Delhi District Court
State vs Deepak Kumar on 8 July, 2014
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
State Versus Deepak Kumar
S/o Sh Ram Kishan
R/o M-32
Majnu Ka Tilla
Civil Lines
Delhi
SC No. 24A/11
FIR No. 272/11
U/S: 20 NDPS Act
PS: Mehrauli
Date of institution : 05.10.2011
Date of reserving judgment : 08.07.2014
Date of pronouncement : 08.07.2014
Decision : Acquitted
Computer ID : 02406R0258932011
J U D G M E N T
The accused has been sent to face trial by the SHO, PS Mehrauli, on allegations that on 17.06.2011, a police party of the above PS consisting of PW11 SI Om Prakash, PW12 SI Ashok Kumar, PW15 Ct. Khem Singh Negi and SI Shivdev Singh was on patrolling duty in the area of the PS vide DD entry no. 22B Ex. PW3/A (copy thereof is also Ex. PW3/DA) and when they were present at the 100 feet road, Chhatarpur Road, Delhi at about 5:00 PM, they had noticed two persons coming from the side of M. G. Road towards Chhatarpur Mandir. On seeing the police officials, the above two persons had suddenly turned back SC No. 24A/11 State Vs. Deepak 2 and started moving fastly and they both were apprehended by the police party on suspicion. On enquiry, the identity of the person apprehended by the IO/PW12 SI Ashok Kumar and Ct. Khem Singh Negi was revealed as the accused Deepak Kumar of this case and the identity of the other person apprehended by PW11 SI Om Prakash and SI Shivdev Singh was revealed as one Bishal Magar.
2. It is alleged that at the time of their apprehension, both the above persons were carrying one polythene each in their hands and on checking, these polythenes were found to contain a transparent polythene each, which further contained some black colour substance wrapped in khakhi colour tapes and on enquiry both the above persons had also disclosed this substance to be charas. The IO/PW12 had immediately informed the SHO/PW5 Inspector Dilip Kumar regarding the recovery of the above charas and the SHO/PW5 in-turn had directed him to take further action with regard to the charas recovered from the possession of the accused Deepak Kumar and separate proceedings were directed to be conducted by PW11 SI Om Prakash regarding the charas recovered from the possession of the other accused Bishal Magar.
3. Thereafter, the above two polythene bags being carried by the accused persons were further checked and on checking of the polythene carried by the accused Deepak, which was of white colour and having printed leaves of blue colour, by the IO/PW12 SI Ashok Kumar, it SC No. 24A/11 State Vs. Deepak 3 was found to contain some black colour small balls and wide strips (patties) and the same appeared to be charas from their smell and appearance. The IO/PW12 had requested 4-5 passersby to join the proceedings, but none of them had agreed to join and all left while giving their genuine excuses and no notice could be given to any of them due to paucity of time. The IO/PW12 had then served upon the accused Deepak a written notice U/S 50 of the NDPS Act Ex. P6 (carbon copy thereof is Ex. PW12/A) apprising him of his legal rights that in view of recovery of the above charas from him and keeping in view the possibility of further recovery of some narcotic drug from his possession, his search was required to be conducted and it was his legal right that the same can be conducted in the presence of a Gazetted Officer or a Magistrate. However, vide his written reply Ex. PW15/A given on the carbon copy Ex. PW12/A of the above notice in his own handwriting, the accused had refused to exercise his above right. He had further refused to take the search of the police party, which was also offered to him by the IO/PW12.
4. It is further alleged that thereafter the IO/PW12 had weighed the above charas found in possession of the accused and the total weight of the charas, alongwith the transparent polythene, was found to be 1.100 KG and the weight of the charas found in the shape of small balls came to be 720 Gms and of that found in strips form came to be 380 Gms. The IO/PW12 had taken SC No. 24A/11 State Vs. Deepak 4 out two samples of 50 Gms each separately from the charas found in both the above forms, i.e. two samples from the charas found in ball form and two samples from charas found in strip form, and these samples were put in separate polythenes and then converted into cloth parcels and the samples drawn from charas in ball form were numbered as S1-A and S1-B and the samples drawn from charas in strip form were numbered as S1-C and S1-D and these parcels were sealed with the seals of AK. The remaining charas of both the above forms was put back in the same polythenes and a separate cloth parcel thereof was also prepared and was marked as S1 and sealed with the same seal. Form FSL was filled up at the spot and the above seal also affixed thereon and the seal after use was handed over to PW11 and the above parcels and FSL form were taken into possession vide seizure memo Ex. PW12/B.
