Delhi District Court
State vs . Basudev & Anr. on 6 February, 2016
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS : Rohini Courts : Delhi
In the matter of :
SC No. 65/12
State Vs. Basudev & anr.
FIR no. 201/12
PS Crime Branch
U/s 20(b)(ii)(C)/25/29 NDPS Act
State
Versus
1) Basudev @ Badal @ Mota
S/o Sh. Mehant Charan Dass
R/o 37/139, CBlock,
Jahangir Puri, Delhi.
2) Shree Ram
S/o Sh. Mata Badal
R/o Karan Enclave,
Chipiyana Buzarak,
Amarjeet Singh Ka Makan,
Gautam Budh Nagar, U.P.
Date of receipt : 1.11.2012
Date of arguments : 06.02.2016
Date of announcement : 06.02.2016
SC no. 65/12 Dtd... 06.02.2016 Page 1 of 48
2
JUDGMENT
1. The above named two accused were sent for trial with the case of prosecution that they breached Section 20, 25 & 29 of NDPS Act 1985.
1.1 Briefly stated the facts of the case are that a secret information was received on 25.07.2012 at 9.00 PM in the SIT Office of Crime Branch, Delhi to the effect that accused Shree Ram would come with a tempo loaded with ganja brought from Orissa at about 1.30 in midnight on 26.07.2012 at an isolated place on the backside of Model Town near the Srijan School. The secret informer also disclosed that the ganja would be unloaded from the tempo at that place and it would be delivered to others for supply in Delhi and Noida. The secret information was conveyed to Additional DCP Dr. Joy Tirkey who also enquired from the informer. Thereafter, the secret information was reduced into writing under DD no. 15 at 9.45 PM. Raiding team was prepared, headed by Inspector Jitender. The raiding team reached the designated spot at 1.00 AM in the midnight, along with the informer, in two different vehicles. The raiding team took position at the spot, and at about 1.20 AM one person was found busy in lifting and arranging some bags on a vacant plot in front of G.D.Goenka School, Model Town. The informer identified that person as Shree Ram and then left. At 1.30 AM, one car entered the vacant plot and halted near accused Shree Ram. Then accused SC no. 65/12 Dtd... 06.02.2016 Page 2 of 48 3 Shree Ram went near the car; had some conversation with the driver of the car and; then loaded a bag on the rear seat of the car. The raiding team then apprehended accused Shree Ram and the driver of the car. The name of the driver of the car was learnt as Basudev, the second accused. Basudev is physically handicapped. The raiding team disclosed the information to both the accused; complied with Section 50 of the NDPS Act and; then found that in the Maruti Zen vehicle of accused Basudev bearing number plate DL2C N 8136, which was mechanically modified to be driven by handicapped accused Basudev with elevated break pedal and accelerator and automatically driven, contained one plastic bag on the rear seat of the car. The bag was taken out of the car and was given Serial no.1. It was found containing ganja and its weight turned out to be 20 Kgs. Thereafter, the other bags which were still on the ground were counted and total six such plastic bags were found. Those six plastic bags were given Serial no. 2 to 7. Upon checking, those bags were also found to be containing ganja. In each of those six bags found at the ground, 30 Kg of ganja was found. From each of the seven bags containing ganja, two samples of 500 grams each were separated. The sample parcels were correspondingly given Serial no. 1A &1B to 7A & 7B. The FSL form was filled up. The case property was sealed with the seal of IO. Thereafter, complaint was prepared and sent for registration of FIR through HC Sanjay. The car was also seized. All the case property duly sealed was also sent along with the FSL form SC no. 65/12 Dtd... 06.02.2016 Page 3 of 48 4 and copy of seizure memo to the SHO. After the FIR was registered, investigation was assigned to ASI Jagdish who reached the spot, prepared the siteplan; arrested both the accused and; conducted their personal search.
1.2 During investigation, the supplier of contraband could not be traced.
No other destination could be ascertained for which the ganja was meant. However, during investigation mobile call details of both the accused were obtained which reflected that they were in touch frequently with each other.
1.3 On completion of investigation, chargesheet was filed against both the accused.
2 Accordingly, against accused Shree Ram, a charge U/s 20(b)(ii) (C) NDPS Act for possessing 200 Kg of ganja and a charge U/s 29 of NDPS Act for conspiracy was framed. Against accused Basudev also, similar charge was framed U/s 20(b)(ii)(C) & Sec. 29 of NDPS Act. Basudev additionally was charged U/s 25 of NDPS Act for using the vehicle for transporting contraband. Both the accused pleaded not guilty to the said charges and claimed trial. 3 In support of its case, prosecution examined total 21 witnesses. 3.1 Out of the 21 witnesses examined by the prosecution, the recovery witnesses examined are PW1 HC Vijender, PW9 HC Sanjay and, PW10 Inspector Jitender. The subsequent investigating officer is examined as PW19 ASI Jagdish. Remaining witnesses are more or SC no. 65/12 Dtd... 06.02.2016 Page 4 of 48 5 less formal in nature.
3.2 From amongst the formal witnesses, PW2 Amarjeet was the landlord of accused Shree Ram. There is nothing more in the testimony of this witness.
3.3 PW3 HC Sunil Kumar deposed that on 27.07.2012 he along with investigating officer SI Jagdish, SI Anil, HC Mhd. Abrar along with the accused Shree Ram went to the tenanted premises of accused, owned by PW2, and from the house of accused Shree Ram, one PAN card, one election I card, one debit card, one deposit slip of SBI and one diary in which certain telephone numbers were written, were found. Those documents were seized by the investigating officer vide memo Ex.PW3/A. Those documents were identified as Ex.PW3/B & C. This witness also carried the sample parcels along with the FSL form to FSL on 31.07.2012 vide road certificate Ex.PW3/D, and he obtained acknowledgment receipt from the FSL Ex.PW3/E. 3.4 PW4 Inspector C. R. Meena was the SHO of police station Crime Branch, before whom HC Sanjay produced the 21 sealed parcels along with the FSL form, and copy of seizure memo. This witness affixed his seal on all the parcels and same specimen seal on the FSL form and he also noted down the FIR number after enquiry from the duty officer and then deposited the articles and documents in the malkhana vide entry in Register no. 19 Ex.PW4/A. Regarding deposition of case property, DD no. 2 was also lodged by this SC no. 65/12 Dtd... 06.02.2016 Page 5 of 48 6 witness.
3.5 PW5 HC Anil was the duty officer in SIT Office, Crime Branch, Sector18, Delhi. He proved the recording of DD no. 15, 16 & 17 at 9.45 PM, 12.30 AM and 4.55 AM, respectively, on the night intervening 25th & 26th July, 2012, as Ex.PW5/A to Ex.PW5/C1 respectively. This witness also went to Orissa in search of accused Bapuji who could not be found at his house, after the house of Bapuji was pointed out by accused Shree Ram while in police custody on 30.07.2012.
3.6 PW6 Dr. Joy Tirkey was the Additional DCP in the SIT who deposed that the secret informer was produced before him by Inspector Jitender on 25.07.2012. He then confirmed the secret information from the informer. Subsequently, this witness received copy of DD no. 15 in compliance of Sec. 42 of NDPS Act on that very night and, he also received two reports U/s 57 of NDPS Act Ex.PW6/B & C, on 26.07.2012 i.e. within the stipulated period. 3.7 PW7 HC K. J. Joseph proved the entries in the diary of correspondences regarding receipt of reports U/s 42 & 57 of NDPS Act in the office of Addl. DCP on 25 & 26 th July, 2012, within the stipulated period.
3.8 PW8 Nitesh Kumar deposed that he knew accused Shree Ram and on request of accused Shree Ram, he provided copy of his driving license, IDCard proof and photograph to Shree Ram, on the basis of SC no. 65/12 Dtd... 06.02.2016 Page 6 of 48 7 which accused Shree Ram procured two mobile connections in the name of this witness. But the witness was unable to tell the mobile numbers even after he was informed of those mobile numbers under leading questions by the Ld. Prosecutor.
