Delhi District Court
State vs . Rakesh Kumar Kanojia on 1 July, 2022
IN THE COURT OF SH. DEEPAK WASON:
SPL. JUDGE (NDPS): DWARKA COURTS: NEW DELHI
SC No. 748/2018
FIR No. 192/2018
PS: Dwarka Sector23
U/s. 20 (b) (ii) (B) NDPS Act
State vs. Rakesh Kumar Kanojia
Date of Institution of case:17.09.2018
Date of arguments:01.07.2022
Date on which Judgment pronounced:01.07.2022
JUDGMENT
CNR No. :DLSW010167102018
Date of commission of offence :16.07.2018
Name of complainant :HC Rajpal
Name and address of accused :Rakesh Kumar Kanojia
S/o Sh. Prem Chand
R/o Village & Post Office
Dharampur, Tehsil Kasauli,
District Solan,
Himachal Pradesh
Offence complained of :20(b) (ii) (B) of the NDPS Act
Plea of accused :Pleaded not guilty
Date of order :01.07.2022
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 16.07.2018, HC Rajpal with Ct. Bharat Singh were on patrolling duty at Marble Market, Sector8, Dwarka vide DD No. 23A and while patrolling, at about 1:30 p.m, they reached Mount Carmel School Chowk where they saw one person coming from the side of Taj Vivanta on a service lane carrying a pithu bag on his shoulder and another pithu bag on his back and was holding SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 1 of 22 another bag in his right hand and after seeing the police, the said person turned back and tried to flee away from the spot upon which he along with Ct. Bharat stopped him with the help of their motorcycle and that person revealed his name as Rakesh Kumar and on being inquired, the accused could not give any satisfactory reply. It is further the case of the prosecution that on suspicion, HC Rajpal took the cursory search of the accused, however, nothing was recovered from his cursory search and thereafter, he searched the bag which the accused was carrying on his back, however, no illegal contraband/substance was recovered from the said bag and after that, HC Rajpal took the search of the bag which was carried by the accused in his hand and during the search, five bundles tied with the help of brown (khaki tape) were recovered and on checking the same, foul smell lookalike ganja was coming from all the bundles and HC Rajpal gave the information to the police station.
2. It is further the case of the prosecution that on receiving DD No.25A regarding recovery of ganja IO/SI Rajeshwar along with Ct. Ajay reached the spot i.e Mount Carmel Chowk, Sector20/22, Dwarka Red Light where they met HC Rajpal, Ct. Bharat and accused Rakesh Kumar Kanojia and HC Rajpal informed SI Rajeshwar that they had apprehended the accused along with a whitered check bag containing five bundle/parcel of ganja. It is further the case of the prosecution that thereafter, SI Rajeshwar checked all the five bundles/parcels containing ganja and gave mark A to E. It is further the case of the prosecution that SI Rajeshwar SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 2 of 22 weighed the recovered ganja with the help of an electronic weighing machine and the weight of the recovered ganja of packet Mark A was found to be 1.026 Kg, packet Mark B was found to be 1.038 kg, Mark C was found to be 1.026 Kg, Mark D was found to be 1.004 Kg and Mark E was found to be 1.028 kg out of which he took samples from each parcel and separately sealed them in a plastic container and gave mark to the samples and all the plastic containers/box were covered with a doctor tape and the remaining ganja was kept in the same bag and sealed the said bag with the help of doctor tape covered with a bandage and all the parcels and samples were sealed with the seal of 'RP' and also seized the case property and filled FSL form. It is further the case of the prosecution that thereafter, SI Rajeshwar recorded the statement of HC Rajpal and prepared rukka and handed over the same to Ct. Ajay for registration of the FIR along with the sealed case property, carbon of seizure memo and FSL form. After the registration of the FIR, Ct. Ajay reached the spot and handed over the copy of the FIR and original rukka to SI Rajeshwar. Thereafter, SI Rajeshwar prepared the site plan at the instance of HC Rajpal, arrested the accused and conducted his personal search. It is further the case of the prosecution that SI Rajeshwar recorded the disclosure statement of the accused and thereafter, they returned to the police station and recorded the statement of witnesses. Thereafter, the accused was sent for medical examination through Ct. Ajay and after the medical examination, Ct. Ajay along with the accused returned to the police station. On the next day, the accused was produced before the Court and was sent to JC. It is further the case of SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 3 of 22 the prosecution that on 17.07.2018, SI Rajeshwar sent the intimation under Section 57 of NDPS Act to ACP and recorded the statement of the ACP and his Reader. On 24.07.2018, under the direction of SI Rajeshwar, Ct. Krishan took the exhibits from the malkhana and after depositing the same at FS: Rohini handed over the receipt to the MHC(M). Thereafter on 31.08.2018, after receiving the FSL result, SI Rajeshwar prepared the charge sheet and sent the same to the Court.
