Delhi District Court
The State vs Kolai Ram S/O Sh Modi Ram R/O on 26 February, 2008
IN THE COURT OF SH BABU LAL ADDL SESSIONS
JUDGE/SPECIAL JUDGE (NDPS)DELHI
SC No 36/07
The State Versus Kolai Ram S/o Sh Modi Ram R/o
H.N. 103 Village Tamkuhah, PS
Dhanaha, Madhubani, Distt North
Champaran, Bihar.
FIR No 100/07
P.S. Kashmere Gate
U/s 20/61/85 NDPS Act.
Arguments heard on 25.02.2008
Judgment pronounced on 26.02.2008
JUDGMENT
1. Prosecution has filed the present challan against accused Kolai Ram U/s 20/61/85 of Narcotic Drugs and Psychotropic Substances Act ( hereinafter referred to as the Act). Case of the prosecution in brief is that on 28.02.07 at about 3.00 p.m. Ct Amit Kumar was on checking duty at In Gate ISBT, DFMD when accused 1 allegedly came there. He was allegedly carrying white coloured plastic bag on his shoulder. On seeing the police, accused is alleged to have started retreating. On suspicion, Ct Amit Kumar allegedly apprehended the accused and checked the bag which found to contain Ganja in white polythene and this fact was also confirmed by the accused. In the meantime, ASI Manohar Lal is alleged to have also reached there at 3.15 p.m. He is alleged to have requested 4-5 public persons to join the raiding party but none of them agreed and went away. He is alleged to have given notice U/s 50 of the Act to the accused and apprised him of his legal right that since Ganja had been recovered from his possession and he could be in possession of more contraband, therefore, his search was required to be taken and if he so desired, his search could be taken in the presence of a Gazetted Officer or a Magistrate. But he is alleged to have declined this offer. Thereafter bag carried by the accused was checked and it was found to contain a polythene 2 having Ganja. Ganja was allegedly taken out and was weighed and it came to 16 Kg out of which 1 Kg was taken as sample and was converted into a pulanda. Remaining Ganja was converted into another pulanda. Form FSL is alleged to have been filled in. Thereafter both the pulandas and form FSL are alleged to have been sealed with the seal of MLJ. Case property is alleged to have been seized. The rukka was allegedly prepared and case was got registered by sending Ct Amit Kumar to the PS with rukka and case property with directions to hand over the rukka to duty officer and case property along with form FSL to SHO. After registration of the case, ASI Manohar Lal is alleged to have prepared site plan, arrested accused, conducted his personal search, recorded statement of the witnesses, sent information U/s 50 of the Act to Superior Officers of the Police, got the sample sent to FSL. After obtaining report of FSL, he is alleged to have tendered the same in evidence. After completion of the investigation, he filed the chargesheet in the court. 3
2. On appearance, accused was supplied with copies of the challan and documents filed therewith as required under Section 207 Cr.P.C.
3. Charge U/s 20 of the Act was framed against the accused Kolai Ram to which he pleaded not guilty and claimed a trial.
4. In order to bring home guilt of the accused, prosecution in all has examined as many as seven witnesses out of which PW-6 Ct Amit Kumar and PW-5 ASI Manohar Lal are witnesses of alleged recovery and rest of witnesses are witnesses of investigation.
5. The accused was examined under Section 313 Cr.P.C. His case is that he is innocent and has been falsely implicated in this case.
