Delhi District Court
State vs . Subhash Jaiswal on 21 May, 2013
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IN THE COURT OF DIG VINAY SINGH : ADDL. SESSION JUDGE
SPECIAL JUDGE : NDPS : ROHINI COURTS : DELHI
In the matter of :
SC No. 32/12
FIR No. 28/12
PS. Crime Branch
State Vs. Subhash Jaiswal
State
Versus
Subhash Jaiswal
S/o Sh. Khusi Ram
R/o Mohalla Prem Nagar, Bareli, U.P.
Date of Receipt : 11.05.2012
Date of arguments : 21.05.2013
Date of Decision : 21.05.2013
JUDGMENT
1. The above named sole accused was sent up for trial with the case of the prosecution that on 06.02.2012, based on prior secret information, which was by name against the accused, a raid was conducted at outer ring road, Opposite Delhi Jal Board, MGD, Recycling Plant, Haiderpur, SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 1 of 34 -2- Delhi, and the accused was apprehended with heroine kept inside a bag carried by him. The raiding team comprised of Inspector Rajesh Sharma, who had received the secret information at 6.00 PM on that day, and also HC Kanwarpal, Ct. Atul and Ct. Neeraj. The accused was apprehended at 7.15 PM. He was carrying the black colour bag on his right shoulder. Inside the bag, there were some clothes of accused and also there was something wrapped inside a newspaper. On opening the wrapper of newspaper, it was found to be containing one polythene. The polythene was containing heroine. Some small amount of heroine was tested on a Field Testing kit and it resulted positive for Heroine. Total heroine recovered was 600 gm., out of which two samples of 5 gm. each were separated. The case property was sealed and taken into possession along with the FSL form. The sample tested positive for heroine in FSL Rohini, also. On completion of investigation, charge sheet was filed against the accused for offence U/s 21 of NDPS Act.
2. Accordingly, a charge U/s 21 NDPS was framed against the accused, to which he pleaded not guilty. A charge U/s 31 of NDPS Act was also SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 2 of 34 -3- framed against the accused since, as per the case of prosecution it is second offence by the accused after he was earlier convicted for an offence under NDPS Act. Section 31 of NDPS provides enhanced punishment for subsequent offence after previous conviction.
3. In support of its case, prosecution examined total ten witnesses. 3.1. Out of the ten witnesses examined, PW5 HC Kanwar Pal, PW6 Ct.
Atul and PW9 Inspector Rajesh, are the recovery witnesses. 3.2. PW9 Inspector Rajesh deposed that on 06.02.2012 when he was posted as Inspector in SIT, Crime Branch, he received secret information at 6.00 PM against the accused, when a secret informer came and told him that the accused would come with smack to supply it to one person namely Kamal, between 7 to 8 PM, opposite Haiderpur water Treatment Plant. The information against the accused was by name. PW9 shared the information with Addl. DCP Dr. Joy Tirkey, telephonically. Thereafter, the secret information was recorded into writing under DD no. 25, Ex.PW1/A, at 6.15 PM. One true copy SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 3 of 34 -4- of this DD was thereafter given to the Reader of Addl. DCP on that very day.
3.3. Thereafter, a raiding party was constituted comprising of himself, PW5, PW6 and Ct. Neeraj. PW5, 6 & 9 deposed that the raiding team left the office under DD no. 26, Ex.PW1/B, recorded at 6.30 PM. At the spot, some public persons were requested to become witness but they did not agree. Secret informer was also with the raiding team and the raiding team took position at the spot. At 7.10 PM the accused was noticed while coming from the side of Canal on foot and he was carrying one black colour bag which was hanging on his right shoulder. The secret informer pointed out towards the accused and left the spot. The accused came to the spot, waited for somebody for about five minutes, but thereafter he started going back. At that time, the accused was apprehended. PW9 thereafter introduced himself and other raiding team members to the accused and he was told about the secret information. The accused was informed of his legal rights to be searched in presence of a Gazetted Officer or SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 4 of 34 -5- Magistrate and that he can also take search of police party and the vehicle before his search was conducted. Accused refused to exercise his legal rights. A notice U/s 50 NDPS Act, Ex.PW5/A, was given to the accused and his refusal was also recorded on the notice which is proved as Ex.PW5/B. Thereafter, the bag carried by the accused was checked. The bag was containing one trouser, one shirt and one shawl. Also there was something wrapped inside a newspaper and on opening it, one polythene containing brown colour powder was found. Some portion of the brown colour powder was checked with the help of Field Testing Kit and it tested positive for heroine. The material was weighed and it came to be 600 gm. Two samples of 5 gm. each was taken out, which were kept inside pullandas Mark A & B. The remaining heroine was kept in third pulinda given Mark C. All the pullandas were sealed with the seal of RS. Form FSL was also filled up and same specimen seal was affixed on it also. Seal after use was handed over to PW5. Thereafter, the case property was taken into police possession vide memo Ex.PW5/C, along with the clothes. Thereafter, rukka was prepared and it was given to PW6 Ct. Atul for SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 5 of 34 -6- registration of FIR. PW6 was also given all the three pullandas, the FSL form and a carbon copy of seizure memo to be taken to PS and to be handed over to SHO in compliance of Section 55 of NDPS Act. Accordingly, PW6 went to the PS and got the FIR registered. He also handed over the other articles to the SHO PW7 Inspector C. R. Meena.
