Delhi District Court
H.P. vs . Pawan Kumar (2005(4)Scc350) Has Held ... on 11 September, 2019
IN THE COURT OF MS.NEELOFER ABIDA PERVEEN:
SPECIAL JUDGE2 NDPS ACT:(CENTRAL DISTRICT):
TIS HAZARI COURT:DELHI
SC No. 191/17
FIR No. 12/17
PS Burari
U/s 20(b)(ii)(B) of Narcotic Drugs Psychotropic Substance Act
In the matter of:
State
Versus
SAKHI CHAND
S/o Sh.Dharamdev Dass
R/o Jhuggi No.3, Kuldeep Chaudhary Ka Plot,
Near Laxmi Nivas Ashram,
Milan Vihar, Jharoda, Burari, Delhi.
....Accused
Date of Institution : 08.03.2017
Date of Judgment : 11.09.2019
JUDGMENT
1. Accused Sakhi Chand has been facing trial for offence u/s 20 (b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) on the FIR No. 12/2017 State v. Sakhi Chand Page1 accusation that on 08.01.2017, at about 6:35 p.m, at Jagatpur Pusta Road, near BioDiversity Park, Milan Vihar, he kept in his possession Ganja weighing 9 kg 500 gms.
On completion of investigation, challan was put in court and cognizance is taken. Prima facie case having been made out, charge for offence u/s 20 (b) (ii) (B) of NDPS Act was framed against accused Sakhi Chand. Since he pleaded "not guilty" and claimed trial, prosecution was called upon to lead evidence.
PROSECUTION EVIDENCE
2. In order to prove its case, prosecution examined following 10 witnesses: PW1 HC Ravinder was working as Duty Officer from 4 pm to 12 midnight on 08.01.2017. On that day at about 9:50 pm, Ct.Arun Kumar brought rukka sent by SI Jagdish on the basis of which PW1 got registered present case FIR, copy of which is Ex.PW1/A. PW1 made his endorsement Ex.PW1/B bearing DD No.61A on rukka Mark A. He issued certificate u/s 65B of Evidence Act Ex.PW1/C bearing his signature at point A. PW2 Inspector Manoj Kumar was serving as SHO, PS Burari on 08.01.2017. He deposed that at about 5 p.m, SI FIR No. 12/2017 State v. Sakhi Chand Page2 Bharat Ratan, I/C PP, Jharoda informed him telephonically on his mobile phone that he had received a secret information that one boy carrying Ganja in a pithu bag would come at Milan Pusta Road, Jagat Pur. He directed SI Bharat Ratan to constitute a raiding party and take necessary steps. That on 08.01.2017 at about 7 pm, PW6 SI Jagdish informed PW2 on his mobile phone that one boy had been apprehended alongwith pithu bag which was found containing Ganja weighing 9 kgs 500 grams. At about 8:15 p.m, he reached the spot at Pusta Road near BioDiversity Park by the side of Milan Vihar where SI Jagdish, Ct. Arun and Ct. Kawaljeet met him alongwith accused Sakhi Chand and SI Jagdish produced four sealed parcels of 9.500 kg of Ganja bearing seal of JS and Mark S1, S2, A1 and A2 alongwith FSL form having impression of the same seal and the copy of seizure memo thereof and he put his seal having impression MK on all the parcels and FSL form and then took the same to police station. PW2 further deposed that he deposited the said parcels with MHC(M) at Malkhana who recorded an entry in register No. 19 and he also put his signatures in the relevant column of register No.19. PW2 further deposed that on the same day, Investigating Officer, SI Rambir had put before him a report under Section 57 of the Act FIR No. 12/2017 State v. Sakhi Chand Page3 regarding the arrest and recovery from the accused and he forwarded the same to the office of ACP concerned. Parcels Mark S1, S2, A1and A2 are put to this witness. All the parcels when produced in court are found duly sealed with the seals of MK and JS except Mark S2 that is found sealed with the seal of FSL, bearing correct particulars of the case duly identified by him and are exhibited as Ex. P1 to P4. Only Mark S1 is opened before him and is found containing cut cloth parcel alongwith some substance which is identified by him as the sample parcel Mark S1.
PW3 Head Constable Gopal Singh was working as MHC(M) at PS Burari who deposed that on 08.01.2017, SHO/Inspector Manoj Kumar had deposited four sealed parcels bearing the seals of JS and MK and Mark S1, S2, A1 & A2 in the Malkhana and he further simultaneously deposited FSL form bearing the impression of seals of MK and JS alongwith one carbon copy of seizure memo of Ganja and he recorded an entry No. 1569 Ex. PW3/A in the register No. 19 in this regard. On 14.02.2017, he handed over one sealed parcel bearing Mark S1 alongwith FSL form to Constable Kawaljeet for depositing the same at FSL, Rohini and made entry in register No. 19 which is Ex. PW3/A vide Road Certificate No. 18/21 which is Ex. PW3/B FIR No. 12/2017 State v. Sakhi Chand Page4 and acknowledgement of the same is Ex. PW3/C. PW3 further deposed that on 11.05.2017, he collected from District Line, Civil Lines where FSL results and sample parcel were used to receive from FSL and he made note to this effect at point Y alongwith entry Ex. PW3/A in register No.19.
PW4 W/Ct. Sushila was working as DD writer who deposed that on 08.01.2017, SI Jagdish Singh recorded DD NO. 20PPJ Ex. PW4/A in DD register.
