Delhi District Court
State vs . 1. Major Singh on 1 April, 2011
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.: 04/2010
Unique ID No.: 02404R0063162010
STATE VS. 1. MAJOR SINGH
S/o Santokh Singh,
R/o Plot No. 6, Shri Kant Wali
Gali, Badli Village, Delhi.
Permanent address: Village
Banwalipur, PS Tarantaran,
Anritsar, Punjab.
2. SUKHVINDER SINGH
S/o Santokh Singh,
R/o Kali Telwali Gali,
Chandagi Ram Ka Makan, Badli
Village, Delhi.
Permanent address: Village
Banwalipur, PS Tarantaran,
Anritsar, Punjab.
FIR No.: 475/06
PS: S.P. Badli
Under Sec. 15 of NDPS Act
Date of Institution: 18.03.2010
Date of conclusion of Arguments: 31.03.2011
Date of pronouncement of Judgment: 01.04.2011
JUDGMENT
1 Both the accused have been sent up to face trial for State Vs. Major Singh and Sukhvinder Singh page 1 of 15 commission of offences u/s 15 of NDPS Act.
2 Briefly stated, case of prosecution, is to the effect that on 10.06.2006, SI Jagdish Rai, Ct. Krishan Kumar and Ct. Rajesh Kumar of PS S.P. Badli were on routine patrolling duty and while patrolling, they reached at Peepal Mohalla, Badli Village. They saw two persons coming from the opposite direction. They both were on foot and were carrying one white color plastic katta each on their respective shoulders. On noticing the police party, they retreated swiftly and on the basis of suspicion, they both were chased and apprehended then and there in the same street. Their names and addresses were ascertained and both the said kattas were opened and checked and were found containing post powder (bukhi). Katta, which was in the possession of accused Sukhvinder Singh, was found containing 11 packets and the katta of accused Major Singh was found containing 10 packets. SHO was informed and Ct. Rajesh Kumar was sent to bring weighing machine who brought the same. It was found that each packet was having weight of 1 kg and thus, there was recovery of 10 kg of bukhi from accused Major Singh and 11 kg from accused Sukhvinder Singh. In the meanwhile, SHO also arrived at the spot and one of the packet, as it is, recovered from the possession of accused Major Singh and one of the packet, as it is, recovered from the possession of accused Sukhvinder Singh was separated for sample purpose State Vs. Major Singh and Sukhvinder Singh page 2 of 15 and separate pullandas were prepared. Remaining quantity was also taken in the possession and sealed. Requisite documentation was done at the spot. Notice u/s 50 NDPS Act was also served upon the accused persons. Fact remains that no further objectionable item was recovered from their personal search. Disclosure statements of both the accused were recorded and they both claimed that they were in the business of illegal sale of post powder and had collected money thereby which they could get recovered from their respective houses. According to police, from the house of accused Major Singh, Rs. 1,25,000/ and from the house of accused Sukhvinder Singh, Rs. 11,300/ was recovered. Such money was derived by them by selling post powder. It is in these circumstances that the accused have been chargesheeted and arrested.
3 It would be curious to know that chargesheet was filed in the court as late as on 18.03.2010. Both the accused were ordered to be charged u/s 50 of NDPS Act vide order dated 08.09.2010. They both pleaded not guilty and claimed trial. 4 Prosecution was directed to adduce evidence and has examined nine witnesses viz. PW1 HC Chander Mohan (Duty Officer and part MHC(M)), PW2 Ct. Krishan Kumar (recovery witness), PW3 Ct. Rajesh Kumar (recovery witness), PW4 State Vs. Major Singh and Sukhvinder Singh page 3 of 15 Inspector Nageen Kaushik, PW5 S.C. Batra (ACP, Narela), PW6 HC Virender (official who had taken the pullandas to FSL), PW7 Ct. Manjeet (official who had collected the result from FSL), PW 8 Inspector M.C. Meena (the then SHO, PS S.P. Badli) and PW9 SI Jagdish Rai (Investigating Officer) 5 Both the accused in their respective statements u/s 313 Cr.P.C. pleaded innocence and claimed that they have been falsely implicated. They also claimed that their money had been wrongly seized by the police. Both the accused also entered into witness box u/s 315 Cr.P.C. Accused Major Singh claimed that he was having a bank account in Punjab National Bank, Taran Taaran Branch along with his wife Baljinder Kaur and he had withdrawn a sum of Rs. 80,000 from such account on 01.06.2006. He also claimed that he was a pensioner and was getting regular pension which used to be credited in his said joint account. He deposed that he had withdrawn the amount as he wanted to purchase a vehicle and his hardearned money has been wrongly and illegally seized in the present matter. Similarly, according to DW2 Sukhvinder Singh, he was running a dhaba and police had illegally seized the money which was towards the income from such dhaba business.
