Delhi District Court
State vs Sanjay @ Gandhi on 2 November, 2023
IN THE COURT OF SH. SUNIL KUMAR
SPECIAL JUDGE, NDPS (CENTRAL):
TIS HAZARI COURTS: DELHI
SESSIONS CASE No. 653/2018
CNR No. DLCT01-011296-2018
STATE Versus Sanjay @ Gandhi,
S/o Sh. Vinod Kumar,
R/o H. No. A-146, Gali No. 3,
IInd Pusta New Usman Pur,
Shastri Park, Delhi.
FIR No. 124/2018
U/S. 21 of NDPS Act, 1985
PS I.P. Estate
Date of Institution : 30.08.2018
Date of arguments : 30.10.2023
Date of Decision : 02.11.2023
Final Decision : Acquitted
JUDGMENT
A. BRIEF CONSPECTUS
1. Accused Sanjay @ Gandhi has been sent up to face trial for offence under Section 21/61/85 of NDPS Act, 1985. The brief conspectus of the case is that on 02.06.2018 at about 06:00 AM, SI Rameshwar Singh received a secret information from informer that a person in the name of Sanjay @ Gandhi, being involved in the profession of supply of smack, would arrive at Jhuggis near LNJP Hospital to deliver the smack, at around 08:00 AM and if the raid is conducted, he may be apprehended. After satisfying with the said information, he produced the secret Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR FIR No. 124/2018 Pages 1 /23 KUMAR Date:
2023.11.02 16:09:29 +0530 informer before Insp. Rakesh Kumar Sharma in his office. After verifying the said information and consultation with senior officials, PW-12 was directed to take action immediately vide DD No. 4 and form raiding party and the same comprises of SI Rameshwar Singh, SI Mazid Khan, HC Santosh, HC Sunil Kumar and Ct. Jamil Ahmad and they were briefed regarding the secret information.Thereafter, SI Rameshwar Singh lodged DD No. 5
regarding departure in civil clothes through private vehicle and reached the jhuggi area near LNJP Hospital and requested the public persons to join the investigation, but none joined. Thereafter, the raiding team took their positions and at about 07:55 AM, the informer pointed out towards one man coming from the side of Pant Hospital and stopped near the jhuggi area of LNJP Hospital and on seeing him, secret informer pointed towards him and named accused as Sanjay @ Gandhi and he was apprehended and he was apprised with his legal rights and the reason of apprehension and further, accused was served with notice u/S 50 NPDS Act, however, he refused to be searched in presence of a Gazetted officer or Magistrate and his refusal was recorded. Thereafter, the accused was personally searched and a transparent polythene from the right pocket of jeans worn by the accused was taken out and the same was found containing badami rang ka powder and the same was checked and found as "smack" weighing 53 grams and thereafter, two small amounts of smack were taken from the transparent polythene packet and prepared as samples of 5 grams each and converted Digitally signed SC No. 653/2018 by SUNIL FIR No. 124/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR Pages 2 /23 KUMAR Date:
2023.11.02 16:09:48 +0530 into two pullandas i.e. S-1and S-2 and the rest of the contraband weighing 43 grams was kept in a polythene with the help of white cloth and the same was converted into a pullanda and marked as Mark A-1. All the pullandas were sealed with the seal of "RS" and all the pullandas were sent to FSL alongwith FSL form through HC Santosh and the present FIR under Section 21/61/85 NDPS was registered. Thereafter, as per the orders of the senior officials, investigation was assigned to SI Ravinder Kumar vide DD No. 17A, who after reaching the spot, prepared the site plan at the instance of SI Rameshwar Singh and interrogated the accused and thereafter, arrested and personally search him and also disclosure statement of accused was recorded and after completion of the investigation, charge-sheet under Section 21 NDPS Act, in the present case was filed against the accused by keeping him in Column No. 11 of the charge-sheet.
B. CHARGE FRAMED AGAINST ACCUSED
2. On 23.10.2018, charge for offence punishable under Section 21 NDPS Act, 1985, was framed against accused Sanjay @ Gandhi by the Ld. Predecessor of this Court, to which, he had pleaded not guilty and claimed trial.
Thereafter, case was fixed for prosecution evidence.
