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Delhi District Court

State vs (1) Rajesh Kumar on 21 August, 2009

                                -::1::-                  FIR No19/06
                                                       PS: Roop Nagar


      IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
   ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE: NDPS:
           TIS HAZARI COURTS:(WEST) DELHI

                          FIR no. 19/06
                   Police station: Roop Nagar
                   U/s 15/29/61/85 NDPS Act
                   State V/s (1) Rajesh Kumar
                          (2) Tara Singh
                         (3) Meera
                        (4) Amit Kumar

 1. Session Case no.        :              25/N/06
 2. Name of the accused : (1) Rajesh Kumar S/o Nathi
 and parentage            Singh R/o Gali no. 3, H. no. 104,
                          Ravidass    Nagar,     Maksuda,
                          Jalandhar Sahar, Punjab
                                (2) Tara Singh s/o Tilak Singh
                                R/o T-1095, Mangol Puri, Delhi
                                (3) Meera W/o Kalyan Singh
                                Mishra R/o Village Mullahheda
                                Post    Dutaheda,      District
                                Gurgaon, Haryana
                                (4)     Amit     Kumar     s/o
                                Sh.Dineshwar Jha R/o Village
                                Mullahheda Post Dutaheda,
                                District Gurgaon, Haryana.


 3. Date of commission of :               17/1/2006
 offence
 4. Arguments concluded :
 on                                        04/08/09
 5. Date of Judgment        :             21/08/2009
 6. Date of final order     :             21/08/2009

JUDGMENT

::1::

PS: Roop Nagar

1) The case of the prosecution in brief is that on 17/1/2006 ASI Phool Singh was on patrolling duty alongwith W/HC Neeru and Ct. Satbir and at about 8.10 PM they had reached at Shakti Nagar Chowk where an informer met them and gave information that three persons and a woman were present on the patri of the road going towards Azadpur before bus stop near the wall of the school and are having in their possession "Poppy straw Powder"

in huge quantity; he reduced the information in writing on a piece of paper and asked 3-4 public persons to join the raiding party but none agreed; he organised the raiding party comprising himself, W/HC Neeru and Ct. Satbir and reached the spot alongwith the informer; on reaching there they found three persons and a woman were present and sitting on separate plastic kattas; he informed his identity to the accused persons and informed about the information against them and that their search was to be conducted; he informed the accused persons regarding their legal right to be searched before the Magistrate/Gazetted officer; notice u/s 50 NDPS Act was served separately upon each accused; all the accused persons had refused to get themselves searched in the presence of Magistrate/Gazetted Officer by giving reply in ::2::

PS: Roop Nagar their own handwriting; the kattas which were in their possession were searched and it was found containing brown coloured post powder; Ct Satbir was sent to bring weighing scale and weights alongwith the IO bag who brought the same and the katta in possession of accused Rajesh was found containing 28 kg "Poppy straw Powder", out of which a sample of 2 kg was taken out in a white polythene which converted into a cloth parcel and given serial no. A-1 and the katta was marked-A; the remaining "Poppy straw Powder" was kept in the same katta and its mouth was tied with the help of string and given serial no.1. The katta which was in possession of accused Tara was found containing 18 kg "Poppy straw Powder", out of which a sample of 2 kg was taken out in a white polythene which was converted into a cloth parcel and given serial no. A-2; the remaining "Poppy straw Powder" was kept in the same katta and its mouth was tied with the help of string and given serial no.2; the katta recovered in the possession of the accused Amit weighed 12 kg of "Poppy straw Powder", out of which a sample of 2 kg was taken out in a white polythene which was converted into a cloth parcel and given as serial no. A- 3; the remaining "Poppy straw Powder" was kept in the same ::3::

