Delhi District Court
Fir No. 251/2011 State vs . Neeraj Page No.1 Of 24 on 5 December, 2018
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE02 (EAST) SPL. JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
S.C. No. 1229/16
FIR No.251/11
U/s 20 NDPS Act
PS Vivek Vihar
State
Versus
Neeraj s/o Sh. Sudesh @ Badniya
H.No. 876, Gali no.1,
Jwala Nagar, Shahdara
Delhi110032
........... Accused
Date of Institution: 18.10.2011
Reserved for Judgment on : 19.11.2018
Judgment pronounced on: 05.12.2018
JUDGMENT
The prosecution case in brief is that on 21.08.2011, ASI Desraj alongwith HC Satish and Ct. Nitin were on patrolling duty near Tota Ram School Kasturba Nagar where at about 1.00 p.m., a secret informer came there and informed and one person would come after sometime from the side of NSA Colony, Vishwas Nagar, Factory area and would go to Jwala Nagar and that he is having ganja in his possession, if raided can be caught with ganja.
FIR No. 251/2011 State Vs. Neeraj Page No.1 of 24 ASI Desraj got recorded DD No. 14A and duty officer was asked to apprise senior officers. ASI Desraj asked 45 passersby to join the raiding party after telling them about the secret information but they left away telling their genuine reasons and without disclosing their names and addresses. Raiding party was organised with the available staff and alongwith secret informer, they reached on the under construction road on Shivam Enclave. Nakabandi was made at the spot. It is further the case of the prosecution that at about 1.45 p.m., one boy wearing white colour Tshirt having yellow colour bag in his right hand, was seen coming,who was pointed out by the secret informer that he is the same boy who is having ganja. The said boy was stopped at the corner near DDA Flats Jhilmil red light and he was informed about the secret information. In the meantime, Insp./ATO Sanjay Sinha also reached at the spot. On enquiry, the said boy told his name as Neeraj s/o Suresh. ASI Desraj gave the introduction to the accused and he was told about the secret information and that his search is to be conducted. He was also apprised about his legal rights that he can get himself searched in the presence of any gazetted officer/magistrate and that the arrangement for the same can be made. He was also informed that he can also take the search of the police party before his search. It is further the case of the prosecution that notice u/s 50 NDPS Act was served upon the accused. The said notice was read over to him. After receiving the notice, accused wrote on the carbon copy of the notice that he does not wish to get himself searched in the presence of FIR No. 251/2011 State Vs. Neeraj Page No.2 of 24 gazetted officer/magistrate and that his search can be taken by the police party. The accused signed his refusal on the notice. 45 passersby were requested to join the investigation but they refused and left away disclosing their genuine reasons. It is further the case of the prosecution that the bag of accused was taken and checked. On checking, it was found containing ganja. On weighing, it was found to be 3 Kgs. Out of the recovered ganja, 400 grams ganja was drawn as sample which was converted into pullanda after keeping in a white polythene and it was given serial no.1. Remaining ganja was kept in the same polythene, converted into cloth pullanda after keeping in the said bag on which Sale Monte Carlo jai Mata Di, Sachdeva's Menz TEE NZ Woollens' was written, and it was given serial no.2. Both the pullandas were sealed with the seal of 'DRS'. Form FSL was filled up at the spot. Both the pullandas alongwith FSL form were seized vide seizure memo. Seal after use was handed over to HC Satish. ASI Desraj prepared the rukka and handed over the same to Ct. Nitin alongwith both the pullandas, form FSL and carbon copy seizure memo with the direction to hand over the pullandas, FSL form and carbon copy of seizure memo to SHO and rukka to duty officer. Duty Officer recorded the FIR of the present case and SHO conducted the proceedings u/s 55 NDPS Act and put his seal of JS on the pullandas and thereafter deposited the case property in the malkhana. After registration of case, further investigation was conducted by SI Sachin Tomar. He reached at the spot and prepared the site plan. He arrested accused and conducted FIR No. 251/2011 State Vs. Neeraj Page No.3 of 24 his personal search. In the personal search, copy of notice u/s 50 NDPS Act and Rs.30/ in cash were recovered. Information about arrest of accused was given to Khusbu. Personal search articles were deposited in the malkhana. Disclosure statement of accused was recorded. Efforts were made to search the source of supply namely Moti but he could not be traced. Accused was produced in the court and he was sent to JC. Report u/s 57 NDPS Act was prepared by IO and it was sent to senior police officers. Sample pullanda bearing no.1 was sent to FSL for chemical examination. Pending receipt of FSL result, chargesheet was prepared against the accused u/s 20 NDPS Act and he was sent to Court for trial.