C. EVIDENCE LED BY THE PROSECUTION
3. In order to bring home the guilt of accused, prosecution has examined as many as 12 witnesses on record.
a. PW-1ASI Ramesh Chand is the Duty Officer, who Digitally signed SC No. 653/2018 by SUNIL FIR No. 124/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR Date:
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registered the present FIR Ex. PW-1/B on receipt of rukka Ex. PW-1/A and issued certificate u/S 65-B of Indian Evidence Act and handed over the further investigation of the present case to SI Ravinder through HC Santosh.
b. PW-2 HC Sunil Kumar and PW-3 HC Santosh are the members of raiding team alongwith PW-12 SI Rameshwar.
c. PW-4 HC Mohd. Javed deposited the FSL form alongwith case property to FSL Rohini and obtained acknowledgment Ex. PW-4/A in this regard. d. PW-5 Inspector Ravinder Malik, who affixed the seal of "RK" on the case property and FSL Form and lodged DD No. 19A dated 02.06.2018 Ex. PW- 5/1 and deposited the same in malkhana through MHC(M) vide malkhana register entry Ex. PW-5/2. e. PW-6 Sh. Rakesh Kumar Sharma, who initiated the legal action as per the secret information received after confirmation with his senior officials, PW-12 SI Rameshwar was directed to constitute a raiding team for arrest of accused and he proved the report u/S 57 NDPS Act regarding seizure of smack Ex. PW-6/1 and report u/s 42 NDPS Act Ex. PW- 6/2. He further proved the report u/S 57 NDPS Act Ex.PW-6/A prepared by SI Ravinder Kumar after arrest of accused.
f. PW-7 HC Satyaveer Yadav has proved the report u/S 57 NDPS Act regarding recovery of smack from accused and of his arrest, i.e. Ex. PW-6/A and also Digitally signed SC No. 653/2018 FIR No. 124/2018 by SUNIL State vs. Sanjay @ Gandhi SUNIL KUMAR Pages 4 /23 KUMAR Date:
2023.11.02 16:10:26 +0530 proved the entry of this report in reception register vide Ex. PW-7/1.
g. PW-8 ASI Ravinder Singh, MHC(M), who made entry in malkhana register no. 19 at Sl. No. 2179 regarding deposition of case property by SI Rameshwar. He further proved the RC No. 148/21/18 and report from FSL (Ex. PW-8/1) via which HC Javed deposited the samples to FSL. h. PW-9 HC Jitender, being the DD Writer at the office of Special Staff, Kamla Market, proved the DD No. 9 Ex. PW-9/1 and DD No. 2 dated 03.06.2018 Ex. PW-9/2.
i. PW-10 Ravinder Kumar, a member of the raiding team, the second IO of the present case, prepared site plan Ex. PW-10/1 and arrested the accused vide memo Ex. PW-10/2, personally searched the accused vide memo Ex. PW-10/3 and recorded disclosure and thereafter, sent the case property to FSL through HC Javed on 20.06.2018 and prepared report u/S 57 NDPS Act Ex. PW-6/A regarding arrest of accused and after completion of investigation, he filed the charge-sheet in the Court through SHO concerned.
j. PW-11 HC Atul, proved the DD No. 4/4 dated 02.06.2018 Ex. PW-11/A, being recorded by SI Rameshwar Singh in DD Register regarding receiving of secret information.
k. PW-12 Retd. SI Rameshwar, a member of raiding Digitally signed SC No. 653/2018 by SUNIL FIR No. 124/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR Pages 5 /23 KUMAR Date:
2023.11.02 16:10:37 +0530 team and being the first IO, he seized the case property from the accused and made three samples i.e. S1, S2 and Mark A1 respectively. He further proved the seizure of the above-mentioned parcels vide memo Ex. PW-2/A, rukka Ex. PW-12/A and got the present FIR registered through HC Santosh.
4. It is a matter of record that during the course of the proceedings, accused has admitted the genuineness of document i.e. FSL result dated 14.08.2018 vide Ex. PX-1 in his statement under Section 294 CrPC.
D. STATEMENT OF ACCUSED U/S 313 CR.PC
5. Thereafter, on 21.10.2023, statement of accused was recorded under Section 313 Cr.P.C. wherein he had denied all the incriminating evidence which has come on record against him and opted not to lead defence evidence in his favour.