PS: Roop Nagar manner and tied with the help of string and given serial no. 3. The katta which was recovered from the possession of accused Meera was weighed which came to 10 kg, out of which a sample of 1 kg was taken out in a white polythene which was converted into a cloth parcel and given as serial no. A-4; the remaining "Poppy straw Powder" was kept in the same katta and its mouth was tied with the help of string and given serial no.4; FSL-form was filled up at the spot; all the parcels, FSL-form were sealed with the seal of PS and thereafter taken into possession; the seal after use was handed over to Ct. Satbir; the IO prepared the rukka and sent Ct.Satbir to Police Station alongwith sealed parcels, form-FSL and copy of seizure memo with the direction to hand over the rukka to the duty officer and the remaining things to SHO; Ct. Satbir left the spot and returned alongwith ASI Zile Singh; all the accused persons were produced before ASI Zile Singh alongwith relevant papers; ASI Zile Singh prepared the site plan at the instance of ASI Phool Singh; all the accused persons were formally arrested, the chargesheet was prepared and submitted to the court.

2) After hearing Ld Addl. PP for the State as well as Ld defence counsels, the charge under section 15(b)of the NDPS Act, ::4::

PS: Roop Nagar 1985 was framed against each accused separately on 22/8/2006 to which they pleaded not guilty and claimed trial.

3) In order to prove its case, the prosecution has examined in total 9 witnesses.

4) The brief discussion of these witnesses is as under:-

PW1 HC Mohd Raza has deposed that on 18/1/2006 he was working as MHC(M); on that day Inspector S.K. Meena, Addl SHO handed over to him four sample parcels, four plastic bags, case property alongwith form-FSL and copy of seizure memo. All these articles were sealed with the seal of PS and SK. On 20/2/2006 he had sent the sample parcel to FSL, Rohini vide Road Certificate no.09/21 through Ct. Satish. He further deposed that till the case property remained in his possession the same was kept safe and intact and was not tampered with. He has proved the copy of malkhana register as Ex. PW1/A, copy of Road Certificate as Ex.PW1/B. He further deposed that on 27/3/2006 the result and the remnants of the sample was received through ASI Zile Singh and the remnants of the sample was kept in the malkhana and the result was given to ASI Zile Singh for depositing the same in the court.

In his cross-examination he has stated that he was started ::5::

PS: Roop Nagar handing over the charge to new MHC(M) on 21/8/2006 and the position of the sample mentioned in the column no. 5 rack no. 6 at serial no. 1261 has been recorded by second MHC(M) after his transfer.

PW2 Ct. Satish Kumar has deposed that on 20/2/2006 he was posted in the Police Station and on that day at about 10.00 AM MHC(M) HC Mohd. Raza handed over him four parcels alongwith FSL-form duly sealed with the seal of PS and SK vide Road certificate with the direction to deposit the same to FSL, Rohini and he accordingly deposited the same against receipt on the back of the road certificate which he returned to the MHC(M).

PW3 HC Jai Kumar has deposed that on 17/1/2006 he was working as duty officer from 5.00PM to 1.00AM. On that day at about 11.35 PM Ct.Satvir brought the rukka sent by ASI Phool Singh and he recorded the FIR Ex. PW3/A vide DD no. 38A which is Ex.PW3/B. PW4 ASI Harnam Singh has proved the report u/s 57 NDPS Act as Ex.4/A which was received in the office of ACP on 18/1/2006 and produced before the ACP Sh. Rajan Bhagat and signed by him and proved the copy of the diary register as Ex.PW4/B. PW5 W/ASI Neeru deposed that on 17/1/2006 she was on ::6::

PS: Roop Nagar patrolling duty with ASI Phool Singh and Ct. Satbir and at about 8.10 PM they had reached a place at Shakti Nagar Chowk where an informer met ASI Phool Singh and gave information that three persons and a woman were present on a patri of the road going towards Azadpur before bus stop near the wall of the school and are having in their possession "Poppy straw Powder" in huge quantity;

