Delhi District Court
The State vs . 1) Mohd. Tabrej on 12 May, 2010
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.: 108N/08
FIR No.: 07/08
PS: Narcotics Branch
U/s 21 NDPS Act
The State Vs. 1) MOHD. TABREJ
s/o Ali Sajjad
r/o E192, J.J. Colony,
Bawana, Delhi.
2) PHOOL BANO @ MURGIWALI
w/o Saleem
r/o E2761, J.J. Colony,
Bawana, Delhi.
(already discharged vide order
dated 05.09.08)
Date of Institution: 24.03.2008
Date of conclusion of Arguments: 05.05.2010
Date of pronouncement of Judgment: 12.05.2010
JUDGMENT
1 Initially, chargesheet was filed by PS Narcotics Branch for commission of offence under Section 21 of Narcotics Drugs and Psychotropic Substances Act (herein after referred to as 'NDPS Act') against accused Mohd. Tabrej only as coaccused Phool Bano @ Murgiwali was absconding.
2 As per the case of prosecution, on 26.01.08, a secret informer came at PS Narcotics Branch and informed police that State Vs. Mohd. Tabrej :1 :
there was information that one person with the name of Tabrej who was resident of J.J. Colony, Bawana and who used to supply smack in retail and wholesale, would come that day near Petrol Pump, Bawana between 6 pm and 7 pm to supply smack to someone and if raided, he could be apprehended. Informer was produced before ASI Devender Singh and then before Inspector M.C. Katoch, SHO. They verified the credentials of the information and then intimated ACP telephonically who directed to conduct raid immediately. Raiding party left PS Narcotics Branch and reached at the spot and took position at the spot. Public persons were also requested to join the investigation but none agreed and left. At about 6:15 pm, accused was found coming wearing shawl and black colored trouser. He was coming on foot and informer identified him from a distance of 50 meters. Accused started waiting for someone near the petrol pump and when he started to retreat, he was overpowered. Accused was made aware about his rights as envisaged u/s 50 NDPS Act but he refused to avail his legal rights. One transparent momi thaili was recovered from the right pocket of his wearing pants which was containing matiala color (light brown color powder). It was found to be heroine when tested with the help State Vs. Mohd. Tabrej :2 :
of field testing kit. Total weight of heroine was found to be 150 grams. Two samples of five grams each were drawn out and separate pullandas were prepared and sealed. Requisite documentation was done. Accused Mohd. Tabrej claimed that the smack in question had been supplied to him by his co accused Murgiwali. Accused also took the police party to her jhuggi but the jhuggi was found locked. His coaccused Murgiwali could not be apprehended and, therefore, charge sheet qua accused Mohd. Tabrej was filed in the court on 24.03.08.
3 On further investigation, accused Phool Bano @ Murgiwali was also arrested on 31.05.08 and supplementary chargesheet qua her was filed in the court on 13.06.08. 4 Accused Mohd. Tabrej was charged u/s 21 (b) of NDPS Act. He pleaded not guilty and claimed trial. Accused Phool Bano was discharged by my Ld. Predecessor vide order dated 05.09.08 for want of any admissible evidence.
5 Prosecution was directed to adduce evidence and
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examined nine witnesses viz. PW1 Ct. Satpal (official who had taken the sample pullanda to FSL), PW2 HC Vijay Pal (MHC(M)), PW3 Sh. Mahender Singh (ACP), PW4 HC Mahesh Kumar (Duty Officer), PW5 Sh. M.C. Katoch (the then SHO, PS Narcotics Branch), PW6 ASI Devender Singh (First Investigating Officer), PW7 HC Charan Singh (recovery witness), PW8 ASI Rajbir Singh (recovery witness) and PW9 ASI Paramjeet Singh (Second IO) 6 Accused, in his statement recorded u/s 313 Cr.P.C., pleaded innocence. He claimed that nothing was recovered from him and he had been falsely implicated. He, however, did not wish to lead any evidence in defence. 7 I have heard Ms. Purnima Gupta, Ld. Addl. P.P. and Ms. Sunita Tiwari, Ld. defence counsel for accused and carefully gone through entire material on record.
8 Ms. Gupta has argued that prosecution has been able to prove its case to the hilt. It has been argued that all the material recovery witnesses have graced the witness box and have fully corroborated one another and have fully supported State Vs. Mohd. Tabrej :4 :
the case prosecution. She has also argued that all the links are found to be in existence and there is nothing to suggest that seal was ever tampered with. She has argued that in view of transparent and cogent testimony on record coupled with the report of FSL which is per se admissible in evidence, prosecution has been able to prove its case beyond shadow of doubt.
