Delhi District Court
State vs . Siya Ram Shah on 2 February, 2013
SC No. 08/10
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 08/10
ID No. 02403R0173502010
FIR No. 18/10
PS Crime Branch
u/s 21 of NDPS Act
State Vs. Siya Ram Shah
S/o Late Raghunath Shah
R/o Village Prem Nagar, PS
Runnishail Pur, Distt. Sitamarhi
Bihar
Date of Institution : 18.05.2010
Judgment reserved on : 23.01.2013
Date of pronouncement : 02.02.2013
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused u/s 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act").
2. Briefly stated the allegations against the accused as contained in the chargesheet are as follows:
(a) On 20/02/2010 at about 9:30 AM, SI Bhagwan Singh, Narcotic Cell, received a secret information that one Siya Ram, a resident of Bihar, FIR No.18/10, PS Crime Branch Page 1 of 26 SC No. 08/10 currently residing in Ajmeri Gate was indulging in supply of heroin in whole sale and would be coming between 11:00 AM to 11:15 AM at the gate of Palika Bazar Parking,Connaught Place to supply heroin to someone.
(b) The information was brought to the notice of Inspector M.L. Sharma and ACP Sube Ram Yadav who gave directions for necessary action to be taken. DD entry no. 9 was also lodged in this regard in the Narcotic Cell and as per the directions of the senior officials, a raiding team comprising of SI Bhagwan Singh, HC Mahesh Kumar, HC Kanwal Singh and secret informer left at about 10.15 AM for Palika Bazar Parking, Connaught Place .
(c) It is asserted that while departing, IO SI Bhagwan Singh carried alongwith him, IO kit, field testing kit and electronic weighing machine and on the way to the spot at Pushta Road, ITO bus stand and at the spot, he also requested 45 persons to join the raiding team but none of them agreed to do so.
(d) On reaching the spot at about 10.50 AM, the members of the raiding team positioned themselves near and about the aforementioned premises and surveillance was mounted over the area and it is asserted that at about 10.55 AM, one person wearing cream colour shirt and black colour pant was seen coming from metro station Rajiv Chowk park side and was FIR No.18/10, PS Crime Branch Page 2 of 26 SC No. 08/10 identified as Siya Ram, the suspect by the secret informer. The said person then came and stopped near the Palika Parking Gate and started waiting for someone.
(e) After identifying him, the secret informer left the spot and the raiding team intercepted the accused, the IO introduced himself and the members of the raiding team to him and on enquiry, the accused confirmed that his name was Siya Ram. He was then informed about his legal rights and was issued a notice u/s 50 of NDPS Act and was made to understand that he has a legal right to be searched before the Magistrate or a Gazetted Officer. The accused refused to exercise the said right and his refusal was written on the notice by SI Bhagwan Singh and the accused signed on the said refusal. At that point of time also, 56 passersby were requested to join the investigations but, none agreed.
(f) Thereafter, SI Bhagwan Singh then conducted the search of the accused and from the right side pocket of pant worn by him, one transparent polythene, mouth of which was tied with a rubber band was recovered. On removing the rubber band it was found containing matiala colour powder, which on testing with field testing kit, gave positive result for heroin. The recovered heroin alongwith the polythene was weighed and its total weight came out to be 400 gms. Two samples of 5 gms, each were taken out from the recovered heroin and converted into pullandas which were then given FIR No.18/10, PS Crime Branch Page 3 of 26 SC No. 08/10 Mark 'A' & 'B'. The remaining heroin was also converted into a cloth pullanda and given Mark 'C'. All the Pullandas were sealed by the IO with the seal of '2BS'. The impression of the seal was then affixed on the Form FSL, which was filled up by the IO. Seizure Memo was also prepared.
