Delhi District Court
Sc No.41A/12 State vs . Safiq-Ul-Islam on 30 January, 2016
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IN THE COURT OF SHRI A.K.KUHAR
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
S.C. No. 41A/12
FIR No. 219/12
u/s 20 (b) (ii) (B) NDPS Act
PS-Amar colony
State
VERSUS
Safiq-Ul-Islam Khokan
S/o Sh. Alamgir Sheikh
R/o H No. 433, Phase-III,
Madan Pur Khadar, New Delhi.
Computer ID No: 02406R0198712012
Date of institution : 04.08.2012
Date of reserving judgment : 29.01.2016
Date of pronouncement : 30.01.2016
Decision : Acquitted.
JUDGMENT
BRIEF FACTS OF THE CASE 1.0 The prosecution case is that on 27.06.2012 ASI Subhash Chander alongwith HC Ashwini Dixit, Ct. Anil Kumar, all posted at Police Station (PS)-Amar Colony, was present near the Main Gate, Okhla Mandi, Police Booth at about 3:50 pm. At that time a secret informer met ASI Subhash Chander and informed that one person would be coming from the side of Modi Flyover and would go towards Captain Gaur Marg and would be carrying Ganja. ASI Subhash Chander conveyed this information to Inspector Virender Singh, SHO of PS-Amar Colony, who passed this information to ACP Harcharan Verma. On receipt of direction to take action, ASI Subhash Chander disclosed about the secret information to Ct. Anil SC No.41A/12 State Vs. Safiq-Ul-Islam 2 Kumar and HC Ashwini Dixit and alongwith the informer proceeded towards the direction where the accused was expected to come. On the way he asked 4-5 passersby to join the raid. At about 4:05 pm, the accused was found coming at Captain Gaur Marg near Modi Flyover with a plastic katta in his right hand. He was pointed out by the secret informer. The accused was apprehended. He was apprised about his legal right to be searched before a Gazetted Officer or a Magistrate. However, he declined for his search before a Gazetted Officer or a Magistrate. A notice u/s 50 of NDPS Act was served upon the accused, on which the accused gave his reply of refusal.
1.1 ASI Subhash Chander checked the plastic katta tied with a rope, which was found containing some leaves, seeds and branches and it was emanating smell of Ganja and it weighed 10 Kg. ASI Subhash Chander, thereafter, took out 1 Kg of Ganja from the Katta as a sample and kept it in a separate plastic polythene, which was was converted into a cloth pulinda. The sample parcel was sealed with the seal of SC. The remaining Ganja was kept in the same plastic Katta, which was also sealed with the seal of SC. FSL form was filled up and the seal after use was handed over to HC Ashwini Dixit. The rukka was prepared by SI Subhash Chander and it was sent alongwith the case property, sample and seizure memo to PS-Amar Colony through Ct. Anil. Ct. Anil was directed to hand over the rukka to Duty Officer (DO) and case property, sample and documents to SHO of PS-Amar Colony.
1.2 After registration of the FIR, the investigation was assigned to SI Mahender Singh, who reached at the spot and prepared site plan at the instance of ASI Subhash Chander and he arrested the accused. He made enquiry from the accused and recorded his disclosure statement.
1.3 The information u/s 57 of NDPS Act regarding the arrest SC No.41A/12 State Vs. Safiq-Ul-Islam 3
of the accused and the recovery of contraband substance was prepared by SI Mahender Singh, which was forwarded to ACP Harcharan Verma through Inspector Virender Singh, SHO. 1.4 The case property sample and seizure memo were deposited by Inspector Virender Singh with the MHC(M), who made entry in register no. 19 at serial no. 1053/12. The sample was sent to FSL, Rohini for examination. The FSL, Rohini gave the report dated 26.07.12 as per which the sample was found containing Cannabis (Ganja).
1.5 On the basis of these allegations and the evidence collected during the investigation, the chargesheet was filed in the Court. The accused was supplied the copies of documents and chargesheet. He was charged for offence u/s 20 (b)(ii)(B) of NDPS Act with the allegations that he was found in possession of 10 Kg Ganja without any permission or licence and in contravention of the provisions of Section 8 (c) of NDPS Act. The charge was framed and read over to the accused by the Ld. Predecessor on 25.09.2012, the accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE 2.0 The prosecution to prove its case qua both the accused has examined following witnesses :
3.1 PW1 is ASI Kailash Chand Sharma. He was the reader to the ACP, Lajpat Nagar and he deposed that the information u/s 57 of NDPS Act (Ex. PW1/A) was received in the office and entry was made with regard to receiving of this information vide DD No. 11 dated 28.06.2012 Ex. PW1/A. 3.2 PW2 is SI Mahender Singh. He was the Investigation Officer.
3.3 PW3 is HC Manbir Singh. He was Duty officer and he deposed that he received rukka sent by ASI Subhash Chander at about 6:10 pm, on which he registered the FIR Ex. PW3/A. He SC No.41A/12 State Vs. Safiq-Ul-Islam 4 deposed that FIR was computer typed and he also gave a certificate under Section 65-B of Indian Evidence Act Ex. PW3/B in this regard.