9 Ms. Tiwari has, on the other hand, contended that accused has been falsely implicated. She has contended that accused was Bad Character of Kotwali area and it being Republic Day, he was detained at PS as a precautionary measure and routine rounding up and thereafter, he had been falsely implicated in the present matter. She has also argued that HC Rajbir Singh and HC Charan Singh were earlier posted in North District and they both knew about accused but despite that, such fact has been purposely concealed which itself smacks of malafide. She has also argued that the identity of the sample is highly doubtful. She has also argued that it is not clear as to where the writing work was done and she has also claimed that no effort whatsoever was made to join the independent witnesses.
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10 I have given my thoughtful consideration to the rival
contentions and carefully perused the entire material available on record.
11 Undoubtedly, it's a case where the investigating agency was acting on a very specific tip off. Informer had come at the PS and categorically told Ct. Charan Singh that accused Mohd. Tabrej who was resident of J.J. Colony, Bawana would come at Bawana Petrol Pump between 6 pm and 7 pm in order to supply smack. Police party had all the time in the world to join independent witnesses but the efforts made by the police do not seem to be sincere efforts. These are rather namesake. PW6 ASI Devender Singh is the First Investigating Officer and he has deposed that he had asked 4/5 public persons to join the investigation at Shastri Park, Red Light and 4/5 public persons at Mukarba Chowk but none agreed. He also deposed that employees of the petrol pump were also asked but they also claimed that they could not join the investigation as they had to fill petrol in the vehicles. In his crossexamination, he admitted that there were shops on the opposite side of petrol pump and he deposed that no such shopkeeper was asked to join the investigation. He has deposed that there was no shop State Vs. Mohd. Tabrej :6 :
adjacent to the petrol pump but when he was confronted with the site plan, he admitted that there were shops adjacent to the petrol pump as well. I have seen the site plan as well. It is indeed intriguing as to why shopkeepers were not asked to join the investigation. There was no impediment in at least recording the names and addresses of employees of petrol pump who refused to join the investigation. Police party could have also easily recorded the names and addresses of the passersby but no necessity was felt in this regard and all such passersby were let off in a very casual manner. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts State Vs. Mohd. Tabrej :7 :
the court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution and simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses more so when they are available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. Reference in this regard be also made to two judgments of our own Hon'ble High Court cited as RATTAN LAL VS. STATE 32 (1987) DLT DELHI 1 and MOHD. JAVED VS. STATE I (2000) CCR 402 DELHI.
12 Moreover, according to defence counsel, accused was Bad Character of Kotwali area and it has also been argued that Ct. Charan Singh and HC Rajbir Singh remained posted in North District and they very well knew accused beforehand but despite that they have concealed such vital fact and have deposed as if they did not know the accused at all. In such a situation, it was rather all the more important to have corroboration from a neutral corner.
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13 Its a case of recovery from the person of accused and,
therefore, Section 50 NDPS Act comes into play. PW6 ASI
Devender has deposed that accused was apprised about his legal rights that he could be searched before Gazetted Officer or Magistrate and that accused could also search the police party and official vehicle. Notice u/s 50 NDPS Act has been proved as Ex.PW6/A and refusal endorsement of accused has been proved as Ex.PW6/B. As per the case of prosecution, accused was served with carbon copy of such notice. 14 I have seen the contents of notice very carefully and if the contents are to be believed then the accused was very well made aware about his rights and he himself is to be believed as he refused to avail his legal rights. But at the same time, I cannot lose sight of one essential aspect. As already noticed above, it was the carbon copy of notice which was served upon the accused but the recovery witnesses are not coming up with similar versions in this regard. According to PW6 ASI Devender Singh, carbon copy of notice was served upon the accused but PW7 HC Charan Singh has contradicted him as according to him, accused was served with original notice. It was observed by the court also that PW7 HC Charan Singh had State Vs. Mohd. Tabrej :9 :
very specifically claimed in his crossexamination that accused was served with original notice. Such answer was cross checked by the court as well. Thereafter, witness attempted to change his answer but fact remains that in his cross examination, he had earlier come up with a very specific stand and such stand was even crosschecked by the court and according to his such earlier stand, accused was served with original notice. If everything had been done in the presence of all the recovery witnesses then it was expected that they would corroborate one another and would support the case of prosecution but Ct. Charan Singh has claimed that it was the original notice which was served upon the accused which does not go hand in hand with the case of prosecution and creates a doubt in the case of prosecution.