2. FSL result was filed in the court which confirmed that samples contained ganja. After compliance of section 207 Cr.P.C., charge u/s 20(b) (ii) (B) of NDPS Act was framed against the accused to which he pleaded not guilty.
3. In order to prove its case, prosecution examined 11 witnesses. PW1 is HC Rajender Kumar. He is the FIR recorder. He recorded FIR no.251/2011. Copy of FIR is Ex.PW1/A.
4. PW2 is SI Deshraj. He is the first IO. PW3 is HC Satish. He is the member of the raiding party. Seal after use was handed over to him. PW6 is HC Nitin. He is also the member of raiding party. He took the rukka and case property to PS. He got the FIR No. 251/2011 State Vs. Neeraj Page No.4 of 24 case registered and handed over the case property to SHO. PW7 Insp. Sanjay Sinha reached at the spot after information was received in the PS. All these witnesses are the members of raiding party. They are the witnesses of apprehension of accused and recovery of ganja effected from them. All these witnesses have deposed more or less the same as stated in para '1' of the Judgment and therefore, the same is not being repeated for the sake of brevity.
5. PW4 is Insp. Jarnail Singh. He is the then SHO. He deposed that duty officer informed him over phone regarding lodging of DD no.14A. He sent ATO Sanjay Sinha for the help of ASI Desraj. He further deposed that at about 4.10 p.m., Ct. Nitin came to PS and handed over him two sealed pullandas, sealed with the seal of DRS, carbon copy of seizure memo and FSL from. He examined the same and put his seal of JS on the pullandas and FSL form. He then deposited the said pullandas, seizure memo and FSL form in malkhana through MHCM and recorded DD no.17A Ex.PW4/A.
6. PW5 is ASI Bijender Singh. He is the then MHCM. He deposed that Insp. Jarnail Singh handed over two sealed parcels sealed with the seal of DRS and JS to him which he deposited in malkhana vide entry no. 3152 Ex.PW5/A. He also produced to him the personal search articles of accused alongwith notice u/s 50 NDPS Act which were also deposited by him in the malkhana. He FIR No. 251/2011 State Vs. Neeraj Page No.5 of 24 has also deposed that on 20.09.2011 he handed over one parcel to Ct. Hawa Singh vide RC no. 76/21 for deposit in the FSL. The copy of RC is Ex.PW5/B and copy of receipt is Ex.PW5/C.
7. PW8 is HC Hawa Singh. He took the sealed pullandas to FSL.
8. PW9 is SI Baljeet Singh. He was posted as SO to ACP. He deposed that he received report u/s 57 NDPS Act in FIR No. 251/11 vide diary no. 2837 and he diaried the same vide no.4177 dated 22.08.2011. He also stated that diary register for the year 2011 has been destroyed, certified copy of diary register dated 22.08.2011 is Mark X. He had brought the said report signed by the then ACP Sh PS Hooda. The same is Ex.PW9/A.
9. PW10 is Sh Prem Singh Hooda, ACP. He deposed that he had seen the report received by his reader. The said report is Ex.PW9/A.