E. FINAL ARGUMENTS
6. I have heard Ld. Chief PP for State as well as Ld. Counsel for accused. I have perused the record carefully.
7. It has been argued on behalf of the State that on the basis of secret information, contraband i.e. smack to the tune of 53 grams has been recovered from the accused and that accused was found in possession of contraband in intermediate quantity and in pursuance of the same, accused was apprehended/arrested by the police. The Ld. Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR FIR No. 124/2018 Pages 6 /23 KUMAR Date:
2023.11.02 16:10:57 +0530 CPP has averred that the police has conducted a thorough investigation and has complied with all the provisions of the NDPS Act and that as per the FSL Result, the contraband which was seized from the accused was smack and there were no discrepancies in the recovery of the contraband and that there is no rule of law or prudence which provides that the testimony of police officials cannot be relied upon. Further, it is submitted that the case has been proved beyond reasonable doubt and the accused must be held guilty for the alleged offence punishable u/S 21 NDPS Act.
8. Per Contra, the Ld. Defence Counsel has disputed the submissions of the prosecution by stating that police has tampered with the samples of the present case and there are discrepancies in the process of sampling and maintaining the records, and such material lapses on the part of the prosecution agency cast a shadow of doubt on the authenticity of the investigation and the benefit of doubt must be given to the accused. He has further averred that there has been a non-compliance of several mandatory provisions which forms a sturdy ground for acquittal of the accused and neither any public witness has been joined by the investigating agency nor any notice was served upon members of general public, who have refused to join the investigation and the prosecution case based solely upon the testimony of police officials cannot be believed sans any corroboration from any independent public witness and there are material contradictions in the testimonies of Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR FIR No. 124/2018 Pages 7 /23 KUMAR Date:
2023.11.02 16:11:07 +0530 the witnesses. On the basis of these arguments, the Ld. Counsel has prayed for the acquittal of the accused.
F. APPRECIATION OF EVIDENCE
9. In "Dalbir Singh and Ors. Vs. State of Punjab, AIR 1987 SC 1328", it was observed by Hon'ble Apex court that no hard and fast rule can be laid down about the appreciation of evidence and every case has to be judged on the basis of its own facts. While appreciating the evidence of the witness, the approach must be whether the evidence of a witness read as a whole appears to have ring of truth. Once that impression is formed, it is undoubtedly, necessary for the court to scrutinize the evidence more particularly, keeping in view the deficiency, drawbacks and the infirmities pointed out in the evidence as a whole, and evaluate them to find out whether it is against the general tenor of evidence given by the witness as to render it unworthy of belief.
10. In 'Bhagwan Tana Patil Vs. state of Maharashtra, AIR 1974 SC 21', the Hon'ble apex court ordained that the function of the court is to disengage the truth from the falsehood and to accept what it finds the truth and reject the rest. It is only where the truth and falsehood are inextricably mixed up, polluted beyond refinement down the core, the entire fabric of the narration given by a witness then the court might be justified in rejecting the same.Digitally signed
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11. This legal position was further elaborated in 'State of UP Vs. Shankar, AIR 1981 SC 897', wherein the Hon'ble Apex court observed that mere fact that the witness has not told the truth in regard to a peripheral matter would not justify whole sole rejection of his evidence. In this country, it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is only where the testimony is tainted to the core, the falsehood and the truth being inextricably intertwined, that the court should discard the evidence. Therefore, the duty is cast over this court to dispassionately disengage the truth from the falsehood and accept the truth and reject the same. This court is not meant to reject the testimony of a witness on slightest deflection, however has a bounden duty to search the truth.
12. Hon'ble Apex court in case titled "Gangadhar Behera & Ors. Vs. State of Orissa (2002) 8 SCC 381", held that the principle falsus in uno falsus in omnimus is not applicable in India and it is only a rule of caution. Even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove the guilt of the accused, the conviction can be maintained. It is the duty of the court to separate the grain from chaff.
13. Hon'ble Apex Court in State of UP Vs. M.K. Anthony 1985 (1) SCC 505 held that while appreciating the evidence of a witness, the approach must be whether the Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR FIR No. 124/2018 Pages 9 /23 KUMAR Date:
2023.11.02 16:11:26 +0530 evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
14. Further, Hon'ble Apex court in 'Smt. Shamim Vs. State, Crl. Appeal No. 56/2016 dated 19.09.2018', in para 12 observed:-
"while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed. It is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR FIR No. 124/2018 Pages 10 /23 KUMAR Date:
2023.11.02 16:11:35 +0530 be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof.......".