15 As per the case of prosecution, the recovered substance was of light brown color i.e. matmaila color. Two samples were drawn and one of such sample was sent to FSL. I have seen the report of FSL and according to report of FSL, the contraband which had been received was dark brown color powdery material with lumps. It was found containing paracetamol besides diacetylmorphine. Thus, as per the State Vs. Mohd. Tabrej :10 :
documents prepared at the spot and as per the testimony of witnesses, the recovered substance was light brown in color but when the contraband was received by the FSL authorities, the color became dark brown. Things become more complicated if I notice the color of the heroine when it was opened before the court and was exhibited for the first time. Case property was opened before the court on 23.02.10 and it was found that sample pullanda Mark B was containing black colored substance which was in the shape of lumps and granules and it did not look like smack or for that matter the representative sample. Similarly, the pullanda which contained the remnant of smack (received back from FSL) also depicted altogether different color. Such pullanda was found containing contraband black in color and was in the shape of lumps. It was found different from the main pullanda. Main pullanda Mark C was found containing light brown color powder. It naturally creates a very strong doubt in the identity of the sample. All the pullandas were kept in malkhanna of PS Narcotics Branch under the same storage condition. Ld. Prosecutor has tried to justify the change in the color due to lapse of time and may be due to seepage of water but such argument does not click at all. If at all, there was any change State Vs. Mohd. Tabrej :11 :
in the physical properties or chemical properties due to any reason whatsoever, the contents of main pullanda Mark C would have also undergone similar change but fact remains that main pullanda Mark C contains light brown colored powder and the samples allegedly drawn from pullanda Mark C are totally different in color and properties. Accused, therefore, cannot be hauled up on the basis of sample which does not seem to be representative in nature. In the case of ASSISTANT DIRECTOR OF NARCOTICS CONTROL BUREAU EASTERN ZONAL UNIT, CALCUTTA V. DIPAK PODDAR.2008 CRI. L. J. 4520 CALCUTTA, there was difference of weight as also the colour of the contraband substance allegedly recovered and, it was observed that there was doubt that what was received by the expert was not the same which had been recovered. Moreover, Police can not take its job too casually. If it is argued from the side of State that there is chance of contraband getting wet while lying inside a guarded and enclosed room then something is actually required to be done. Narcotic Branch is supposed to have a fool proof enclosure for proper upkeep and security of such type of contraband. If a specialized agency does not have adequate arrangement or if it does not know how to keep the articles secured, then the State Vs. Mohd. Tabrej :12 :
plight of ordinary Malkhana would be really scary. A copy of this order be sent to DCP (Crimes and Railways) with request to look into this imperative aspect and let report be submitted in this regard within 4 weeks.
16 It is also not clear as to where the testing with Field Testing Kit, the writing work, weighing and sealing was actually done. According to PW6 ASI Devender, all these things were done inside the vehicle whereas as per PW7 Ct. Charan Singh, testing was done in the open, outside the vehicle by taking help of the bonnet of the vehicle. Thus, the witnesses are coming up with contradictory versions in this regard. If at all writing work was carried out at the spot in the presence of all the material spot witnesses then it was expected that they would give uniform answers with respect to the place of writing work but inconsistent versions are appearing on record which also makes the prosecution case doubtful. In the case of DINESH KUMAR VS. STATE 1993 (1) CC CASES 267 (DEL), there were contradictions with respect to aspect of place of recording of proceedings and such discrepancies were found to be material particularly in the absence of corroboration from the neutral corner and accused was State Vs. Mohd. Tabrej :13 :
acquitted.
17 In such type of matters, the importance of FSL Form cannot be undermined in any manner whatsoever. FSL Form is filled as a crosscheck mechanism and it gives the concerned expert an opportunity to tally the seals with the impression appearing on FSL Form. PW2 HC Vijay was MHC(M) at the relevant point of time. Entry in register no. 19 was made by him. Sample was sent to FSL on 31.01.08 and he admitted that against entry no. 742 dated 31.01.08, words "FSL Form"
had been written over fluid. Original register was also seen by the court and it was observed by the court that in fact words that "FSL Form" have been added subsequently after applying the fluid. This also indicates that everything is not correct with the case of prosecution and words were added later on in order to show that FSL Form was also dispatched to the forensic laboratory along with the sample pullanda. Moreover, the acknowledgment given by concerned FSL authority shows to the contrary as according to such acknowledgment Ex.PW1/D, only one sealed cloth parcel was received. Such acknowledgment does not indicate that any FSL Form was also received along with sample.
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18 In view of my aforesaid discussion, I find it to be a
fit case where accused should be granted benefit of doubt. Accused is accordingly granted benefit of doubt and is acquitted of charge u/s 21 of NDPS Act. His bail bonds are cancelled. Surety is discharged.
19 Case property stands confiscated and be destroyed as per statutory rules after expiry of the period of appeal or after awaiting the outcome of appeal, as the case may be. 20 File be consigned to Record Room.
Announced in the open court on this 12th day of May, 2010.
(MANOJ JAIN)
ASJ/Special Judge (NDPS)
Outer District: Rohini Courts: Delhi
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