Delhi District Court
Sc No.84/2017 Fir No.155/16 State vs . Daleep Kumar Yadav & Sanjay Kumar Page 1 ... on 31 May, 2019
IN THE COURT OF SH. ANIL ANTIL, ASJ-04, PHC, NDD, NEW
DELHI
SC No. 84/2017
FIR No. 155/16
PS - Crime Branch
U/s - 20 (b) (ii) (C) and u/s 20 (b) (ii) (B)
both r/w section 29 NDPS Act.
State
Vs
Daleep Kumar Yadav
S/o Sudershan Yadav
R/o H. No. TC 833,
Anand Parbat Transit Camp,
Delhi. (Accused no. 1)
Sanjay Kumar
S/o Udayraj
R/o H. No. V-18, Bhagwati Vihar
Delhi.
Permanent Address:-
Village Kolu Khor, The Yadav,
District Banaras, UP. (Accused no. 2)
Date of Institution : 10.03.2017
Date of Arguments : 31.05.2019
Date of Judgment : 31.05.2019
DECISION : Both accused Acquitted.
JUDGMENT:-
1. In brief the case of prosecution is that :-
a) On 12.09.2016, a secret informer came to the office of Crime SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 1 of 29 Branch, Old PS Kotwali, Darya Ganj, Delhi and met PW-8 ASI Dinesh Kumar. Secret informer informed IO, PW-8, that he had received secret information that one Daleep Kumar Yadav, resident of Kathputli Colony, Pandav Nagar, Delhi, would bring ganja in heavy quantity from Odisha and Andhra Pradesh by train in Delhi, alongwith his friend Sanjay Kumar, R/o Uttam Nagar, Delhi for supply of the same in various places of Delhi. Secret informer also informed that both of them would come in front of 'Bhairo Mandir' at Pragati Maidan bus stop in between 07.30 AM to 08.00 AM and would supply ganja in heavy quantity to someone and if raided, they could be arrested alongwith ganja.
b) Thereafter, PW-8 shared the said information with Inspector Vijender Singh and produced the secret informer before him. Inspector Vijender confirmed the information from the secret informer ; shared the said information with ACP Sh. M.K. Meena on telephone at his house, who instructed to conduct the raid in accordance with law.
c) Thereafter, PW-8 lodged the DD No. 3 at 6.40 AM in respect of the information received in compliance of Section 42 of NDPS Act. IO produced the copy of the said DD to the Inspector Vijender Singh.
Thereafter, on the instructions of Inspector Vijender Singh, he prepared a raiding party comprising himself, HC Ramesh, Ct. Yogender and Ct.Ankush (Driver of gypsy no. DL-1C M-1344). Informer also accompanied them. IO also took his Kit (IO's kit), field testing kit, electronic weighting machine and spring weighing machine with him and made Departure entry vide DD no. 4 at 7.00 AM.
d) That the raiding team reached the spot i.e. in front of Pragati Maidan Bus Stand, and apprehended and arrested both the accused persons ; took their personal search after compliance of mandatory provisions of NDPS Act ; recorded their disclosure statements ; deposited personal search of both accused persons with SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 2 of 29 MHC(M); recorded statements of witnesses ; prepared report u/s 57 NDPS Act ; took PC remand of accused Dalip and after completing the investigation, filed the charge-sheet in court. 2. In view of allegations against both the accused persons in the charge-sheet, charge for the offence punishable u/s 20 (b) (ii) (C) r/w section 29 NDPS Act was framed against accused Daleep Kumar Yadav and charge for the offence punishable u/s 20 (b) (ii) (B) r/w section 29 NDPS Act was framed against accused Sanjay Kumar to which they pleaded not guilty and claimed trial. 3. In support of its case prosecution has examined 12 witnesses in total.
