Delhi District Court
State vs . Mohd. Saffique & Ors. Fir No. 263/10 ... on 28 January, 2014
In the Court of Dig Vinay Singh : Additional Sessions Judge
Spl. Judge : NDPS (NW) : District Courts : Rohini : Delhi
In the matter of :
SC No. : 20/13 (Old No. 103/10)
FIR No. : 263/10
PS : Jahangir Puri
U/s. : 186/307/353/399/402 IPC &
25/27 Arms Act 1959.
State
Versus
1) Mohd. Saffique @ Raju
S/o Mohd. Khalil
R/o Mohalla Teetagarh, Ali Haider Road,
Near Gwalpada, Distt. 24 Pargana,
West Bengal.
Also R/o I-1753,
Jahangir Puri, Delhi
2) Intezar
S/o Mohd. Nanhe
R/o I-1776, Jahangir Puri,
Delhi.
3) Kasim
S/o Mohd. Anwar
R/o I-465, Jahangir Puri,
Delhi.
4) Karun Sharma
S/o Ramesh Kumar
R/o I-1235, Jahangir Puri,
Delhi.
Date of receipt : 03.11.2010
Date of arguments : 28.01.2014
State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 1 of 25
Date of announcement : 28.01.2014
JUDGMENT
1. The above named four accused were sent up for trial for offences U/s.399/402/307/186/353 r/w 34 of IPC, as also for offences U/s.27/25 Arms Act, 1959.
2. Briefly stated the case of prosecution is that on 25.07.2010 ASI Tahir Hussain was present in PS Jahangir Puri at about 1.20 in the midnight, when he received a secret information to the effect that 4-5 robbers would come and assemble near a garbage house on Shah Alam Bagh Road, for making preparation for committing dacoity. The informer also informed that the offenders would come on two motorcycles from Nirankari ground side after about half an hour of the time of information and that they were planning to loot petrol pump located on G.T. Karnal Road. The secret information was shared by ASI Tahir Hussain with the SHO of the police station, who instructed that raid be conducted. ASI Tahir Hussain along with ASI Mahender and Ct. Daya Kishan constituted a raiding party and left the Police Station along with the informer, vide DD No.6A at 1.20 AM. Ct. Daya Kishan was instructed to wear white clothes for the raid. The raiding team reached near Sai Baba Temple on Shah Alam Road at about 1.35 AM, where HC Rajesh and Ct. Bhim Singh also reached to join the raiding team. The raiding team thereafter requested 4-5 passersby to join the proceedings, but none of them agreed and left the spot without telling their names and addresses. The secret State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 2 of 25 informer was asked by ASI Tahir to check the area, and at about 1.45 AM the secret informer told that near the garbage house there was one motorcycle on which three boys were present waiting for their other associates. In the meantime, one more motorcycle came on which there were two riders. ASI Tahir instructed Ct. Daya Kishan and the secret informer to overhear the conversation of those five persons and to give pre-determined signal to the raiding team. It is the case of prosecution that the raiding team overheard what one of the boys was telling/instructing others. Thereafter, when those boys got up to leave for the place of commission of offence, the raiding team tried to apprehend them. At that time accused Saffique @ Raju took out a country made pistol and tried to fire with it, but the round did not actually eject. He was overpowered by ASI Tahir and thereafter his name was revealed as Saffique. Second accused, Kasim was overpowered by ASI Mahender and he was found to be carrying one dragger. Third accused, Karun Sharma was apprehended by HC Rajesh along with motorcycle no. DL-1ST-6844 and Karun Sharma was possessing a knife. The other two associates of the accused managed to flee on the second motorcycle, but one driving license and one student I-Card of accused Intezar fell down at the spot, which were taken into possession and later on Intezar was apprehended on 12.08.2010 when he surrendered. As per the case of prosecution, the 5th accused Vishal could not be found and is absconding. The country made pistol, live cartridge, dragger, knife, Driving License, student I- Card and the motorcycle were all taken into possession. The case was got registered and on completion of investigation, charge sheet State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 3 of 25 was filed.
3. Accordingly, charges U/s.399 and 402 of IPC r/w 34 of IPC were framed against all the four accused. All the four accused were also charged for offences U/s.186, 353 and 307 r/w 34 of IPC.