3. Vide order dated 04.10.2018, the charge for the offence under Section 20 (b) (ii) (B) of the NDPS Act was framed against the accused on the allegations that the accused was found in possession of 5 Kg of Ganja to which he pleaded not guilty and claimed trial.
4. The prosecution examined 10 witnesses in support of its case who are as follows:
5. PW1 is Ms. Pragya Anand, ACP. She has deposed that on 16.07.2018, she was looking after the work of SHO PS Sector23, Dwarka and on that day, Ct. Ajay came to his office with the case property i.e 05 packets of ganja and five exhibits of plastic containers of ganja covered with doctor tape and sealed with the seal of RP along with a carbon copy of the seizure memo of the abovesaid case property and all the pullandas were marked A, B, C, D, E and A1, B1, C1, D1 and E1 and also mentioned the FIR number on the carbon copy of the seizure memo and FSL forwarding letter and she counter sealed all the exhibits and samples with the seal of RKD. She SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 4 of 22 has further deposed that after this, she deposited the case property in the malkhana and also lodged a report in the Daily Diary Register and IO recorded her statement. This witness was crossexamined by the Ld. defence counsel.
6. PW2 is W/HC Palvinder. She is the Duty Officer and has proved the FIR as Ex. PW2/A and endorsement on the rukka as Ex. PW2/B and certificate under Section 65B of the Indian Evidence Act regarding the computerized copy of FIR as Ex. PW2/C. This witness was also crossexamined by the Ld. defence counsel.
7. PW3 is Constable Bharat Singh. This witness was on patrolling duty along with HC Rajpal on 16.07.2018 and has deposed about the investigation conducted by him and PW7 HC Rajpal as well as by the IO i.e PW10 SI Rajeshwar. This witness was also crossexamined by the Ld. defence counsel.
8. PW4 is Constable Ajay. This witness has joined the investigation along with SI Rajeshwar on the receipt of DD No. 25A regarding the recovery of ganja and has deposed on the lines of PW10 SI Rajeshwar. This witness was also cross examined by the Ld. defence counsel.
9. PW5 is Retd. ACP Rajinder Singh. He has proved the intimation under Section 57 of the NDPS Act as Ex. PW 5/A. This witness was not crossexamined by the Ld. defence counsel.
SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 5 of 2210. PW6 is Retd. SI Virender Singh. He was posted as a Reader to ACP and has proved the entry in Diary Register at serial no. 4167 dated 18.07.2018 as Ex. PW6/A. This witness was not crossexamined by the Ld. defence counsel.