3.1 PW-1 Virender Singh (now ACP), was working as SHO at the relevant date and time. He deposed that on 12.09.2016, constable Yogender came to his office and handed over 06 sealed parcels having seal impression of 6CPSNBDELHI. The same were marked as A, A-1, A-2, B, B-1 and B-2, two filled up FSL forms and two carbon copies of seizure memos. He also put the seal impression of VSS and FIR number on all the 06 parcels as well as on both the FSL forms. Thereafter, he called PW-2 HC Jag Narain along with register no. 19 and handed over the said parcels along with documents to him for deposition in the Malkhana. The relevant entry was also made in register no. 19 in his presence. He made DD no.11 dated 12.09.2016 and proved the same as Ex.PW1/A. 3.2 PW-2 ASI Jag Narain, was working as MHC(M) at the relevant date and time. He proved the respective entries of deposit of case property and personal search articles of accused persons in the malkhana register no. 19 as Ex.PW2/A to Ex.PW2/B. He also proved the original notices u/s 50 NDPS Act as Ex.PW2/A1 and Ex.PW2/A2. He also proved the entry made in register no. 19 regarding sending of SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 3 of 29 two sealed pullandas mark A1 and mark B1 along with two FSL forms to FSL Rohini vide RC No. 336/21 as Ex.PW2/C and copy of road certificate as Ex.PW2/D. He also proved the acknowledgement of acceptance of exhibits at FSL as Ex.PW2/E. He further deposed that on 18.10.2016, two parcels of present case which were duly sealed with the seal of FSL Delhi along with FSL result was received. The said parcels were deposited in the malkhana and the FSL result was handed over to IO. He also proved the entry to this effect in register no. 19 as Ex.PW2/F. 3.3 PW-3 Sh. N.K. Meena was working as ACP. He deposed about secret information being put up before him, reports u/s 57 NDPS Act regarding recovery of ganja and arrest of accused persons received in his office. He proved DD no. 33 as Ex.PW3/A, report u/s 57 NDPS Act regarding seizure of ganja, and arrest of accused persons as Ex.PW3/B and Ex.PW3/C respectively. He also proved the photocopy of relevant entries in dairy register as Ex.PW3/D. 3.4 PW-4 ASI Mahesh Chand, was working as MHC(M) during the relevant time. He issued a electronic weighing machine to PW-8 ASI Dinesh Kumar. Thereafter, PW-8 deposited the same in Malkhana. He proved the relevant entry to that effect as Ex.PW4/A. He also testified that on 08.09.2016 he had also issued official seal having seal impression of 6 CPC NB DELHI to PW-8 and the same was returned to him by PW-8. He proved the relevant entry to that effect as Ex.PW4/B. 3.5 PW-5 ASI Rajbir Singh, was working as duty officer during relevant time. He deposed that on 12.09.2016 at about 12.30 pm he received rukka which was sent by PW-8 ASI Dinesh Kumar. On the basis of rukka, he registered the case on DD No. 10 vide FIR No. 155/2016 Ex.PW5/A. He proved his endorsement Ex.PW5/B on the rukka and certificate u/s 65B Indian Evidence Act Ex.PW5/C. After SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 4 of 29 registration of case, he handed over the copy of FIR and original tehrir to constable Yoginder with directions to hand over the same to PW-8. 3.6 PW-6 HC Krishan Kumar was working as Reader to ACP. He deposed about receiving of DD entry no. 3 in compliance of section 42 NDPS Act, report u/s 57 NDPS in respect of 43kg of ganja and report u/s 57 NDPS in respect of arrest of accused persons before PW- 3 ACP N.K. Meena.
3.7 PW-8 ASI Dinesh Kumar, is the first IO who deposed about receipt of secret information, sharing of secret information, constitution of raiding team and apprehension of accused persons. 3.8 PW-7 HC Yoginder and PW-12 HC Ramesh are the members of raiding team. They deposed in line to the testimony of PW8 stating that they accompanied PW-8 ASI Dinesh Kumar in the raid for recovery of contraband and apprehended the accused. It was also deposed that Secret informer informed IO PW-8 that he had received secret information that one Daleep Kumar Yadav, resident of Katputli Colony, Pandav Nagar, Delhi, would bring ganja in heavy quantity from Orrisa and Andhra Pradesh by train in Delhi alongwith his friend Sanjay Kumar, R/o Uttam Nagar, Delhi for supply of the same in various places of Delhi. Secret informer also informed that both of them would come in front of Bhairo Mandir at Pragati Maidan bus stop in between 7.30 AM to 8.00 AM and would supply ganja in heavy quantity to someone and if raided, they could be arrested alongwith ganja. 3.9 Thereafter, PW-8 shared the said information with Inspector Vijender Singh and produced the secret informer before him. Inspector Vijender confirmed the information from the secret informer ; shared the said information with ACP Sh. M.K. Meena on telephone at his house, who instructed to conduct the raid in accordance with law. Thereafter, PW-8 lodged the DD No. 3 at 6.40 AM in respect of the information SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 5 of 29 received in compliance of Section 42 of NDPS Act. IO produced the copy of the said DD to the Inspector Vijender Singh. Thereafter, on the instructions of Inspector Vijender Singh, he prepared a raiding party comprising himself, HC Ramesh, Ct. Yogender and Ct.Ankush (Driver of gypsy no. DL1CM1344). Informer also accompanied them. IO also took IO Kit, field testing kit, electronic weighting machine and spring weighing machine with him and made Departure entry vide DD no. 4 at 7.00 AM.
4.0 Thereafter, they reached the spot i.e. in front of Pragati Maidan Bus Stand. On the way, IO had asked 4-5 passers-by at Rajghat as well as opposite Bhairo mandir to become the witness but none agreed and left without giving their name and addresses. The government gypsy was stopped at a distance of 25-30 meters from bus stop of Pragati Maidan. In the meantime, secret informer informed IO that two persons who were holding heavy white plastic bag in their right hands and were sitting in middle of three bus stands are Daleep and Sanjay (accused persons). Thereafter at about 7.30 AM, secret informer was relived from the spot. Constable Ankush was directed to park the vehicle on the road side. IO along with HC Ramesh and Ct. Yogender took their position behind tree and bushes and kept watch on both of them.
