Delhi District Court
Vide This Judgment This Court Shall ... vs K. P. S. Yadav (5) Hc Wilson John (6) Ct. ... on 21 March, 2013
1
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, SOUTH EAST DELHI, SAKET
State v. Sunil Kumar
FIR No. 254/2011
PS Sun Light Colony
U/s 27/61/85 NDPS Act.
JUDGMENT
C C No. : 171/3/11
Date of Institution : 13.09.2011
Date of Commission of Offence : 25.07.2011
Name of the complainant : HC Raja Ram
Name & address of the accused : Sunil Kumar
S/o Ram Kishan
r/o H. No. 511, Sun Light Colony
Second Floor, New Delhi
Offence complained of : U/s 27/61/85 NDPS Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 15.03.2013
Date of announcing of judgment : 21.03.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 27/61/85 NDPS Act.
2. The story of the prosecution is that on 25.07.2011 at about 11.30 pm below Ashram Flyover, New Delhi within the jurisdiction of PS Sun Light Colony, the accused Sunil Kumar was found consuming smack with the help of pipe and panni and thereby committed an offence under Section 27/61/85 NDPS Act.
State v. Sunil Kumar U/s 27/61/85 NDPS Act FIR No. 254/11 , PS S L Colony 2
The pipe, panni and match box were seized and taken into possession by the police. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and thereafter charge under Section 27/61/85 NDPS Act was framed against him vide order dated 02.04.2012 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined seven witnesses namely (1) HC Raja Ram, (2) HC Lakhan Singh (3) Ct. Satish (4) Inspector V. K. P. S. Yadav (5) HC Wilson John (6) Ct. Shish Ram (7) SI Ganga Prakash.
5. PW-1 HC Raja Ram deposed that on 25.07.2011 he was posted at PS Sun Light Colony as Head Constable. He deposed that on that day, he along with Ct. Shish Ram were on patrolling duty from 8.00 PM to 8.00 AM in beat area Siddharth Enclave. He deposed that at about 11.30 pm they reached at ring road in front of Ashram Flyover where they saw one person was sitting and consuming some material with the help of one pipe. He further deposed that 3-4 motorcyclist and scooterist were requested to join the investigation but none agreed and left the spot without disclosing their names and addresses. He gave telephonic message to the SHO PS S L Colony, who directed him to take immediate action. On that direction, they apprehended the accused who State v. Sunil Kumar U/s 27/61/85 NDPS Act FIR No. 254/11 , PS S L Colony 3 was consuming smack with the help of panni pipe. They found that accused was having one silver paper pipe in his right hand and some half burnt paper panni on which smack was put. They saw that he was consuming smack while putting match box under right thumb of leg. He deposed that he gave notice under Section 50 NDPS Act to the accused vide memo Ex.PW1/A. He deposed that he made casual search of the accused on which no other smack except consumed smack was found. He put the recovered articles into the pulanda and sealed it with the seal of RRY and seized vide seizure memo Ex. PW1/B. He prepared rukka Ex. PW1/C and filled up the FSL form. He handed over the rukka, FSL form, recovered smack and paper panni and seizure memo to Ct. Shish Ram and directed him to hand over the same to SHO PS Sun Light Colony. He went to PS and got registered the FIR. After registration he returned back to the spot along with copy of FIR and original rukka. ASI Ganga Prakash also came at the spot along with Ct. Shish Ram. Further investigation was marked to ASI Ganga Prakash. He prepared site plan at his instance. Thereafter, he handed over the accused to ASI Ganga Prakash. IO recorded his statement and thereafter he left the spot. He identified the accused and the case property in the court.
6. During cross examination, PW-1 deposed that he along with Ct. Shish Ram left the PS at around 8.00 PM. DD No. 23A was filled up regarding departure State v. Sunil Kumar U/s 27/61/85 NDPS Act FIR No. 254/11 , PS S L Colony 4 entry. They reached at the spot on foot. No written notice was served to the public persons who refused to join the investigation. He prepared rukka along with notice under Section 50 NDPS Act, seizure memo of panni pipe, half burnt panni and match box simultaneously. He sent rukka through Ct. Shish Ram at about 12.30 AM on foot. He returned along with ASI Ganga Prakash at about 1.30 AM on motorcycle. He deposed that he did not remember the number of motorcycle but it was being driven by ASI Ganga Prakash. He deposed that he did not make any alteration in already written content of NDPS notice and seizure memo. FIR number was not mentioned at the time when he prepared it. It was written down later on by the ASI Ganga Prakash. Site plan was prepared at his instance. All the documents were prepared in the street light and torch. He however admitted that there is no mark of street light in the site plan prepared by the IO. He denied that all the proceedings were done at the police station and the accused was lifted from his home and falsely implicated in this case.
7. PW-2 HC Lakhan Singh deposed that on 25.07.2011 he was posted as a MHC(M) at PS S L Colony. On that day, he received Panni Pipe and match box sent by HC Raja Ram & Ct. Shish Ram. He deposited the same articles vide entry no. 238 in the store room register. Later on the case property was sent to the FSL for test by the IO vide RC No. 88/21/11 through Ct. Satish.