3.9 PW11 Inspector Narender Kumar from the Motor Transport Workshop simply deposed that he inspected the vehicle no. DL2C N 8136 of accused Basudev on 6.09.2012 and gave his report Ex.PW11/B. During inspection of the said vehicle, it was found to be suitably modified to suit the requirements of handicapped person who was handicapped from legs, as the clutch of the vehicle was modified and the vehicle was also found to be auto transmission vehicle.
3.10 PW12 Rajeev Ranjan, the Nodal Officer from Tata Tele Services Ltd., proved that the mobile no. 9266957236 was in the name of accused Shree Ram. The call detail records of this mobile are proved as Ex.PW12/C1. The witness also proved that the mobile connection numbers 9278677786 & 9210008085 both were in the name of accused Basudev. The call detail records of these mobiles are proved as Ex.PW12/D1, 12/H & Ex.PW12/E1. The witness proved Certificate U/s 65 of Indian Evidence Act as Ex.PW12/F & F 1 & Ex.PW12/I. Cell ID Chart is proved as Ex.PW12/G. 3.11 Similarly, PW13 Jyotish Moharan, the Nodal Officer from MTS, proved that the mobile connection no. 8459815875 stands in the SC no. 65/12 Dtd... 06.02.2016 Page 7 of 48 8 name of accused Shree Ram. The mobile call details of this telephone are proved as Ex.PW13/A1, along with the requisite certificate U/s 65 of Indian Evidence Act as Ex.PW13/B. 3.12 PW14 Amarnath Singh, the Nodal Officer from Idea Cellular, proved that the mobile connection number 9911009042 stands in the name of Nitesh and the mobile call details of this phone are proved as Ex.PW14/A1 with requisite certificate U/s 65B as Ex.PW14/B. 3.13 PW15 Vijender Kumar (inadvertently renumbered as PW15, whereas HC Jaipal was already examined as PW15), from the Transport Department, proved that the car no. DL 2C N 8136 was registered in the name of accused Basudev.
3.14 PW16 HC Jag Narain (inadvertently renumbered as PW16, whereas Chander Shekhar was already examined as PW16) was the concerned malkhana moharrar who proved deposition of case property with documents in the malkhana on the date of recovery; deposition of personal search articles and; sending of the sample parcels to the FSL through HC Sunil vide RC and acknowledgment receipt, all Ex.PW16/A to Ex.PW16/F2.
3.15 PW15 HC Jaipal was the duty officer of police station Crime Branch, Malviya Nagar who deposed about registration of FIR Ex.PW15/A and also deposed regarding lodging of DD no. 21 & DD no. 2 as Ex.PW15/B to D. 3.16 PW16 Chander Shekhar, the Nodal Officer from Bharti Airtel, SC no. 65/12 Dtd... 06.02.2016 Page 8 of 48 9 proved that mobile no. 9556076049 was registered in the name of Bairagi Jena. The mobile call details of this mobile were proved as Ex.PW16/C with a requisite certificate U/s 65B of Indian Evidence Act as Ex.PW16/D. 3.17 PW17 Israr Babu, the Alternate Nodal Officer from Vodafone Mobile Services, proved that the mobile connection no. 8373989556 stands in the name of Nitish Kumar. The call detail records of this mobile are proved as Ex.PW17/C, C1 and H1. The witness also proved that the mobile no. 7873776609 stands in the name of one Lambodhar Pradhan. The mobile call details of this are proved as Ex.PW17/G. The requisite certificates U/s 65B of Indian Evidence Act are proved as Ex.PW17/D, H & I. 3.18 PW18 Ashish Chauhan from Maruti Suzuki India Ltd. proved that the Maruti Zen car no. DL 2C N 8136 was manufactured without any factory fitted handicapped controls, although the vehicle was automatic transmission vehicle. Thereby meaning that the vehicle was mechanically modified lateron.
3.19 From amongst the recovery witnesses, prosecution examined PW1 HC Vijender, PW9 HC Sanjay and, PW10 Inspector Jitender. It is deposed that on 25.07.2012 at 9.00 PM, HC Sanjay while posted at SIT Sector18, Rohini, received a secret information that accused Shree Ram would come to supply ganja at about 1 1.30 AM in the midnight of 25th & 26th of July 2012, in a tempo, near SC no. 65/12 Dtd... 06.02.2016 Page 9 of 48 10 The Srijan School, Model TownIII to supply ganja to others. This information was disclosed to Inspector Jitender, who also spoke to the informer and then produced the informer before the DCP (PW6). Thereafter, the secret information was reduced into writing under DD no. 15 Ex.PW6/A, at 9.45 PM. The raiding team comprising of these three witnesses as well as another HC Sanjay, HC Mohd. Abrar, Ct. Parvez Alam, Ct. Virender and Ct. Vijender was constituted at 10 PM. The raiding team left the office at 12.30 AM in the midnight along with the informer in two private vehicles, i.e. one Toyota Innova car and one santro car, vide DD no. 16. Investigating officer carried with him his laptop, power backup, electronic weighing machine, torch light and IO bag to the spot. The raiding team took position at the spot at 1.20 AM. Prior to it, five passers by were requested to become witness, but none of them agreed. At about 1.30 AM, one car entered the vacant plot adjoining The Srijan School. Prior to it, one person was seen arranging some gunny bags in the plot. That person was identified by the informer as Shree Ram and then the informer left the spot. Accused Shree Ram went up to the car driver, spoke to him and then kept one gunny bag on backseat of the car. The raiding team then apprehended both the accused. Accused Shree Ram was the person who was on the plot and accused Basudev came in the car. After complying with Section 50 of NDPS Act, search was conducted. Besides one gunny bag recovered from the backseat of the car, six other similar gunny bags were recovered SC no. 65/12 Dtd... 06.02.2016 Page 10 of 48 11 from the vacant plot. All the bags were containing ganja. The bag recovered from the Maruti Zen car no. DL 2C N 8136 weighed 20 Kg. The six bags kept on the plot all weighed 30 Kgs of ganja each. From all the bags, two samples each of 500 grams of ganja each were separated. All the seven main gunny bags and fourteen sample parcels were given serial no. 1, 1A, 1B to 7, 7A, 7B respectively, and were sealed with the seal of IO. FSL form was filled up, case property was taken into possession vide seizure memos, car was also taken into possession and, then rukka was prepared. Through HC Sanjay the first information report was got lodged and HC Sanjay also carried the case property along with FSL forms and copies of seizure memos to the SHO (PW4) and handed them over to PW4. After registration of FIR, HC Sanjay returned to the spot with copy of FIR and orginal rukka.
3.20 PW19 ASI Jagdish was appointed as subsequent investigating officer who reached the spot. It is deposed by HC Vijender, HC Sanjay, Inspector Jitender and ASI Jagdish that ASI Jagdish prepared siteplan at the spot, arrested both the accused, conducted their personal search and then Inspector Jitender was made free from the spot after his statement was recorded. It is also deposed by ASI Jagdish and the two Head Constables that thereafter both the accused were taken to SHO, Police Station Crime Branch, Malviya Nagar, where personal search articles of both the accused were deposited along with the car of accused Basudev. Thereafter, the SC no. 65/12 Dtd... 06.02.2016 Page 11 of 48 12 two accused were taken to SIT Crime Branch where disclosure statements of both the accused were recorded.
3.21 Inspector Jitender and ASI Jagdish also deposed that they submitted their respective reports U/s 57 of NDPS Act within the stipulated period.