10. PW11 is SI Sachin Tomar. He is the 2nd IO. He reached that the spot after registration of the FIR where accused alongwith documents were handed over to him. He prepared the site plan Ex.PW11/A and interrogated the accused and arrested him vide arrest memo Ex.PW3/A. His personal search was conducted vide memo Ex.PW3/B. He was interrogated and his disclosure statement FIR No. 251/2011 State Vs. Neeraj Page No.6 of 24 Ex.PW3/C was recorded. Information about arrest was given vide memo Ex.PW11/B. He deposited the personal search articles in the Malkhana. He tried to search the source but could not trace him. On 22.08.2011, he prepared report u/s 57 NDPS Act and submitted the same to SHO, copy of the same is Ex.PW11/C. He further deposed that on 20.09.2011, exhibits were sent through Ct. Hawa Singh to FSL who had deposited the same there. On 08.11.2011, he obtained the FSL result Ex.PW11/E which was filed vide application Ex.PW11/D . The notice u/s 50 NDPS Act recovered in the personal search of accused is Ex.P3.
11. Statement of accused u/s 313 Cr.P.C was recorded wherein he has stated that he is innocent. He has been falsely implicated in this case. He stated that on 21.08.2011, his mother was admitted in Sharda Nursing Home, Jhilmil Colony. He and his brother Vikas were present at the house. At about 8 a.m.,police party raided their house but found nothing incriminating. Police took him and his brother Vikas to PS where his brother was challaned u/s 107/151 Cr.PC. Ganja was planted upon him and he has been falsely implicated in this case being sahansi. Accused has opted to lead the defence evidence. However, accused has not examined any witness and on 29.09.2018, DE was closed. At the time of closing D.E, Ld. Counsel placed on record the copy of kalandra u/s 107/151 Cr.P.C, order of SEM dted 22.08.2011, copy of DD no.19A, copy of statement of Manu Kumar, copy of MLC and plead guilty FIR No. 251/2011 State Vs. Neeraj Page No.7 of 24 application.
12. Arguments have been heard from the Ld. Addl. PP as also from the Ld.Counsel for accused. Ld. Addl.PP has argued that the recovery witnesses examined by the prosecution have proved the recovery of 3 Kgs ganja from the possession of accused. All the relevant provisions of NDPS Act have been duly complied with. The witnesses have supported the prosecution case. FSL result confirms that the recovered substance was ganja. It is therefore, argued that the prosecution has been able to prove its case against the accused.
13. Ld. Counsels for accused argued that the case of the prosecution is false and fabricated. There is no compliance of Section 42 and 50 of NDPS Act in this case. Notice u/s 50 NDPS Act as also the seizure memo bears the FIR numbers which suggest that documents were prepared after sitting in the PS. Only one sample was drawn and that second sample has not been taken by the IO. Parcels were not signed by any witness. Ld. Counsel argued that the seal was deposited in malkhana alongwith sample and thus, tampering the case property cannot be ruled out. Ld. Counsel has drawn the attention on the entries made in register no.19 and stated that there is no mention about seal of SHO. No public persons has been associated by the IO at the time of apprehension of accused and alleged recovery effected from him. Ld. Counsel has drawn the FIR No. 251/2011 State Vs. Neeraj Page No.8 of 24 attention of the Court to the testimonies of all the police witnesses and stated that despite admission of the witnesses regarding availability of public witnesses at the spot, no effort was made to join them in the investigation. It is also submitted that the samples of the present case were not sent to FSL in time and that there is delay of about 30 days in sending the samples to FSL. It is requested that accused may kindly be acquitted.