3.1. Accused Mohd. Saffique was additionally charged for offences U/s.25 & 27 of Arms Act, 1959 for possessing the country made pistol and two live cartridges without any license and for attempting to fire on the police team.
3.2. Accused Kasim was additionally charged for the offence U/s.25 Arms Act for possessing dagger.
3.3. Similarly, accused Karun Sharma was additionally charged for offence U/s.25 Arms Act for possessing knife.
3.4. All the four accused pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined total 13 witnesses.
4.1. Out of the 13 witnesses examined by the prosecution, PW-1 Ct.
Rajesh, PW-3 Ct. Daya Kishan, PW-8 ASI Mahender Singh and PW-9 ASI Tahir Hussain are the witnesses of the crime and the witnesses of recovery. They deposed in lines to the prosecution's case. In their testimonies, these witnesses proved the sketch of country made pistol and live cartridges prepared at the spot by ASI Tahir Hussain after its recovery from accused Saffique as Ex. PW-
State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 4 of 25 1/A. Similarly, the sketches of dragger and knife allegedly recovered from accused Kasim and Karun, respectively, were proved as Ex. PW-1/B & C. The recovery memo of country made pistol is proved as Ex. PW-1/D and the recovery memo of dagger and knife are proved as Ex. PW-1/E & F respectively. The Driving license and I- Card were also proved in the Court along with its recovery memo as Ex. PW-1/G. The recovery memo of motorcycle No. DL-1ST-6844 is proved as Ex. PW-1/H. The arrest memo and personal search memo of accused Mohd. Kasim, Mohd. Saffique and Karun Sharma are also proved as Ex. PW-1/I, J, K, L, M, N. The case property was also identified by them in the court.
4.2. PW-2 SI Narender Singh is the subsequent Investigating Officer who reached the spot, after the present case was registered, along with Ct. Daya Kishan, who was sent to the Police Station from the spot with rukka for registration of FIR. He deposed that on reaching the spot, he prepared the site plan Ex. PW-2/A and thereafter arrested the three accused except accused Intezar. He also deposed that from the spot they went in search of other accused who had fled from the spot but could not trace them and upon return to the Police Station, the case property was deposited in the Malkhana. Subsequently, the sealed parcels were sent to the FSL from the malkhana on 10.08.2010 through Ct. Mahesh. He also deposed that on 12.08.2010 fourth accused Intezar surrendered in the Police Station and was identified by Ct. Daya Kishan and thereafter he was arrested. PW-2 also proved requisite sanctions.
State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 5 of 25 4.3. Rest of the witnesses are more or less formal in nature.
4.4. PW-7 Ct. Satbir is a witness as to surrender of accused Intezar in the Police Station and his arrest in the present matter after he was identified by Ct. Daya Kishan.
4.5. The testimony of PW-2 & 7 regarding pointing out of the place of occurrence by accused Intezar is not admissible in law since no fact can be said to have been discovered pursuant to the disclosure of accused Intezar and the place of apprehension of accused was already in the knowledge of the investigating agency.
4.6. PW-4 Naim is the brother of accused Intezar and registered owner of motorcycle no.DL-1ST-6844. He deposed that on 25.07.2010 when he was out of Delhi, his wife told him that certain police officials came in search of Intezar and when Intezar was not found in the house, the police officials took his motorcycle after breaking the iron chain with which the motorcycle was locked. His wife allegedly complained regarding this fact at PCR No.100. However, no such call was proved by either side. The testimony of PW-4 is hit by the principle of hearsay as the wife of PW-4 has not been examined. PW-4 was in fact declared hostile by the prosecution and was subjected to cross- examination by the Ld. Prosecutor, but nothing material could be brought out in the cross-examination of the PW-4 conducted by the Ld. Prosecutor.
4.7. PW-5 Ct. Mahesh Chand carried the sealed parcels containing country made pistol and live cartridges from the Malkhana of PS State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 6 of 25 Jahangir Puri to FSL Rohini on 10.08.2010, vide Road Certificate, along with FSL Form and deposited the parcels in the lab.
