Delhi District Court
State vs . Sunil Kumar on 30 January, 2023
IN THE COURT OF SH. DEEPAK WASON:
SPL. JUDGE (NDPS): DWARKA COURTS: NEW DELHI
SC No. 671-2022
FIR No. 179-2021
U/s. 20 (b) (ii) (B) & 25 NDPS Act
PS: BHD Nagar
State vs. Sunil Kumar
Date of Institution of case:-26.08.2022
Date of arguments:-30.01.2023
Date on which Judgment pronounced:-30.01.2023
JUDGMENT
CNR No. :DLSW01-008776-2022
Date of commission of the offence :20.04.2021
Name of the complainant :ASI Sita Ram
Name and address of accused :Sunil Kumar
S/o Sh. Suresh Singh
R/o Village Nakara,
Sinori Singh Man Khas,
Patiyali, Kasganj,
Uttar Pradesh
Offence complained of :20 (b) (ii) (B) & 25 NDPS Act
Plea of accused :Pleaded not guilty
Date of order :30.01.2023
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 20.04.2021, SI Sita Ram was posted as a ASI at PS BHD Nagar, on that day, SI Sita Ram along with HC Jitender and Ct. Rajdeep were on patrolling duty in a govt. Gypsy no. DL1CX 7403. It is further the case of prosecution that at about 07.30 am, they reached at Surkhpur Road and at that time, they noticed that one boy was coming from the side of Surkhpur Village in very high speed of Motorcycle, who was carrying a pitthu bag. It is further the case of prosecution that on suspicion, they SC No. 6712022 State Vs. Sunil Kumar Page 1 of 29 signaled to stop him but after seeing the police, said boy tried to flee away on his motorcycle and thereafter, they chased him and apprehended him near Indira Market, Jharoda, Najafgarh with his motorcycle no.DL4SBH 7880, Platina, Silver colour, and name of the accused revealed as Sunil Kumar. It is further the case of prosecution that thereafter, they enquired from the accused regarding the pitthu bag but accused did not give any satisfactory answer and tried to flee away and thereafter, SI Sita Ram checked the pitthu bag which was containing 09 brown colour packets having foul smell. It is further the case of prosecution that SI Sita Ram checked all 09 packets which were containing leafy, grassy, moist, seedy substance, which appeared to be Ganja and thereafter, SI Sita Ram prepared notice u/s 50 NDPS Act and gave to the accused and reply of accused taken on the carbon copy of the notice wherein accused replied that he did not want to be searched in the presence of the Gazetted Officer. It is further the case of prosecution that thereafter, SI Sita Ram informed the SHO telephonically and requested sending Gazetted Officer at the spot and thereafter, on the direction of SI Sita Ram, Ct. Rajdeep went to police station to arrange the IO kit and electronic weighing machine and ACP Joginder Joon and SHO BHD Nagar also reached at the spot. It is further the case of prosecution that ACP Joginder Joon introduced himself to accused Sunil. It is further the case of prosecution that ACP Joginder Joon also explained to the accused about his legal rights and in the meantime, Ct. Rajdeep returned back at the spot with electronic weighing machine and IO kit and thereafter, SI Sita Ram again checked the recovered substance which on physical appearance found to be Ganja. It is further the case of prosecution that SI Sita Ram weighed the recovered Ganja alongwith the pitthu bag and the weight of the same is found 3 kg 920 grams and thereafter, SI Sita Ram SC No. 6712022 State Vs. Sunil Kumar Page 2 of 29 weighed the ganja without pitthu bag which was containing in 09 packets and weight of the same was found to be 03 kg 377 grams. It is further the case of prosecution that thereafter, SI Sita Ram weighed the pitthu bag without Ganja and weight of the same was found to be 543 grams and thereafter, SI Sita Ram put all 09 packets into the same pitthu bag and said pitthu bag further kept in a plastic katta and the said plastic katta tied with the help of white cloth and sealed with the seal of SR and Mark A was given to the said katta. It is further the case of prosecution that after use, seal was handed over to HC Jitender. Case property was seized and SI Sita Ram seized the motorcycle no.DL4SBH 7880. It is further the case of prosecution that thereafter, ACP Joginder Joon and SHO Jagtar Singh left the spot and went to their office. It is further the case of prosecution that thereafter, SI Sita Ram prepared a tehrir under Section 20 NDPS Act and handed over to Ct. Rajdeep for registration of FIR along with carbon copy of seizure memo of case property and sealed case property for registration of FIR for proceedings under Section 55 NDPS Act. It is further the case of prosecution that thereafter, Ct. Rajdeep went to police station. It is further the case of prosecution that Ct. Rajdeep produced 1 sealed parcel/ pulanda duly sealed with the seal of 'SR' and carbon copies of seizure memo before Insp. Jagtar Singh. It is further the case of prosecution that Insp. Jagtar Singh checked the parcel / pulanda and documents. It is further the case of prosecution that the sealed parcel having specimen of seal of 'SR' and thereafter, Insp. Jagtar Singh counter-sealed the pulanda with his seal 'JS' and thereafter, Insp. Jagtar Singh enquired from Duty Officer regarding FIR number and mentioned FIR No.179/2021 on the sealed parcel / pulanda and documents and thereafter, Insp. Jagtar Singh called MHC(M) CP to his office along with register No. 19. Insp.
