Delhi District Court
State vs . 1. Noor Alam Khan on 25 October, 2017
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE
(NDPS), NORTH DISTRICT, ROHINI COURTS, DELHI.
SC No. 57463/16
FIR No.251/11
U/s. 21, 29/61/85 NDPS Act
P.S. Crime Branch
State Vs. 1. Noor Alam Khan
S/o Sh. Nathu Khan
R/o H.No.116, Village Dhantiya,
P S Fatehganj, Paschimi,
District Bareilly, U.P.
2. Kusum
W/o Sh. Manoj Kumar
R/o E4/13, Sultan Puri,
Delhi.
Date of institution : 30.01.2012
Date of arguments : 27.09.2017
Date of judgment : 25.10.2017
JUDGMENT :
1.Accused Noor Alam Khan (hereinafter referred to as 'A1') and accused Kusum (hereinafter referred to as 'A2') were arrested by the Police of Police Station Crime Branch, Delhi and were challaned to the court for trial for commission of the offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act').
2. The case of the prosecution, in brief, is that on 28.09.2011 at about 1.00 p.m a secret information was received by PW16 (IO) SI Shreeniwasan that one Noor Alam (A1), resident of State vs. Noor Alam Khan and another Page 1 of 20 (FIR No.251/11 PS Crime Branch) Bareily, U.P, aged about 2425 years would supply huge quantity of contraband to Kusum (A2), resident of Sultan Puri, Delhi, at her residence i.e. C6/96, Janata Flats, Sector5, Rohini, Delhi between 4 p.m to 9 p.m on 28.09.2011. A raiding party was constituted. The raiding party left the office of Crime Branch at about 1.45 p.m and reached the spot near Rithala Metro Station at about 2.50 p.m in two private vehicles. The vehicles were parked 100 to 150 meters ahead of the spot. The raiding party requested 45 passersby to join the investigation but none agreed and left the spot without disclosing their names and addresses. Thereafter, the raiding party took position around the spot. At about 6.50 p.m A1 was seen coming from Rithala Metro Station in a cycle rikshaw. A1 got down from the cycle rikshaw at the corner of C6/96, Sector5, Rohini, Delhi. He was stopped and after satisfying that the accused to be involved in the offence, he was made aware about his rights and a notice u/s 50 NDPS Act was served upon him. Accused was also offered that he could search the raiding party but he refused. Thereupon, the bag carried by accused on his shoulder was searched and heroin was found. The police party reached the house No.C6/96, Sector5, Rohini, Delhi and found the door of the house locked from inside. One woman whom A1 identified to be A2 immediately moved inside the flat on seeing A1. After 15 to 20 minutes another woman namely Santosh opened the door of the flat. However, in the meanwhile, it was found that A2 had already run away from the backdoor of the flat. Thereafter, the raiding party returned to the place from where A1 was apprehended. A1 was State vs. Noor Alam Khan and another Page 2 of 20 (FIR No.251/11 PS Crime Branch) having three packets containing heroin which weighed 850 grams, 1100 grams and 1150 grams. Thereafter, the proceedings were conducted and rukka was sent for registration of FIR.
3. It is further the case of the prosecution that ASI Mohan Lal joined as subsequent IO around 10.45 p.m. A1 was arrested and his disclosure statement was recorded. At the pointing out of the A1, house of A2 at E4/13, Sultan Puri, Delhi was raided but the same was found locked. Thereafter, the raiding party returned to the office. It is further the case of the prosecution that on 30.09.2011 A1 made supplementary disclosure statement to the effect that he had earlier made delivery of one kilogram heroin to A2 at her another flat no.148, Pocket 3, Sector2, Rohini, Delhi. The said house of A2 was raided and 89 polythene packets of 35 grams each containing smack, amount of Rs.2,97,900/ in cash and certain property documents were recovered. On 01.10.2011 A1 led the police party to Bareily and pointed out the house which belonged to one Abid from where he had purchased the contraband. However, said Abid could not be apprehended.
