPC, so DD No.23A Ex.PW7/A, itla mukhbari Ex.PW2/A1 are suspicious documents and can not be relied upon and submitted that since this is not mentioned in the tehrir, FIR and report under Section 173 of CrPC that no such alleged secret information was reduced into writing nor it was not sent to the Higher officers, so the provisions of Section 42(1) and 42(2) of NDPS Act which are mandatory are not complied with. So, benefit may be given to the accused so, the accused is liable to be acquitted. He has further submitted that PW7 SI Parmod has alleged that FSL form was also sent through Ct. Prateek to the PS for depositing the same in malkhana. But neither in the copy of register no.19 nor in the road certificate, it is mentioned that FSL form was ever deposited in the malkhana or FSL form was ever taken to the FSL along with exhibits. So, it become suspicious and thus, prosecution has failed to prove beyond reasonable doubt that the FSL form was filled at the spot. He has also submitted that PW3 MHC(M) during his crossexamination has deposed that copy of RC Ex.PW3/A is the same, which was taken by SI Parmod in the FSL. Whereas, HC Surender claims that he had taken the Page 8 State V.Sahil @ Sahid exhibits to the FSL and further submitted that PW3 has also deposed that he had not sent any document other than, as mentioned in the road certificate and submitted that since in the road certificate, it is not mentioned that FSL form was sent to FSL along with exhibits. So, the case of prosecution becomes doubtful. He has also submitted that since PW4 in his statement recorded under Section 161 CrPC has deposed that he had taken the exhibits to the FSL at 22.03.2017 vide RC No.22/3/2017. Whereas, at the time of his statement recorded under Section 161 of CrPC, he has deposed that he had taken the exhibits vide RC No.94/21/2017 and submitted that since the Road certificate Number mentioned in the statement of this witness HC Surender, recorded under Section 161 CrPC and statement in the court are different. So, the case of prosecution becomes doubtful. He has also submitted that this HC Surender has deposed in his statement u/s161 CrPC that the seal of SKY and AK were affixed on the exhibits. Whereas, at the time of his crossexamination in the court, he has deposed that parcels were sealed with the seal of AK and PK and thus the case of prosecution becomes doubtful. He has also submitted that SI Parmod, who is the first IO has deposed that seal after use was given to Ct. Ashok, but, Ct Ashok has never been examined in the court and submitted that it is not proved on record that seal after use was ever handed over to any other official. He has further submitted testimony of this HC Surender, who is alleged to have has taken the exhibits to FSL cannot be relied upon. He has further submitted that no public witness has joined in the investigation and submitted that in the absence of the public witnesses the testimonies of the police witnesses become suspicious and doubtful and benefit thereof are liable to be given to the accused. He has further Page 9 State V.Sahil @ Sahid submitted that PW 5 during his crossexamination has deposed that there were no flowers, seeds or stems with the GUCHCHHA, so, it is clear that the contraband which is alleged to have been recovered from this accused was not Ganja. He has also submitted that PW6 Scientific Officer has admitted during his crossexamination that in the road certificate Ex. PW 3/A, it is not mentioned that FSL form, seizure memo were sent to the FSL. He has further submitted that the contraband is alleged to have been recovered from the accused on dated 09.03.2017. Whereas, the exhibits were sent to the FSL on dated 22.03.2017 and no cogent explanation for such delay in sending the exhibits to the FSL has been given and submitted that since the PW7 has deposed that the two samples of 200 grams each were separated from the contraband and the weight of the exhibit in the report of FSL is mentioned as 190.8 grams with polythene and there are differences in the weight of the exhibits sent and since there was delay in sending the exhibits to the FSL and in view of the such delay and in view of the difference in weight , the possibility of tempering with the exhibits cannot be ruled out. So benefit of doubt are liable to be given to the accused. He has submitted that since the search of the accused has not been conducted in the presence of the Gazetted Officer or the Magistrate so, provision of section 50 of NDPS Act violated and in view of violation of mandatory provision of section 42 and section 50 of NDPS and accused is liable to be acquitted. He has relied upon the judgments Ganesh Kumar V. State 2016 Law Suit Delhi 4045, Rajesh @ Jagdamba Avasthi V. State of Goa, 2005 1 AD (Cr), SC.1, Des Raj @ Dass V. State 83 (2008) DLT, 262.
17. In rebuttal, Ld. APP for State has submitted that from the testimony of Page 10 State V.Sahil @ Sahid PW 7, it is proved that secret information Ex.PW2/A1 written regarding the contraband and the same was sent to the PW 2 and submitted that since the contraband was recovered from the Katta of plastic carried by the accused and not from the personal search of accused so compliance of section 50 was not mandatory however, this accused has refused to be searched in the presence of the Gazetted or Magistrate so there is no infirmity of the search and prayed for convicting the accused u/s.20(b)(ii)(c) of the NDPS Act.
18. I have given the thoughtful consideration to the submissions made by counsels for the parties and perused the record.
19. The perusal of the record reveals that it is alleged that this accused was found in possession of 22kilo 150 grams GANJA (including the weight of the sack) and secret information is alleged to have been received by SI Parmod Kumar (PW7), who has been examined as PW 7, who has deposed that on dated 09.03.2017 at about 5.00 PM, one secret informer came in the Police Station and met him, who told him that one person namely Sahil would come near Railway Line, Underpass Sultanpuri at about 7.30 PM, carrying GANJA and he could be apprehended, if raid is conducted. He has further deposed that he wrote down said information in Roznamcha vide DD No.23A Ex.PW7/A. He has further deposed that he has also informed SHO in writing vide Ex.PW2/A1. He has further deposed that SHO directed him to conduct raid and he constituted a raiding party comprising of Ct. Ashok, Ct. Prateek and the informer and they left the police station at about 6.45 PM vide DD No.24A Ex.PW7/B and they went to the spot by the Page 11 State V.Sahil @ Sahid Santro car of Ct. Prateek and reached at the spot within 10 minutes. He has further deposed that he requested fourfive passersby to join the raiding party, but, none agreed and due to paucity of time, he could not serve any notice to those public persons. He has further deposed that he deputed Ct. Prateek in a Lane beside Park, Ct. Ashok in Lane near underpass and he took position alongwith secret informer near transformer and they all were visible to each other. He has further deposed that at about 7.25 PM, one person was seen coming from Railway Line carrying a plastic sack (katta) of white colour on his head and secret informer pointed out towards said person as Sahil. He has further deposed that he beckoned Ct. Prateek and Ct. Ashok and apprehended Sahil and secret informer was relieved thereafter. He has further deposed that he explained Sahil that they had information of carrying GANJA by him and he explained him about his legal right of being searched before Gazetted Officer or Magistrate. He has further deposed that he has also explained him that he could take search of police party and their vehicle before his search. He has further deposed that he served him with notice u/s 50 of the NDPS Act Ex.PW5/E. Carbon copy of the same notice is Ex.PW7/C. He has further deposed that he has also obtained signature of Sahil at point B of the carbon copy of notice and Ct. Prateek and Ct. Ashok also signed said notice as witnesses. He has further deposed that accused Sahil refused to take search of police party or their vehicle and he also refused to be searched before the Gazetted Officer or the Magistrate. He has further deposed that he wrote his refusal on his dictation on the carbon copy of the notice u/s 50 of the NDPS Act and Ct. Prateek and Ct. Ashok also signed the same as witnesses thereof. He has further deposed that the mouth of plastic Katta, which accused was carrying Page 12 State V.Sahil @ Sahid was tied with cord, he opened the knot of cord and KATTA was opened and the KATTA was containing green vegetative substance and smelt to be GANJA. He has further deposed that the KATTA containing GANJA was weighed on Electronic Weighing Machine and it's weight was found to be 22.150 kg. He has further deposed that the substance was kept on a plastic sheet and empty KATTA was also weighed and it's weight was found to be 150 gm. and he separated two samples of 200 gm each and kept in small white polythene pouches, which were taped with medical tape and sealed with the seal of PK. Said pouches of samples were also marked as A1 and A2. He has further deposed that remaining GANJA was put in same plastic katta, mouth of katta was tied with the piece of cloth and sealed with the seal of PK. Said katta was marked as 'A'. He has further deposed that he has also written the particulars of the case on the samples and plastic Katta and he also filled form of FSL