3.4 PW4 is Inspector Virender Singh, who was the SHO of PS-Amar Colony. He deposed that on 27.06.2012 ASI Subhash Chander had informed telephonically about the secret information at about 3:50 pm with regard to supply of Ganja by one person. He deposed that at about 6:20 pm Ct. Anil had came to PS and had handed over him two sealed parcels alongwith seizure memo and the FSL form. He deposed that he affixed seal of VS on the Parcel and the FSL form. He deposited the case property, sample and the documents with the MHC(M), who had made entry in register no. 19 vide Ex. PW4/A. 3.5 PW5 is HC Sunda Ram. He was the MHC(M) at PS-Amar Colony. He has deposed that on 27.06.12 Inspector Virender Singh had deposited case property. He also deposed that on 17.07.2012, the sealed parcel of sample was sent to FSL, Rohini through Ct. Jogesh on 06.08.2012. The FSL result was received from the FSL and he made entry in the register no. 19 vide Ex. PW4/A. 3.6 PW6 is Ct. Jogesh Rai. He had taken sample of case property from the MHC(M) and deposited the same to the FSL, Rohini alongwith FSL form.
3.7 PW7 is Ct. Anil Kumar, the recovery witness. 3.8 PW8 is ASI Subhash Chander, who was heading the police party, which apprehended the accused. 3.9 PW9 is ACP Harcharan Verma. He directed the SHO of PS-Amar Colony to give further direction to the IO for conducting raid as per the secret information.
3.10 PW10 is HC Ashwini Dixit, who was also the member of the police party, which had apprehended the accused.
4.0 All the incriminating evidence on record was put and
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explained to the accused, which he denied as false and incorrect. When he was examined u/s 313 Cr.P.C. he submitted that he was lifted from his house no. 433, Madanpur Khadar, Phase-3, New Delhi and no recovery was effected from his evidence. 5.0 I have heard arguments advanced by Ld. Additional Public Prosecutor (Addl. PP) for the State and Sh. A.K. Mishra, Ld. counsel for accused. I have gone through evidence on the record carefully.
6.0 The prosecution case rests entirely upon the statements of the prosecution witnesses. As has been observed in the case of Rajesh Kumar @ Sanjay vs. State of NCT of Delhi 2014 (3) JCC (Narcotics) 156 there is no rule of law that public witness should be joined in every eventuality, but at the same time it is also true that joining independent public witness is not a mere formality. When the police/official witnesses are not supported by independent source, the statement of prosecution witnesses need to be examined very zealously, so as to exclude every chance of false implication. Thus, in the case where there is no corroboration to the statement of police official from any independent source, the testimony of police official needs to be scrutinized with great care to rule out any chance of false implication.
7.0 Coming to the present case, the evidence on the record is found deficient, inconsistent and discrepant in many respects and I have no hesitation to hold that prosecution was not able to prove its case against the accused beyond reasonable doubt. 8.0 The prosecution case is that the accused was apprehended on the basis of an information received by ASI Subhash Chander. PW8 ASI Subhash Chander, PW7 Ct. Anil Kumar and PW10 HC Ashwini Dixit were present at the Main Gate, Okhla Mandi when the information was received. The statements of these three witnesses show that all of them were present at the time of SC No.41A/12 State Vs. Safiq-Ul-Islam 6 apprehension of accused and the recovery of Ganja from his possession. First of all a notice u/s 50 of NDPS Act was served upon the accused. The said notice is Ex. PW8/A. The accused gave his reply, which is Ex. PW8/B. Thereafter, the search was conducted and on recovery of Ganja the seizure memo Ex. PW7/A was prepared. Thereafter, other proceedings were conducted on the spot and the rukka Ex. PW8/B was prepared. As per the case of the prosecution, therefore, the notice u/s 50 of NDPS Act Ex. PW8/A, reply ( also exhibited as Ex. PW8/B) thereof by the accused, the seizure memo Ex. PW7/A and the rukka Ex. PW8/B were prepared in the presence of all these three witnesses. However, the prosecution was not able to convince the Court as to who had prepared all these documents. All the three witnesses are giving different versions. PW8 ASI Subhash Chander has stated that the notice u/s 50 of NDPS Act Ex. PW8/A was written by Ct. Anil on his dictation. The reply to the notice Ex. PW8/B was also written by Ct. Anil. Ct. Anil (PW7) is, however, silent in this regard. He nowhere says that he has written any such documents. Rather in his cross-examination, he has submitted that the seizure memo Ex. PW7/A was prepared by ASI Sunbash Chander. PW8 ASI Subhash Chander deposed that all the documents i.e. notice u/s 50 of NDPS Act Ex. PW8/A, seizure memo Ex. PW7/A, reply to notice u/s Ex. PW8/B was prepared by PW7 Ct. Anil. PW10 HC Ashwini Dixit, who was member of the raiding party and was present during the proceedings, has however, different story to tell. He deposed that SI Subhash Chander prepared notice u/s 50 of NDPS Act and he himself written the notice. He further said that the seizure memo Ex. PW7/A was also written by SI Subhash Chander in his own handwriting. He further said that the reply to the notice u/s 50 of NDPS Act Ex. PW8/B was written by the accused. He further said that rukka Ex. PW8/B (also Ex. PW8/B) was written by ASI Subhash Chander. Now as per the statement of PW8 SC No.41A/12 State Vs. Safiq-Ul-Islam 7 ASI Subhash Chander, seizure memo Ex. PW7/A was prepared by Ct. Anil on his dictation. The perusal of rukka (also Ex. PW8/B) would show that both are in the same handwriting. None of the witnesses has said that the rukka was written by Ct. Anil. Ct. Anil (PW7) has nowhere said that he had ever written any documents. There is no consistency in statement of PW7, PW8 and Pw10 on preparation of documents. Therefore, the very foundation of the prosecution case is shaken by the depositions of these witnesses and these contradictions make the case of the prosecution highly doubtful. There cannot be so much variations in the statement of three witnesses, who were witnesses to the proceedings.