14. PW2 SI Desraj, PW3 HC Satish Chand, PW6 HC Nitin and PW7 Insp. Sanjay Sinha are the three witnesses of recovery on which the prosecution case mainly rests. PW11 SI Satish is the second IO to whom the further investigation was entrusted. On 21.08.2011, PW2 SI Deshraj aongwith PW3 HC Satish and PW6 HC Nitin were on patrolling duty near Tota Ram School, Kasturba Nagar. At about 1.00 p.m, one secret informer came there and informed PW2 that one person would come after sometime from the side of NSA Colony, Vishwas Nagar, Factory area and would go to Jawala Nagar and that he was having ganja in his possession, if raided can be caught with ganja. He informed the duty officer telephonically and the said information was got lodged vide DD no.14A through duty officer and he was also directed to send some senior police official to the spot. He requested 45 passersby/public persons to join the raiding party but none agreed and they all left the spot without telling their names and addresses. PW2 prepared the raiding party including the secret informer and thereafter, they FIR No. 251/2011 State Vs. Neeraj Page No.9 of 24 reached Shivam Enclave on the road which was under construction and made nakabandi near red light DDA Flat, Jhilmil Colony. PW2 has further deposed that at about 1.45 p.m, one young boy wearing white shirt having yellow colour bag having something in it came from the side of Vishwas Nagar factory through under construction/kaccha way, who was pointed out by the secret informer informing him that he was the boy about whom he had informed. The said boy was stopped and PW2 introduced himself and the raiding team members informing about the secret information and that he was to be searched. His name came to be known as Neeraj. He was informed about his legal rights that he can be searched in the presence of a Gazetted officer or a Magistrate and that they can be brought at the spot, is he wanted so. Notice u/s 50 NDPS Act was prepared in duplicate and carbon copy was served upon the accused. Accused had written his refusal for search to be conducted in the presence of Gazetted Officer or Magistrate. The carbon copy of notice is Ex.PW2/A and reply of accused is Ex.PW2/B. PW2 requested 45 pubic persons to join the proceedings but none agreed and left the spot without giving their names and addresses. PW2 has further deposed that he took the plastic bag of yellow colour from the hand of accused and checked it. It was found containing one plastic polythene of blue colour and on checking the said polythene, it was found containing ganjanuma material. The same was smelt and it was found to be ganja. On weighing, it was found to be 3 Kgs. One sample of 400 grams was FIR No. 251/2011 State Vs. Neeraj Page No.10 of 24 taken from the said ganja, kept in a white colour polythene, converted into cloth parcel and given serial no.1. Rest of the ganja was also kept in blue colour polythene and it was kept in yellow colour polythene upon which Sale Monte Carlo, Jai Mata Di, Sachdeva's and Menz Teenz Woollens was written, with the help of cloth, pullanda was prepared and it was given serial no.2. Both the parcels were sealed with the seal of 'DRS'. Form FSL was filled at the spot and the case property was taken into possession vide memo Ex.PW2/C. PW2 prepared the rukka Ex.PW2/B and handed over the same to PW6 Ct.Nitin for registration of the case. Case property was also handed over to him to produce the same before SHO. Case was got registered and further investigation was conducted by PW11 SI Sachin who arrested the accused and recorded his disclosure statement. Similar are the statements of PW3 HC Satish Chand and PW6 HC Nitin who are the members of the raiding party and PW7 Insp. Sanjay Sinha who reached at the spot and proceedings were conducted in his presence by the IO.
15. Ld. Counsel for the accused stated that the IO of this case has not associated any public witness in this case. However, Ld. Addl.PP stated that there is no need to associate any public witness as the testimonies of police officials are straight forward regarding recovery of smack from the accused. He submitted that testimonies of police officials cannot be disbelieved. Accused was apprehended while the police officials were on patrolling.