4 On conclusion of prosecution evidence, all the incriminating evidence was put to both the accused in their statements U/s 313 Cr.P.C. 4.1 In his statement, accused Shree Ram claimed that he did not go to the place of recovery at all and had never been to that place. He claimed that he was picked up by the police from Lal Kuan, Ghaziabad on 24.07.2012 between 5 AM to 7 AM after he was called there on a call made from the mobile phone of accused Basudev. He had seen accused Basudev, a handicapped person, once prior to being implicated in this case as he used to do social work for handicapped persons, otherwise he had no personal acquaintance with coaccused Basudev. He was dragged inside one Maruti car in which coaccused Basudev was already sitting at Lal Kuan, Ghaziabad. Then he was taken to his house and then he was implicated in this case. Shree Ram claims that the entire story of prosecution is concocted; nothing was recovered from him; his signatures were taken on blank papers and; he was forced to write as per wishes to police on the dictation of police. This accused also claimed that he was not carrying any mobile phone with him when he was apprehended and the mobile phone shown in his personal SC no. 65/12 Dtd... 06.02.2016 Page 12 of 48 13 search memo does not belong to him. He claimed that the said phone belonged to some shopkeeper at Badarpur who had given that phone to this accused stating that someone had called the accused on his mobile and when this accused was calling the mobile of Basudev, police apprehended him. He claims that his own mobile was lost two days prior to the incident. The accused however admitted that connection no. 9266957236 belongs to him. When the accused was confronted with the calls made between his mobile number 8459815875 and the mobile of accused Basudev, 9278677786, the accused admitted that those calls were made in connection with disabled persons social service. 4.2 When incriminating evidence was put to accused Basudev, he also denied that he ever went to the place of apprehension. He claimed that he was picked up by the police on 22.07.2012 at 6.00 AM, when he was sleeping in his car outside his DMS Milk booth at India Gate, and then he was falsely implicated in this case. Even he claimed that police obtained his signatures on blank papers forcibly. He admitted that the Maruti Zen Car belongs to him and was technically and mechanically suitably modified/improvised in order to make it drivable by this accused. However, he claimed that nothing was recovered from his car and that the case property was planted upon him. Contrary to the claim of Shree Ram, this accused claimed that he never spoke to accused Shree Ram from his mobile and that one Mr. Sharma used to talk to this accused regarding social service of SC no. 65/12 Dtd... 06.02.2016 Page 13 of 48 14 handicapped persons. This accused however admitted that mobile connection no. 9278677786 & 9210008085 were in his name. This accused claimed that he was implicated by the police because he refused to become a collector of ill gotten money of police and he refused to become an informer for the police qua illegal activities of others.
4.3 On behalf of accused Shree Ram, four defence witnesses were examined.
4.4 DW1 Kaare Lal @ Karran Yadav deposed that on 24.07.2012 between 6.00 to 7.00 AM, he was present at Lal Kuan Chowk, Ghaziabad and at that time accused Shree Ram was also present there. Meanwhile, 78 police officials in civil clothes came there; apprehended accused Shree Ram; took Shree Ram to his house located nearby; searched his house and; then took away Shree Ram. The witness claimed that even his own house was searched by the police and police made enquiries as to the antecedents of even this witness. He claimed that nothing was recovered from the house of accused Shree Ram. In the cross examination by Ld. Prosecutor, the witness admitted that he came to depose in the court on the request of elder brother of Shree Ram, who was known to him. 4.5 DW2 Hari Ram Pandit deposed that 23 days prior to 24.07.2012, he received a phone call from one Badal on his mobile. This witness used to do social work for handicapped persons and Badal also used to do social work for handicapped persons. Badal enquired mobile SC no. 65/12 Dtd... 06.02.2016 Page 14 of 48 15 number of Shree Ram from this witness and he gave mobile number 8373989556 of Shree Ram to Badal. He also deposed that Badal used to make calls to this witness on his mobile number 9971132476 from his mobile number 9266686666. Badal is nick name of accused Basudev.
4.6 DW3 Chander Shekhar, the Nodal Officer from Bharti Airtel, was examined on behalf of accused Shree Ram to prove that mobile connection no. 9971132476 was registered in the name of Kiyam son of Kibharwhel. The customer application form of this mobile and call detail records with necessary certificate U/s 65B of Evidence Act are exhibited as Ex.DW3/A to D. 4.7 DW4 Mr. Rakesh Kumar deposed that he was chowkidar on the plot in question where recovery is claimed, from 2009 onwards till beginning of 2014 and he was so employed by Dr. Makhija, to whom the said plot belonged. The witness deposed that there were two rooms constructed on the plot where he was residing with his family and the remaining plot was vacant where there were bushes of 56 feet height till recently prior to the examination of this witness and thereafter the plot was put under construction. The witness also deposed that he did not notice any vehicle or police on the plot at any time on 25.07.2012. The photographs of the plot are exhibited as Ex.DW4/A1 to A22. In the cross examination, the witness stated that he cannot admit or deny that in the midnight of 25 th & 26th July 2012, accused Basudev or Shree Ram were apprehended from the SC no. 65/12 Dtd... 06.02.2016 Page 15 of 48 16 plot or that any ganja was recovered from the plot, as he was sleeping.
4.8 Though accused Basudev also opted to lead defence evidence in his favour and was granted repeated opportunities on 10.03.2014, 27.03.2014, 17.4.2014 and 19.04.2014, but throughout this period neither any witness was summoned by the accused Basudev nor any witness was brought in defence. No list of defence witness or application was filed on behalf of this accused. Accordingly, defence evidence of Basudev was closed on 19.04.2014.
5 I have heard Ld. Counsels for both the accused and Ld. Prosecutor for the State.
6 It is argued by the counsels for the two accused that there is non compliance of Section 42 of NDPS Act which vitiates the trial. In this regard, reliance is placed upon the case of State of Rajasthan Vs. Chagan Lal 2014 (4) JCC (Narcotics) 213; DRI Vs. Raj Kumar Mehta & Ors. 2011 VI AD (Delhi) 328 and; Om Prakash Vs. State III (2014) CCR 1 (Delhi). It is also argued on behalf of accused that there are contradictions in the testimonies of the recovery witnesses, rendering their evidence untrustworthy, and also the evidence of this case reveal that there was no sincere effort at all to join any independent public witnesses despite availability and therefore there is noncompliance of Section 100 of Cr.P.C and therefore the case of prosecution has to be disbelieved.
SC no. 65/12 Dtd... 06.02.2016 Page 16 of 48 177 Countering these arguments, Ld. Prosecutor for the State argued that the secret information received in the matter was indeed reduced into writing and its copy was received by the Additional DCP (PW6) within the stipulated period and therefore there is absolute compliance of Section 42 of NDPS Act. The contradictions pointed out by the accused are claimed to be trivial in nature by the Ld. Prosecutor, and regarding nonjoining of independent witnesses, it is argued that recovery of this case was effected in the midnight after 1.30 AM therefore witnesses were not easily available at that time during those odd hours.