6. PW- 6 Ct Amit Kumar in his testimony has stated that on 28.02.07 at about 3.00 p.m. he was on checking duty at In Gate ISBT, DFMD when accused is deposed to have come there. He is deposed to have been carrying white coloured plastic bag on his shoulder. On seeing the 4 police, accused is deposed to have started retreating. On suspicion, he is deposed to have apprehended the accused and checked the bag which found to contain Ganja in white polythene and this fact was also confirmed by the accused. In the meantime, ASI Manohar Lal PW-5 is deposed to have also reached there at 3.15 p.m. ASI Manohar Lal is deposed to have requested 4-5 public persons to join the proceedings but none of them agreed and went away. He is deposed to have given notice U/s 50 of the Act Ex PW5/B to the accused and apprised him of his legal right that since Ganja had been recovered from his possession and he could be in possession of more contraband, therefore, his search was required to be taken and if he so desired, his search could be taken in the presence of a Gazetted Officer or a Magistrate. But he is deposed to have declined this offer vide his reply Ex PW5/C. Thereafter bag carried by the accused was checked and it was found to contain a polythene having Ganja. Ganja is deposed to have been taken out and was 5 weighed and it came to 16 Kg out of which 1 Kg was taken as sample and was converted into a pulanda. Remaining Ganja was converted into another pulanda. Form FSL is deposed to have been filled in. Thereafter both the pulandas and form FSL are deposed to have been sealed with the seal of MLJ. Case property is deposed to have been seized vide memo Ex PW5/G Thereafter, rukka is deposed to have been prepared and case was got registered by sending him to the PS with rukka and case property with directions to hand over the rukka to duty officer and case property along with form FSL to SHO. After registration of the case, ASI Manohar Lal is deposedto have prepared site plan. Accused is deposed to have been arrested vide memo Ex PW5/E and his personal search was carried out vide memo Ex PW5/F. ASI Manohar Lal is deposed to have recorded statement of the witnesses, sent information U/s 50 of the Act to Superior Officers of the Police, got the sample sent to FSL. He has identified plastic bag as Ex P-1, transparent 6 polythene as Ex P-2 and Ganja as Ex P-3. He has also identified sample Ganja as Ex P-4 and sealing cloth as Ex P-5.
7. Mutatis mutandis PW-5 ASI Manohar Lal has also deposed to the same effect on all the material facts, therefore, it will be a futile exercise to discuss his testimony here for the reason of brevity.
8. PW-1 is Inspector Vinod Kumar. On 28.2.07 he was working as SHO, PS, Kashmere Gate when Ct Amit Kumar at about 5.35 p.m. came and handed over to him two parcels and form FSL sealed with the seal of MLJ along with carbon copy of the seizure memo. He is deposed to have affixed his seal of VK on both the sealed parcels as also on form FSL and put FIR number thereon. He is deposed to have also put his signatures on parcels and form FSL. It is deposed that he called MHCM and deposited the above articles in the malkhana. He is deposed to have made DD No 24A in this regard, copy of which has been proved as Ex PW1/A. 7
9. PW-2 HC Rajesh Kumar was working as duty officer on 28.10.07( wrongly written for 28.2.07). On that day at about 5.30 p.m. He is deposed to have received a rukka mark A through Ct Amit Kmar and sent by ASI Manohar Lal on the basis of which he recorded FIR in this case. He has proved copy of the FIR as Ex PW2/B and endorsement made by him on the rukka as Ex PW2/A.
10. PW-4 Hc Laxmi Narain was working as MHCM on 28.2.2007 in PS Kashmere Gate. He has deposed that on that day Inspector Vinod Kumar, SHO had deposited two sealed parcels, one form FSL duly in malkhana vide entry No 3966 in register No 19. On 21.3.07 he is deposed to have got sent the sample parcel sealed with the seal of MLJ and VK and form FSL to FSL Rohini through Ct Neeraj Kumar. On 26.6.07 result of FSL along with pulanda containing remnants of sample is deposed to have been received in malkhana through ASI Manohar Lal. He is deposed to have deposited sample 8 parcel containing remnants in the malkhana and handed over result to ASI Manohar Lal. He is deposed to have made entry in register No 19 in this regard. He has proved copy extract of register No 19 showing above entries as Ex PW4/A. He has also proved copy of RC No 44/21 as Ex PW4/B.
11. PW-7 Ct Neeraj Kumar is deposed to have taken the sample along with form FSL duly sealed with the seal of MLJ and VK to FSL vide road certificate 41/21 and deposited it there on 21.3.07. On his return to PS, he is deposed to have handed over receipt of RC to MHCM.