3.4. Second IO PW10 SI Shiv Darshan was appointed. He reached the spot and took custody of accused and all the documents prepared by PW9 by that time. PW5, 9 & 10 deposed that PW10 prepared site plan Ex.PW9/A at the instance of PW9. Thereafter, accused was arrested, vide memo Ex.PW5/E, at 11.30 PM and his personal search was conducted vide memo Ex.PW5/F. It is deposed that from the personal search of accused, one carbon copy of notice U/s 50 NDPS, which was served upon him by PW9, along with cash amount of Rs. 390/ was recovered.
3.5. PW9 & 10 also deposed that thereafter, the personal search articles SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 6 of 34 -7- of the accused were deposited in the Malkhana and both of them prepared two separate reports U/s 57 of NDPS Act regarding seizure of contraband and regarding arrest of accused, respectively, which are proved as Ex.PW2/C & D, respectively, and which were forwarded to the Addl. DCP.
3.6. PW7 Inspector C. R. Meena deposed that PW6 Ct. Atul brought all the three sealed parcels with the seal of RS and FSL form with same specimen seal along with the copy of seizure memo to the PS on the th th night intervening 6 7 February, 2012 at about 11.35 PM. Thereafter, he affixed his seal of CRM on each of the three pullandas and a specimen seal on FSL form. He also enquired about FIR number of this case from the duty officer and noted down the FIR number on the three pullandas, FSL form and the seizure memo, as also on the slip which was affixed on the black colour bag. He also signed those things. Thereafter, he called PW8 HC Jag Narain along with the Register no.19.
SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 7 of 34 -8- 3.7. PW7 Inspector C. R. Meena and PW8 HC Jag Narain deposed that thereafter the three sealed pullandas, FSL form and carbon copy of seizure memo along with one black colour bag with some clothes inside it were deposited in the Malkhana vide entry at serial no. 1211 in Register no. 19 which is proved as Ex.PW8/A. It is signed by PW7 SHO. PW7 also entered a DD entry in the Rojnamcha Register vide DD no. 18 Ex.PW7/A in this regard.
3.8. PW6, 7, 8 and 10 also deposed that one of the sample Mark A duly sealed was taken by PW6 from the Malkhana, on 13.02.2012 along with FSL form vide RC no. 77 Ex.PW7/B. 3.9. PW6 deposed that he deposited the said sample parcel with FSL form in the FSL laboratory, Rohini and obtained an acknowledgment Ex.PW8/C which was deposited in the Malkhana.
3.10. PW8 also deposed that PW10 had deposited personal search articles of the accused in the Malkhana vide entry Ex.PW8/B on the th th night intervening of 6 & 7 February, 2012.
SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 8 of 34 -9- 3.11. PW3 Sh. M.L.Meena, the Senior Scientific Officer from FSL, Rohini proved FSL result Ex.PW3/A. He also deposed that the sample parcel was received in his lab on 13.02.2012 which was duly sealed with the seal of CRM and RS. He also deposed that the sample was found to be containing Diacetylmorphine and Paracetamol. 3.12. PW4 HC Sushil Kumar was the duty officer in the police station and he proved registration of FIR Ex.PW4/A; endorsement on rukka Ex.PW4/B and DD no. 17 & 19 as Ex.PW4/C & D, respectively, which are regarding commencement of registration of FIR and conclusion of registration of FIR.