SC No. 6712022 State Vs. Sunil Kumar Page 3 of 29Jagtar Singh handed over the sealed parcel and carbon copies of seizure memos to MHC(M) for depositing the same in Malkhana. It is further the case of prosecution that MHC(M) made entry in register No. 19 regarding depositing of case property and same was signed by Insp. Jagtar Singh and thereafter, Insp. Jagtar Singh lodged DD No. 49A regarding depositing of case property under compliance of Section 55 NDPS Act.
2. It is further the case of prosecution that after registration of FIR, further investigation was marked to ASI Bachhu Singh and thereafter, Ct. Rajdeep and ASI Bachu reached at the spot and thereafter, SI Sita Ram handed over the custody of accused and all documents to ASI Bachhu Singh. It is further the case of prosecution that ASI Bachhu Singh prepared the site plan at the instance of SI Sita Ram and thereafter, IO recorded statement of SI Sita Ram and he left the spot.
3. Vide order dated 23.05.2019, 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 3 Kg and 700 grams of Ganja to which he pleaded not guilty and claimed trial. It is further the case of prosecution that ASI Bachu Singh interrogated the accused and after interrogation, accused Sunil was arrested, personal search of accused was conducted and during personal search, original notice u/s 50 NDPS Act and one Aadhar card was recovered. It is further the case of prosecution that ASI Bachu Singh recorded disclosure statement of accused and thereafter, they took the accused at police station. It is further the case of prosecution that ASI Bachu Singh got conducted medical examination of accused SC No. 6712022 State Vs. Sunil Kumar Page 4 of 29 through Ct. Rajdeep. It is further the case of prosecution that on 20.04.2021, ASI Bachu Singh sent intimation under Section 57 NDPS Act to the ACP. It is further the case of prosecution that on 27.04.2021, ASI Bachu Singh moved an application for withdrawal of samples u/s 52A of NDPS Act alongwith inventory and on the same day, Ld. MM carried out proceedings u/s 57 NDPS Act. It is further the case of prosecution that after taking samples, three sealed pulandas duly sealed with the seal of 'PG' was handed over to ASI Bachu Singh alongwith sample seal by the Court and thereafter, ASI Bachu Singh deposited the pulandas in the malkhana. It is further the case of prosecution that during investigation, ASI Bachu Singh enquired regarding the motorcycle no. DL4SBH 7880 and served notice 133 MV Act to Bhupender Bansal, register owner of above-said motorcycle. On notice u/s 133 MV Act, Bhupender Bansal gave his reply that he sold the motorcycle to Sh. Dinesh on 21.01.2021. It is further the case of prosecution that Bhupender produced a affidavit regarding sale/purchase of above-said motorcycle and Notice u/s 133 MV Act and also collected the photocopy of register of Notary who had notarized the affidavit executed by Bhupender Bansal and Dinesh Kumar. It is further the case of prosecution that Notary Public, namely Gurdeep Singh issued a certificate that affidavit for sale/purchase of above-said motorcycle no.DL4SBH 7880 dated 28.01.2021 attested by him vide serial no.599. It is further the case of prosecution that samples were sent to FSL Rohini through Ct. Mukesh and ASI Bachu Singh also issued a letter to MLO, Janak Puri for vehicle particulars of motorcycle no.DL4SBH 7880 and thereafter, ASI Bachu Singh was transferred from the police station and he handed over the case file to MHC(R). Thereafter, investigation was marked to ASI Mukesh on 24.12.2021 and on receiving the FSL result, SC No. 6712022 State Vs. Sunil Kumar Page 5 of 29 he prepared charge-sheet and filed in the court.