8 Though indeed the secret information of this case was reduced into writing and its copy was sent to senior police officer within the stipulated period and qua that aspect of the matter, part of Section 42 of NDPS Act was complied with, but there is another part of Section 42 of NDPS Act also, which is in question in the present case. The other part of Section 42 of NDPS Act lays down that if between sunset and sunrise any building or vehicle is to be searched on prior information, search warrant or authorisation has to be obtained and in case the police officer has reason to believe that such search warrant or authorisation cannot be obtained without affording opportunity for the concealment of the evidence or escape of an offender, in such circumstances such reasons has to be recorded in writing and those reasons must be forwarded to senior police officers within 72 hours. Thus under section 42 of NDPS Act, SC no. 65/12 Dtd... 06.02.2016 Page 17 of 48 18 the grounds for belief by an officer as to the reason that search warrant or authorisation cannot be obtained must be noted down and must be sent to senior police officers within the stipulated period. 8.1 In the case of Chagan Lal (Supra), the accused threw the bag containing contraband in the well and there was a prior secret information against the accused of that case. The accused of that case therefore not only attempted to conceal the contraband but also there was an eminent danger of the evidence being lost in the well which had water. The well was searched by the police and contraband was recovered, which was opium and which got wet because of being thrown in the well. It was held by Hon'ble Supreme Court that in such emergent situation as per proviso to Section 42(1) of NDPS Act, the police officer could have conducted the search of the well after recording grounds for his belief and then those grounds of belief so recorded ought to have been communicated to immediate senior police officer within 72 hours U/s 42 (2), but in that case there was nothing to establish that the officer followed that procedure. There was no evidence to establish that the officer recorded grounds of his belief and communicated them to immediate superior. Relying on the case of Karnail Singh Vs. State of Haryana 2009 (4) JCC (Narcotics) 170, Hon'ble Supreme Court held that total non compliance of requirements of Sub Section 1 & 2 of Section 42 of NPS Act was impermissible, though delayed SC no. 65/12 Dtd... 06.02.2016 Page 18 of 48 19 compliance was acceptable. But since there was no compliance of recording of grounds of belief and communicating those grounds to the superior official, the accused of that case was acquitted by the Hon'ble Supreme Court.
8.2 The accused has also relied upon the case of DRI Vs. Raj Kumar Mehta & Ors 2011 VI AD (Delhi) page 328. In that case the facts were that an information was gathered to the effect that heroine in large quantity would be brought in a truck bearing Gujarat registration number at GT Karnal Road near Sanjay Gandhi Transport Nagar to be delivered to occupants of one blue car. The raiding team intercepted the truck and a car and, from the truck heroine was recovered. In that case, it was argued by the State that Sec. 43 of the Act would be applicable and not Sec. 42 NDPS Act. Hon'ble Delhi High Court held that though it was a National Highway where the vehicle was intercepted but it was not a public conveyance. It was also held that the conveyance was checked after sunset and before sunrise and that the vehicles were intercepted after it had stopped. From the testimony of PW17 of that case, it was revealed that the truck along with the car were followed to Industrial area, Samai Pur Badli, where the truck stopped. It was admitted by PW17 that when they reached the spot, the truck and car were already parked. Since the truck was parked at the time when intercepted, it was held by Hon'ble High SC no. 65/12 Dtd... 06.02.2016 Page 19 of 48 20 Court in para 11, 12 & 13 as follows : "11. Since the truck intercepted was neither a public conveyance nor was it intercepted in transit, Section 43 of the Act has no application. Section 42 of the Act which has application to the facts of the case has not been complied with as is evident from the testimony of PW17 reproduced above. The reliance of the learned counsel for the Appellant on the decisions in Jarnail Singh (supra) is wholly misconceived. The said was a case which related to interception of a tanker moving on a pub lic highway and the moving tanker was stopped and searched while checking vehicles at nakabandi. Similarly, in the case of Karnail Singh (supra) there was no previous information and the truck was intercepted on suspicion. In. State v. Malwinder Singh, (2007) 11 SCC 314, again the information was received when the officers were on patrolling duty.
12. The law on the point is very clear that when recov ery is to be made from a conveyance, not a public conveyance, though on public road Section 42 of the Act is applicable............................................ ...........................................................................
SC no. 65/12 Dtd... 06.02.2016 Page 20 of 48 2114. Since the precedent of the larger bench of the Consti tution Bench will prevail thus in the facts of the present case it is imperative to hold that the compliance Section 42 of the Act was mandatory. Since there is total non compliance of Section 42 of the Act which is a mandatory provision, I do not find any infirmity in the impugned order on this count. Thus, the Respondents are entitled to be acquitted for offences under Sections 21, 23 and 25A of the Act."
8.3 Accused has also relied upon another case titled as Labh Singh & Ors. Vs. Union of India 2002 Criminal Law Journal 28 from Rajasthan High Court. In that case a secret information was re ceived to the effect that the accused would be going to Mumbai Via Bikaner in a truck with narcotics drugs. The information was reduced into writing and forwarded to higher officers. The raid ing party reached National Highway no. 15 and waited for the ar rival of truck. Thereafter the raiding party started proceeding to wards Ganga Nagar. They found the truck in question standstill at a particular place with the accused inside the truck. The time when the truck was searched was 7.30 PM on 17.08.1996. It was held by Hon'ble Rajasthan High Court in para 24, 25, 26 that explanation to Sec. 43 of the NDPS Act, says that for the purposes of this section, public place includes any public con SC no. 65/12 Dtd... 06.02.2016 Page 21 of 48 22 veyance, hospital, shop or other place which is entitled for use by, or which is accessible to the public. Thus, in order to be cov ered by the expression public place, the place should be such where public may go as of right. Mere fact that entry in any such place is regulated one will not change that place into a place other than a public place. Sec. 42 as well as 43 NDPS Act, both uses the word conveyance. The difficulty that arises is when conveyance is there, in what manner it should be interpreted. It was held that in Sec. 43, the word 'conveyance' is qualified by the word 'public' but in Sec. 42 NDPS Act, it is not qualified by any such word. Thus, it is only public conveyance which is cov ered by Sec. 43, but conveyance other than public conveyance will be covered by Sec. 42 of the NDPS Act.
8.4 In the case of State of Haryana Vs. Jarnail Singh (2004) 5 SCC page 188 Hon'ble Supreme Court drew the distinction between Sec. 42 and 43 of the Act and clarified the position in para 7, 8 & 9 as follows : "7. The next question is whether Section 42 of the NDPS Act applies to the facts of this case. In our view Section 42 of the NDPS Act has no application to the facts of this case. Section 42 authorises an officer of the Departments enumerated therein, who are duly empowered in this behalf, to enter into and search any such building, conveyance or place, if he has reason to believe from personal knowledge or information given SC no. 65/12 Dtd... 06.02.2016 Page 22 of 48 23 by any person and taken down in writing that any narcotic drug or psychotropic substance, etc. is kept or concealed in any building, conveyance or enclosed place. This power can be exercised freely between sunrise and sunset but between sunset and sunrise if such an officer proposes to enter and search such building, conveyance or enclosed place, he must record the grounds for his belief that a search war rant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender.
8. Section 43 of the NDPS Act provides that any officer of any of the Departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic sub stance, etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorised to detain and search any person whom he has reason to believe to have committed an offence punishable un der the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search SC no. 65/12 Dtd... 06.02.2016 Page 23 of 48 24 of any building, conveyance or enclosed place, while Sec tion 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sun set and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public con veyance is searched in a public place, the officer making the search is not required to record his satisfaction as con templated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and sunrise."
8.5 Admittedly, in this case the investigating officer did not record grounds of his belief as was required. It is not in dispute that in the present matter the vehicle in question was not a public conveyance. It is a private conveyance of accused Basudev. It was not even having a taxi number plate or commercial number plate. Of course the facts indi cate that had the raiding team not surrounded the vehicle immediately and had they not searched the vehicle, the evidence would have been lost since by the time search warrants could have been obtained, the vehicle would not have been found there. But then the investigating officer was bound to record those grounds of belief, which he admittedly did not. Since the grounds of belief were not recorded, obviously, they were not communicated to the senior police officers. Delayed compliance could SC no. 65/12 Dtd... 06.02.2016 Page 24 of 48 25 have been made if the investigating officer did not have time to record reasons at the spot, but even that was not done.
8.6 Ld. Prosecutor attempted a feign attempt in claiming that in the report U/s 57 of NDPS Act, the fact of recovery and seizure is mentioned, which should be sufficient compliance of sec 42. But then the said report does not find any such grounds of belief required to be noted by the investigat ing officer.