(g) The Rukka was prepared and was sent through HC Kanwar Singh for registration of FIR. Further investigation was handed over to ASI Rajveer Singh who came to the spot and he was narrated the facts of the case by SI Bhagwan Singh and the accused and the documents prepared were handed over to him. ASI Rajveer Singh then inspected the site and prepared the SitePlan. After interrogating the accused he was then arrested and after completion of proceedings at the spot, the raiding team alongwith the accused went to PS Crime Branch, Nehru Place and deposited the personal search articles of the accused in the Malkhana. Thereafter, the accused was brought to Narcotics Cell, Shakkarpur and was produced before SHO M.L. Sharma. On 21/2/2010 Special Reports U/s 57 of NDPS Act were prepared. On 26/2/2010, the sample Pullanda of this case was sent to FSL, Rohini and after receiving the report from FSL, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed against the accused vide order dated 5/7/2010 for the offence punishable u/s 21 NDPS Act.
FIR No.18/10, PS Crime Branch Page 4 of 26 SC No. 08/10
4. In order to prove its case against the accused persons, the prosecution has examined 11 witnesses in all.
5. PW6 HC Kanwal Singh, PW7 HC Mahesh Kumar and PW10 SI Bhagwan Singh are members of the raiding team. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, DD No. 9 dated 20/2/2010, in which the secret information was reduced has been exhibited as Ex.PW4/A and the departure entry DD No. 10, in which the departure of the raiding team from the PS is recorded has been exhibited as Ex.PW10/A. The notice issued to the accused u/s 50 of the NDPS Act has been exhibited as Ex.PW6/A and the refusal written on behalf of the accused on the said notice has been identified at point 'X to X1' on the said notice. The seizure memo prepared with respect to the recovery of the heroin from accused has been exhibited as Ex.PW6/B. The tehrir prepared at the spot has been exhibited as Ex.PW10/B.
6. PW1 HC Hanish Suri, Duty Officer has inter alia deposed that on 20/2/2010 at about 3:00 PM, he had received the rukka prepared by SI Bhagwan Singh and sent through HC Kanwal Singh and had registered the FIR Ex.PW1/A and an endorsement in this regard was made on rukka ExPW1/B. The DD entries prepared by this witness with respect to the FIR No.18/10, PS Crime Branch Page 5 of 26 SC No. 08/10 rukka and preparation of FIR have been proved as Ex.PW1/C and PW1/D.
7. PW2 HC Dharmender has merely deposed that on 26/2/2010 on the instructions of Insp. Kuldeep, he had received one pullanda alongwith the FSL Form from the MHC(M) and had deposited the same in FSL, Rohini.
8. PW3 Dr. Madhulika Sharma, Asstt. Director, FSL Rohini has proved the report prepared by her with respect to the analysis conducted by her with respect to the sample sent to FSL. The said report has been exhibited as Ex. PW3/A and as per the said report, the sample Mark 'A' was found to contain 'caffeine, acetylcodeine, monoacetylmorphine, phenobarbital and diacetylmorphine and the percentage of diacetylmorphine and phenobarbital were found therein to be 3.1% and 6.3% respectively.
9. PW4 HC Karunakaran Nair has deposed that he was working as Reader to ACP Narcotics, Shakkarpur and that on 20/2/2010 DD no. 9 and on 22/2/2010 the reports u/s 57 of the NDPS Act regarding seizure of heroin and arrest of accused were received in the office of ACP. The said DD and reports have been exhibited as Ex.PW4/B, Ex.PW4/C and Ex.PW4/D as per the deposition of this witness.
10.PW5 HC Chand Ram has inter alia deposed that on the instructions of Insp. Kuldeep Singh, he had deposited the case property in the Malkhana and had made the entry in this regard in Register No. 19. The relevant FIR No.18/10, PS Crime Branch Page 6 of 26 SC No. 08/10 entry has been exhibited as Ex.PW5/A. This witness has also inter alia deposed that on 26/2/2010, he had sent one sealed pullanda mark A bearing the seals of 2BS and KSY, alongwith the FSL Form to FSL, Rohini. The original MHC(M) Register was also produced in the Court.