4.8. PW-6 ASI Inderpal was the Duty Officer who registered FIR Ex. PW-
6/A and made endorsement on rukka Ex. PW-6/B. 4.9. PW-10 HC Phool Kumar was the Malkhana Moharrar who deposed that on 25.07.2010 the three sealed parcels containing country made pistol, live cartridges, dagger and knife, sealed with the seal of TH, were deposited in the Malkhana along with seizure memo and FSL form. As also one motorcycle bearing no.DL-1ST-6844 was deposited vide entry in the Malkhana register no.19 Ex. PW-10/A. This witness also corroborated that on 10.08.2010 one sample parcel containing country made pistol and two cartridges were sent to the FSL through Ct. Mahesh and that on 21.09.2010 FSL result was received.
4.10. PW-11 SI Govind is a witness qua execution of proclamation proceedings U/s.82 Cr.P.C. against accused Vishal.
4.11. PW-12 ACP Jai Bhagwan proved grant of sanction U/s.195 Cr.P.C.
qua obstruction of police officials in discharging their duties by the accused, which is proved as Ex. PW-12/A. 4.12. PW-13 Sh.B.S.Jaiswal was the DCP concerned who accorded sanction U/s.39 of the Arms Act, 1959, Ex. PW-13/A.
5. On conclusion of prosecution evidence, all the incriminating evidence was put to the four accused in their examination U/s.313 Cr.P.C. The State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 7 of 25 four accused generally denied the evidence against them and claimed that they have been falsely implicated in the present case. None of the four accused opted to lead evidence in their defence.
6. I have heard Ld. Prosecutor for the State and Ld. Counsel Sh.
Kashmir Singh for the four accused.
7. This is yet another case in which no independent witness has been joined despite availability of time and prior information. Again a stereotype stand has been taken by the prosecution that 4-5 passersby were requested but they did not join. It is yet again mentioned that the names and addresses of the passersby were not recorded, no notice was served upon them and, no legal action was taken against those who refused to become witness.
7.1. It is no doubt true that in a given case, conviction can be based even on the testimony of the police officials alone, but then such testimony of police officials has to be convincing.
8. Perusal of evidence of this case would reveal that the testimony of police officials, who were present at the spot at the time of alleged apprehension of the accused and at the time of alleged recoveries, contains serious contradictions on material aspects, which create doubt as to whether the version put forth by the prosecution is true or not.
8.1. Out of the 13 witnesses examined by the prosecution, PW-1 Ct.
Rajesh; PW-3 Ct. Daya Kishan, PW-8 ASI Mahender Singh and PW-9 State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 8 of 25 ASI Tahir Hussain are the witnesses qua apprehension of the accused and recovery. PW-2 SI Narender Singh was the subsequent Investigating Officer who reached the spot after registration of the FIR along with PW-3 Ct. Daya Kishan.
8.2. There are material contradictions in the testimony of the witnesses as to whether HC Rajesh and Ct.Bheem Singh remained at the spot till the subsequent investigating officer SI N.S.Yadav came and conducted the proceedings at the spot or whether they had left earlier. HC Rajesh as PW-1 deposed that the subsequent investigating officer Sub-Inspector N.S.Yadav did not come to the spot in his presence and that he along with Ct. Bheem had left the spot at 2.00 AM even prior to the time when SI Tahir Hussain left the spot. As against the version of HC Rajesh, it is the case of prosecution that HC Rajesh and Ct. Bhim Singh remained at the spot throughout the entire investigation conducted at the spot. PW-8 ASI Mahender specifically so deposed.
8.3. HC Rajesh even deposed that he does not know as to how Ct. Daya Kishan left the spot with rukka for FIR. He claimed ignorance as to whom the seal was handed over by SI Tahir after its use. He even claimed that FSL form was not filled up in his presence.
8.4. HC Rajesh claimed that almost all the memos prepared by Sub-
Inspector Tahir at the spot were signed by him and Ct. Bheem Singh. But he claimed that he does not remember whether he signed the seizure memos or not. Perusal of the documents of this case would State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 9 of 25 reveal that the sketch of country made pistol, dragger and knife and the recovery memos of these weapons as also the recovery memo of driving licence, I-card, motorcycle does not bear signatures of Ct. Bheem Singh. When HC Rajesh deposed that Ct. Bhim Singh had signed these memos and signature of Ct. Bhim Singh does not exist on these documents, the only inference which can be drawn is that either the documents are not the same which were prepared at the spot or the witnesses were not present at the spot.
