Delhi District Court
State vs Jaidul on 30 August, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Jaidul
S/o Sh. Ansar Ali
R/o 356 JJ Colony,
Uttam Nagar, New Delhi.
SC No. : 49A/09
FIR No. : 228/09
U/S : 20 NDPS Act
PS : Ambedkar Nagar
Date of institution : 05.10.2009
Date of reserving judgment : 19.08.2011
Date of pronouncement : 30.08.2011
J U D G M E N T
The accused has been sent to face trial by SHO PS Ambedkar Nagar on allegations that on 07.08.2009 at about 04.15 pm, at place Central Market, Near Ambedkar Nagar, Near Holi Chowk, Madangir Village, New Delhi, within the jurisdiction of PS Ambedkar Nagar, he was apprehended when he was found to be in possession of 4.6 kg of Ganja, in contravention of the provisions of Section 8(C) of the NDPS Act, which is an offence punishable U/S 20(b)(ii)(B) of the SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 2 above said Act.
2. The prosecution story, in brief, is that on 06.08.2009 one other accused named Thomas Karketta, resident of District Jalpaiguri, West Bengal, who is also facing trial herein separately in case SC No. 51A/09, was arrested in case FIR No. 333/09 of PS H.N. Din, U/S 20 of the NDPS Act from near the ISBT, Sarai Kale Khan with ganja weighing 61.49 kg in total and in his disclosure statement he had disclosed that the above ganja was brought by him to Delhi for being supplied to the accused Jaidul of this case, who is a resident of Uttam Nagar, New Delhi. On 07.08.2009 the above Thomas Karketta was remanded to police custody and was with ASI Mahesh Yadav, HC Pramod and Ct. Surender of the Operations Cell, South East District, New Delhi, when they all had reached near the Holi Chowk, Madangir Village at about 04.15 pm when the above Thomas Karketta had pointed out the accused Jaidul, who was holding one plastic katta / bag in his right hand as the same person to whom the above quantity of ganja was to be supplied by him.
3. It is alleged in the chargesheet that then the accused Jaidul was apprehended by the police party and after his identity was revealed out, a telephonic information was given to ACP, Operations regarding the same. The accused SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 3 Jaidul was asked about the contents of the above plastic katta / bag being held by him, but he could not furnish any satisfactory reply. On checking of the above plastic katta it was found to contain ganja wrapped in newspaper and then the IO/ASI Mahesh Yadav had requested some passersby to join the proceedings, but none had agreed and all had left the spot without disclosing their particulars and no coercive action could also be taken against them due to the shortage of time.
4. It is alleged that then the IO/ASI Mahesh Yadav had given a notice U/S 50 of the NDPS Act Ex. PW2/H to the accused while telling him that his further search is required to be conducted, in view of the recovery of the above ganja, and he had a legal right to be searched in the presence of a Magistrate or a Gazetted Officer and the accused was also offered the search of the members of the raiding team before taking his search. However, vide his reply Ex. PW8/B, which was recorded by the IO/ASI Mahesh Yadav himself on the request of the accused and on the carbon copy Ex. PW8/A of the above notice, the accused had refused for his search in the presence of the above officials and also for the search of the members of the raiding team. The IO/ASI Mahesh Yadav had then given his search to HC Pramod Kumar vide memo Ex. PW2/A but nothing SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 4 incriminating therein was recovered and then he had also conducted the search of the accused vide memo Ex. PW2/B and though no contraband substance was recovered further in such search, but a cash amount of Rs. 68,000/- was recovered in the search of the wearing clothes of the accused.
5. It is also alleged in the chargesheet that thereafter the above ganja recovered from the above plastic katta being carried by the accused was weighed and the total weight thereof was found to be 4.6 kg. 500 gms of ganja was taken out of the same as sample and it was put in a separate polythene pouch and was converted into a cloth pullanda. The remaining ganja was wrapped in the same newspaper and put in the same plastic katta / bag and a separate parcel thereof was also prepared and both the parcels / pullandas were sealed with the seal of MSY, form FSL was filled up and the same seal affixed thereon and both the parcels and FSL form were taken into possession by the IO/ASI Mahesh Yadav vide seizure memo Ex. PW2/D and a separate pullanda of the cash amount of Rs. 68,000/- was also prepared, sealed and seized vide seizure memo Ex. PW2/C.