State Vs. Major Singh and Sukhvinder Singh page 4 of 15 6 I have heard Ms. Purnima Gupta, Ld. APP and Sh. S.K. Singh, Ld. defence counsel and carefully perused the entire material available on record.
7 Ld. APP has contended that prosecution has been able to bring home the guilt of both the accused persons beyond shadow of doubt. She has argued that all the material prosecution witnesses have graced the witness box and all the connecting links have been duly proved. She has also claimed that FSL Result also clearly indicates that the contraband in question was poppy powder. She has argued that since it was a case of chance recovery, there was no requirement of serving the accused with any notice u/s 50 NDPS Act but despite that police has shown the requisite transparency and served the accused with notice u/s 50 NDPS Act. She has also contended that accused were in the business of selling bukhi illegally and, therefore, the police was fully justified in seizing such money earned by them by selling bukhi.
8 Ld. defence counsel has, on the other hand, refuted all the aforesaid contentions and has claimed that both the accused have been falsely implicated.
State Vs. Major Singh and Sukhvinder Singh page 5 of 15 9 I have given my thoughtful consideration to the rival contentions and scanned the entire record.
10 All the three spot witnesses i.e. PW2 Ct. Krishan Kumar, PW3 Ct. Rajesh Kumar and PW9 SI Jagdish Rai have graced the witness box and I have minutely scrutinized their testimony. I have no hesitation in holding that there are material contradictions appearing on record which create a strong doubt with respect to the authenticity and veracity of the case of prosecution. 11 First of all, it is not clear as to whether the accused had started running in same direction or in opposite direction on noticing the police party. According to PW2 Ct. Krishan Kumar, the accused ran in opposite direction but IOSI Jagdish Rai has deposed that they both had run in same direction. As per the case of prosecution, both the accused were apprehended in the street in which there was a shop of Pancham Halwai and the entire writing work was done outside the shop of the Pancham Halwai. I have seen the site plan Ex.PW9/B. Undoubtedly, the place of apprehension is a crowded and busy area. Moreover, if the testimony of spot witnesses is to be believed then PW3 Ct. Rajesh Kumar was sent to bring weighing machine and he had brought the same from one nearby shop. Similarly, according to PW2 Ct. Krishan Kumar, SI Jagdish Rai had informed the SHO by making a State Vs. Major Singh and Sukhvinder Singh page 6 of 15 call from a nearby shop. Thus, there were shops situated around the place of apprehension and moreover, the writing work was done outside the shop of Pancham Halwai and despite that the police has not made any sincere effort to associate public persons during the investigation. Police officials have come up with stereotyped narration and according to them, public persons were asked but they did not join and left without revealing their names and addresses. No action was taken against them either. Such routine parrot like version does not inspire any confidence. 12 Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution and simultaneously, prosecution State Vs. Major Singh and Sukhvinder Singh page 7 of 15 has to offer satisfactory explanation for not associating independent witnesses more so when they are available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. Reference in this regard be made to one Judgment cited as Pawan Kumar Vs. The Delhi Administration, 1989 CRLJ 127 DELHI.