4. The statements of the witnesses were recorded. After completing investigation and conducting other necessary formalities, chargesheet was filed in the court.
5. The copies of the documents to the accused u/s 207 Cr.PC were supplied.
6. Separate charges u/ss. 21 and 29 of NDPS Act against A1 and A2 were framed to which they pleaded not guilty and claimed State vs. Noor Alam Khan and another Page 3 of 20 (FIR No.251/11 PS Crime Branch) trial. They were accordingly put to trial.
7. Trial proceeded and in the course of trial, prosecution in order to substantiate its case against the accused, examined twenty two witnesses in all. PW1 is HC Raj Kumar who has proved the FIR as Ex.PW1/A. PW2 Inspector P C Khanduri on receiving the information about drug trafficking passed on the same to Additional DCP Ravi Shankar. PW3 HC Dharamveer Singh deposited the pullandas at FSL, Rohini, Delhi. PW4 ASI Suresh Chand is a member of raiding party. PW5 Inspector C R Meena has proved the DD No.17 as Ex.PW5/A. PW6 HC Jag Narayan is a formal witness. PW7 HC Susheel Kumar joined the investigation with IO. PW8 is ASI Harcharan in whose presence A2 was arrested. PW9 HC Rajender Kumar is a formal witness. PW10 SI Mohan Lal is the second IO who conducted investigation and filed chargesheet in the court. PW11 Satish Chand is a formal witness. PW12 Chander Shekhar has proved the call detail record (in short 'CDR') qua mobile phone no.xxxxx27315 (number withheld). PW13 Pawan Singh has proved the CDR qua mobile nos. xxxxx85622 and xxxxx47380 (numbers withheld). PW14 Mr. Ravi is a formal witness. PW15 Israr Babu and PW17 Mahender Bisht have proved the CDR of mobile phone no. xxxxx67179 (number withheld). PW16 SI R Shreeniwasan and PW18 W Ct. Krishna are members of raiding party. PW19 M I Meena has proved the FSL report as Ex.PW19/A. PW20 Sushil Kumar is an independent witness who has not supported the prosecution case. PW21 is Ravi Shankar, Addl. DCP who was State vs. Noor Alam Khan and another Page 4 of 20 (FIR No.251/11 PS Crime Branch) informed about the drug racket by Inspector P C Khanduri. PW22 Ashish Kumar is a formal witness.
8. Statements of accused were recorded under Section 313 Cr.P.C when a chance was given to explain the incriminating evidence against them. Accused pleaded that they have been falsely implicated in this case by the police. A2 has led defence evidence. She has examined Deepa as DW1, Rajeev as DW2, Israr Babu as DW3, Vinod Kumar as DW4 and Shishir Malhotra as DW5, Vishal Gaurav as DW6 and Pawan as DW7. DW1 Deepa is the daughter of A2; DW2 Rajeev Ranjan has proved the CDRs and Cell ID Chart of PW 16 (IO) as Ex.DW2/B and Ex.DW2/C respectively. DW3 Israr Babu has proved the CDRs and Cell ID Chart of HC Bharat Singh as Ex.DW3/B and Ex.DW3/C respectively. DW4 Vinod Kumar and DW5 Shishir Malhotra, DW6 Vishal Gaurav and DW7 Pawan Singh have proved the CDRs and Cell ID Charts of various mobile numbers.
9. I have heard Sh. J S Malik, Ld. APP for the State; Ld. Counsel for the A1 and Ld. Counsel for A2. I have also perused the material on record.
10. Ld. Counsel for A1 has contended that no serious efforts were made by the IO to join independent witnesses during the investigation. The rikshaw puller in whose rikshaw A1 allegedly reached the spot was not made a witness. Secondly, it is contended that no medical examination of the A1 was got conducted after his arrest. Thirdly, the second disclosure statement of A1 is unnatural and State vs. Noor Alam Khan and another Page 5 of 20 (FIR No.251/11 PS Crime Branch) not trustworthy. Fourthly, it is contended that no genuine investigation was carried out by the prosecution to find out the source of contraband. Lastly, it is contended that Santosh was neither made a witness nor an accused to prove the case of the prosecution. According to him, A1 is liable to be acquitted in this case.