11.PW8 Insp. Kuldeep Singh has interalia deposed that on 20/2/2010, he was posted as SHO, PS Crime Branch and on that day, HC Kanwal Singh produced before him, three pullandas, one FSL Form and a carbon copy of Seizure Memo. As per the deposition of this witness, he put the FIR number and his seal 'KSY' on all the pullandas, the FSL form and the seizure memo and then got the said property deposited in the Malkhana by HC Chand Ram, MHC(M) and lodged DD no. 12 in this regard which has been exhibited as Ex.PW8/A.
12.PW9 ASI Rajveer Singh has inter alia deposed about the investigation carried out by him. As per his deposition, the site plan prepared by him at the spot has been exhibited as Ex.PW9/A. He has also inter alia deposed that he had recorded the statements of various witnesses in this case and had arrested the accused and the arrest memo has been exhibited as Ex.PW7/A. This witness has further deposed that he had prepared the report u/s 57 NDPS Act which has been exhibited as Ex.PW4/D. According to this witness he had collected the result from FSL and placed the same on judicial file on 26/5/2010.
FIR No.18/10, PS Crime Branch Page 7 of 26 SC No. 08/10
13.PW11 Insp. M.L. Sharma has inter alia deposed that on 20/2/2010 SI Bhagwan Singh along with secret informer came to his office and apprised him regarding the secret information. He has further deposed that he passed this information to ACP/N & CP telephonically and forwarded the DD no. 9 prepared by SI Bhagwan Singh to ACP/N & CP. According to this witness ASI Rajveer Singh and SI Bhagwan Singh submitted before him the Special Reports u/s 57 of NDPS Act.
14.The entire aforementioned incriminating evidence was put to the accused and his statement u/s 313 Cr.PC was recorded. In the said statement, he has stated that he has been falsely implicated in this case. He has inter alia stated that he used to run a 'Chhole Bhature' shop opposite gate no.2 New Delhi Railway Station and 34 police officials used to frequently come to his shop to eat Chole Bhature. According to his statement, 1520 days before 20/2/2010 he had asked the said police officials to pay him for chhole bhature since they never used to pay for the same and on this confrontation, one of the police officers had got agitated and had told him that he will teach him a lesson. As per the accused, on 20/2/2010 at about 6:00 AM 34 persons in civil clothes came and forcibly picked him from his shop and made him sit in the Maruti Car and took him to some office at near ITO, Laxmi Nagar, beat him up and then made to sign some blank documents.
FIR No.18/10, PS Crime Branch Page 8 of 26 SC No. 08/10
15.The accused Siya Ram has produced two witnesses in support of his defence his brother, Kishore Kumar and one Sunil Kumar, a Delhi Home Guard. The brother of the accused Kishore Kumar, DW1 has completely supported the version put forward by the accused and has inter alia deposed that 2 or 3 police officials used to come to the shop of his brother, where he also works as an assistant and used to eat chhole bhature without paying for the same and used to threaten him and his brother in case they demanded payment for the same. This witness has also then described as to how in the early morning of 20.02.2010 at about 05.3006.00 AM, 45 persons came to the shop of his brother and started beating him and then forcibly took him away in their vehicle.
16.DW2 Sunil Kumar has inter alia deposed that he was on duty as Delhi Home Guard on 20/2/2010 at Thomson Road, Ajmeri Gate side, Gate no. 2, New Delhi Railway Station and that at about 06.00 AM while he was taking rounds, he found 4050 persons gathered near the shop of Siya Ram. As per the deposition of this witness, he then went inside the shop of Siya Ram and saw that he was being beaten up by 45 persons in plain clothes and that the said persons informed him that they were from Crime Branch and told him to go away.
17.After conclusion of the defence evidence, final arguments have been advanced on behalf of both the State and the accused. Ld. Defence FIR No.18/10, PS Crime Branch Page 9 of 26 SC No. 08/10 counsel Sh. S.S. Dass has also filed written submissions on record. Ld. APP for State Ms. Sushma Badhwar and Sh. R.K. Gurjar have mainly contended that the deposition of the prosecution witnesses and the documentary evidence led on record sufficiently prove that the accused was apprehended near the gate of Palika Bazar and that 400 grams of heroin was recovered from his possession. It has been submitted on behalf of the State that all the prosecution witnesses have withstood the test of cross examination and that therefore prosecution has been able to prove its case beyond reasonable doubt.