13 It would be also important to mention that as already noticed above, according to PW2 Ct. Krishan Kumar, IO had informed SHO by making a call from a nearby shop but IO has something else to offer as according to him, he informed the SHO from his own mobile and did not make any call from any shop. 14 Needless to say that in such type of matters, preparation of FSL Form is of prime importance. It acts as a crosscheck mechanism and enables the expert to compare the seals so as to avoid any possibility of tampering with the case property. PW2 Ct. Krishan Kumar remained at the spot throughout and the FSL Form must have been filled at the spot in his presence but in his entire examinationinchief, he did not whisper even a single word regarding preparation of any FSL Form. Ld. APP was, therefore, constrained to put leading questions to him and then wisdom State Vs. Major Singh and Sukhvinder Singh page 8 of 15 dawned upon him and he claimed that FSL Form was also filled at the spot. However, in his crossexamination, he failed to describe about such FSL Form any further as he deposed that he did not remember whether such FSL Form was of one page or of two pages or of three pages.
15 The manner of taking sample is also not appropriate. From the possession of accused Major Singh, ten packets were recovered and each packet was containing 1 kg of post powder. Instead of taking out a little bit of quantity from each of the ten packets, the Investigating Officer chose to keep aside one packet as it is as sample and that particular sample was sent to FSL for analysis. Similar procedure was adopted with respect to the other accused. Drawing of sample in the aforesaid manner was not justified and such sample cannot be said to be a representative sample. 16 In the present case, there was no real requirement of preparing any notice u/s 50 NDPS Act. It was a case of chance recovery and more so, when the recovery was from the kattas being carried by the accused, Section 50 NDPS Act did not even get attracted. However, despite that the investigating agency had chosen to prepare such notice and to serve the same to accused persons. As per the case of prosecution, separate notices were prepared and original notice was served upon each accused and State Vs. Major Singh and Sukhvinder Singh page 9 of 15 refusal endorsement was made by each accused on respective carbon copies. However, PW3 Ct. Rajesh Kumar has something else to say as according to him, composite notice u/s 50 NDPS Act was prepared. Moreover, nobody knows as to where are these original notices? These original notices, if at all had been served upon the accused, must have been recovered from their personal search but personal search memos do not reflect so. I have seen both the personal search memos i.e. Ex.PW2/E1 and Ex.PW2/F1 and there is no whisper regarding the recovery of any such notice. There is no entry in register no. 19 which might show that any such original notice was ever brought to the malkhanna. Thus, nobody knows as to where these original notices have evaporated. 17 SHO had also arrived at the spot. According to PW2 Ct. Krishan Kumar, SHO had signed notice u/s 50 NDPS Act. When SHO was asked in this regard, he claimed that he did not remember whether he had signed such notice or not. Fact remains that the carbon copy of notice does not bear signatures of SHO at all.
18 As per the case of prosecution, SHO had been entrusted with the case property and he returned to PS along with case property. DD No. 8B shows that SHO had returned at the PS at about 1 am and then he had deposited the case property at malkhanna. State Vs. Major Singh and Sukhvinder Singh page 10 of 15 However, PW3 Ct. Rajesh Kumar has something else to say in this regard. According to him, the recovered articles were put in the gypsy and the accused persons were taken to their respective homes in the same gypsy. SHO had already left the spot for PS and he had not gone with the accused to their respective houses and the testimony of PW3 Ct. Rajesh Kumar creates a doubt and it does not become clear whether SHO had taken the case property with him or allowed the same to remain in the gypsy when the accused were taken to their respective homes in that gypsy. 