8.5. HC Rajesh even went to the extent of deposing that after he and Ct.
Bheem left the spot, they went to search the two boys who fled from the spot, and in search of those two boys, he and Ct. Bhim Singh went near Kushal Cinema, J-Block, Jahangir Puri. Thereafter, they went to the police station where their arrival entry was lodged. This version of Ct. Rajesh is in variance to the version presented by other witnesses who deposed that HC Rajesh and Ct. Bheem Singh accompanied other police officials and the accused from the spot.
8.6. Neither the departure entry of HC Rajesh and Ct. Bhim Singh, nor the arrival entry of these two officials back to the police station has been proved on record to support the version of prosecution to the effect that these two police officials were on patrolling when the other raiding team members left for the spot along with the secret informer. Even the arrival entry has not been proved to show as to at what time these two police officials returned to the police station.
8.7. Interestingly, HC Rajesh also deposed that no key was there in the State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 10 of 25 motorcycle which was seized by the investigating officer. It is anybody's guess as to without key, how the motorcycle was driven by the accused to the spot.
8.8. PW-1 Ct. Rajesh in his examination in chief deposed that Ct. Daya Kishan was deputed by ASI Tahir to hear the conversation of those five persons and then those five persons (accused) noticed the presence of ASI Tahir, upon which ASI Tahir tried to overpower them. This part of version of this witness is in variance to the case of prosecution as mentioned in rukka. PW-1 also deposed that after apprehension of accused Mohd. Saffique, Kasim and Karun Sharma, the personal search of the accused persons were taken in which one country made pistol was recovered from accused Mohd. Saffique and one dagger and knife were respectively recovered respectively from accused Kasim and Karun. This part of testimony of PW-1 is also in variance to the case of prosecution, according to which the Katta recovered from accused Mohd. Saffique was not from his personal search but, when the police team tried to apprehend the accused, the said Katta was pointed out towards the police team and Mohd. Saffique even attempted to fire a round from it. PW-1 is absolutely silent as to recovery of any live cartridge from inside the pistol which did not fire despite attempt from the country made pistol and he also remained absolutely silent about recovery of another live cartridge from the pocket of accused Mohd. Saffique. Despite the fact that PW-1 was absolutely silent on these crucial aspects of the matter, no question was put to the accused about recovery of those live cartridges by the prosecution.
State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 11 of 25 8.9. PW-1 also deposed that he was patrolling along with Ct. Bhim Singh on a government motorcycle when he received a wireless message from none other than the SHO to go and join the raid. Neither the number of that government motorcycle was disclosed in the testimony of witnesses, nor the logbook of the said government motorcycle was even attempted to be proved in the present matter. As against the version of PW-1, PW-8 ASI Mahender Singh deposed that it was investigating officer ASI Tahir Hussain who had informed Ct. Rajesh and Ct. Bhim Singh through telephone to come to the spot.
8.10. The witness HC Rajesh was re-examined by the Ld. Prosecutor when he did not support the case of prosecution regarding arrival of Sub- Inspector N.S.Yadav to the spot from the police station as a subsequent investigating officer. Even in his re-examination the witness stood his ground that Sub-Inspector N.S.Yadav did not come to the spot with Ct. Daya Kishan. He denied that suggestion and also denied the suggestion that due to lapse of time, he was unable to recollect those facts. HC Rajesh also deposed that his statement was recorded in the police station and not at the spot.
8.11. There are contradiction in the testimony of witness as to which of the police official from the team was carrying weapons and if yes, who was carrying what kind of weapon. HC Rajesh deposed that he was having pistol, whereas, Ct. Bhim was carrying a danda. On the other hand, PW-3 Ct. Daya Kishan deposed that Sub-Inspector Tahir, ASI Mahender and HC Rajesh had pistols. ASI Mahender deposed State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 12 of 25 that he and Sub-Inspector Tahir had revolvers. Sub-Inspector Tahir deposed that all the policemen were armed.
8.12. PW-3 Ct. Daya Kishan deposed that he along with secret informer went to overhear the talks of the accused and then he made signal to the raiding party. He deposed that the pre-determined signal which was given to the remaining team members was by lighting torch light which was available in the investigating officer's bag. As against his version, ASI Mahender and Sub-Inspector Tahir deposed that the signal was given by raising hands over the head by Ct. Daya Kishan and not by torch light.