4. Vide order dated 23.11.2022, the charge for the offences punishable under Section 20 (b) (ii) (B) & 25 of the NDPS Act was framed against the accused on the allegations that accused was found in possession of 3 kg 920 grams of Ganja (with pitthu bag), 3 kg 377 of Ganja (without pitthu bag) while transporting the same on motorcycle bearing registration no. DL4SBH 7880 to which he pleaded not guilty and claimed trial.
5. The prosecution examined 12 witnesses in support of its case who are as follows:-
6. PW-1 is ACP Sh. Joginder Joon. He has deposed that on 20.04.2021, he was posted as ACP at Sub-division, Najafgarh and on that day, SHO BHD Nagar Jagtar Singh had informed him through telephonically that ASI Sita Ram had apprehended a person with Ganja and thereafter, he reached at the spot at about 09.00 am on his Govt. Vehicle and SHO BHD Nagar also reached at the spot. He has further deposed that IO/ASI Sita Ram, HC Jitender alongwith accused with motor cycle no. DL4SBH 7880 found present at the spot and he enquired from the accused Sunil Kumar. He has further deposed that he introduced himself to accused Sunil and also explained to the accused about his legal rights. He has further deposed that in the meantime, Ct. Rajdeep brought the electronic weighing machine at the spot and thereafter, ASI Sita Ram again checked the recovered substance which on physical appearance found to be Ganja. He has further deposed that ASI Sita Ram weighed the recovered Ganja along with the pitthu bag and the weight of the same is found 3 kg 920 SC No. 6712022 State Vs. Sunil Kumar Page 6 of 29 grams and thereafter, ASI Sita Ram weighed the ganja without pitthu bag which was containing in 09 packets and weight of the same was found to be 03 kg 377 grams. He has further deposed that thereafter, IO/ ASI Sita Ram weighed the pitthu bag without Ganja and weight of the same was found to be 543 grams and thereafter, ASI Sita Ram put all 09 packets into the same pitthu bag and said pitthu bag further kept in a plastic katta and the said plastic katta tied with the help of white cloth and sealed with the seal of SR and Mark A was given to the said katta. He has further deposed that after use, seal was handed over to HC Jitender and case property seized vide memo Ex.PW-1/A bearing his signature at point A and thereafter, he left the spot and went to the office. He has further deposed that on the same day, ASI Bachu Singh sent intimation under Section 57 of NDPS Act and the same was received at his office, same is Ex.PW1/B, bearing his signature at point A. He has further deposed that on his direction, Reader to ACP made entry in diary register and IO recorded his statement. He has correctly identified the accused before the court. He has also correctly identified the case property which is from Ex.P1 to Ex.P14. He has further deposed that he can identify the motorcycle no. DL4SBH 7880, if shown to him (identity of case property was not disputed by accused). This witness was cross-examined by the Ld. defence counsel.
7. PW-2 is HC Mahesh. He has deposed that on 06.07.2021, he was posted at PS BHD Nagar as a constable and on that day, as per the direction of IO, he took two sample sealed pulandas duly sealed with the seal of PG vide RC No.139/21/21 for depositing at FSL Rohini. He has further deposed that after depositing the pulandas at FSL Rohini, acknowledgment was handed over to the SC No. 6712022 State Vs. Sunil Kumar Page 7 of 29 MHC(M) and till the case property was under his custody, no tampering was carried out with it. RC No.139/21/21 is Ex.PW-2/A and acknowledgment is Ex.PW-2/B. This witness was also cross- examined by the Ld. defence counsel.