6. It is also a part of the chargesheet that then the IO/ASI Mahesh Yadav had prepared a rukka Ex. PW8/C and had entrusted the same as well as the above sealed parcels, FSL SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 5 form and copy of the seizure memo to HC Pramod for registration of a case at PS H.N. Din and entrustment of the above pullandas and documents to the SHO concerned for deposit in the police malkhana and as per the directions of the ACP, Operations, it was also requested in the rukka that further investigation of the case may be assigned to SI S.S. Bisht.
7. It is also alleged that the further investigation of the case was assigned to SI S.S. Bisht and after his reaching at the spot, he was handed over the custody of the accused and relevant documents by the first IO and he had prepared the site plan Ex. PW5/A of the spot, arrested the accused vide arrest memo Ex. PW2/E, conducted his personal search vide memo Ex. PW2/F and recorded his disclosure statement Ex. PW2/G. Subsequently, he had also sent the above sample pullanda to FSL, Rohini for examination and had prepared and filed the chargesheet in this court pending the receipt of the FSL report.
8. The chargesheet was filed in this court on 05.10.2009 and cognizance thereof was taken. A prima facie case for the offence U/S 20(b)(ii)(B) of the NDPS Act was also made out against the accused and a charge for the said offence was framed against him on 23.10.2009 SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 6
9. The prosecution in support of its case has examined total 10 witnesses on record and their names and the purpose of examination etc. is being stated herein below :-
(i) PW1 SI Ganga Saran is the Duty Officer of this case and he has proved on record a copy of the FIR recorded by him as Ex. PW1/A. PW3 HC Girdhari Lal is the MHC(M) of the above PS on 22.02.2010 and he has deposed regarding the deposit of the above pullandas of case property and sample in the malkhana, alongwith the personal search effects of the accused deposited subsequently by the second IO. He has also stated from record that on 01.09.2009 the sample pullanda was sent to FSL through Ct. Sanjay vide RC No. 436/21 and the result thereof was received on 12.11.2009.
The relevant entries of the registers No. 19 & 21 have been brought on record by him as Ex. PW3/A (colly). PW10 HC Mahavir Singh, who was examined on an application U/S 311 Cr.P.C. moved by the prosecution, is the concerned MHC(M) with whom the above case property and articles were deposited and who had made the above entries of the register No. 19 & 21.
(ii) PW2 HC Pramod Kumar and PW8 IO/SI Mahesh Singh Yadav (ASI at the relevant time) are both the members of the raiding police team which had apprehended the accused with SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 7 the above contraband substance and on the pointing out of the above accused Thomas Karketta. They both have broadly deposed on the above lines of the prosecution story and have proved on record various documents prepared at the spot by PW8/IO. PW2 had also participated in the subsequent investigation conducted by the second IO/PW5 SI S.S. Bisht at the spot.
(iii) PW4 HC Rang Lal was working as SO to ACP, Operations Cell when the information U/S 57 of the NDPS Act Ex. PW4/A was received in their office and entered at Srl No. 23 of the diary register and PW9 Sh. Rajeshwar Kumar, who was also examined on an application U/S 311 Cr.P.C. moved by the prosecution, is the then ACP, Operations who had seen and endorsed the said information.
(iv) PW5 SI Shiv Raj Singh Bisht is the second IO of this case and he has also broadly deposed on the above lines of the prosecution story with regard to his role in the investigation of this case conducted subsequent to the registration of the case. Besides the above the two FSL reports regarding the chemical and biological examination of the sample have also been tendered on record in his statement, as both the said reports are per-se admissible in evidence U/S 293 Cr.P.C. PW6 Ct. Sanjeev is the person who SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 8 had taken the above sealed sample pullanda to the FSL and PW7 Inspector M.S. Punia was the SHO of PS Ambedkar Nagar at the relevant time and on being entrusted with the above sealed pullandas, FSL form and copy of the seizure memos, he had deposited the same in the malkhana after affixing his seals of MSP on the pullandas and FSL form and after writing down the FIR number etc. thereon.
