Delhi District Court
State vs Abdul Gaffar on 13 April, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Abdul Gaffar
S/o Sh Noor Mohd.
R/o H.No 20,Taimoor Nagar
Near New Friends Colony
New Delhi.
SC No. : 56A/07
FIR No. : 728/07
U/S : 20 NDPS Act
PS : Lajpat Nagar
Date of institution : 14.09.2007
Date of reserving judgment : 13.04.2011
Date of pronouncement : 13.04.2011
J U D G M E N T
The accused has been sent to face trial by SHO PS Lajpat Nagar on allegations that on 18.07.2007 at about 8.20 PM, at the drain (ganda nallah) near Masjid, on Captain Gaur Marg, New Delhi, within the jurisdiction of PS Lajpat Nagar, he was apprehended when he was found to be in possession of 5 KG 400 Grams of Ganja, in contravention of the provisions of the NDPS Act.
2. The prosecution story, in brief, is that on 18.07.2007 at about 8.20 PM PW8 Inspector Bir Singh (SI at that time) and PW2 Ct. Maan Singh of PP Garhi, PS Lajpat SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 2 Nagar were both on patrolling vide DD No. 27 Ex. PW1/A and had reached near ganda nallah, opposite East of Kailash, Captain Gaur Marg when they had seen a person coming from the side of Sri Niwas Puri and holding a polythene bag. On seeing the police party that person had turned back and had tried to flee away, but was apprehended by the police party and on inquiry his name was revealed to be Abdul Gaffar, i.e the accused facing trial herein. The above polythene bag being held by him was checked and the same was found to contain Ganja and the accused had also confirmed the same to be Ganja. PW8/IO had requested 4-5 passersby to join the proceedings, but none had agreed and they all had left without disclosing their names and addresses.
3. It is also alleged in the chargesheet that thereafter suspecting some further recovery of the contraband substance from the accused, the IO/PW8 had given a notice U/S 50 NDPS Act Ex. PW2/A to the accused informing him of his legal right to be searched in the presence of a Magistrate or a Gazetted Officer and the accused had replied that he was not possessing any further narcotic substance and hence he did not want his search before a Magistrate or a Gazetted Officer and had offered his search to the police party vide his reply recorded on the carbon copy of the above notice Ex. PW2/A by the IO/PW8 himself on request of the accused as he was illiterate. In the meantime the Additional SHO, PS Lajpat Nagar, Inspector Man Mohan had also reached at the spot but in the further search of the SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 3 accused conducted by the IO/PW8 nothing incriminating was recovered.
4. It is also alleged that then the above Ganja was weighed by the IO/PW8 and it weight came to 5 KG 400 Grams. IO/PW8 had taken out two samples of 200 Grams each out of the same and these were kept in two separate polythenes and were converted into a cloth pullanda. The remaining Ganja was also kept in the same polythene bag and it was also converted into a pullanda and all the three pullandas were sealed with the seal of BSY, Form FSL was also filled up by the IO/PW8 and the same seal affixed thereon. Additional SHO/PW5 had also affixed his seal of MMR on the above pullandas and the FSL Form and then the same were taken into possession vide seizure memo Ex. PW2/B and PW5 had left the spot with the sealed pullandas, FSL Form and a copy of the seizure memo and had deposited the same in the police malkhana with PW6/HC Virender/MHC(M) vide entry Ex. PW6/A of the register no. 19.
5. It is also alleged in the chargesheet that then the IO/PW8 had prepared the rukka Ex. PW8/A and had sent PW2 to the PS and FIR Ex. PW7/A of this case was registered on the basis of the above rukka and further investigation of the case was assigned to PW9 ASI Sukhwinder Singh, to whom a copy of the above FIR and the original rukka were handed over by PW2. PW9 had then prepared the site plan Ex. PW8/B at the spot on the pointing out of PW8, arrested the accused SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 4 vide arrest memo Ex. PW2/C, conducted his personal search vide memo Ex. PW2/D in which the original notice U/S 50 of the NDPS Act was recovered. PW9 had then recorded the statement of the first IO/PW8 at the spot, got the accused medically examined and put in the lock up, sent the report U/S 57 NDPS Act Ex. PW4/A to his senior officers, got the sample examined from the FSL vide reports/results Ex. PA and PB and had subsequently prepared the chargesheet after completing the other formalities of investigation and recording of the statements of witnesses.
