Delhi District Court
State vs . (1) Patrick on 6 July, 2013
SC No. 16/09
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL
JUDGE NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 16/09
ID No. 02403R0241312009
FIR No. 15/09
PS Special Cell
u/s 21 of NDPS Act
State Vs. (1) Patrick
S/o Wandji
r/o Abidjan, De Cote D' Ivoire, Africos
(2) Abdullah
S/o Mohd. Aref
r/o Paol Huissan, Gosali, Kochai, Lalandarya,
Kabul, Afghanistan
(3) Rupal Vaishnav
d/o Sh. Kamlesh Kumar Vaishnav
r/o 236, DDA Flats, Vasant Apartment,
New Delhi
Date of Institution : 13.07.2009
Judgment reserved on : 01.07.2013
Date of pronouncement : 06.07.2013
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21 of the Narcotic Drugs and FIR No.15/09 Page 1 of 35 SC No. 16/09 Psychotropic Substances Act (hereinafter referred to as 'NDPS Act').
2. Briefly stated the allegations against the accused persons, as contained in the chargesheet and as culled out from the documents filed alongwith the chargesheet, are as follows:
(a) In the month of March, 2009, a few days prior to 26/3/2009, an information was being received at Special Cell/SR that one Afghani national along with his Indian wife is indulging in drug trafficking and that the couple had brought a huge quantity of narcotic drugs from Afghanistan and are trying to sell it to prospective customers. Intelligence sources were deployed and the information was further developed and on 26.03.2009 at about 07.00 PM, one secret informer telephonically informed SI Girish that the Afghan National and his wife will be coming on the said day opposite Khalsa College beside ganda nala at 09:30 PM to deliver narcotics drugs to an African national.
(b) The information was brought to the notice of senior officers who gave directions for necessary action to be taken. DD entry no. 12 was also lodged in this regard in the Special Cell and as per the directions of the senior officials, a raiding team comprising of Insp. Badrish Dutt, W/SI Neeru Bhakuni, SI Girish Kumar, SI Dinesh Pal, ASI Rajender Singh, HC Badri Prashad, Ct. Nand Kishore, Ct. Ravinder and Ct. Kishore Singh, reached near international Students House, Delhi University at FIR No.15/09 Page 2 of 35 SC No. 16/09 about 9:00 PM where the informer was present as per directions.
(c) At the spot, SI Girish Kumar requested 56 passersby to join the raiding team but none of them agreed to do so. Thereafter, the members of the raiding team positioned themselves beside Ganda Nala, Near Gate no. 1 of the mall apartment, opp. Khalsa College, Delhi and started waiting. At about 9:40 PM, one dark blue colour Honda Activa (two wheeler vehicle) bearing no. DL 9SS 3376 came from the side of Model Town side and the secret informer identified its driver and pillion rider as the Afghani national and his wife, the suspects. The Afghani national was seen carrying a black colour laptop bag on his back across his shoulder. The two wheeler scooter stopped and the suspects started waiting for someone.
(d) It is asserted that at about 9:45 PM, one African looking person on foot came from the Model Town side and stopped near the couple and started talking to them. After a brief talk, the lady with the Afghani person picked out one packet after opening the bag being carried by the Afghani national and handed it over to the African person and at this stage the members of the raiding team surrounded all the said persons.
(e) The IO introduced himself and the members of the raiding team to the suspects and apprised them about the information within his knowledge. On enquiry, the said persons revealed their names as Patrick, FIR No.15/09 Page 3 of 35 SC No. 16/09 Abdullah and Rupal Vaishnav. They were then informed about their legal rights and were issued notices u/s 50 of NDPS Act and were made to understand that they have a legal right to be searched before a Magistrate or a Gazetted Officer. The accused persons however refused to exercise the said right and stated that since they have been caught, they do not want the presence of a Gazetted Officer or a Magistrate and the police officials can take their search.
(f) Thereafter, on the search of accused Patrick by IO Girish Kumar, from his right hand one packet on which 'Haldiram's Premium Son Papdi' was written, was recovered. On opening the same, it was found containing a plastic container which in turn was found containing a polythene pack wrapped with brownish adhesive tape. The polythene pack was then found containing off white colour powder and the accused Patrick confirmed it to be heroin. The said powder on testing with field testing kit also gave positive result for heroin. The recovered heroin alongwith the polythene was weighed and its total weight came out to be 1 kg.
(g) One sample of 50 grams was then taken out from the heroin and put into a polythene bag and converted into white colour cloth pullanda and given mark S1. Remaining heroin was kept in the same polythene from which it was recovered and the polythene was kept in the FIR No.15/09 Page 4 of 35 SC No. 16/09 plastic container and again was kept in the same carton of Haldiram Son Papdi and thereafter converted into cloth pullanda and given mark R1.
(h) Thereafter, on the search of accused Abdullah by SI Girish Kumar, from the black colour laptop bag which was hanging on his back across his shoulder, one packet on which 'Haldiram's Premium Son Papdi' was written, was recovered. On opening the same, it was found containing a plastic container which in turn was found containing a polythene pack wrapped with brownish adhesive tape. The polythene pack was then found containing off white colour powder and the accused Patrick confirmed it to be heroin. The said powder on testing with field testing kit also gave positive result for heroin. The recovered heroin alongwith the polythene was weighed and its total weight came out to be 1 kg.