4.1 After about 10 minutes, both the accused persons started moving from there after keeping the heavy loaded plastic bag on their head. They apprehended both of them after chasing for about 20-30 steps. In the meantime, 8-10 public persons gathered at the spot. IO asked them to join the investigation but they all refused to join the same and left the place without telling their names and addresses. IO also called Ct. Ankush alongwith government gypsy at the spot. IO introduced himself and raiding team to the accused persons and also SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 6 of 29 shared the information with them. IO also asked them to take search of raiding team members and government gypsy before giving their search but they refused to conduct the same. IO further told them that they have legal right to be searched before the magistrate or a gazetted officer and they can be called at the spot but they refused the same. Thereafter, IO prepared a notice u/s 50 NDPS Act and served upon both accused persons. Accused Daleep Kumar Yadav, himself wrote his refusal on the same with his signature on the carbon copy of the notice. However, accused Sanjay Kumar stated that he was illiterate, cannot read & write and can sign in Hindi language only. IO read over the contents of the notice to him and recorded his refusal in Hindi language. Search of accused Daleep was taken but no drugs/NDPS substance was recovered from his possession. Thereafter, white plastic bag which was recovered from the possession of accused Daleep was checked. The mouth of the said bag was tied with a white plastic sutli. It was opened and the bag found contained green smelly dried and moisture leaves with seeds. From its physical appearance and smell, it was found to be ganja. The said plastic bag was weighed with the help of spring weighing machine and it found to be 26 kilogram. The plastic bag was marked as Mark-A. IO took out two samples of ganja of 250 grams each from the recovered ganja and kept in separate polybags and tied the bags with rubber bands and same were given as Mark 'A-1' & 'A-2'. Thereafter, keeping the sutli in the plastic bag containing remaining the ganja, the mouth of bag was tied with the help of white cloth piece. IO put his seal '6 C PS NB DELHI' on the knot of the white cloth. Both the samples were kept in separate white cloth piece and converted into pulandas and IO put his aforesaid seal. IO also filled up form FSL.
4.2 Thereafter, IO took the search of accused Sanjay Kumar SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 7 of 29 but no drugs/NDPS substance was recovered from his possession. Thereafter, white plastic bag which was recovered from the possession of accused Sanjay Kumar was checked. The mouth of the said bag was tied with a white plastic sutli. It was opened and the bag found contains green smelly dried and moisture leaves with seeds. From its physical appearance and smell, it was found ganja. The said plastic bag was weighed with the help of spring weighing machine and it found to be 17 kilogram and IO gave the plastic bag identification mark as Mark-'B'. IO took out two samples of ganja of 250 grams each from the recovered ganja and kept in separate polybags and tied the bags with rubber bands and same were given as Mark 'B-1' & 'B-2'. After keeping the sutli in the plastic bag containing remaining the ganja, the mouth of bag was tied with the help of white cloth piece and IO put his seal '6 C PS NB DELHI' on the knot of the white cloth. Thereafter, both the samples were kept in separate white cloth piece and converted into pulandas and IO put his seal. IO also filled up form FSL.
4.3 Seal after use was handed over to HC Ramesh Kumar and IO seized the case property. IO prepared a rukka and then handed over it to Ct. Yogender for registration of the case. Case property alongwith sample pulandas, carbon copy of seizure memos and FSL forms were directed to be produced before the SHO for the purpose of compliance of Section 55 of NDPS Act.
