Delhi District Court
State vs . Ramu Jaiswal, on 3 August, 2011
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS): OUTER DISTRICT
ROHINI COURTS: DELHI
Sessions Case No.13/09
Unique ID No. 02404R0114982009
FIR No.28/09
PS Crime Branch
u/s 21 NDPS Act
State Vs. Ramu Jaiswal,
S/o late Khusi Ram Jaiswal,
R/o Mohalla Kanoon Goyan,
Faridpur, Barrielly, UP.
Date of Institution: 04.05.2009
Date of conclusion of Arguments: 28.07.2011
Date of pronouncement of Judgment: 03.08.2011
JUDGMENT
1 Accused Ramu Jaiswal been sent up to face trial by PS Crime Branch for commission of offence under Section 21 of Narcotic Drugs and Psychotropic Substances Act (herein after referred to as 'NDPS Act').
2 Case of the prosecution, briefly stated, is to the effect that on 22.02.2009 at about 11.45 AM, a secret informer came to Narcotic Cell and met SI Sunil Jain and informed him that one person with the name of Ramu, who was resident of Barrielly, UP and who used to used to supply heroin in the area of Delhi after procuring the same from Barrielly, would come that day between 2.00 PM and 3.00 PM near the gate of Rajiv FIR No. 28/09 PS Crime Branch page 1 of 11 Gandhi Cancer Hospital, Sector-5 to supply heroin to someone and if raided, he could be apprehended with contraband. After satisfying himself, SI Sunil Jain produced informer before Insp. M.L. Sharma who also verified the facts from informer and further apprised Sh. S.R. Yadav, ACP telephonically at his residence who directed him to take immediate legal action. Secret information was reduced in writing vide DD No. 8. Raiding party was prepared and all the members of the raiding party along with informer left Narcotic Cell vide DD No. 9 and reached at the spot. SI Sunil Jain briefed the members of the raiding party and all police officials took position. At about 1.45 PM, accused was seen coming towards the gate of Rajiv Gandhi Cancer Hospital from the side of Metro track. Secret informer identified him and then left. Accused stopped there and started waiting form some and after 3-4 minutes, accused started retreating, he was apprehended. Accused was made aware about his legal rights but he refused to avail his legal rights. Notice u/s 50 NDPS Act was prepared and served upon the accused. His search was conducted and one black color plastic polythene was recovered from right side front pocket of the wearing pants of accused. Said polythene was checked and it was found containing one transparent polythene and such transparent polythene was containing matiala color powder. When tested with the help of Field Testing Kit, it was found to be heroin. Total weight of heroin was found to be 350 grams. Two samples of five grams each were drawn and separately packed and sealed. Requisite documentation was FIR No. 28/09 PS Crime Branch page 2 of 11 done at the spot. Since the possession of heroin was illegal and unlawful, it is in these circumstances that the accused has been arrested and charge-sheeted.
3 Charge-sheet was filed on 04.05.2009.
4 After the extrapolation of percentage of diacetylmorphine, accused was charged under Section 21 (b) NDPS Act. He pleaded not guilty and claimed trial.
5 Prosecution was directed to adduce evidence and has examined nine witnesses viz PW1 Sh. S.R. Yadav (ACP Narcotics), PW2 HC Chand Ram (MHCM), PW3 HC Ramesh Chander (recovery witness), PW4 Ct. Joginder Singh (recovery witness), PW5 Insp. Akshay Kumar (SHO PS Crime Branch), PW6 Ct. Satyapal (sample depositor), PW7 SI Sunil Jain (recovery witness/first investigating officer), PW8 SI Satyawan (second investigating officer) and PW9 Insp. M.L. Sharma (In- charge Narcotics Cell).
6 Accused, in his statement under Section 313 Cr.P.C., pleaded innocence and claimed that he had been falsely implicated.
7 I have heard Ms. Purnima Gupta, learned Addl. P.P. for State and Sh. Deepak Ghai, learned defence counsel and carefully perused the entire material available on record.
FIR No. 28/09 PS Crime Branch page 3 of 11 8 Learned Addl. P.P. has argued that prosecution has
been able to prove its case to the hilt. She has contended that all the material recovery witnesses have fully supported the case of prosecution and there is no reason whatsoever to disbelieve the recovery. She has also argued that all the vital links are found to be in existence and all the material documents prepared at the spot have also been duly proved.