11. PW7 is Head Constable Rajpal. He is the recovery witness and has deposed that on 16.07.2018, he along with Ct. Bharat Singh were on patrolling duty at marble market, Sector 8, Dwarka vide DD No. 23A and while patrolling, at about 1:30 p.m, they reached Mount Carmel School Chowk where they saw one person coming from the side of Taj Vivanta on a service lane who was carrying a pithu bag on his shoulder and another pithu bag on his back and was also holding one bag in his right hand and after seeing the police, the said person turned back and tried to flee away from the spot upon which he along with Ct. Bharat stopped the said person with the help of their motorcycle. He has further deposed that the said person revealed his name as Rakesh Kumar and on inquiry, the accused could not give any satisfactory reply. He has further deposed that on suspicion, he took the cursory search of the accused however, nothing was recovered from his cursory search and thereafter, he searched the bag which the accused was carrying on his back, however, no illegal contraband/substance was recovered and after that, he took the search of the bag which the accused was carrying in his hand and during the search of that bag, five bundles tied with the help of brown (khaki tape) were recovered and on checking the same, foul smell lookalike ganja was coming from all the bundles and he gave information to the police station upon SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 6 of 22 which SI Rajeshwar along with Ct. Ajay reached the spot. He has further deposed that thereafter, SI Rajeshwar checked all the five bundles and inquired from accused Rakesh Kanojia and all the five packets were marked A to E and weighed the recovered ganja with the help of an electronic weighing machine and on weighing the recovered ganja of packet Mark A, which was found to be 1.026 kg, packet Mark B was found to be 1.038 kg, Mark C was found to be 1.026 Kg, Mark D was found to be 1.004 Kg, Mark E was found to be 1.028 kg out of which, IO took a sample of 50 grams from each parcel and separately sealed them in a plastic container and gave mark to the samples as A1, B1, C1, D1 and E1 and the remaining ganja i.e A to E were kept in the same packet. He has further deposed that thereafter, all the parcels and samples were sealed with the seal of 'RP' and packets A to E were kept in the same bag. He has further deposed that thereafter, the redwhite bag was sealed with the seal of 'RP' and was seized by SI Rajeshwar vide seizure memo Ex. PW3/A and filled FSL form having the seal impression of RP. He has further deposed that thereafter, IO recorded his statement as Ex. PW7/A and prepared rukka under Section 20 of the NDPS Act and handed over the same to Ct. Ajay for registration of FIR along with sample A1 to E1, FSL form and a carbon copy of seizure memo for compliance with Section 55 of NDPS Act. He has further deposed that after the registration of FIR, Ct. Ajay returned to the spot and handed over the rukka to SI Rajeshwar and IO/SI Rajeshwar prepared the site plan at his instance as Ex. PW4/A arrested the accused vide arrest memo Ex.PW3/B and conducted his personal search vide memo Ex.PW3/C and recorded the SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 7 of 22 disclosure statement of the accused vide memo Ex.PW3/D. He has further deposed that thereafter, they returned to the police station and IO recorded his statement. This witness was also crossexamined by the Ld. defence counsel.
12. PW8 is Constable Krishan. He has deposited the sealed pullanda of the present case along with the FSL form on 24.10.2018 at FSL Rohini vide RC No. 95/21/18 as Ex. P/D/4 and after depositing the same, handed over the receipt to MHC(M) Mark X. This witness was also crossexamined by the Ld. defence counsel.
13. PW9 is Head Constable Prakash Chand. He is the MHC(M) and has proved the entry made in register no. 19 at serial no. 2079 as Ex. PW9/A regarding depositing five sealed pullandas, FSL form and copy of seizure memo which was sent to FSL Rohini on 24.07.2018 through Ct. Krishan vide RC no. 95/21/18 as Ex. P/D/4. He has further deposed that on 31.08.2018, Ct. Nitesh handed over five sealed parcels and one sealed report duly sealed with the seal of YCP received from FSL Rohini as Ex. P/D/1. This witness was also cross examined by the Ld. defence counsel.
