Delhi District Court
State vs . Mohd. Nazim @ Sandeep Page No. 1 Of 17 on 27 July, 2015
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IN THE COURT OF SH. AJAY KUMAR KUHAR,
SPECIAL JUDGE (NDPS ACT), SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
SC No. 11A/12
FIR No. 361/2011
u/ Sec. 21 (b) NDPS Act
PS: H. N. Din
Unique I.D. No. 02406R0039672012
State
Vs.
Mohd. Nazim @ Sandeep
S/o Mohd. Shafiq
r/o H. No. 469, Gali no. 21, Jafrabad,
Delhi and presently residing at
C-187, Gali no. 9/4, 4th Floor,
Near Kanija Masjid, Maujpur,
Delhi - 53
Date of filing of charge-sheet : 14th February, 2012
Arguments concluded on : 27th July, 2015
Judgment announced on : 27th July, 2015
JUDGMENT
Accused Mohd. Nazim @ Sandeep was put to trial for the offence punishable under Section 21(b) of NDPS Act on the allegations that on 16.12.2011 at about 07:30pm, he was found in possession of 8.5 grams of 'smack' without any permission or licence in contravention of provisions of Section SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 1 of 17 :: 2 ::
8(c) of NDPS Act, when he was apprehended at T point under Barapulla Elevated Road, near Nizamuddin Railway Station. Facts
1. Prosecution case is that on 16.12.2011, SI Abhishek Singh was on patrolling duty with Ct. Radha Krishan in the area of PS H. N. Din at about 07:30pm. When they were present under Barapulla Flyover , Nizamuddin , they noticed that accused who was wearing brown colour jacket and was coming from the side of Nizamuddin station. On the basis of suspicion they stopped the accused and on his cursory search, a white polythene in the right side outer pocket of his wearing jacket was recovered which was containing white brownish colour powderish substance suspected to be "smack". Since, SI Abhishek Singh suspected that accused might be carrying some more drug, he gave a notice u/s 50 NDPS Act to accused apprising him about his legal right to be searched in the presence of Gazetted Officer or Magistrate. The further search of the accused however, did not lead to recovery of any contraband substance. Thereafter, SI Abhishek Singh weighed the smack recovered from the possession of the accused on a weighing machine and the total weight was found 8.5 grams SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 2 of 17 :: 3 ::
out of which 2 grams was taken out as sample . Sample as well as the remaining smack were kept in two different pullandas marked as 'S-I' and 'S-II' respectively. Pullanda was sealed with the seal of AS and simultaneously, the FSL form was filled up. In the meantime, SHO, PS H. N. Din also reached at the spot. SI Abhishek Singh handed over the recovered smack, the sample taken out from the smack recovered from the accused , FSL form to the SHO and prepared the rukka , which he handed over to Ct. Radha Krishan. SHO had put his seal 'BS' on all the pullandas and left the spot. Ct. Radha Krishan took the rukka to the Police Station and got the FIR registered and came back at the spot with SI Abhishek Singh, who prepared the site plan at the instance of SI Abhishek Singh. He recorded disclosure statement of accused and arrested him after conducting his personal search. On 19.01.2012, sample of the recovered smack was sent to FSL Rohini for examination through Ct. Anand. Thereafter, charge sheet was filed for the offence punishable u/s 21 (b) NDPS Act.
2. FSL report dated 26.03.2012 was submitted in the Court lateron which confirmed that the Ex. S-I was found to SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 3 of 17 :: 4 ::
contain Diacetylmorphine, Phenobarbital , Paracetamol and Caffeine. The percentage of the Diacetylmorphine & Phenobarbital was found to be 1.7% and 5.9% respectively.
3. Accused was charge sheeted for the offence punishable u/s 21 (b) NDPS Act to which he pleaded not guilty and claimed trial.
Prosecution Evidence
4. To prove its case, prosecution examined nine witnesses.
4.1 HC Mohd. Tahir (PW-1) was posted as duty officer on the relevant day, that is, 16.12.2011 from 04:00 pm to 12:00 mid night at PS H. N. Din. He deposed that Ct. Radha Krishanan came alongwith rukka at his office at about 09:05 PM and on the basis of which he got the FIR recorded vide Ex. PW1/A. He deposed that after registration of the case, further investigation was marked to SI Ajeet Singh. 4.2 HC Radhakrishnan (PW-2) is the recovery witness. He has deposed about chance recovery of smack from the possession of the accused when he was apprehended on the basis of suspicion. He had taken the rukka for registration of FIR. He was also handed over the seal, after it was used by SI Abhishek.