11. Ld. Counsel for A2 has supported the contentions of the counsel for A1. He has further added that public witness Susheel Kumar has not supported the prosecution case. According to him, prosecution has miserably failed to prove its case and, therefore, A2 is liable to be acquitted in the present case. In support of his contentions, Ld. Counsel has relied upon judgments - Megha Singh vs. State, AIR 1995 SC 2339; Ram Prakash vs. State, 2014 (146) DRJ 629, Mohd. Mas oo m vs. State , 219 (2015) DLT 271 and Kishan Singh vs. State, 1995 Crl. LJ 3947.
12. On the other hand, Ld. APP for State has contended that there is not an iota of doubt in coming to the conclusion that the accused have committed the offence, and, hence, they are liable to be convicted in this case.
13. The material witnesses in this case are PW2, PW4 , PW7, PW10, PW16, PW18 and PW20.
14. PW2 Inspector P C Khanduri has deposed that on 29.9.2011 at about 1 p.m he was informed by SI R Shreeniwasan about the secret information regarding drugs trafficking which was recorded vide DD No.17 by SI R Shreeniwasan. The said DD Ex.PW5/A was forwarded by him to Addl. ACP. SI Shreeniwasan was State vs. Noor Alam Khan and another Page 6 of 20 (FIR No.251/11 PS Crime Branch) instructed to constitute a raiding party including himself, ASI Suresh Chand, HC Bharat Singh, HC Amit, HC Satender, HC Dharaver and lady Ct. Krishna. At about 1.45 p.m the raiding party left the office of Anti Extortion Cell, Crime Branch, R K Puram, New Delhi in two private vehicles. The raiding party reached the spot i.e. C6, Sector5, Rohini, Delhi at about 2.45 p.m via Ring Road, Punjabi Bagh, Rani Bagh, Rithala Metro Station. They parked their vehicles at a distance of 100/150 meters ahead from the spot. 45 passersby were asked to join the raiding party but none agreed. They left the spot without disclosing their names and addresses. At about 6.50 p.m A1 was seen coming from Rithala Metro Station on cycle rikshaw. After he got down from the rikshaw he was stopped and enquiries were made. A1 was told about the secret information and was also served with a notice u/s 50 of the NDPS Act. Accused refused the offer. PW2 has proved the original notice us/ 50 NDPS Act as Ex.PW2/A and reply of A1 as Ex.PW2/B. Accused was carrying a pithoo type black colour rexine bag on his shoulder. The said bag was checked and it was found containing one pant, one shirt and three polythene packets. The polythene packets were tested with the field testing kit and it gave the positive result of heroin. The said heroin was to be delivered to A2 at flat no.C6/96, Sector5, Rohini, Delhi. Immediately, PW2 SI Shreeniwasan, lady Ct. Krishna and HC Bharat Singh reached the said flat. On seeing A1, A2 who was inside the flat immediately moved inside the flat. After about 1520 minutes another lady namely Santosh opened the door of the flat and when enquiries were made from him, State vs. Noor Alam Khan and another Page 7 of 20 (FIR No.251/11 PS Crime Branch) she could not give any satisfactory reply. The said flat was on the second floor. All the three polythene packets recovered from A1 were weighed and they were found containing 850 grams, 1100 grams and 1150 grams heroin. Two samples of 10 gram each from all the three packets were kept in two separate polythene pouches. FSL form was filled in at the spot. He has proved the seizure memo as Ex.PW2/C. Rukka was sent for registration of the FIR and in the rukka itself directions were sent for ASI Mohan Lal to join as a subsequent IO for further investigation of the case. He has further deposed that ASI Mohan Lal reached the spot at about 10.45 p.m. SI R Shreeniwasan handed over all the documents to him and also produced A1 before him. Site plan was prepared by ASI Mohan Lal and A1 was arrested vide memo Ex.PW2/D. A1 was personally searched and his disclosure statement was recorded vide memos Ex.PW2/E and Ex.PW2/F respectively. In pursuance of the disclosure statement of A1, they reached