6. A chargesheet for the offence U/S 20 of the NDPS Act was filed against the accused on 14.09.2007 and cognizance thereof was taken. A prima facie case for offence U/S 20 (b)(ii)(B) of the NDPS Act was also found to had been made out against the accused and hence a charge for the said offence was framed against him by this court on 15.02.2008, as the above quantity of Ganja possessed by the accused was a ' semi-commercial' or ' m edium ' quantity under the said Act.
7. The prosecution in support of its case has examined total 10 witnesses on record and their names and the purpose of examination etc. is being stated herein below :-
8. PW1 Ct. Pargan Goma was the DD writer of PP Garhi on the day of incident and he had recorded DDs No. 27 and 32 SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 5 Ex. PW1/A and PW1/B respectively regarding the departure of PW8/SI Bir Singh and PW9/ASI Sukhwinder Singh for the spot, PW3 Ct. N.Krishnan had taken the above sealed sample pullandas to FSL, Rohini on 27.08.2007, PW4 HC Kailash from the office of ACP Lajpat Nagar has produced on record the original information U/S 57 NDPS Act Ex. PW4/A and PW5 Inspector Man Mohan Singh is the Additional SHO of the above PS on the day of incident and he has deposed regarding his visit at the spot, sealing process and the taking and deposit of the sealed pullandas and FSL Form etc. in the police malkhana, as stated above. PW6 HC Virender was the MHC(M) of the malkhana at that time and he has deposed about the deposit of the case property etc. with him vide entry Ex. PW6/A of the malkhana register no. 19 and about sending the sample pullanda to the FSL, PW7 HC Om Prakash is the Duty Officer who has proved on record the FIR as Ex. PW7/A and his endorsement made on the rukka as Ex. PW7/B. PW9 ASI Sukhwinder Singh is the Second IO and he has also deposed regarding his visit at the spot after being assigned the investigation of this case, preparation of site plan, arrest and personal search memo etc. of the accused, sending the information U/S 57 NDPS Act and exhibits to FSL etc., as also stated above, and PW10 Sh Naresh Kumar, Senior Scientific Assistant (Biology), FSL, Rohini has proved on record his report regarding the examination of the sample Ganja as Ex. PB vide which the same was identified to be the Female Flowering Portion of Indian Hemp Plant (Ganja).
SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 6
9. PW2 Ct. Maan Singh and PW8 Inspector Bir Singh (SI at that time) are both the most material witnesses of the prosecution story as they are the only members of the raiding police team which had apprehended the accused with the above contraband substance. They both have deposed about the apprehension of the accused with the above substance, service of notice U/S 50 NDPS Act upon him, sealing process of the sample Ganja and the remaining Ganja, the seizure of the same in the presence of the Additional SHO/PW5 and the preparation of rukka and registration of the case and arrival of PW9/ASI Sukhwinder Singh at the spot. PW8/IO has also deposed about the preparation of site plan at his instance and PW2 is also a witness of the arrest and personal search memos etc. of the accused and they both have also identified the above polythene in which the Ganja was being carried by the accused as Ex. P1, the remaining Ganja as Ex. P2, the remnant of the sample and the second sample drawn from the above Ganja, but during the statement of PW2 the remnant of the sample has been exhibited as Ex. P3 and the second set of sample was not exhibited formally and in the statement of PW8 the remnant of the sample was inadvertently exhibited as Ex. P4 and the other set of sample was exhibited as Ex. P3. PW9 has also identified the original notice U/S 50 NDPS Act recovered in the personal search of the accused as Ex. PC.
SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 7 10. After the conclusion of the evidence of the
prosecution, the statement of the accused U/S 313 Cr.P.C. was recorded by this court and all the incriminating evidence brought on record by the prosecution was put to him and the same was denied by him to be either incorrect or beyond his knowledge. He has claimed himself to have been falsely implicated in this case by the police official merely to increase their stars and to seek promotion. He has claimed that he was returning from his work with the contractor Sh Raju and when he had reached near Okhla Mandi and was heading towards his house in Taimoor Nagar from the short cut near the Masjid situated on the above road, he was picked up by the police and was taken to the PS and falsely implicated and arrested in this case. However, no defence evidence was led by him on record.
11. I have heard the arguments advanced by Sh Wasi Ur Rehman, Ld Additional PP for the State and Sh Ravi Quzi, Ld Legal Aid Counsel for the accused and have also appreciated the evidence led on record and the other record of the case.
12. Though the accused has not led on record any evidence in his defence to substantiate his plea of false implication in this case, but the story of the prosecution even otherwise does not appear to be trustworthy and acceptable because of the various loopholes, lacunae, contradictions and inconsistencies that had come up in SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 8 their story in the form of the examination of the prosecution witnesses.
13. Though PW1 has proved on record two DD entries No. 27 & 32 recorded at the PS, as Ex. PW1/A and PW1/B respectively, regarding the departure of PW2 and the IO/PW8 and also regarding the departure of the second IO/PW9 respectively from the PS for the spot, but strangely enough PW2 and PW8/IO in their examination in this court are silent with regard to the above DD Ex. PW1/A regarding their departure and they had not uttered even a single word about the same. Even the second IO/PW9 has only deposed about the above DD when he was questioned in this regard by Ld defence counsel in his cross examination and the above silence of the above witnesses on this aspect raises serious doubts regarding the recording of the above DDs at that time and regarding the authenticity of the contents thereof.
14. Again, there is serious discrepancy and contradiction in the statements of the above two material witnesses of the prosecution story, i.e. PW2 Ct. Maan Singh and PW8/IO Inspector Bir Singh, regarding the recovery of the above contraband substance from the accused as to in which container or article the above contraband substance was being carried by the accused, i.e whether in a polythene or plastic carry bag or in a plastic katta which is usually used for packing or carrying etc. of the food SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 9 grains or fertilizers etc., and further whether it was being carried by the accused in his hand or on his shoulder at the time of his alleged apprehension. During the examination in chief of PW2 though it has been stated at some place that it was a plastic katta but at the other places it has been stated to be a polythene bag or a polythene and at the time when the case property was produced before this witness for identification, it has been recorded that it was a plastic carry bag. In cross examination of PW2 he has stated it to be a polythene only. During the chief examination of the IO/PW8 also at some place it has been recorded as a plastic katta but at the other places it has been recorded as either to be a polythene bag or a polythene only. Further, PW2 in his statement has stated that the same was being carried by the accused in his hand, whereas the IO/PW8 has gone to state on record that the same was being carried by the accused on his shoulder and also that the same was even tied with a sutli, which suggests that it was not a mere polythene or plastic carry bag but it was plastic katta. The above depositions of these two material witnesses are not only self contradictory, but are also in contradiction to each other and the same seriously affect the credibility of the prosecution story regarding the apprehension of the accused with the above contraband substance and in the manner as stated on record. Moreover, with a weight of about 5 KG only there is very little likelihood that a person will carry the same on his shoulder, as stated by the IO, and SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 10 will not hold or carry the same in his hand.