and endorsed with seal of PK. Thereafter, plastic katta containing GANJA, samples and FSL form, were taken in police possession vide Seizure Memo also Ex.PW5/A bearing signature of accused at point B and C and attested by him at point D. He has further deposed that the seal after use was handed over to Ct. Ashok and thereafter, he prepared rukka Ex.PW7/D and sent Ct. Prateek to PS for the registration of case. He has further deposed that he also handed over to him copy of Seizure Memo, FSL Form, Samples and plastic katta containing GANJA and he also directed him to produce rukka before DO and remaining documents and case property before SHO. At about 10.55 PM, SI Sharvan with Ct. Prateek reached at the spot and he had handed over accused to SI Sharvan, who carried further investigation. He has further deposed that he had also handed over carbon copy of notice u/s 50 NDPS Act and seizure Page 13 State V.Sahil @ Sahid memo to SI Sharvan. Site plan was prepared by SI Sharvan at his instance which is Ex.PW7/E. He has further deposed that he also prepared report u/s 57 NDPS Act Ex.PW2/C regarding Seizure of GANJA from the accused and forwarded it to SHO. He has correctly identified the plastic KATTA with vegetative material Ex.MO1, which was carried by the accused. He has correctly identified Ex.MO2 ie the polythene containing sample of vegetative material received from FSL. This witness also correctly identified another sample Ex.MO3. This witness was cross examined by Ld counsel for the accused. During his crossexamination, who has deposed that prior to departure for the spot, on receiving of information regarding the contraband from the secret informer, he had recorded a DD No. 23A and copy thereof was given to the SHO, who constituted a team for raiding and thereafter they departed for the investigation on the spot vide DD no. 24A. He has further deposed that on receiving the copy of DD no. 23A, he had put his signature thereon and asked him to wait for some time and when he was asked as to whether SHO had done anything else beside this, in his presence and this witness has replied that he came out of the room of SHO, so he cannot tell as to what else was done by SHO after receiving the said DD. He has deposed that they had departed from the PS at 6:45 PM and he did not record the meter reading of the said Santro car of Ct. Prateek. He has further deposed that the said Santro car was parked near the Railway Under Pass and the distance between the PS Sultan Puri and place of occurrence is of about 2 KM. He has further deposed that the secret informer had pointed out about the accused from a distance of about 100 feet and he had asked to the inhabitants of the locality to join the investigation, prior to the serving of notice to the accused, but none agreed.
Page 14 State V.Sahil @ Sahid Again said he did not call any public person from the nearby residential area and the park situated near the spot. He has further deposed that the weighing machine was carried by him from the PS and he did not mention in the departure entry that he was carrying IO kit with him to the place of occurrence. He has further deposed that the area of the basement of the weighing machine was 2 feet X 2 feet and first of all he measured the weight of the KATTA, wherein ganja was kept by the accused thereafter he measured the weight of ganja after taking it out of the said KATTA. Again said first of all ganja in the KATTA was weighed alongwith the ganja. He has further deposed that the weight of the contraband was measured at the spot and he cannot tell the exact time of weighing the contraband, but, the sun was already set, when the weight of the contraband was measured and the measurement of the weight of contraband was done in the light of the lamp post. He has admitted it to be correct that the said lamp post (electricity pole) is not shown in the site plan Ex. PW 7/E and he did not remember, whether he had mentioned in TEHRIR that the contraband was weighed in the light coming from electricity pole and he had handed over the seal after its use to Ct. Ashok, but, he did not prepare the handing over memo regarding the same and the seal was taken by him from Ct. Ashok on the next day, but, no memo regarding returning of the seal to him was prepared. He has further deposed that the rukka was prepared at 9:45 PM and he did not make any talk with the SHO from the spot. He has admitted it to be correct that he did not tell any name and address of gazetted officer / Magistrate to the accused, in the presence of whom, he could be searched and he left the spot between 11:15PM to 11:30PM . He has further deposed that he went to the PS straightway from the spot and he did not remember, Page 15 State V.Sahil @ Sahid whether any DD regarding his arrival in the PS was lodged or not. He has further deposed that second IO had recorded his statement in the PS, but, he cannot tell the time of recording his statement by second IO. He has further deposed that after 09.03.2017, he never rejoined investigation of this case. He has denied that he has been suspended in some case registered under NDPS Act. He has admitted it to be correct that he was suspended at the time of his evidence in this court. He has denied that no secret information regarding bringing/carrying of contraband by the accused was ever given by the alleged secret informer or that he had not joined the investigation or that no recovery was effected from the accused or that all the proceedings were conducted in the police station. He has denied that all the documents are ante dated and ante timed or that the accused was picked up from his house or that his signatures, were obtained on blank papers or that those blank papers were converted into incriminating evidence in present matter or that he has deposed falsely. This witness has testified that on receiving of the secret information, he had written the same in Roznamcha vide DD No. 23A Ex. PW7/A. But the perusal of the rukka, FIR and report u/s. 173 of Cr.PC reveals that it is nowhere mentioned therein that secret information was reduced into writing vide Ex.PW2/A1 or DD No.23A Ex.PW7/A. Had he reduced such information into writing at 5.10PM on dated 09.03.2017, this fact could be mentioned in the rukka Ex.PW7/D, FIR Ex.PW1/A and also in the report u/s. 173 of Cr.PC. But, as the secret information is alleged to have been received by this witness on dated 09.03.2017 at 5:00 pm, when this witness was present in the police station, so, as per provision of section 42 (1) of NDPS Act, such information was required to be reduced into writing and as per the mandate of Section Page 16 State V.Sahil @ Sahid 42 (2) of NDPS Act, it was also required to be sent to the Higher Officer by this witness. But as the rukka, FIR and report u/s. 173 of CrPC do not speak about reducing into writing the secret information by this PW7. So, DD No. 23 A Ex.PW7/A appears to be suspicious and possibility of reducing writing Ex.PW2/A1 and DD No. 23 A Ex.PW7/A subsequently to fill the lacuna in the case of the prosecution cannot be ruled out. This witness has deposed that he had handed over the seal after it used to Ct. Ashok But the Ct. Ashok has not been named in the list of witnesses nor he is examined in the court. So, the possibility of tampering with the parcels of the contraband and it's samples cannot be ruled out. This witness has not made sincere efforts to make join the public witness in the investigation of the present case. This witness has claimed that he had filled the FSL form at the spot and sent the same to the PS through Ct. Prateek alongwith contraband and its samples and as per the case of the prosecution FSL form was also deposited in the malkhana on dated 09.03.2017. But, the copy of register no. 19 Ex.PW 2/A reveals that it is nowhere mentioned therein that FSL Form was also deposited in the Malkhana. Similarly, in the road certificate Ex.PW3/A, vide which the contraband is alleged to have been sent to the FSL on dated 22.07.2017, it is not mentioned that FSL Form was also sent to the FSL Rohini alongwith exhibits. Had the FSL form been filled by this first investigation officer on the spot date 09.03.2017, the same could be deposited in the malkhana and entry thereof could be seen in the register no. 19 copy whereof is Ex. PW 2/B. But in view of the nonmentioning of form of FSL in the copy of register no. 19 and in the Road Certificate. So, the possibility of creating the FSL Form subsequently to fill the lacuna cannot be ruled out. This witness has deposed that two samples of 200 Page 17 State V.Sahil @ Sahid grams each were separated and the same were sent to the FSL. Whereas, the report of FSL Ex.PW6/A reveals that the weight thereof is mentioned as 190.8 grams with polythene. Testimony of this witness is also inconsistent to the testimony of PW3. The testimony of this witness is also suspicious because PW3 Mahender Singh MHC(M) has admitted that SI Pramod Kumar on dated 22.03.2017 had written at portion A to A1 "that parcels are sealed with the seal of PK" on the road certificate Ex.PW3/A. Subsequently, when FSL had raised objection and since this witness has also failed to make sincere efforts for joining any public witness in the investigation of the present case and since the testimony of this witness is found to be contradictory, inconsistent to the testimony of PW1 regarding the time of preparing of Rukka, so, it is also suspicious. So his testimony does not inspire any confidence.
