Delhi District Court
State vs . Mohan Mahto Anubhav on 30 August, 2018
1
IN THE COURT OF ANUBHAV JAIN, METROPOLITAN MAGISTRATE,
SOUTHEAST, SAKET COURTS, NEW DELHI.
FIR No. 300/13
PS OIA
Digitally
U/s. 20/61/85 NDPS Act signed by
State Vs. Mohan Mahto ANUBHAV
ANUBHAV JAIN
JUDGMENT JAIN Date:
2018.09.01
21:58:53
A. SL. NO. OF THE CASE : 94/2/14 +0530
B. DATE OF INSTITUTION : 12.02.2014
C. DATE OF OFFENCE : 13.06.2013
D. NAME OF THE : HC Neeraj Kumar
COMPLAINANT : No. 2615/SE
E. NAME OF THE ACCUSED : Mohan Mahto
S/o Prabhu Mahto
F. OFFENCE
COMPLAINED OF : U/s 20/61/85 NDPS Act
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 30.08.2018
Brief Statement of Reasons for Decision :
1.The present accused is produced before the court to stand trial for the offence punishable u/s 20/61/85 NDPS Act.
2. In brief, facts of the case of the prosecution are that on 13.06.2013 at about 8.00 pm at factory No. A118, Sanjay Colony, OIA Phase2 HC Neeraj and Hc Krishan were on patrolling duty when they found one 2 person coming from the side of Harkesh Nagar Sabzi Mandi and was going towards Sanjay Colony and was carrying one white colour plastic bag in his right hand. It is further stated that upon seeing police officials said person started running and when HC Neeraj asked him to stop he tried to flee away and was thereafter apprehended by HC Neeraj and HC Krishan. It is further stated that upon checking of said plastic bag, same was found to be containing Ganja. Upon the same, the fact was informed to SHO and HC Neeraj gave a notice u/s 51 NDPS Act to the accused and same was read over to him. It is further stated that accused stated that he does not wish to search the police party nor he wish to call any Gazetted Officer or are Magistrate. It is further stated that HC asked few public persons to join in the investigation, however none agreed. It is further stated that upon weighing the said Ganja same was found to be 990 gram out of which 50 gram was kept separately as sample and was sealed with the saeal of NK and was MarkB. The remaining recovered Ganja was sealed with the seal of NK and was MarkA. Thereafter an FIR was got registered u/s 20/61/85 NDPS Act against the accused person and IO prepared site plan and arrested accused. The sealed sample was sent to FSL, Rohini and as per the FSL Report the said product was found to be Ganja. After completion of investigation charge sheet was filed by the IO against the accused.
3. Accused appeared before the court on 05.03.2014 and copy of charge sheet u/s 207 CrPC was supplied to the accused on 03.05.2014. Charge under section 20/61/85 IPC was framed against the accused person by Ld. Predecessor Court on 21.08.2014 to which accused pleaded not guilty and claim trial.
34. Prosecution in order to prove its case has examined following witnesses :
4.1 PW1 HC Krishan Kumar deposed that On 13.6.2013, he was posted as HC at PP OIE, PhaseIII, PSOIA and on that day, he alongwith HC Neeraj was on patrolling duty at about 8:00 pm, near Factory No. A 118, OIA, PhaseII, New Delhi. He further deposed that in meanwhile, HC Neeraj saw one man coming from Harkesh Nagar, Sabzi Mandi to Sanjay Colony, OIAII holding a white bag in his right hand and when HC called him, said person turned back and started going away at a fast pace. He further deposed that he alongwith HC Neeraj chased him and caught him and when the bag of the said person was checked and it was found to be containing a grass like object which was smelling of some narcotic substance. He further deposed that said person informed that said substance was ganjha and revealed his name to be Mohan Mehto s/o Prabhu Mehto. He further deposed that HC Neeraj gave information regarding recovery of said ganjha to SHO on telephone and HC Neeraj gave a notice u/s 50 NDPS Act to the accused which is Ex.PW1/A. He further deposed that said notice was read over and explained to the accused and he had stated that he has understood the contents of the said notice and he does not want to be searched in presence of Gazetted Officer and also stated that he does not want to be searched. He further deposed that HC Neeraj asked 45 passersby to join the investigation, but they left the spot without disclosing their name and addresses and after giving genuine excuses. He further deposed that HC Neeraj weighed the said substance on the weighing scale and it was found to be 990 gram and 50 gram of the said substance was separated as sample and it was 4 sealed with the seal of 'NK' after preparing its pullanda and the remaining substance was kept in another white cloth and it was sealed with the seal of 'NK'. Sample was given B mark and the case property was given mark 'A'. He further deposed that thereafter, HC Neeraj filled form FSL and the seal of 'NK' was affixed on it and after use seal was handed over to him and case property and the sample was seized vide seizure memo Ex.