(i) One sample of 50 grams was taken out from the said heroin and put into a polythene bag and converted into white colour cloth pullanda and given mark S2. Remaining heroin was kept in the same polythene from which it was recovered and the polythene was kept in the plastic container and again was kept in the same carton of Haldiram Son Papdi and thereafter converted into cloth pullanda and given mark R2.
(j) Thereafter, on the search of accused Rupal Vaishnav by W/ASI Neeru Bhakuni, from the right pocket of the trouser worn by her, one polythene pack wrapped with brownish tape was recovered which on FIR No.15/09 Page 5 of 35 SC No. 16/09 opening was found containing off white colour powder, which Rupal confirmed to be heroin, which also on testing with field testing kit, gave positive result for heroin. The recovered heroin alongwith the polythene was weighed and its total weight came out to be 15 grams.
(k) One sample of 5 grams was taken out from the said heroin and put into a polythene and converted into white colour cloth pullanda and given mark S3. Remaining heroin was kept in the same polythene in which it was recovered and thereafter converted into cloth pullanda and given mark R3. All the pullandas were then sealed with the seal of GKS. A seizure memo was then prepared and the FSL form was filled.
(l) In the meanwhile, ACP Inspector L.N. Rao also reached the spot and after inquiring about the accused persons and the recovery, left the spot after sometime.
(m) The Rukka was prepared and the same alongwith the seizure memos and sealed property was handed over to Ct. Kishore with directions to produce the case property before SHO, PS Special Cell and hand over the rukka to Duty Officer for registration of FIR. Further investigation was handed over to SI Gopal Dutt who came to the spot and he was narrated the facts of the case by SI Girish Singh and the accused persons and the documents prepared were handed over to him. He then prepared the site plan and arrested all the accused persons. Honda Activa FIR No.15/09 Page 6 of 35 SC No. 16/09 two wheeler scooter was also seized. The raiding team then took the accused persons to PS Special Cell, Lodhi Colony and deposited the personal search articles of the accused persons in the Malkhana. Thereafter, the accused persons were produced before Insp. Govind Sharma. Special Reports U/s 57 of NDPS Act were prepared. During further investigation IO collected CAF and CDR of mobile no. 9810238698, 9810233698 and 9871942268 which were used by accused persons. The samples were sent to FSL Rohini for analysis and after receiving the FSL report, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed by the Ld. Predecessor of this court vide order dated 10/8/2009 against all the accused persons for having been found conspiring and dealing with commercial quantity of heroin. The charges were framed against the accused persons u/s 21(b) and (c) read with section 29 of the NDPS Act to which the accused persons pleaded not guilty and claimed trial.
4. In order to prove its case against the accused persons, the prosecution has examined 16 witnesses in all.
5. PW2 SI Girish Kumar, PW7 W/SI Neeru Bhakuni, PW11 Ct. Kishore and PW12 SI Dinesh Pal are members of the raiding team. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. PW2 SI Girish Kumar is the main investigating FIR No.15/09 Page 7 of 35 SC No. 16/09 and seizing officer. As per his deposition, DD No. 12 dated 26/3/2009, in which the secret information was reduced has been exhibited as Ex.PW2/A. The notices issued to the accused persons u/s 50 of the NDPS Act have been exhibited as Ex.PW2/B, Ex.PW2/C and Ex.PW2/D and the refusals asserted to have been given by the accused persons to their respective notices have been identified by this witness at point 'X' in Ex.PW2/B, Ex.PW2/C and Ex.PW2/D. The seizure memos prepared with respect to the recovery of the heroin from accused persons have been exhibited as Ex.PW2/E, Ex.PW2/F and Ex.PW2/G. The tehrir prepared at the spot has been exhibited as Ex.PW2/H.
6. PW1 ASI Mathias Baxla has deposed that he was posted as MHC(M) at PS Special Cell on 27/3/2009 and that on this date, SHO of the said PS had deposited with him six pullandas sealed with the seal of GKS and GS and the said property was deposited by him in the malkhana vide entry 1322, Ex.PW1/A. He has also deposed that on the same day SI Gopal Dutt had also deposited the articles of personal search of all the accused persons and one black colour bag recovered from accused Abdullah and one Honda Activa Scooter with him and he has proved the said entry at Sl. no. 1323 as Ex.PW1/B. According to his deposition, he had also sent the samples mark S1, S2 and S3 to FSL Rohini through Ct. Ravinder vide RC no. 31/21/09, Ex.PW4/D. He has also deposed that on 6/7/2009 the result FIR No.15/09 Page 8 of 35 SC No. 16/09 was deposited along with the remnant samples in the malkhana. He has also deposed that on 27/8/2009 SI Gopal Dutt had also deposited a rubber stamp which was used by Sh. Nirta Jai Mishra for issuance of mobile SIM card and he has proved the entry as Ex.PW4/C.
7. PW3 Ct. Ravinder has inter alia deposed that on 9/4/2009 on the instructions of senior officers, he had taken three sealed pullandas mark S1, S2 and S3 vide RC no. 31/21/2009 and got the same deposited with FSL, Rohini and had obtained receipt Ex.PW3/A and handed over the same to MHC(M). He has also specifically deposed that so long as the case property remained with him, it was not tampered with.