8.7 In the present matter, secret information was received at about 9.00 PM and the recovery was affected at about 1.30 in midnight. From 9.00 PM till at least 1.00 AM, there was more than enough opportunity and time with the investigating officer to obtain search warrants/authorization as re quired. It was however, not done. Also no Gazetted Officer or Magistrate was either taken along or was put on standby.
8.8 In the case of Om Prakash (Supra), it was held that Section 43 of NDPS Act would apply when a police officer apprehends Narcotics Drugs & Psh cotropic Substance from a person in a public place without any prior inti mation. In such a scenario, there will be no occasion for recording in ad vance the grounds of belief or communicating it to any superior officer. However, where the raiding officer proceeds to a public place on the basis of prior information, which he has recorded in writing, then the question of applicability of Section 43 of NDPS Act, would not arise. In such circum stance, the proviso to Section 42 NDPS Act mandates that the officer must record the grounds for his belief that if he proceeds to the spot without a SC no. 65/12 Dtd... 06.02.2016 Page 25 of 48 26 search warrant, the evidence may be concealed or the offender may es cape. It was held that in the DD recorded in that case recorded the fact that the secret informer told the witness about the possibility of the ac cused and his brother coming to a mandir for handing over consignment of opium, but the DD did not state that the raiding officer believed that if search warrant was sought to be obtained, the offender might escape ap prehension or that the evidence may be concealed. Noting para 7 of the case of State of Orissa Vs. Laxman Jena JT 2002 (5) SC page 1; it was held that Section 42 had to be strictly followed as the harsh provisions of the NDPS Act cast a duty upon the prosecution to strictly follow the proce dure and comply with the safeguards.
8.9 In the present matter, secret information was received at SIT at 9.00 PM.
The secret information was reduced to writing after 45 minutes at 9.45 PM under DD no. 15 which is exhibited as Ex.PW6/A. In the said DD, it is recorded that accused Shree Ram would come in a tempo loaded with ganja at the spot at 1.00 AM in the midnight. Thereby meaning that from the time of recording of secret information, the possible time of arrival of accused was four hours. After the DD was recorded, still the investigating agency had as long as three hours fifteen minutes, available with them. The raiding team left the office at 12.30 in the midnight i.e. after two hours forty five minutes of recording of the secret information. In the secret infor mation recorded under DD no. 15, it is nowhere mentioned that the investi gating officer believed that in case search warrants or authorisation are SC no. 65/12 Dtd... 06.02.2016 Page 26 of 48 27 obtained, the offender may escape or the evidence may be concealed. The sheer availability of four hours from the time of receipt of secret infor mation till the offenders were likely to arrive gave ample opportunity to the investigating agency to obtain search warrants. No attempt was made at all either to obtain the search warrant or to take the authorization. No grounds of belief were recorded either in the DD no. 15 or even thereafter. In the initial information received, it is mentioned that Shree Ram was likely to come in a tempo loaded with ganja. Thus, the information re ceived was regarding a conveyance. Admittedly, the time of recovery was long after sunset and much before sunrise. Thus, in the present matter there is absolute noncompliance of Section 42 of the NDPS Act. It may also be mentioned here that at the spot, Maruti Zen car of accused Ba sudev arrived in which one gunny bag containing ganja was loaded and then raiding team apprehended the two accused. Though in the initial in formation received there was no indication of any other vehicle besides the tempo likely to come at the spot, but still regarding the maruti car of accused Basudev also, no grounds of belief were recorded by the investi gating officer and those grounds were not communicated to the senior offi cers qua search warrant and authorization.
8.10 For the foregoing reasons, this court is constrained to hold that in the present matter, Sec. 42 of NDPS Act has not been complied with. As per the decisions mentioned and discussed above, it has to be SC no. 65/12 Dtd... 06.02.2016 Page 27 of 48 28 held that it is a case of total noncompliance of Sec. 42 of NDPS Act which vitiates the proceedings.
9 Indeed in the present matter, the evidence would reveal that there was ab solutely no sincere effort made to join any independent witness in the raid. The investigating agency claims that when the raiding team reached the spot at about 1.00 AM in the midnight, five labourers who were passing by the spot were requested to become witness but they did not join. Even their names and addresses are not recorded. No reason as to on what grounds those public persons expressed their inability to join the team, is recorded. Again a stereo type excuse is put forth that public witnesses left without even telling their names and addresses. Admittedly, Delhi Jal Board quarters were located near the spot of apprehension. No one from those quarters was even requested to become witnesses. There was an other residential area near the place of recovery. No one from there also was requested to become witness. Investigating officer admits that there were as many as four schools around the place of recovery. None of the guards/chowkidars available in the schools were attempted to be joined. The raiding team remained at the spot from 1.00 AM in the midnight till 10.00 AM, the next morning, when the team finally left the spot. Rukka was dispatched at about 5.00 AM. Many early morning joggers and walk ers do come out of their houses by that time. No one from them have been joined. The incident in this case occurred during summer and therefore by 5.00 AM, many such walkers and joggers would have been easily avail SC no. 65/12 Dtd... 06.02.2016 Page 28 of 48 29 able. Normally school opens in the morning at about 7.00 AM usually, still none from the four schools located nearby was even attempted to be joined. Secret information was received at 9.00 PM. From 9.00 PM till 1.00 AM, four hours were available and admittedly residential houses as well as commercial establishments were located near the SIT office, but no one from there also was attempted to be joined. ASI Jagdish admitted that there were two kachha rooms constructed on the plot towards North ern side of the plot which is reflected at point F, but he claimed that since the rooms were found bolted, therefore, he did not call any guard, chowki dar etc. He also did not call any guard, chowkidar, any staff of the school. Although he admitted that there was electricity connection in the rooms which were temporary constructed on the plot. He also admitted that the plot was around 4000 Sq. foot in area. These facts reveal absolute insin cere efforts to join public witnesses. The claim of requesting passers by is uninspiring. Though the recovery was affected at 1.00 AM, but the above mentioned reasons reveal that attempt was also not made genuinely.
9.1 In this regard, in the case of Om Prakash (Supra), Hon'ble Delhi High Court observed that in absence of clear evidence to show that sincere ef forts were made, court should not simply accept that generally in such cases no member of public comes forward to help prosecution.
9.2 Accused in this regard also places reliance upon the case of Mhd. Ma soom Vs. N.C.T. of Delhi 219 (2015) DLT 271; Inder Dev Yadav & Ors. Vs. State 2014(3) JCC (Narcotics) 129; Rajesh Kumar @ Sanjay Vs. SC no. 65/12 Dtd... 06.02.2016 Page 29 of 48 30 State of NCT of Delhi 2014 (3) JCC (Narcotics) 156; Rattan Lal Vs. State 32 (1977) (DLT) 1; Dinesh Kumar Vs. State 1993 (1) CC Cases 267 (High court); Randhir Singh Vs. State of Haryana 2010 (2) JCC (Narcotics) 73; Chand Khan Vs. State 2000 Crl. L. J 2645; Ritesh Chakraborty Vs. State of M.P. (2006) 12 SCC 321; Pawan Kumar Vs. Delhi Administration 1988 (2) RCR page 421; Mhd. Javed Vs. State I (2000) CCR 402; Eze Val Okeke Vs. Narcotic Control Bureau 2005 (1) LRC 86 Delhi.
10 Following facts would reveal that in absence of independent public wit nesses, it would not be safe to base conviction in the present case on the testimonies of police officials only.