State v. Sunil Kumar U/s 27/61/85 NDPS Act FIR No. 254/11 , PS S L Colony 5
During cross examination, he deposed that HC Raja Ram handed over him the case property at about 8.00-9.00 PM. He handed over the case property for FSL test to Ct. Satish on 11.08.2011 at 9.30 AM.
8. PW-3 Ct. Satish deposed that on 11.08.2011 he was posted at PS S L colony as constable. On that day, HC Lakhan handed over to him paper panni and match box for FSL test. He had taken the said articles to the FSL on the direction of HC Lakhan vide RC No. 88/21/11. Then, he deposited the case property in the FSL. He deposed that during his possession case property was not tempered with. During cross examination, he deposed that at 9.30 AM, HC Lakhan handed over to him panni pipe and match box for FSL test. He immediately left the PS for FSL rohini after taking the case property by DTC bus. He deposed that he did not remember the route number and registration number of the bus. He deposed that he did not take the ticket of the bus as being police staff. He deposed that he reached the FSL rohini at about 11.30 AM. He handed over the case property to Duty Officer. He deposed that he did not remember the name of the duty officer.
9. PW-4 Inspector V. K. P. S. Yadav deposed that on 26.07.2011 he was posted as SHO in the PS S L Colony. On the intervening night of 25/26.7.11, he received an information from HC Raja Ram that a person was consuming smack with a pipe under Ashram flyover. He told him to take necessary legal State v. Sunil Kumar U/s 27/61/85 NDPS Act FIR No. 254/11 , PS S L Colony 6 action against him. Later on that person was identified as BC of police station Sun Light Colony. On his instructions, HC Raja Ram along with Ct. Shish Ram apprehended the accused Sunil while consuming smack with a panni-pipe. Thereafter, case FIR No. 254/11 under Section 27/61/85 NDPS Act was registered against the accused Sunil Kumar. Ct. Shish Ram produced the closed pulanda containing panni-pipe, match box sealed with the seal of RRY along with seizure memo and FSL form. He also sealed the same with his seal VKPS and deposited the same in the PS Malkhana. ASI Ganga Prakash recorded his statement. The DD No. 33A lodged by him in this regard. During cross examination, he deposed that he received the information at about 11.30 pm through telephonic message. Ct. Shish Ram along with case property came to him at about 1.00 am by motorcycle. He did not remember whether the motorcycle was a Govt. or private vehicle. ASI Ganga Prakash recorded his statement in the PS itself at about 2.00 pm.
10.PW-5 HC Wilson John proved the information under Section 57 NDPS Act issued on 27.07.2011 having diary no. 4795 issued by ACP, New Friends Colony Ex. PW5/A. He also proved the diary register of 2011 Ex. PW5/B.
11. PW-6 Ct Shish Ram deposed that on 25.07.2011 he was posted at PS Sun Light Colony as Constable. On that day, he along with HC Raja Ram were on patrolling duty from 8.00 PM to 8.00 AM in beat area Siddharth Enclave. At State v. Sunil Kumar U/s 27/61/85 NDPS Act FIR No. 254/11 , PS S L Colony 7 about 11.30 pm they reached at the ring road in front of Ashram Flyover where they saw one person was sitting and was consuming some material with the help of one pipe. 3-4 motorcyclist and scootrist were requested to join the investigation but none agreed and left the spot without disclosing their names and addresses. HC Raja Ram gave telephonic message to the SHO of PS S L Colony and he directed him to take immediate action. On that direction, they apprehended the accused who was consuming smack with the help of panni pipe. Name of the accused disclosed as Sunil Kumar. They found that accused was having one silver paper pipe in his right hand and some half burnt paper panni on which smack was put it. They saw that he was consuming smack by putting match box under right thumb of leg. HC Raja Ram gave notice under Section 50 NDPS Act to the accused. HC Raja Ram made casual search of the accused on which no other smack except consumed smack was found. HC Raja Ram put the recovered articles into the pulanda and sealed it with the seal of RRY and handed over to him after use and seized vide seizure memo Ex. PW1/B. HC Raja Ram prepared rukka Ex. PW1/C and filled up the FSL form. IO handed over the rukka, FSL form, recovered smack and paper panni, seizure memo to him and directed him to hand over the SHO PS Sun Light Colony. He went to PS and got registered the FIR. After registration of FIR, he I returned back to the spot along with State v. Sunil Kumar U/s 27/61/85 NDPS Act FIR No. 254/11 , PS S L Colony 8 copy of FIR and original rukka. ASI Ganga Prakash was also came at the spot along with Ct. Shish Ram. The further investigation was marked to ASI Ganga Prakash. He prepared site plan at the instance of the IO. Thereafter, HC Raja Ram handed over the accused to ASI Ganga Prakash. ASI Gangra Prakash arrested the accused and his personal search was conducted vide memo Ex. PW6/A and PW6/B respectively. IO recorded his statement and thereafter he left the spot. He identified the accused and the case property in the court.