4.4 PW-9 constable Sunil Kumar, testified that on the directions of PW-11 SI Ombir, he had obtained two sealed pullandas Mark A1 and Mark B1 along with two FSL forms from MHC(M). He deposited the exhibits at FSL Rohini vide RC No. 336/21. Thereafter, he returned back and handed over copy of RC and acknowledgement of FSL to IO. 4.5 PW-10 Sh. M.L. Meena, was working as Sr. Scientific Officer, FSL Rohini and proved his detailed report as Ex.PW10/A, SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 8 of 29 according to which the sample exhibits were found positive for ganja. 4.6 PW-11 SI Ombir, is the second IO to whom the investigation was handed over after registration of FIR. He deposed that he along with constable Ankush reached at the spot. He proved the departure entry vide DD no. 19 as Ex.PW11/A. He prepared the site plan at the instance of PW-8; arrested accused persons vide memo Ex.PW11/B and Ex.PW11/C; took personal search of accused persons vide memo Ex.PW11/D and Ex.PW11/E; recorded disclosure statements of accused persons vide Ex.PW11/F and Ex.PW11/G; deposited personal search of both accused persons with MHC(M); recorded statements of witnesses; prepared report u/s 57 NDPS Act; took PC remand of accused Dalip and after completing the investigation, filed the charge-sheet in court. 4.7 PW13 Insp. Vijender Singh deposed similar to the lines of PW8 that he alongwith secret informer came to his office and informed him about the secret information received through the said informer, that two persons namely Daleep Yadav and Sanjay would come from Andhra by train with huge quantity of ganja to supply in the area of NCT Delhi, and that they would reach bus stand near Bhairon Mandir in between 07.30 to 08.00a.m. That after satisfying himself the information was conveyed telephonically to ACP Mr. Meena and who directed him to take action as per law. That thereafter ASI Dinesh lodged a DD entry no.3 and which was produced before him in compliance to section 42 NDPS Act. The DD entry is duly proved on record and he further deposed that on his directions raiding team was conducted under the supervision of ASI and proceeded to carry out the raid and apprehend the accused persons accordingly. That on the same day at around 09:15p.m. SI Dabas ( whose full name not recalled) produced two accused persons before him, who are present in the court and witness SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 9 of 29 identify them correctly. That report u/s 52 NDPS Act prepared by ASI was also received by him and it bears his signatures. 5. The entire incriminating evidence was put to both accused at the time of recording of their statements u/s 313 Cr.PC. 6. Accused Daleep Kumar Yadav, stated that he is innocent and had nothing to do with the alleged offence. Nothing incriminating was recovered from him and the alleged contraband was planted upon him to shield the real culprits. Police officials took his signatures on various blank, semi-written and written documents without explaining the contents and consequences of those documents, in their office. They also forced him to write certain lines on blank paper, as per their dictation. It is further stated that it is a false and fabricate case against him to save real culprits and he is the victim of adverse circumstances and police officials made him the scapegoat for reasons best known to them.
6.1 Accused Sanjay Kumar also stated to the similar effect and they both did not prefer to lead evidence in their defence. 7. Detailed final arguments were addressed by learned Addl. PP Sh. S.K. Kain and learned Sh. Kamal J.S. Mann, learned counsel for accused persons.
8. Sh. Maan has argued that prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt as the total evidence adduced is nothing but short of unreliable and inconsistent bucket of evidence, wherein the alleged commission of crime is absolutely surrounded by doubts and dust. He further argued that perusal of the records highlights blatant failure of compliance of the mandates of a strict penal statute i.e. NDPS Act and directions laid down therein. A summary of the available impeachable evidence is laid down as under so as to prove the innocence and clandestine operations SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 10 of 29 of agencies contrary to rights/ duties bestowed by the statute. He further argued that no public witness was joined despite their availability, case property was tampered and compliance of section 41/421 and 50 NDPS Act has not been done during investigation. 9. Learned Sh. Kain submitted that the prosecution has proved its case against accused beyond reasonable doubt. He argued that testimony of each of the raiding team member examined in the court is consistent and corroborative to each other. He also argued that recovery of ganja was made from both the accused persons and the minor contradictions, if any, in the testimony of witnesses are liable to be ignored. Learned Addl. PP has relied upon the landmark judgment of Iqbal Moosa Patel Vs State of Gujrat (2011) 2 SCC 198, wherein the Hon'ble Apex Court held as under:-
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt .......
It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land.
10. He also relied upon the case of Sucha Singh and Anr. Vs State of Punjab (2003) 7 SCC 643, wherein it was held by Hon'ble Apex court :-
...... Exaggerated devotion to the rule of benefit of SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 11 of 29 doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh V. Satpal Singh AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Prof beyond reasonable doubt is a guideline, not a fetish.
11. Court is in agreement with the submissions of learned Sh. K.J.S. Maan that accused is liable to be acquitted in the present case as prosecution has failed to establish its case beyond reasonable doubt for following reasons:-
1. Non-compliance of section 41-42 NDPS Act:-
12. It is rightly submitted by learned counsel for accused that NDPS Act provides for stringent punishment and therefore strict compliance of its mandatory provisions is necessary and non- compliance of the same vitiates the trial. It appears to be rightly submitted by learned defence counsel that section 41-42 NDPS Act were not complied with in this case.
13. As per prosecution case recovery of ganja from accused persons were allegedly effected at 07.40 am on 12.09.2016. However, the secret information was allegedly received in the office of SER Crime SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 12 of 29 Branch at about 06.00 am.
14. From the scheme of the NDPS Act, it is seen that in case of previous information with the authority, the search and seizure of Narcotics Drugs or Psychotropic Substance or the arrest of the concerned persons can be effected either by an empowered officer or by an officer authorized by the empowered officer. 15. Under section 41 (1) NDPS Act a Metropolitan Magistrate or a Magistrate of First Class or any specially empowered Second Class Magistrate, are the empowered officers and they can issue warrants for search of persons or places and seizure of any material under NDPS Act.