10. I have heard the submissions made by Sh. Manoj Kohli, Ld. Counsel for the accused and Sh. Wasi Ur Rehman, Ld. Addl. PP for the State.
11. The first challenge made by the Ld. Defence Counsel to the prosecution story is that there is a delay of about 28 days in sending the sample pullanda to the FSL because admittedly the alleged contraband substance was recovered from the accused on 07.08.2009 whereas the sample pullanda was deposited in he FSL on 01.09.2009 and hence the accused is entitled to be acquitted giving benefit of doubt because the possibility of tempring with the sample pullanda while it was in the custody of the police malkhana cannot be ruled out. He has also referred to some guidelines of the Narcotics Control Bureau according to which a sample of the contraband substance is required to be sent for testing within 72 hours.
SC No. : 49A/09 State Vs Jaidul
FIR No. : 228/09
PS : Ambedkar Nagar
9
12. The prosecution has examined on record the
concerned MHC(M) HC Mahavir Singh as PW10, with whom the pullandas of the case property and samples were deposited in the police malkhana vide entry Ex. PW3/A. The concerned police official namely Ct. Sanjeev, who had taken the above sample pullanda to FSL, has also been examined on record by the prosecution as PW6 and both the above PWs have specifically claimed in their statements that so long as the above pullandas had remained in their custody the same were not tempered with by anybody. The RC vide which the above sample pullanda was taken to FSL has been proved on record as Ex. PW10/A (also Ex. PW3/A collectively) and there are specific depositions made by both the above witnesses that the above sealed pullanda was in intact condition when it was taken from the police malkhana and was deposited in the FSL, Rohini. The FSL report Ex. PW5/B, vide which the above sample was examined in the Chemistry Division of the FSL, also contains a specific mention of the fact that the seals affixed on the pullanda were intact as per the forwarding letter (FSL form). Hence, there is nothing on record to infer that the sample pullanda was tempered with at any stage while it was in the custody of the police malkhana or during its way from the malkhana to the FSL, Rohini and the mere delay of 29 days in sending the sample pullanda to FSL cannot be considered SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 10 to be fatal. The reference in this regard can be made to the latest decision of our own High Court in case of Bilal Ahmed Vs. State-2011 III AD (Crl.) (DHC) 293, wherein even a delay of 59 days in sending of the samples was considered to be not fatal in the absence of there being any evidence or inference regarding the suggested tempering with the pullandas of the case property or samples at any stage.
13. The next contention of Ld. Defence Counsel is that there is no evidence on record to show that form FSL was deposited in the police malkhana alongwith the sample pullanda or that the same was sent to the FSL, Rohini with the above pullanda as the relevant entry of Register No. 19 Ex. PW3/A is silent with regard to the deposit of the above said form in the malkhana or sending of the same to the FSL. On the basis of the above, it is being argued that the possibility of tempering with the sample pullanda in the malkhana cannot be ruled out. In this regard also it is held that merely because the above document Ex. PW3/A is silent with regard to the deposit or sending of the above said form alongwith the sample pullanda, no presumption or inference regarding any such tempering can be drawn as there are specific depositions made by PW2 and PW8/IO that the above said form was filled up at the spot itself and the same was taken by PW2 to the PS alongwith the sealed SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 11 pullandas. PW2 as well as PW7 also corroborate each other with regard to the entrustment of the above said form by PW2 to PW7 and the deposit of the said form in the malkhana is also proved from the depositions of PW7, PW3 as well as PW10. Even the FSL report Ex. PW5/B specifically incorporates that form FSL (forwarding letter) was also received in the FSL alongwith the sample pullanda. Hence, the above contention of Ld. Defence Counsel is not found to be acceptable and no such inference of tempering with the sample pullanda can also be drawn in the present case. Similar prepositions of law were also laid down by their Lordships in the case of Bilal Ahmed-Supra and in view of the prepositions of law as laid down in the said case the judgements in cases Amarjeet Singh & Anr. Vs. State (Delhi Admn.) 1995 JCC 91, Sher Singh Walia Vs. State of NCT of Delhi 2000 (2) JCC (Delhi) 538, Ravi Kumar Vs. State 2000 (2) JCC 525 (Delhi) and Prem Pal Singh Vs. State of Delhi 2000 (2) JCC 521 (Delhi) being referred by Ld. Defence Counsel cannot be relied upon.