3.13. PW1 Ct. Gyanesh was a formal witness who proved true copies of DD no. 25, 26, 28 & 29 as Ex.PW1/A, B, C & D. 3.14. PW2 ASI Subash Singh was Staff Officer to Addl. DCP on 06.02.2012. He deposed that on 06.02.2012, a report U/s 42 of NDPS Act Ex.PW2/A was received vide entry Ex.PW2/B in the relevant register. Similarly, two reports U/s 57 of NDPS Act Ex.PW2/C & D SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 9 of 34
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were received in the Office of Addl. DCP vide entry at Serial no. 184 & 185 on 07.02.2012. He also deposed that all three reports were put up before the Addl. DCP who saw and signed the three reports. The relevant entry no. 183, 184 & 185 in the diary of Correspondence Register is proved as Ex.PW2/B.
4. On conclusion of the prosecution evidence, all the incriminating evidence was put to the accused in his examination U/s 313 Cr.P.C. The accused denied that any bag containing anything, including the contraband, was recovered from his possession. He claimed that he was called by the police officials at SIT, Crime Branch in connection with his earlier cases and accordingly he went there but he was detained and falsely implicated in this case. Accused denies that he was apprehended from the spot as claimed. He denies that any notice was served upon him. He claims that his signatures were obtained on blank papers in the Office of SIT and that the smack has been planted upon him. All the documents of this case are claimed to be fabricated and it is also claimed that the case property was tampered with. When, SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 10 of 34
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he was questioned regarding his previous conviction, he claimed that even in the earlier case he was told by the police that if he pleads guilty, he would be released on that very day, and therefore, he preferred an application for pleading guilty in order to avoid remaining in jail for a long period. He claims that he was released in the previous case on the day of his conviction. Accused, however did not opt to lead any evidence in his defence.
5. I have heard Ld. Prosecutor for the State and Ld. Amicus Curiae Sh.
Kundan Kumar for the accused. Ld. Amicus Curiae for the accused argued that compliance of Section 42 & 57 of NDPS Act has not been proved in this case. It is argued that PW2 ASI Subhash Singh admitted in his cross examination that he did not make the entry Ex.PW2/B in the Correspondence Diary and he was not even aware as to who made the entry in the diary.
5.1. I do not find any force in this submission of Ld. Amicus Curiae, for the reason that Section 42 of NDPS Act requires that the secret information taken down in writing U/s 42 of NDPS Act should be sent SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 11 of 34
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to immediate superior official within 72 hours by sending a copy thereof, and Section 57 requires that the person arresting an accused or seizing the contraband shall, within 48 hours, after the arrest or seizure, as the case may be, make a complete report to immediate superior official. Thus, what is important under those two provisions is, that a copy of secret information reduced to writing, or a report, as the case may be, has to be made to superior official within the stipulated time. It is not really important as to who make the entry in the office of superior official as to the receipt of those information or report. In the present case, PW2 specifically deposed that he had put up the report U/s 42 NDPS Act Ex.PW2/A as well as the two reports U/s 57 NDPS Act Ex.PW2/C & D before the DCP and the DCP Dr. Joy Tirkey also signed those reports. He even proved the signatures of DCP on those three reports. No question has been put to PW2 as to challenge the signatures of DCP on these three reports. Therefore, existence of signatures of DCP on these three reports is not denied. The witness specifically deposed that he identifies the signatures of DCP as he had seen the DCP writing and signing the documents during the course of SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 12 of 34
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official duties when he was working as SO to DCP.
5.2. What is material is that those reports were received by the DCP within stipulated period and the DCP also signed them. Nonexamination of the person who made entries in the register while receiving those reports becomes inconsequential for the aforementioned reasoning. Similarly, nonexamination of the DCP becomes inconsequential when his signatures remained unrebutted and unchallenged. 5.3. Similarly, the argument that time of receipt of reports is not mentioned on Ex.PW2/B becomes inconsequential when the report Ex.PW2/A was signed by the DCP on 06.02.2012 itself i.e. within 72 hours of recording of DD no. 25 and, the reports Ex.PW2/C & D were received and signed by the DCP on 07.02.2012 i.e. within 42 hours of seizure and arrest, respectively. It may be mentioned here that the NDPS Act does not prescribe any proforma for sending report U/s 42 of NDPS Act and all that it says is that a secret information reduced to writing should be brought to the notice of immediate superior officer by sending a copy thereof within 72 hours.