5. It is further alleged that thereafter the IO/PW12 had prepared the rukka Ex. PW12/C and handed over the rukka as well as all the above sealed parcels, FSL form and copy of the seizure memo to PW15 Ct. Khem Singh Negi with directions to go to the PS and to hand over the rukka to the DO and the parcels and other documents to the SHO of the PS. On the basis of the above rukka, the FIR Ex. PW8/A of this case was got registered by the DO/PW8 HC Subhash Chandra through the computer operator and a copy of FIR and the original rukka were handed over by him to PW15 with directions to further hand it over to SC No. 24A/11 State Vs. Deepak 5 PW12 SI Narpat Singh to whom the further investigation of the case was assigned on the directions of the SHO. PW15 had handed over the above parcels and other documents to the SHO/PW5, who had deposited the same with the MHC(M)/PW9 HC Jaibir Singh in the malkhana of the PS, after counter-sealing the above parcels and FSL form with his seals of DK and completing some other formalities, and he also recorded one DD no. 26A Ex. PW5/A in this regard. On his arrival at the spot, alongwith PW15, PW13 SI Narpat Singh was handed over the custody of the accused as well as the relevant documents of the case by the first IO/PW12 and PW13 made some enquiries from the accused as well as the first IO/PW12 and had then prepared the site plan Ex. PW13/A of the spot, on the pointing out of PW12, arrested the accused vide memo Ex. PW12/D, conducted his personal search vide memo Ex. PW12/E and recovered the original notice Ex. P6 and some cash amount in his search, which were subsequently deposited by him in the malkhana.
6. It is further alleged that thereafter, during the interrogation, the accused had also made one disclosure statement Ex. PW13/B before PW13 SI Narpat Singh on the next day, i.e on 18.06.2011, and in the above statement, he disclosed that he was residing in the area of Majnu Ka Tilla, Delhi since 20.05.2011 and was doing the business of cloths, which he was bringing from Nepal and selling in the areas of Gaffaar Market and Raigerpura, Delhi. He further disclosed that during his SC No. 24A/11 State Vs. Deepak 6 above period, he met and became friendly with one Nepali person named Vikas Magar, who used to bring charas from Kullu, H. P. and the other accused Bishal Magar, who was apprehended alongwith him at the spot and was the nephew of Vikas Magar, supplied the same to him and he further used to supply the same in the areas of NCR, Delhi through different persons. The accused was then produced in the court and taken on police remand. PW13 had also sent one intimation U/S 57 of the NDPS Act Ex. PW6/A to the ACP, Mehrauli/PW6 Sh Rajender Singh on that day, through the SHO/PW5, regarding the arrest of the accused and seizure of the above charas. On the next day, i.e. on 19.06.2011, the accused had also led a police team to his rented premises in H. No. M-32, Majnu Ka Tilla, Civil Lines, Delhi, in pursuance of his above disclosure statement, and had got recovered two electronic weighing machines, one brown colour tape roll and one roll of transparent polythene, which according to him were used in weighing and packing of the charas, and these articles were seized vide seizure memo Ex. PW4/A and subsequently deposited in the malkhana. On 22.06.2011 two sealed sample parcels marked S1-A and S1-C, alongwith the FSL form, were also got deposited with FSL, Rohini by PW13 SI Narpat Singh, through PW2 Ct. Ajay Kumar, for expert opinion and vide FSL report Ex. PW1/A dated 29.08.2011 received subsequently, which is per-se admissible in evidence U/S 293 Cr.P.C., both the above samples were found positive for charas. After recording the statements of witnesses and completing some other formalities of the SC No. 24A/11 State Vs. Deepak 7 investigation, a charge sheet for commission of the offence punishable U/S 20 of the NDPS Act was ultimately prepared against the accused and filed in the court.
7. The charge sheet was filed in this court on 05.10.2011 and cognizance of the above offence was taken on the same day. Since the accused was found to be in possession of a commercial quantity of charas, vide order dated 05.11.2011 a prime facie case for commission of the offence punishable U/S 20(b)(ii)(C) of the NDPS Act was found to be made out against him and a charge for the above said offence was also framed against him on the same day.