14. PW10 is SubInspector Rajeshwar. He is the IO of the case and he has deposed that on 16.07.2018, on receiving DD No. 25A regarding recovery of ganja as Ex.P/D/3, he along with Ct. Ajay reached the spot i.e Mount Carmel Chowk, Sector20/22, Dwarka Red Light where he met HC Rajpal, Ct. Bharat, accused Rakesh Kumar Kanojia and HC Rajpal SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 8 of 22 informed him that they apprehended the accused along with a whitered check bag containing five bundles/parcel of ganja. He has further deposed that he checked all the five bundles/parcels containing ganja and were marked A to E. He has further deposed that he weighed the recovered ganja with the help of an electronic weighing machine and the weight of the recovered ganja of packet Mark A was found to be 1.026 Kg, packet Mark B was found to be 1.038 kg, Mark C was found to be 1.026 Kg, Mark D was found to be 1.004 Kg and Mark E was found to be 1.028 kg out of which he took samples of 50 grams from each parcel and separately sealed them in a plastic container and gave mark to the samples as A1, B1, C1, D1 and E1 and all the plastic containers/box were covered with a doctor tape and the remaining ganja i.e A to E were kept in the same bag and sealed the said bag with the help of doctor tape covered with a bandage and all the parcels and samples were sealed with the seal of 'RP' and the case property was seized vide memo Ex.PW3/A and filled FSL form. He has further deposed that thereafter, he recorded the statement of HC Rajpal and prepared rukka Ex.PW10/A and handed over the same to Ct. Ajay for the registration of FIR along with the sealed case property, carbon of seizure memo and FSL form. He has further deposed that after the registration of FIR, Ct. Ajay reached the spot and handed over the copy of FIR and original rukka to him. He has further deposed that thereafter, he prepared the site plan Ex. PW4/A at the instance of HC Rajpal arrested the accused vide arrest memo Ex.PW3/B, conducted his personal search vide memo Ex.PW3/C and during the personal search of the accused, one mobile phone make SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 9 of 22 Samsung and one black bag (Tikun) containing five pieces of cloth and Rs. 74/ were recovered. He has further deposed that he recorded the disclosure statement of the accused vide memo Ex.PW3/D and thereafter, they returned to the police station and recorded the statement of witnesses. He has further deposed that thereafter, the accused was sent for medical examination through Ct. Ajay and after the medical examination, Ct. Ajay along with the accused returned to the police station. He further deposed that on the next day, the accused was produced before the Court and sent to JC. He has further deposed that on 17.07.2018, he sent the intimation under Section 57 of NDPS Act to ACP exhibited as Ex.PW5/A and recorded the statement of the ACP and his Reader. He has further deposed that on 24.07.2018, on his direction Ct. Krishan took the exhibits from the malkhana vide RC No. 95/21/18 as Ex.P/D/4 and after depositing the same, he handed over the receipt to the MHC(M). He has further deposed that on 31.08.2018, after receiving the FSL result, he prepared a charge sheet and sent the same to the Court. This witness was also crossexamined by the Ld. defence counsel.
15. It is a matter of record that during the trial, the statement of the accused under Section 294 Cr.P.C was recorded on 18.04.2022 wherein the accused has admitted the genuineness of certain documents i.e Ex.P/D/1 to Ex.P/D/5 i.e FSL Report dated 28.08.2018, DD No. 29A dated 16.07.2018, DD No. 25A dated 16.07.2018, RC No. 25/21/2018 dated 24.07.2018 and intimation under Section 57 of NDPS Act dated 17.07.2018. Thereafter, prosecution SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 10 of 22 evidence was closed vide order dated 01.07.2022 and on the same day, the statement of the accused under Section 313 Cr.P.C was recorded whereby all the incriminating evidence was put to him to which he stated that he is innocent and has been falsely implicated in the present case. During the recording of the statement, the accused did not wish to lead defence evidence and final arguments were heard.
16. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
FINDINGS:
17. The records of the present case reveal that the accused stands charged for the possession of an intermediate quantity of contraband i.e 5 Kg ganja. The stringent provisions are provided under the law qua the punishment, especially in the NDPS cases. The scheme of the NDPS Act and its objects and reasons mandate that the prosecution must prove compliance with various safeguards ensured under the Act. The NDPS Act prescribes stringent punishment and therefore, the balance must be struck between the need for the law and the enforcement of such law on one hand and the protection of the citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on the exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband. In the present case, the accused was apprehended from side of Taj Vivanta and was SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 11 of 22 found in possession of an intermediate quantity of ganja. Hence, it has to be proved that the accused was found in possession of the contraband i.e ganja. The record reveals that no independent public person was joined in the proceedings.
18. It is to be kept in mind that the nonjoining of public witnesses itself cannot become a ground for acquittal if the case of the prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution cannot be held to be vulnerable to nonexamination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution cannot be disbelieved. The proposition is not disputed but the balance has to be maintained if some doubt is created regarding the involvement of the accused. Each case has its own facts and circumstances.