ASI Phool Singh had reduced the information in writing on a piece of paper and asked 3-4 public persons to join the raiding party but none agreed; ASI Phool Singh organised the raiding party comprising himself, Ct. Satbir and her and reached the spot alongwith the informer; on reaching there they found three persons and a woman were present and sitting on separate plastic kattas; ASI Phool Singh informed his identity to the accused persons and informed about the information against them and that their search was to be conducted; ASI Phool Singh informed the accused persons regarding their legal rights to be searched before the Magistrate/Gazetted officer; notice u/s 50 NDPS Act Ex. PW5/A to Ex. PW5/D was served separately upon each accused; all the accused persons had refused to get themselves searched in the presence of Magistrate/Gazetted Officer by giving refusal Ex PW5/E to PW5/H;

::7::

PS: Roop Nagar the kattas which were in their possession were searched and it was found containing brown coloured post powder. She has fully supported the prosecution story regarding weighing of the recovered contraband, drawing of the samples and seizure of the sample and the case property after affixing seal of PS and thereafter sending of the rukka and recovered case property to the Police Station through Ct. Satbir. She has also deposed that FSL-form was filled up on the spot and all the articles alongwith FSL-form were sealed with the seal of PS and were taken into police possession vide memo Ex. PW5/J; all the accused persons were arrested vide memo Ex. PW5/K to Ex. PW5/N and their personal search was conducted vide memo Ex. PW5/O to PW5/R. She further deposed that she has carried out personal search of accused Meera and in her personal search a bag on which words ELEE were printed was recovered in which notice u/s 50 NDPS Act, Rs. 425/- in cash, a chunni, a handkerchief and a lady purse containing some papers make up wares, two bangles, a wrist watch were recovered. She has also identified the case property Ex. P1 to Ex. P8 and also proved the notices u/s 50 NDPS Act as Ex. PW9 to Ex. P12.

PW6 Ct. Satbir is another recovery witness who has fully ::8::

PS: Roop Nagar supported and corroborated the version of PW5 on all material points.

PW7 Inspector S. K. Meena has deposed that on 17/1/2006 he was posted as Addl. SHO of Police Station Roop Nagar; on that day at about 11.35 PM Ct. Satbir Singh came to his office and handed over to him eight parcels alongwith form-FSL and copy of seizure memo sealed with the seal of PS and he affixed his own seal of SKM on all the parcels and form-FSL and scribed FIR number on all the things; he had summoned the MHC(M) alongwith register no.19 and had deposited all the things with him and he signed the entry and lodged the DD in this regard.

PW8 ASI Zile Singh (retired) is the 2nd IO of the case and deposed that on 18/1/2006 further investigation of this case was handed over to him; the duty officer had handed over to him copy of the FIR and the original rukka thereafter he alongwith Ct. Satbir went to the spot where ASI Phool Singh handed over to him the relevant papers and produced the accused persons before him; he has prepared the site plan Ex. PW8/A at the instance of ASI Phool Singh and recorded his statement and thereafter he left the spot and he carried out further investigation of this case. He has proved the ::9::

PS: Roop Nagar FSL result Ex. PW8/X. PW9 ASI Phool Singh is the 1st IO of the case who has fully supported the prosecution story and also corroborated the material witnesses on all relevant points. He has proved the information Ex.PW9/A and asked 3-4 public persons to join the raiding party but none agreed; he organised the raiding party comprising himself, W/HC Neeru and Ct. Satbir and reached the spot alongwith the informer; on reaching there they found three persons and a woman were present and sitting on separate plastic kattas; he informed his identity to the accused persons and informed about the information against them and that their search was to be conducted; he informed the accused persons regarding their legal rights to be searched before the Magistrate/Gazetted officer; notice u/s 50 NDPS Act Ex P9 to P12 were served separately upon each accused; all the accused persons had refused to get themselves searched in the presence of Magistrate/Gazetted Officer by giving reply in their own handwriting; the kattas which were in their possession were searched and it was found containing brown coloured post powder; Ct Satbir was sent to bring weighing scale and weights alongwith the IO bag who brought the same and the katta in possession of accused ::10::