8. It is necessary to mention here that the other accused named Bishal Magar, who was allegedly apprehended with the accused Deepak, was also alleged to be found in possession of 1.098 KG of charas and a separate case vide FIR No. 271/11 U/S 20 of the NDPS Act was registered against him, but since he was found to be a juvenile, he was charge-sheeted before the Juvenile Justice Board-1 (JJB-1) and already stands acquitted vide judgment dated 05.02.2013.
9. The prosecution in support of its case has examined on record total 14 witnesses (it is also necessary to mention here that though the number of witnesses examined on record is 14, but inadvertently no witness has been examined at serial no. 14 and Ct. Khem SC No. 24A/11 State Vs. Deepak 8 Singh Negi has been inadvertently numbered as PW15 instead of PW14). The names and the purpose of examination of the above witnesses is being stated herein below:-
10. PW1 ASI Balwan Singh was only a part and last IO of the case as he was assigned the investigation on transfer of SI Narpat Singh/PW13. He had only collected the FSL report Ex. PW1/A from the malkhana, alongwith the forwarding letter of the FSL Ex. PW1/B, and had prepared the charge sheet and filed it in the court.
11. PW2 Ct. Ajay Kumar is the person who had deposited the above two sealed sample parcels in the office of FSL, Rohini, alongwith the FSL form, on 22.06.2011.
12. PW3 W. Ct. Rajesh was working as a DD writer of the PS on 17.06.2011 and had recorded the departure DD No. 22B Ex. PW3/A of the above police officials from the PS for patrolling.
13. PW4 Ct. Ashok Kumar had only joined the investigation of this case on 19.06.2011, with PW13 SI Narpat Singh, when the accused was taken to the areas of Noida, Chhatarpur Pahari and Majnu Ka Tilla etc and he is a witness of recovery of the above weighing scales and rolls from the tenanted premises of the accused at Majnu Ka Tilla and the seizure thereof vide memo Ex. PW4/A. SC No. 24A/11 State Vs. Deepak 9
14. PW5 Inspector Dilip Kumar is the SHO of the PS at the relevant time and he had directed the IO/PW12 SI Ashok Kumar to take action as per law when he was informed about the apprehension of the accused and his above associate with charas. Subsequently, he was also handed over the above sealed parcels of samples and case property etc by PW15 and had deposited the same in the malkhana and also recorded the above DD entry no. 26A Ex. PW5/A with regard to the deposit thereof. He had also subsequently forwarded the above information U/S 57 of the NDPS Act Ex. PW6/A to the ACP on 18.06.2011.
15 PW6 Sh Rajender Singh was the ACP of sub- division, Mehrauli at the relevant time and he had seen and endorsed the above original information Ex. PW6/A.
16. PW7 HC Ranjeet was the Reader of the above ACP on 18.06.2011 when the above information was received in their office and was put up by him before the ACP. He has stated that the above information was entered in the dak register of their office at serial no. 3517 and the said entry was made by one Ct. Ram Singh.
17. PW8 HC Subhash Chandra is the DO of the PS at the relevant time and he has got recorded the FIR Ex. PW8/A of this case through the computer operator and had also made an endorsement Ex. PW8/B on the original rukka in this regard.
SC No. 24A/11 State Vs. Deepak 10
18. PW9 HC Jaibir Singh is the MHC(M) of the PS and he has deposed regarding the deposit of the above parcels of case property and samples, the personal search articles of the accused and the above weighing machines etc in the malkhana of the PS at different times and by different IOs. He has also proved the entry at serial no. 3280 Ex. PW9/A regarding the deposit of the parcels of the case property and samples etc, entry at serial no. 3282 Ex. PW9/B regarding the deposit of the personal search articles of the accused and entry at serial no. 3285 Ex. PW9/C regarding the deposit of the above weighing scales etc as all these entries were made by him. He has also proved the road certificate no. 41/21/11 Ex. PW9/D dated 22.06.2011 vide which the above two sample parcels were sent by him to FSL for testing and has further brought on record the FSL receipt as Ex. PW9/E.
19. PW10 Sh Narender is the landlord of the accused in the above house premises bearing no. M-32, Majnu Ka Tilla, Civil Lines, Delhi and has only stated that the accused was a Nepali National and was his tenant in the said house.
20. PW11 SI Om Prakash, PW12 SI Ashok Kumar and PW15 Ct. Khem Singh Negi are the members of the above police team which had apprehended the accused from the above place and had recovered the above contraband substance. They all have broadly deposed on the above SC No. 24A/11 State Vs. Deepak 11 lines of the prosecution story, proved the relevant documents prepared by IOs at the spot and have also identified the accused as well as the entire case property.