19. Accordingly, it is trite that mere failure to associate public witnesses in search and seizure proceedings is not fatal to the case of the prosecution. However, in such a case, the burden lies heavily on the prosecution to prove two things. Firstly, a genuine and sincere effort was made by the investigating officer to join independent persons in the proceedings and secondly, the evidence of the official witnesses does not suffer from any infirmity.
SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 12 of 2220. In the present case, as per the story of the prosecution, on 16.07.2018, HC Rajpal along with Ct. Bharat Singh were on patrolling duty and while patrolling, apprehended the accused with illegal contraband. Though in the present case, it has been tried to be brought on record from the testimony of prosecution witnesses that sincere efforts were made to join the public witnesses but none of them were inclined to join.
21. The testimonies of the members of the raiding team suffer from contradictions and it is evident therefrom that the witnesses have remained evasive on material aspects. As far as the testimonies of witnesses about the joining of independent witnesses are concerned, PW3 Ct. Bharat Singh has deposed in his crossexamination that they requested a few public persons to join the investigation but all of them refused and they tried to stop the public persons, however, they did not stop and left the spot without disclosing their names and addresses while on the other hand, PW4 Ct. Ajay has admitted as correct in his crossexamination that no one from their team asked any passersby to join the investigation. On the other hand, PW7 HC Rajpal has deposed in his crossexamination that he had not called any public witness at the time when the recovery was effected from the accused. He has further deposed that the spot was surrounded by running road and many vehicles were passing through the road. He has further deposed that the accused was taken for his medical examination from the police station by Ct. Ajay through ERV which was being driven by a private SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 13 of 22 person however, the said ERV driver was not joined in the investigation. The perusal of site plan Ex. PW4/A reflects that there was one Salariya Apartments and one Mount Carmel School near the spot from where the accused was apprehended. As per the deposition of PW10 SI Rajeshwar, he proceeded from the PS on receiving DD no 25A regarding recovery of ganja at about 1:50 p.m and reached the spot i.e Mount Carmel Chowk, Sector20/22, Dwarka Red Light at about 2:00 p.m. Hence, there could be a possibility that at that time, there would be a crowd near the school or some guard/gatekeeper would be available at the gate of the school or Salaria Apartments and have been joined in the investigation of the present case. As per the cross examination of PW3 Ct. Bharat Singh, the spot was surrounded from one side by the back wall of Salaria Apartments and the entry gate of Salaria Apartments was more than 800900 meters away from the spot. Although, PW 4 Ct. Ajay has admitted as correct in his crossexamination that the spot was adjacent to Salaria Apartments. PW7 HC Rajpal has deposed in his crossexamination that the spot was surrounded by running road and many vehicles were passing through the road. Even, as per the crossexamination of PW10 SI Rajeshwar, he requested a few passersby to join the investigation on the spot however, they refused same. He has further deposed that he had not called any school staff/official from the Mount Carmel school to join the investigation although he remained present at the spot for around 56 hours. Hence, from the examination of the above witnesses, it is evident that public persons were present at SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 14 of 22 the spot but the perusal of the crossexamination of witnesses shows that neither any sincere efforts have been made by the IO to join any public person in the investigation nor served any notice to them for nonjoining the investigation.
22. Admittedly, the police officials remained on the spot for a considerable time and the IO was having ample time to join the independent person in the proceedings. It is the case of the prosecution that public persons were requested to join the proceedings but they declined. It is a quite surprising fact that despite the availability of public witnesses, the investigating agency could not associate even a single public witness at any stage of the investigation. It has been stated casually and routinely that the public persons, who were asked to join the investigation, declined to do so and went away without disclosing their names and addresses. Subsection (8) of Section 100 Cr.P.C clearly states that if a public witness refuses or neglects to attend a search without reasonable cause despite an order in writing, he shall be deemed to have committed an offence under Section 187 IPC. There is nothing on record to indicate that the investigating officer had served or even attempted to serve any order in writing upon any public witness. So much so, neither the names nor the addresses of the persons who refused to join the proceedings have been given. All the above leads to the inevitable inference that the investigating agency was not interested to make any public witness a part of the raiding team and thus there has been a deliberate disregard of the statutory safeguards relating to search and seizure on its part SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 15 of 22 which renders the recovery proceedings unworthy of credence. Hence, all these facts give some doubt to the story of the prosecution.