PS: Roop Nagar Rajesh was found to contain 28 kg "Poppy straw Powder", out of which a sample of 2 kg was taken out in a white polythene which converted into a cloth parcel and given serial no. A-1 and the katta was marked-A; the remaining "Poppy straw Powder" was kept in the same katta and its mouth was tied with the help of string and given serial no.1. The katta which was in possession of accused Tara was found containing 18 kg "Poppy straw Powder", out of which a sample of 2 kg was taken out in a white polythene which was converted into a cloth parcel and given serial no. A-2; the remaining "Poppy straw Powder" was kept in the same katta and its mouth was tied with the help of string and given serial no.2; the katta recovered in the possession of the accused Amit weighed 12 kg of "Poppy straw Powder", out of which a sample of 2 kg was taken out in a white polythene which was converted into a cloth parcel and given as serial no. A-3; the remaining "Poppy straw Powder" was kept in the same manner and tied with the help of string and given serial no.

3. The katta which was recovered from the possession of accused Meera weighed which came to 10 kg, out of which a sample of 1 kg was taken out in a white polythene which was converted into a cloth parcel and given as serial no. A-4; the remaining "Poppy straw ::11::

PS: Roop Nagar Powder" was kept in the same katta and its mouth was tied with the help of string and given serial no.4; FSL-form was filled up at the spot; all the parcels, FSL-form were sealed with the seal of PS and thereafter taken into possession; the seal after use was handed over to Ct. Satbir; he prepared the rukka Ex.PW9/B and sent Ct.Satbir to Police Station alongwith sealed parcels, form-FSL and copy of seizure memo with the direction to hand over the rukka to the duty officer and the remaining things to SHO; Ct. Satbir left the spot and returned alongwith ASI Zile Singh; all the accused persons were produced before ASI Zile Singh alongwith relevant papers; ASI Zile Singh prepared the site plan at his instance .

5) All the accused persons were examined under section 313CrPC in which they denied the allegations stating that they have been falsely implicated in this case. Accused Rajesh stated that on 17/1/2006 he was going to meet his sister Smt Rajni at Tahirpur, Shahadara, Delhi; he came to ISBT Kashmere Gate for sight seeing but in the meantime some police personnels asked him to follow them to the Police Station; he tried to convince them but he was taken to the Police Station on the pretext of routine ::12::

PS: Roop Nagar security check due to republic day celebration; in the Police Station he was beaten up and forced to sign some blank papers; he was apprehended near ISBI Kashmere Gate and thereafter taken to Police Station Roop Nagar and was falsely implicated in this case as nothing was recovered in his possession. He is desired to lead evidence.

Accused Tara Singh has taken the defence that on 17/1/2006 he has left his house for Ghaziabad where he used to frame pictures of god and goddess in front of Delhi Public school, Sihani Road, Ghaziabad. He was residing at Mangolpuri and had boarded a bus for going to Ghaziabad and when the bus reached near Filmistan Red light some police officials boarded the bus and started frisking the bus passengers and on seeing the police personnels, some passengers sitting adjacent to him ran away leaving their bags and packages on their seats; the police official opened those bags which were containing some plastic katta and found to contain contraband; on seeing him near the bags they apprehended him and took him to the Police Station where he was forced to sign on blank papers for falsely implicating in this case; he was innocent as nothing was recovered from his possession; he ::13::

PS: Roop Nagar desired to lead evidence in defence.