PW5 SI Rambir Singh deposed that on 21.01.2017 further investigation of the case was assigned to him and on 14.02.2017, he got dispatched some material exhibits to FSL Rohini for analysis through Ct. Kamaljeet and he presented the challan in the Court and on receiving of FSL report, he presented supplementary challan with FSL report Ex. PW5/A. PW6 ASI Parveen was serving as Reader to Ms. Indirawati, ACP, Civil Lines, Delhi on 09.01.2017 and has deposed that he received a report under Section 57 of the Act prepared by SI Harish Chand forwarded by SHO PS Burari and he recorded the entry Ex. PW6/A of the same in diary register at serial No. 234. This witness is not cross examined by the accused and the document tendered into evidence by him i.e. EX.PW6/A is admitted by the accused under section 294 Cr.P.C.
FIR No. 12/2017 State v. Sakhi Chand Page5 SI Jagdish, has also been numbered as PW6, and deposed that on 08.01.2017, at PP Jharoda, one secret informer came to police post and informed that one young person was coming via Jagatpur Pusta Road with Ganja in a pithu bag at his jhuggi in Milan Vihar. He produced secret informer before Incharge PP Jharoda and information was also given to SHO PS Burari telephonically and in accordance with the directions of SHO, he constituted a raiding party comprising of himself, Ct. Arun Kumar and Ct. Kamaljeet. PW6 recorded DD No. 20 Ex. PW4/A regarding secret information and regarding departure from the police post and reached at Jagatpur Pusta Road, near BioDiversity Park, Milan Vihar. He also asked 45 public persons to join the raiding party but none agreed and left without disclosing their names and addresses. He deployed both constables on each side of the road and he alongwith secret informer took position on the side of the road and at about 06.35 pm, one young boy came in a manual rickshaw from the side of Jagat Pur Pusta and said young boy alighted from the rickshaw on the road and started walking towards Milan Vihar. On the pointing out of secret informer, the said young boy was apprehended who was carrying a pithu bag on his back and on enquiry, his name was revealed as Sakhi Chand. He apprised FIR No. 12/2017 State v. Sakhi Chand Page6 the accused about secret information against him that he was carrying Ganja in his pithu bag and his search was to be taken. He also apprised the accused of his legal rights that his search could be taken in presence of Gazetted Officer or Magistrate if he so desired. He then served upon him a notice u/s 50 of the Act in writing and made him understand about the contents of the notice and meaning of Gazetted Officer or Magistrate. He deposed that original notice was served upon the accused but the accused refused to avail his legal rights. Accused gave his reply on the carbon copy of the said legal notice. Since he told that he is illiterate, and unable to write down his reply thus at the instance of accused, his reply was written by Ct. Kamaljeet, on the carbon copy of notice u/s 50 of the Act. Said carbon copy of the notice is Ex. PW6/A, bearing his signatures at point A and reply of the accused is Ex. PW6/B and bears his LTI at point X. He further deposed that thereafter, he took pithu bag from the accused and checked it. The said pithu bag was found containing five packets wrapped with brown colour tape. He deposed that on removing the tape from each packet, black colour polythenes were found containing leaves of brown and black colour. On smelling, the substance contained in the polythenes appeared to be Ganja. He further deposed that he FIR No. 12/2017 State v. Sakhi Chand Page7 took out the substance from all the five packets and mixed it. He weighed the said substance and it was found to be 9 kg and 500 grams. He further deposed that he took out 2 samples of 250 grams each from the said lot of Ganja. He kept both the samples in two polythenes separately and converted them in cloth parcels. Both the samples were given Mark S1 and S2 and remaining 9 Kgs of Ganja was kept in four white polythene and put in a plastic katta and it was converted into a parcel and which was given Mark A1. He further deposed that pithu bag, five black colour polythenes and brown tapes were kept in a separate plastic katta and then converted into a parcel, which was given mark A2. He sealed all the four parcels with his seal bearing impression JS, filled in the FSL form and annexed impression of his seal on it and after use, seal was handed over to Ct. Kamaljeet. A memo, in respect of handing over seal, was prepared. Same is Ex. PW6/C bears his signatures at point A. He deposed that he then seized the aforesaid parcels and FSL form vide seizure memo Ex. PW6/D bears my signatures at point A. He also deposed that after sealing the parcels, but before preparing of seizure memo SHO Inspector Manoj Kumar PS Burari had reached the spot and he apprised the SHO about FIR No. 12/2017 State v. Sakhi Chand Page8 the recovery of Ganja. He deposed that he handed over all the parcels and FSL from along with carbon copy of seizure memo to SHO. The SHO affixed his seal bearing impression MK on all the parcels and the FSL form and took the said items from the spot to police station and thereafter, he prepared rukka Ex. PW6/E and handed over the same to Ct. Arun and sent him to PS Burari for registration of FIR. He deposed that after sometime, ASI Harish Chand reached the spot as investigation was assigned to him after registration of FIR. He handed over to him original seizure memo, carbon copy of notice u/s 50 of the Act and the accused. He deposed that memo regarding the handing over of seal and one memo regarding search of the staff were also handed over to ASI Harish Chand. He deposed that memo regarding conducting personal search of staff were prepared by him. Same is Ex. PW6/F and bears his signatures at point A. He deposed that IO prepared the site map of the place of recovery at his instance, same is Ex. PW6/G bears his signature at point A. At about 11 p.m, Ct. Arun Kumar brought copy of FIR and original rukka and he handed over the said documents to ASI Harish Chand and IO ASI Harish Chand recorded his statement and then he left the spot. The witness correctly identified the accused. He identified parcels Ex. P1, Ex.