8. PW4 SI Daler Singh, SO to ACP, Special Cell has interalia deposed that as per the record produced by him, on 27/3/2009 a report u/s 57 NDPS Act, prepared by SI G.D. Joshi was also received in the office of ACP regarding arrest of accused persons and recovery of heroin and that same report was put before ACP. The report and record produced by this witness have been duly exhibited during his testimony as Ex.PW4/A and Ex.PW4/B.
9. PW5 Sh. Krishan Kumar has inter alia deposed that he is the owner of H. No. 236, DDA Flats, Vasant Apartment, New Delhi and that he had given the said house on rent of Rs.7,500/ PM to Rupal Vaishnav for 11 months from 11/1/2008. He has proved the rent agreement, Ex.PW5/A. FIR No.15/09 Page 9 of 35 SC No. 16/09 This witness has further deposed that in the month of March, 2008, Abdullah had started living with Rupal.
10.PW6 Insp. Govind Sharma has interalia deposed that on 27/3/2009, he was posted as SHO, PS Special Cell and on that day, Ct. Kishore Kumar had produced before him, six pullandas, one FSL Form and three carbon copies of Seizure Memo. As per the deposition of this witness, he had put the FIR number, his initials and his seal 'GS' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana by ASI M. Baxla MHC(M). He has further deposed that at about 3:15 AM on 27/3/2009 all the three accused persons were produced before him by SI G.D. Joshi and he had enquired from them regarding the recovery and their arrest.
11.PW8 SI Gopal Dutt Joshi is the second investigating officer of the present case who has deposed that he had reached the spot at about 0045 hours on 27/3/2009 and on reaching the spot he had met Insp. Badrish Dutt and SI Girish Kumar and SI Girish Kumar had produced before him the accused persons and documents prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW2/J and had arrested accused Abdullah, Patric and Rupal vide arrest memos, Ex.PW8/A, Ex.PW8/C, Ex.PW7/A respectively and had also seized black colour bag and Honda Activa two wheeler vide seizure memos Ex.PW8/E and FIR No.15/09 Page 10 of 35 SC No. 16/09 Ex.PW8/F respectively. According to this witness after reaching the office of Special Cell, SR NFC he had recorded disclosure statement of all the accused persons vide Ex.PW8/G, Ex.PW8/H and Ex.PW8/I.
12.PW9 Duty officer ASI Mahender Singh has interalia deposed that he was the duty officer on 26/27 March, 2009 and that on this date he had received the rukka of the present case through Ct. Kishore and had registered the FIR, Ex.PW9/A and made endorsement on the rukka, Ex.PW9/B and had also recorded DD no. 11A and 13 , Ex.PW9/C.
13.PW10 Dr. Madhulika Sharma, Assistant Director, FSL, Rohini has proved the report prepared by her with respect to the analysis conducted by her of the sample sent to FSL. The said report has been exhibited as Ex. PW10/A and as per the said report, the sample Mark S1, S2 and S3 were found to contain caffeine, monoacetylmorphine, acetyl codeine and diacetylmorphine and the percentage of diacetylmorphine were found therein to be 76.2%, 79.5% and 86.0%. She has also proved another report prepared by her with respect to the analysis conducted by her of the samples CS2 and CS3 sent to FSL by the court, pursuant to an application filed by the accused Rupal and Abdullah for retesting of the case property. The said report has been exhibited as Ex.PW10/B and as per this report, the sample CS2 and CS3 were found to contain diacetylmorphine to the extent of 20.15% and 22.51% respectively.
FIR No.15/09 Page 11 of 35 SC No. 16/09
14.PW13 Sri Narain, Assistant Director, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the samples sent to FSL by this Court pursuant to an application filed by the accused Patrick for retesting of the case property. The said report has been exhibited as Ex. PW13/A and as per the said report, the sample Mark Ex.CS1 was found to contain diacetylmorphine and the percentage of diacetylmorphine was found therein to be 19.9%.
15.PW14 Deepak , Nodal Officer from Vodafone Mobile Services Ltd. has produced before the court the call detail records of the telephone number 9953202833 (the number which the accused Patrick had allegedly disclosed as belonging to one 'Papa', the person at whose instance he had gone to collect delivery of the contraband) for the period 01.03.2009 to 29.06.2009 and the same have been exhibited as Ex.PW14/A. The said witness has also produced the customer application form and attested copy of election I card with respect to the said number and as per the said form Ex.PW14/B and Ex.PW14/C, the aforementioned phone was subscribed in the name of one Shokat Ali s/o Rehman.