Accused Meera took the defence that on 17/1/2006 she was travelling through bus at Route no. 166 and one police Constable teased her as a result a scuffle took place; at the crossing of Shalimar Bagh Police Station she was forced to get down and taken to Police Station Shalimar Bagh; in the meantime a lady Constable was called by some one saying that some mistake had been committed by her in the fit of rage and sought help to mange the situation. At 5.30 PM she was forced to sit in one police gypsy and taken to Police Station Roop Nagar; in the lockup she found one Sardar and accused Amit. She was forced to sign on blank papers by ASI Phool Singh which she refused. After sometime the Sardar from the lockup was released and the case property recovered was planted upon her. She did not desire to lead evidence.

Accused Amit Kumar took the defence that he used to sell mosquito-nets on cycle and on 16/1/2006 when he came near Flimistan Market to purchase mosquito-nets, some police officials alongwith ASI Phool Singh asked him to accompany them to Police Station and in the Police Station one Sardarji was in the ::14::

PS: Roop Nagar lockup and ASI Phool Singh had beaten him to sign some blank papers and his thumb impression were obtained forcibly; he was detained on 16/1/2006 and 17/1/2006 and in the evening of 17/1/2006 some Sardar people had come to Police Station, went to ASI Phool Singh and thereafter Sardar was released and the property recovered from him was planted upon him. He did not desire to lead evidence.

6) DW1 Rajni was examined on behalf of accused Rajesh and deposed that 2-3 years back on 16th January her brother Rajesh had come to her house on account of Lohri festival and stayed with her till 17th January Noon time. He did not return home till 8.00 PM and on 18th January she received a telephone call from her mother who informed about the arrest of Rajesh in a bus.

DW2 Narain Singh examined on behalf of accused Tara Singh has deposed that he knew accused Tara Chand since childhood who used to sell tiles at Ghaziabad; he used to purchase tiles from the accused; he had also been a tenant of the accused in the year 1996.

7) I have heard Ld counsel Shri Vishwaranjan for accused ::15::

PS: Roop Nagar Rajesh Kumar, Meera and Amit Kumar and Ms. Sunita Rani Sharma, Ld Amicus Curiae for accused Tara Singh. Ld defence counsels argued that the case of the prosecution was not proved beyond reasonable doubt because of the following reasons:-

(a) The prosecution has failed to establish that the sample parcels and the case property was not tampered with because there is no explanation regarding the delay of 32 days in sending samples to the FSL; there is no evidence to show that the FSL-form alongwith seal impression was sent to the FSL alongwith sample; the stock room register shows that FSL-form has not been mentioned as deposited in it, therefore evidence of PW2 Ct. Satish Kumar stating that he has carried the FSL-form with sample is of no value.

The samples have been found mixed with the sample of other case in the Malkhana. The second MHC(M) who has changed the position of the sample in the malkhana has not been examined. PW6 Ct. Satbir in his cross- examination stated that the seal was returned by him to the IO on the next day.

::16::

PS: Roop Nagar

(b) There are material contradictions in the deposition of prosecution witnesses on all material points as under:-

a) PW6 Ct. Satbir stated that the secret informer accompanied them whereas W/HC Neeru has stated that informer did not go with them.

b) PW6 Ct. Satbir stated that he has brought the weighing scale and the weights alongwith IO bag whereas PW5 W/HC Neeru stated in her statement u/s 161 CrPC that she has brought the weighing scale and weights and IO Bag from the Police Station. PW6 Ct. Satbir did not remember as to what was recovered from the personal search of accused persons and could give details only after the cross-examination by Ld Addl. PP for the State whereas he has given the details of recovery of the contraband from the accused persons.

c) PW6 Ct. Satbir has stated that the IO prepared the memo when seal was returned to the IO but the IO states that no such memo was prepared.

d) PW6 Ct. Satbir stated that four FSL-forms were prepared. SHO has stated that only one FSL-form was prepared. W/HC Neeru states that 2 FSL- forms were filled up.

e) PW6 Ct. Satbir stated that MHC (M) was called by the SHO with register no. 19 whereas PW7 Inspector S. K. Meena Addl. SHO stated that he ::17::

PS: Roop Nagar had called the MHC (M).

f) PW7 Inspector S. K. Meena has stated that he scribed the FIR on all the things but the PW6 Ct.Satbir stated that FIR number was scribed by the IO. IO stated that bus stop was at a distance of 150 yards from the spot whereas W/HC Neeru stated that bus stop was at a distance of 2-3 fts. IO has stated that the seal was taken from Ct.Satbir on reaching in Police Station whereas Ct. Satbir has stated that seal was returned to the IO on the next day.