16. Under section 41 (2) NDPS Act, any gazetted officer of police i.e. any officer of or above the rank of Assistant Commissioner of Police, is empowered officer and may himself arrest any person or search a building, conveyance or place. The said empowered officer may if he himself do not conduct search, arrest etc., may authorize any other subordinate officer superior in rank to a constable to do such search, arrest etc. 17. It is evident that the initial information recorded by the ASI Dinesh Kumar vide Ex PW3/A is not in compliance of mandatory provisions of section 42(1) of NDPS Act. Thus the initial DD which was recorded by ASI talks of three things. One that he received information through an informer but before recording the same he conveyed it to inspector and before the information was recorded Inspector conveyed it to senior officer and also sent it in writing to them. He had not recorded the secret information on a paper. DD Ex PW3/A recorded at 06:40a.m. is not the information received by ASI but is a detailed information recorded after deliberations giving who did what. Had ASI received the information and recorded it directly in DD, he could not SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 13 of 29 have mentioned that he had informed about the information to his immediate senior official and his senior official had in turn informed it to further senior official and even sent a copy to his senior Insp. Vijender (PW13).
18. When the information had not been recorded by ASI at the first instance, how, it could have been sent to senior officials in writing. Section 42(1) of the Act casts a duty upon the police official to reduce the information in writing whenever commission of an offence in respect of narcotic drug or narcotic substances comes to the knowledge. After he reduces down the information in writing, he has a duty to send a copy of the information to his superior officers within 72 hours. In fact, procedure as to how a police officials has to proceed when he receives an information. This procedure is not a mere formality for the sake of it but it provides a safeguard against false implication of persons. Section 42(1) of the Act mandates a police officer to necessarily record the information in writing and Section 42(2) casts a duty upon a police officer who takes down the information in writing to forthwith forwarded to the senior officers. (Peeraswamy Vs. State of NCT DELHI 2007 (2) JCC Narcotics 80).
19. Further - there appears to be serious ambiguity in compliance of provisions of section 41 of the NDPS Act. Said information was put before Insp.Vijender vide DD no. 3 who put his note on information "forwarded pl.". Thereafter the information was not put before the worthy ACP (PW3) for seeking authorization or further directions. He specifically deposed in his examination that the verbal permission to conduct the raid and apprehension of culprit was given by him, even prior to going through the said DD entry. 20. Herein, as noted above, the manner in which DD Ex PW3/A has been recorded, casts doubt on the receipt of information SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 14 of 29 itself. This doubt is further fortified from the testimony of witnesses. 21. There are material contradiction between the testimony of ACP N.K.Meena (PW3), who allegedly has granted sanction /authorization and permission for conducting raid and apprehension of accused persons, and testimony of PW8, initial IO to whom the secret information was received and Insp. Vijender ((PW13). 22. PW3 deposed that ASI Dinesh (PW8) had directly called on his mobile number to apprise him about the secret information and sought permission to carry out the raid and apprehend the accused persons. Whereas, contrary to that, ASI Dinesh and Insp Vijender Singh (PW13) testified that that ASI Dinesh had orally informed Insp. Virender about the receipt of secret information, who in-turn informed ACP(PW3) telephonically and thereafter instructions to carry out the raid and arrest of the accused was given to Insp. Virender directly by ACP, and not to ASI Dinesh, contradicting the stand taken by ACP himself.
23. Nextly PW3 deposed that when he reached his office at 10:00a.m in the morning at about 11:00a.m. ASI Dinesh from Narcotic Cell produced copy of DD no. 3 dated 12.09.2016 and a report u/s 57 NDPS Act regarding seizure of 43 Kg of ganja. Belying the testimony of PW3, ASI Dinesh, PW8 deposed that he reached at the spot at about 07:40a.m. and remained at the spot till 04.00pm. approximately. SO I failed to comprehend how could ASI had produced the report/DD to the ACP at 11.00 a.m. when as noted above he remained on the spot till 04.00 p.m. He also admitted that accused persons were not produced before him and he had not verified the correctness of the case from the accused persons. Further it has also come in his testimony that the entries in the register were not made in his own handwriting and the word 'Seen' mentioned in the remarks column no. 6 of the register was SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 15 of 29 also not in his handwriting. The testimony of ACP does not inspire confidence at all and the entire exercise has been done by him in a mechanical manner without having the grasp of the true facts of the case.
24. Also relevant to note is that PW6 H.C. Krishan Kumar, reader to ACP, deposed that in compliance of Section 42 of NDPS Act, DD no.3 dated 12.09.2016 (Ex PW3/A) was put by him before the ACP Sh. N.K.Meena (PW3) and he signed it after going through the contents of the documents, and then diary to this effect was made by him. PW6 stated that the said information was received through Dak, whereas in the cross examination, he admitted that there is no entry in the diary register to the effect that above said correspondence was received through dak, nor the mode of receiving is mentioned nor the person who had carried it to the office is mentioned. Thereby, raising serious cloud over the mode and manner the said information was received, and the facts noted above, do indicate that prosecution has failed to show that the provisions of section 42 NDPS Act were complied in letter and spirit.