FIR No. 251/2011 State Vs. Neeraj Page No.11 of 24 Admittedly, there is no public witness of recovery effected at the spot and all the recovery witnesses are police officials. The place of apprehension as per site plan Ex.PW11/A is Shivam Enclave, Near Redlight, DDA Flats Jhilmil, Delhi. The time of apprehension of accused is about 1.45 p.m. PW2 SI Desraj has stated that he requested 45 passersby to join the raiding party after briefing them about the information but none agreed and they all left the spot without giving their names and addresses. Similar is the statement of PW3 HC Satish and PW6 HC Nitin. In cross examination, PW2 stated that the nakabandi was made in the abadi itself. He did not try to join any public witness from the residential area or from the shops across the road. He cannot tell the names and addresses of the persons who refused to join the raiding party. No written notice was served upon them. There was traffic on the main road. PW3 ASI Satish Chand (the then HC) stated that the accused was apprehended near the wall of Shivam Enclave, across of which there was residential flats/houses. Nobody was called from the residential area or the said market to join the proceedings by the IO. PW6 HC Nitin, in cross examination has stated that it was a public place/residential place where the secret information was revealed to the IO. He cannot tell the names of the public persons who were requested to join the proceedings. No written notice was given to any public person who refused to join the proceedings. Nobody was requested from the residential houses to join the investigation. The residential area is at the distance of about 30 meters from the spot. Testimonies FIR No. 251/2011 State Vs. Neeraj Page No.12 of 24 of all the raiding party members shows that the spot is a busy place. Many public persons used to pass through the same, it being a residential area. PW2 has clearly stated in his cross examination that he did not call any person from the residential area or from the shops across the road to join the proceedings. He even did not serve any notice to the passersby who refused to join the investigation. Accused was apprehended at about 1.45 p.m. There was enough time and opportunity to join the public persons in the raiding team. No notice was served to the public persons nor any action taken against them on their refusal to join the investigation. Even 2 nd IO PW11 SI Sachin Tomar has not served any notice upon the public persons who refused the join the investigation. Police officials remained at the spot till about 8.30 p.m. Thus, the police team remained at the spot for more than six hours. During this long time, no one from the public was joined though place of apprehension is a residential area. Thus, it appears that no genuine effort was made to join the public persons in the raiding team. Ld. Addl.PP has referred to the decision of Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 arguing that failure to associate independent witnesses is not fatal to the prosecution case as long as it is shown that efforts were made and none was willing. However, it is seen that in the said decision, Hon'ble Supreme Court emphasized that it has to be shown that after making efforts the police official was not able to get the public witness associated in either raid or the arrest of the culprit. In FIR No. 251/2011 State Vs. Neeraj Page No.13 of 24 other words, in every case, it will have to be examined whether serious efforts were made by the police to associate public witnesses.
16. The Hon'ble Supreme Court in Ritesh Chakraborty Vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150 deprecated the practice of Investigating Officer in not noting down the names of the public persons, who fail to join the investigation.
17. In Anup Joshi Vs. State, 1999 (2) CC Cases 314, and Roop Chand Vs. State of Haryana, 1999 (1) CLR 69; the failure to proceed against the public persons, who refused to join the investigation was considered as suggestive of the fact that the explanation for nonjoining of witnesses is an afterthought and is not worthy of credence.
18. In the case of Mohd. Masoom Vs. State of NCT of Delhi, Criminal Appeal 1404/11, decided by Hon'ble Delhi High Court on 09.04.2015, the Hon'ble High Court in Para No. 10 held as under: "10. "Appellants" conviction is primarily based upon the testimonies of the police officers/officials only. Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no rule of law that public witnesses should be joined in every eventuality and no conviction FIR No. 251/2011 State Vs. Neeraj Page No.14 of 24 can be based upon the testimonies of the police officials. Sometimes, it becomes highly difficult for the police officials to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of independent public witnesses is not a mere formality.
Simply saying by the police witnesses that public witnesses were not available without any evidence to that effect would not suffice. The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits."
19. Hon'ble High Court in para '21' of the aforesaid Judgment held that it has become almost routine practice for the police to say that passersby were requested to join and they declined and went away without disclosing their names and therefore, the Court should be wary of routinely accepting such explanation.
20. In the latest case of Om Prakash Vs. State III (2014) CCR 1 (Del.), it is held that 'in absence of clear evidence to show that sincere effort was made, Court should not simply accept proposition that generally in such cases no member of public comes forward to help prosecution'. Reliance also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.
FIR No. 251/2011 State Vs. Neeraj Page No.15 of 24
21. In the present case, public persons were not made to join the proceedings at the time of recovery at the spot and there seems to be no genuine efforts to join them. Hence, nonjoining of public witnesses at the time of recovery creates doubt regarding the entire proceedings being genuine.