(c) The prosecution case suffers from various irregularities and discrepancies. PW7 Inspector S. K. Meena in his cross-examination states that he came to know about the apprehension of the accused for the first time when Ct.Satbir Singh had come to his office. PW9 ASI Phool Singh Investigating Officer in his cross-examination stated, "I had filled up two FSL-forms. It was in two pages. I had taken back the seal from Ct. Satbir when he had taken the parcels etc to the Police Station". PW5 ASI Neeru has stated in her cross-examination by Ms. Sunita Rani Ld counsel for accused Tara that the polythene were taken from the shops nearby but she did not know who had ::18::

PS: Roop Nagar brought the polythenes and she cannot tell how many polythene were brought. It was argued that the shopkeeper from whom polythene were brought has not been cited or examined as a witness. PW8 Zile Singh in his cross- examination stated that the original notice u/s 50 NDPS Act was recovered in the personal search of the accused Rajesh. It is not explained as to how the original copy was given to the accused whereas the same should have been placed on record with the chargesheet. Personal search memo Ex.PW5/Q of accused Amit is having an overwriting in date which is changed from 18th to 17th and the said memo is not signed by ASI Zile Singh who has signed the other documents i.e arrest memo Ex. PW5/M of the same accused and there is no explanation in that regard. Report u/s 57 NDPS Act was not proper because there was no detail of case property mentioned in it. There is no mention in the MHC(M) register that the FSL-form was sent with the samples. Search of Women Ct Neeru who searched accused Meera was not offered to the accused before searching her. Site plan was prepared on 18th in Police Station and lateron ::19::

PS: Roop Nagar date was changed to 17th. The site plan is not signed by ASI Zile Singh which bears only his name and even first IO ASI Phool Singh has not signed the same. Weights of the sample in the FSL was different from their weights at the time of their preparation.

(d) No public witness was joined either in raid or in investigation despite their availability on the spot and PW8 ASI Zile Singh has admitted in his cross-examination that one or two public persons were present on the spot but he had not asked them to join the proceedings. PW9 ASI Phool Singh the 1st IO has not made since efforts to join the public witness despite there being a police booth on the opposite side of the road and Petrol pump near the spot. He has admitted that he had not called anybody from the police booth.

8) Ld defence counsels therefore vehemently argued that because of above discrepancies and contradictions, prosecution has failed to prove its case against the accused person beyond reasonable doubt and accused persons are entitled to acquittal. In ::20::

PS: Roop Nagar support of their contentions Ld defence counsel has referred and relied upon following cases:-

(a) In 1997 IV AD Delhi 178, Matllub Vs. State, wherein it was held that when CFSL-form remained with the IO and the seal also remained with him as having being returned by the public witness after about one week of the occurrence, there was thus ample opportunity and possibility to tamper with the seals on the sample packet sent to the CFSL.

(b) In Balban Singh Vs. State, 2008 VI AD (DELHI) 52, The iron box containing the "Ganja" was produced in the court with locks already opened and the same was not kept by prosecution in secure manner in police malkhana, therefore prosecution was not able to satisfactorily establish that seized sample was preserved in proper form in the malkhana and delay of 1½ month in sending the sample for testing must be held fatal to the case of the prosecution.

(c) In Radha Kishan Vs. State , 87 (2000) DLT 106, The delay of 13 days in sending the sample to the CFSL without any reasonable explanation was held fatal to the prosecution case.