FIR No. 12/2017 State v. Sakhi Chand Page9 P2, P3 and P4. Ex.P2 when opened in court was found containing one white polythene containing some substance which is identified as the remaining Ganja recovered from the accused, EX.P3 when opened in court is found containing one pithtu bag of grey color, five grey color polythenes and brown tapes He also identified original notice u/s 50 of NDPS Act as Ex. PW6/H. PW7 ACP Indirawati deposed that on 08.01.2017 she was serving as ACP Civil Lines and on that day, Inspector Manoj Kumar SHO PS Burari had informed her telephonically regarding a secret information that a person would bring narcotics substance and he could be apprehended if raid was conducted. She accordingly, directed the Inspector for raid and he did not receive the said information in writing. That on the next day, on 09.01.2017 a secret report regarding the recovery of Ganja and arrest of accused Sakhi Chand was received in her office mentioned in the diary register vide entry no. 234. Photocopy of the same is Ex. PW7/A (OSR).
PW8 Ct.Kamaljeet Singh has deposed that on 08.01.2017, he was serving as Constable at PP Jharoda, PS Burari. On that day, he was present in police post and at about 4:305 pm, he and Ct.Arun were called by SI Bharat Ratan, FIR No. 12/2017 State v. Sakhi Chand Page10 Incharge, Police Post in his office. One secret informer and SI Jagdish were sitting in the office of Incharge. SI Jagdish told them that they had received a secret information that one person would come from Jagatpur side at Pusta Road near Milan Vihar with some narcotic substance. SI Jagdish constituted a raiding party comprising of himself, PW8 and Ct.Arun Kumar. SI Jagdish recorded departure entry vide DD No.20PP. Secret informer also accompanied them to the disclosed place. They reached at Pusta Road I.e. in between Milan Vihar and the boundary wall of Biodiversity Park and took position. SI Jagdish with secret informer took position in bushes towards Milan Vihar side. That at about 6.30 pm one person came from the side of Jagatpur riding battery rickshaw, being driven by a rickshaw driver, the said person alighted and the rickshaw diver rode away with the rickshaw. At the pointing out of the secret informer and at the directions of the IO the accused was apprehended. IO then apprised him of the fact that he was carrying Ganja and that his search was to be taken and in case he so desired he could be taken to a gazette officer or Magistrate or any one of them could be called to that place. He was also offered search of the members of the raiding party. IO served upon him notice under section 50 of the Act in writing by FIR No. 12/2017 State v. Sakhi Chand Page11 delivering him the original. Accused represented himself to be illiterate and at the same time told that he did not want to be subjected to search in the presence of any Gazetted officer or Magistrate. The accused also opted not to conduct personal search of any member of the raiding party. Accused gave his reply which was recorded on the original notice by him as the accused had told that he illiterate. Crbon copy of the notice was also prepared while preparing the original. Thereafter IO took the pithu bag from the accused and checked it. It was found containing five packets wrapped with brown color tape and on removing the tape the black color polythenes were found containg leaves of brown and black color which from its smell appeared to be Ganja. The Io took out the substance from all the five packets and mixed the entire substance and then weighed the substance which was found to be 9 kgs and 500gms. IO took out 2samples, each of 250gms and kept the samples in two separate polythenes and converted them In cloth parcels which were given Mark S1 and Mark S2. Remaining Ganja was turned into a parcel using white color plastic katta and given Mark A1. The pithu bag, five black color polythenes and brown tapes were kept in a separate plastic katta and then converted into a parcel given Mark A2. All the parcels were sealed with the seal of JS.
FIR No. 12/2017 State v. Sakhi Chand Page12 IO then filled in the FSL Form and affixed the impression of his seal on it. After use the seal was handed over to him and a memo of handing over was prepared, Ex.PW6/C with his signatures at point B. IO then seized the aforesaid parcels and FSL Form vide seizure memo EX.PW6/D, with his signatures at point B. The witness identified the reply of the accusedEX.PW6/B that it is in his own handwriting. Thereafter SHO PS Burari had reached the spot and IO handed over the parcels , FSL Form, parcels and seizure memo to the SHO who also affixed his seal of MK on the parcels and the form. He made enquiries from the accused and left the spot alongwith the items. IO then prepared rukka and handed over the same to Ct. Arun who took the same to police station for registration of FIR. Ct. Arun returned to the spot after registration of the FIR at around 11pm and before his return IO ASI Harish reached the spot as the investigation was assigned to him after registration of the FIR. ASI Harish arrested the accused in this case vide arrest memo EX. PW8/A with his signatures at point A and also conducted personal search of the accused vide memo EXPW8/B with his signatures at point A. That on the personal search of the accused cash of Rs.3800/, original notice under section 50 of the Act and one mobile home of yellow and black color. IO then FIR No. 12/2017 State v. Sakhi Chand Page13 interrogated the accused and recorded his disclosure statement, EXPW8/A, with his signatures at point A. That SI Jagdish prior to checking the pithu bag of the accused conducted the search of the raining party and prepared memo EXPW6/F with his signatures at point A. His statement was recorded by the IO at the spot. The case property and the accused were duly identified by the witness.