16.PW15 R.K. Singh, Nodal Officer from Bharti Airtel Ltd. has produced before the court the call detail records of the telephone number 9871942268, (the number of the mobile allegedly recovered from the possession of accused Patrick at the time of his arrest) for the period FIR No.15/09 Page 12 of 35 SC No. 16/09 1/3/2009 to 22/4/2009 and the same have been exhibited as Ex.PW15/A. The said witness has also produced the customer application form and attested copy of election I card with respect to the said number and as per the said form Ex.PW15/B and Ex.PW15/C, the aforementioned phone was subscribed in the name of one Jamil Ahmad s/o Majid Ahmad. This witness has also produced the call detail records of the telephone numbers 9810233698 and 9810238698 (the numbers that were being allegedly used by accused Rupal and accused Abdullah) for the period 01/3/2009 to 22/4/2009 and the same have been exhibited as Ex.PW15/G and PW15/D respectively. The said witness has also produced the customer application forms and attested copy of passport with respect to the said numbers and as per the said forms Ex.PW15/E and Ex.PW15/H, the aforementioned phones were subscribed in the name of the accused Rupal Vaishnav.
17.PW16 Surender Kumar, Assistant Nodal Officer from Idea Cellular Ltd. has produced before the court the call detail records of the telephone number 9702216531 (the number which the accused Patrick had allegedly disclosed as belonging to one 'Papa', the person at whose instance he had gone to collect delivery of the contraband) for the period 1/3/2009 to 21/4/2009 and the same have been exhibited as Ex.PW16/B. The said witness has also produced the customer application form including ID proof with respect to the said number and as per the said form FIR No.15/09 Page 13 of 35 SC No. 16/09 Ex.PW16/A, the aforementioned phone was subscribed in the name of one Odinnuta Julianah. He has also proved ID chart of IDEA Cellular Ltd. as Ex.PW16/C.
18.The aforementioned incriminating evidence was put to the accused persons and their statements u/s 313 Cr.P.C were recorded. All the accused persons in their statements have denied their complicity in the present case and have stated that they have been falsely implicated. Accused Abdullah and Rupal have inter alia stated that they are married to each other and that they were residing in a tenanted premises at H.No. 236, DDA flats, Vasant Apartments, New Delhi and that they were picked up by the police officials from the said tenanted premises at about 1111.30 PM on 27.03.2009. According to the said accused persons, the police officials kept asking them about two mobile numbers and despite the accused persons informing hem that they have nothing to do with the said two numbers, the police officials kept on insisting that the said two mobile numbers were in the name of accused Rupal and that both of them were using the same. According to the statements tendered by both these accused persons, they were taken to a police station where they were confronted with their coaccused Patrick for the first time. Both the accused persons have also stated that they were mercilessly beaten by the police officials and that they were forced to sign many documents. They FIR No.15/09 Page 14 of 35 SC No. 16/09 have also stated that they had filed their retraction statements and had sent the same to the court.
19.Accused Patrick in his statement u/s 313 Cr.PC has inter alia stated that he was picked up by the police officials from a market in Mukherji Nagar at about 08.30 PM on the date of his apprehension. He has also stated that he was mercilessly beaten by the police officials and that they forcibly took his thumb impressions on many documents when he refused to sign the same. He has also stated that after the police officials had beaten him times, he did sign one blank paper but that the said blank paper bearing his signature as 'Alex' has not been placed on the judicial record. According to this accused also, he had met his coaccused Rupal and Abdullah for the first time after his apprehension in this case. Though all the accused persons in their statements u/s 313 Cr.PC had stated that they wished to lead evidence, no defence evidence was led on their behalf.
20.On behalf of State, Ld. APP Sh. Gurjar and counsel Sh. Rahul Tyagi on behalf of accused persons have advanced final arguments.
21.Ld. APP for the State has submitted that the deposition of the prosecution witnesses have more or less remained unrebutted with respect to the search and seizure proceedings and his contention therefore is that the prosecution has been able to prove beyond reasonable doubt that the contraband had been recovered from the accused persons. FIR No.15/09 Page 15 of 35 SC No. 16/09
22.On the other hand, Ld. Defence counsel Sh. Rahul Tyagi has made the following main contentions:
● There is no evidence brought on record by the prosecution to show that the accused persons had entered into a conspiracy for dealing in drugs. The allegation of the investigating agency that the accused persons were caught red handed while dealing in drugs cannot be believed for despite the fact that there were residential premises near the alleged spot of apprehension of the accused persons, the investigating officer did not make any effort whatsoever to join any occupants of the said premises in the raid. According to the Ld. Defence counsel, in the facts of the present case, therefore the failure of the investigating agency to join public witnesses in the investigation should be taken as fatal to their case. In support of this contention, Ld. Counsel has relied upon a judgment titled as Chand Khan Vs. State 2000 reported in Cri. L.J. 2645.
● The prosecution witnesses are not worthy of any credence for they have falsely deposed that the accused persons were apprised of their legal rights of getting their search conducted in the presence of a Magistrate or a Gazetted Officer and that the accused persons had refused to exercise the said rights. It has been submitted that even otherwise, the accused persons were not taken before a Magistrate FIR No.15/09 Page 16 of 35 SC No. 16/09 which is now a mandatory requirement as per the judgment pronounced by the Hon'ble Supreme Court in a case titled as NCB Vs. Sukhdev Raj Sodhi reported in 2011 AIR (SCN) 3330 ● The evidence produced by the prosecution itself shows that the samples sent to FSL for examination were not that of the contraband allegedly recovered from the accused persons and that there has been a tampering of the case property. Ld. Defence counsel has pointed out that pursuant to the applications filed by the accused persons, this court had allowed retesting of the case property and that the reports that have been placed on record after the retesting of the case property clearly show that the samples that were sent to FSL during investigation were not drawn out from the case property produced before this court. It is also the contention of the defence that the prosecution has failed to explain that why there was a delay of 12 days in sending the sample to FSL and that the said delay is itself a pointer that the case property has been tampered with. In support of his contentions, reliance has been placed by the Ld. Defence Counsel on the judgments of Hon'ble Delhi High Court titled as Rahul Saini Vs. State reported in 2006 (3) JCC (Narcotics) 134 and Rishi Dev Vs. State reported in Crl. Appeal No. 757 of 2000 and CRL M(B) A.No. 799/2007.