9 Sh. Deepak Ghai has, on the other hand, refuted all the aforesaid assertions. His prime contentions can be enumerated as under:
(i) There is no public witness despite the fact that lot of people had collected on the spot at the time of alleged apprehension.
(ii) There is no compliance of
mandatory provision of Section 50 NDPS
Act.
(iii) FSL form has not been produced.
(iv) Identity of sample is highly
doubtful as link evidence is missing.
(v) There is no explanation about
variation in the percentage of
diacetylmorphine.
10 I have given my thoughtful consideration to the rival
contentions and carefully perused the entire evidence on record.
FIR No. 28/09 PS Crime Branch page 4 of 11 11 I have seen the testimony of material recovery
witnesses viz PW7 SI Sunil Jain, PW3 HC Ramesh Chander and PW4 Ct. Jogender and undoubtedly they have deposed along prosecution line and have raised a clear-cut accusing finger towards accused.
12 However, there is found to be one very decisive and crucial point which has created a serious doubt with respect to identity of the sample.
13 Accused was allegedly found in possession of 350 grams of heroin. Recovery was effected on 22.02.2009 and same day it was deposited in malkhana. It was thereafter sent to FSL for analysis and was actually received by FSL on 12.03.2009. In such type of matters, it is principal duty of prosecution to show and substantiate beyond doubt that the case property remained intact right from the seizure till it reaches safe hands of public analyst. This is to show transparency in the matter and to rule out any possibility of allegation of tampering with the case property. 14 Let me now see the testimony of MHC(M) PW2 HC Chand Ram. He was posted as malkhana Incharge on 22.02.2009. According to him, Insp. Akshay Kumar, SHO PS Crime Branch had deposited three pullandas bearing serial no. A, B & C having seal of 3B NB DELHI and AK along with carbon copy of seizure memo and FSL form and those articles were taken into possession vide entry no. 139 made in Register No. FIR No. 28/09 PS Crime Branch page 5 of 11
19. He further claimed that on 06.03.2009 pullanda Mark A along with FSL form were handed over to Ct. Satpal for depositing the same with FSL vide RC No. 59/21 but that day such sample could not be deposited and, therefore, these were re-deposited in malkhana by Ct. Satpal same day and were sent again through Ct. Satpal on 12.03.2009 vide RC No. 66/21.
15 Thus, if PW2 HC Chand Ram is to be believed then sample pullanda was initially sent on 06.03.2009 through Ct. Satpal but same was not accepted by FSL. No one has bothered to throw any light as to why FSL did not accept sample pullanda. FSL normally does not refuse to accept case property. It refuses only when there is some apparent hitch. It can relate to seal as well. What to say about offering any excuse or reason for non-acceptance of sample pullanda on 06.03.2009, neither SHO nor IO has murmured even a single word regarding dispatch of sample on 06.03.2009.
16 I have carefully seen the testimony of second IO i.e. PW8 SI Satyawan. In his entire deposition, he has nowhere claimed that sample pullanda was ever sent to FSL through anyone on 06.03.2009. Testimony of concerned SHO is also conspicuously silent on this score.
17 So much so, even Ct. Satpal has not come to the rescue of prosecution in this regard. He was examined by the FIR No. 28/09 PS Crime Branch page 6 of 11 prosecution but in his entire testimony he did not tell even a single word with respect to taking away of sample pullanda to FSL on 06.03.2009. He started his deposition with the factum of taking case property to FSL on 12.03.2009 and ended there.
18 Thus, according to malkhana in charge alone, sample was taken from malkhana on 06.03.2009 and could not be deposited on 06.03.2009. The person, who had taken such pullanda to FSL and the person at whose instance such pullanda must have been taken to FSL on 06.03.2009 are found to be quiet on this vital point. It rather indicates that something is being hidden from the Court. Register No. 19 was produced before the Court and as per entry made in Register No. 19, it becomes very much perceptible to the naked eyes that pullanda Mark A was, in fact, sent on 06.03.2009 and was not accepted by FSL. Reference in this regard be made to entry Ex. PW2/A. However, nobody knows the reason for non-acceptance. Moreover, Ct. Satpal was custodian of case property on 06.03.2009 but he has not said so at all. Therefore, possibility of tampering with the case property cannot be ruled out.