Ct. Arun the third member of the raiding party is PW9. He deposed along the same lines as SI Jagdish. In his statement it has come that the accused was seen coming in a manual rickshaw. There is one material variation that the accused did not give any written reply on the carbon copy of the notice or any separate paper but orally refused to avail his legal rights and that thereafter Ct. Kamaljeet conducted the personal search of SI Jagdish and SI Jagdish conducted his search and that of Ct. Kamaljeet. The seizure memo, EX PW6/D bears his signatures at point C. He was handed over the tehrir by SI Jagdish. He took the tehrir to PS Burari and got registered the FIR No.12/2017 and brought a copy of the same alongwith the original tehrir back to the spot. The arrest memo EX PW8/A and disclosure statement of the accused EX PW8/A bear his signatures at point B. His statement was recorded by the police FIR No. 12/2017 State v. Sakhi Chand Page14 and thereafter they came to the police station. He also deposed that after serving the notice under section 50 of the Act, upon the accused SI Jagdish also conducted the search upon the person of the accused but no contraband substance was recovered on his personal search and that SI Jagdish did not prepare any document in this regard.
PW10, ASI Harish Chand is the Investigating officer assigned the investigation after the registration of the FIR. He deposed that upon reaching the spot he met SI Jagdish who handed over to him one carbon copy of notice under section 50 of the Act, seizure memo of 9.5 kg of Ganja handing over of seal memo and produced before him the accused Sakhi Chand and apprised him of the proceedings conducted till then. He prepared the site map of the place of recovery at the instance of SI Jagdish, EX.PW6/G, with his signatures at point B. Before he prepared the site map Ct. Arun brought the copy of FIR alongwith original rukka at the spot and he handed over the said documents to him. He then arrested the accused and prepared his arrest memo, EX.PW8/A with his signatures at point C. He conducted the personal search of the accused and recovered one original notice under section 50 of the Act, cash of Rs. 3800/ and one old mobile phone. That Ct. Kamaljeet had FIR No. 12/2017 State v. Sakhi Chand Page15 conducted the personal search of the accused on his directions and he prepared the personal search memo EX.PW8/B bears my signature at point B. Thereafter he took the accused to Aruna Asaf Ali Hospital and got the accused medically examined. After his medical examination he was lodged in the lock up. He recorded the statements of Ct. Arun Kumar and Ct. Kamaljet. On 9.1.2017 accused was produced before the Ilaqa Magistrate and he was remanded to judicial custody. That after the interrogation of the accused he recorded his disclosure statement, EX.PW8/A. He prepared report under section 57 of the Act, EX.PW7/B with his sigantures at point B which was forwarded by the SHO to the ACP. Thereafter the investigation was assigned to SI Rambir.
STATEMENT U/S 313 CR.P.C.
3. When examined u/s 313 Cr.P.C, accused denied all the incriminating circumstances appearing in evidence against him and claimed false implication alleging that no contraband was recovered from him. That he was lifted from his house and was taken to police station where he was mercilessly beaten and was forced to put thumb impression on several blank and semi printed papers to falsely implicate him in the present case. That FIR No. 12/2017 State v. Sakhi Chand Page16 he was not produced before any Senior Officer and no option to get himself searched in presence of any Magistrate or Gazetted Officer was given to him. That nothing alleged was recovered from his possession and the same is planted upon him to falsely implicate him in the present case. Accused has opted not to lead evidence in defence.
4. Ld. Counsel for the accused submits that the accused is falsely implicated and that the false implication is writ large on the face of the record produced by the prosecution. That documents are fabricated and manipulated in order to falsely implicate the accused. Ld. Counsel for accused submits that preparation of notice u/s 50 NDPS Act is doubtful. The first document prepared on the spot was notice u/s 50 NDPS Act and after its preparation, seizure memo Ex.PW6/D is claimed to be prepared. On the seizure memo DD No.20 PPJ dated 08.01.2017 is mentioned along with the FIR Number but surprinsgly no. DD Number 20 PPJ is mentioned on the notice and only FIR Number is mentioned. That PW8 Ct.Kawaljeet as well as PW9 Ct.Arun are also shown as witness of recovery and their signatures are visible on seizure memo Ex.PW6/D as witnesses of alleged recovery but surprisingly they are not shown as FIR No. 12/2017 State v. Sakhi Chand Page17 witness in the notice u/s 50 NDPS Act. Even PW8 stated during cross examination that he does not remember, whether he and Ct.Arun signed notice u/s 50 of NDPS Act. All this shows that notice was prepared later on subsequent to the registration of the FIR. Ld. Counsel further submits that preparation of sample and case property pulandas is also doubtful. PW9 stated during cross examination that SHO had mentioned FIR Number and other particulars of the case on all the parcels on the spot. It is highly impossible if we follow the prosecution story then Rukka was prepared and send after the departure of SHO from the spot, it means FIR was registered or came into existence after the departure of SHO from the spot. There was no occasion or possibility for the SHO to fill up FIR Number on the parcels on the spot. Ld. Counsel further submits that there is no documentary evidence regarding the deposition of FSL form in the malkhana and sending of same to the FSL. That in register number 19 in column no.4, it is no where mentioned that FSL form was also deposited along with sample and case property pulandas. PW3 HC Gopal admitted during cross examination that it is correct that in Column No.4, he reproduced the contents of the seizure memo. Even if column no.7 