15. As far as the defective and illegal investigation is concerned, apex court held that if investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of faulty investigation otherwise criminal trial descend to the IO ruling the roost. Yet if the court is convinced that the evidence of eye witnesses is true, it is free to act upon such evidence though the role of the IO in the case is suspicious (Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into the hands of the IO whose investigation was defective by design (Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial (Paramjit Singh Vs. State of Punjab AIR 2008 SC 441). The lapses or the irregularities in the investigation could be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and evidence is of sterling quality. If the lapses or irregularities do not go the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored (Sunil Kundu & Anr. Vs. State of Jharkhand, 2013(4) SCC 422).
16.Evidently, the binding judicial pronouncements casts a Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR FIR No. 124/2018 Pages 11 /23 KUMAR Date:
2023.11.02 16:11:44 +0530 duty upon the Trial Court to cull out the nuggets of truth from the evidence available on record. To sum up, while appreciating evidence on record the duty of the court is to separate credible and incredible part of evidence.
17.Having noted the general principles of appreciation of evidence, let us now examine the material available on record to seek an answer to determine the issue of guilt of accused.
G. FINDINGS.
18. In the present case, the witnesses of raiding team i.e. PW-2 Sunil Kumar, PW-3 HC Santosh and PW-12 SI Rameshwar have categorically testified that on the fateful day, accused was found in possession of intermediate quantity of contraband i.e. smack and it has been deposed in the same line in their examination by stating that on 02.06.2018, a secret information was received by PW-12 through secret informer to the effect that accused Sanjay @ Gandhi, stated to be engaged in the supply of contraband (smack), would come to supply the same at Jhuggi area near LNJP Hospital at about 08:00 AM and accordingly, PW-12 informed the same to PW-6, who having satisfied himself about the authenticity of the information and after consultation with his senior officials, ordered PW-12 for formation of a raiding team to the immediate effect and legal action to be followed for apprehension of the accused. Thereafter, on the very same day, at around 06:10 AM, as per the instructions of senior Digitally signed SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL by SUNIL KUMAR FIR No. 124/2018 Pages 12 /23 KUMAR Date: 2023.11.02 16:11:54 +0530 officials, PW-12 briefed the secret information to PW-2 and PW-3 alongwith SI Majid Khan and Ct. Jamil and in connection of the same, the said officials left the Police Station with private vehicle alongwith field testing kit as well as electronic weighing machine. After reaching the spot, public persons were asked to join the investigation after disclosing the facts of secret information, but none joined and left the spot without disclosing their identities/names and when the secret informer pointed towards the accused Sanjay @ Gandhi, coming from the side of Pant Hospital, at about 07:55 AM, was apprehended and he disclosed his name as Sanjay @ Gandhi and thereafter, compliance of provisions of Section 50 NDPS Act was carried out before the commencement of the search of accused. Notice u/S 50 NDPS Act was served upon the accused by PW-12 and his refusal for search in the presence of any Gazetted Officer or Magistrate was taken on the same. Thereafter, the polythene carried by the accused was opened and the same was found containing a transparent polythene bag containing brown colour powder and the same was tested using the field testing kit and after testing the said recovered material/brownish powder, the same was found as "smack", weighing 53 grams. Thereafter, samples of 5 grams each were taken from the recovered contraband and the remaining contraband weighing 43 grams was kept in the same transparent polythene bag and converted into three pullandas i.e. "S1", "S2" and "Mark A1" respectively and all three pullandas were sealed with the seal of "RS" and seized vide memo Digitally signed SC No. 653/2018 by SUNIL FIR No. 124/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR Pages 13 /23 KUMAR Date:
2023.11.02 16:12:14 +0530 Ex. PW-2/A by PW-12. Thereafter, PW-12 prepared rukka Ex. PW-12/A and handed over the same to PW-3 HC Santosh, who handed over the same, at around 10:55 AM, to PW-1 ASI Ramesh Chand for registration of FIR, who made endorsement on rukka vide Ex. PW-1/A and the FIR Ex. PW-1/B was got registered u/S 21/61/85 NPDS Act and further investigation of the case was assigned to PW- 10 SI Ravinder vide DD No. 17A. In the meanwhile, PW-3 HC Santosh handed over the case property as well as FSL form to SHO i.e. PW-5, on the same day. PW-5 affixed the seal of "RK" on the said parcels i.e. S1, S2 and Mark A-1 alongwith FSL Form. PW-5 handed over the case property as well as FSL from to MHC(M) and got deposited in the malkhana and entry in this regard was made in register no. 19 vide Ex. PW-5/1 alongwith other entries Ex. PW-5/2 (colly). In connection of the same, PW-10 SI Ravinder reached the spot and prepared site plan Ex. PW-10/1 and found that PW-12 alongwith his staff has apprehended the accused Sanjay @ Gandhi and thereafter, on interrogation from the accused, PW-10 arrested the accused vide memo Ex. PW-10/2, personally searched him vide memo Ex. PW-
10/3 and recorded his disclosure statement vide memo Ex. PW-10/4. Thereafter, he recorded statement of PW-12 under Section 161 CrPC in this regard. Thereafter, PW-10 prepared report under Section 57 NDPS Act regarding arrest of accused vide Ex. PW-6/A and the same was sent to concerned ACP. Thereafter, PW-10 got the case property i.e. pullanda "S-1" & "S-2" deposited in the FSL on 20.06.2018 through PW-4 HC Mohd Javed vide RC No. Digitally signed SC No. 653/2018 by SUNIL FIR No. 124/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR Pages 14 /23 KUMAR Date:
2023.11.02 16:12:26 +0530 148/21/18 and the acknowledgment of acceptance of pullandas is Ex. PW-4/A. Thereafter, charge-sheet in the present case was filed by the PW-10.
19. The records of the present case reveals that the accused stands charged for the possession of an intermediate quantity of contraband i.e 53 grams of smack. The stringent provisions are provided under the law qua the punishment especially in the NDPS cases. The scheme of the NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguards ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, the balance must be struck between the need of the law and the enforcement of such law on one hand and the protection of the citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on the exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband.
In the present case, as per the story of prosecution, the accused Sanjay @ Gandhi was apprehended near the jhuggi, situated nearby LNJP Hospital and was found in possession of intermediate quantity of smack. Hence, it has to be proved that the accused was found in possession of the contraband i.e. smack for the purpose of supplying.
20. It is the contention of the Ld. LAC for the accused that despite the availability of public witnesses, neither any Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR FIR No. 124/2018 Pages 15 /23 KUMAR Date:
2023.11.02 16:12:38 +0530 public witnesses were joined the investigation nor any notice was served upon them for non−joining the investigation and the said loophole creates a dent in the story of the prosecution as all the witnesses are police witnesses and it is a clear cut case of false implication of the accused by the police officials.
21. Considering the contention raised by Ld. Defence Counsel, it is apt to stated here that non-joining of public witnesses itself cannot become a ground for acquittal, if the case of prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution cannot be held to be vulnerable for non−examination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution cannot be disbelieved. The preposition is not disputed but balance has to be maintained, if some doubt is created regarding the involvement of accused. Each case has its own facts and circumstances. Accordingly, it is trite that mere failure to associate public witnesses in search and seizure proceedings is not fatal to the case of the prosecution. However, in such a case, the burden lies heavily on the prosecution to prove two things. Firstly, that genuine and sincere efforts were made by the investigating officer to join independent persons in the proceedings and secondly, that the evidence of the official Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR Date:
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witnesses does not suffer from any infirmity.
22. In the present case, as per the story of prosecution, on 02.06.2018, a raiding party was constituted by PW-12 SI Rameshwar Singh constituting PW-2 HC Sunil Kumar, PW-3 HC Santosh, Ct. Zameel and SI Majid Khan and secret informer including himself and accused Sanjay @ Gandhi was apprehended with illegal contraband. Though, in the present case, it has been tried to be brought on record from the testimony of prosecution witnesses that sincere efforts were made to join the public witnesses but none of them inclined to join.