12. PW-3 Hc Pardeep Kumar in his testimony has stated that report U/s 57 NDPS Act pertaining to this was received in his office on 2.3.07 vide entry at Sl No13. He has proved copy of report as Ex PW3/A and copy of diary register containing relevant entry as Ex PW3/B.
13. It has been argued by ld APP that accused was apprehended by the police and from his possession 16 Kgs of Ganja had been recovered from the bag which he 9 was carrying with him. It has been argued that as per report of FSL, contents of the sample taken from the stuff recovered from the accused have been opined to tetrahydrocannabinol which is main constituent of cannabis plant, therefore, case against the accused U/s 20 NDPS Act stands proved.
14. On the other hand, it has been argued on behalf of the accused that search in the present case was carried out by Ct Amit Kumar and recovery of Ganja was also effected by him. It is further argued that U/s 42(1) NDPS Act, Ct Amit Kumar was not competent to take search and seizure of Ganja effected by him from accused lacks sanction of law and is inherently illegal and has the effect of vitiating the proceedings. For this proposition of law, ld counsel for accused has relied upon an authority reported as V.D. Roy vs State of Kerala, AIR 2001 SC
137.
15. PW-6 Ct Amit Kumr in his testimony is specific that at about 3 p.m. accused came at in gate ISBT and on 10 seeing the police party, he is deposed to have retreated back, therefore, he was apprehended and his bag was checked which was found to contain Ganja. Therefore, it is clear that recovery of Ganja from accused was by chance. U/s 43 of Code of Criminal Procedure, any person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence and without unnecessary delay, shall make over the person so arrested to a police officer. In the present case, recovery of Ganja from accused was by chance. Immediately thereafter Ct Amit Kumar is deposed to have informed his senior office and ASI Manohr Lal arrived. He is deposed to have handed over the accused to him. ASI Manohar Lal is deposed to have served notice U/s 50 NDPS Act on the accused and effected recovery of Ganja from him. Since recovery of Ganja in the present case was effected by chance by Ct Amit Kumar, it can not be said that it was violative of provisions of Section 42(1) NDPS Act inasmuch as he 11 was competent to do so since recovery was by chance and secondly U/s 43 Cr.P.C. he was competent to apprehend the accused and hand over him to Police Officer competent to investigate the case. Therefore, argument of ld counsel for the accused is devoid of any merit.
16. It is argued that place of apprehension of accused was ISBT, Kashmere Gate where public persons were available yet no one has been joined, therefore, testimony of the police officials is not trust worthy. On the other hand, ld Addl PP for the State has argued that public persons were asked by the police to join the proceedings but they declined, therefore, non joining of any independent witness was beyond the control of police.
17. It is well settled law that it is not sine qua non to the credibility of police officials that invariably their testimony should be corroborated by independent witness. Even otherwise in Munshi and others vs. State 20 (1981) DLT (SN) 26 had observed that public generally hesitate to associate with police therefore the 12 police has to take help of person known to them or the complainant. Even otherwise, in Natho Singh vs. State AIR 1973 SC 2763 the Lordship of Hon'ble Supreme Court has held that evidence of police officials cannot be discredited in the absence of the hostility to the accused. In other authority reported as State vs. M.M. Methew AIR 1978 SC (1571) it was held that evidence of police officials cannot be branded as highly interested only on the ground that they are interested in the success of their case. Even in Appa Bhai vs State of Gujrat AIR 1988 SC 696, it has been held that civilised people are generally insensitive when a crime is committed in their presence. They keep themselves away from the court unless it is inevitable and they try to avoid to involve themselves. In the present case, place of apprehension of accused was in gate of ISBT. PW-5 SI Manohar Lal in his testimony has stated that 4-5 public persons were asked to join the raiding party but they declined to do so expressing their genuine difficulties and went away. On 13 a bus terminus, people are supposed to be in hurry to reach their destination. IO has admitted that there are stalls near the place of incident. However, he did not ask any shop keeper or stall vendor to join in the proceedings. No explanation has been given in this regard. In this case PW-6 Ct Amit Kumar has specifically stated that at the time of recovery of Ganja from accused, ASI Manohar Lal was not present at the spot. According to him he had not requested any person to join the proceedings. However, this witness in his further cross examination has stated that a private security guard deployed at ISBT was present when recovery of Ganja was effected from accused. When private security guard was available and in his presence recovery of Ganja was effected, certainly he was an independent witness who could have been joined as a witness in this case. It shows that IO ASI Manohar Lal intentionally did not join the security guard on duty in the proceedings. He even did not record his statement. No reasons have been give for 14 such an unusual conduct on the part of IO. Therefore, this is a circumstance which should be taken into account while appreciating the evidence of PW-5 and PW-6.