FIR No.15/09 Page 17 of 35 SC No. 16/09
● The case of the prosecution is demolished by their own witness PW5 Krishan Kumar who was the landlord of the premises in which the accused Rupal and Abdullah were residing as tenants. Ld. Defence counsel has pointed out that this witness in his deposition has categorically stated that the accused persons were picked up by the police officials on 27.03.2009 at about 11.30 PM from their tenanted premises in his presence. The contention of the defence is that the said statement of the landlord clearly shows that the version put forward by the prosecution with respect to the apprehension of the accused persons is completely incorrect and false. He has also contended that since the prosecution chose not to declare this witness hostile and did not even reexamine him to suggest to him that he had deposed falsely in this regard, the accused are entitled to rely upon his testimony in support of their defence. In support of this contention, reliance has been placed by the Ld. Defence Counsel on the judgments of titled as Mukhtiyar Ahmad Ansari Vs. State reported in 2005 Cri.L.J. 2569(1) and Raja Ram Vs. State of Rajasthan reported in JT (2000) 7 SC 549. ● The prosecution has also failed to produce the original roznamcha in which the secret information allegedly received was reduced into writing and that therefore in the absence of the original secret FIR No.15/09 Page 18 of 35 SC No. 16/09 information having been proved before the court, the entire search and seizure proceedings become vitiated.
● The depositions of the members of the raiding team are not at all consistent with respect to the colour of the contraband that was allegedly recovered from the accused persons on the one hand PW2 has stated that brown colour powder was recovered from the accused persons while on the other hand PW7 has deposed that the powder recovered from the accused persons was white in colour. It has also been pointed out that infact PW7, the lady police official who allegedly had conducted the personal search of accused no.3 has not been able to stand the test of crossexamination at all in as much as she did not even remember whether any mobile phone or SIM card was recovered from the accused Rupal during her personal search and that further she even wrongly described the alleged spot of incident. There is also no explanation forthcoming from the prosecution as to why ACP L.N. Rao and Inspector Badrish Dutt have not been included in the list of witnesses nor summoned by the prosecution at any stage though as per the depositions of the members of the raiding team, they were the senior most officer present at the spot.
● The arrest of accused Rupal after sunset, without seeking the permission of a judicial Magistrate was done in complete contravention FIR No.15/09 Page 19 of 35 SC No. 16/09 of the provisions of section 46 Cr.PC.
● The prosecution has been unable to prove that the accused persons had conspired with each other for dealing in drugs. The call detail records placed on record by the prosecution do not in any manner show that the accused persons were in touch with each other on or before the date of the incident and therefore the said call details records are absolutely irrelevant. The said call records infact show that the accused persons were not using the mobile phones, the details of which have been proved before the court.
23.In rebuttal, Ld. APP for State Sh. Gurjar has submitted that the absence of public witnesses in the raiding team is not a ground to doubt the prosecution's case when the testimony of the prosecution witnesses is otherwise credible. According to Ld. APP, mere delay in sending samples for analysis cannot be stated to have caused any prejudice to the accused persons as the seals on the sample tested by the FSL were found tallying with the seals found on the FSL form. It is also the contention of Ld. APP that the variation in the two FSL reports filed on record has been explained by the Chemical Examiner PW10 Dr. Madhulika Sharma and PW13 Sh. Shri Narain. According to Ld. APP, the mobile phone records produced on record amply prove that all the three accused persons were in conspiracy with each other and were indulging in sale and purchase of FIR No.15/09 Page 20 of 35 SC No. 16/09 heroin. Ld. APP has also contended that the defence cannot at all be allowed to contend that the failure of the prosecution in producing the original roznamcha is fatal to its case for the State had filed an application u/s 311 Cr.PC for producing the said records before this court and that it is the defence counsel Sh. Rahul Tyagi who had stated on 17.04.2013 before this court that he has no objection if the copies of the daily diary on record be read in evidence without their original being produced on record.
24.I have carefully considered the submissions made by the Ld. Counsels and have perused the entire record carefully and have gone through the judicial dicta referred to by the Ld. Defence counsel.
25.This court completely agrees with Ld. APP that in view of the submissions made by Sh. Rahul Tyagi before this court on 17.04.2013, it does not lie in the mouth of the defence to contend that the prosecution has failed to produce the original roznamcha before this court and that therefore the copy of secret information placed before this court should not be read in evidence. A perusal of the order sheet dated 17.04.2013 clearly reflects that the Ld. Defence counsel had stated before this court that he has no objection if the copies of DD No. 12 dated 26.03.2009 and 27.03.2009 containing the secret information received by the investigating officials are read in evidence without their original being produced on record. The contention of the defence with respect to the non production FIR No.15/09 Page 21 of 35 SC No. 16/09 of the original roznamcha therefore has no merit. However having said so, this court is of the considered opinion that the prosecution in the present case has to fail due to mainly two reasons firstly the huge unexplained variation in the FSL reports and secondly the deposition of PW5 Krishan Kumar.