PW1/B. He further deposed that thereafter, HC Neeraj prepared a rukka and he got the FIR registered and brought the copy of FIR and the original rukka to the spot. He further deposed that he handed over the both the said documents to HC Neeraj and after sometime, ASI Suresh Chand came at the spot, to whom further investigation was marked. He further deposed that HC Neeraj handed over all the documents, pullandas and the custody of the accused to IO/ASI Suresh Chand and IO prepared the site plan at the instance of HC Neeraj. He further deposed that IO interrogated the accused and he was arrested vide arrest memo Ex.PW1/C and his personal search was carried out vide personal search memo ExPW1/D. He further deposed that the accused was brought to the police station and the case property was produced before the SHO who opened the said pullandas and after checking, sealed it with his seal of VKPS. He correctly identified the accused in the court.
4.2 PW2 Ct. Abhimanyu deposed that on 21.08.2013 he took sealed sample from the Malkhana on the instructions of IO vide RC No. 120/21 and deposit the same in FSL, Rohini.
4.3 PW3 HC Neeraj Kumar deposed similar facts as by PW1 and same are not being reiterated here for the sake of brevity.
4.4 PW4 SI Rakesh Kumar proved the FIR Ex. PW4/B. 5 4.5 PW5 SI Suresh Chand deposed that On 13.06.2013, he was posted as ASI at PP, Okhla, PhaseIII and on that day, the present case was marked to him and he went to the spot at A118, Sanjay colony, Okhla PhaseII where he met HC Neeraj and HC Krishan. He further deposed that HC Krishan gave him original rukka and copy of FIR and HC Neeraj has handed over documents viz seizure memo of ganjha and notice u/s 50 NDPS Act. He further deposed that he prepared the site plan at the instance of HC Neeraj Ex.PW6/A. He further deposed that accused Mohan Mehto, was handed over to him by HC Neeraj and HC Krishan and he arrested the accused and his personal search was conducted vide Ex.PW1/C and Ex.PW1/D. He further deposed that disclosure statement of accused was recorded vide Ex.PW6/B and he got the accused medically examined and sent to the lock up. He further deposed that he have got deposited the exhibits to FSL, collected the result from FSL, recorded statements of witnesses, prepared the challan and submitted in the court.
4.6 PW6 Insp. VKPS Yadav deposed that On 13.06.2013, he was posted as SHO at PSOIA and on that day, an information was received from HC Neeraj Kumar that he alongwith HC Krishan have apprehended one Mohan Mehto alongwith one bag having ganjha. He further deposed that HC Neeraj Kumar sent a rukka for registration of case and the investigation was entrusted to ASI Suresh Chand.He further deposed that HC Krishan Kumar who was also the member of raiding party produced before two cloth parcels sealed with the seal of 'NK' alongwith the FSL form and sealed pullandas were marked as 'A' and 'B' and were having the recovered ganjha from the accused. He further deposed that he put his counter seal of VKPS on both the pullandas and 6 deposited the same in malkhana, PSOIA. He further deposed that accused was also produced before him by the IO. He correctly identified the accused in the court.
4.7 HC Jitender Kumar deposed that 13.06.2013 he was posted as MHCM at PSOIA and on that day SHO Insp. VKPS Yadav deposited 2 pullandas of case property and he mentioned the same in Register No. 19 at serial no. 3128 Ex. PW7/A. He further deposed that on 21.08.2013 one pullanda of abovesaid pullanda was sent to FSL vide RC No. 120/21/13 Ex. PW7/B and copy of acknowledgement of case acceptance by FSL Ex. PW7/C.
5. After completion of prosecution evidence, statement of accused under section 313 CrPC was recorded on 10.07.2018 wherein accused denied all the allegations as levelled against him by the prosecution and stated that he has been falsely implicated in the present matter. Accused further chooses not to lead any evidence in his defence and matter was fixed for final arguments.
6. I have heard the Ld. APP for the state and Ld. counsel for the accused person and perused the case file carefully.
7. It is settled proposition of law that burden lies upon the prosecution to prove its case beyond reasonable doubts.
8. It is argued by Ld. APP for the state that accused was apprehended and on checking he was found in possession of ganja and said fact is proved by all the prosecution witnesses. It is further argued that further the fact that substance, of which, accused was found in possession was ganja was proved by FSL report. It is further argued by 7 Ld. APP for the state that prosecution has able to prove it's case beyond reasonable doubt and accused is liable to be convicted.
9. On the other hand it is argue by counsel for the accused that police officials have not complied with the procedure of Act while making seizure and arrest. It is further argued that no public person was join in as witness by the police. It is argued that prosecution has failed to prove its case beyond reasonable doubt and accused is entitled to be acquitted.
10. It is settled proposition of law that burden lies upon the prosecution to prove its case beyond all reasonable doubts. It is the case of prosecution that on 13.06.2013 at about 8.00 pm at factory No. A118, Sanjay Colony, OIA Phase2 HC Neeraj and HC Krishan were on patrolling duty they found one person coming from the side of Harkesh Nagar Sabzi Mandi and was going towards Sanjay Colony and on his checking, he was found in possession of Ganjha, which when weighed was found to be 990 gm.