or register no.19 as well as Register no.21, it is no where mentioned that FIR No. 12/2017 State v. Sakhi Chand Page18 FSL form was also send to the FSL along with the sample pulanda. Hon'ble Delhi high court in Rajender Kumar v. State 1997 (IV) AD Criminal 666 that in the absence of documentary evidence, oral evidence cannot be relied upon and if there is no entry of FSL form in register no.19 and 21 then, it cannot be presumed that same was deposited along with the case property in the Malkhana and same was sent to FSL. Prosecution has also miserably failed to prove note mark X, that was made in column no.7 register no.19, regarding the sending of sample to the FSL because as per the version of PW3, this note was made by Ct.Lokesh but he has not cited as a witness to prove note Mark X. Nonexamination of Ct.Lokesh becomes more fatal for the prosecution because as per prosecution story sample was sent on 14.2.2017 but in note Mark X, it is mentioned that the sample was sent on 15.2.2017. To clarify this ambiguity examination of Ct.Lokesh was very essential but if prosecution has chosen to not to examine Ct.Lokesh the benefit of doubt should go in the favour of the accused and it suggests that Entries in Register No.19 are false and fabricated and a false record has been made to make out a false case against the accused. That signature of SHO are not mentioned in column no.3 of Register no.19 as a person, who deposited sample in the malkhana. That no oral FIR No. 12/2017 State v. Sakhi Chand Page19 evidence came on the record as to who took samples to the FSL. That no representative sample was sent. As per prosecution, five packets containing some vegetative material were allegedly recovered from a pithu bag allegedly carried by the accused. That vegetative materials from all the five bundles was taken out and mixed together to take out sample to send to FSL for chemical examination. The sample prepared in this manner cannot be called a representative sample because, either all the five packets should be checked on the spot, with the help of some test or five separate samples should have been taken out from each packet to ascertain as to whether, each packet was containing Ganja or not. It might be possible that only one of the packet out of five packets was containing Ganja or rest of the packets were containing Bhang or similar type of vegetative material and if we mix all the five packets then we will get positive result of the packet which were not containing ganja.
The defence relies upon the following judicial pronouncements:
1. Arif Khan @ Agha Khan v. State of Uttrakhand IV (2018) SLT 32;
2. Radha Kishan v. State, 2000 Crl.LJ 4090;
3. Biujay v. State 2011, VI AD Delhi 562;
FIR No. 12/2017 State v. Sakhi Chand Page20
4. Ramji Singh v. State of Haryana, 2007 (3) RCR Cri.452
5. Union of India v. Bal Mukund & Ors., 2009 Crl.L.J.2407 Ld. APP on the other hand contends that the prosecution has established its case beyond the pale of doubt.
That the recovery is effected after due compliance of the mandatory provisions i.e. Section 42 and 50 of the Act. That the recovered substance as per FSL report is proved to be Ganja. That the link evidence affirms that there has not been any tampering with the contraband recovered from the possession of the accused. He has relied upon the judgment of Hon'ble the High Court of Delhi rendered in Gulzar Sheikh @ Sonu & Ors. v. State Crl. Appeal No. 1235/2014 decided on 22.02.2019 by Hon'ble High Court of Delhi.
5. I have heard the Ld. Counsel for the Accused and the Ld. APP for the State and perused the record with their able assistance.
6. DISCUSSION
(i) PW6 SI Jagdish it is the case of the prosecution had received secret information on 8.1.2017 that one young person FIR No. 12/2017 State v. Sakhi Chand Page21 is to come at jhuggi in Milan Vihar with Ganja in a pithoo bag via Jagatpur Pusta Road. The secret informer had met SI Jagdish at the police post Jharoda,PS Burari. He produced the secret informer before Incharge PP Jharoda who made enquiries from the secret informer and then telephonically informed SHO PS Burari about the information and in accordance with the directions of the SHO he constituted a raiding party comprising of besides himself, Ct. Arun Kumar, Ct. Kamaljeet and apprised them of the secret information. Thereafter he recorded DD No.20 in respect of the secret information as well as his departure on that date. SHO, Burari, PW2 Inspector Manoj Kumar has corroborated and affirmed that the secret information was telephonically conveyed to him by the Incharge, PP Jharoda on 8.1.2017 at about 5 p.m, and that he had directed SI Bharat Ratan, Incharge PP Jharoda, to constitute a raiding party and take necessary action.
The prosecution has also examined ACP, Civil Lines, PW7, Smt.Indrawati, who has deposed that on 8.1.2017 while serving as ACP Civil Lines, Inspector Manoj Kumar, SHO PS Burari had informed her telephonically regarding a secret information that a person would bring narcotic substance and he could be apprehended if raid was conducted and accordingly, FIR No. 12/2017 State v. Sakhi Chand Page22 she had directed the Inspector for raid though the written information is not put up before her. Interestingly however there is no corroboration in the statement of PW2 or PW6 that when the PP Incharge had told about the secret information to SHO PS Burari telephonically, he had further informed the ACP Civil Lines again telephonically and the ACP Civil Lines had directed that raid be conducted. The testimony of the ACP finds no corroboration in the depositions on oath of the remaining witnesses that on 8.1.2017, the ACP upon being informed by the SHO about the secret information had directed the constitution of the raiding party. DD No.20PPJ, Ex.PW4/4, is recorded at 5:00 pm in the evening about the secret information and the constitution of the raiding party on the directions of the SHO as deposed by PW6 and there is no mention of the information having been forwarded to the ACP and any instructions received from the ACP.