25. Thus there is nothing in the secret information or any other document produced in evidence to suggest that PW-8 ASI Dinesh, first IO of the case had any authority from the empowered officer i.e. PW-3 ACP M.K. Meena. In his examination in chief also PW-3 stated that when DD no. 3 i.e. secret information about the recovery of ganja was produced before him, he directed his Reader i.e. PW-6 H.C. Kishan Kumar to make necessary entry in the record. He has not deposed that he had authorized PW-8 to conduct any raid or to effect any search or seizure of the contraband or to arrest accused in writing. The DD proved during examination is also silent in this regard. 26. From the above discussion, it is clear that PW-8 could not SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 16 of 29 have effected search and seizure on its own except in the case of chance recovery u/s 43 NDPS Act. In the case in hand recovery was made after receipt of prior information by an officer who was neither empowered u/s 41 (2) NDPS Act nor was authorized by the empowered officer.
27. I must state that verbal permission can not be considered as any specific direction or authorization in favour of any officer. The search and seizure effected by an officer, who was not empowered officer under section 41(2) NDPS Act and who did not carry authorization from the empowered officer, is hit by non compliance of Section 41 of NDPS Act. The court can not presume any general authorization in favour of raiding team members. It has to be specific, simplicitor making DD entry to that effect can not be deemed to be compliance of the mandatory provisions. Hence, the recovery of contraband and arrest of accused persons is vitiated for non- compliance of section 41-42 NDPS Act.
28. In the case of State of Punjab Vs Balbir Singh, Spl. Leave Petn. (Crl.) No. 1698 of 1990 etc, decided on 01.03.1994, Hon'ble Supreme Court in para no. 26 discussed the provisions of section 41-42 NDPS Act and the impact of non-compliance thereof as follows :-
26. The questions considered above arise frequently before the trial courts, therefore we find it necessary to set out our conclusions which are as follows :
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 17 of 29 not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.
Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
(2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 18 of 29 which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non- compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorized officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 19 of 29(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched.
Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial.
After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
29. Hence, the proceedings in the present case are vitiated for non-compliance of section 41-42 NDPS Act. IO was having no authority to arrest the accused persons or to effect seizure of contraband from their possession. Both the accused are thus entitled to benefit for the same.
2. Non-compliance of section 50 NDPS Act:-
30. Learned counsel for accused has drawn the attention of the court to the cross-examination of PW7 H.C. Yoginder and PW-12 H.C. SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 20 of 29 Ramesh, the members of the raiding team wherein it has been specifically admitted that PW3 ASI Dinesh had not called any gazetted officer or magistrate at the spot, and that he had not even contacted any gazetted officer or magistrate on the way while going for raid. It is also admitted that when they proceeded for the spot no gazetted officer or magistrate accompanied their team. Said fact regarding non presence of any gazetted officer or magistrate on the spot or no effort in that regard made by the ASI Dinesh during the entire proceedings is also admitted by him in his cross examination. And none of the members of the raiding team was gazetted officer nor as discussed above the search was effected in the presence of any gazetted officer or magistrate.
31. At this stage, it would be useful to refer to the recent judgment of Hon'ble Supreme Court in the case titled as Arif Khan @ Aga Khan VS State of Uttarakhand, 2018 SC 459, the Hon'ble Apex Court held as under:-
First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 21 of 29 conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer (emphasis supplied).
32. The ratio laid down by Hon'ble Supreme Court in Arif Khan @ Aga Khan (supra) was followed by Hon'ble High Court of Delhi in Crl. Appeal No. 658/2017 in its judgment pronounced on 13.11.2018 in the case of Dharambir Vs State and it was held that once a notice u/s 50 NDPS Act is served upon the accused, section 50 NDPS Act is applicable even when recovery is not made from body search of accused. In the case of Gurtej Singh Batth Vs State, Crl. A. 39/2015, Hon'ble High Court of Delhi held as under:-
26. Apropos Arif Khan (supra), the contention of Mr. Aggarwala, is that the said judgment had not applicability, as the recovery had taken place, not from the person of the appellant, but from his baggage. This submission, too, has no force, in view of the law laid down by the Supreme Court in Dilip v. State of Madhya Pradesh, (2007) 1 SCC 450 and State of Rajasthan v. Parmanand, AIR 2014 SC 1384 which hold that, where the search of the baggage of the accused (from which the contraband was recovered) takes place alongwith the search of his person, Section 50 applies with full force. I may mention, here that I have, in my judgment in Dharambir v. State, 2018 SCC OnLine Del 12305 also dealt with this aspect of the matter.
27. Once Section 50 of the NDPS Act, is treated as applicable, Arif Khan (supra) clearly applies, resulting in the present proceedings being vitiated additionally for the reason that the search and recovery did not take place in the presence of a Magistrate or a Gazetted Officer. The requirement of consent, from the appellant, for being searched by the members of the raiding team, would be SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 22 of 29 irrelevant,in view of the law laid down in Arif Khan (supra).