house of A2 ie house no.E4/13, Sultan Puri, Delhi. However, the said flat was found locked. He has further deposed that on 30.9.2011 A1 made another disclosure statementEx.PW2/E whereupon raiding party consisting of himself, SI R Shreeniwasan, ASI Mohan Lal, lady Ct. Sunita and HC Bharat Singh was constituted. They reached at flat no.148, Pocket 3, Sector 2, Rohini, Delhi at about 1.45 p.m but the same was found locked. A key maker was called at the spot and the said flat was opened with his help. The house was searched and 89 polythene bags containing smack of 35 grams each were recovered. Indian currency worth Rs.2,97,300/ was also State vs. Noor Alam Khan and another Page 8 of 20 (FIR No.251/11 PS Crime Branch) recovered besides certain documents of the properties. He has further deposed that two samples of 5 grams each from packets was taken out. He has proved the case property regarding heroin and smack as Ex.P35; currency notes as Ex.P36, blue polythene and thaila as Ex.P37 collectively; key as Ex.P38; notice u/s 50 NDPA Act as Ex.P39 and articles recovered from A1 as Ex.P40 and Ex.P41.
15. During his crossexamination on behalf of A1, PW2 has deposed that all the members of the raiding party had gone to Sultan Puri to search the house of A2 but they did not try to break open the lock. He has admitted that no independent witness was joined at that time. He has admitted that he did not intimate the local police separately before opening flat no.148, Rohini, Delhi. He has further admitted that no information was given to local police separately even after raiding flat no.148, Rohini, Delhi. He has denied the suggestion that local police was not informed as he wanted to falsely implicate A2. He has deposed that none of the police officials was knowing previously the said address i.e. flat no.148, Rohini, Delhi and it was A1 who led them there. He has denied the suggestion that no contraband was recovered from the house of A2. He has admitted that HC Bharat Singh was knowing A2 prior to the raid. As per PW2, one Alto car was brought by HC Bharat Singh and other Honda City car belonged to one of his acquaintance and in those vehicles they left for the raid. He has denied that they intentionally did not take official vehicle. He has admitted that there were several offices in the area of R K Puram where their office is situate. He has admitted that they did State vs. Noor Alam Khan and another Page 9 of 20 (FIR No.251/11 PS Crime Branch) not join any official from those offices in the investigation. He has admitted that they reached the spot at about 2.15 p.m and the A1 was first spotted at about 6.45 p.m and during this period, they did not ask any person if he was A1 or not. He has admitted that local police was not informed about the raid. He has admitted that after the A1 was apprehended, public had gathered there. He has admitted that before apprehension of accused, no Gazetted Officer or Magistrate was requested to join the said proceedings.
16. During his crossexamination conducted on behalf of A2, he has admitted that there is no DD entry on the file for the raid on 30.09.2011. He has further admitted that on 30.09.2011 while raiding the house of A2, he had not taken the field testing kit as he was unable to find the same in office. He has denied the suggestions that they had acted unofficially as no DD is on record or that the field testing kit was available in his office on 30.09.2011. He has further denied the suggestion that DD no.17 is an antedated document prepared by him in connivance and collusion with police officers. He has admitted that in Janata Flats, there is only one entry and exit point. He has further deposed that before apprehending A1, they had not stopped anybody for questioning. He has admitted that a lady namely Santosh had opened the door of the flat no.C6/96, Rohini, Delhi but no notice u/s 160 Cr.PC was served upon her. It was also admitted by PW2 that no action was taken against Santosh under IPC.