21. PW13 SI Narpat Singh is the second IO of this case and he has also broadly deposed on the above lines of the prosecution story regarding the investigation conducted by him at the spot, as well as subsequently, after the registration of the case. He has also identified the accused and his personal search articles.
22. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record by the prosecution was put to the accused in his statement recorded U/S 313 Cr.P.C. and the same was denied by him to be incorrect. He has claimed himself to be innocent and to have been falsely implicated in this case while saying that no charas or other contraband substance was ever recovered from his possession and in-fact he and the other accused Bishal Magar were both picked up from the house of Bishal and Vikas Magar in the area of Kotla Mubarakpur, the address of which he does not remember. He has stated that they all are Nepalis and he knew Vikas Magar for the last about 7-8 years and he was residing in the above house at Majnu Ka Tilla as a tenant since the year 2005. He has also stated that due to the death of his (Vikas Magar's) mother, Vikas Magar was to return to Nepal SC No. 24A/11 State Vs. Deepak 12 around the time of his (accused Deepak's) apprehension in this case and while leaving for Nepal, Vikas Magar asked him to reside with his (Vikas Magar's) nephew Bishal Magar in their house at Kotla Mubarakpur and to take care of Bishal Magar. He has also claimed that he knew the accused Bishal Magar for the last 3-4 days only since when he had started residing with him (Bishal Magar) in their house in the area of Kotla Mubarakpur, from where they both were picked up by the police and falsely implicated in this case. He has also claimed that his signatures were taken by the police on many blank and written documents and he was also made to write something.
23. Though, initially the accused had chosen not to lead any evidence in his defence, but subsequently he had examined one Sh Sunil Dhyani, Ahlmad, JJB-1, Kingsway Camp, in his defence as DW1 and this witness has produced on record a copy of the judgment dated 05.02.2013 of the JJB-1 Ex. DW1/A (collectively), alongwith some order sheets and other documents of the above case titled State Vs. Bishal Magar, FIR No. 271/11, PS Mehrauli, U/S 20/61/85 NDPS Act. He has also produced on record a copy of the statement of SI Om Prakash dated 06.10.2012 Ex. DW1/B recorded as PW5 in the above case.
24. It is well settled that the onus of proving its case beyond reasonable doubts is always upon the SC No. 24A/11 State Vs. Deepak 13 prosecution and in a case under any enactment like the NDPS Act laying down severe punishments, this onus becomes more high in degree and the duty of the court is to ensure that the provisions of such an enactment are complied with strictly and a higher degree of assurance is required for convicting the accused. Reference in this regard can be made to the judgment of the Hon'ble Supreme Court in case of State of Punjab Vs Baldev Singh 1999 Drugs Cases 150 : (1999) 3 SCC 977, wherein it was held that:-
"It must be born in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed".
25. Reference can also be made to another judgment of the Hon'ble Apex Court in the case of Mausam Singh Roy Vs State of WB (2003) 12 SCC 377 wherein also it was held that it is a settled principle of criminal jurisprudence that the more serious the offence is, the stricter is the degree of proof, since a higher degree of assurance is required to convict the accused.
26. Further, though in terms of the provisions contained U/S 35 and 54 of the NDPS Act when an accused is found to be in possession of a contraband substance, it is for him to explain his above possession and further if any criminal intent to possess such substance SC No. 24A/11 State Vs. Deepak 14 by him is required to be proved, then the court can presume the existence of such criminal intent on the part of the accused. However, it also well settled that even despite the above presumptions contained in the above said Sections, the initial burden of proving its case always remains upon the prosecution. Reference in this regard can be made to another judgment of the Hon'ble Supreme Court in case of Noor Aga Vs State of Punjab & Anr. 2008(3) JCC (Narcotics) 135, wherein the following observations were made by their Lordships:-
"Section 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is 'preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
SC No. 24A/11 State Vs. Deepak 15
27. When the prosecution case and the evidence led on record is tested on the touchstones of the principles laid down in the above said cases, it is observed that the same do not inspire any confidence and are not sufficient to entail the conviction of the accused for a serious offence U/S 20 (b)(ii)(c) of the NDPS Act, for which he has been charged and which carries a minimum term of rigorous imprisonment of 10 years extending up to 20 years and also a fine of not less than Rs 1 Lac and extending up to Rs 2 Lacs. This is so because the statements of the prosecution witnesses examined and the evidence led on record suffers from various inherent contradictions and inconsistencies and the same cannot be relied and acted upon by this court for conviction of the accused for such a serious offence.