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6. It is next argued by Ld. Amicus Curiae that PW9 the initial investigating officer Inspector Rajesh Sharma, in his cross examination, admitted that he had not noted down the secret information when the same was received by him in the office of SIT, Crime Branch. Based on this answer, it is argued that no secret information was reduced to writing. 6.1. This contention is unacceptable, since, in his examination in chief the witness specifically mentioned that after the secret information was brought to the notice of Addl. DCP Dr. Joy Tirkey, telephonically, the secret information was reduced to writing under DD no. 25. Thereby meaning that the answer of witness was that at the time when he first received the secret information, he did not immediately note down the secret information and first he orally brought it to the notice of Addl. DCP and then subsequently, he noted it down. There is nothing wrong in this procedure, as U/s 42 of NDPS Act compliance has to be done within 72 hours and law does not require that the secret information should have been recorded immediately on receipt of it.
7. It is next argued by the accused that PW9 also admitted that he did not SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 14 of 34
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send any written communication to the Addl. DCP about secret information and he merely telephonically informed the DCP. 7.1. Again this answer, in the cross examination of PW9, cannot be read in seclusion. In the examination in chief, PW9 specifically deposed that he gave a copy of this DD entry to the Reader of Addl. DCP after recording it. In the testimony of PW2, it is proved that the DCP did receive true copy of secret information which the DCP also signed. Therefore, it does not lie in the mouth of the accused to claim that Section 42 was not complied with.
8. It is next argued by the Ld. Amicus Curiae that the senior scientific officer PW3 did not depose that the FSL form was also received along with the sample pulinda in the FSL lab and for this reason the accused deserves acquittal.
8.1. Again this argument is without any force. In the FSL result Ex.PW3/A, it is specifically mentioned at serial no. 7 that the seals were found intact and were tallied with the specimen seals of forwarding authorities. The acknowledgment which was obtained at the time of SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 15 of 34
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deposition of sample pulinda on 13.02.2012 although does not say that any FSL form was deposited with the sample pulinda, but PW3 was not questioned at all in his cross examination on this point. PW3 specifically deposed that sample pulinda was sealed with the seal of CRM & RS. PW6 Ct. Atul also specifically deposed that he had carried FSL form also to the laboratory with the sample pulinda. In such circumstances, it cannot be claimed by the accused that FSL form was not deposited in the lab.
9. Ld. counsel for the accused also argued that the recovery and seizure has not been made in accordance with the standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi and in this regard, he placed reliance upon the case of Union of India Vs. Bal Mukund &Ors., 2009 Crl.J 2407. Clause 1.9 of the Instructions reads as under : "1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witnesses and seizing officer and all of them shall be required to put their signatures SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 16 of 34
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on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample will also have a reference of the test memo. The seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked "Secret Drug sample/Test Memo" to be sent to the chemical laboratory." 9.1. Though noncompliance of standing instructions by itself may not vitiate trial and it may be only an irregularity and not illegality, however, it assumes importance in the facts and circumstances of the present case discussed herein below.
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10. There are various facts, which have come up in the cross examination of witnesses, which creates serious doubt about the case of prosecution.
10.1. The first and foremost fact which creates doubt about the case of prosecution is that, it is not proved that the case property was kept in safe custody and that there was no tampering with the case property. PW5 HC Kanwar Pal deposed that signatures of accused were not obtained on the pullandas, whereas, PW6 Ct. Atul who was also present at the spot deposed that the accused had signed the pullandas at the spot. He specifically mentioned that the accused had signed once each on all the three pullandas. PW9 the initial investigating officer did not even remember during cross examination whether he obtained signatures of accused on the pullandas or not. Admittedly, when the case property was produced in the court, the pullandas were not bearing any signatures of accused, though; PW6 specifically claimed that signatures of accused were obtained on the pullandas. The above mentioned fact does not rule out tampering of the case property.
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10.2. PW7 claimed that the pullandas were bearing signatures of witnesses when the case property was produced before him, whereas, PW8 Malkhana Moharrar claimed that he did not notice any signatures of witnesses on the pullandas. This fact also creates doubt about the safe custody of the case property.