8.13. Ct. Daya Kishan deposed that when he left the spot for police station for registration of FIR, he took a lift from one public motorcycle rider to go to the police station. As against it, ASI Mahender deposed that Ct. Daya Kishan left the spot on foot, whereas, Sub-Inspector Tahir deposed that Ct. Daya Kishan went on the motorcycle of the police on which the police team had gone to the spot.
8.14. Ct. Daya deposed that when they apprehended the accused, in the scuffle he and Ct. Bheem received some scratches and bruises, but they did not underwent medical examination. As against it, ASI Mahender deposed that it was only Ct. Daya Kishan who sustained minor injuries and no other policemen sustained injuries during this process. He deposed that Ct. Daya Kishan sustained minor abrasions near right knee. Sub-Inspector Tahir deposed that Ct. Daya Kishan had sustained injuries on his knees and Ct. Bheem had suffered State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 13 of 25 minor injuries on his hand.
8.15. Despite the fact that the charge sheet claims that the police officials were obstructed in performing their duties and that an attempt to commit murder of the police officials was made, still medical examination of the police officials who allegedly sustained injuries, albeit minor ones, was not got conducted to support the version of the police. Had the police officials sustained injures, even though minor, they ought to have submitted themselves for medical examination and those medical examination reports would have lend credence to the version of prosecution. By not getting those police officials medically examined, the police officials failed in getting those documents in their favour which could have lend credence to their version.
8.16. Ct. Daya Kishan deposed that the weapons were measured with cloth/synthetic tape and also with iron scale. ASI Mahender and Sub- Inspector Tahir deposed that the weapons were measured with plastic scale.
8.17. Ct. Daya Kishan also deposed that the three boys who had come initially were standing and waiting for other associates and thereafter, two boys came and stood and those five accused were standing in the corner inside the garbage house. This version of the witness was in contradiction to his statement U/s 161 Cr.P.C., and when he was confronted with his statement, he immediately corrected his statement claiming that the accused were sitting inside the garbage State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 14 of 25 house and then they got up to go to the place of commission of crime i.e. to loot the petrol pump.
8.18. Ct. Daya Kishan could not tell whether Sub-Inspector Tahir left along with Sub-Inspector N.S.Yadav or alone. He even claimed that he does not remember as to who took the motorcycle in question from the spot to the police station.
8.19. Ct. Daya Kishan also deposed that from the spot, the police team went to the house of accused Vishal(Proclaimed Offender) and accused Intezar on foot. When the police team had reached the spot on motorcycle and there was one motorcycle of accused recovered from the spot, the version of Ct. Daya Kishan that they went to the house of Vishal and Intezar from the spot on foot creates strong suspicion as to the truthfulness of the version presented before the court. His reply that he does not know as to how the motorcycles were brought from the spot creates strong suspicion. Ct. Daya Kishan even could not remember as to whether the police team reached the police station on foot or through any other mode of transport. Ct. Daya Kishan also claimed that he does not remember as to how many seals were applied on the pulindas.
8.20. The version of prosecution witnesses as to what they over heard when one of the accused was giving instructions to other accused regarding the manner in which the petrol pump was to be looted, is hit by Sec. 162 of Cr.P.C. The secret informer was the only non police official available in the team who was not examined and therefore, State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 15 of 25 the version of the police officials as to what they heard from the mouth of accused is not admissible.
8.21. PW-8 ASI Mahender deposed that he does not remember whether the investigating officer's bag was of leather or rexine or as to what was its colour. Sub-Inspector Tahir claim that his investigating officer's bag was of cloth and of black colour. There is contradiction in testimony of witnesses as to what was the distance of the nearest source of light available at the spot.
8.22. ASI Mahender deposed that the FSL form was affixed with the seal which was applied with lac as well as ink, whereas, Sub-Inspector Tahir deposed that it was only with the lac.
8.23. HC Rajesh deposed that the motorcycles were stopped near the wall of garbage house whereas Sub-Inspector Tahir deposed that the motorcycles were stopped in front of the garbage house on the road and the police team hid behind the dustbin.
8.24. Sub-Inspector Tahir also deposed that all the police officials had their private vehicles available with them when they went to the spot.
8.25. Sub-Inspector Tahir also admitted that he had reduced the secret information into writing when the secret information was received in the police station at 1.00 AM and at that time, SHO was present in the police station but the said piece of paper on which the secret information was reduced to writing has not been proved.