19 I also called for the case diary and on careful perusal of police file, it was found that there was no case diary of 06.03.2009. It is really surprising as to why no statement of Ct. Satpal or of MHC(M) was recorded on 06.03.2009 and why IO did not ascertain from Ct. Satpal as to why pullanda had not FIR No. 28/09 PS Crime Branch page 7 of 11 been accepted. It has to be, therefore, inferred that either the case property was taken away without the knowledge of IO and SHO or else something is being purposely hidden from the Court.
20 I also cannot shut my eyes to the variation noted by FSL Expert with respect to percentage of diacetylmorphine. When pullanda Mark A was sent to FSL on 12.03.2009, it was examined by FSL and as per report of FSL, percentage of diacetylmorphine was 22.2 per cent. At request of defence, another sample was drawn from the main pullanda and was sent to FSL on 10.06.2011 and as per second report of FSL which is dated 13.07.2011, such percentage came down drastically to 3.17 per cent. Prosecution has again no explanation as to why percentage of diacetylmorphine reduced enormously.
21 Sample pullanda was taken to FSL by Ct. Satpal on 06.03.2009 but he has not said so and, therefore, there is nothing to concretely indicate that sample was not tampered till the same was received by the public analyst. Reference in this regard be made to Mohd. Hashim v. State 2000 CRI. L. J. 1510 Delhi and State of Rajasthan Vs. Daulat Ram AIR 1980 SC 13 22 Ct Satpal was custodian of the case property and, therefore, it was incumbent on the part of prosecution and FIR No. 28/09 PS Crime Branch page 8 of 11 investigating agency to have elicited from his mouth that case property remained intact right from the seizure till the same reached the safe hands of public analyst and non-utterance of such fact by him has to be assumed as fatal to the case of prosecution. In the case of 1991 CRI. L. J. 2524 MOHD. ASIF V. STATE (DELHI ADMN), it has been observed that there can possibly be no dispute with regard to the proposition that in cases where link evidence is missing to prove that the sealed parcels were not tampered with the, Court has to give benefit of doubt to an accused. In STATE OF RAJASTHAN VS DAULAT RAM AIR 1980 SC 1314, it has been held that it is the duty of the prosecution to prove that while in their custody, the sample was not tampered with before reaching the public analyst. In SUBHASH CHAND MISHRA VS STATE 2002(2) JCC1379, it has been observed that prosecution is under an obligation to prove that the sample delivered to CFSL was in the same condition and there was no possibility of being tampered with. In MOHD HASIM VS STATE ( DELHI) 1999 ( 3) C.C. CASES DHC 149 and EZE VAL OKELE @ VAL EZE VS NARCOTIC CONTROL BUREAU 2005 1 AD ( CR.) DHC 185, it has been held that prosecution is bound to produce every link evidence that sealed pullandas of case property from the time they were taken till they were deposited in the malkhana and till they were deposited in the FSL, the seals thereon were not tampered with, by examining all the witnesses who had handled the sample. It was also held that if any link was missing, then it could not be said that FIR No. 28/09 PS Crime Branch page 9 of 11 prosecution had ruled out the possibility of sample being tampered with or changed and accused would be entitled for acquittal. In the case of Eza Vel Kal. NCB 116 (2205) DLT 399, it has been held by Hon'ble Mr. Justice R.C. Chopra that prosecution is under obligation to establish on record as to who had taken the sample of the contraband to CRCL and also to prove that there was no tampering with the sample during that period.
23 It would be worthwhile to mention here that during course of final arguments, learned Addl. P.P. prayed for one opportunity to examine him but I do not find any merit in such contention coming at such a belated stage.
24 In view of my aforesaid discussion, I need not to touch other aspects of the case. Even if it is assumed that there was compliance of Section 50 NDPS Act and that recovery was effected, prosecution has miserably failed to show that case property and pullandas remained intact right from the seizure till the same were examined by FSL. I accordingly grant benefit of doubt to accused and acquit him of all the charges levelled against him in the present case.
25 His bail bonds are cancelled. Surety is discharged.
FIR No. 28/09 PS Crime Branch page 10 of 11 26 Case property is confiscated to State and be
destroyed after expiry of period of appeal, if any.
27 File be consigned to Record Room.
Announced in the open Court On this 03rd day of August, 2011.
(MANOJ JAIN)
ASJ/Special Judge (NDPS)
Outer Distt: Rohini Courts: Delhi
FIR No. 28/09 PS Crime Branch page 11 of 11