10.1 PW6 Dr. Joy Tirkey in his examination in chief deposed that at about 6.30 AM on 26.07.2012 i.e. after six hours of recovery, he was telephonically in formed by Inspector Jitender about apprehension of two persons with ganja in a tempo. It is emphasised that the DCP deposed that he was told that two persons were apprehended in a tempo. As per the case of prose cution though there was secret information received regarding tempo, but no tempo was seen by the raiding team at the spot. In the rukka and other documents prepared at the spot including the reports U/s 57 NDPS Act, there is no mention of any tempo coming to the spot at all. No question was asked to the DCP by the Ld. Prosecutor seeking any clarification on this point, leaving that part of testimony of PW6 as undisputed. If accused SC no. 65/12 Dtd... 06.02.2016 Page 30 of 48 31 were apprehended in tempo, where did the tempo vanish, is a big question which remains unanswered.
10.2 Besides this fact, there is a serious contradiction as to how the case prop erty was taken from the spot to the police station Crime Branch Malviya Nagar. Inspector Jitender in his cross examination, conducted on 17.10.2013, stated that the sample parcels along with the documents i.e. the two FSL forms and copies of seizure memos were taken by HC Sanjay in Santro Car whereas the rest of the main seven gunny bags containing ganja were loaded in the Innova Car driven by Ct. Virender. It is stated that both the vehicles went to the police station Crime Branch, Malviya Na gar from the spot. In the rukka, on which the present case is registered, what is mentioned is that HC Sanjay placed all the sealed plastic bags and the sealed samples in Innova vehicle which was driven by Ct. Virender. HC Sanjay in his cross examination deposed that some of the parcels were kept in Innova Car and some in Santro Car and he also stated that he cannot specifically tell as to how many parcels were kept in Innova and how many were kept in Santro car. In the next breath, he claimed that the main gunny bags were kept in Innova Car whereas the sample parcels were kept in Santro car. As against the testimony of Inspector Jitender and HC Sanjay, PW1 HC Vijender stated that all the 21 sealed parcels were taken in Innova car only. In the rukka, it is mentioned that all the case property along with the documents were being sent in Vehicle no. DL 8C T SC no. 65/12 Dtd... 06.02.2016 Page 31 of 48 32 2813 and that all the sealed bags were kept in Innova Vehicle which was driven by Ct. Virender.
10.3 There is a huge time gap when HC Sanjay and HC Vijender left the spot with case property for police station and when they reached. They left the spot at 5.00 AM but reached police station at 6.30 AM. Thereby meaning that they consumed one and a half hours in reaching police station Crime Branch from the spot, which is approximately 30 Kms. Early in the morning at 5.00 AM, traffic in Delhi is at its minimum and it usually takes less than half or may be even one third time which is usually consumed during day time or during peak hours to cover that distance. Interestingly, HC Sanjay when returned from the same police station after registration of FIR to the spot, he covered that distance back to the spot in a much less time than what he consumed in going to the police station. He left the police station at 7.45 PM and reached the spot at about 8.40 or 8.45 AM. Meaning thereby that at 5.00 AM it took him more time to go to the police station, but when the traffic had increased at about 7.45 to 8.45 AM, he took half an hour in going back to the spot. Quite interestingly the raiding team left the spot at 10.00 AM for the same police station. This time the police team reached the same police station at 11.00 AM. Meaning thereby that when the traffic was at its peak, the raiding team could cover that distance in one hour and when the traffic was at its minimum, it took one and a half hours in covering the distance.
SC no. 65/12 Dtd... 06.02.2016 Page 32 of 48 3310.4 Whether the case property was kept and carried in one vehicle or in two different vehicles coupled with the said variation in time is an important cir cumstance, raising doubt about the case of prosecution, particularly when the seal were neither deposited in the malkhana by the investigating offi cer nor it was given to any independent person, but was retained by the police officials from the raiding team only.
10.5 The SHO who applied his seals on the case property at the police station did not even care to hand it over to any independent person. He retained the seal with himself despite being Officer Incharge of the police station posted at the same police station, till the time the case property was dis patched to the FSL after about four days of the recovery.
11 Though in the present case, compliance of Section 50 of NDPS Act was not mandatory as the contraband was recovered not from the body of ei ther of the accused and there was no such information that the contraband was likely to be carried on the body by either of the accused, yet the inves tigating agency choose to serve notice U/s 50 NDPS Act upon both the ac cused. It is now fairly well settled that in case investigating agency chooses to comply with provisions of Section 50 of NDPS Act, even in those cases where it is not required, the compliance has to be strict & ab solute.
11.1 In the case of Om Prakash(Supra), it was observed by Hon'ble High Court that admittedly the notice U/s 50 NDPS Act served upon the accused of that case did not mention that he could be taken to the nearest SC no. 65/12 Dtd... 06.02.2016 Page 33 of 48 34 Magistrate or the police station which had a gazetted officer. Infact, accused was not taken to the nearest police station but was taken to a police station which was 20 Kms away. There was no explanation as to why the accused was not first told about the nearest police station and why he was not taken there. It was held that Sec. 50 of NDPS Act has not been therefore complied with.
There is noncompliance of Sec. 52 of NDPS Act also as well as Sec tion 52A(2) of NDPS Act.
11.2 Recently, in the case of Rakesh @ Shankar Vs. State, decided by Hon'ble High Court on 8.1.2014, in Criminal Appeal no. 663/2010, the facts were that the accused of that case got down from a bus and he was carrying a box on his shoulder. From the said box, allegedly 21 Kg of Ganja was recovered after compliance of Sec. 50 of NDPS Act. The ac cused of that case was convicted by the Ld. Trial Court. In the Hon'ble High Court, the only contention raised by the accused was noncompli ance of Sec. 50 of NDPS Act. Accepting the said contention, the convic tion of the accused was set aside, and Hon'ble Delhi High Court relying upon the cases of State of Delhi Vs. Ramavtar @ Rama 2011 (7) SCALE 428; the case of State of Punjab Vs. Baldev Singh (1994) 3 SCC 299; the case of Mantoon Kumar Vs. State Criminal Appeal no. 174 of 2005 and decided on 3.12.2013 and; the case of Gurjant Singh @ Janta Vs. State of Punjab 2013 (13) SCALE 295, held that noncompli ance of Sec. 50 of NDPS Act even in a case where recovery is af SC no. 65/12 Dtd... 06.02.2016 Page 34 of 48 35 fected from a trunk, after the investigating agency chooses to give such notice, would be fatal. The contention of prosecution that Sec. 50 NDPS Act was not required to be given before searching the trunk of that case was rejected by Hon'ble High Court and following obser vations were made in para no. 8, 9, 10 & 11 of the judgment :
8. It is contended by the learned APP for the State that since no notice under Section 50 of the Act was required to be given before searching the trunk being carried by the appellant, the defect in the notice given to him would not render the recovery illegal. His contention in other words is that if the recovery, without giving notice under Section 50 of the Act is legal, any defect in the notice cannot render the recovery to be illegal. In Gurjant Singh @ Janta versus State of Punjab [2013 (13) Scale 295], the case of the prosecution was that some police officers were present at T Point in the area of Village Ugrahan in connection with Nakabandi when a tractor trolley was got stopped and was checked. Three gunny bags were found lying inside the trolley. The police officer informed the appellant before the Apex Court that he intended to search the gunny bags as he suspected some incriminating article in the said gunny bags. He further informed that if he so desired the search could be conducted in the presence of a Gazetted Officer or a Magistrate. This was also the case of the prosecution that the appellant before the Apex Court expressed his SC no. 65/12 Dtd... 06.02.2016 Page 35 of 48 36 consent that the search could be conducted in the presence of some Gazetted officer or a Magistrate. After recording statement of the appellant and getting it signed from him, one DSP was called to the spot. The gunny bags were then searched and poppy husk was found in them. It was urged before the Trial Court that there was violation of Section 42 and 50 of the Act in as many as search was not conducted in presence of a Gazetted Officer or a Magistrate since the DSP, who came to the spot was not a regularly promoted DSP, but was only an Inspector in the category of Own Rank Pay (ORP) and, therefore, could not be a Gazetted Officer. The Trial Court took the view that there was no necessity to comply with Section 50 of the Act and, therefore, did not go into the question as to whether PW3 was competent in terms of Section 50 of the Act or not. The High Court having agreed with the Trial Court, the appellant approached the Apex Court. It was held by the Apex Court that reliance upon Baldev Singh (supra) was wholly misplaced since the principle laid down in the said case postulates a situation where a police officer in the normal course of investigation of an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and in the course of such investigation when a search is completed and in that process happens to stumble upon possession of a narcotic drug or psychotropic substance, the question of invoking Section 50 would not arise. It was observed that SC no. 65/12 Dtd... 06.02.2016 Page 36 of 48 37 in the absence of any prior information as to possession of any narcotic drug and psychotropic substance, a police officer might have held a search in the course of discharge of his duties as contemplated under the provisions of Code of Criminal Procedure and, therefore, it would be impossible to state that even under such a situation, the application of Section 50 would get attracted. The Apex Court noted that PW6 having noticed that the three gunny bags lying in the tractor of the appellant took the view that before effecting search of gunny bags the necessity of affording an opportunity to the appellant to conduct the search in the presence of the Gazetted Officer or a Magistrate was imperative and, therefore, such search had to be necessarily conducted in accordance with the provisions of Section 50 of the Act. It was held that in these circumstances, the conclusion of the Trial Court holding that Section 42 and 50 were not applicable was a total misunderstanding of the legal provisions and in light of the notice placed before it and consequently the conclusion arrived at for convicting the appellant was wholly unjustified.