26.As per the version put forward by the prosecution, initially the samples that were sent by the IO after drawing out the same from the allegedly recovered substance were all tested by Dr. Madhulika Sharma, PW10 and the report with respect to the same has been exhibited as Ex.PW10/A. As per the report Ex.PW10/A, the samples drawn out from the substance recovered from all the three accused persons namely S1, S2 and S3 were all found to contain caffeine, monoacetylmorphine, acetylcodeine and diacetylmorphine and the content of diacetylmorphine in the said three samples was found to be 76.2%, 79.5% and 86%. Now during trial, the three accused persons had filed separate applications for retesting of the case property and the applications of accused Abdullah and Rupal were allowed by the Ld. Predecessor of this court vide order dated 05.10.2010 and the application of accused Patrick was allowed by this court vide order dated 25.07.2011. The samples drawn in court from the case property allegedly recovered from accused Abdullah and Rupal, namely samples CS2 and CS3 were examined by PW10 Dr. Madhulika Sharma, FIR No.15/09 Page 22 of 35 SC No. 16/09 Director, FSL, Rohini and the samples drawn in court from the case property allegedly recovered from accused Patrick were analysed by the Chemical Examiner PW13 Shri Narain, Assistant Director, FSL Rohini. The reports prepared by the said Chemical Examiners with respect to the retesting of the case property have been proved as Ex.PW10/B and PW13/A. Now a perusal of Ex.PW10/B shows that the samples CS2 and CS3 were only found to contain monoacetylmorphine and diacetylmorphine. Further the percentage of diacetylmorphine in the said samples was found to be 20.15% and 22.51% respectively. Similarly as per Ex.PW13/A, the sample CS1 was reported to only contain diacetylmorphine and that too to the extent of 19.09%. Though PW13 explained the variation in the reports Ex.PW10/A and PW13/A by stating that he had tested the sample sent through the court only for the presence of diacetylmorphine and that he had not tested the said sample for any other substance PW10 Dr. Madhulika Sharma has categorically stated in her deposition that during the analysis of the samples sent to her on both the occasions she had tested the sample for all their constituents. In her crossexamination conducted on 17.02.2011, the said expert has also categorically deposed that diacetylmorphine does not react with acetylcodeine and caffeine. During the course of final arguments the said deposition of the expert was relied by the Ld. Defence counsel to contend FIR No.15/09 Page 23 of 35 SC No. 16/09 that the said expert could not explain why the substances caffeine and acetylcodeine found present in samples S1, S2 and S3 were not found subsequently during second analysis in samples CS2 and CS3 and therefore this court should draw an inference that what was allegedly recovered from the accused persons was not sent to FSL for analysis. It is only then that the State moved an application u/s 311 Cr.PC on 17.04.2013 to recall the said expert Dr. Madhulika Sharma in order to get an explanation from her as to why S1 and S2 were found to contain four chemicals namely caffeine, monoacetylmorphine, acetylcodeine and diacetylmorphine while on the second occasion the samples drawn from the same substance namely CS2 and CS3 were found to contain only monoacetylmorphine and diacetylmorphine. When she was recalled for reexamination on behalf of the State, in her deposition recorded on 30.04.2013, she had stated that the reason of variation in the report Ex.PW10/A and PW10/B is that during the first analysis, the quantity of caffeine and acetylcodeine was sufficient for them to be detected by the instruments used by her during analysis while the said quantities during the second analysis was not so sufficient. She however admitted in her crossexamination that caffeine is a very stable substance and that it does not gets converted into anything and that its percentage remains the same in a sample over a passage of time. She also stated that the fact that FIR No.15/09 Page 24 of 35 SC No. 16/09 acetylcodeine was found in very small traces in the samples during the second analysis can be explained possibly by the presence of dilutents and that there is a possibility that the substance from which the sample was drawn second time had been diluted. In the considered opinion of this court, the said testimony of Dr. Madhulika Sharma is being rightly relied upon by the defence to contend that the case property has been tampered with. The deposition of this witness makes it clear that apart from tampering of the case property there is no other possible reason due to which the amount of caffeine and acetylcodeine found in the samples during the first analaysis could have disappeared to such an extent that it could not be detected during the second analysis.