8. PW-3 is Insp. Jagtar Singh. He has deposed that on 20.04.2021, he was posted as SHO at PS BHD Nagar and on that day, at about 08.25 am ASI Sita Ram informed him through telephonically that he alongwith beat staff apprehended a person with Ganja on motorcycle and thereafter, at about 08.45 am, he reached at the spot. He has further deposed that ACP, Najafgarh also reached at the spot and he found IO/ASI Sita Ram, HC Jitender alongwith accused with motor cycle no. DL4SBH 7880 present at the spot. He has further deposed that ACP Joginder Joon enquired from the accused Sunil Kumar. He has further deposed that ACP Joginder Joon introduced himself to accused Sunil and ACP Joginder Joon also explained to the accused about his legal rights and in the meantime, Ct. Rajdeep brought the electronic weighing machine at the spot. He has further deposed that thereafter, ASI Sita Ram again checked the recovered substance which on physical appearance found to be Ganja and ASI Sita Ram weighed the recovered Ganja alongwith the pitthu bag and the weight of the same was found to be 3 kg 920 grams. He has further deposed that thereafter, ASI Sita Ram weighed the ganja without pitthu bag which was containing in 09 packets and weight of the same was found to be 03 kg 377 grams and thereafter, IO/ ASI Sita Ram weighed the pitthu bag without Ganja and weight of the same was found to be 543 grams. He has further deposed that thereafter, ASI Sita Ram put all 09 packets into the same pitthu bag and said pitthu bag further kept in a plastic katta and the said plastic katta tied SC No. 6712022 State Vs. Sunil Kumar Page 8 of 29 with the help of white cloth and sealed with the seal of SR. He has further deposed that Mark A was given to the said katta and after use, seal was handed over to HC Jitender, case property seized vide memo Ex.PW-1/A. He has further deposed that thereafter, ACP Joginder Joon left the spot and went to his office and thereafter, he left the spot and went to the police station. He has further deposed that at about 10.00 am, Ct. Rajdeep came to his office at PS BHD Nagar and he produced 1 sealed parcels/ pulandas duly sealed with the seal of 'SR' and carbon copies of seizure memo before him. He has further deposed that he checked the parcel / pulandas and documents and the sealed parcel having specimen of seal of 'SR'. He has further deposed that thereafter, he counter-sealed the pulanda with his seal 'JS' and thereafter, he enquired from Duty Officer regarding FIR number and mentioned FIR No.179/2021 on the sealed parcel / pulanda and documents. He has further deposed that thereafter, he called MHC(M) CP to his office along with register No. 19 and handed over the sealed parcel and carbon copies of seizure memos to MHC(M) for deposit the same in Malkhana. He has further deposed that MHC(M) made entry in register No. 19 regarding depositing of case property and same was signed by him. Copy of register no.19 is Mark X. He has further deposed that thereafter, he lodged DD No. 49A regarding depositing of case property under compliance of Section 55 NDPS Act. True copy of DD No. 49A is already Ex.P/D/3. He has further deposed that on 20.04.2021, at the request of the IO, he prepared inventory of the case property for proceeding u/s 52A of NDPS Act. Same is already Ex.P/D/4 bearing his signature at point A. He has correctly identified the accused before the court. He has also correctly identified the case property which is from Ex.P1 to Ex.P15. This witness was also cross- examined by the Ld. defence counsel.
SC No. 6712022 State Vs. Sunil Kumar Page 9 of 299. PW-4 is HC Rajdeep. He was one of the members of the patrolling duty and has deposed on the lines of HC Jitender, ASI Sita Ram and ASI Bachu Singh. This witness was also cross- examined by the Ld. defence counsel.
10. PW-5 is ASI Anil. He had brought the summoned record i.e. register no.19 and register no.21 and as per record, on 20.04.2021, Inspector Jagtar Singh deposited one sealed pullanda, duly sealed with the seal of 'SR' and 'JS' and copy of seizure memo with the then MHC(M) and he made entry in register no. 19 and the relevant entry in register No. 19 is at serial No. 2124 and the copy of the same is Ex.PW-5/A. He has further deposed that on 27.04.2021, vide RC No.101/21/21 case property sent to Dwarka Court for withdrawal of samples and after withdrawal of samples ASI Bachu deposited three sealed pullandas duly sealed with the seal of 'PG' in the malkhana with this regard entry made in register no.19 and RC No.101/21/21 is already Ex.P/D/8. He has further deposed that prior to 27.04.2021, ASI Bachu also took the sealed case property from the malkhana for withdrawal of samples vide RC No.94/21/21 dated 21.04.2021 but on that day samples could not be withdrawn and on 26.04.2021, ASI Bachu also took the sealed case property from the malkhana for withdrawal of samples vide RC No.100/21/21 dated 26.04.2021 but on that day samples could not be withdrawn. This witness was also cross- examined by the Ld. defence counsel.
11. PW-6 is ASI Jitender Singh. He was also one of the members of the patrolling duty and has deposed on the lines of Ct. Rajdeep, ASI Sita Ram and ASI Bachu Singh. This witness was also cross-examined by the Ld. defence counsel.