20. ASI Tejpal Singh has been examined as PW 1, who has deposed that on 09.03.2017, he was posted as ASI in PS Sultan Puri and was working as Duty Officer. His duty hours were from 04:00 pm to 12:00 midnight. He has further deposed that on that day, at about 09:25 pm, he had received one rukka from Ct. Prateek, which were sent by SI Shravan Kumar, on the basis of which, he got registered the FIR No. 194/17, U/s. 20 of NDPS Act, through computer operator on the computer installed in the PS Sultan Puri. He has further deposed that he obtained a printout of the FIR and he made endorsement on the rukka and then, handed over the copy of FIR Ex. PW 1/A and original rukka to Ct. Prateek for handing over the same to IO. He has proved the endorsement made by him on rukka Ex. PW1/B and certificate under Section 65 B of Indian Evidence Act Ex.PW1/C. This Page 18 State V.Sahil @ Sahid witness was cross examined by Ld. Counsel for the accused. During his crossexamination he has deposed that the copy of FIR and original rukka were handed over to Ct. Prateek within 2030 minutes. He has further deposed that SHO & SI Shravan were present at the spot and they had sent the rukka to him for registration of the FIR. Certificate under Section 65 B of Indian Evidence Act was prepared by the 2nd IO/SH Pramod Kumar and he did not remember whether he signed the certificate u/s 65 B of Indian Evidence Act or not. He did not know about the contents of Certificate under Section 65B of Indian Evidence Act and he did not know as to who was first or second IO in the present matter. Thus, the testimony of this witness is found to be contradictory to the testimony of PW9 Sharvan, PW2 and PW7 Parmod. As, this witness has stated that PW2 SHO Inspector Ashok Kumar was present at the spot. Whereas, the SHO Inspector Ashok Kumar has been examined as PW2 and during his crossexamination, he has deposed that he had not visited the spot during the proceedings conducted by both the investigating officers. This witness PW1 has deposed during his examination in chief that he had received the rukka at 9.25PM from Ct. Prateek which was sent by SI Sharvan Kumar. Whereas, SI Parmod Kumar has been examined as PW7 who has deposed in the court that Rukka was prepared at 9.45AM and he had sent the rukka through Ct. Prateek. Since the time of Ravangi in the rukka Ex.PW7/D is mentioned as 9:25PM and PW7 SI Parmod has deposed that Rukka was prepared at 9.45PM. Then how could this witness receive rukka at 9.25PM. This witness has also deposed that he did not know the contents of the certificate filed u/s. 65B of the Indian Evidence Act. So, the testimony of this witness is not only found to be contradictory to PW2 Inspector Ashok Page 19 State V.Sahil @ Sahid Kumar, PW7 SI Pramod Kumar and PW9 SI Sharvan Kumar. But, it is also found to be suspicious which makes the case of the prosecution to be doubtful.
21. Whereas, SHO/ Inspector Ashok Kumar has been examined as PW 2, who has deposed that on 09.03.2017 at about 5.15 pm, SI Parmod produced one secret informer before him and told that secret informer had given information regarding one person namely Sahid @ Sahil would bring Ganja from Nangloi to HIG Labour Colony through underpass. He has further deposed that SI Parmod also reduced into writing the said secret information and he also signed the same Ex.PW2/A1. He has further deposed that he went to the office of ACP and informed him about the secret information and he had directed him to constitute a raiding party and to proceed accordingly. He had constituted a raiding party and proceeded to the spot. He has further deposed that at about 9.40 pm Ct. Parteek came in his office and produced three pullandas, one FSL form and carbon copy of seizure memo. He has further deposed that the pullandas and FSL form were sealed with the seal of PK and he called DO in office and enquired about FIR number. He told him FIR number, which, he had written on sealed pullandas, FSL form and copy of seizure from he also put his seal on the pullandas and FSL form. He has further deposed that he called MHC(M) in his office and made the entry in Roznamcha vide DD No. 29A Ex.PW2/A (OSR) and handed over sealed pullandas and documents to MHC(M) for deposition in malkhana. MHC(M) made entry in register no.19 vide serial no. 4546 is Ex.PW2/B. He has further deposed that on 10.03.2017 at about 12.45 am SI Shravan produced the accused Sahil @ Sahid before him. He Page 20 State V.Sahil @ Sahid has further deposed that SI Parmod Kumar also produced report Ex.PW2/C u/s 57 of NDPS Act regarding seizure of Ganja, which, he forwarded to the office of ACP. He has further deposed that SI Sharvan Kumar also produced report Ex.PW2/D u/s 57 of NDPS Act regarding arrest of accused, which, he forwarded to the office of ACP. He has further deposed that Copy of FSL form is Ex.PW2/E and no tampering was done with the sealed pullandas till remained in his custody. This witness was also cross examined by Ld. Counsel for the accused. During his crossexamination, he has deposed that his statement u/s 161 Cr.P.C was recorded by IO and he had gone through the same. He has further deposed that he had not met secret informer before 09.03.2017 and he did not know exact time, when secret informer came before SI Parmod. He has further deposed that he had asked secret informer, how much quantity and the source from where, the accused would bring contraband, but, he could not reply the same. He has further deposed that he had not asked the mode of arrival of accused at the spot. He has further deposed that he relieved SI Parmod with secret informer within 5 minutes and no written proceedings was conducted by him till the leaving of the police station by raiding party. He has further deposed that Ct. Parteek had gone before DO, before coming in his office and Ct.Parteek was not having copy of FIR, when, he entered his office. He has further deposed that he had signed sealed pullandas, when produced before him. He has further deposed that he relieved Ct. Parteek within 57 minutes and he had not visited to the spot during the proceedings being conducted by both the IOs. He has denied that he has deposed falsely or that documents which were prepared during the proceedings are antedated and antetime. The testimony of this witness is also found to be contradictory to the copy of Page 21 State V.Sahil @ Sahid register no.19 Ex.PW2/B, as, this witness has claimed that he had also handed over the FSL form to the MHC(M) on 09.03.2017. Whereas, the copy of the register No.19 Ex.PW2/B reveals that it is nowhere mentioned therein that FSL form was also deposited in the malkhana on dated 09.03.2017. This witness has claimed that SI Parmod had reduced the secret information into writing Ex.PW2/A1 and he had also signed the same. But, this court does not find any reference of writing of such secret information by SI Parmod in the rukka Ex.PW7/D and the FIR Ex.PW1/A. In the considered opinion of this court, had such secret information reduced into writing, then, such fact could be find in the rukka and also in the FIR and in view of omission of such material fact in the rukka and FIR, the testimony of witness found very suspicious and the possibility of preparing Ex.PW2/A1 and DD No.23A Ex.PW7/A to fill the lacuna at later stage cannot be ruled out. This witness has deposed that on receiving of secret information, he went to the office of ACP (PW8) and he directed to conduct the raid, whereas then ACP has been examined as PW8 who has deposed that SHO had telephonically informed about the secret information. Thus, testimony of this witness is also inconsistent to the testimony of PW8. So, the testimony of this witness becomes suspicious. So the same cannot be relied upon.