18.Ld. Defence Counsel Sh. S.S. Dass on the other hand, has submitted that the accused has been falsely implicated in this case only because he had refused to oblige certain police officials. It has been pointed out by Ld. Defence Counsel that accused in his statement u/s 313 CrPC has explained that he used to run a shop of chhola bhatura outside the New Delhi railway station, Ajmeri gate side and that since he had dared to ask the police officials for the price of chhole bhatura purchased by them, he has been falsely implicated in this case by them. Ld. Defence Counsel has also pointed out that accused has produced two witnesses in support of his defence and that both of them have described in detail how the accused was forcibly picked from his residence. According to Ld. Defence Counsel the version of the accused that his signatures were taken on FIR No.18/10, PS Crime Branch Page 10 of 26 SC No. 08/10 various blank papers is also proved to be correct by the manner in which the original notice u/s 50 NDPS Act, ExPW6/A has been written. It is the contention of the Ld. Defence counsel that a perusal of the said documents makes it clear that first the signatures of accused were taken on a blank paper at two points on the said document and thereafter the said document was filled up and that is the reason the words in the said document had to be written in squeezed form so as to fit them just above the signature of the accused. The submissions therefore is that there has been no compliance whatsoever of section 50 of the NDPS Act and that on this ground alone the accused is entitled to be acquitted in view of the law laid down by the Hon'ble Supreme Court in its various judgments. Ld. Defence Counsel has also contended that the entire version of the prosecution is concocted for it is not humanly possible for the raiding team to have reached the spot at Palika Bazar from PS Shakkarpur within a period of 30 minutes, as asserted by them. According to Ld. Defence Counsel the accused was infact picked up by the police officials in the early morning of 20/2/2010 from his shop premises at Ajmeri Gate that thereafter all the documents were manipulated and prepared at the PS and the entire story of the accused having been found in possession of 400 grams was concocted. His contention is that failure of the investigating agency to join public witnesses is also fatal to their case in the facts and FIR No.18/10, PS Crime Branch Page 11 of 26 SC No. 08/10 circumstances of the present case. Ld. Defence counsel has also pointed out that certain contradictions between deposition of the prosecution witnesses to show that the case property allegedly recovered from the accused was tampered with and that the FSL form was never filled up at the spot. He has, in particular, pointed out that though according to all the members of raiding team, the accused was wearing a cream colour shirt and black colour trouser, PW9, the second IO has deposed that the accused was wearing a green colour shirt. He has also pointed out that though according to PW6 HC Kanwal Singh, the seal was handed over by the IO SI Bhagwan Singh to HC Mahesh at 11.45 AM, the IO himself has deposed that the FSL form was completed only by 12.15 PM in other words, either the deposition that the seal was handed over at 11.45 AM or that the FSL form was completed by 12.15 PM is incorrect, for the seal could not have been affixed on the FSL form by the IO after handing it over to HC Mahesh. Another fact pointed out by the Ld. Defence counsel is that the seal of the IO was never deposited with the MHCM and it allegedly remained with the police official who was subordinate to the IO and therefore the tampering of the case property cannot be ruled out. Ld. Defence counsel has also submitted that though as per the members of the raiding team, the seal of the IO was affixed on the back side of the FSL form, the MHCM has deposed that the seal was affixed on the front side of FIR No.18/10, PS Crime Branch Page 12 of 26 SC No. 08/10 the FSL form and according to the Ld. Defence counsel, this contradiction is sufficient to draw an inference that no FSL form was ever prepared. Ld. Counsel has also submitted that the fact that none of the prosecution witnesses were able to give satisfactory answers with respect to the buildings and offices that are existing near the spot, shows that none of them were present at the spot. In support of his contentions, Ld. Defence counsel has relied upon the following judgments:
● Dudh Nath Pandey Vs. State of U.P. AIR 1981 Supreme Court 911. ● State of Karnataka Vs. Dondusa Namasa Baddi Criminal Appeal No. 123 of 1997 dated 05.08.2010.