(ii) It is further in the statement of SI Jagdish that the raiding party then reached at Jagatpur Pusta Road, near Bio diversity Park, Milan Vihar. The raiding party took its positions on the side of the road along with the secret informer. At about 6:35 p.m, the accused arrived in a manual rickshaw from the side of Jagatpur Pusta, aligthted from the rickshaw and the FIR No. 12/2017 State v. Sakhi Chand Page23 rickshaw puller went away with the rickshaw. The accused started walking towards Milan Vihar and is identified by the secret informer as the person about whom he had furnished the secret information. The raiding party then apprehended the accused. He was found carrying a pithu bag on his back. The three members of the raiding party are not unanimous as to whether the accused arrived in a manual rickshaw or a battery rickshaw, though SI Jagdish and Ct. Arun, PW6 nad PW9 have deposed that the accused was seen coming ina manual rickshaw, Ct. Kamaljeet,PW8, another member of the raiding party has deposed that the accused was sighted riding a battery rickshaw.
It is further in the evidence of PW6 that he then apprised the accused that the raiding party has information that he is carrying Ganja in his pithu bag and that his search is to be taken. He then apprised him of his legal rights that his search could be taken in presence of Gazetted Officer or Magistrate if he so desired. He then served upon him a notice under section 50 of the NDPS Act in writing and made him understand about the contents of the notice and the meaning of Gazetted Officer or Magistrate and served the original notice upon him. But the accused refused to avail of his legal rights and he gave his reply on the carbon copy of the said notice and as the accused told FIR No. 12/2017 State v. Sakhi Chand Page24 that he is illiterate, his reply was written by Ct.Kamaljeet on the carbon copy of the notice under section 50 NDPS Act. Carbon copy of the notice is Ex.PW6/A, Reply recorded of the accused is Ex.PW6/B, the original notice is Ex.PW6/H. Thereafter, SI Jagdish took pithu bag from the accused and checked it. The said pithu bag was found to contain five packets wrapped with brown colour tape and on removing the tape from each packet, black colour polythenes were revealed which were found containing leafs of brown and black colour appearing to be ganja.
(iii) Though all the witnesses have deposed that having served the notice and apprised the accused of his legal rights and then the IO proceeded to check the pithu bag that the accused was seen carrying there is however one jarring note thrown in the testimony of PW9. Initially the witness maintained that the IO had proceeded to check the pithu bag , however there is also a statement made at the tailend of the deposition that the IO after serving notice under section 50 of the Act had carried out personal search of the accused but no contraband substance was recovered from his personal search. PW6, SI Jagdish the authorized officer who had received the information and effected the recovery , as well as another FIR No. 12/2017 State v. Sakhi Chand Page25 member of the raiding party have clearly deposed that after serving the notice and recording the reply of the accused, the IO took over the pithu bag from the accused and checked it. the secret information received by PW6 eas also to the effect that the accused would be carrying the Ganja in a pithu bag, armed with and acting upon such specific information it is likely that the authorized officer at the first instance took hold of the pithu bag that he accused was found carrying.
The provisions of Section 50 of the NDPS Act are to be strictly complied with only where the personal search of the accused is to be conducted. The proposition of law lays settled by Hon'ble Supreme court in the matter reported as STATE OF H.P. VS. PAWAN KUMAR (2005(4)SCC350) has held as follows:
" 11. A bag, briefcase or any such article or container, etc. can, under no circumstances be treated as body of a human being. They are given a separate name and cannot even remotely be treated to be part of body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tinbox, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However while carrying or moving along with them extra effort or energy would be required. They would have to be carried either by the hand or hung on the FIR No. 12/2017 State v. Sakhi Chand Page26 shoulder or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back, or head, etc. Therefore , it is not possible to include these articles within the ambit of the word "person" occurring in section 50 of the Act."
(iv) As in the case at hand, the contraband is alleged by the prosecution to have been recovered from a pithu bag which was carried by the accused, and the personal search of the accused is not conducted before checking the contents of the pithu bag or even thereafter, therefore, the determination as to whether the mandatory procedural safeguard of Section 50 is complied with or not need not detain the discussion as such, however, the accused has alleged false implication and also that his thumb impressions are obtained on blank documents. When I look at Ex.PW6/A and Ex.PW6/B, what strikes the eye is the unnatural manner in which Ex.PW6/B, the reply recorded in refusal of the exercise of the legal rights is found written across the carbon copy of the notice u/s 50 NDPS Act. The reply allegedly in the hand of Ct.Kawaljeet is endorsed towards the right side bottom edge. The handwritten reply contours and adjusts to the thumb impression in such a manner giving an FIR No. 12/2017 State v. Sakhi Chand Page27 impression that first the thumb impression is obtained and thereafter, the written part is recorded on the space left around the thumb impression accommodating the thumb impression. It is not explained by the prosecution that under what circumstances, Ex.PW6/B is recorded in such an unnatural manner. Ex.PW6/B appears to the naked eye as a manipulated document thereby casting aspersions on the entire recovery alleged by the prosecution against the accused.