During the course of judgment, the Apex Court highlighted the importance of notice under Section 50 of the Act and held as under: SC no. 65/12 Dtd... 06.02.2016 Page 37 of 48 38 " It will have to be stated that such compliance of the requirement under Section50 of holding of a search and seizure in the presence of Gazetted officer or a Magistrate, cannot be an empty formality. In other words, the offer to the person to be searched in the presence of a Gazetted officer or a Magistrate, should really serve the purpose of ensuring that there was every bona fide effort taken by the prosecution to bring forth the grave offence of possession of narcotic substance and proceed against the person by way of prosecution and thereby establish the truth before the appropriate judicial forum. In the same breath such a course of compliance of Section 50 would also enable the person accused of such a grave offence to be convinced that the presence of such an independent Gazetted officer or a Magistrate would also enable the person proceeded against to demonstrate that there was no necessity for holding any search on him and thereby persuade the concerned Gazetted officer or Magistrate to protect his fundamental right of freedom, from being unlawfully proceeded against. In other words, the purpose of Section 50 was to ensure that on the one hand, the holding of a search and seizure was not a farce of an exercise in order to falsely implicate a person by unscrupulous police authorities, while on the other hand to prevent an accused from committing an offence of a serious nature against the society, warranting appropriate criminal proceedings to be launched and in SC no. 65/12 Dtd... 06.02.2016 Page 38 of 48 39 the event of establishing such offence, conviction and sentence to be imposed in accordance with law. Therefore, such a dual requirement of law prescribed under Section 50cannot be dealt with lightly by the Courts dealing with the trial of such offences brought before it." ..................
10 The facts of this case are identical to the facts in Gurjant Singh @ Janta (supra). In Gurjant Singh @ Janta (supra) the police officers were present at the „T‟ Point in connection with nakabandi, whereas in the case before this Court the police officers were present at the bus stand for the purpose of checking the buses passing from there. In Gurjant Singh @ Janta (supra), the case of the prosecution was that poppy was found in gunny bags lying in the tractor being driven by the appellant. In the case before this Court, the case of the prosecution is that he was carrying the bag containing ganja on his shoulders. In view of the binding decision of the Apex Court in Gurjant Singh @ Janta (supra) it must necessarily be held that since the Investigating Officer of the case before this Court chose to give a notice under Section 50 of the Act to the appellant before searching the bag being carried by him on his shoulder, the said notice should have conformed to the requirement of Section 50 of the Act and if the SC no. 65/12 Dtd... 06.02.2016 Page 39 of 48 40 notice did not conform to the said requirement, the recovery of ganja from him would be per se illegal.
11. It is quite clear from a perusal of the notice Ex.PW1/A that the appellant was not informed that he had a legal right to the effect that the bag being carried by him could be searched in the presence of a Magistrate or a Gazetted Officer. The appellant was only informed that if he so desired he and the bag being carried by him could be searched in the presence of a Magistrate or a Gazetted Officer. This intimation would not amount to conveying to the appellant that he had a legal right to be searched in the presence of a Magistrate or a Gazetted Officer. It is quite possible that had the appellant been informed of such a legal right being available to him he would have chosen to exercise that right instead of allowing the police officers to search him. Since the aforesaid notice Ex.PW1/A does not meet the strict requirement of Section 50 of the Act, the recovery pursuant to the said notice cannot be said to be legal."
Since, the notice of that case did not meet the strict requirements of Sec. 50 of NDPS Act, the recovery was held to be illegal and the accused of that case was acquitted by Hon'be Delhi High Court.
11.3 Following facts would reveal a strong suspicion whether the notices were actually served upon the accused as claimed. Both the notices are proved as Ex.PW1/A & 1/B i.e. the carbon copies on which the two accused al legedly stated their refusal. Neither of the notice contains DD entry no. 15 SC no. 65/12 Dtd... 06.02.2016 Page 40 of 48 41 or DD entry no. 16, though the investigating agency claims that those DDs were lodged before they went to the spot. If those DDs were lodged before the raiding team went to the spot and those notices were actually prepared at the spot after the two DDs, the raiding officer ought to have mentioned the DD number on the notices. It is usual practice of the crime branch offi cials and narcotics cell officials that they mentioned DD number of depar ture to the spot, on such notices. But in the present case, none of the two notices contain any DD number at all.
11.4 Secondly, it is the claim of investigating agency that accused Basudev was unable to write and, therefore his refusal was noted down as per his dictation by the Head Constable, which accused Basudev lateron signed. On the other hand, accused Shree Ram was able to write and he wrote the refusal in his own hand writing. The two refusals of these two accused are proved as Ex.PW1/A1 & 1/B1, respectively. It has come in the evi dence that no one from the raiding team dictated the two accused as to what they should write in their refusal. Rather accused Basudev dictated his refusal and accused Shree Ram noted his refusal himself. But perusal of these two refusals reveal that both of them are verbatim same, which could not have been a mere coincidence, and in all probability it was dic tated/written by one and the same person.
11.5 There is contradiction in the testimonies of PW1 & PW9 as to where those notices were prepared. PW1 claims that the notices were prepared on the bonnet of Innova car and at that time Innova car was parked on the vacant SC no. 65/12 Dtd... 06.02.2016 Page 41 of 48 42 plot, i.e. exactly where the recovery was effected. On the other hand, PW9 claimed that he prepared those notices on the bonnet of Innova car, but at that time Innova car was parked in front of G. D. Goenka School. HC San jay deposed that when notices were prepared U/s 50 NDPS Act, the In nova Car was parked in front of G. D. Goenka School and the gate of school was hardly two steps away from the Innova Car. Even if one ig nores the said contradiction, as it may appear trivial on the first brush, but the following facts create a great suspicion about the preparation of those documents at that place.
11.6 Admittedly, there is no electricity light or pole in the vacant land. It has come in the evidence of witnesses that the said vacant land was around 4000 to 5000 Sq. Yards in area. In one small portion of the said vacant land, there was some kachhapakka construction, but it is claimed that it was locked. Therefore, there was dark in the vacant plot. While parking the vehicles in the vacant plot without any electricity pole being there, it is highly suspicious that the notices could have been prepared on the bonnet of the car in the hand writing of HC Sanjay. That claim does not go down well.