● NCB Vs. Sukh Dev Raj Sodhi (2011) 6 Supreme Court Cases 392. ● Sarju @ Ramu Vs. State of U.P. Criminal Appeal No. 1446 of 2009. ● DRI Vs. Raj Kumar Mehta & Ors. 2011(3) JCC (Narcotics) 156. ● State of Delhi Vs. Ram Avtar @ Rama 2011(3) C.C. Cases (SC) 172. ● Rupinder Singh Vs. State of Punjab 2012(3) JCC (Narcotics) 145. ● Peeraswami Vs. State of NCT of Delhi Criminal Appeal No. 382/2006.
19.In rebuttal, on behalf of the State, it has been contended that non joining of the independent witnesses is not fatal to the case of the prosecution as generally public persons are hesitant to join the police proceedings. It has also been submitted that the contradictions pointed out by the Ld. Defence Counsel are not so material that they can be made the basis for the FIR No.18/10, PS Crime Branch Page 13 of 26 SC No. 08/10 rejection of the case of the prosecution. It has been further contended that the investigating officer has complied with the provisions of the section 50 NDPS Act in its true spirit and that therefore the accused cannot be granted any benefit in this regard. As regards the allegations of the accused that he has been falsely implicated, Ld. APP for State has pointed out that neither the accused nor his brother DW1 nor the home guard DW2 had ever filed a complaint against the alleged erring police officials and this shows that the defence put up by the accused is after thought, only to save himself from punishment in this case.
20.I have carefully considered the submissions made by the Ld. Counsels and have gone through the judicial dicta referred to by the Defence. As narrated hereinabove, the defence of the accused is that he has been falsely implicated in the present case by the police officials only because he had asked them to pay for the chhola bhaturas purchased by them from his shop. As per the statement of the accused tendered u/s 313 Cr.PC, he used to run a chhole bhature shop opposite gate no.2, New Delhi Railway Station and few police officials used to frequently come to his shop to eat chhole bhature and 1520 days before 20.02.2010, he had asked the said police officials to pay him for the chhole bhature as they never used to pay him for the same. According to the accused, the police officials, on this demand of the accused had got agitated and told him that they would teach FIR No.18/10, PS Crime Branch Page 14 of 26 SC No. 08/10 him a lesson and thereafter on 20.02.2010 at about 06.00 AM, 34 persons in plain clothes had picked him up forcibly from his shop and had taken him thereafter to the office of Narcotics Cell near ITO, Laxmi Nagar. Two defence witnesses have been produced by the accused his own brother DW1 Kishore Kumar and DW2 Sunil Kumar, a Delhi Home Guard. Both these witnesses have deposed that on the date of incident, some police officials in civil clothes had come to the shop of the accused in the early morning and had beaten the accused mercilessly and had taken him in a vehicle. DW2, a Delhi Home Guard has deposed that on the date of the incident, he was on duty at Thomson Road, Ajmeri Gate and that at about 06.00 AM on 20.02.2010, he had seen a huge crowd gathered outside the shop of Siya Ram and when he had gone inside , he had seen that the accused Siya Ram was beaten up by 45 persons. He has further deposed that when he had asked as to why they were beating him, they replied that they were from Crime Branch and told him to stay away. Both the defence witnesses were crossexamined on behalf of the State at length and in the considered opinion of this court, both of them have been able to withstand the test of crossexamination. No doubt it has been rightly pointed out by Ld. APP that none of the said witnesses made a complaint against the police officials, but in the considered opinion of this court, the said mere fact cannot be a ground to discard their testimony. The younger FIR No.18/10, PS Crime Branch Page 15 of 26 SC No. 08/10 brother of the accused who would have been terrified by the illegal arrest of his brother cannot be expected to have stood up to the might of the same police officials who had arrested his brother on the mere asking for the payment of the food consumed by them. It is also quite acceptable that the Home Guard, Sunil also did not choose to file any complaint for he would have also not wanted to incur the wrath of the police officials on behalf of a stranger. In fact this witness has very truthfully deposed that he cannot admit or deny whether accused Siya Ram was dealing in drugs or not and has deposed that he has merely narrated what he had witnessed. In a case titled as Dudhnath Pandey Vs. State of UP (supra), Hon'ble Supreme Court has held that the defence witnesses are entitled to equal treatment with those of the prosecution and the courts ought to overcome their traditional, instinctive disbelief in the defence witnesses. In the present case, this court does not find any reason to discard the testimony of DW2 who is a Delhi Home Guard and is not related to the accused, and cannot be therefore stated to be interested in his acquittal and his testimony has inspired much confidence in the mind of this court.