22. Ld. Defence Counsel has submitted that there is violation of Section 42 of NDPS Act in as much as PW2 SI Desraj did not record "Grounds of Belief" and sent to senior officials. Ld. Addl.PP, on the other hand has submitted that there is no violation of Section 42 NDPS Act because PW2 has received the secret information given to him by the secret informer and he informed the Duty Officer to send the same to senior officers.
23. The mandatory nature of the above requirement of law regarding recording of "Grounds of Belief" was explained in Karnail Singh Vs. State of Haryana VI (2009) 8 SCC 539 which is as under: "In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as FIR No. 251/2011 State Vs. Neeraj Page No.16 of 24 follows:
(a) The officer on receiving the information (of the nature referred to in Subsection (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received FIR No. 251/2011 State Vs. Neeraj Page No.17 of 24 and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total noncompliance of requirements of Subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or nonsending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy FIR No. 251/2011 State Vs. Neeraj Page No.18 of 24 thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
24. In the present case, secret information was received by PW2 SI Desh Raj. He deposed that at about 1.00 p.m., one secret informer came and informed him that one person would come after sometime from the side of NSA Colony, Vishwas Nagar, Factory area and would go to Jawala Nagar and that he was having ganja in his possession, if raided can be caught with ganja. He informed the duty officer telephonically and the said information was got lodged vide DD no.14A through duty officer and he was also directed to send some senior police officers at the spot. In cross examination, he has stated that the informer had not disclosed the name of the suspect. He had not recorded the secret information. He informed the duty officer through his mobile phone. He does not remember the telephone number from which he informed the duty officer. PW3 FIR No. 251/2011 State Vs. Neeraj Page No.19 of 24 HC Satish has also stated in cross examination that ASI Desraj had not written the information on any paper. I have perused the testimony of PW1 HC Rajender Kumar who was posted as Duty Officer at the relevant time. He stated that he was on duty from 4 p.m to 12 night. He has only deposed about registration of FIR. DD No. 14A was recorded at 1.20 p.m. Thus, prosecution has not examined the DD writer who recorded DD no.14A regarding receipt of secret information. However, the copy of said DD was handed over to PW7 Insp. Sanjay Sinha who reached at the spot and joined in the investigation. PW7 Insp. Sanjay Sinha has no where stated that he had forwarded the copy of said DD no.14A to ACP. PW2 has clearly stated that he had not recorded the secret information but he passed the information to PS. PW2 has not stated that he asked the Duty Officer to send the copy of DD to senior officers. The prosecution has failed to examine the said DD writer. I have perused the statement of the then SHO/Insp. Jarnail Singh examined by the prosecution as PW4 in this case. He stated that on 21.08.2011 duty officer informed him over phone that DD no.14A has been lodged on the information of ASI Desraj that a boy shall come with ganja from the side of Bhola Nath Nagar towards Tota Ram School. He was also informed that PW7 Insp.Sanjay Sinha has been sent to help ASI Desraj. Firstly, the version of PW4 regarding DD no.14A has come under improvement. He was confronted with his statement Mark PX recorded by the IO in this respect where nothing about DD no.14A has been found mentioned. Secondly, FIR No. 251/2011 State Vs. Neeraj Page No.20 of 24 PW4 has nowhere stated that he received the copy of DD no.14A and forwarded the same to senior police officers. PW9 SI Baljeet Singh who was posted as reader to ACP at the relevant time as also PW10 Prem Singh Hooda, the then ACP have not stated anything regarding receipt of DD no.14A which was recorded on receipt of secret information. Compliance of Section 42 NDPS Act is not attracted in chance apprehension. However, the present case is a case of receipt of secret information. There is no corroborative evidence in this case regarding recording of secret information and sending the copy thereof to the SHO/ACP. Duty officer who recorded the information has not been examined. The then SHO PW4 Insp. Jarnail Singh has neither received the said DD nor forwarded the same to ACP. Thus, in the present case the link evidence with regard to sending of secret information to the senior police officer is missing and therefore, there is clear violation of Section 42 of NDPS Act in this case. From the evidence, it can be inferred that copy of DD no.14A was never sent to SHO and that it was never received by the ACP. Since there is no compliance of Section 42 of NDPS Act, the entire recovery proceedings stand vitiated.