10.3. PW9 Inspector Rajesh the initial investigating officer, in his cross examination, claimed that he did not prepare any document at the spot except the notice U/s 50 NDPS Act, the seizure memo and the rukka. He claimed that he first prepared the notice, then he prepared the seizure memo and then rukka and that he did not prepare any other document at the spot. PW6 Ct. Atul also claimed that the first document which was prepared at the spot was notice U/s. 50 NDPS Act and thereafter seizure memo was prepared but he was not aware as to what were the third and fourth document prepared at the spot.
10.4. The testimony of none other than the initial IO as well as PW6 casts a strong doubt as to the preparation of FSL form at the SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 19 of 34
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spot. If the FSL form was not prepared at the spot, it must have been prepared subsequently at some other place by someone. This fact together with the fact that as per PW6 signatures of accused were obtained on pullandas, which were not existing on the pullandas when the pullandas were produced in the court, creates a reasonable suspicion about the case.
10.5. PW6 even claimed that he had signed only two documents at the spot. He claimed that he did not remember how many documents he signed at the office. PW6 could not recall who prepared the seizure memo, how much time was consumed in preparation of documents and the sequence of preparation of documents at the spot. Now, does it not create a strong suspicion as to the presence of this witness at the spot? In my view, it does.
10.6. Since the recovery in this case was not from the personal search of accused, therefore, Section 50 of NDPS Act was not applicable in the present case. The contraband was recovered from inside a bag which was carried openly by the accused, therefore, notice U/s 50 NDPS Act SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 20 of 34
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was not required. Yet the investigating officer chose to serve the notice upon the accused. May be he did so apprehendingly that some contraband might be recovered from personal search of accused. 10.7. The contents of the said notice and deposition of PW5 & 6 about it also creates suspicion as to the case of prosecution. PW5 HC Kanwar Pal and PW6 Ct. Atul both claimed in their cross examination that when the notice was being prepared and carbon and carbon copy were still in place, the signatures of accused were obtained. PW5 claimed that in fact accused had signed the notice first of all. PW6 claimed that accused signed it at as many as two places, when the carbon was still there. But admittedly, there are no signatures of accused on the carbon copy of notice, which is proved in the court as Ex.P5. It creates a strong suspicion as to whether the notice produced in the court was the same notice served upon the accused.
10.8. PW5 claimed that there were two petrol pumps located at the spot.
But no one was even requested from the petrol pump to join as a SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 21 of 34
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witness. PW6 Ct. Atul also claimed that no one was called from the petrol pump to become witness. So was the answer of PW10 SI Shiv Darshan. But very strangely, the initial IO PW9 Inspector Rajesh claimed that there was no petrol pump located at the spot of recovery. It also creates a strong suspicion as to the place of recovery.
10.9. PW5 HC Kanwar Pal claimed that IO never explained the meaning of Gazetted Officer or Magistrate to the accused, whereas, PW6 Ct. Atul claimed that the meaning of those officers was explained by the IO. When two witnesses claim to be present at that time and both depose differently, it casts a shadow of doubt regarding their presence at the spot.
10.10. PW5 claimed that the accused was noticed at the spot within 25 minutes of reaching the spot whereas PW6 claimed that the accused was noticed within 10 minutes of reaching the spot. 10.11. PW5 claimed that only notice U/s 50 NDPS Act was prepared in the hand writing of PW9 Inspector Rajesh and other documents were in SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 22 of 34
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the handwriting of Ct. Neeraj and SI Shiv Darshan. This fact is also admitted by PW9 himself. Ct. Neeraj has not been cited as a witness or examined by the prosecution and even he did not sign any document as a witness.
10.12. The black bag in which the contraband was found was not sealed and there is no mention of deposition of the said bag in Register no.19 of Malkhana or in the DD no. 18 Ex.PW7/A. Admittedly, the black bag was not sealed by the investigating officer. This fact is admitted by the recovery witnesses as well as the investigating officers. It is also admitted by the SHO PW7 Inspector C. R. Meena that though he recorded the DD no. 18 Ex.PW7/A when the case property was produced before him by PW6, but he did not mention in the DD no.18 anything about black colour bag. This fact does not even find mentioned in the statement U/s 161 Cr.P.C of PW7 Inspector C. R. Meena. Even PW8 the Malkhana Moharrar admitted that there is no entry whatsoever in the Register no. 19, Ex.PW8/A, qua deposition of black colour bag in the Malkhana. He even admitted that no article can be deposited or taken out of the SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 23 of 34
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Malkhana without entry in Register no. 19. Yet this bag was produced in the court without any entry of its deposition in the Malkhana.