33. Hence, in view of the law laid down by the Hon'ble Supreme Court, as followed by Hon'ble High Court of Delhi, once section 50 NDPS Act was invoked by the IO, the search and seizure in the absence of gazetted officer or Magistrate, whether it be from the body or baggage or vehicle of accused, is in violation of the procedure laid down and the proceedings stand vitiated. 34. In the present case also accused was never produced before any Magistrate or Gazetted Officer and the search of the narcotic substance i.e. ganja, from the accused persons was not made in presence of any such Magistrate or Officer. It is further clear that none of the police officials of the raiding party, who recovered the contraband was a gazetted officer. In view of the ratio laid down by the Apex Court, they were not empowered to make search and recovery from the accused except in presence of Magistrate or Gazetted officer. The search and recovery of contraband from the possession of accused is therefore not in conformity with the requirements of section 50 NDPS Act.
35. Further more Section 50 NDPS Act notice was given in a mechanical manner and merely taking signatures/ or writing on the notice itself on behalf of the accused in my considered opinion is not in compliance of the mandatory provisions of Section 50 of NDPS Act. None of the witness has deposed that after the accused persons were allegedly apprised about their legal rights to get their personal search effected before a gazetted officer or a magistrate, had refused specifically to get their personal search before a magistrate or a gazetted officer. PW7 and PW 12, both deposed in a mechanical manner to say both the accused persons refused to take the search of SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 23 of 29 the raiding team as well as the government vehicle used in the raid, but admittedly, as noted above, it is no where deposed, besides the noting on the Notice under section 50 of NDPS Act, that they refused to get their personal search conducted before gazetted officer or magistrate. 36. In the facts and circumstances, it is rightly submitted by learned defence counsel that there is serious doubt qua the strict compliance of section 50 NDPS Act, in terms of undisputed position of law. In the present case recovery was allegedly effected from the carry bags carried by the accused persons with them and provisions of Section 50 NDPS Act are squarely applicable. In the absence of prosecution proving the effective service of notice upon the accused persons and that they were "informed" about their rights in terms of the law laid down by the Constitution Bench in State of Punjab Vs Baldev Singh 1999(6)SCC 172, both accused are entitled to benefit of doubt.
3. Non-joining of public witness:-
37. Accused persons were apprehended from a bus stand near Science Centre, in front of Bhairon Mandir, New Delhi. The said place is situated near Pragati Maidan where round the clock, some exhibitions or trade fairs or other cultural programmes keep on taking place. And I must state that no sincere efforts were made by the prosecution to join the public witnesses despite the fact that IO and other witnesses admitted that the place from where the accused persons were apprehended is a public place i.e. Science Centre, near Bhairon Mandir, New Delhi where security guards of Science Centre were present. I also mindful of the fact that it is not mandatory that in each and every case public witnesses has to join investigation as there are number of factors, for which public witness may not joined in the investigation. I do not think necessity to elucidate such reasons but fact remains it was also incumbent upon the prosecution agency to conduct SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 24 of 29 serious efforts to join the public witnesses whatsoever they were available. And as per the deposing of raiding party members PW8 ASI Dinesh, PW 7 H.C.Yoginder and PW 12 H.C. Ramesh, they all have deposed in a mechanical manner to say that first of all IO requested 3-4 public persons at red light after turning at Shanti Van, New Delhi and thereafter at place of occurrence but none agreed or came forward to join them. But undoubtedly it has come in cross examination that no notice u/s 160 was given to those persons with direction or request to become the member of the investigation and raiding party. 38. In the case of Mohd. Masoom Vs State of NCT of Delhi, Crl. A. 1404/2011, Hon'ble High Court of Delhi quoted the observations of Hon'ble High Court in the case of Ram Prakash Vs State 2014 (146) DRJ 629, as follows :-
"... 16. Mr. Gaur pointed out that while the Appellant was apprehended around 3.30 pm, the formal arrest was recorded at 11 pm i.e. after eight hours. Throughout this period the police remained present at the spot and yet they could not get a single public witness to be associated.
17. This is perhaps the weakest line in the entire case of the prosecution. In his evidence PW-9 stated that "he requested 5-6 public persons to join the proceedings but they did not join the investigation." It is not clear who those public persons were. Their names were not noted. In his cross-examination PW-9 stated "People who were managing the parking were present in the parking. I did not call any person from the parking, any employee of the Railway and the police officials deployed there to join the proceedings."
18. It seems extraordinary that although PW-9 and the entire raiding party remaining at the spot i.e. the parking lot of Old Delhi railway Station, well be beyond 11.15 pm, i.e. nearly SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 25 of 29 eight hours (they ultimately left the spot at 11.45 pm to reach the Crime Branch at 12.30 am) they were unable to locate a single public witness including any railway official or any personnel of any other security force to be associated in the proceedings.
19. The trial Court has referred to the decision in Ajmer Singh Vs State of Haryana 2010 (2) RCR (Crl) 132 to hold that the failure to associate independent witness is not fatal to the prosecution case, as long as it is shown that efforts were made and none was willing.
