Delhi District Court
State vs Mohd. Arif @ Guddu on 12 September, 2012
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE(NDPS)/ADDL.SESSIONS JUDGE (NORTH
EAST) : KARKARDOOMA COURTS, DELHI
SC No. 177/2007
FIR No. 85/2007
PS Narcotics Branch
Under Section 21 NDPS Act
Case ID 02402R0794362007
State Versus Mohd. Arif @ Guddu
S/o Sakir
R/o C291, Gali No. 9,
Shri Ram Colony, Kachi Khajoori,
Delhi.
Date of Institution 11.12.2007
Date of hearing Arguments 06.09.2012
Date of Judgment 12.09.2012
J U D G M E N T
1. In the present case, the accused is facing trial for the offence punishable U/s 21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, on the allegations that on 27.08.2007, at about 3.15 P.M., near Majaar, Bhajanpura Red Light Chowk, Wazirabad Road, Delhi, within the jurisdiction of P.S.Narcotics Branch, he was FIR85/2007 PS Narcotics Branch Page 1/13 found in possession of 2 kilograms of 'Heroin', containing 10.8% of diacetylmorphine, a contraband, without any license or permit.
2. In order to prove the charges against the accused, the prosecution has examined a total of eleven witnesses, who are all police officials. There is no public witness to the alleged incident and the alleged recovery of contraband, from the possession of the accused.
3. After completion of prosecution evidence, the statement of the accused was recorded U/s 313 Cr.P.C., on 04.05.2012, wherein, the accused has denied all the incriminating evidence against him and has deposed that he is innocent and has been falsely implicated in this case. He has further stated that he was lifted from his house and the contraband was planted upon him. He has further stated that all the writing work was done in the police station and his signatures were obtained on some blank papers, written documents and printed proformas. The accused has not led any defence evidence, despite opportunity.
4. After completion of trial, final arguments were addressed by Sh. S.K. Dash, Ld. Additional PP for the State and Sh. S.K. Ahluwalia, Advocate, for the accused. The Ld. Addl. PP for the State FIR85/2007 PS Narcotics Branch Page 2/13 has argued that all the mandatory provisions of the NDPS Act have been duly followed by the investigating officers and the prosecution witnesses have duly proved the recovery of 2 kilograms of 'Heroin' containing 10.8% of diacetylmorphine, from the possession of the accused and therefore, the accused should be convicted for the offence punishable U/s 21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
5. On the other hand, the Ld. Defence Counsel, Sh. S.K. Ahluwalia, Advocate, has argued that the accused has been falsely implicated in this case and no recovery was effected from his possession. He has further argued that the alleged recovery was affected on 27.08.2007 and the sample was sent to FSL on 10.09.2007, and therefore, there is a delay of about 13 days in sending the sample to FSL and the same violates the guidelines issued by the NCB.
6. He has further argued that the first sample, which was sent to the FSL on 10.09.2007 was chemically analysed vide report dated 14.11.2007, (Ex.PW2/H) and the said sample contained 10.8% of diacetylmorphine, alongwith acetylcodeine and monoacetylmorphine. Whereas, the second sample, which was sent to FIR85/2007 PS Narcotics Branch Page 3/13 FSL Rohini, in compliance of the order of the Court dated 08.04.2009, was analysed vide report dated 28.04.2009, and as per the same, the said sample contained only 6% of diacetylmorphine alongwith paracetamol, caffine, acetylcodeine and monoacetylmorphine. The huge discrepancy in the contents of the samples and the composition of the sample and the case property indicates that the sample, which was sent to the FSL on 10.09.2007 was no derived from the case property, which was produced in the Court and therefore makes the entire prosecution case, doubtful.
7. He has further argued that the material contradictions in the deposition of the witnesses and the discrepancies on record, as disclosed above, make the entire prosecution case doubtful and therefore, the accused be acquitted of the offence punishable U/s 21
(b) of the NDPS Act, 1985.
8. I have carefully gone through the case file & I have given my considered thoughts to the arguments addressed by the Ld. Defence Counsel and the Ld. Addl. PP for the State. Perusal of the record shows that on 27.08.2007 a secret information was received by SI Satyawan (PW11) at about 1.00 p.m. and he informed about the secret information to Inspector Kharak Singh SHO, Narcotics Branch, FIR85/2007 PS Narcotics Branch Page 4/13 and the information was reduced into writing vide DD no. 14A at 1.30 p.m. Thereafter, on the directions of Inspector Kharak Singh, a raiding party was constituted by IO SI Satyawan and a raid was conducted, wherein, the accused was allegedly apprehended at about 3.10 p.m. and 2 kilograms of Heroin was allegedly recovered from the sky blue colour polythene bag which the accused was allegedly carrying with him at that time. It is a settled preposition of law that the provisions of Section 50 are applicable only in a case of personal search of the accused and not when it is made in respect of some baggage, like a bag, article, vehicle or container, etc., which the accused was carrying at the relevant time. [See "State of Himachal Pradesh Vs. Pawan Kumar (2005) 4 S.C.C. 350; State of Haryana Vs. Ranbir @ Rana, A.I.R. 2006 S.C. 1796.].