28. One material inherent contradiction in the case of the prosecution is that according to the rukka Ex. PW12/C as well as the depositions made by all the above three material witnesses of recovery on record, i.e. PW11 SI Om Prakash, PW12 SI Ashok Kumar and PW15 Ct. Khem Singh, it is a case of chance recovery of charas from the possession of the accused. They all have deposed on record that they were present at the spot in connection with their duties for patrolling and detection of crimes etc. when the accused Deepak of this case and the other accused Bishal Magar of case FIR No. 271/11, PS Mehrauli, as stated above, were seen coming SC No. 24A/11 State Vs. Deepak 16 together on foot from the side of MG Road towards the Chattarpur Mandir side. Both the accused were apprehended on the basis of suspicion only as after seeing the police officials they had suddenly turned back and started walking fastly. Such depositions have been made by all the above three witnesses in their examinations-in-chief and they all have even deposed on the above lines during their cross examinations and this is also the case of the prosecution as reflected in the rukka Ex. PW12/C as well as in the chargesheet.
29. However, when the case was fixed for final arguments, after completion of the prosecution evidence and recording the statement of the accused U/S 313 Cr.P.C., PW11 SI Om Prakash was permitted to be recalled for his further cross examination vide order dated 14.03.2014 of this court, on an application U/S 311 Cr.P.C filed on behalf of the accused, as in the above judgment/order of acquittal dated 05.02.2013 of the JJB-1 of the other accused Bishal Magar passed in FIR NO. 271/11, as well as in a copy of the statement of PW11 SI Om Prakash made in that case as PW5, which are Ex. DW1/A (collectively) on record, it was found stated/recorded as if the above police officials were present at the above spot on the basis of some prior secret information. Accordingly, PW11 SI Om Prakash was further cross examined in this court on 03.05.2014 (inadvertently the date is typed as 02.05.2014 in his above statement).
SC No. 24A/11 State Vs. Deepak
17
30. It is observed that in his above statement
DW1/A made in the above case FIR No. 271/11 by PW11, while deposing as PW5, though in his examination-in-chief he has stated that they were present at the spot on the above date and time regarding obtaining the secret informations, but during his cross examination conducted in the said case by Sh Vijay Dilawari, Ld defence counsel representing the accused Bishal Magar in the said case, he has also stated that not only they were present at the above spot on the basis of some prior secret information regarding carrying charas etc. by some boys, but even the secret informer was present with them at the spot till the apprehension of the said boys. Some of the depositions made by this witness in the said case on the above material aspect are being reproduced herein below:
"We had the information regarding the incident in advance but we were not asked by anyone to reach at the place of incident. We had the information in advance that some boys used to carry the charas. When we were on patrolling, one male secret informer aged around 32 years met us near Chattarpur Mandir and gave us the information. I do not remember the time when we received the information. The secret informer informed only to me about the incident, but I did not record the version of that secret informer. The secret information was received at afternoon. Two boys were seen coming after 2 ½ hours after receiving the information. The secret informer was present at the spot till the apprehension of both the boys. We SC No. 24A/11 State Vs. Deepak 18 all were in civil dress. We were in civil dress only for the reason that culprits not to run away by seeing us in police uniform. Again said I and SI Shivdev were in police uniform and others were in civil dress."
31. It cannot be ignored that PW11 SI Om Prakash is not only a material witness of this case, but he is also a responsible officer as he is an officer of the rank of Sub-Inspector and was also entrusted with and had conducted the investigation of the above other case FIR No. 271/11 registered against the other accused Bishal Magar. He was also duly confronted with the above depositions made by him in his previous statement Ex. DW1/A (collectively) during his further cross examination conducted by Ld defence counsel on 03.05.2014. When he was so confronted, he has tried to come up with an explanation by volunteering himself that at the time of recording of his above statement before JJB-1 he was not well and had undergone some angioplasty around that time. When he was questioned by Ld defence counsel as to whether he had apprised the Ld Presiding Officers of JJB-1 regarding his poor health and inability to depose on that day, he had answered in negative, but had again volunteered that he had apprised about his poor health to the Ld Prosecutor of the court, which is also not reflected anywhere in the above statement or the judgment/order Ex. DW1/A. However, his above depositions made, as having been volunteered in the form of his above SC No. 24A/11 State Vs. Deepak 19 explanation, only appear to be an afterthought and an attempt to overcome the above material contradiction in his depositions and he even tried to be over smart while saying that he even does not remember now as to whether he had read his above statement or not before signing the same. Though he also admitted that he always signs the documents after reading the contents thereof, but he again volunteered that he was little bit weak in English language, which is again an attempt to wriggle out of what he had stated in his above statement on the above aspect.