15. On further appreciation of the prosecution evidence it is also found that according to PW2 they had also checked 2-3 other bags of some other persons before the accused was apprehended by them, but his above claim is not substantiated by the IO/PW8 as he has not made any such depositions on record. Even otherwise, there was no occasion for them to check the bags etc. being carried by the these persons as it is the admitted case of the prosecution that there was no prior information available with the above police officials regarding the carrying or possession etc. of a contraband substance by any person and the apprehension of the accused with the same was by chance only.
16. It is also observed on further appreciation of the prosecution evidence that according to PW2 HC Maan Singh the weighing scale /taraju was brought by the IO/PW8 from some nearby shop keeper but he does not remember the name of the shop keeper. Even PW8/IO Inspector Bir Singh has stated that the same was brought by him from a nearby vegetable stall (thiha), but it appears that to avoid the telling of the name of the shop keeper and to avoid his further questioning by ld. Defence counsel on the above aspect he has gone to state that the weighing scale was lifted from the vegetable stall in the absence of the shop keeper or the person running the above stall. This is SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 11 something which can not be believed and makes the depositions of the above witnesses regarding the recovery of the above contraband substance from the accused and the proceedings at the spot to be doubtful. Again, according to PW2 the cloth, thread and sealing material etc. were also arranged by the IO/PW8 and none of the above two witnesses has stated that the IO/PW8 was having any IO kit with him or he had subsequently called the kit from the PS and in the absence of the same there is no explanation on record as to from where the above material was arranged by the IO/PW8 and there are serious doubts regarding the easy availability of the same in the neighbourhood of the place of apprehension of the accused, in the absence of there being anything on record to suggest the contrary.
17. It is also observed that there are also contradictions in the prosecution story regarding the stage at which the SHO/PW5 Inspector Man Mohan had reached at the spot because the sequence of events as narrated by PW1 in his chief examination suggests that he had reached there after the service of notice U/S 50 NDPS Act upon the accused and his reply to the same, but he contradicts himself when in his cross examination he states at one place that he does not remember if the SHO had reached there when the above notice was given to the accused and at the same time he has also stated that no writing were was done at the spot till the arrival of the SHO. PW8/IO has also stated that he had telephoned the SHO at about 8.40 SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 12 PM after giving the above notice and obtaining the reply of the accused and then after his arrival the SHO had also informed the accused about his right to be searched in the presence of a Magistrate or a Gazetted Officer, but though the SHO has deposed that he had asked from the accused regarding his above right but he has nowhere stated specifically that the notice U/S 50 NDPS Act was already given to the accused and the reply of accused already obtained before his arrival at the spot. PW2 has also claimed that he had first seen the accused and at that time the accused was at a distance of about 50/60 yards, but PW8/IO claims to had seen the accused first only when he was a distance of about 20 yards and the above is unexplainable when they both were standing together on their patrolling duty.
18. Besides all the above, there is also no public or independent witness to support the credibility of the prosecution story and though in a normal case the same can be ignored but in a case like this where the evidence of the prosecution is not inspiring any confidence otherwise, the non-joining of a public or independent witness, despite the fact that the accused was apprehended from a public road and from near residential locality, the same has also added to the miseries of the prosecution and makes the credibility of the witnesses to be highly doubtful. The mere vague and routine depositions of these witnesses regarding the requests made to some passersby for joining SC No.56A/07 State Vs Abdul Gaffar FIR No.728/07 PS: Lajpat Nagar 13 the proceedings can not be accepted in the absence of any legal action against them or their particulars being taken on record.
19. In view of the above discussion, I hold that the story of the prosecution regarding the apprehension of the accused with the contraband substance from the above place and in the manner as stated above is highly doubtful, untrustworthy and unacceptable. The accused is, therefore, being acquitted of the charge for the offence U/S 20 NDPS Act framed against him. His bail/surety bond U/S 437A Cr.P.C. has already been furnished on record. Hence, his previous bond stands discharged.
20. File be consigned to record room.
Announced in the open
court on 13.04.2011 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No.56A/07 State Vs Abdul Gaffar
FIR No.728/07
PS: Lajpat Nagar