(d) In State of Rajasthan Vs. Dault Ram, 1980 Chandigarh ::21::

PS: Roop Nagar cases 83 (SC). The Hon'ble Apex court observed that where the sample changed several hands before reaching the public analyst under the Opium Act, 1878 and none of the concerned witnesses was examined by the prosecution, inevitable effect of that omission would be that the prosecution has failed to rule out the possibility of the samples being changed or tampered with.

(e) In Amarjit Singh & Another Vs. State (Delhi Admn.), 1995 JCC 91, it was held that it was necessary for the prosecution to prove that CFSL-form containing specimen seals which was duly filled at the time of taking the samples also remained intact and in the absence of the said evidence it cannot said that prosecution has proved its case beyond reasonable doubt.

(f) In Avtar Singh and others Vs. State of Punjab, (2002) 7 Supreme Court Cases 419, it was held that possession of the contraband must be conscious possession. A person who was merely sitting on the bags in the absence of proof of anything more, could not be presumed to be in possession of goods. A question must be asked in the statement u/s 313 CrPC that they were in possession of the contraband on which they were sitting.

::22::

PS: Roop Nagar

(g) In Dharambir @ Dharma Vs. State of Haryana, 2009 (2)56 CALT PUN & HAR. HC 830 it was held that :-

" Narcotics Drugs & Psychotropic Substances Act, 1985 u/s 15- The appeal has been filed against conviction and sentence- Held, Investigating Agency that no independent witness was examined, even though they were available, no record of the witness was kept who were requested and who refused to be associated during investigation, along with the fact that there is a delay of sending sample to the Forensic Science Laboratory, Madhuban and the person to whom seal was handed over has not been examined, especially the prosecution version that on seeing the police party accused had thrown 7 kgs. Plastic bag into bushes being unnatural, improbable and unconvincing, only to deny compliance of Section 50 of the Act, I am inclined to grant benefit of doubt to the appellant as a matter of abundant caution.

9) Ld Addl. PP for the State on the other hand argued that the contradictions pointed out by the Ld defence counsels in the deposition of the witnesses are minor in nature, all the witnesses have uniformly deposed with regard to the recovery of the contraband from the accused persons and their testimony is not assailed in their cross-examination. Ld Addl. PP for the State further argued that the witnesses have fully supported the prosecution case and has successfully with-stood the test of ::23::

PS: Roop Nagar cross-examination. There is nothing to conclude that they are planted witness as their deposition is quite natural and trustworthy. Regarding the non joining of public witnesses, it is argued that the IO had made sincere efforts to join the public person in the raid but they had refused to join the raid and the explanation in that regard is satisfactory. Ld Addl. PP for the State therefore argued that the prosecution has succeeded in proving its case beyond reasonable doubt and accused persons are liable to be convicted.

10) I have considered the rival submissions made at bar and gone through the record of the case.

11) It is a fact that police had prior information against the accused persons, yet it had not joined independent witnesses in the raid or during the investigation against the accused persons. It is admitted case of the prosecution that the recovery was effected from a place which was quite near to a petrol pump as well as a police booth. All the witnesses have stated that nobody from the petrol pump or from the police booth was asked by the IO to join the investigation. PW5 ASI Neeru deposed that nobody from the petrol pump was asked to join the investigation. PW8 ASI Zile ::24::

PS: Roop Nagar Singh 2nd Investigating Officer in his cross-examination states one or two public persons were present on the spot. I had not asked them to join the proceedings. PW9 ASI Phool Singh, Investigating Officer has admitted in his cross-examination that there was a petrol pump on the other side of the road and there was police booth on the opposite side of the road where the accused were apprehended. It is thus established that apprehending of the accused persons and the alleged recovery has been witnessed by passers-by and the public persons were available in numbers on the spot. In order to give credence to the alleged recovery, the Investigating Officer could have called atleast some one from the police booth opposite to the place of apprehending of the accused persons. These facts shows that the Investigating Officer has not made sincere efforts in joining the public witnesses and the explanation in that regard is not found to be satisfactory. Reliance can be placed upon 84 (2000) DLT 244 High Court, Delhi where it was held that :-

If no sincere efforts were made by the IO to associate any independent witness with the raiding party, despite the road being the busy road and the alleged recovery must have been witnessed by many passer byes, the seizure and search become doubtful.