17. PW7 HC Sushil Kumar was posted at PS South Rohini as Beat Constable of Sector2, Rohini. He met P C Khandoori and his State vs. Noor Alam Khan and another Page 10 of 20 (FIR No.251/11 PS Crime Branch) staff including ASI Mohan Lal outside H No.148, Sector 2, Pocket 3, Janata Flats, Rohini, Delhi. He has deposed that he was asked by IO to join the investigation to which he agreed. One Sushil Kumar, a public witness, also joined the investigation and the search of abovesaid house was conducted in his presence. He has corroborated the testimony of PW2 qua the search of abovesaid house.
18. During his crossexamination on behalf of A1, he has admitted that he had not stated in his statement u/s 161 Cr.P.C. that A1 was also with the police. He has denied the suggestion that he had not named A1 in his said statement because A1 was not accompanying the police party or that he deliberately introduced the name of A1 at the instance of IO.
19. During his crossexamination on behalf of A2, he has deposed that he reached the police station at 9.00 A.M. He has admitted that whatever is done in official capacity, it is compulsorily to be reduced in writing. However, he has admitted that he did not report Police Station in writing about his joining investigation of the present case. He has denied the suggestion that he was known to the members of the raiding party and that is why he was called by them.
20. PW10 ASI Mohan Lal is the second IO of this case. He has corroborated the testimony of PW2. He has proved the site plan as Ex.PW10/A and arrest memo, personal search memo and disclosure statement of A2 as Ex.PW18/A to Ex.PW18/C respectively. He has also proved his application to SHO, PS South Rohini regarding tenant verification of house no.148, Pocket3, Janata Flats, Sector2, Rohini, State vs. Noor Alam Khan and another Page 11 of 20 (FIR No.251/11 PS Crime Branch) Delhi as Ex.PW10/1; tenant verification form as Ex.PW10/2 and Deed Sale Agreement etc as Ex.PW10/3.
21. During his crossexamination conducted on behalf of A1, he has deposed that he did not record statement of any of the residents of gali with regard to the proceedings conducted by him. He has admitted that he did not mark any spot in the site plan where proceedings pertaining to this case were conducted by first IO or by him. He has further admitted that he did not ask SI Shreeniwasan as to exactly where he conducted the proceedings of the public persons who witnessed the proceedings. He has admitted that he did not join any person from the gali or from occupiers of shops/offices in the area at the time of raid of the house of A2. He has denied the suggestion that all the documents of this case were prepared while sitting in the office of Crime Branch. He has admitted that he did not join any public person during the investigation at Bareily. He has denied the suggestion that he did not visit Bareily or A1 has been falsely implicated in this case.
22. During his crossexamination conducted on behalf of A2, he has admitted that he had not recorded the statement of key maker. He has denied the suggestion that they had not raided the house of A2 or the contraband was planted by the Police.
23. PW16 SI R Sriniwasan has corroborated the testimonies of PW2 and PW10. He has proved the rukka as Ex.PW16/A and report u/s 157 of NDPS Act as Ex.PW16/B. During his cross examination conducted on behalf of A1, he has admitted that none of State vs. Noor Alam Khan and another Page 12 of 20 (FIR No.251/11 PS Crime Branch) the members of the raiding party had seen A1 before. He has further admitted that he did not ask any government official from any government office in R K Puram to join the investigation. He has further admitted that he had not contacted any gazetted officer or Magistrate for the purpose that their services might be required. He has further admitted that from the office to the spot he did not ask any public person to join the investigation. Though he has deposed that he had asked 45 passersby near the house of C6/96, Rohini, Delhi to join the investigation but he could not tell the age and description of those 45 public persons. He has further deposed that those 45 public persons did not tell the reason of their nonjoining the investigation. During his crossexamination conducted on behalf of A2, he has admitted that he did not know A1 or A2 prior to 28.09.2011.
24. PW18 lady Constable Krishna has corroborated the testimony of PW2. She has proved the arrest memo, personal search memo and disclosure statement of A2 as Ex.PW18/A to Ex.PW18/C respectively.