23. Admittedly, it was not a chance recovery and IO was having ample time to join the independent person in the proceedings. It is the case of the prosecution that public persons were requested to join the proceedings but they declined. It is pertinent to observe that the accused had been apprehended at Jhuggi near LNJP Hospital, Delhi. The raiding team had remained at the spot for a considerable period of time. It is quite a surprising fact that despite the availability of the public witnesses, the investigating agency could not associate even a single public witness at any stage of the investigation. It has been stated in a casual and routine manner that the public persons, who were asked to join the investigation, declined to do so and went away without disclosing their names and addresses. Sub−section (8) of Section 100 Cr.P.C clearly spells out that if a public witness refuses or neglects to Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR FIR No. 124/2018 Pages 17 /23 KUMAR Date:
2023.11.02 16:12:59 +0530 attend a search without reasonable cause in spite of an order in writing, he shall be deemed to have committed an offence under Section 187 IPC. There is nothing on record to indicate that the investigating officer had served or even attempted to serve any order in writing upon any public witness. So much so, neither the names nor the addresses of the persons who refused to join the proceedings have been given. All the above leads to the inevitable inference that the investigating agency was not interested to make any public witness to be a part of the raiding team and thus there has been a deliberate disregard of the statutory safeguards relating to search and seizure on its part which renders the recovery proceedings unworthy of credence. Hence, all these facts give some doubt in the prosecution story.
24. Further, it is deposed by PW-2, PW-3 and PW-12 that the raiding team was consisted of PW-12, PW-2, PW-3, Ct. Zameel and SI Majid Khan and secret informer, however, out of the said members, SI Majid Khan and Ct. Jamil, have not been cited as a witness in the present case by the prosecution and their role has not been specified by any of the raiding members of the team as well as the witnesses examined before the Court and the said aspect raises a shadow of doubt upon prosecution version regarding the very constitution of raiding team and who played their segregate roles.
25. Apart from the above, the testimonies of the members of Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR FIR No. 124/2018 Pages 18 /23 KUMAR Date:
2023.11.02 16:13:09 +0530 the raiding team suffer from contradictions and it is evident therefrom that the witnesses have remained evasive on material aspects.
26. Further, there are contradictions with regard to the mode of transport used by the witnesses when they left the spot. As far as the examination of PW-2 HC Sunil Kumar is concerned, he deposed that at about 06:10 AM, the members of the raiding team left the office of special staff by personal vehicle and PW-3 HC Santosh, has also deposed in his examination-in-chief that he alongwith the members of raiding team left the office by using a private vehicle i.e. a motorcycle. Further, perusal of record shows that DD No. 5 was lodged regarding departure in private vehicle, surprisingly, the nature of vehicle used is not mentioned in the said DD entry. It is observed herein that the police officials could have used the government vehicle available in the concerned PS and accordingly, there should have been no difficulty at all in producing such evidence if indeed the raiding team left the spot in a government vehicle.
27. Further, it is a settled law that to safeguard the possible tampering, the samples should be sent to the laboratory at the earliest, preferably within 72 hours, and in case of delay, the onus is on the prosecution to show that there was no tampering with the case property and samples. In the event of doubt, benefit has to be given to the accused, however, if the prosecution satisfies that there was no Digitally signed SC No. 653/2018 by SUNIL FIR No. 124/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR Date:
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tampering, the delay is to be ignored.
28. Further, as per the FSL result dated 14.08.2018 Ex. PX-1, which reads as under:-
"On chemical, TLC, GC & GC-MS examinations
(i) Exhibits 'S-1' & 'S-2' were found to contain 'Diacetylmorphoine', '6-Monoacetylmorphine', 'Phenobarbital', 'Acetylcodeine' and 'Acetaminophen'.
(ii) Exhibits 'S-1' & 'S-2' were found to contain 'Diacetylmorphoine'2.7% and 3.2% respectively.
(iii) Exhibits 'S-1' & 'S-2' were found to contain 'Phenobarbital' 0.5% & 0.6% respectively."
29. In connection of the above, the perusal of record shows that the contraband was recovered and seized from accused during the raid conducted by raiding team on 02.06.2018 but samples of smack were sent to FSL on 20.06.2018 through PW-4 HC Mohd Javed and there is unexplained delay in sending the samples to FSL as same were required to be sent to FSL preferably within 72 hours of its seizure. Thus, when there is a delay in sending the samples, it casts doubt whether it is the same case property which was recovered from the accused and sent to FSL or it was case property of some other case.