22. Whereas, MHC(M) HC Mahender Singh has been examined as PW 3, who has deposed that on 09.03.2017 SHO called him in office and produced three sealed pullandas, copy of seizure memo and FSL form. He has further deposed that sealed pullandas and FSL form were sealed with seal of AK and one more seal impression, but, he did not remember exactly Page 22 State V.Sahil @ Sahid the nomenclature of said seal and he made entry in register no. 19 vide serial no. 4546 is Ex.PW2/B. He has further deposed that SI Sharvan Kumar also deposited articles recovered during the personal search of the accused, on the same day and he made entry to that effect against serial number. He has further deposed that on 22.07.2017 sealed pullandas with FSL form were sent to FSL through HC Surender vide RC No.94/21/17 is Ex.PW3/A. He has further deposed that HC Surender returned the copy of acknowledgement Ex.PW3/B and the sealed pullandas were not tampered till remained in his custody and then the Ld. Addl. PP had sought permission to ask leading question regarding the seals on the parcels on the case property and Ld. Counsel for accused has not objected to asking of any leading question regarding the same. So, after hearing, Ld. Addl. PP for the State was allowed to ask the leading question and then this witness had admitted it to be correct that seals on the parcels of the case property were sealed with the seal of 'PK'. This witness was also cross examined by Ld. Counsel for accused and during his crossexamination he has admitted it to be correct that Ex.PW2/B is in his handwriting. He has also admitted it to be correct that the timing of making entries in Ex.PW2/B is not mentioned. He has also admitted it to be correct that all the entries bearing no. 4546 were made on the same day i.e. 09.03.2017. He has admitted it to be correct that RC Ex.PW3/A is in his handwriting. He has admitted it to be correct that the portion from A to A1 was written by IO SI Parmod Kumar subsequently on dated 22.03.2017. He has denied that SI Parmod had written A to A1 after returning from the FSL. He has admitted it to be correct that he had sent the same documents details of which are written in the road certificate. He has admitted it to be correct that he did not send any document other than Page 23 State V.Sahil @ Sahid as mentioned in the road certificate in the present case. He has denied that he has deposed falsely. Thus, the testimony of this witness is found to be inconsistent to the testimony of PW 9, as, this PW3 has deposed that articles taken during the personal search of accused were deposited in the malkhana on 09.03.2017. Whereas, PW 9 SI Sharvan has deposed that he had deposited the articles taken during the personal search of accused on dated 10.03.2017. Thus, the testimony of this witness is contradictory to the testimony of PW 9 and therefore, the entry in the register no. 19 Ex, PW 2/B also becomes suspicious. As the date of depositing the articles taken during the personal search is mentioned as 09.03.2017. This witness has deposed that on dated 22.07.2017 sealed pullandas with the form of FSL were sent to the FSL vide road certificate no. 94/21/17. Whereas, his statement recorded U/s 161 of Cr.PC reveals that the road certificate number 34/21/17 is mentioned therein, vide which, the exhibits are alleged to have been sent to the FSL. Similarly, this witness in his examination in chief in this court had stated that the parcels were sealed with the seal of AK and one more impression, which he did not remember. Whereas, the statement U/S 161 reveals that he has mentioned therein that parcels were sealed with the seal of SKY and AK were sent to the FSL on 22.07.2017, whereas at the time of examination in this court he has deposed that the sealed pullandas and FSL form were sealed with the seal of AK and when leading question was asked by Ld. APP for State then he has deposed that the seal on the parcel of the case property was of PK. In view of the such material contradictions in the testimony of this witness it is found to be suspicious, so, it cannot be relied upon.
Page 24 State V.Sahil @ Sahid
23. Whereas, HC Surender Singh has been examined as PW 4, who has deposed that on 22.03.2017 he obtained one sealed parcels sealed with the seal of AK and PK and FSL form duly sealed with the same seal from MHCM and deposited the same in FSL Rohini, vide RC No.94/21/17 is Ex.PW3/A. He has further deposed that he returned the acknowledgement to MHCM is Ex.PW3/B. He has further deposed that no tampering was done with sealed parcels and documents till remained in his custody. This witness was also cross examined by Ld. Counsel for the accused. During his crossexamination, he has deposed that he had gone through his statement which was recorded by IO during investigation. He has admitted it to be correct that road certificate number 22/3/17 is written in his statement Ex.PW4/D1 u/s 161 Cr.P.C. He has further deposed that the road certificate was given to this witness by HC Mahender and he had handed over the acknowledgement regarding the receiving of parcels in the FSL to HC Mahender. He has further deposed that he did not remember, whether SI Parmod had accompanied him to the FSL at the time of depositing the parcels in the FSL. He has further deposed that SI Parmod did not ask him to see the same and he took the road certificate from HC Mahender at the time of going to the FSL and also handed over the same to HC Mahender. He has further deposed that he even did not show the road certificate to SI Parmod on that day. He did not remember, whether the portion A to A1 on Ex.PW3/A was already written, when the road certificate was handed over to him at the time of going to the FSL and he did not identify the handwriting of MHCM. The witness is shown the documents EX.PW3/A. On seeing the document Ex.PW3/A, he said that it is correct that the handwriting from portion A to A1 differs from the other writing of Ex.PW3/A. He has denied Page 25 State V.Sahil @ Sahid that the portion A to A1 on Ex.PW3/A was written by SI Parmod subsequently or that he has deliberately concealed this material fact or that he has deposed falsely. The testimony of this witness is also found to be self contradictory and inconsistent to the testimonies of PW9 and PW3. In his examination in chief this witness has deposed that he had obtained the sealed parcels and form of FSL from the MHC(M) and deposited the same in the FSL Rohini and PW 3 has deposed that on dated 09.03.2017, copy of FSL form was also deposited in the malkhana. But, the copy of the register no.19 Ex.PW2/B reveals that it is nowhere mentioned therein, that FSL form was also deposited in the malkhana on dated 09.03.2017. This witness has deposed that on dated 22.07.2017, sealed pullandas were sent to the FSL with the form of FSL through this witness vide RC No.94/21/17. Whereas, his statement Ex. PW 4/D1 recorded u/s.161 of Cr.PC reveals that he had taken the exhibits and the form of FSL vide Road Certificate No. 22/3/17. So, these are material contradictions regarding the road certificate number and since the copy of the road certificate Ex. PW 3/A reveals that it is nowhere mentioned that the FSL form was also given with the exhibits for taking to the FSL on dated 22.03.2017 and similarly the copy of the register no. 19 Ex.PW 2/B reveals that it is nowhere mentioned therein that the FSL form was deposited on dated 09.03.2017 and since, PW3 has admitted that overwriting over the road certificate regarding seal was done by SI Parmod and the seal by SI Parmod was not handed over to any public witness. So, the possibility of tampering with the exhibits cannot be ruled out. In view of the such material contradictions in the testimony of this witness, it is found to be suspicious so it cannot be relied upon.