21.On the other hand, the same cannot be said for the prosecution witnesses. This court has very carefully perused the notice u/s 50 NDPS Act given to the accused, Ex.PW6/A. According to the deposition of investigating officer SI Bhagwan Singh, the said notice was prepared by him and that he FIR No.18/10, PS Crime Branch Page 16 of 26 SC No. 08/10 had duly informed the accused that the accused has a right to be searched before a Gazetted Officer or a Magistrate if he so wishes but that the accused had refused to get himself so searched. The refusal of the accused has also been recorded by the IO in his own handwriting and the reason which has been given is that since the accused was an illiterate person, he had requested the IO to write the said refusal on his behalf. The said refusal of the accused is also recorded in Ex.PW6/A at points X to X1. This court is in complete agreement with the contention of the defence that the manner in which the said refusal appears on the said document shows that the refusal was written after the signature of accused were taken at point B. It does appear that the words constituting the refusal were squeezed in so as to fit in the space above the signature of the accused and therefore the assertion of the accused that his signatures were taken on blank documents cannot be brushed aside. It also cannot be lost sight of that no independent person was joined in the investigation and therefore the contents of the section 50 NDPS Act notice were not read over to the accused by any independent person.
22.The deposition of the IO that he had made an effort to join the public witnesses but that the public witnesses had not agreed to join the police proceedings cannot be taken to be gospel truth in the present case. According to the testimony of the IO Bhagwan Singh, he had made FIR No.18/10, PS Crime Branch Page 17 of 26 SC No. 08/10 sincere efforts to join the public witnesses in the proceedings at two places one at Pushta Road and then at the ITO bus stand and then thereafter again after the section 50 NDPS Act notice was read over to the accused. Contrary to this deposition of the IO, both PW6 HC Kanwal Singh and PW7 HC Mahesh Kumar in their crossexamination have stated that the raiding team had stopped only at Pushta Road to join the independent witnesses and had then straightaway reached Palika Parking entry gate. Such contradictions in the depositions of the main members of the raiding team cannot be ignored as minor contradictions for the said contradictions clearly point out that infact no serious efforts were made by the IO to join public witnesses and the deposition of the IO in this regard is false. It has been repeatedly held by the higher courts that in such cases as the present one, the investigating agency must show that sincere efforts were made to join independent witnesses and that the investigating agency cannot merely take a stand that public witnesses refused to join the investigation. In this regard particular reference is made to the judgments reported as Anup Joshi Vs. State 1999(2) C.C.Cases 314, Roop Chand Vs. State of Haryana 1999(1) C.L.R 69. In the said judgments, it has been observed by the Hon'ble courts that the failure to proceed against the public persons who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an afterthought FIR No.18/10, PS Crime Branch Page 18 of 26 SC No. 08/10 and is not worthy of credence. Further, very recently, as pointed out by Ld. Defence counsel, the Hon'ble Punjab and Haryana High Court in the case titled as Bhupender Singh Vs. State of Punjab (supra) has held that where there is a contradiction between the testimony of two official witnesses with respect to the joining of public witnesses, their statements have to be scrutinized very cautiously. Apart from the aforesaid contradictions between the depositions of IO and PW6 & PW7, it is also difficult to accept the deposition of the IO in this regard, for the reason that if he indeed had stopped at two places to join the public witnesses, it is being rightly contended by the defence that it would not have been humanly possible to cover the distance from PS Shakkarpur to Palika Bazar, in 30 minutes as asserted by the prosecution, for at least 1015 minutes in total would have taken to speak to the public persons and request them to join the proceedings. The IO in his crossexamination himself admits that at both the places that he had allegedly stopped there was heavy vehicle movement as it was peak traffic time in such circumstances in case the IO had made sincere efforts to join the public witnesses, he would not have possibly reached from PS Shakkarpur to Palika Bazar by 10.45 AM after having left the PS Shakkarpur at 10.15 AM. In the case titled as Peeraswami (supra), the Hon'ble Delhi High Court has held that a court can take judicial notice of the distances between the police station and the spot of the incident to determine whether FIR No.18/10, PS Crime Branch Page 19 of 26 SC No. 08/10 the investigating officials have put up a true and correct version before the court or not with respect to the apprehension of an accused.