23. Furthermore, as per the testimony of PW3 Ct. Bharat Singh, the motorcycle on which they were on patrolling duty belongs to HC Rajpal and while patrolling, he was driving the motorcycle which is in contrast to the deposition of PW7 HC Rajpal who has deposed in his cross examination that the motorcycle on which they were on patrolling duty belongs to Ct. Bharat and the motorcycle was driven by him while patrolling.
24. Further, as per the crossexamination of PW10 SI Rajeshwar, HC Rajpal and Ct. Bharat left the spot at around 6:00 p.m. However, PW7 HC Rajpal has deposed in his cross examination that they all finally left the spot at about 3:00 p.m and the accused was with Ct. Ajay in the ERV vehicle and the said ERV, he along with SI Rajeshwar, Ct. Bharat, Ct. Ajay and accused were present.
25. Moreover, PW4 Ct. Ajay has deposed in his cross examination that he along with SI Rajeshwar reached the spot by official bike. However, the said deposition is in contrast to the deposition of PW10 SI Rajeshwar who has deposed in his crossexamination that they reached the spot on a private vehicle that belonged to him. If the version of PW4 is to be believed that he along with SI Rajeshwar reached the spot by official bike, the prosecution has also failed to produce either SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 16 of 22 the log book of the official vehicle used during the investigation. Since the log books are maintained for recording the movement of the official vehicles, there should have been no difficulty at all in producing such evidence if indeed the police officials have moved to the spot from their office in a government vehicle which also creates a grave suspicion regarding the truthfulness of the case of the prosecution.
26. Furthermore, as per the crossexamination of PW 3 Ct. Bharat Singh, on that day, he had not carried any smartphone and he did not know whether any other police officer was carrying any smartphone or not while PW4 Ct. Ajay has admitted as correct in his crossexamination that almost all the police officials present at the spot had mobile phones with camera and although, PW7 HC Rajpal has deposed in his crossexamination that on that day, they were having smartphones.
27. Further, as per the prosecution story, on the date of the incident, PW7 HC Rajpal and PW3 Ct. Bharat Singh were on patrolling duty and as such, the prosecution has failed to file the entry about the arrival of the patrolling/raiding party, however, no such arrival entry has been filed. Even PW3 Ct. Bharat Singh and PW7 HC Rajpal have deposed in their crossexamination that none of them made departure entry. PW10 SI Rajeshwar has also deposed in his crossexamination that he did not remember whether he had filed any departure entry of HC Raj Pal and Ct. Bharat.
SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 17 of 2228. The record reveals that as per personal search memo i.e Ex. PW3/C, one mobile phone (make Samsung) was recovered from the possession of the accused. It is pertinent to mention here that the accused is the permanent resident of Village and Post Office Dharampur, Tehsil Kasauli, District Solan, Himachal Pradesh and was apprehended from Dwarka Sector23. If the accused was apprehended with the contraband then the same would have to be delivered to somebody and he must have called the person before leaving his house to whom it was to be sold or supplied. Further, PW 10 SI Rajeshwar has deposed in his crossexamination that he obtained the CDR of the mobile of the accused to trace out the source of the case property and for the search of the co accused however, the location chart of the mobile phone of the accused at the scene of offence for proceedings was not obtained by him. Further, in this regard, call details of the accused should have been filed but the same has not been done in this case which shows that IO has not made any sincere efforts.
The attention of the Court is drawn to the judgment titled Masoom & Ors. Vs. State of NCT of Delhi, 2015 III AD (CRI) (DHC) 349 passed by Hon'ble High Court of Delhi wherein it was held that "23. The prosecution has not given any explanation as to why cellular evidence was not brought on record. It has come on record that A2 had a conversation on mobile in his possession at IGI Airport. A personal search memo shows the recovery of two Nokia mobiles, with Vodafone and Idea Chips. Similarly, on the personal search of A1, one mobile make Fashion with two SIMs was recovered. The Investigation Officer did not attempt to collect call details records of these mobile phones to ascertain with whom, at what SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 18 of 22 time and place the appellants were in regular and constant touch. Call Details Records were relevant to ascertain appellant's location at the relevant time and their nexus with themselves and others". It is clear from the testimony of witnesses that no sincere efforts have been made to apprehend the source of contraband and recipient of same despite taking police custody remand of accused in the present matter.