Page 26 State V.Sahil @ Sahid
24. Whereas Ct. Parteek has been examined as PW 5, who has deposed that on 09.03.2017 SI Parmod told him about secret information that a person, would come with Ganja from Nangloi to Railway Phatak side. He has further deposed that he along with SI Parmod, Ct.Ashok and secret informer proceeded to HIG Labour colony under pass, Sultan Puri by his car. He has further deposed that SI Parmod requested some passers by to join the raiding party, but, all of them refused and he was instructed to take position near the corner of a lane beside park and residential area/J.J. Colony and Ct. Ashok was instructed to take position near wall near railway line. He has further deposed that at about 7.30 pm SI Parmod beckoned them by raising his hand and they apprehended the person coming from the side of Nangloi who was carrying a KATTA. He has further deposed that SI Parmod had told accused that he had information regarding carrying of Ganja in KATTA by accused and SI Parmod also told to the accused that accused could be searched before the Magistrate or the Gazetted Officer. He has further deposed that accused was also told that he could take search of police party and their vehicle before his search and SI Parmod served a notice u/s 50 of the NDPS Act to the accused. But, the accused refused to be searched before the Magistrate or the Gazetted Officer and he also refused to search police officers or their vehicle. He has further deposed that the refusal by accused was also written by SI Parmod on the back side of the notice and the KATTA, which was carried by the accused, was opened and found containing greenish vegetative material and SI Parmod told that it was Ganja. He has further deposed that the KATTA with vegetative material was weighed and it's weight was found to be 22 kgs and 150 grams. The vegetative material was taken out from the KATTA and Page 27 State V.Sahil @ Sahid empty KATTA was also weighed and it's weight was 150 grams and two samples of 200 grams each were separated, kept in polythenes. He has further deposed that the remaining vegetative material was put back in same KATTAs which was marked as A, samples were marked as A1 and A2 and the KATTA and samples were sealed with the seal of PK. He has further deposed that SI Parmod also filled FSL form and affixed seal of PK on FSL form. He has further deposed that seal after use was handed over to Ct. Ashok and Seizure memo of Ganja was also prepared by SI Parmod and seizure memo is Ex.PW5/A. He has further deposed that SI Parmod Kumar also prepared rukka and sent him to PS with sealed pullandas, copy of seizure memo and FSL form. He has further deposed that he had handed over rukka to DO and sealed pullanda, copy of seizure memo and FSL form to SHO. He has further deposed that SHO also put his seal on sealed pullandas and FSL form and he remained in office of SHO 510 minutes and went out from there. He has further deposed that he collected copy of FIR and rukka from DO and handed over the same to SI Shravan Kumar to whom further investigation was marked. He has further deposed that he along with SI Sharvan Kumar returned to the spot, where Ct. Ashok, SI Parmod with accused were present and SI Parmod got prepared site plan through SI Sharvan Kumar. He has further deposed that SI Shravan Kumar interrogated accused and he has also arrested accused and personal search was also conducted. He has proved the memo of arrest of accused Ex.PW5/B, his personal search memo Ex.PW5/C and disclosure statement Ex.PW5/D. He has further deposed that one notice u/s 50 NDPS Act and Rs. 1300/ were found in personal search of accused and medical examination of accused was got done from SGM Hospital and he was Page 28 State V.Sahil @ Sahid produced before SHO. He has further deposed that accused told that he used to bring Ganja from one person namely Suraj who used to meet accused near Anaaj Mandi, Najafgarh. He has further deposed that on 15.03.2017, police custody of accused was also obtained and they went to Nangloi underpass, Railway Station and Anaj Mandi Najafgarh with accused for apprehending Suraj, but, he could not be traced. He has correctly identified the plastic KATTA with vegetative material Ex.MO1. He has correctly identified the polythene containing sample of vegetative material received from FSL Ex.MO2. He has correctly identified the original notice u/s. 50 of NDPS Act Ex.PW5/E. He has correctly identified the sample Ex.MO3. This witness was also cross examined by ld. Counsel for accused. During his cross examination he has deposed that he did not remember, as to how many times, the IO had recorded his statement, but he remembered that his statement was recorded in police station. He has further deposed that his one statement was recorded by IO on 10.03.2017 at about 2.00 AM and he did not remember about any other statement and he had read his statement recorded by IO on 10.03.2017. He has further deposed that IO had told him all the secret information of the present case on 09.03.2017 at 06.30 PM and IO did not tell him the name of the person, from whom the accused was to bring the Contraband. He did not know whether IO had done any documentation prior to leaving of police station for raid. IO did not ask any person living in the residential area of J.J. colony to join the investigation of the present case, in his presence. He was made to stand by the IO, a Jhuggi was situated on his one side and the Jhuggies situated in the said area do not bear any number. He did not know, whether any person was living in the said Jhuggi or not. He has admitted it to be correct that Page 29 State V.Sahil @ Sahid there are some Pakka houses and some are Kaccha houses in the said area. He failed to tell with which the said KATTA was tied and deposed that contraband allegedly recovered from the accused was of GUCHCHHA type. He has further deposed that no flowers, seeds or stems were there in the said GUCHCHHA. He has admitted it to be correct that he is not aware about the content of said GUCHCHHAS and only IO had told him about the nature and contents of the said GUCHCHHAS. He has further deposed that the contraband was weighed with electronic weighing machine and he did not know about the maker or size of the said electronic weighing machine. He did not know whether IO had prepared any handing over memo of seal to Ashok. He has further deposed that he had gone to the police station at about 9.30 PM with rukka for registration of the FIR and he remained with the Duty Officer for about 35/40 minutes for registration of the FIR. He has further deposed that he had returned at the spot again at about 10.30/10.45 PM and first of all, he went to the Duty Officer with the rukka and thereafter, he went to the SHO. He has further deposed that SHO did not telephone to any person in his presence and SHO had affixed the seal on the contraband and its samples in his presence. He has further deposed that Duty officer had asked him to meet SI Sarvan Kumar and he met with SI Sarvan Kumar in the police station at about 10.15 PM. He has further deposed that during the personal search of the accused, one currency note of 500 denomination and 8 notes of 100 denominations, were found. He has further deposed that he left the spot at 12.00 midnight or 12.15 AM alongwith SI Sarvan Kumar and Ct. Ashok and SI Parmod had left the spot at 10.45 PM or 11.00 PM. He has further deposed that they arrived at the SGM Hospital at about 12.30 AM and they left the hospital at about 12.45 AM and they again arrived in Page 30 State V.Sahil @ Sahid the police station within 10 minutes thereof. He has further deposed that IO SI Sarvan had produced the accused before the SHO and he did not know what else was done by IO after arriving in the police station. He has further deposed that he had joined the investigation in this case even on dated 15.03.2017. He has denied that no secret information regarding bringing/carrying of contraband by the accused was ever given by any secret informer or that he had not joined the investigation or that nothing was recovered from the accused or that all the proceedings were conducted in the police station or that all the documents are ante dated and ante timed or that the accused was picked up from his house or his signatures were obtained on blank papers or that those blank papers were converted into incriminating evidence in present matter or that he has deposed falsely at the instance of IO. Thus, the testimony of this witness is also found to be contradictory to the documents Ex. PW 2/B as this witness has deposed that SI Pramod had sent RUKKA with the sealed pullandas, copy of seizure memo and form of FSL through this witness and he had handed over the RUKKA to the duty officer and sealed pullanda, copy of seizure memo and FSL to the SHO and SHO has been examined as PW2 who has deposed that he had called to the MHC(M) and handed over the sealed pullandas and documents to the MHC(M) for depositing the same in Malkhana, but, the copy of Register no. 19 Ex. PW 2/B reveals that it is nowhere mentioned therein that FSL form was also deposited in the Malkhana on 09.03.2017. This witness had admitted that IO did not ask any person living in the area of JJ Colony to join the investigation of the present case. Thus, from the testimony of this witness it may be inferred that IO did not make sincere efforts for joining of the public person in the investigation Page 31 State V.Sahil @ Sahid of the present case. Since, this witness during his crossexamination has deposed that the contraband alleged to have been recovered from this accused was of GUCHCHHA type and no flower, seed or stem were there in the said GUCHCHHA. So, the testimony of this witness is found to be contradictory to the report of FSL Ex. PW 6/A as the prosecution has alleged that GANJA was recovered from the accused and GANJA has been defined u/s. 2 (iii)( b ) of the NDPS Act, in accordance with which flowering of fruiting tops of cannabis plant is called GANJA, but, if the testimony of this PW5 is looked into, then, the flowering was missing therein, then, how the PW 6 has reported in his report Ex. PW 6/A the same as GANJA, so the report of FSL Ex.PW6/A becomes suspicious. So, the testimony of this witness is found to be inconsistent to the testimonies of other prosecution witnesses 3, 7 and report of FSL Ex PW 6/A so, the testimony of this witness is also suspicious, so the same does not inspire any confidence.