18. Second peculiar circumstance which casts doubt on the prosecution case is that soon after recovery, ASI Manohar Lal is deposed to have appeared at the spot. He is deposed to have recorded statement of Ct Amit Kumar Ex PW5/A and sent the same to PS for registration of the case after making endorsement Ex PW2/A thereon. Rukka Ex PW2/A was sent at 5.10 p.m. Recovery is alleged to have been effected at 3.00p.m. No explanation is forthcoming as to what was done between 3.00 p.m. To 5.10 p.m. when rukka was sent. On the basis of rukka FIR Ex PW2/B was recorded. In Ex PW2/B it has been mentioned that information was received at 5.10 p.m. and recorded in general diary as DD No 23A which shows that DD was recorded first and then FIR was recorded. First of all, FIR has to be recorded first and only then it is to be followed by a DD in the daily diary register. But 15 practice of the police in recording DD first and then recording FIR is contrary to the provisions of law as contained in section 154 of Code of Criminal Procedure. This practice has been deprecated by Hon'ble Supreme Court in Paramjit Singh vs State of Punjab, AIR 2008 SC 441 where it has been held that when any information has been received by the PS, if it discloses commission of a cognizable offence, FIR has to be straightway recorded. It was further held that practice of the police official governed by Punjab Police Rules to enter the information into daily diary of PS first and then record the FIR is contrary to provisions of Code of Criminal Procedure inasmuch as provisions of Punjab Police Rules do not override the provisions of Code of Criminal Procedure. By this method police can easily overcome the difficulty of anti dating and anti timing of the FIR. After FIR has been recorded, DD to this effect is required to be made in daily diary. Purpose of such entry in daily diary is to ensure that FIR had actually been recorded at the time 16 given in the DD entry. Therefore, in the present case, no reliance can be placed on the assertion of the prosecution that FIR was recorded on 28.2.07 at 5.30 p.m. inasmuch as distance between place of incident and PS is 1 K.M. as mentioned in the FIR, rukka was sent at 5.10 p.m., Ct Amit Kumar might have taken time to reach PS, DD No 23A was recorded first and then FIR was recorded. It does not appeal to the reasons that all these proceedings could have been completed within 20 minutes. Therefore, possibility of whole of the proceedings being conducted in the PS can not be ruled out. These are some of the infirmities which cast doubt on the veracity of the prosecution case and it will be most unsafe to convict the accused on the basis of evidence adduced by the prosecution.
19. It is further argued that it is duty of the prosecution to rule out the possibility of sample being changed or tampered with and if same has not been ruled out, accused is entitled to benefit thereof. On the other 17 hand, ld Addl PP has argued that prosecution has examined all the witnesses who might have handled the sample, therefore, possibility of sample being changed or tampered with stands ruled out.