25. PW20 Sushil Kumar is an independent witness who was joined by the police during investigation of the case. However, he has not supported the prosecution case.
26. I have gone through the record. Admittedly, no independent public witness was associated at any stage of the investigation while apprehending A1. The public witness Sushil Kumar (PW20) has not supported the prosecution case qua A2. It is no rule of law that public witnesses should be joined in every State vs. Noor Alam Khan and another Page 13 of 20 (FIR No.251/11 PS Crime Branch) eventuality and no conviction can be based upon the testimonies of police officials. Sometimes it becomes difficult for police officials to associate independent public witnesses for various reasons. However, joining of independent public witnesses is not a mere formality. No effort was made by the IO to contact any government official in R K Puram to join the investigation. He did not even try to contact any Gazetted Officer or Magistrate for the purpose that their services might be required. PW16 (IO) in his crossexamination has admitted that no effort was made to join any security guard or parking attendant of Rithala Metro Station which was near the spot. After 5 to 10 minutes of reaching the spot, the raiding party asked 45 passersby to join the investigation. No genuine efforts were made by the raiding party to associate independent witnesses during the investigation when they left their office at 1.45 p.m and apprehended A1 at 6.50 p.m. PW16 tried to give an explanation as to why no public person was joined as a witness on the ground that there could be chances of leakage of information. However, during his crossexamination, he admitted that had any employee of Rithala Metro Station been joined during the investigation, there would be no chance of leakage of information. Admittedly, the entire writing work was carried out while sitting on a chair taken from one of the shop. Even the shopkeeper or the residents of the gali were not made witnesses to the proceedings by the IO. Admitted position is that there were government officers at R K Puram, employees at Rithala Metro Station and shopkeepers/residents etc. It is not explained as to why only the State vs. Noor Alam Khan and another Page 14 of 20 (FIR No.251/11 PS Crime Branch) passersby were requested to join the investigation. Even their names and addresses were not recorded and no action whatsoever was taken for their refusal to assist in the investigation.
27. The High Court of Delhi in judgment - Ram Prakash (supra), in similar circumstances, has observed as under:
"16. Mr. Gaur pointed out that while the Appellant was apprehended around 3.30 pm, the formal arrest was recorded at 11 pm i.e after eight hours. Throughout this period the police remained present at the spot and yet they could not get a single public witness to be associated.
17. This is perhaps the weakest link in the entire case of the prosecution. In his evidence PW9 stated that "he requested 56 public persons to join the proceedings but they did not join the investigation." It is not clear who those public persons were. Their names were not noted. In his crossexamination PW9 stated: "People who were managing the parking were present in the parking. I did not call any person from the parking, any employee of the Railway and the police officials deployed there to join the proceedings."
18. It seems extraordinary that although PW9 and the entire raiding party remaining at the spot i.e the parking lot of Old Delhi railway Station, well beyond 11.15 pm, i.e., nearly eight hours (they ultimately left the spot at 11.45 pm to reach the Crime Branch at 12.30 am) they were unable to locate a single public witness including any railway official or any personnel of any other security force to be associated in the proceedings.
19. The trial Court has referred to the decision in Ajmer Singh v. State of Haryana 2010 (2) RCR (Crl) 132 to hold that the failure to associate independent witness is not fatal to the prosecution case, as long as it is shown that efforts were made and none was willing. However, it is seen that in the said decision the Supreme Court emphasised that it had to be shown that after making efforts, which the Court considers in the circumstances of the case reasonable, the police officer was not able to get public witnesses to associate with either the raid or the arrest of the culprit. In other words in every case it will have to be examined whether serious efforts made by the police to associate public witnesses. In Ram Swaroop v. State (Govt. NCT of Delhi) MANU/SC/0551/2013: (2013 14 SCC 235 the Supreme State vs. Noor Alam Khan and another Page 15 of 20 (FIR No.251/11 PS Crime Branch) Court found the evidence of the police witnesses "absolutely unimpeachable" and therefore held that the failure to associate independent witnesses did not affect the prosecution case. However, as will be seen hereafter, that cannot be said of the prosecution witnesses in the present case.