25. Whereas, Sh. Jitender Kumar, Senior Scientific Officer (Chemistry), FSL, Rohini has been examined as PW 6, who has deposed that he is M.Sc in Chemistry. He has experience of about 18 years of examining Chemicals and Contrabands. He has further deposed that on 22.03.2017, one sealed polythene parcel sealed with the seal of PK and AK alongwith FSL form was received in office. He has further deposed that on opening the parcel, exhibit i.e. dried greenish brown coloured fruiting and flowering vegetative material was found. He has further deposed that He has examined the exhibit and found the same to be Ganja and his detailed report is Ex.PW6/A. He has further deposed that the remnants of the exhibits sealed with the seal of JK FSL, Delhi and sent to forwarding authority. This witness was cross Page 32 State V.Sahil @ Sahid examined by ld. Counsel for the accused. During his cross examination he has deposed that he also received copy of FIR, copy of Road Certificate and Seizure Memo alongwith the exhibit and FSL Form. He has further deposed that he has seen the copy of the Road Certificate Ex.PW3/A and similar copy of Road Certificate was received in the FSL. He has admitted it to be correct that it is not mentioned in the copy of Road Certificate Ex.PW3/A that copy of the FIR, copy of Seizure Memo and FSL Form were also sent to the FSL alongwith exhibit. He has further deposed that he has not brought the copy of the FSL Form and Road Certificate received by him alongwith the exhibit. He has denied that he has not examined the Contraband or that he has deposed falsely. Thus, from the testimony of this witness is also it is clear that in the road certificate, it was not mentioned that FSL Form was also sent with the exhibit to the FSL Rohini. No doubt that in the report of FSL Ex. PW 6/A this witness has deposed that the exhibit was greenish brown coloured fruiting and flowering vegetative material and the same was GANJA But the cross examination of PW 5 reveals that he has mentioned therein that there was no flowers in the said GUCHCHHAS which were alleged to have been recovered from accused. So, the testimonies of PW 5 is found to be contradictory to the report Ex.PW6/A . So, the testimony of this witness and his report Ex.PW6/A also become suspicious.
26. Sh. Darade Sharad Bhaskar, Superintendent of Police Dadra and Nagar Haveli has been examined as PW 8, who has deposed that on 09.03.2017 he was posted as ACP Sultan Puri and on that day secret information regarding carrying of ganja by person namely Sahil S/o.
Page 33 State V.Sahil @ Sahid Mahmood was recorded in roznamcha vide DD no. 23A and true copy of the same was forwarded to him and retained in his office vide diary no. 1233 dated 09.03.2017 is Ex.P1. He has further deposed that on next date special report u/s. 57 NDPS Act regarding seizure of ganja was forwarded by SHO to him, which was retained in his office vide diary no. 1235 dated 10.03.2017 is Ex. P2 . He has further deposed that on the same day special report u/s. 57 NDPS Act regarding arrest of accused Sahil @ Sahid S/o. Mahmood was forwarded by SHO to him, same was retained in his office vide diary no. 1236 dated 10.03.2017 Ex. P3. He has further deposed that true attested copy of DD no. 23A is Ex.PW7/A. This witness was cross examined by ld. Counsel for accused. During his crossexamination he has deposed that he was informed telephonically by SHO PS Sultan Puri regarding the secret information. He has further deposed that on the same evening he had received the information in writing, at about 6:00 PM 7:00 PM and he had telephonically directed to the SHO to conduct the raid in case the information was credible. He did not do anything else. This witness has deposed that SHO had telephonically told about the secret information. But, no call detail record of this witness or of SHO have been brought on the record. Thus testimony of this witness is also inconsistent to the testimony of PW2 SHO/Inspector Ashok. As PW2 has deposed that after receiving the secret information, he went to the office of ACP and informed him about the secret information, who directed him to conduct raid. Whereas, PW8 (then ACP) has deposed that SHO had telephonically informed him about the secret information. Since, this court does not find the fact of writing of any secret information in the rukka Ex.PW7/D and FIR Ex.PW1/A. So, the Itlah Mukhbiri Ex.PW2/A1 and DD no.23A Ex.PW7/A Page 34 State V.Sahil @ Sahid appears to be suspicious documents, which appear to have prepared subsequently to fill the lacuna in the case of prosecution. Therefore, testimony of this witness is also suspicious.
27. Since, the secret information in the case in hand is alleged to have been received by SI Pramod , who has been examined as PW 7 so as per the mandate of Section 42 (1) of NDPS Act such information was required to be reduced into writing by him. SI Pramod has been examined PW 7 and during his examination in chief he has deposed that he had reduced he has testified that on receiving of the secret information on dated 09.03.2017 at 5:00 PM, he had written the same in Ex.PW2/A1 and in Roznamcha vide DD No. 23A Ex.PW7/A. But the perusal of the rukka Ex.PW 7/D reveals that it was prepared at 7:25 PM and perusal of the FIR Ex. PW1/A reveals that it was lodged on dated 09.03.2017 at 9:40PM but this court does not find any reference of Ex.PW2/A1 and DD No. 23A Ex PW 7/A therein and even in the report u/s. 173 of Cr.PC, it is not mentioned that secret information was reduced into writing vide Ex.PW2/A1 or DD No.23A Ex. PW 7/A. Had PW7 reduced such information into writing vide Ex.PW2/A1 or vide DD No. 23A Ex.PW7/A, this fact could be mentioned in the RUKKA Ex.PW7/D, FIR Ex.1/A and also in the report u/s. 173 of Cr.P.C. But as the secret information is alleged to have been received by this witness on dated 09.03.2017 at 5:00 pm, but, as this fact is not mentioned in the abovesaid documents. So, possibility of creating Ex.PW2/A1 and DD No. 23A Ex.PW7/A, subsequently to fill the lacuna cannot be ruled out. No doubt PW2/SHO Inspector Ashok has deposed that SI Parmod had reduced the secret information into writing vide Ex.PW2/A1 and he had signed the same.