20. PW-5 ASI Manohar Lal in his testimony has stated that after recovery of 16 Kg Ganja, he had taken out 1 Kg Ganja as sample and sample Ganja and remaining Ganja were converted into two separate pulandas which were sealed with the seal of MLJ. He is deposed to have also filled in form FSL and sealed the same with above seal and handed over both the pulandas and form FSL to Ct Amit Kumar with directions to hand over the same to SHO. According to PW-6 Ct Amit Kumar, he hand handed over two pulandas and from FSL to SHO along with form FSL having aforesaid seal impressions. SHO has been examined as PW-1 Inspector Vinod Kumar. He has stated that on 28.2.2007 Ct Amit Kumar had produced two sealed parcels sealed with the seal of MLJ, FSL form and carbon copy of 18 seizure memo. He is deposed to have affixed his seal of VK on both the sealed parcels as also on FSL form, put FIR number on them and signatures and deposited the same in malkhana. MHCM is deposed to have made entries in register No 19. He is deposed to have also lodged DD No 24A in this regard copy of which has been proved as Ex PW1/A. MHCM in this case has been examined as pW-4. PW-4 Hc Laxmi Narain in his testimony has deposed that on 28.2.2007 SHO Inspector Vinod Kumar had deposited two sealed parcesl, one FSL form and copy of seizure memo in PS Malkhana and he made in register No 19. Copy of the malkhana register has been proved as Ex PW4/A. It is, therefore, clear that PW-1 Inspector Vinod Kumar does not specify if form FSL was also sealed with the seal of MLJ. Secondly MHCM PW-4 Hc Laxmi Narain does not say if pulandas were sealed with the seal of MLJ and VK. He does not say if form FSL had seal impression of MLJ and VK. If I peruse Ex PW4/A i.e. copy of register No 19, I find that 19 it is nothing but reproduction of seizure memo which only narrates that two pulandas and one FSL form sealed with the seal of 'MLJ' were deposited. There is no mention of the fact in Ex PW4/A if pulandas were also sealed with the seal of VK. Therefore, version of PW-1 Inspector Vinod Kumar is not supported by Ex PW4/A that two pulandas and form FSL sealed with the seal of MLJ and VK were deposited in the malkhana.
21. Next step taken by MHCM was sent send the sample to FSL for chemical analysis. PW-4 Hc Laxmi Narain has further stated that on 21.3.07 he had sent one sample parcel sealed with the seal of MLJ and VK and one FSL firm to FSL through Ct Neeraj Kumar. Ct Neeraj Kumar has been examined as PW-7. According to him one sample pulanda and firm FSL sealed with the seal of MLJ and VK were taken by him to FSL vide RC No 41/21 on 21.3.07. He has proved copy of RC as Ex PW4/B. If I peruse copy of RC Ex PW4/B, I find that there is no mention that sample pulanda sealed with the 20 seal of MLJ and VK was accompanied by any form FSL. There is an endorsement at point Y in Ex PW4/A regarding sending of the sample to FSL. In this endorsement, it is mentioned that sample pulanda and FSL form sealed with the seal of MLJ and VK were sent to FSL through Ct Neeraj Kumar on 21.3.07. When there is nothing in Ex PW4/A that sample and FSL form were sealed by the SHO Inspector Vinod Kumar with his own seal when deposited in the malkhana, how his seal impression of VK came to be present on sample and form FSL when sent to FSL. Even otherwise Ex PW4/B i.e. copy of RC does not support the version of MHCM and Ct Neeraj Kumar that FSL form had also been sent along with sample pulanda. These are some of the material discrepancies in the testimony of various witnesses examined by the prosecution. It is not clear that sample and FSL form when deposited in the malkhana were having both the seals of MLJ and VK. Even there is no mention of sending of FSL form to FSL in Ex PW4/B. 21 Therefore, facts brought on record do not rule out the possibility of sample being changed or tampered with in the malkhana. In other words, prosecution has not ruled out the possibility of case property and sample being changed or tampered with in the malkhana. It also does not stands proved on record that seal on the sample as well as on FSL form remained intact from the time they were deposited in the malkhana till they were sent to FSL. These are some of the circumstances which create a doubt about veracity of the prosecution case.
22. In view of reasons given above, I, therefore, hold that it will be most unsafe to rely upon the testimony of prosecution witnesses. Accordingly I come to the conclusion that that prosecution has failed to prove its case against accused beyond reasonable doubts. After giving benefit of doubt, accused Kolai Ram is accordingly acquitted. He be set at liberty forthwith, if not required in any other case.
22 Announced on the Open Court on 26.02.08 (BABU LAL) ASJ/SPL. JUDGE( NDPS) DELHI 23