10.13. PW8 admitted that there is no separate entry regarding deposition of case property and personal search articles in Register no.19. And therefore, fact of deposition of the case property as well as the personal search articles, simultaneously, cannot be ruled out. 10.14. The story putforth by the prosecution that the passersby were requested, who refused to join raid, does not inspire confidence for the reasons that not even the names or addresses of those persons were attempted to be found or noted down by the investigating officer. It is very easy to say that the persons left the spot even without telling their names and addresses. I don't understand as to what kind of police is it, which cannot even find out name or address of a person who is requested to become witness. Whereas, if it comes to an accused they can extract entire biography in the disclosure statement. Even otherwise, the requirement u/s.50 of NDPS Act read with sub sec. 4 of SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 24 of 34
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sec. 100 Cr.PC is that independent local respectable inhabitants has to be joined. Thus mere asking the passersby would not be compliance of those provisions. Of late a disturbing trend is noticed in criminal cases, particularly in NDPS cases, wherein in almost every case, Delhi Police makes a statement that passersby were requested, but they left the spot without telling their names and addresses. I don't understand as to why the prosecution does not even try to join independent witnesses from local inhabitants, and if they are not willing, from public sector undertakings, such as the CBI does, particularly when the police has prior secret information like the present case, where the information was available with the police one hour prior to raid.
10.15. In the case of Mohd. Raffique vs. State 2000 CRI. L. J. 2401, 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 SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 25 of 34
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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 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.
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7. Section 50 of the Act read along with subsection (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 witneses was not possible on the facts and circumstances of a particular case. The strigent 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 strenthen 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 considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping in view the SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 27 of 34
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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 subsection (4) of Section 100 for asssociating public witness during the course of search and seizure. It is also SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 28 of 34
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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.
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 subsection (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 SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 29 of 34
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attempted to serve an order in writing upon any public witness as envisaged by subsection (8) of Section 100, Cr.P.C. In this connection, I may usefully excerpt the following observations of Malik Shariefu 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 subsection (4) of Section 100, Cr.P.C. The explanation offered is that public witnesses were requested but they declined to cooperate. 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 generally speaking it does not so happen. If a public witness declines to cooperate 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 subsection (8) of Section 100, Cr.P.C. In the SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 30 of 34
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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 SubInspector 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 SubInspector 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 SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 31 of 34
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safeguards contained in the Code of Criminal Procedure and the Act are intended to serve dual purpose to protect a person 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 indepenent sources. No such corroboration is coming forth in this case."
10.16. Learned prosecutor argued that non joining of independent witnesses cannot be fatal to the case of prosecution. Indeed it may not be in a given case. But then the testimony of police witnesses must be inspiring and believable. In a serious case of NDPS inviting stringent punishment, the above mentioned serious discrepancies cannot be SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 32 of 34
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ignored. An accused cannot be convicted on such tentative evidence. It is in the background of above mentioned discrepancies that non joining of witnesses assumes significance, in this case. 10.17. In the present case PW9 & 10, the two investigating officers, admitted that no written notice was served upon public persons to become witness and no legal action was taken against those who refused to become witnesses. Admittedly public witnesses were available at the spot. There was sufficient time between receipt of secret information and the time of apprehension, to join independent witnesses. Time and place of arrest was also not such that public witnesses were not available. Rather it was the time when the road remains the busiest in a day. Having regard to the area, the time and the place of search and seizure, it appears that public witnesses were available but no attempt was made by the investigating officer, to join them. 10.18. No relaxation can be given to the prosecution when crucial witnesses in a serious offence like NDPS case, falters. Punishment under NDPS Act is one of the severest punishment SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 33 of 34
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provided. The severer the punishment is, the stricter the rules of procedures and the appreciation of evidence has to be. 10.19. In Mousam Singha Roy and Others v. State of West Bengal 2003 (3) JCC 1385 : [(2003) 12 SCC 377], Supreme Court held :
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since the higher degree of assurance is required to convict the accused."
11. In view of the above discussion, reasonable doubt arises as to the truthfulness of the case of prosecution and thus the accused is acquitted of the charges. File be consigned to the Record Room. Announced in open Court on 21st day of May, 2013. Dig Vinay Singh Spl.Judge:NDPS/ASJ Rohini/Delhi SC no. 32/12 FIR no. 28/12 P.S Crime Branch Page 34 of 34