11. In the present case in hand, recovery was effected by Head Constable from the accused person and upon recovery said fact is informed to SHO concerned. It is pertinent to state in here that neither the SHO nor any other gazetted officer visited the spot even after receiving of information.
12. Be that as it may, it is the case of prosecution that upon the recovery from the accused, notice u/s 50 of NDPS Act was issued upon the accused by HC upon which the accused refused to search the police officials or to be produced before any Gazetted Officer. In State of Punjab vs. Balbir Singh AIR 1994 SC 1872 it was observed by Hon'ble Apex Court that if a police officer without any prior information as contemplated 8 under NDPS Act makes a search or arrest in normal course of investigation into an offence comes across the said person in possession of Narcotic Drugs or Psychotropic substances then the question of complying with the requirements u/s 50 of NDPS Act would not arrive. It is further observed by Hon'ble Apex Court that in case the official who had made the chance recovery of said substances was not empowered as per the NDPS Act, he should inform the Empowered Officer who should thereafter proceed in accordance with the provisions of NDPS Act. It is further observed by Hon'ble Apex Court that the searches under NDPS Act by virtue of section 51 have to be carried out under the provisions of CrPC particularly section 100 and 165 of CrPC and irregularities if any like nonjoining of independent witnesses in carrying out searches would not vitiate the trial, however if there is any such violation the court has to see as to whether any prejudice was caused to the accused and while appreciating the evidence the court shall bear in mind that there was such violation. It is further observed by Hon'ble Apex court if a person carries out search u/s 165 CrPC without recording the grounds of his belief as provided u/s 165 CrPC, failure to do so will vitiate the trial.
13. In light of the above discussions, coming to the present case in hand, as per the averments in charge sheet accused was illiterate and was apprehended from a public place alongwith psychotropic substances. HC who had made the search had issued a notice u/s 50 of NDPS Act upon the accused which in the present case was not required as chance recovery is effected from the accused person. At this stage, the court has to see as to whether noncompliance of provision of section 100 and 165 of CrPC vitiate the trial of prosecution.
914. In the present case in hand, where accused is stated to be illiterate and recovery is stated to have been effected by a Head Constable from a public place and no gazette officer was present at the spot, it was incumbent upon the police officials to join public person in investigation. In Surender @ Dheeraj v. State 2018 SCC OnLine Del 7506, it was observed by Hon'ble High Court of Delhi:
77. The arrests of the accused were all in public places and yet none of the arrests were in the presence of independent public witnesses. Parrotlike statements to the effect that passersby were asked but declined to join are given by the IOs in the present case. This does not convince the Court. In Kehar Singh v. State (1988) 3 SCC 609 : AIR 1988 SC 1883 one of the accused, Balbir Singh, was arrested at the bus stand at Najafgarh, which was a public place but there were no independent public witnesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC. Repelling this contention, the Supreme Court observed:
"It may be as technically argued by the learned Additional Solicitor General that the presence of public witness under the scheme of Code of Criminal Procedure is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal Search. But it is well known that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of this accused is no other evidence except the evidence of police officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as 10 his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution."
78. In the present case every arrest is on the basis of both information provided by and identification by a secret informer who is not produced as a PW. Most arrests have taken place from open public places and during times when there is a lot of movement of the public. It is therefore difficult to accept that in every such instance, no independent witness was available. The circumstance of arrest has not been convincingly proved by the prosecution.
15. It is further pertinent to state in here that FIR was lodged after the recovery was effected and seizure memo was prepared. However, in the present case, Seizure Memo Ex. PW1/B bears FIR no. which further goes to raise serious suspicion on the recovery from the accused person. At this stage, it would be relevant to state in here that the observations made by Hon'ble High Court of Delhi in Pradeep Saini v. State 2009 SCC OnLine Del 2803 :
70. Another circumstance which needs to be highlighted is that as per the case of the prosecution the sketch Ex.PW3/D of the knife purportedly recovered from the possession of accused Kishore Kumar was prepared before the registration of the FIR Ex.PW2/B. Surprisingly, sketch Ex.PW3/D of the knife contains the number of the FIR registered in the present case. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW2/B has appeared on the document, which was allegedly prepared before registration of the FIR. This gives rise 11 to two inferences; either the FIR Ex. PW2/B was recorded prior to the alleged recovery of the knife or number of the said FIR was inserted in said document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the knife in the manner alleged by the prosecution.
16. It is further pertinent to state in here that the search in the present matter was not made in accordance with section 165 of CrPC as the officer who had conducted search upon the accused does not record in writing the grounds of his belief and his reason for searching the accused person.
17. Considering the abovesaid law and facts, prosecution has failed to prove its case beyond reasonable doubt and accused Mohan Mahto is acquitted for the offences punishable u/s 20/61/85 NDPS Act for which he was charged.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 30.08.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 11 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE02 SOUTHEAST, SAKET COURTS, NEW DELHI