19 Moreover, sealing is done in order to ensure that nobody is in a position to tamper with the case property. According to PW2 Ct. Krishan Kumar, both the seals were deposited in the malkhanna by the sealing officials. Thus, he wants to indicate that SI Jagdish Rai as well as SHO had deposited their respective seals with the malkhanna after using the same but according to SHO and SI Jagdish Rai, they had not given their seals to malkhanna Incharge. According to them, they had given their seals to Ct. Krishan Kumar. Interestingly, if PW2 Ct. Krishan Kumar is to be believed then the case property was in the malkhanna and seals were there in the malkhanna and, therefore, the sanctity of sealing stood completely lost and frustrated as it was very easy to tamper with the case property when any such person was having the custody of case property as well as of the seals. State Vs. Major Singh and Sukhvinder Singh page 11 of 15 20 After the accused were apprehended from the spot, they were taken to their respective homes from where the money, which the accused had earned being in the illegal business of sale of bukhi, had been seized. PW2 Ct. Krishan Kumar had also accompanied the police team to the house of accused persons. Seizure memo of money bears his signatures as well but PW2 Ct. Krishan Kumar has not uttered even a single word in this regard. Rather according to him, both the accused, after arrest, were searched at the spot and such money was taken into possession from their respective search. He, nowhere, deposed that the police had gone to the house of any of the accused or that any such money had been recovered from the house of accused. Moreover, if PW3 Ct. Rajesh Kumar is to be believed then both the accused were having keys of their respective houses. The house were locked when the police had gone there and then the accused had handed over the keys to the police with the help of which, the houses were opened. Nobody knows as to from where such keys have entered into the scene. If at all the accused persons were having any such key, there should have been some mention regarding such key in their personal search memos. Moreover, at least after the recovery was made, the houses must have been locked again and the keys must have been deposited with the malkhanna but nothing of that sort is borne out from any document or from any entry made in register no. 19.
State Vs. Major Singh and Sukhvinder Singh page 12 of 15 21 No necessity was felt of associating any independent person at the time of entering the house of accused or at the time of alleged seizure from their house. This also creates doubt with respect to seizure.
22 Prosecution has also not been able to explain as to why there is inordinate delay in sending the sample to FSL. Alleged recovery is of 10.06.2006 and sample was sent to FSL on 06.08.2007 i.e. after approximately 14 months. There is no explanation on the record as to why sample was sent belatedly. There is no reason as to why for 14 long months, nothing was done in this regard and why no step was taken to send the sample pullanda to forensic laboratory and why the samples were allowed to be kept at malkhana for such a long duration. This was obligatory in order to avoid allegation of any false implication. In the case of MATLOOB VS. STATE OF DELHI ADMN. 67 (1997) DLT 372, it has been observed that sample should be dispatched to CFSL with least possible delay 23 Moreover, the Road Certificate which has been proved as Ex.PW1/D1 does not contain recital to the effect that any FSL Form was also sent to FSL along with sample pullanda and attempt has been made to fill up the lacunae at the time of oral deposition which does not inspire any confidence. It has been held in the case State Vs. Major Singh and Sukhvinder Singh page 13 of 15 of PREMPAL SINGH VS. STATE 87 (2007) DLT 709 that it would be difficult to uphold conviction on the basis of an opinion based on a sample whose identity was doubtful. In the said case, omission to send FSL Form along with sample for analysis to laboratory was held to create a doubt regarding the genuineness of the sample. In the case of SANJAY KUMAR VS. STATE 103 (2003) DLT (126), similar view has been echoed and it has been held that in the absence of an entry regarding FSL Form being sent along with the representative sample to FSL, the improvement being made in the oral testimony, needs to be rejected. 24 In view of my foregoing discussion, I am of the view that the case of prosecution suffers from material contradictions and infirmities and, therefore, I find it to be a fit case where accused persons deserve to be given benefit of doubt. I, accordingly give benefit of doubt to them. Both the accused, namely, Major Singh and Sukhvinder Singh are resultantly acquitted of offence under Section 15 of NDPS Act.
25 Their bail bonds are cancelled and their respective sureties stand discharged. Seized money be returned to respective accused as there exists nothing to show that such amount had been derived from sale of contraband.
State Vs. Major Singh and Sukhvinder Singh page 14 of 15 26 Case property stands confiscated and be destroyed as per rules after expiry of the period of appeal or after awaiting the outcome of appeal, as the case may be.
27 File be consigned to Record Room.
Announced in the open court st On this 01 day of April, 2011.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer District: Rohini Courts: Delhi State Vs. Major Singh and Sukhvinder Singh page 15 of 15