9. In the circumstances of the case, there was no requirement for the IO to serve any notice U/s 50 NDPS Act to the accused, but still, he served the notice U/s 50 NDPS Act on the accused and also recorded his refusal, for the reasons best known to him.
10. It is further observed that the secret information was received by IO SI Satyawan at about 1.00 p.m. and the raiding party FIR85/2007 PS Narcotics Branch Page 5/13 reached the spot at about 2.45 p.m and the accused was apprehended by the police party at about 3.10 p.m. There was enough time for the IO to call the public witnesses to join the proceedings. But, no such efforts were made by the IO. It has been stated by the IO and the other members of the raiding party that several public persons were asked to join the police party, on the way to the spot, but, nobody obliged and those persons had left the spot, without disclosing their names and addresses to the IO. IO has failed to serve any written order or notice upon such public persons, for their willful non cooperation. It has been held by the Hon'ble High Court of Delhi in case titled as Mohd. Raffique Vs. State, reported as 2000 II AD (Cr.) DHC 365, as under: "9. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may, in this context, be made to the provisions of sub Section (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under Section 100 of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 IPC. In the instance case, there is nothing to indicate that the authorised officer had served or even attempted to serve an FIR85/2007 PS Narcotics Branch Page 6/13 order in writing upon any public witness as envisaged by subSection (8) of Section 100 Cr.P.C. In this connection, I may usefully excerpt the following observations of Malik Shariefu Din, J. in Rattan Lal Vs. State, 1987 92) Crimes 29: "....... In the case in hand the seizure and the arrest have been made under section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by subsection (4) of section 100 Cr.P.C. The explanation offered is that public witnesses were requested but they declined to cooperate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to cooperate without reasonable cause inspite of any order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187 I.P.C. and this has been clearly spelt out in subsection (8) of section 100 Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention the same has been made in the case diary. Obviously, there is a deliberate attempt defeat the legislature safeguards."
10. It has come in the evidence of Sub Inspector Satpal (P.W.6), Constable Jamil Ahmad (P.W. 4) and Constable Sukhram Pal (P.W. 3) that Gali Masjid Wali is a thickly populated area. It seems inconceivable that no one from the public had come to the spot to witness the alleged search and seizure operation. Having regard to the area and the place of search and seizure, it appears that public witnesses were available but no serious attempt was made FIR85/2007 PS Narcotics Branch Page 7/13 by Sub Inspector Satpal (P.W. 6) to associate them before searching the appellant. I am unable to find any reason as to why he did not even make any attempt to associate any independent witness or witnesses during the course of search and seizure operation."
(emphasis supplied by me).
11. Perusal of the record further shows that the alleged sample of Heroin, 'MarkA', was sent to FSL Rohini on 10.09.2007. The alleged recovery was effected from the possession of the accused on 27.08.2007. Therefore, there is a delay of about 13 days in depositing the samples at the FSL, Rohini. No explanation has been given by the IO, regarding the delay in submitting the samples to FSL Rohini, for chemical analysis.
12. It has been held by the Hon'ble High Court of Delhi in case titled as Matloob Vs. State (Delhi Administration), reported as 67 (1997) DLT 372, as under:
"11. My attention was drawn to Delhi High Court Rules and Orders PartIII Chapter 18B, which interalia, provides that articles for the opinion of the chemical examination should be forwarded without the least possible delay. In considering all this, delay if any, can be explained by the prosecution. Samples to CFSL in this case were despatched about one month after the substance was seized and no explanation for so much time taken in despatching the samples is forthcoming on record. Thus the prescribed promptitude appears to FIR85/2007 PS Narcotics Branch Page 8/13 be lacking in this case."
(emphasis supplied by me).