Page 35 State V.Sahil @ Sahid But, in view of inconsistent testimony of PW2 and PW7, the alleged compliance of provision of section 42 (1) (2) becomes suspicious.
28. Since their lordship of Supreme Court in Catina of judgments was pleased to hold that provisions of Section 42 of NDPS Act is mandatory and in the case in hand, no information regarding the contraband was reduced into writing nor such information was sent to higher officer by the HC Om Prakash (PW 8) or by SI Ravi Kumar PW1. Mere writing of DD No. 19A cannot be held to be compliance of Section 42 (1) & 42 of NDPS Act. So, I do not find any force in such submission of the Ld. APP for the State.
29. Since their lordship of Supreme Court of India in case titled as Beckodan Abdul Rahiman Vs. State of Kerala AIR 2002 SC 1810, was pleased to hold that "We are of the firm opinion that the provisions of sub section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted. Both the trial court as well as the High Court have failed to consider this aspect of the matter which warrants the setting aside of the impugned judgment".
30. Their lordship of Supreme Court also referred an other judgment passed in case Rajender Singh vs. State of Haryana (2011) 8 SCC 130, wherein the constitution bench of their lordship of Supreme Court was pleased to hold that the non compliance of provision of Section (1), (2) of Section 42 of the NDPS Act are impermissible.
Page 36 State V.Sahil @ Sahid
31. PW7 SI Parmod Kumar has deposed that two samples of 200 grams each were separated and the same were sent to the FSL. Whereas, the report of FSL Ex.PW6/A reveals that the weight thereof is mentioned as 190.8 grams with polythene. The Ld. Counsel for the accused has submitted that in view of difference of weight of the sample, the case of prosecution becomes doubtful. He has relied upon the judgment Rajesh Jagdamba Avasthi Vs. State of Goa, VII (2004) SLT 85.
32. As their lordship of the Supreme Court of India in case Rajesh Jagdamba Avasthi Vs. State of Goa, VII (2004) SLT 85 was pleased to hold "the credibility of the recovery proceedings is considerably eroded, if it is found that the quantity actually found by the PW1 was less than the quantity sealed and sent to him. As he rightly emphasized, the question was not how much was seized, but, whether there was actual seizure and whether there was an actual seizure and whether what was seized was really sent for chemical analysis to PW1. The prosecution has not been able to explain this discrepancy and therefore, it renders the case of the prosecution doubtful".
33. In view of the difference in the weight of the samples sent to the FSL, the case of the prosecution becomes doubtful in the light of above said judgments.
34. PW7 has deposed that he has asked to 45 passersby to join the investigation, but PW5 has deposed that IO did not ask any public Page 37 State V.Sahil @ Sahid person from the surrounding area to join the investigation. Thus, there are material contradictions in the testimonies of PW7 and PW5. So, their testimonies are held to be suspicious. So, in the absence of the public witness. The testimonies of police witnesses which are found to be inconsistent and suspicious cannot be relied upon.
35. Since, their lordship of the Hon'ble High Court of Delhi in case Mohd. Masoom Vs. State of NCT of Delhi 219(2015) DLT 271 was pleased to hold that "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 be 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".
"In the instant case, despite availability of independent public witnesses, no genuine and sincere efforts were made by the Investigating Officer to associate them. The explanation offered by the Investigating Page 38 State V.Sahil @ Sahid Officer does not inspire confidence. Secret information was received at around 09.30 a.m. at Crime Branch, Chanakyapuri. Allegedly, A2 was to receive a huge consignment of Heroin / smack at IGI Airport from Afghan Nationals who were to arrive in India by Afghan National flight at about 12.30 p.m. or thereafter. Apparently, the police officials had sufficient time to make sincere efforts to associate independent public witnesses in the raiding team. However, nothing was done. For the first time, when the raiding team reached Lajpat Nagar at about 11.30 a.m., some passersby were allegedly asked to join the raiding party. They purportedly declined to participate taking the plea that they were busy in their own work. It has come on record that there were number of shops at Lajpat Nagar, where the police party had followed A2s car. None of the shopkeepers was requested to be a part of the raiding team. Again, at 06.30 p.m., an attempt was allegedly made at the airport to join some public persons in the raiding team but none was willing and they left without disclosing their names and addresses. It is a matter of record that the raiding team remained at the spot till 03.00 a.m. It is strange that for about thirteen hours the Investigating Agency was not able to associate even a single independent public witness at any stage of the investigation. Admitted position is that there were number of police officials, government / private employees, Traffic Police Control Room, Prepaid Taxibooth, CISF officials and shopkeepers, etc. at the crowded and busy airport. It is not explained as to why only the passers by were requested to join the investigation. Even their names or addresses were not recorded and no action whatsoever was taken for their refusal to assist in the investigation. Apparently, the Investigating Agency were not Page 39 State V.Sahil @ Sahid interested to make any independent witness to be a part of the raiding team."
36. In the case in hand also, IO has failed to make sincere efforts to associate the independent public witnesses. It appears to the court that IO was not interested to make any independent witness to be a part of raiding team.
37. Ld. Counsel for the accused have submitted that no notice u/s. 50 of the NDPS Act were ever served to the accused and their signature was obtained on some blank papers and same are misused as the replies to the notices u/s. 50 have been prepared thereon. Since the contrabands are alleged to have been recovered from the sack of the plastic carried by the accused and not from the personal search of the accused. So, serving of the notices u/s. 50 of NDPS Act was not essential and even if any doubt is there in the serving of the notices under section 50 of the NDPS Act and the same are inconsequential.
38. As their lordship of High court of Delhi in case Custom Vs. Jorawar Singh Mundy MANU/DE/0290/13 was pleased to hold that "as regard compliance of Section 50 of NDSP Act, legal position is well settled as laid down in Ajmer Singh (SUPRA) that in case, the recovery is not from the personal search, but from the baggage, non compliance of Section 50 would not vitiate the trial as the search of the bag does not amount to personal search, so as to attract Section 50 of the NDPS Act".
39. Since, in the case in hand, PW7 SI Parmod Kumar has deposed in his Page 40 State V.Sahil @ Sahid examination in chief that seal after use was handed over to Ct. Ashok But, Ct. Ashok has not been examined and since, this court finds material contradictions in the testimony of PW7, who has also written note regarding the seal on the road certificate Ex.PW3/A. On raising of objection of FSL and since the weight of the exhibits sent to the FSL is found to be different in the report of FSL Ex.PW6/A, as mentioned by this PW7. Since, admittedly no seal after use was handed over to the public witness and since the contrabands are alleged to have been recovered from accused on dated 09.03.2017 and the exhibits are alleged to have been sent to the FSL on dated 22.03.2017 and delay in sending the exhibits to the FSL is not explained, which also creates suspicion in the version of the prosecution.