25. In the present case recovery was effected on 21.08.2011. However, samples were sent to FSL through PW8 HC Hawa Singh on 20.09.2011. The samples were sent to FSL after about 30 days. Hon'ble High Court in the case of Matlub Vs. State FIR No. 251/2011 State Vs. Neeraj Page No.21 of 24 67(1997) DLT 372 held that sample needs to be sent to FSL without delay and if samples are dispatched with delay and no explanation is given, tampering with the seal can be inferred. In the present case, PW2 has stated that he handed over the seal after use to PW3 HC Satish Chand. He also stated that PW3 deposited the seal in malkhana and that he collected his seal of DRS from MHCM on the next day. Case property i.e. sample pullanda and remaining case property was deposited with MHCM who had the seal of IO SI Deshraj (PW2). PW2 took back the seal, next day. Thus, the seal came in possession of PW2 before sending the case property to FSL. Seal remained with MHCM alongwith pullandas. Copy of register no.19 Ex.PW5/A shows that MHCM has not mentioned that the pullandas were also sealed with the seal of SHO i.e. seal of 'JS' at the time of deposit of the case property. Had there been any such seal, he would have mentioned the same in the register. Further, in the present case, PW2 deposed that he weighed the ganja on electronic weighing scale. However, in cross examination PW6 HC Nitin stated that IO was having weighing scale and the weights with him. When the weighing scale was electronic one, there was no need for weights and its seems that PW6 did not witness the weighing process. I have also perused the notice u/s 50 NDPS Act Ex.PW2/A (Original Ex.P3). Perusal of the same revealed that it has not been witnessed by any member of raiding party. All the circumstances create doubt about presence of members of raiding party at the spot FIR No. 251/2011 State Vs. Neeraj Page No.22 of 24 and in turn case of the prosecution seems to be doubtful.
26. In the present case, PW2 has failed to associate any public witness during apprehension and recovery from the accused. There is no compliance of mandatory provision i.e Section 42 of NDPS Act. Notice u/s 50 NDPS Act has not been witnessed by any member of the raiding team. The recovery was effected on 21.08.2011 and sample was sent to FSL on 20.09.2011 with delay of about 30 days. The raiding team member to whom the seal was handed over after use, has deposited the same in malkhana. SHO also deposited the case property in malkhana and PW2 received the seal next day i.e. before sent the parcels to FSL.
27. Serious punishments are prescribed under the NDPS Act and therefore stricter the punishment, stricter the mode of proof. In the case of Noor Agha Vs. State of Punjab & Anr. 2008 (3) JCC (Narcotics) 135, the Hon'ble Court held that in a case arising out of the provisions of NDPS Act the legislature has provided very stringent punishment. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of statutory safeguards available to the accused.
28. In the State of Punjab Vs. Baldev Singh (1999) 3 FIR No. 251/2011 State Vs. Neeraj Page No.23 of 24 SCC 977, the Hon'ble Supreme Court held that it must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguard provided in statute are scrupulously followed.
29. In view of my aforesaid discussions, I find that there is no compliance of mandatory Section 42 of NDPS Act. The case of the prosecution is doubtful. It is well settled law that benefit of doubt is always given to the accused. Accused Neeraj is accordingly acquitted. However, he shall furnish a personal bond in the sum of Rs.20,000/ with a surety of the like amount u/s 437A Cr.P.C.
File be consigned to record room after the requisite bond is furnished.
Digitally signed by Announced in the open AJAY AJAY GUPTA Location: Karkardooma Court court on 05.12.2018 GUPTA Date: 2018.12.05 11:31:46 +0530 (AJAY GUPTA) Addl. Sessions Judge02(East) Special Judge (NDPS) KKD COURTS, DELHI. FIR No. 251/2011 State Vs. Neeraj Page No.24 of 24