::25::

PS: Roop Nagar

12) It is settled law as laid down in Govt. of NCT of Delhi Vs. Sunil (2001) 1SCC 652 that the conviction can be based on the testimony of official witnesses without any independent corroboration but an onerous duty is cast upon the Court to scrutinize their testimony carefully.

13) I have carefully scrutinized the testimonies of the official witnesses but I am not convinced that conviction can be based in this case on their testimony without any independent corroboration. It is so, because for the reasons above discussed, the IO has not made sincere efforts to join the public witnesses or the persons from the nearby Police Booth so as to give credence to the prosecution story.

14) Further, the evidence of the witnesses was not found to be coherent and consistent as the same suffers from various contradictions on material points. The witnesses have contradicted each other on the point of accompanying of secret informer with them; on bringing of weighing scale and weights and IO bag; on preparing of the memo at the time of return of the seal to the IO by PW6 Ct Satbir; on the point of filling of FSL-form ::26::

PS: Roop Nagar because PW6 stated that four FSL-forms were prepared, SHO stated only one FSL-form was prepared and W/HC PW5 Neeru stated that 2 FSL-forms were filled up; on scribing of the FIR number on all the thing because PW7 Inspector S. K. Meena stated that he scribed the FIR on all the thing whereas PW6 Ct. Satbir stated that FIR was scribed by the IO; on return of the seal by Ct. Satbir who stated that he had returned the seal to the IO on next day whereas IO stated that seal was taken from Ct. Satbir on reaching the Police Station.

15) Another glaring discrepancy in the prosecution case is that PW6 Ct. Satbir who was handed over seal after use has returned the same to the IO on the next day and it was also admitted by the IO that he had received the seal from Ct. Satbir on reaching the Police Station. Handing over of the seal on the same day to the IO is a circumstance which cast a shadow of doubt to the prosecution case because the tampering of the samples while seal remained with the IO before the same were sent to the FSL, is not ruled out.

In 66(1997) DLT 826 titled Modh.Saleem vs. Delhi, it was held that :-

Normally, the seal should be handed ::27::

PS: Roop Nagar over to the IO only after the case property has been despatched to CFSL. In the non-observance of the safeguards by (i) not handing over seal to the independent witness, and

(ii) further to deliver the seal to the independent witness, and (iii) further to deliver the seal to SHO before the dispatch of the sample to CFSL, the possibility of seal being tampered with and the substance being changed and subsequently containers being resealed cannot be ruled out.

16) Another glaring discrepancy in the prosecution case is that PW6 Ct. Satbir was cross-examined by Ld Addl. PP for the State because he was not able to state all aspect of investigation joined by him and he could state some of the material facts with the help of leading question suggested by the Ld Addl. PP for the State .

17) Another discrepancy in the prosecution is that PW5 ASI Neeru in her cross-examination stated that polythene were taken from the shops nearby. No such shopkeeper was cited as witness by the IO .

18) From the above discussion, I am of the considered opinion that in view of the above discrepancies and inconsistency in the testimony of official witnesses as pointed above, the conviction ::28::

PS: Roop Nagar against the accused persons cannot be based on the sole testimony of official witnesses. For the above reason, the case of the prosecution is not proved against the accused persons beyond reasonable doubt. They are accordingly acquitted from the charges framed against them. Their bail bonds cancelled. Surety bonds discharged. Case property be destroyed after the expiry of period of appeal.

File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT ON 21/8/2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE:NDPS (WEST)DELHI ::29::