12.During cross examination, he deposed that he along with HC Raja Ram left the PS at around 8.30 PM. DD No. 23A was filled up regarding departure entry by HC Raja Ram. He deposed that they reached at the spot on Raja Ram's private motorcycle. No written notice was served to the public persons who refused to join the investigation. HC Raja Ram prepared rukka along with notice under Section 50 NDPS Act, seizure memo of panni pipe, half burnt panni and match box simultaneously. He brought the rukka to PS at about 12.30 AM on foot. He returned along with ASI Ganga Prakash at about 1.30 AM on foot. HC Raja Ram had already prepared site plan, notice under Section 50 NDPS Act along with Tehrir. He could not say whether IO had later on made any alteration or adding in the said documents. He deposed that IO had mentioned the FIR number before registration of FIR. He again deposed that it was written after registering the FIR. He deposed that all the documents State v. Sunil Kumar U/s 27/61/85 NDPS Act FIR No. 254/11 , PS S L Colony 9 were prepared in the street light. He admitted that there is no mark of street light in the site plan prepared by the IO. IO informed accused's family member regarding his arrest on telephone. He deposed that he did not know who had taken the accused for medical treatment.
13.PW-7 SI Ganga Parkash deposed that on 25-26.07.2011 he was posted as ASI at PS S L Colony. He deposed that on that day, he was in the PS and was on night emergency duty. On that day, investigation of the present case was marked to him for further investigation. Thereafter he along with Ct. Shish Ram reached the spot,i.e under the Ashram Flyover at about 1.30 AM and met with HC Raja Ram and accused Sunil Kumar. IO handed over the notice under Section 50 NDPS act and seizure memo of the case property along with accused. He arrested the accused and conducted his persona search memo Ex. PW6/A and PW6/B.He prepared the site plan vide memo Ex. PW7/A. He recorded the statement of PWs. He got the medical examination of the accused conducted. The accused was sent to the lock up and produced in the court on the same day. He sent an information under Section 57 NDPS Act to the ACP NFC. He sent the pulanda containing case property through Ct. Satish to FSL, Rohini. He prepared the challan and filed before the court. He obtained the result from FSL and filed the same before the court on 27.01.2011 vide application Ex. PW7/B . During cross examination, he State v. Sunil Kumar U/s 27/61/85 NDPS Act FIR No. 254/11 , PS S L Colony 10 deposed that he along with Ct. Shish Ram reached the spot at around 1.30 am by foot. Information of the arrest of the accused was given to his father personally. Ct. Shish Ram took the accused for medical examination. He could not say by which mode Ct. Shish Ram took the accused for medical examination. They finally left the spot at about 2.15-2.30 am and returned back to the PS by foot. He denied that he had not visited the spot or joined the investigation in the present case or that the accused has been wrongly implicated in the present case.
14.The PE was closed and statement of accused was recorded wherein the accused pleaded innocence. Accused did not lead DE.
15.I have heard the arguments addressed by the Ld APP for state and the Ld. Legal Aid Counsel for accused and carefully perused the documents on record.
16.From the overall testimony of the witnesses, it is clear that the IO has not joined any public witness at the time of arrest or while completing the formalities. Infact, not even an effort was made to join the public witnesses. There is a possibility that it was a chance recovery, however, admittedly, at the time and place from where the accused was apprehended and when the formalities were being completed, there were public persons around. Then why no public witness were joined in investigation by the police. All the State v. Sunil Kumar U/s 27/61/85 NDPS Act FIR No. 254/11 , PS S L Colony 11 witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
17.In Roop Chand v. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of Pradeep Narayana V. State of Maharashtra reported AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, it is settled law that whenever any recovery in connection with the place of the commission of offence is made, public person must be made witness.
18.Further, the Section 100(4) CrPC provided that "before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do".
19.In the present case, the IO has even failed to note down the particulars of the State v. Sunil Kumar U/s 27/61/85 NDPS Act FIR No. 254/11 , PS S L Colony 12 person who refused to join the investigation and this creates doubt regarding the fairness of the investigation. The chances of false implication cannot be ruled out.
20.It has also been noticed that the recovery memo and other documents were prepared before the registration of FIR. When documents are prepared before registration of FIR, it contains the FIR number, and interference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused.
21.All the lapses in investigation creates doubt on the recovery of a case property from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the guilt of accused beyond reasonable doubt.
22.In view of the above discussion, the court is of the view that prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused Sunil Kumar is acquitted. He be released from the custody if not wanted in any other case. File be consigned to Record Room.
Announced in the open court (SAUMYA CHAUHAN)
on 21.03.13 METROPOLITAN MAGISTRATE-07
SOUTH EAST/SAKET COURT/NEW DELHI
State v. Sunil Kumar U/s 27/61/85 NDPS Act
FIR No. 254/11 , PS S L Colony