State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 16 of 25 8.26. ASI Mahender deposed that SI Tahir left the spot when Sub-Inspector N.S.Yadav came to the spot. Sub-Inspector Tahir deposed that he was present when the personal search memos and disclosure statements of accused were prepared by Sub-Inspector N.S.Yadav at the spot although he did not sign those documents.
8.27. ASI Mahender deposed that he left the spot when the accused were taken for their medical examination from the spot. When he was questioned as to how the accused and the case property were taken from the spot to the police station, he claimed ignorance. Sub- Inspector Tahir deposed that he did not make any entry of arrival in the police station when he reached the police station from the spot, alone.
8.28. PW-2 Sub-Inspector N.S.Yadav deposed that when he reached the spot, he met all the police officials including HC Rajesh, whereas, HC Rajesh deposed that Sub-Inspector N.S.Yadav never came to the spot.
8.29. Sub-Inspector N.S.Yadav also deposed that he along with the police officials and the accused left the spot for search of the two absconders and then they went to the police station and deposited the case property in the malkhana. As per Sub-Inspector N.S.Yadav, Sub-Inspector Tahir left the spot at 6/7 A.M and Sub-Inspector Tahir and ASI Mahender were relieved from the spot prior to the time the remaining police team had left the spot finally.
8.30. As per Sub-Inspector N.S.Yadav, there was no roof over the garbage State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 17 of 25 house where the alleged incident took place, whereas other witnesses deposed that there was a roof and it was not an open garbage house.
8.31. Sub-Inspector N.S.Yadav claimed that search of the two absconders was made in K and I Block of Jahangir Puri. Even he was unable to recollect that name of the police officials who took the motorcycle of the accused from the spot. Even he said that the DD entry of his arrival in the police station though made has not been proved in the court.
8.32. The above mentioned discrepancies assume importance in absence of independent witnesses.
9. In the case of Mohd. Raffique vs. State 2000 CRI. L. J. 2401, Hon'ble Delhi High Court , observed as follows;
"6. In State of Punjab v. Baldev Singh (1999) 4 JT (SC) 595 :
(1999 Cri LJ 3672), it was held that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the Act also to the extent they are not inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Act, the safeguards provided under the Code of Criminal Procedure are also required to be followed. It is well settled that failure to comply with the provisions of the Code of Criminal Procedure in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 of the Code of Criminal Procedure per se does not vitiate the State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 18 of 25 trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguards would be violative of the reasonable, fair and just procedure. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597), it was held that when a statute itself provides for a reasonable, fair and just procedure, it must be honoured. Thus, an accused has the right to a reasonable, fair and just procedure. The statutory provisions embodied in Sections 41 to 55 and Section 57 of the Act and Sections 100, 102, 103 and 165 of the Code of Criminal Procedure provide for a reasonable, fair and just procedure.
7. Section 50 of the Act read along with sub-section (4) of Section 100, Cr.P.C. contemplates that search should, as far as practicable be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so the onus would be on the prosecution to establish that the association of such witness was not possible on the facts and circumstances of a particular case. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Thus, the statutory desirability in the matter of search and seizure is that there should be two or more independent and respectable witnesses. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against authorised officers. In other words, the Legislature in its wisdom State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 19 of 25 considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping in view the severe punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure as envisaged by the statute scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of statutory safeguards committed by the authorized officer during search and seizure operations and may also undermine respect of law. That cannot be permitted.
8. It is undisputed that no public witness was associated during the course of search and seizure proceedings and the prosecution case hinges solely on the testimony of police officials. As per prosecution case the secret information was received at 9.35 a.m. and the appellant was apprehended at about 10 A.M. Thus, there was sufficient time to procure attendance of public witnesses to witness the search and seizure. This is not a case where due to urgency of the matter or for any other reason, it was not possible to comply with the provisions of sub-section (4) of Section 100 for associating public witness during the course of search and seizure. It is also undisputed that the appellant was apprehended in Gali Masjid Wali, which is a thickly populated area. Prosecution witnesses SHO P. L. Puri (P. W.
2) Constable Sukhram Pal (P.W. 3) Constable Jamil Ahmad (P. W./4) and SI Satpal (P.W. 6) want us to believe that at the relevant time public witnesses were approached but they declined to join the raiding party.