13. It has been further held by the Hon'ble High Court of Delhi in case titled as Rishidev @ Onkar Singh Vs. State (Delhi Administration), decided on 01.05.2008 in Crl. Appeal No. 757/2000, as under: "8. In a significant judgment in Parminder Singh v. State of Haryana 2007 (2) JCC (Narcotics) 71, the Punjab and Haryana High Court found that there was no explanation for the delay of 25 days in sending the samples for analysis. In para 13 of the judgment it was held as under: (JCC @ p.76)
13. No. explanation has come forward from the side of the prosecution as to why the samples were sent after a gap of 25 days for analysis. S.K. Nagpal, Retired Senior Scientific Officer, FSL, Madhuban PW2 has stated that on 7.8.2001 five sealed parcels were received in the Laboratory, but the same were returned back due to the reason that the FIR in that case was registered on 12.7.2001, with the objection regarding the delayed deposit of sample parcels. As per this witness, according to the narcotic Control Bureau Instructions, the sealed parcels should be deposited within 72 hours with the Chemical Examiner. He has further stated that two samples were to be taken of the seized contraband as per instructions. The explanation given by DSP Chander Singh PW6 to this witness was that samples could not be sent earlier due to VVIP duties. Ram Kumar MHC PW3 brought Rapat Roznamcha from 12.7.2001 to 16.7.2001. FIR85/2007 PS Narcotics Branch Page 9/13 During this period, it has been shown that the Police Force was not sent for VVIP duty at anytime. The crossexamination or Ram Kumar MHC PW3 was deferred by the trial court to enable the witness to produce the Roznamcha from 16.7.2001 to 13.8.2001. This witness was not brought into the witness box by the prosecution. We can safely infer that Ram Kumar PW3 was not brought again into the witnessbox, as the period from 16.7.2011 to 13.8.2001 did not show any VVIP duty. It is clear that the Investigation Officer Chander Singh DSP PW6 has only made an excuse, which is not convincing, that the samples could not be sent because of VVIP duty."
The above passage shows that there is a time limit of 72 hours stipulated by the narcotics Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event."
(emphasis supplied by me)
14. In the present case, the prosecution has not led any evidence for explaining the delay of about 13 days in sending the samples to FSL for chemical examination and the same violates the guidelines of NCB.
15. Perusal of the record further shows that the first sample, which was sent to the FSL on 10.09.2007 was chemically analysed FIR85/2007 PS Narcotics Branch Page 10/13 vide report dated 14.11.2007, (Ex.PW2/H) and the said sample contained 10.8% of diacetylmorphine, besides acetylcodeine and monoacetylmorphine. Whereas, the second sample, which was sent to FSL Rohini, in compliance of the order of the Court dated 08.04.2009, was analysed vide report dated 28.04.2009. As per the second report dated 28.04.2009, the second sample contained only 6% of diacetylmorphine, but, it also contained paracetamol, caffine, acetylcodeine and monoacetylmorphine. It indicates that there is a huge discrepancy in the content of diacetylmorphine in the two samples. The composition of the first sample is also different from the case property, from which, it was allegedly derived by the IO on 27.08.2007. The case property was containing additional contents of paracetamol and caffine, but, the sample taken out by the IO on 27.08.2007 was not containing these contents. The discrepancy in the contents/composition of the case property and percentage of diacetylmorphine, in the two samples, makes the prosecution case, doubtful. It has been held by the Hon'ble High Court of Delhi in Criminal Appeal No. 302/2008, in case titled as Radhey Shyam Vs. The State (NCT of Delhi), decided on 25.04.2011, as under:
"15. As per the testimony of raid officer SI Sunil Kumar, he had drawn two samples of 25 gms. each from the opium FIR85/2007 PS Narcotics Branch Page 11/13 respectively recovered from the appellants Chottey Lal and Radhey Shyam. Admittedly, the samples were sent to CFSL for analysis and as per the report of CFSL dated 14.09.2004 annexed to the charge sheet, respective samples were found to contain Morphine content to the extent of 3.4% and 3.2% respectively. Admittedly pursuant to the orders of this Court dated 16.07.2007 fresh samples were drawn from the case properties recovered from respective case and sent to CFSL. Those samples as per the report of CFSL Ex.PX gave an entirely different result i.e. The Morphine found in those samples was 0.49% and 0.47%. This huge variation in the content of Morphine in the sample sent earlier and the samples sent on subsequent occasions raise a strong doubt against the correctness of prosecution story, particularly when the prosecution has not been able to give a cogent explanation for this discrepancy. Only explanation given by learned APP is that the samples were sent for analysis after a gap of three years, therefore, a possibility cannot be ruled out that the Morphine contend in the case property came down due to some chemical reaction. Learned APP has not been able to show me any scientific literature in support of her contention. Therefore, I find it difficult to accept the aforesaid explanation for mismatch between the two CFSL reports. This discrepancy in two CFSL reports definitely puts a question mark on the prosecution story."
(emphasis supplied by me)
16. From the above discussion, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond a shadow of doubt, and accordingly, the accused is hereby acquitted for the offence punishable U/s 21 (b) of the Narcotic FIR85/2007 PS Narcotics Branch Page 12/13 Drugs and Psychotropic Substances Act, 1985. The bail bond submitted by the accused on 05.06.2009 shall remain in force for a further period of six months from today, as per the provisions of Section 437A of the Cr.P.C.
17. The accused is further directed to appear before the appellate court, as and when, the notice is issued to him by the appellate court, in any appeal, if preferred by the State. File be consigned to record room, after due compliance. Announced in the open Court on this 12th day of September, 2012. Brijesh Kumar Garg Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.
FIR85/2007 PS Narcotics Branch Page 13/13