14. However, on appreciation of the evidence led by the prosecution on record, it is found that there are some inherent contradictions and inconsistencies in the prosecution story and the same coupled with some other loopholes and lacunae leave no option for this court but to SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 12 discard the prosecution evidence and to acquit the accused giving him the benefit of doubt.
15. The first flaw in the story of prosecution is that it is the admitted case of the prosecution that the name of the accused Jaidul had allegedly figured in the disclosure statement of the above accused Thomas Karketta, who is facing trial in this court separately, but the alleged disclosure statement or a copy thereof is not a part of the record of this case. As per the record it was only disclosed in the above disclosure statement of accused Thomas Karketta that the accused Jaidul was a resident of Uttam Nagar, New Delhi, but there is no satisfactory material at all on record to show as to how the members of the raiding team, alongwith the above accused Thomas Karketta, had reached the Central Market, Ambedkar Nagar, New Delhi in the search of the accused Jaidul or in what connection the accused Jaidul was expected to arrive there.
16. Though the IO/PW8 SI Mahesh Singh in his statement made in this court has stated that it was disclosed by the accused Thomas Karketta that the boy to whom he had been supplying ganja often visits the above said market, but there is no material on record to substantiate his above depositions, which are even beyond the contents of the SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 13 rukka Ex. PW8/C sent by him from the spot or the chargesheet which was subsequently prepared on basis thereof. His above depositions are even not supported by PW2 HC Pramod Kumar who has only stated that the accused Jaidul was pointed out by the accused Thomas Karketta when the above police officials of the raiding team, alongwith the accused Thomas Karketta, were returning from the court after taking the police remand of the accused.
17. On further appreciation of the prosecution evidence it is also found that PW2 in his examination in chief itself has stated that ASI Mahesh Yadav / PW8 had told the accused Jaidul that he was having the information about his having contraband / ganja in his bag and his bag was to be searched for the same. Even the IO/PW8 SI Mahesh Yadav in his cross examination has deposed so, though he was silent in this regard during his examination in chief. However, there is no explanation on record as to on what basis the above witnesses were having a prior information regarding the accused Jaidul being in possession of some contraband substance because no material or document has been placed on record to support their above claim. Rather, when their statements are read in entirety and in the light of the chargesheet filed in this court, which is the basis of this trial, the same negate any such prior SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 14 information regarding the possession of any contraband substance by the accused being in the knowledge of the above PWs.
18. Again, there are also some contradictions in the statements of the above two material witnesses of the prosecution story on some other material aspects which also make the apprehension of the accused from the alleged place and with the alleged contraband substance to be doubtful. It is deposed by both of them that after taking the police custody of the above accused Thomas Karketta from the Patiala House Courts they had reached the above Central Market of Ambedkar Nagar. However, according to the IO/PW8 they had first gone to their office, which was in Madangir, and then from there they all had reached the above market, but the depostions of PW2 suggest as if they had directly reached the above market from the Patiala House Court. Again according to PW2 the police custody of the accused Thomas Karketta was taken and they had proceeded from the court at around 01.30 pm, but according to the IO/PW8 the police remand of the above accused was taken only after 02.00 pm. PW2 has also stated that from the court they all had proceeded in an auto rickshaw and as per both the above PWs the time of apprehension of the accused from the above market is about 04.15 pm. Though PW2 was also specifically SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 15 questioned, inter-alia, about the timings of their reaching at the above market, time of his reaching the PS with rukka and return back to the spot and the time when they had finally left the spot, but from the tone in which the witness had replied to these questions it is clear that he was not willing to open his mouth on the said questions. Keeping in view the distance between the Patiala House Court and the Central Market Ambedkar Nagar and also the mode of above conveyance, as deposed by PW2 also, their depositions with regard to the apprehension of the accused at about 04.15 pm from the above place and with the above contraband substance become highly doubtful.