29. The counsel for the accused has argued regarding tampering of case property till the same remained in the cus tody of officials. It is a settled law that to safeguard the possi ble tampering, the samples should be sent to the laboratory at the earliest, preferably within 72 hours, and in case of delay, the onus is on the prosecution to show that there was no tampering with the case property and samples. In the event of doubt, the benefit has to be given to the accused, however, if the prosecution satisfies that there was no tampering, the de lay is to be ignored.
30. The perusal of the record shows that illegal contraband was recovered and seized from the accused on 16.07.2018 but samples of ganja were sent to FSL on 24.07.2018 and there is an unexplained delay in sending the samples to FSL as the same was required to be sent to FSL preferably within 72 hours of its seizure. Thus, when there is a delay in sending the samples, it casts doubt on whether it is the same case property that was recovered from the accused and sent to FSL or it was the case property of some other case.
31. To this effect, reliance is placed upon judgment SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 19 of 22 titled as Ramesh & Anr. Vs. State of Haryana 1998 (1) C. C. Cases 17 (HC), passed by Hon'ble High Court of Punjab and Haryana at Chandigarh, wherein it was held as under:
"15. There is another important factor that is taken into consideration is that the alleged sample was taken on 26.07.1992 and was sent to the Chemical Examiner on 12.08.1992. There is no explanation furnished by the prosecution for the delay in sending the sample to the FSL so late. This lapse of the prosecution that the delayed sending of samples to FSL has not been taken happily by the courts. In Narain Vs. State of Haryana 1997 (1) RCR 414 even the delay of 10 days for sending the samples of the contraband to the FSL was taken to be such a delay which caused a dent in the prosecution story".
32. There is also another lacuna in the story of the prosecution. PW10 SI Rajeshwar has deposed in his examinationinchief that Ct. Ajay took the accused for medical examination. However, PW4 Ct. Ajay has nowhere deposed during his examination that he took the accused for medical examination.
33. Hence, the above said contradictions cast grave doubt on his presence at the spot. From the above discussion of testimonies of prosecution witnesses, it is clear that the witnesses have also created a dent in the case of the prosecution as all the witnesses are giving different versions though all were present at the same time together and were members of the investigation team.
SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 20 of 2234. Hence, from the above discussion, it is observed that there are major contradictions in the deposition of prosecution witnesses, the statement of official witnesses without corroboration from independent sources cannot be believed to base conviction on stringent provisions of the NDPS Act. From above mentioned all the facts and circumstances and other discussions detailed above, it becomes very clear that the present case is not such a case where the complexity of the accused has been proved beyond a reasonable doubt. From the testimony of witnesses and the above discussions, it is crystal clear that there is a shadow of doubt upon the accused regarding the commission of charged offence framed against him. Thus accused is required to be acquitted in the present case by giving him the benefit of doubt. Thus on all counts, the guilt of the accused has not been duly proved.
35. Hence, considering the overall facts and circumstances of the present and given the above observations, accused Rakesh Kumar Kanojia is acquitted of the offence punishable under Section 20 (b) (ii) (B) of the NDPS Act by giving him the benefit of doubt.
36. At the request of the accused, his previous bail bonds are extended in terms of Section 437A Cr.P.C and shall remain in force for six months from today.
37. Case property is confiscated to the State and in SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 21 of 22 case no appeal is filed within the prescribed time, the same may be disposed of as per rules. File be consigned to Record Room, after due compliance.
Pronounced in the open court (Deepak Wason) today i.e 01 July 2022 st Special Judge (NDPS): SW District Dwarka Courts: New Delhi SC No. 7482018 State Vs. Rakesh Kumar Kanojia Page 22 of 22