7. It is further in the statement of PW6 that he took out the substance from all the five packets and mixed it and thereafter weighed the substance. The weight of entire substance is 9kg.500 grams. He then took out two samples of 250 grams each from the lot and kept the samples in two polythenes separately and converted them into cloth parcels marked as S1 and S2. The remaining 9 kgs.of ganja was kept in four white color polythene and put together in a plastic katta and converted into a parcel as Mark A1. Mark A2 is the parcel containing the pithu bag, five black colour polythenes and brown colour tapes also placed together in a separate plastic katta. All the four parcels were sealed with the seal of JS by PW6 SI Jagdish Singh. He also filled the FSL form and affixed FIR No. 12/2017 State v. Sakhi Chand Page28 impression of the seal on the FSL form. The seal after use is handed over to Ct. Kamaljit vide handing over memo Ex.PW6/C. The parcels and the FSL forms are seized vide seizure memo Ex.PW6/D. Parcels and FSL form along with carbon copy of the seizure memo are all handed over to SHO, P.S.Burari Inspector Manoj Kumar as inspector Manoj Kumar had arrived at the spot by the time that SI Jagdish Singh prepared the seizure memo Ex.PW6/D. The SHO at the spot affixed his seal impression MK on all the parcels and the FSL form and took the items from the spot to the police station. Thereafter, SI Jagdish Singh proceeded to prepare rukka Ex.PW6/E which is handed over to Ct.Arun and Ct.Arun is sent by him to PS Burari for registration of FIR.
After the service of the notice u/s 50 NDPS Act and recording of the reply Ex.PW6/B, SI Jagdish Singh has prepared the seizure memo Ex.PW6/D. Seizure memo is also DD No.20PPJ. it is found recorded in Ex.PW6/D that SI Jagdish Singh opened the five packets and weighed them on the electronic weighing machine. It is not so found recorded as has come in the deposition of witness that he took out the substance from all the five packets and mixed it. From a bare reading of Ex.PW6/D, it would appear that he opened each of the five FIR No. 12/2017 State v. Sakhi Chand Page29 packets and weighed them. It is not mentioned that the contents of the five packets were taken out and mixed together and weighed as a whole.
(i) When the case property is produced in court, parcel mark S2 is found sealed with the seal of MK and JS and is identified as one of the sample parcels. Parcel mark A1 sealed with the seal of MK and JS and bearing the particulars of the case is found containing one white polythene, which is identified by SI Jagdish Singh PW6 as the remaining ganja after the samples had been drawn which is Ex.P2. What is pertinent here is that it is in the deposition of PW6 and it is also so found recorded in Ex.PW6/D that the remaining ganja weighing 9 kgs.after samples S1, S2 had been drawn was put in four separate white plastic polythene and thereafter, collectively put in one white plastic katta and converted into a parcel and is marked A1. However, when parcel Mark A1 is opened in the court, it is found containing only one white polythene and not four separate white polythenes containing the substance put together in one white katta. The entire recovery has thereby come further under a shadow of doubt.
(ii) The seizure memo describes the pithu bag from which the contraband is recovered in detail and records that the FIR No. 12/2017 State v. Sakhi Chand Page30 pithu bag was black in colour, red and yellow coloured rubber sticker is embossed upon it with the impression of "Black Berry". When parcel mark A2 was opened in Court, it was found containing bag of grey colour and not black colour as is found described in the Seizure Memo. The case property when produced in court does not correspond to the description given in the seizure memo vide which it is seized by SI Jagdish. the contraband is recovered from the pithu bag being carried by the accused as per the prosecution which bag as per the seizure memo was black in color with yellow stripes and blackberry written on it however when it is produced in court it does not fit that description. The recovery is therefore rendered doubtful and the entire case of the prosecution comes under the scanner.
8. Inspector Manoj Kumar, who was serving as SHO PS Burari on 08.012017 has deposed that he had received information telephonically from SI Bharat Ratan, Incharge, Police Post Jharoda about secret information that one boy carrying ganja in pithu bag is to come at Milan Pushta Road, Jagatpur upon which he directed SI Bharat Ratan to constitute a raiding party at about 7 p.m, SI Jagdish Singh also informed him also telephonically about the apprehension of the accused FIR No. 12/2017 State v. Sakhi Chand Page31 along with pithu bag containing ganja weighing 9 kgs.500 grams at which he reached the spot at Pushta Road near Bio diversity park at about 8:15 p.m. There he met SI Jagdish, Ct.Kamajit and Ct.Arun and the accused and is apprised about the recovery of 9 kgs 500 grams of ganja from the accused. The sealed parcels and FSL form with copy of seizure memo were produced before him, he affixed his seal impression of MK on all the parcels and FSL forms and signed the parcels and then took the parcels and FSL form to the police station and deposited the parcels and FSL form with the MHC(M) malkhana, who recorded the entry in register no.19, signed by him.
The MHC(M) PS Burari HC Gopal Singh is examined as PW3 and has deposed that Inspector Manoj Kumar SHO PS Burari has deposited in the malkhana four sealed parcels bearing seals of JS and MK and Mark S1, S2 and A1 and A2 and one FSL form bearing the same seals with one carbon copy of seizure memo and he had recorded entry no.1569 in this regard in register no.19 of malkhana. Entry is Ex.PW3/A.
(i) PW3 has further deposed that on 14.02.2017, he handed over one sealed parcel bearing Mark S1 alongwith FSL form to Ct. Kawaljeet for depositing the same to FSL, Rohini and he recorded note in this regard at point X against entry Ex FIR No. 12/2017 State v. Sakhi Chand Page32 PW3/A. The parcel was sent to FSL through Road Certificate No. 18/21 Ex PW3/D. Though the entry at point X is dated 15.02.2017, however, PW3 has clarified in his statement that inadvertently the date has been wrongly mentioned and that the actual date on which parcels are sent to FSL alongwith FSL form through Ct. Kanwaljit, in respect whereof entry is recorded at point X is 14.02.2017. The necessity for the explanation arose on the part of PW3 as besides the entry at point X, the road certificate Ex PW3/B is also another document in the chain of documents relied upon by the prosecution to demonstrate that the sanctity of the case property has been maintained at all times after its recovery and till its production in the Court. Ex PW3/B, the Road Certificate is dated 14.02.2017, though the corresponding entry in the malkhana register at point X on Ex PW3/A is dated 15.02.2017. It is to reconcile these two entries / documents that PW3 has made this clarification in his testimony. Interestingly, in his cross examination PW3 states that the entry at point X is in the handwriting of his Munshi Ct.Lokesh. PW3 is therefore testifying in respect of error made by his Munshi Ct.Lokesh asserting that Ct.Lokesh made the error inadvertently.