30. To this effect, reliance is placed upon judgment titled as Ramesh & Anr. Vs. State of Haryana 1998 (1) C. C. Cases 17 (HC), passed by Hon'ble High Court of Punjab and Haryana at Chandigarh, wherein it was held as under:
"15. There is another important factor which is taken for consideration is that the alleged sample was taken on 26.07.1992 and it was sent to the Chemical Examiner on 12.08.1992. There is no explanation furnished by the prosecution for the delay in sending the sample to the FSL so late. This lapse of the prosecution that the delayed sending of samples to FSL has not been taken happily by the courts. In Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR FIR No. 124/2018 Pages 20 /23 KUMAR Date:
2023.11.02 16:13:27 +0530 Narain Vs. State of Haryana 1997 (1) RCR 414 even the delay of 10 days for sending the samples of the contraband to the FSL was taken to be such a delay which caused a dent in the prosecution story".
31. In the instant case, it is to be noted that PW-12 as well as PW-2, members of raiding team have deposed during their examination in chief on 02.06.2018, they apprehended the accused Sanjay @ Gandhi on receiving of secret information that he is carrying smack to deliver someone nearby LNJP Hospital and consequently, as per the case of prosecution, the accused was found in possession of 53 grams of contraband (smack) i.e. intermediate quantity and thereafter, samples of 5 grams each were drawn from the recovered contraband. However, it is surprising here that both the witnesses in their cross-examination on behalf of State have testified that "it is also correct that the contraband recovered from the accused was not produced before any Magistrate for taking the sample." which reflects that the sampling from the recovered contraband was done by the police officials on their own.
Further, the process of weighing the recovered contraband and the process of sampling, when viewed in isolation may seem insignificant, but when viewed in totality of facts and circumstances casts a shadow of doubt upon prosecution version as no witness has deposed in their testimonies that who issued the weighing machine to whom and no DD entry in this regard has ever made on record and no photographs were placed on record by the police officials as to what quantity they have recovered from the possession of the accused and what quantity of Digitally signed by SUNIL SC No. 653/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR Date:
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contraband was converted into samples, as all the version has been concluded without any evidence, therefore, non- compliance of Section 52 A of NDPS Act by the police officials have created a grave suspicion regarding the truthfulness of the case of the prosecution.
32. In ordinary circumstances, the above said anomalies when viewed in isolation, would appear to be innocuous, insignificant or inconsequential. However, when viewed as a whole, it raises a question mark upon the credibility of the prosecution witnesses. The doubt becomes even more graver when considered in light of the fact that despite availability, no public witness has been joined in the case at hand. It is a settled proposition of law that a case resting solely and exclusively upon testimony of police witnesses needs a strict judicial scrutiny. Further, harsher the punishment stricter should be judicial scrutiny. Reliance is placed upon the judgment of the Hon'ble Apex Court in the matter of Krishan Chand Vs State of HP: (2018) 1 SCC
222.
33. In my considered opinion, in view of the abovesaid contradictions appearing in the testimony of prosecution witnesses, a reasonable shadow of doubt is cast upon the prosecution version and reliance is placed on Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, wherein it has been observed herein as under:-
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to Digitally signed SC No. 653/2018 by SUNIL FIR No. 124/2018 State vs. Sanjay @ Gandhi SUNIL KUMAR Date:Pages 22 /23
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travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence before an accused can be convicted."
34. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution version appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
H. CONCLUSION:-
35. Considering the totality of facts and circumstances and discussion made herein above, I am of the considered view that the prosecution has failed to prove its case against the accused beyond a shadow of doubt and the accused deserves the benefit of doubt. Accordingly, accused Sanjay @ Gandhi is hereby acquitted for offence punishable U/s 21 NDPS Act.
36.Ordered accordingly.
37. File be consigned to Record Room after due compliance.
Digitally signed by Announced in Open Court SUNIL SUNIL KUMAR Date:
on 2nd November, 2023 KUMAR 2023.11.02 16:14:08 +0530 (SUNIL KUMAR) Spl. Judge, NDPS, Central, Tis Hazari Courts: Delhi SC No. 653/2018 FIR No. 124/2018 State vs. Sanjay @ Gandhi Pages 23 /23