12 There is another vital fact which creates a serious suspicion about the case of prosecution. Admittedly, neither Shree Ram nor Basudev resides anywhere near the place of recovery. As per chargesheet, accused Shree Ram is shown as a resident of Gautam Budh Nagar in U.P. Accused Ba sudev is shown as a resident of Jahangir Puri which is also few kilometers SC no. 65/12 Dtd... 06.02.2016 Page 42 of 48 43 away from spot. Gautam Budh Nagar is more than 25 Kms away from the spot of recovery. Why would Shree Ram bring those seven gunny bags from Gautam Budh Nagar till the spot to distribute it.
13 How those bags were transported up to the vacant plot has not been in vestigated by the investigating officer. It goes without saying that those bags were transported in some vehicle. That vehicle has not been identi fied. The driver of the vehicle was not tried to be associated to connect the link that those bags were transported by Shree Ram on the day of occu rance. From where those bags were brought has not even been investi gated.
14 Afterall, why would the two accused choose such a spot for exchange of contraband. They could have done this at their residences also where it would have been more safe for them.
15 There is no investigation done by the investigating officer as to the other receivers of remaining portion of contraband. The investigating agency choose to nab both the accused as soon as one gunny bag was kept in car without waiting to see whether only that bag was to be delivered to ac cused Basudev or more and in case other bags were to be delivered to the others, they did not choose to wait for other receivers to come to the spot. There is virtually no investigation regarding source of supply & destination of the contraband.
16 Admittedly, there was kachhapakka construction on the vacant plot. One defence witness Rakesh has appeared and has claimed that he was resid SC no. 65/12 Dtd... 06.02.2016 Page 43 of 48 44 ing as a caretaker/chowkidar in the said plot. Investigating agency did not try to join even the occupant from the said kachhapakka construction. Rakesh has deposed that he did not see any such activity on the plot at any time in the night. Even if it is assumed that Rakesh and his family was sleeping in the night, they would have certainly come to know about the in cident in the morning as the raiding team remained at the spot, admittedly, till 10.00 AM. It is difficult to believe that Rakesh did not wake up till about 10.00 AM, though he was working as a chowkidar on the plot. The testi mony of Rakesh therefore creates a serious dent in the case of the prose cution as to the truthfulness of the version claimed.
17 The version of the prosecution that Innova car was used in the raid along with another Santro car is also not beyond doubt. Innova car belong to SI Anil who was admittedly not even a member of raiding team. There is no explanation offered as to why two private cars were used, whereas, admit tedly official vehicles were available in the office. The prosecution did not lead any evidence to show that the official vehicles were not available on account of being in use in some other official work or on account of being unserviceable etc. Although Inspector Jitender claimed that there were two official vehicles available in the office and that those vehicles were not available for use, but in this regard no documentary proof has been shown in the nature of log book of vehicles which could have proved that the ve hicles were not available or were in use in some other official work.
SC no. 65/12 Dtd... 06.02.2016 Page 44 of 48 4518 There are other vital contradictions in the testimonies of the recovery wit nesses.
18.1 PW1 claimed that the proceedings qua sealing and measurement of parcels etc. was done. Inside the plot with the headlights of the Innova car On, and there was no electricity or light available in the vacant plot. Simi larly, PW9 HC Sanjay also deposed that there was no electricity light avail able on the vacant plot. But he claimed that the sealing etc. was done on the plot but towards G.D.Goenka School under the light. Contrary to the testimonies of PW1 HC Vijender & PW9 HC Sanjay, PW10 Inspector Ji tender claimed that there was light coming from the lights of schools and there was sufficient light that a person could be seen from a distance of 5060 yards. He even claimed that one could see easily from point C to point A, as mentioned on the siteplan. As per siteplan, point C reflects the position where Inspector Jitender along with secret informer took position and point A was the place where the two accused were apprehended after the car of accused Basudev entered the plot from the Northern side but adjoining the Srijan School. From point C, point A is not visible even as per the siteplan because there was some construction as is reflected in the siteplan itself. Anyhow, as to the source of light, there is contradiction.
18.2 There is also contradiction in the testimonies of witnesses as to where the documentation was done. PW1 HC Vijender claimed that besides the two notices U/s 50 NDPS Act, all other documents were prepared by Inspector Jitender in front of main gate of G.D.Goenka School on the road. PW9 HC SC no. 65/12 Dtd... 06.02.2016 Page 45 of 48 46 Sanjay claimed that the seizure memos and other documents were pre pared on the vacant plot itself but towards the G. D. Goenka School under the light. On the other hand, Inspector Jitender claimed that the writing work was done at point C where the Innova vehicle was parked and he also claimed that he typed the seizure memos etc. on his laptop at the spot while keeping the laptop on the wall of the plot adjoining Srijan School.
18.3 PW1 HC Vijender deposed that at the time when case property was sealed, measured etc., it was done under the headlight of Innova car and headlight of Innova Car was facing towards Srijan School and thereafter headlights of Innova Car were put Off after the weight & sealing was done. On the other hand, Inspector Jitender claimed that the Innova Car was parked at point C as reflected in the siteplan which is quite different from point A where the case property was recovered.
18.4 There is also a serious doubt as to HC Sanjay actually going to the spot for the reasons that he claimed that distance where the raiding team parked the two vehicles and the place where accused Shree Ram was ad justing the gunny bag was 3035 meters only. If we see the siteplan, and as per the admitted case of prosecution, the two vehicles of the raiding team were parked on the Western side of Queen's Mary School, which is reflected at point B. between point A and B, there are two schools i.e. Queen's Mary School and the Srijan School. It is highly unlikely that the distance between Point A & B was only 3035 meters that is the distance SC no. 65/12 Dtd... 06.02.2016 Page 46 of 48 47 after crossing two schools. It creates doubt as to whether HC Sanjay vis ited the spot. Contrary to the claim of HC Sanjay, Inspector Jitender claimed that the said distance was 120 meters.
19 Admittedly, no one from the local police station was either informed or was requested to come to the spot at any stage of the proceedings. The ac cused persons and the case property was also not taken to the officer in charge of the nearest police station which admittedly was police station Model Town.
20 HC Sanjay claimed that there was no fixed duty time of this witness and the policemen used to remain in the office till the time their seniors used to allow them to go. He also claimed that he reported for his duties at 9.00 AM usually and remained on duty till his seniors allowed him to go. Admit tedly, the informer did not speak to HC Sanjay before coming to the office. HC Sanjay claimed that secret informer straightaway came to him and met him on the gate. It is highly uninspiring as to why the informer would go without even trying to verify whether the person he wants to meet would be available in the office or not, particularly at night at 9.00 PM.
21 No DD entries qua joining of duties of any of the raiding team member of the date of incident has been proved. It has not been proved that any of the raiding team member was on duty at the time when information was received, particularly HC Sanjay.
22 The seals were also not deposited in the malkhana till the time case prop erty was sent to the laboratory.
SC no. 65/12 Dtd... 06.02.2016 Page 47 of 48 4823 It is now well established that harsher the punishment provided for an of fence is, stricter has to be proof. The present case is under NDPS Act. It involves severe punishment, which in the present case may extend more than to ten years. It is now accepted principle of criminal jurisprudence that severer or harsher the punishment is, stricter has to be the degree of proof and higher degree of assurance would be required.
24 In Mousam Singha Roy and Others v. State of West Bengal 2003 (3) JCC 1385 : [(2003) 12 SCC 377], Hon'ble Supreme Court held :
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since the higher degree of assurance is required to convict the accused."
25 In view of the facts & circumstances, there are reasonable doubts about the genuineness and truthfulness of the case of prosecution, the benefit of which goes to both the accused persons. Both the accused Basudev and Shree Ram are acquitted of all the charges.
Announced in the open court on 6th day of February, 2016. Dig Vinay Singh ASJ/Spl.Judge : NDPS (NW) Rohini Courts/Delhi.
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