27.Further now if in the context of the aforementioned variation in the constitution of the samples drawn at two different stages, the huge variation in the percentage of diacetylmorphine found in the said samples is considered, the same cannot be brushed aside lightly and infact further supports the contention of the defence with respect to the tampering of the case property. As per the first FSL report on record the samples S1, S2 and S3 received by the laboratory from the investigating agency were found to be cream coloured and the percentage of diacetylmorphine in the same were found to be 76.2%, 79.5% and 86% respectively. The second CFSL report which was prepared by PW13 Shri Narain, Assistant FIR No.15/09 Page 25 of 35 SC No. 16/09 Director FSL Rohini after the samples were sent to him by the Court, mentions the colour of the sample CS1 as brown and the percentage of diacetylmorphine was found to be only 19.09%, 20.15% and 22.51% respectively. In the considered opinion of this court the marked decrease in purity percentage and difference in colour clearly casts serious doubts about the fact whether the samples sent to the FSL for the first time was infact drawn out from the substances that was allegedly recovered from the accused persons. The tremendous variation in the percentage of diacetylmorphine cannot be simply explained away by mere passage of time, more so in view of the variation in the constitution of the samples and in view of the fact that the Chemical Examiners themselves have fairly conceded before the Court that there are no experiments conducted or literature published in India which gives the time frame within which the kind of degradation seen in the present case would take place. In a case titled as Rahul Saini vs. State reported in 2006 (3) JCC (Narcotics) 134 the Hon'ble Delhi High Court while dealing with variation in the percentage of diacetylmorphine in the two tests performed by the concerned laboratory clearly held that a tremendous variation between the two tests cannot be explained away by mere passage of time.
FIR No.15/09 Page 26 of 35 SC No. 16/09
28.The deposition of PW5 Krishan Kumar, the witness produced by the prosecution to prove that the accused Abdullah and Rupal were residents of premises bearing no. 236, DDA Flats, Vasant Apartments, also makes it clear that the prosecution has not put forward the true version of events before this court. Though the case of the prosecution as narrated hereinabove is that the accused persons were apprehended outside Khalsa College, Delhi University on 27.03.2009 at about 09.40 PM, this witness has categorically stated that both accused Rupal and Abdullah were arrested on 27.03.2009 at about 11.30 PM from their tenanted premises. The said statement was made by the witness during his crossexamination and despite the fact that the said statement of the witness completely demolished the case of the prosecution, no efforts whatsoever were made by the prosecution to reexamine this witness or to recall him in order to suggest to him that he had deposed false facts in this regard. The only contention made by Ld. APP in this regard is that this witness had been summoned by the prosecution only to prove the fact of tenancy of the accused Rupal and Abdullah and that he on his own in his cross examination had stated a fact which suited the accused persons. The said contention of Ld. APP is totally unacceptable for PW5 was not bound to merely speak what the prosecution wished him to speak he is a public witness and in case he had stated a relevant fact in his crossexamination, FIR No.15/09 Page 27 of 35 SC No. 16/09 the prosecution was always at liberty to reexamine him in order to test the veracity of the statement given by him. In the considered opinion of this court, in view of the failure of the prosecution to do so, the statement of PW5 that the accused persons were picked up from their tenanted premises at 11.30 PM on 27.03.2009will have to be accepted and if it is done so clearly the case of the prosecution falls to the ground. In two of its judgments titled as Mukhtiyar Ahmed Ansari Vs. State and Raja Ram Vs. State (supra), relied upon by the defence in this regard, the Apex court has made it clear that in case the prosecution does not declare a witness who has not supported its case as hostile, the testimony of the said witness becomes binding upon the prosecution and can be relied upon by the defence.
29.It is also to be taken note of that though on the one hand PW5, a public witness has supported the version put forward by the accused persons Rupal and Abdullah that they were picked up from their residential premises at 11.30 PM on 27.03.2009, the investigating agency has not been able to produce a single public person to support their case. Despite the fact that accused persons are shown to have been apprehended in an area having residential and commercial premises, the raiding party was unable to join even one public witness in its proceedings. Though as per the deposition of the main IO SI Girish Kumar, he had requested 56 FIR No.15/09 Page 28 of 35 SC No. 16/09 passersby outside the Mall Apartment to join the proceedings and none of them agreed to, it is indeed strange that though the IO SI Girish Kumar thought it necessary to ask 56 passersby to join the raiding team, he did not make any efforts to join an occupant of the Mall Apartment, in the proceedings. Despite a specific query by his court to Ld. APP as to why the investigating agency only asked passersby at the spot and did not make an effort to join in the proceedings, the occupants of residential apartment in front of which the accused persons were allegedly apprehended, so that both the investigating agency and the court could have been made aware of the addresses of such public persons who refused to accede to the request of a government public official, there is no explanation in this regard forthcoming from the prosecution. It will not be out of place to mention herein that in all of the Special Cell cases tried by this court, there is not a single case where the investigating officer has been able to join a public witness in the proceedings though in all NCB cases, the said investigating agency is able to make public witnesses join their investigation. No doubt, one cannot argue with the contention of Ld. APP that public persons are hesitant to join police proceedings, but the least that is expected is that the investigating agency must be able to satisfy the court that genuine and sincere efforts were made by the investigating officer to make public persons join the proceedings.
FIR No.15/09 Page 29 of 35 SC No. 16/09
30.It has been repeatedly held by the higher courts that in such cases as the present one, the investigating agency must show that sincere efforts were made to join independent witnesses and that the investigating agency cannot merely take a stand that public witnesses refused to join the investigation. In this regard particular reference is made to the judgments reported as Ritesh Chakravarty Vs. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150, Anup Joshi Vs. State 1999(2) C.C. Cases 314, Roop Chand Vs. State of Haryana 1999(1) C.L.R 69. In Ritesh's case (supra), the Hon'ble Supreme Court has depreciated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on request of the police officials. In the other two judgments, it has been observed by the Hon'ble High Courts that the failure to proceed against the public persons who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an afterthought and is not worthy of credence.