23.The compliance of section 50 is not an empty formality. A Constitution Bench of Hon'ble Supreme Court in the case titled as Vijay Sinh Chanduba Jadeja Vs. State of Gujarat reported in (2011) 1SCC 609, after taking note that the punishment provided under the provisions of NDPS Act for mere possession of contraband is very severe and harsh, has held that it is mandatory for the investigating officials to strictly comply with the provisions of section 50 of the NDPS Act and that this duty cast upon the investigating officers is imperative and that any lapse in this regard will render the seizure of the contraband illegal and such a seizure cannot be made a ground for a valid conviction under the NDPS Act. It has been observed by Hon'ble Supreme Court in various cases under the NDPS Act that unlawful possession of a contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established beyond any reasonable doubt and further that it is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance thereto should be strictly construed. In Vijay Sinh's case (supra), the Hon'ble Supreme Court further held 'The question whether or not the procedure prescribed has been FIR No.18/10, PS Crime Branch Page 20 of 26 SC No. 08/10 followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.'
24.In the present case, as discussed hereinabove, this court is not at all satisfied that the accused was informed of his right to be searched before Magistrate or a Gazetted Officer and that he had refused to exercise the said right. This court is of the considered opinion that the signature of the accused appear to have be taken on blank documents and that therefore it cannot be held that the provisions of section 50 of the NDPS Act have been complied with. In fact, the signatures of the accused have been shown appearing on all the documents allegedly prepared at the spot namely the notice u/s 50 NDPS Act, the seizure memo, the arrest memo, the personal search memo, his alleged disclosure, etc. If the accused due to his illiteracy was unable to understand the contents of the documents being prepared by the police officials, it is not understandable as to why his signatures were insisted upon each of the documents prepared by the IO. It is not the case of the prosecution witnesses that the contents of all the documents were read over to the accused before he was made to sign the same. The argument that the signature of the accused on the said documents show that he had voluntarily participated in the proceedings FIR No.18/10, PS Crime Branch Page 21 of 26 SC No. 08/10 and that in fact the contraband was recovered from him, does not have much weight for then there is no reason as to why his signatures were not taken on the pullandas prepared of the contraband allegedly recovered from him. Admittedly, the signatures of the accused do not appear on the pullandas of the contraband which were allegedly prepared on the spot and that could be because though the signatures of the accused were taken by the police officials on blank sheets of paper, the same could not be taken on the pullandas, for the same were not even prepared till that stage.