40. As their Lordship of High Court of Delhi in case Desraj @ Dass V. State 83 (2000) DLT 262 was pleased to hold that "Delay of 12 days in sending the parcel by Moharir Malkhana to the CFSL is serious lacuna in the version of the prosecution. This lapse casts serious doubts about the truthfulness and credibility of the version of the prosecution".
41. Similar view was expressed by their Lordship of High Court of Delhi in case Ganesh Kumar Vs. State 2016 Law Suit Delhi 4045.
42. Since in the register No.19 Ex.PW2/B, it is nowhere mentioned that the FSL form was ever deposited in the malkhana and similarly, in the road certificate Ex.PW3/A, it is not mentioned that FSL form was sent with the exhibits to the FSL. So, there are material contradictions in the testimony of PW7 and PW3, which renders the case of prosecution to be Page 41 State V.Sahil @ Sahid doubtful.
43. As their lordship of Hon'ble High Court of Delhi in the case "Pradeep Kumar Vs. State 1997 IV AD(Delhi) 666" was pleased to hold that "I also tend to agree with the learned counsel for the appellant that the prosecution cannot be taken to have proved that the C.F.S.L. Form was actually deposited with the Moharir Malkhana or that it was actually sent thereafter to the C.F.S.L. of course, the Investigating Officer stated that the C.F.S.L. Form was filled in. It is also true that the Moharir Malkhana has made a statement that the C.F.S.L. Form was deposited. It also cannot be denied that the constable who took the sample parcel to the C.F.S.L. has deposed that he had deposited the C.F.S.L. Form with the C.F.S.L. However, I am not inclined to place reliance on this oral evidence as it is not supported by the documentary evidence. Had the C.F.S.L. Form been deposited with the Moharir Malkhana and had it been handed over to the constable who had taken the sample parcel to the C.F.S.L., it would have found mention in the Register of the Moharir Malkhana. It find no such mention. There is no entry to the effect that the said Form was deposited or was later sent to the C.F.S.L. and further held "besides what has been recorded by me, I find myself one with the Learned counsel for the appellant that the prosecution version cannot be accepted as gospel truth and that doubts would legitimately be raised as the Investigating Officer made no efforts to join any witness from the Public. It is not the case of sudden apprehension and recovery. It is a case, where, secret information has been received. It is in evidence that there were shops and that consequently persons from the Page 42 State V.Sahil @ Sahid public were available to the investigating officer at his elbow. And yet he made no effort to join any witness from the public.
"I feel that keeping in view what has been noticed by me above, the failure of Investigating Officer to join the witnesses from the Public assumes significance."
"For the reason recorded above, I hold the appeal deserves to be allowed. I do so. The conviction of the appellant U/S 20 of the Act and sentenced passed thereunder stand set a aside. Fine, if deposited, be refunded. Let the appellant be set free, if not wanted in any other case".
44. Since, PW2 has deposed that the FSL form was deposited in the malkhana on 09.03.2017, and the Ld. Counsel for the accused has disputed the same. Since PW7 has deposed in the court that on dated 09.03.2017 that he had handed over the sack of the contrabands, samples of the contrabands and FSL form to Ct. Prateek (PW 5) and he was directed to produce the same before SHO and SHO/Inspector Ashok has been examined as PW2 who has deposed that Ct. Prateek produced one copy of seizure memos, three pullandas and the form of FSL and produced before him and he had handed over seal pullandas and documents to the MHC(M) for depositing in malkhana. But, it is not categorically mentioned in the Register No. 19, copy whereof is Ex.PW2/B that FSL form was also deposited in Malkhana on 09.03.2017 and since the copy of the road certificate Ex.PW3/A reveals that the samples were received from the malkhana, as, the road certificate was prepared on 22.03.2017. PW3 has Page 43 State V.Sahil @ Sahid deposed that samples were sent to FSL on 22.03.2017 and whereas, in road certificate Ex.PW3/A, was prepared on 22.03.2017, it is not mentioned therein that any form of FSL was also taken with the parcels of samples of the contrabands. Had the FSL form been deposited in the malkhana on dated 09.03.2017, this could be mentioned in the register no. 19. Copy whereof is Ex.PW2/B and similarly had the FSL Form been deposited in the malkhana on 09.03.2017, then, it could be received with the samples of the contrabands for taking the same to the FSL. But, as neither it is mentioned in the register No.19 Ex.PW2/B, that FSL Form was deposited on 09.03.2017 in the malkhana nor it is mentioned in the road certificate Ex.PW3/A that the FSL form was also taken with the samples of the contraband for taking the same to FSL and since there are material contradictions in the ocular testimonies of the witnesses of the prosecution and documents relied upon by the prosecution. So, in the given circumstances the possibility of subsequently filling of FSL form cannot be ruled out, so, the case of the prosecution becomes doubtful. In view of contradictions in the testimonies of PW3, PW2, PW7 and PW5. So, their testimonies are held to be doubtful.
45. As, their lordship of Supreme Court of India in case Mausam Singh Roi & Others Vs. State of West Bengal (2003) 12 SCC 377 was pleased to hold that "It is settled principle criminal jurisprudence that more serious the offence, stricter the degree of proof since of higher degree of assurance is required to convict the accused".
46. Their lordship of Supreme Court in case State of Rajasthan V. Raja Page 44 State V.Sahil @ Sahid Ram, V (2003) SLT 45III (2003) CCR 198 (SC)=(2003) 8 SCC 180 was pleased to hold that:
"There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case, where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not (see Bhagwan Singh v. State of M.P., (2002) 4 SCC 85). The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. IF the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Badade v. State of Maharashtra, (1973) 2 SCC 793; Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4 SCC Page 45 State V.Sahil @ Sahid
484."
47. So, in the light of the above mentioned judgment, I am inclined to hold that in the absence of any public witness to the alleged recovery of the contrabands and in view of inconsistent testimonies of the police witnesses, the alleged recovery from the accused becomes doubtful.
48. Since the testimonies of prosecution's witnesses regarding non joining of the public witnesses are found to be inconsistent on the material points, weights of the samples of contraband are found to be inconsistent since there is doubt regarding the completion of the mandatory provision of Section 42 of NDPS Act, as discussed hereinabove and in the absence of public witness. The testimonies of the prosecution's witnesses, who are police personnels, whose testimonies are inconsistent, doubtful & suspicion, so, they do not inspire any confidence. In the above discussed circumstances, the possibility of false implication of accused can not be ruled. Therefore, benefits of doubts are given to the accused.
49. Cumulative fact of the above discussion is that the prosecution has failed to prove the charges framed against this accused beyond reasonable doubt.
50. In view of the above discussion, accused Sahil @ Sahid is acquitted of the charges framed against him and the case properties are ordered to be disposed off after expiry of period to file the appeal as per rules. The accused Sahil @ Sahid is directed to be released on Page 46 State V.Sahil @ Sahid bail on furnishing bail bonds in the sum of Rs.10,000/ with one surety of the like amount, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure his presence in the Hon'ble appellate court and on filing of bail bond and surety bond, the file be consigned to the Record Room. PAWAN Digitally signed by PAWAN KUMAR KUMAR MATTO Announced in open court on MATTO Date: 2018.09.29 16:07:46 +0530 29th September 2018 (Pawan Kumar Matto) Special Judge (NDPS) Additional Sessions Judge (N/W) Rohini Courts, Delhi Page 47