31.At this stage, it will also be relevant herein to note the contentions made by the Ld. APP with respect to the call details of certain mobile phones placed on record by the prosecution. As per the version put forward by the prosecution, a mobile bearing no. 9871942268 was recovered from the FIR No.15/09 Page 30 of 35 SC No. 16/09 possession of accused Patrick at the time of his apprehension and this accused in his disclosure statement had allegedly given the mobile numbers that were used by his coaccused Abdullah and Rupal to remain in touch with one 'Papa', at whose instance he (accused Patrick) had come to the spot to take delivery of the contraband. It is the contention of Ld. APP that during investigation the mobile numbers namely 9810233698 and 9810238698 disclosed by accused Patrick as those belonging to the coaccused persons were infact found to be subscribed in the name of accused Rupal and he has pointed out that PW15 R.K. Singh, a Nodal Officer from Bharti Airtel Limited has proved the said fact of subscription. He has also pointed out that the call detail records of the aforementioned telephone numbers show that the users of the said number were infact in touch with the mobile numbers, which had been disclosed by accused Patrick to be belonging to one 'Papa'. The contention of the State therefore is that the said facts and the evidence on record clearly bring about the conspiracy in between the accused persons. In the considered opinion of this court, the said contention of Ld. APP cannot be accepted for the material on record relied upon by him is not at all sufficient to draw the conclusions that he wishes this court to do. Firstly as per the own case of the prosecution, at the time of their apprehension, the accused persons Abdullah and Rupal were not found in possession of FIR No.15/09 Page 31 of 35 SC No. 16/09 any mobile phones or any SIM cards whatsoever, nor was any mobile phone recovered from their premises at any time during the course of investigation. Though Ld. APP has tried to contend that perhaps these accused persons may have thrown their mobile phones on being apprehended by the members of the raiding team, there is no such deposition made by the members of the raiding team. It has also been rightly pointed out by Ld. Defence counsel that the call records of mobile number 9810238698, Ex.PW15/D asserted to have been used by the accused persons and produced by the prosecution itself shows that there was an outgoing call made from the said number at about 09.41 PM on 26.03.2009 i.e. after the apprehension of the accused persons at 09.40 PM. Now even if the contention of Ld. APP that the time of apprehension of accused persons cannot be taken to be exact 09.40 PM and that there can be a variation of a few minutes between their actual time of apprehension and that deposed by the prosecution witnesses is accepted, it is unimaginable that the accused Rupal and Abdullah not only used the said mobile immediately before their apprehension but they were even able to dispose off the said mobile at the spot itself and yet none of the police officials standing near them could see the said acts of the accused persons. Further even if for the sake of arguments, the said contention of the State is considered for a moment, the prosecution has not brought any evidence FIR No.15/09 Page 32 of 35 SC No. 16/09 except the inadmissible disclosure statement of accused Patrick to prove that it was his boss 'Papa' with whom the accused Abdullah and Rupal were in touch with. Infact the mobile numbers allegedly to have been used by 'Papa', as per records produced by PW14 and PW16, officials of the Vodafone Mobile Services and Idea Cellular Services respectively, are shown to be subscribed in the name of one Shaukat Ali and Odinnuta Julianah. There is absolutely not a shred of evidence brought on record that there was some investigation done by the investigating agency with respect to the said subscribers to link them with the said Papa or the accused persons. In view of the discussion hereinabove, it is clear that the mobile call detail records produced by the prosecution are absolutely irrelevant for determining the guilt of the accused persons. On the other hand, the lacunae in the case of the prosecution as discussed hereinabove and the contentions raised by the defence (elaborately referred to in para 23 hereinabove) clearly throw a grave doubt on the veracity of the case put forward by the prosecution. In particular it has been rightly pointed out by the Ld. Defence counsel that the failure of the prosecution to explain why they chose not to produce ACP L.N. Rao and Inspector Badrish Dutt in the witness box, despite they being the senior most officials who had allegedly witnessed the entire proceedings and why the documents allegedly prepared at the spot including the section 50 notice FIR No.15/09 Page 33 of 35 SC No. 16/09 bear the thumb impression of accused Patrick though it is not the case of the prosecution that he was an illiterate person do infact lead to an inference that the accused Patrick has stated correctly in his statement u/s 313 Cr.PC that his thumb impression was forcibly taken by the police officials on some documents.
32.It has been repeatedly reiterated by the Hon'ble Supreme Court in its various judgments that it must be borne in mind that severer the punishment, greater has to be the care taken to be seen that the case of the prosecution is proved beyond all reasonable doubt. In State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed". The Apex Court in the case of Noor Aga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused. It has also been observed by the Hon'ble Supreme Court in the said case that though FIR No.15/09 Page 34 of 35 SC No. 16/09 the standard of proof required to prove the guilt of the accused on the prosecution is 'beyond all reasonable doubt'.
33.In view of the detailed discussion hereinabove, it is hereby held that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt and therefore the accused persons are hereby acquitted of the offences that they have been charged with. Announced in open Court on this 6th day of July, 2013 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No.15/09 Page 35 of 35