9. Further, it is noticed that ASI Subhash Chander had weighed the plastic Katta allegedly carried by the accused with a spring actuated weighing scale. PW7 Ct. Anil is not aware from where this weighing scale was procured. He is not sure whether this weighing scale was with the ASI Subhash Chander or was procured from somewhere else. ASI Subhash Chander (PW8) states that this spring actuated weighing scale was with him. It means that ASI Subhash Chander was knowing in advance that he has to investigate some case under the NDPS Act and that is why he was carrying a weighing scale. The Court is not informed whether such weighing scale is also a part of investigating kit of police officers.
10. Another circumstance which goes against the prosecution case is that there is no proof that the FSL form was sent to FSL, Rohini alongwith the sample. The sample was sent to the FSL on 17.07.2012. The MHC(M) PW5 HC Sunda Ram stated that Ct. Jogesh had taken the sample alongwith FSL form to the FSL and he made entry in register no. 19 at point X on Ex. PW4/A. However, this entry would show that there is no reference of sending of FSL form alongwith the sample. Even the Road Certificate Ex. PW5/A is silent in this regard.
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11. Ld. counsel for the accused has argued that the prosecution has not been able to establish a complete chain of link evidence. He submitted that the prosecution has failed to prove that the sample and the seal there of remained intact till they reached the FSL, Rohini. It is submitted that the prosecution had not only to prove that FSL form was deposited with the Malkhana, but it has also to prove that the sample remained intact till they reached FSL. Therefore, it is necessary for the prosecution to establish that the FSL form bearing the specimen seal reached the FSL alongwith the sample. Since there is no documents to show this, the benefit must go to the accused. He has relied upon the judgment in the case Amarjit Singh vs. State 1995 JCC 91 and also of Habib vs. State 1996 JCC 25.
12. The prosecution cannot escape from its burden to establish beyond reasonable doubt that the sample alongwith FSL form were sent to the FSL. Once a doubt is created in this regard, the benefit has to go to the accused. In the present case, there is no documentary proof to show that the FSL form was sent to FSL, Rohini. The accused is, therefore, is entitled to benefit of doubt.
13. Apart from this there is discrepancy in the statement of the witnesses with regard to the distance between the place where secret information was received and the place where the accused was apprehended. PW8 SI Subhash Chander deposed that the distance between the place of receiving the information and the place where the accused was apprehended was about 150 to 200 meters. PW7 deposed that the distance was about 700 to 800 meters while PW10 deposed that the distance was about 500-700 meters. PW10 has deposed that the informer had pointed out the accused when he was at a distance of 10 meters from the police party. It is admitted by the prosecution witness that all of them were in uniform. The accused was also able to see the police party SC No.41A/12 State Vs. Safiq-Ul-Islam 9 at a distance of 10 meters. If the accused was carrying some contraband substance, then it is very unnatural that he would not try to hide himself or to escape from the spot on seeing the police officials. Therefore, the conduct of the accused as shown by the prosecution is very unnatural.
14. It is well settled that the onus of proving its case beyond reasonable doubts is always upon the prosecution and in a case under an enactment like the NDPS Act laying down severe punishments, this onus becomes more high in degree and the duty of the Court is to ensure that the provisions of such an enactment are complied with strictly and a higher degree of assurance is required for convicting the accused. In case State of Punjab vs. Baldev Singh (1999) 3 SCC 977, it was held that it must be borne in mind that severe the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. In case of Mausam Singh Roy vs. State of West Bengal (2003) 12 SCC 377, it was observed that it is settled principle of criminal jurisprudence that the more serious the offence is, the stricter is the degree of proof, since a higher degree of assurance is required to convict the accused.
15. In view of the above discussion, I have come to the conclusion that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Hence, the accused is acquitted of the charge u/s 20 (b) (ii) (B) of NDPS Act.
16. Accused has already furnished bond bond in terms of Section 437-A Cr.P.C.
17. File be consigned to Record Room after necessary compliance Announced in the open Court on (Ajay Kumar Kuhar) 30th January, 2016 Special Judge (NDPS) South District: Saket SC No.41A/12 State Vs. Safiq-Ul-Islam