25.Though the aforementioned lapse on behalf of the investigating agency is sufficient in itself to acquit the accused, this court would like to point out certain circumstances on record which do not inspire any confidence in the case of the prosecution. The second investigating officer in the present case, PW9 ASI Rajveer Singh who as per his deposition had reached the spot after the case was marked to him, has deposed that the accused had given a disclosure which has been exhibited as Ex.PW7/C. A perusal of the said statement shows that the accused had allegedly disclosed that he used to procure the contraband from two persons namely Pappu R/o Jhuggi, Sadar Bazar and one Rekha @ Kallo and that on the date of incident, he had come to Palika Bazar to supply the same to one Vinod Kumar and that the said contraband had been delivered to him by Pappu in the morning of the same date. As per the deposition of PW9 ASI Rajveer FIR No.18/10, PS Crime Branch Page 22 of 26 SC No. 08/10 Singh, pursuant to the said disclosure of the accused, he alongwith the accused had gone for searching the source of the supply and the recipient but nobody could be located. In his crossexamination, he has stated that though he had spent three hours to trace Pappu and Kallo @ Rekha but that they could not be traced. It is indeed strange that if the accused had infact given such a disclosure that he was to supply the heroin to one Vinod Kumar, why no interrogation was done from him to find out as to how he had fixed the place for meeting Vinod Kumar at Palika Bazar in this age of technology then everybody is using a mobile phone, why no interrogation was done from the accused about the mobile phone that was being used by him and by the persons who were his alleged suppliers or consumers. If the accused indeed was dealing in a business of supplying smack/heroin for the last two and a half years as alleged in his disclosure statement, he would have been indeed been in a position to own a mobile phone and would have been in touch with the suppliers Pappu and Rekha and the alleged recipient by the said mode of communication. The fact that no serious investigation was done in this regard cannot be brushed aside merely because a court is not required to question the tactics of interrogation and investigation. It is also to be taken note of that though according to the version put forward by the prosecution, right from 11.00 AM to 06.30 PM, 23 police officials alongwith the accused remained FIR No.18/10, PS Crime Branch Page 23 of 26 SC No. 08/10 standing near the gate of the parking lot of the Palika Bazar, yet none of them could see Thapars Shop which is hardly 50 mtr away from the spot where the police gypsy remained parked during the aforementioned time (none of the PWs in their crossexamination could tell whether such a shop was noticed by them or not). Further, in Peeraswami's case (supra), the Hon'ble Delhi High Court after taking note that the log book produced by the prosecution did not support the version put forward by the investigating agency, refused to uphold the conviction of the accused. In other words, the log book maintained with respect to a government vehicle was held to be an important piece of evidence which the prosecution must bring before the court to support its version of having gone to the spot of apprehension of the accused. In the present case, no such log book has been produced before this court though admittedly, it was a government vehicle that had gone to the spot.
26.The aforementioned discrepancies and the discrepancies pointed out by the Ld. Defence counsel (discussed in para 18 hereinabove) may be termed as minor if considered in isolation, however if the same are considered conjunctively and cumulatively alongwith the fact that the provisions of section 50 NDPS Act were not complied with, the irresistible inference is that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubt. Another aspect FIR No.18/10, PS Crime Branch Page 24 of 26 SC No. 08/10 which cannot be ignored in the present case is that the FSL report proved on record shows that the sample drawn from the 400 gms of the substance allegedly recovered from the accused was found to contain primarily caffeine and only 3% of diacetylmorphine (heroin) i.e. in other words only 12 gms of heroin were allegedly recovered from the accused. No doubt, in view of the notification dated 18.11.2009, issued by the Central Government, this court is not to consider the pure drug content of the heroin alone in the mixture of 400 gms, but the very small percentage of heroin found to be present in the substance allegedly recovered from the accused is a fact which is being rightly relied upon by the accused in the present case to support his contention that he has been falsely implicated and the contraband has been planted upon him. The Apex Court in the case of Noor Aga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused. It has also been observed by the Hon'ble Supreme Court in the said case that though the standard of proof required to prove the guilt of the accused on the FIR No.18/10, PS Crime Branch Page 25 of 26 SC No. 08/10 prosecution is 'beyond all reasonable doubt.' In State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed". In the present case it is clear that the evidence produced by the prosecution is not sufficiently credible to hold that the investigating agency has followed the mandatory provisions of section 50 of the NDPS Act. On the other hand, the accused has been able to show his defence as probable. In view thereof, it is hereby held that the prosecution has failed to prove its case against the accused beyond reasonable doubt and the accused therefore stands acquitted of the charges framed against him.
Announced in open Court on this 2nd day of February, 2013 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No.18/10, PS Crime Branch Page 26 of 26