Even if this explanation were to be accepted of PW3 on FIR No. 12/2017 State v. Sakhi Chand Page33 its face value, there is one another material deficiency in the entry recorded at point X besides the inadvertence in recording the date of the entry. There is no mention of any FSL form in the entry recorded at point X. The case property, the parcels are sent to FSL through Road Certificate no. 18/21, Ex PW3/B. Even in Ex PW3/B, there is no mention of any FSL form. What is handed over to Ct. Kanwaljit vide Ex PW3/B is only one pulanda sealed with the seal of JS and MK and marked S1 and no FSL form. In the oral deposition the witness affirms to have also sent the parcels alongwith FSL Form however there is no such written record of the FSL Form also accompanying the parcels. The FSL Report now has also been rendered suspicious if it pertains to any such contraband recovered from the possession of accused on 8.1.2017, and seized vide seizure memo EX.PW6/D alongwith FSL Form.
(ii) Further it is in the statement of PW3 that on 11.05.2017, he collected the FSL result and sample parcel received from FSL at the District Line, Civil Lines and recorded a note to this effect at point Y against entry Ex PW3/A in register no. 19. However, as per entry at point Y, the pulanda and result are deposited in the malkhana by Ct. Akshay (2794/N). This deposition on oath of PW3 is in direct confrontation with the FIR No. 12/2017 State v. Sakhi Chand Page34 entry recorded by him at point Y and PW3 has not ventured any explanation on this aspect. The record pertaining to deposit of the case property in the malkhana and its onward transmission to the FSL and the receipt of FSL result relied upon by the prosecution in this case is not above board and I am constrained to observe, has been fudged.
9. SI Jagdish has not prepared any report in respect of the seizure of contraband from the accused and put up the same before his senior in compliance of section 57 of the Act. ASI Harish Kumar, PW10, has presented a report regarding arrest of accused and seizure of contraband which is received in the office of the ACP concerned on 9.1.2017, vide entry at sl. No.234, EX.PW6/A forwarded by SHO PS Burari. The ACP Civil Lines on that day Smt. Indravati when examined as PW7 has affirmed that on 9.1.2017, a report regarding recovery of Ganja and arrest of accused Sakhi Chand was received in the office. Report is EX.PW7/B. It bears the forwarding of the SHO PS Burari. What is pertinent is that when SHO PS Burari is examined on oath in the court as PW2 he has deposed that on the same day i.e. 08.01.2017 SI Rambir Singh put up before him report under section 57 of the Act. The contraband is seized FIR No. 12/2017 State v. Sakhi Chand Page35 vide a seizure memo by SI Jagdish and not by ASI Harish Chand, however, report under Section 57 of the Act is submitted by ASI Harish Chand and pertains to the seizure of the contraband whereas the statute requires that the person who makes the arrest or seizure is to make full report of all the particulars of such arrest or seizure to his immediate official superior. The report put up by ASI Harish Chand does not pertain to the arrest of the accused but only the seizure of the contraband which is neither effected by him nor in his presence. The report is therefore, not in due compliance of Section 57 of the Act. Further whereas PW7 and PW10 submit that it is PW10 who had put up the report before SHO, PS Burari which was forwarded by SHO PS Burari, PW2 to PW7 on 09.01.2017, however, PW2 himself has deposed that it is ASI Rambir Singh, who on the same date i.e. 08.01.2017 had put up the report before him. The prosecution has failed to show due compliance of Section 57 of the Act also on account of conflicting testimonies of these witnesses.
CONCLUSION
10. Case of prosecution against the accused must necessarily fail in the face of such fabrication of the record as is evident to the naked eye from the record itself. The reply of the FIR No. 12/2017 State v. Sakhi Chand Page36 accused, Ex PW 6/B indicates fabrication of record, the entries recorded in the register no. 19 are contrary to the oral depositions of the MHC(M), the entries in the register no. 19 make no mention of FSL form accompanying the parcel sent to FSL, further the receipt of the FSL result and the entry pertaining thereto in the register from the oral testimony of PW3 appears to be a manipulated entry, the pithu bag from which the contraband is alleged, to have been recovered is recorded in the seizure memo Ex PW6/D to be black in colour with red and yellow color sticker, but when produced in court is found to be of grey colour. All these anomalies in the documentary and oral evidence point towards false implication of the accused and as a consequence thereof accused Sakhi Chand hereby stands acquitted of the charge u/s 20 (b) (ii) (B) of NDPS Act NDPS Act.
Case property be disposed of in accordance with section 52A of the Act. The SHO concerned shall file compliance report of the disposal of the case property in accordance with section 52A of the Act, within 45 days from today. File be consigned to record room.
Announced in the open Court on this 11th day of September, 2019 (Neelofer Abida Perveen) Special Judge02 : (Central) Tis Hazari Court:Delhi FIR No. 12/2017 State v. Sakhi Chand Page37