4.3 Inspector Baney Singh (PW3) was the SHO of PS H. N. Din on 16.12.2011. He deposed that on receipt of SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 4 of 17 :: 5 ::
information he had reached at T point under Barapula elevated road where he met Ct. Radhakrishnan and SI Abhishek and produced the accused Mohd. Nizam @ Sandeep and stated that smack had been recovered from his possession. He further deposed that SI Abhishek had handed over two sealed pullandas of the sample and case property and one FSL form on which he had put his seal of 'BS'. He deposed that he came to the Police Station and inquired about the FIR number from the duty officer and put the same on the pullandas. PW3 called the MHC (M) in his office and handed over both the pullandas and FSL form, for which a corresponding entry was made in register no. 19. He also wrote DD no. 23A in this regard in the DD register vide Ex. PW3/A. 4.4 HC Wilson John (PW4), who was the Reader to the ACP office, New Friends Colony on 17.11.2011, deposed that one information u/s 57 NDPS Act (Ex. PW4/A) sent by SHO Nizamuddin was received in the office of Sh. Data Ram, the then ACP.
4.5 SI Abhishek Singh (PW-5) is the complainant.
He apprehended the accused on the basis of suspicion and had affected the recovery of contraband substance. 4.6 Ct. Anand Kumar (PW-6). He had taken the sealed parcel from MHC (M) on 19.01.2012 vide RC no. 19/21/12 and deposited the same with FSL Rohini vide receipt Ex. PW6/A. He deposed that during his possession, the pullandas remained intact and safe.
SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 5 of 17
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4.7 SI Ajeet Kumar (PW-7) was assigned the investigation of the case after registration of the FIR. He proved site plan Ex. PW7/A prepared by him at the instance of SI Abhishek. He proved the seizure memo Ex. PW2/B, personal search memo Ex. PW2/D and disclosure statement Ex. PW2/D of accused. PW-7 deposed that he had produced the accused before the Court on 17.12.2011 and one day's police custody remand was obtained. During the police custody, they had conducted a raid at Sadar Bazar to arrest the source from where the accused procured the smack, but nothing could be found. PW-7 deposed that on 19.01.2012, he had sent Ct.
Anand with sample parcel to FSL Rohini. After completion of investigation, he filed the charge sheet. 4.8 Sh. Data Ram (PW-8), ACP, New Friends Colony. He deposed about the information u/s 57 NDPS Act Ex. PW4/A. He identified his signatures on the same. 4.9 HC Ram Chander (PW-9), who was MHC (M), deposed that on 16.12.2011 Inspector Baney Singh had handed over two sealed parcels, FSL form depositing the same in the malkhana. He deposed that both parcels were having the seal of 'AS' and 'BS' intact. PW-9 produced the copy of malkhana register no. 19 as Ex. PW9/A. He further deposed that on 19.01.2012 , he handed over one sealed sample parcel alongwith FSL form to Ct. Anand on the instructions of IO. Statement of accused
5. The accused was explained all the incriminating evidence, in the statements of prosecution witnesses, when SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 6 of 17 :: 7 ::
examined under Section 313 Cr.PC. He denied the evidence against him as false and stated that he runs an eatery shop in the name of Lajawab Parantha Shop at Baoli Gate, Nizamuddin and one of his employee namely Puttan and one of his friend namely Hanif were kept in the lock up of PS H. N. Din in connection with some quarrel. He went to PS H. N. Din to help them out but he was illegally detained and falsely implicated in this drug case. He stated that no drug was recovered from his possession and it was planed upon him.