32. Hence, the above depositions made by him in the above case regarding the apprehension of both the above accused with charas on the basis of some prior secret information and the informer also being present with them at the spot till the apprehension of the accused not only affect adversely his credibility as a witness, but the same also make the credibility of the other two witnesses of recovery as well as the entire case of the prosecution to be doubtful and the credit of this witness as well as the credibility of the prosecution case stands shaken extremely and the evidence led on record and the case of the prosecution can be disbelieved and discarded on this single ground only.
33. Again nowhere in the rukka Ex. PW12/C, the chargesheet or the depositions made by the above three witnesses of recovery, it has been specifically stated SC No. 24A/11 State Vs. Deepak 20 by any of them as to whether they were in their official uniforms or in civil dresses at the relevant time of apprehension of the accused. However, it appears that they all were in uniforms because as per their case the above two accused had suddenly turned back and started walking fastly on seeing them, which could not have otherwise happened if they were in civil dresses, unless there is something to show on record that they were already known to the accused persons, which is not the case of the prosecution.
34. But a perusal of the above statement Ex. DW1/A (collectively) made by PW11 SI Om Prakash in the above other case, as reproduced above, shows that when he was questioned in this regard by Ld defence counsel he has specifically stated that they were present at the spot in the civil dress and they were in the civil dress because the culprits may not run away on seeing them in uniform. However, immediately thereafter, he again stated that he and SI Shivdev Singh (not cited as a witness in this case) were in police uniform while the others were in civil dress. During his above further cross examination dated 03.05.2014 also, he was questioned in this regard by Ld defence counsel representing the accused Deepak of this case, but he was not able to recollect as to who amongst them was or was not in uniform on that day. The above depositions made by this witness in the above other case regarding their being in civil dress is also a serious contradiction in SC No. 24A/11 State Vs. Deepak 21 the prosecution story and it also makes the prosecution case to be doubtful and this was also one of the major reasons for acquittal of the other accused Bishal Magar in the said case by Ld Presiding Officers of JJB-1, as per the above judgment which is a part of the documents Ex. DW1/A (collectively) on record.
35. Further, according to PW11 and PW12, they all had left the PS at around 12:00 noon on that day for patrolling purposes and PW12 has also stated that they all had left on foot and were not in any vehicle. He has also stated on record that they were on foot when both the accused were seen by them. However, PW15 says on record that he had taken the rukka on his motorcycle and he had further told the number of the said motorcycle to be 2367, though he also stated that he does not remember its complete registration number. He has also stated that they all were together when they had left the PS and had also remained together throughout and till the accused was seen. Hence, there is no explanation on record from any of the above three witnesses as to when they were on foot when they left the PS and had also remained so throughout the time of their patrolling and till the apprehension of the accused, then how PW15 was having his above motorcycle with him at the spot or how he could have taken the rukka and the case property from the spot to the PS on the said motorcycle. Moreover, he was not even able to tell the complete registration number of his own motorcycle nor there is any reference of the said SC No. 24A/11 State Vs. Deepak 22 motorcycle in any document of this case.
36. Apart from all the above, no public person or independent witness has been joined by any of the IOs at any stage of the investigation conducted at the spot and even if it believed to be a case of chance recovery, the depositions made by the above witnesses regarding the making of some requests by the IOs to some passersby to join the proceedings appear to be made in a very vague and routine manner and are not inspiring any confidence. Though, the joining of the public witnesses and their examination on record in such a case is not always mandatory and further though the depositions of the police witnesses alone cannot be discarded due to the reason of their office alone, but the joining and examination of the public witnesses in such a case is certainly desirable to give credence and corroboration to the statements of the police witnesses. In the absence of their non joining also in this case, the other evidence led on record in the form of testimony of the police witnesses and the documents prepared by them does not inspire much confidence and is even otherwise found to be suffering from some material inherent contradictions and inconsistencies.