20. In the present case as already noticed the entire raiding party remained at the Old Delhi Railway parking lot which is an extraordinarily busy area from around 3.30 pm till midnight. This is a place where apart from security personnel, there are bound to be parking attendants and railway employees as well. The IO in his crossexamination has admitted that he did not make any effort to associate any such member of the security forces (including the railway forces, parking attendants or railway employee). In other words no sincere effort was made.
21. It has almost become a routine practice for the police to state that passerby were asked to join and they declined and went away without disclosing their names. The Court should be wary of readily accepting such explanations. In a case where a raid takes place in broad daylight in a busy area, a more convincing explanation has to be offered why despite remaining at the spot for about eight hours the police did not find a single public witness to join the proceedings."
28. In judgment Masoom (supra), our High Court of Delhi has observed as under :
"13....In corruption cases while conducting raid CBI or Anti Corruption Bureau generally ensure to join independent witnesses. Testimonies of such Panch witnesses are given due weightage. It is unclear as to why the said procedure is not replicated in such cases. At least, in those cases where the investigating Agencies has plenty of time, they can requisition the services of independent public witnesses/public servants."
29. In the present case, there was ample opportunity/time for the investigating agency to associate independent public witnesses. Admittedly, A1 came in a cycle rikshaw. He paid the fare and then he was apprehended. The rikshaw puller was not made a witness. Non joining of independent public witnesses qua investigation relating to State vs. Noor Alam Khan and another Page 16 of 20 (FIR No.251/11 PS Crime Branch) A1 casts a doubt in the story of the prosecution.
30. PW10 and PW16 have admitted in their respective crossexaminations that they were having their mobile phones at the time of raid. During trial of the present case, an application was moved to preserve the cell IDs and CDRs of the members of the raiding party which was allowed. DW2 has proved the CDRs of SI Shreeniwasan (PW16). The CDRs and Cell ID chart (Ex.DW2/B and Ex.DW2/C), for the period 28.9.2011 to 30.09.2011 clearly show that on 28.09.2011, PW16 was not positioned at R K Puram at around 1.00 p.m. The relevant details on 28.09.2011 regarding positioning of PW16 are as under :
Time Place
12.50 P.M Shanti Niketan
1.30 P.M Shanti Niketan
2.38 P.M Rithala
2.52 P.M Mangol Puri
3.11 P.M Sector5, Rohini
3.12 P.M Sector11, Rohini
31. Thus, the route which as per chargesheet was taken by the raiding team is also not proved from the CDR dated 28.09.2011 of PW16. A perusal of the CDR dated 30.09.2011 of PW16 clearly shows that he was not available at Sector2, Rohini, Delhi at any point of time. Thus, the CDR and the Cell ID do not support the story of the prosecution.
32. The raiding party members namely HC Amit Kumar, HC Dharamveer Singh, HC Bharat Singh, HC Satender, HC Shiv Veer State vs. Noor Alam Khan and another Page 17 of 20 (FIR No.251/11 PS Crime Branch) were not examined during the trial. PW18 during her cross examination has admitted that HC Bharat Singh was aware of the house of A2 at Sector2, Rohini, Delhi. Thus, HC Bharat Singh was a star witness as he conducted raid at Sector2, Rohini, Delhi and was also a member of the raiding party while apprehending A1. However, he was not produced in the witness box.
33. Admittedly, the raiding party was not having the description of A1. DD no.17 (Ex.PW20/A) only gave the name of A1 and his age to be about 24 to 25 years. It only refers that A1 belonged to the Bareily and his complete address is not mentioned. Even his features or some marks of identification are not mentioned in the said DD. None of the raiding party members had seen A1 before apprehending him. When the secret informer had not given A1's description, it is not clear as to how the raiding party was able to recognize him soon after his getting down from the cycle rikshaw.