6. He preferred to lead Defence Evidence however, did not avail the opportunity to examine the witness in his defence.
7. I have heard Sh. F.M. Ansari, learned Addl. PP for State and Sh. S. K. Saxena , Amicus Curiae for accused and have gone through the record carefully. Apprehension of accused is doubtful
8. As per the case of prosecution, the accused was apprehended on the basis of suspicion by SI Abhishek Singh (PW-5). He conducted his search. Accused was found carrying one plastic pouch containing some white powdery substance which lateron on testing turned out to be "smack". Accused SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 7 of 17 :: 8 ::
has been apprehended in a public place where as per the statement of HC Radhakrishnan (PW-2) shops and markets were available nearby but admittedly, there is no independent public witness to the recovery or the subsequent proceedings. Entire case of the prosecution rests on the statement of official witnesses HC Radhakrishnan (PW-2) and SI Abhishek Singh (PW-5). There is no law which insist upon the joining of a public witness mandatorily at the time of recovery or subsequent proceedings. It is only a rule of caution, that to lend authenticity to the search, recovery and subsequent proceedings, Court insist upon joining of a public witness. Any effort by the IO to join the public witness has to be sincere and not a mere formality. In the absence of a public witness, the testimony of official witnesses cannot be brushed-aside or given any less evidentiary value but of course statement of official witnesses need to be appreciated with caution . It has been held in "Rajesh Kumar @ Sanjay vs State of NCT of Delhi", Crl. Appeal no. 263/2011 that;
"True, it is no rule of law that public witnesses should be joined in every eventuality and no SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 8 of 17 :: 9 ::
conviction can be based upon the testimonies of the police officials. Sometimes it becomes highly difficulty for the police officials to associate independent publi witness for various reasons. At the same time, it is undoubtedly true that joining of independent public witness is not a mere formality. Simply saying by the police witnesses that the independent public witnesses were ot available without any evidence to that effect would not be suffice. The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits. In the instant case, despite availability of independent public witnesses, no genuine and sincere efforts were made by the Investigating SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 9 of 17 :: 10 ::
Officer to associate them. The explanation given by the Investigating Officer does not inspire confidence. The testimony of the police officials requires to be perused with great care and caution."
9. Now, coming to the facts of the case and evidence in support thereof, first of all it is to be noted that accused has been apprehended on the basis of a suspicion by SI Abhishek Singh (PW-5) , who was on patrolling duty on 16.12.2011 with HC Radhakrishnan (PW-2) at about 07:30pm under Barapulla Flyover, Nizamuddin. They were on routine checking and stopped the accused on the basis of suspicion. It has come in the statement of witnesses that it was the public place and many persons were coming and going . What was noticed by SI Abhishek Singh (PW-5) in the conduct of accused, which raised suspicion in his mind? Neither SI Abhishek Singh (PW-5) nor HC Radhakrishnan (PW-2) has given reason to have suspicion on the accused. SI Abhishek Singh (PW-5) deposed that he stopped the accused on the basis of suspicion, who became a little bit nervous and thereafter, he made a cursory SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 10 of 17 :: 11 ::
search and found a white polythene in the right side outer pocket of his wearing jacket. It was found to be containing some substance which appeared to be "smack". Here, SI Abhishek Singh (PW-5) does not speak about the accused running away from the spot or being chased. But, HC Radhakrishnan (PW-2) has been very specific. He has deposed that at about 07:30pm, they had called the accused for inquiry who was going on the road but the accused did not stop and try to run away. They chased and apprehended him. Both the witnesses i.e. SI Abhishek Singh (PW-5) and HC Radhakrishnan (PW-2), who as per prosecution case apprehended the accused have given different version of the manner in which the accused was apprehended.
Weighing of smack is doubtful
10. HC Radhakrishnan (PW-2), who has been associated with the search and recovery and subsequent proceedings conducted in this case, has stated that the substance recovered from the possession of the accused was weighed and the total weight of the "smack" was 5.8 grams with plastic pouch. Two grams of "smack" was taken out as a sample. When HC Radhakrishnan (PW-2) asked how this 8.5 SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 11 of 17 :: 12 ::
grams "smack" was weighed, he stated that the weighing scale used by IO was a traditional scale/tarazoo with two sides and not an electronic one. SI Abhishek Singh (PW-5), who had weighed the substance, however stated that he had weighed the substance with an electronic scale which he was carrying with him. This discrepancy in the statement of SI Abhishek Singh (PW-5) and HC Radhakrishnan (PW-2), who were the only witness to the recovery is crucial in the sense that if a traditional weighing scale has been used then it is difficult to weigh with precision, 8.5 grams of white powder and specially to weigh 2 grams of white powder, which was taken out as a sample. The discrepancy, therefore, is considered vital in the given circumstances.