37. Further, the evidence led on record regarding the recovery of the above two weighing scales and some rolls of tapes etc from the above tenanted premises of the accused in the area of Majnu Ka Tilla and in pursuance SC No. 24A/11 State Vs. Deepak 23 of the disclosures made by him is also not found to be convincing and worthy of acceptance. As discussed above, the accused was apprehended on 17.06.2011 at around 5:00 PM from the above spot and with the above charas and his above disclosure statement Ex. PW13/B was recorded only on the next date, i.e. on 18.06.2011, during the investigation conducted by the second IO/PW13 SI Narpat Singh. The above disclosure statement is legally not admissible in evidence in the absence of any further recovery of contraband or the discovery of some new facts made in pursuance thereof. Though, it is a case of the prosecution that the above weighing scales etc were got recovered by the accused only in pursuance of the disclosures made by him, but it is observed that his above disclosure statement Ex. PW13/B is silent regarding the availability or concealment etc of the said scales or rolls etc at his above tenanted premises or the possibility of the accused leading to the recovery of the same. Hence, if the accused had made any such disclosures regarding the above articles after his arrest in this case or prior to that, there is no reason as to why his such disclosures were not incorporated in his above statement Ex. PW13/B and the absence thereof in his above statement is a ground not only to doubt the above claim of the IO regarding the above disclosures having been made by the accused, it is also a ground to view with suspicion the alleged subsequent recovery of the above articles in pursuance thereof SC No. 24A/11 State Vs. Deepak 24
38. Again, according to the depositions made by one of the two police witnesses of the alleged recovery of articles, i.e. PW4 Ct. Ashok who was with the second IO/PW13 at the relevant time, the said recovery was made during around the midnight of 18/19.06.2011 as he has stated on record that when they had reached at the said house, the same was not found locked and was open and only its door was found bolted from outside. No neighbour of the accused from the said place was attempted to be joined in the above search of the house or recovery proceedings of the above said articles and even the depositions made by both of them do not suggest that they had made any sincere efforts to join the landlord/owner of the said premises. Moreover, since the house was found to be in unlocked condition, it cannot be said that the articles alleged seized from the said house were in exclusive possession of the accused. The IOs have also not got conducted any scientific tests to get determined as to whether the transparent polythene and tape rolls used in the packing of the above contraband substance recovered in this case were used from or part of the rolls subsequently recovered from the above premises of the accused and thus even the above rolls cannot be said to have been connected with this case. The IO/PW12 has also admitted that there were no specific marks of identification on the above scales to connect the same with the accused.
39. Further, a search warrant or authorization for SC No. 24A/11 State Vs. Deepak 25 searching the above said house was also required by the second IO/PW13 prior to his proceeding for the said search, but there is nothing on record to show that he obtained or even attempted or desired to obtain the same. Since he had proceeded to take search of the above house premises of the accused during the night time, i.e. after sunset and before sunrise, and also without such a search warrant or authorization, he was required in the alternative to record his reasons for the urgency in proceeding for the said search without such a warrant or authorization, but he did not even record the said reasons. Hence, there is also a non compliance of the mandatory provisions of Sections 41 and Section 42 NDPS Act to that extent and the same not only adversely affects and makes illegal the seizure of the articles effected from the said house, but it also affects the legality of the seizure of the above contraband substance, i.e. charas, earlier found allegedly in possession of the accused. Reference in this regard can be made to the judgments in cases of State of Punjab Vs. Balbir Singh 1994 SCC (Crl.) 634 and Mohinder Kumar Vs. The State, Panji, Goa AIR 1995 SC 1157.
40. In view of the above, it is held that the evidence led on record lacks corroboration, consistency and reliability and the same is not sufficient to hold the accused guilty for the above said charge. The accused is, therefore, acquitted of the above charge SC No. 24A/11 State Vs. Deepak 26 giving benefit of doubt.
41. The case property be confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of the appeal to be filed against this judgment, if any, or the orders of the appellant court, as the case may be.
42. It is found that the bond U/S 437A Cr.P.C is yet to be furnished by the accused. Hence, the case file will be consigned to record room only after the above bond is furnished by the accused.
Announced in the open
court on 08.07.2014 (M.K.NAGPAL)
ASJ/Special Judge, NDPS
South District
Saket Court Complex
New Delhi
SC No. 24A/11 State Vs. Deepak