State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 20 of 25
9. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons, who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may, in this context, be made to the provision of sub-section (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under Section 100 of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187, IPC. In the instant case, there is nothing to indicate that the authorized officer had served or even attempted to serve an order in writing upon any public witness as envisaged by sub-section (8) of Section 100, Cr.P.C. In this connection, I may usefully excerpt the following observations of Malik Sharief-u Din, J. in Rattan Lal v. State, (1987) 2 Crimes 29 (Delhi) :-
". . . . . . . .In the case in hand the seizure and the arrest have been made under Section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by sub-section (4) of Section 100, Cr.P.C. The explanation offered is that public witnesses were requested but they declined to co-operate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 21 of 25 generally speaking it does not so happen. If a public witness declines to co-operate without reasonable cause in spite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187, I.P.C. and this has been clearly spelt out in sub-section (8) of Section 100, Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards."
10. It has come in the evidence of Sub-Inspector Satpal (P.W.
6), Constable Jamil Ahmad (P.W. 4) and Constable Sukhram Pal (P.W. 3) that Gali Masjid Wali is a thickly populated area. It seems inconceivable that no one from the public had come to the spot to witness the alleged search and seizure operation. Having regard to the area and the place of search and seizure, it appears that public witnesses were available but no serious attempt was made by Sub-Inspector Satpal (P.W. 6) to associate them before searching the appellant. I am unable to find any reason as to why he did not even make any attempt to associate any independent witness or witnesses during the course of search and seizure operation.
11. As stated earlier, the compliance with the procedural safeguards contained in the Code of Criminal Procedure and the Act are intended to serve dual purpose to protect a person State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 22 of 25 against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the authorized officer. It has to borne in mind that where the error, irregularity or illegality touching the procedure committed by the authorized officer is so patent and loudly obtrusive that it leaves on his evidence an indelible stamp of infirmity or vice, which cannot be obliterated or cured, then it would be hazardous to place implicit reliance on it. The aforesaid circumstances make the court to be circumspect and look for corroboration of the testimony of the said police officials from independent sources. No such corroboration is coming forth in this case."
10. Also the sketch of the three weapons Ex.PW-1/A, B & C as well as the recovery memos of the three weapons Ex.PW-1/D, E & F bears the FIR number and case particulars even though these documents were claimed to have been prepared much prior to the registration of the First Information Report. The said fact is unexplained and it creates a strong suspicion as to the truthfulness of the version of the prosecution. Existence of case particulars including FIR number on these documents indicate that these documents were prepared after registration of FIR and not prior to it. This fact indicates that the version presented before this court by the police officials is not entirely true.
11. The line spacing on the document Ex.PW-1/D i.e. the recovery memo of country made pistol reveals that the matter has been written with liberal spacing on the top of the document, but towards the bottom of the document the lines are cramped. It indicates that the signatures State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 23 of 25 of the accused and the witness might have been obtained even prior to the noting of contents of the document. That fact also creates a strong suspicion.
12. Quite strangely, it is the case of prosecution that the four accused with the proclaimed offender were preparing to commit dacoity at a petrol pump at G.T.Karnal Road and they chose a place no better than a garbage house to finalise their plan. The accused persons, as per version of prosecution, were known to each other and had they actually wanted to commit the crime, there were many better places available for them to finalise the details of the crime. There was no plausible reason for them to have chosen a place like garbage house to plan, more particularly, at that time of the night and more particularly giving an opportunity to the police to even hear the minutest detail as to who will do what at the scene of crime. I do not find this version of police believable. The accused were in a very good position to notice the presence of police in and around the garbage house at those odd hours and there was no occasion for any of the accused to have spoken about the details of the crime likely to be committed, as has been mentioned in the rukka in detail.
13. Though, the accused persons were resident of different places and they allegedly gathered at the spot for planning the crime and came on two different motorcycles, no helmet of the motorcycles were found in possession of any of the accused which I find quite suspicious.
State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 24 of 25
14. Keeping in view the above mentioned facts and circumstances, it is not at all safe to base conviction on the testimony of the police officials only and all the four accused are acquitted of the charges.
Announced in open Court on 28th January, 2014.
Dig Vinay Singh ASJ/Spl. Judge:NDPS(NW) District Courts/Rohini/Delhi State Vs. Mohd. Saffique & Ors. FIR No. 263/10 Dtd: 28.01.2014 Pg. 25 of 25