Discrepancies regarding deposit of case property
11. HC Radhakrishnan (PW-2) had further deposed that SHO had come to the spot after about half an hour of apprehension of the accused. He deposed that SHO had affixed his seal on the sealed pullandas but he had not taken anything from the spot. The case property remained with the IO and when SI Ajit Kumar (PW-7) came to the spot, it was handed over by SI Abhishek Singh (PW-5) to SI Ajit Kumar SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 12 of 17 :: 13 ::
(PW-7). SI Abhishek Singh (PW-5) had perhaps deposited the FSL form, case property in the Police Station. This statement is contrary to what SI Abhishek Singh (PW-5) has stated as well as what Inspector Baney Singh (PW-3) has stated in the Court. SI Abhishek Singh (PW-5) has deposed that the case property and FSL Form was handed over to SHO alongwith two sealed parcels. Inspector Baney Singh (PW-3), who was SHO concerned also deposed that the sealed parcel was handed over to him and he came to the Police Station , asked the duty officer about the FIR number, thereafter, he put the FIR number on the pullandas and deposited them with MHC(M). This contradiction in the statement of HC Radhakrishanan (PW-2) viz-a-viz SI Abhishek Singh (PW-5) and Inspector Baney Singh (PW-3) makes the presence of HC Radhakrishanan (PW-2) at the spot doubtful and consequently, the recovery from the possession of the accused of a contraband substance.
12. Inspector Baney Singh (PW-3) has deposed that he had called MHC(M) in his room and handed over case property, FSL form and carbon copy thereof, who made entry SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 13 of 17 :: 14 ::
in register no. 19 regarding deposit of malkhana. The relevant entry made in the malkhana register has been proved by HC Ram Chander (PW-9) which are Ex. PW9/A. In the malkhana register no. 19, Ex. PW9/A, the name of the depositor is mentioned as SI Abhishek Singh and below that "Inspector/SHO" is also written. Thereafter, a gap has been left and then date 16.12.2011 is mentioned. The fact that Inspector Baney Singh (PW-3) signed this blank lateron became evident during the examination of HC Ram Chander (PW-9), when he was confronted with another copy of malkhana register which is Ex. PW9/DA, wherein the name of SI Abhishek Singh has been scored out and under "Inspector/SHO" there is signature by Inspector Baney Singh. The fact that in Ex. PW9/A, there was no signature of Inspector Baney Singh, which however appeared on Ex. PW9/DA, clearly shows that the case property was not deposited by Inspector Baney Singh in the malkhana . There is no clarifications from the side of prosecution when Inspector Baney Singh had signed at point A on register no. 19 Ex. PW9/DA. SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 14 of 17
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13. SI Abhishek Singh (PW-5) had prepared the FSL form. As per his statement, FSL form was taken by Inspector Baney Singh (PW-3) . It was deposed by Inspector Baney Singh (PW-3) that FSL form was deposited alongwith case property with the MHC (M). However, the malkhana register no. 19 (Ex. PW9/A), there is no reference that the FSL form was also deposited in the malkhana. Not only that there is no endorsement that alongwith sample of the case property, FSL form was also sent to FSL, Rohini through Ct. Anand Kumar (PW-6), who had stated that he received sealed parcel with the seal of 'AS' and 'BS' alongwith FSL form through RC no. 19/21/12 from the MHC (M). But there is no endorsement by MHC (M) in the register that FSL form either deposited with him or it was handed over to Ct. Anand Kumar (PW-6).
14. It is the settled position of law in as held in "Mousem Singh Roy vs State of West Bengal" (2003) 12 SCC 377 and "State of Punjab vs Baldev Singh" (1993) 3 SCC 877 that "severe the punishment , the stricter is the proof required to establish the guilt of an accused". In view of the discrepancies and contradictions noted in the statement of SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 15 of 17 :: 16 ::
prosecution witnesses above, I find it difficult to convince myself about the version of the prosecution case that the accused was apprehended on the basis of suspicion and he was found in possession of 8.5 grams "smack". Although, the accused has also taken a defence that he was falsely implicated in this case because two of his known persons namely, Hanif and Puttan. One of them was his employee and another was his friend were kept in the lock up , PS H. N. Din on account of some quarrel and he had gone to the Police Station to help them out . He was lateron implicated in this case and was not permitted to go back from the Police Station. Even if this defence of the accused is ignored, still the evidence is not sufficient and enough to prove beyond reasonable doubt that accused was carrying "smack" with him.
Conclusion In view of above discussion, I am of the considered view, prosecution has failed to prove its case against the accused Mohd. Nazim @ Sandeep beyond reasonable doubtful. Accordingly, accused Mohd. Nazim @ Sandeep is acquitted for the offence punishable u/s Section 21(b) of NDPS SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 16 of 17 :: 17 ::
Act.
Case property be confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of the appeal to be filed against this judgment, if any, or the orders of the Appellate Court, as the case may be.
File be consigned to record room.
(announced in the (Ajay Kumar Kuhar) open Court on Special Judge (NDPS Act) 27th July , 2015) South District: Saket SC No. 11A/12: FIR No. 361/11 State Vs. Mohd. Nazim @ Sandeep Page No. 17 of 17