34. The site plan (Ex. Ex.PW10/A) does not reflect the true picture. It does not show the location of each member of the raiding party. Similar was the position in the judgment - Ram Prakash (supra) where High Court of Delhi has observed as under :
"22. The site plan presented to the Court by the prosecution was most rudimentary. The place of apprehension was supposed to be the parking lot of the Old Delhi Railway Station in the afternoon at 3.30 pm and yet, there are no photographs, and importantly no scaled plan which would shown the relative positions of the Appellant, the bags, the raiding party and where the paperwork is supposed to have taken place with some precision. What has been presented to the Court is an imprecise kind of site plan which even does not remotely resemble the railway parking lot of the Old Delhi Railway Station. Learned State vs. Noor Alam Khan and another Page 18 of 20 (FIR No.251/11 PS Crime Branch) APP offered a weak explanation states that the raiding party is not given any specific training in preparing site plans and make best of the available resources. The Court can only observe that with so many technological advances where satellite imagery to the smallest degree of precision of any location in the world I available, the Delhi police can no longer be excused for not improving its methods of gathering and presenting evidence. Considering that the raid was going to take place in a busy place like the Old Delhi Railway Station parking lot, and in broad daylight, it should have been possible for the police to arrange for a videograph of the place or perhaps of the raid itself, if not photographs."
35. DW1 who is the daughter of A2 has deposed that in November/December 2011, two police officers came to their house at E4/13, Sultan Puri, Delhi and took original property documents pertaining to house no. 148, Pocket 3, Sector2, Rohini, Delhi. The statement of key maker u/s 161 Cr.PC was not recorded during investigation. He was not made a witness in this case. Santosh was neither made a witness nor an accused in the present case. The second IO was appointed by the first IO as the same is evident from the rukka itself wherein it is mentioned that "Ayinda taftish ASI Mohan Lal No.102/Crime ki jave". All these circumstances cast a doubt in the story of the prosecution.
36. In the light of above referred deficiencies, inconsistencies and discrepancies, statements of the official witnesses without corroboration from independent sources cannot be believed to base conviction for stringent provisions of the Act. The law on this aspect is that "stringent the punishment stricter the proof". In such like cases, the prosecution evidence has to be examined very zealously so as to State vs. Noor Alam Khan and another Page 19 of 20 (FIR No.251/11 PS Crime Branch) exclude every chance of false implication. The prosecution has failed to establish the commission of offence by the accused beyond reasonable doubt. The accused have examined witnesses in their defence and from their testimonies a doubt is cast in the story of the prosecution. Mere apprehension of the accused is not enough. The evidence is scanty and lacking to establish that the contraband was recovered from the possession of the accused in the manner alleged by the prosecution on the said dates and time. They deserve benefit of doubt.
37. Considering the facts and circumstances of this case, both the accused are hereby acquitted of the alleged offences. A1 Noor Alam Khan be released from jail, if not required in any other case. Personal bond of A2 Kusum is cancelled and her surety is discharged. Documents, if any, be returned to the surety/counsel. In terms of Section 437(A) Cr.P.C., both the accused are directed to furnish personal bonds in the sum of Rs.25,000/ each with one surety in the like amount for a period of six months for their appearance before the High Court of Delhi in the event the prosecution wishes to file an appeal challenging the present judgment. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to Record Room.
Announced in open Court (PRAVEEN KUMAR) today i.e. on 25.10.2017. Special Judge (NDPS)/North Rohini Courts, Delhi.
State vs. Noor Alam Khan and another Page 20 of 20(FIR No.251/11 PS Crime Branch) State vs. Noor Alam Khan and another Page 21 of 20 (FIR No.251/11 PS Crime Branch) State vs. Noor Alam Khan and another Page 22 of 20 (FIR No.251/11 PS Crime Branch)