However, it is seen that in the said decision the Supreme Court emphasised that it had to be shown that after making efforts, which the Court considers in the circumstances of the case reasonable, the police officer was not able to get public witnesses to associate with either the raid or the arrest of the culprit. In other words in every case it will have to be examined whether serious efforts made by the police to associate public witnesses. In Ram Swaroop Vs State (Govt. of NCT of Delhi) (2013) 14 SCC 235 the Supreme Court found the evidence of the police witnesses "absolutely unimpeachable" and therefore held that the failure to associate independent witnesses did not affect the prosecution case. However, as will be seen hereafter, that cannot be said of the prosecution witnesses in the present case.
20. In the present case as already noticed the entire raiding party remained at the Old Delhi Railway parking lot which is an extraordinarily busy area from around 3.30 pm till midnight.
This is a place where apart from security personnel, there are bound to be parking attendants and railway employees as well.
The IO in his cross-examination has admitted that he did not make any effort to associate any such member of the security forces (including the railway forces, parking attendants or railway employee). In other SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 26 of 29 words no sincere effort was made.
21. It has almost become a routine practice for the police to state that passersby were asked to join and they declined and went away without disclosing their names. The Court should be way of readily accepting such explanations. In a case where a raid takes place in broad daylight in a busy area, a more convincing explanation has to be offered why despite remaining at the spot for about eight hours the police did not find a single public witness to join the proceedings. (emphasis supplied).
39. Learned counsel for accused has also relied upon the following judgments to submit that non-joining of public persons is fatal to the case of the prosecution:-
1. Krishan Chand Vs State of H.P., 2017 (3) JCC (Narcotics) 112.
2. Inder Dev Yadav and Ors; 2014 (3) JCC (Narcotics) 129.
3. Rattan Lal Vs State, 32 (1987) DLT 1.
4. Ritesh Chakarvarti Vs State of MP, (2006) 12 SCC 321.
4. Non compliance of procedure qua case property :-
40. Further - also pertinent to note that Register no. 19 reflects the movement of the case property but pertinent to note that it is no where reflected in the register that the pullanda / seizure memos were handed over to PW9 Ct. Sunil who had allegedly taken the same for analysis to FSL. He also admitted in cross examination that no written directions were given to him for taking the samples to FSL Rohini by the IO of the case. It is also not produced on record that the entries authorizing him to take the samples of these contrabands were officials movements of the case property. Certainly the entries ought to have been effected in that regard, and non compliance of the same SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 27 of 29 raises suspicion regarding the case properties and the manner in which they were handed over by the IO during investigation, hence tampering can not be ruled out.
5. Conspiracy not proved
41. In so far as the charge of conspiracy u/s 29 is concerned, I have no hesitation to say there is absolutely no evidence in that regard to show that both the accused persons entered into a conspiracy to sell the ganja. Pertinently prosecution witnesses have not even testified that accused persons were dealing in the contraband/ganja through a well hatched conspiracy or that they were acting in furtherance thereof.
42. Prosecution has failed to lead any substantive evidence to show the means adopted in the alleged illegal acts done work in furtherance of the object of the conspiracy. It is settled law that circumstances in a case, when taken together on their face value should indicate the meeting of minds between the conspirator for the intended object of committing an illegal act or an act which is not illegal committed by illegal means. There is nothing on record to connect the accused persons with the commission of the alleged offence of conspiracy for which charge u/s 29 of NDPS Act was framed.
Conclusion :-
43. In view of the aforesaid discussion, I am of the view that prosecution has failed to bring home the guilt of the accused persons beyond reasonable doubt to the effect that on 12.09.2016 they both entered into a criminal conspiracy for dealing with sale and purchase of ganja ( cannabis) and at about 07.40 a.m at bus stop Pragati Maidan, opposite Bhairon Mandir, Delhi accused Sanjay Kumar was found in possession of one plastic katta containing total 17 kg ganja and accused Daleep Kumar Yadav found in possession of one plastic katta containing total 26 kg ganja. Hence, both the accused are acquitted of SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 28 of 29 the charges levelled against them under NDPS Act.
44. Supdt. Jail is directed to release both the accused persons if they are not not required in any other case.
45. Accused persons have already furnished their respective bail bonds in compliance of Section 437A Cr.PC which have been accepted and shall remain effective for a period of 6 months.
46. The articles seized vide seizure memos and personal search memos of respective accused persons be released to them against proper acknowledgment and after keeping copy of the same on record.
47. Case property be confiscated to State and the same may be disposed off as per rules and procedures after the lapse of period of filing of appeal.
48. File be consigned to record room after completion of all other necessary formalities.
Announced in the open court on the 31.05.2019.
( ANIL ANTIL )
Addl. Sessions Judge -04,
New Delhi District, Patiala House Courts,
New Delhi/31.05.2019
SC no.84/2017 FIR No.155/16 State Vs. Daleep Kumar Yadav & Sanjay Kumar Page 29 of 29