19. Another flaw in the story of the prosecution is that though the IO/PW8 has stated that the request to the public persons to join the proceedings was made prior to the giving of notice U/S 50 of the NDPS Act and the recovery of the above contraband substance from the above plastic bag carried by the accused, but the depositions of PW2, on the other hand, suggest that such request to the passersby was made only after the above substance has already been recovered subsequent to the service of the notice. PW2 in his examination in chief itself has also stated that the above amount of Rs. 68,000/- was recovered from the right side pocket of the pant of the accused, but SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 16 the IO/PW8 has only stated that the same was recovered from the wearing pant of the accused. The above depositions of PW8 are against the contents of the rukka Ex. PW8/C itself wherein it is found to be recorded that the above amount was recovered from the inner pocket of the pant of the accused.
20. Besides the above there are also found to be some other contradictions in the statements of the prosecution witnesses and discrepancies in the prosecution story. PW8/IO has claimed that after the accused was apprehended, he had informed the ACP, Operations on telephone, but PW2 is silent in this regard and has not made any such depositions. PW2 has simply avoided so many questions put to him by Ld. Defence Counsel in his cross examination simply on the ground that he does not remember it now, but this conduct of a police official belonging to the Special Cell / Staff of the Delhi Police is unacceptable. According to the IO/PW8 SI Mahesh Yadav the accused Thomas Karketta and Ct. Surender, who was also a member of the police party but not examined on record, had left the spot just after about half an hour of the apprehension of the accused Jaidul, whereas as per the claim of PW5/second IO/SI Shiv Raj Singh Bisht he had found present the accused Thomas Karketta and Ct. Surender also at the spot when he SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 17 had reached there after registration of the case. The above contrast in the prosecution story is unexplainable because as per PW5 he was asked to investigate this case only at around 08.00 / 08.15 pm whereas the accused was apprehended with the above contraband substance at about 04.15 pm, i.e. about four hours prior to the entrustment of the investigation to this witness.
21. Further, when the pullanda containing the above cash amount of Rs. 68,000/- was produced in this court, the case amount was found to be wrapped in some newspaper and there is no explanation on record as to from where the above newspaper has come. PW2 was even specifically questioned in this regard and though in his cross examination he went on to state that the same was wrapped in a newspaper at the time of its recovery, but he was rightly confronted by Ld. Defence Counsel with his previous statement Ex. PW2/DA recorded during the investigation wherein this fact was not found to be recorded and hence his depositions in this regard, as made in this court, are liable to be discarded as improvements.
22. In view of the above discussion, it is held that the evidence led by the prosecution on record is not inspiring any confidence and the story being put forward SC No. : 49A/09 State Vs Jaidul FIR No. : 228/09 PS : Ambedkar Nagar 18 regarding the apprehension of the accused with the above contraband substance is highly doubtful and lacks corroboration and reliability. The accused is, therefore, acquitted of the charge giving benefit of doubt. His bond U/S 437A has already been furnished on record. Hence, his previous personal bond and surety bond stands discharged.
23. It is also found on perusal of the record that during the course of suggestions given to the IO/PW8, the above amount of Rs. 68,000/- was disowned on behalf of the accused and it was claimed and suggested that the said amount was planted upon him. Hence, the entire case property, including the above cash amount, is directed to be confiscated to the State and to be disposed of as per law, subject to the outcome of any appeal to be filed on behalf of the State against this judgement.
Announced in the open
court on 30.08.2011 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. : 49A/09 State Vs Jaidul
FIR No. : 228/09
PS : Ambedkar Nagar