SC No. 6712022 State Vs. Sunil Kumar Page 10 of 2912. PW-7 is SI Sita Ram. He is the first IO of the case and has deposed that on 20.04.2021, he along with HC Jitender and Ct. Rajdeep were on patrolling duty in a government gypsy no. DL1CX 7403 and at about, 07:30 a.m, they reached at Surkhpur Road and noticed one boy coming from the side of Surkhpur Village in very high speed on a motorcycle and was carrying a pitthu bag. He has further deposed that on suspicion, they signaled him to stop but after seeing the police, the said boy tried to flee away on his motorcycle upon which they chased the said person and apprehended him near Indira Market, Jharoda, Najafgarh with his motorcycle no.DL4SBH 7880 (make Platina of silver colour). He has further deposed that the name of the accused revealed his name as Sunil Kumar. He has further deposed that thereafter, he inquired from the accused regarding the pitthu bag but accused could not give any satisfactory answer and tried to flee away and thereafter, he checked the pithu bag which was found containing 09 brown colour packets having foul smell and on checking the same, it was found containing leafy, grassy, moist, seedy substance which appeared to be Ganja. He has further deposed that thereafter, he prepared the notice under Section 50 of the NDPS Act to the accused and reply of the accused was taken on the carbon copy of the notice as Ex. PW-4/A wherein accused replied that he did not want to be searched in the presence of the Gazetted Officer. He has further deposed that thereafter, he informed the SHO telephonically and requested sending Gazetted Officer at the spot and on his directions, Ct. Rajdeep went to police station to arrange the IO kit and electronic weighing machine. He has further deposed that thereafter, ACP Joginder Joon and SHO BHD Nagar also reached the spot and ACP Joginder Joon introduced himself to accused Sunil and also explained to the accused about his legal rights. He has further deposed that in the SC No. 6712022 State Vs. Sunil Kumar Page 11 of 29 meantime, Ct. Rajdeep returned back at the spot with electronic weighing machine and IO kit. He has further deposed that thereafter, he again checked the recovered substance and on its physical appearance, it was found to be Ganja. He has further deposed that he weighed the recovered Ganja along with the pitthu bag and the weight of the same was found to be 3 kg 920 grams and thereafter, he weighed the Ganja without the pitthu bag and it was found containing 09 packets and weight of the same was found to be 03 kg 377 grams and thereafter, he weighed the pitthu bag without Ganja and weight of the same was found to be 543 grams and he put all the 09 packets into the same pitthu bag and said pitthu bag further kept in a plastic katta and the said plastic katta was tied with the help of a white cloth and same was sealed with the seal of SR and Mark A was given to the said katta. He has further deposed that seal after use was handed over to HC Jitender vide memo Ex.PW-1/A and seized the motorcycle no. DL4SBH 7880 vide seizure memo Ex.PW-4/B and thereafter, ACP Joginder Joon and SHO Jagtar Singh left the spot and went to their office. He has further deposed that thereafter, he prepared tehrir under Section 20 NDPS Act as Ex.PW-7/A and handed over the same to Ct. Rajdeep for the registration of the FIR along with the carbon copy of seizure memo of the case property and sealed case property for the registration of the FIR for proceedings under Section 55 of the NDPS Act and thereafter, Ct. Rajdeep went to the police station. He has further deposed that after the registration of the FIR, further investigation was marked to ASI Bachhu Singh. He has further deposed that thereafter, Ct. Rajdeep and ASI Bachu reached at the spot and he handed over the custody of the accused and all documents to ASI Bachhu Singh and ASI Bachhu Singh prepared the site plan at his instance as Ex.PW-4/C. He has further deposed that thereafter, IO SC No. 6712022 State Vs. Sunil Kumar Page 12 of 29 recorded his statement and he left the spot. This witness was also cross-examined by Ld. Defence counsel.
13. PW-8 is HC Kabool Singh. He is the MHC(M) and has proved the entry made at serial no. 2124 in register no. 19 as Ex. PW- 5/A, copy of RC no. 101/21/21 as Ex. P/D/8. He has also proved the RC no. 94/21/21 and 100/21/21 as Ex. P/D/7 & P/D/6 respectively. This witness has also proved the RC no. 139/21/21 as Ex. PW-2/A and acknowledgment as Ex. PW-2/B. This witness was also cross- examined by the Ld. defence counsel.
14. PW-9 is Sh. Bhupender Bansal. He is the registered owner of the motorcycle bearing no. DL4SBH7880 and has deposed that he sold the above said motorcycle to Sh. Dinesh Kumar, S/o Sh. Puttu Singh, R/o 56B-52A, Dharampura Extension, Najafgarh, New Delhi in Rs.5500/-. He has further deposed that on 28.01.2021, they both executed an affidavit regarding sale & purchase of the above-said motorcycle and notarized from the Notary. He has further deposed that the original affidavit as Ex. PW-9/A along with the copy of Aadhar Card of Dinesh Kumar marked as Mark X, Copy of insurance marked as Mark X1 and copy of pollution was handed over to the IO. He has further deposed that he also handed over the copy of messages received on his mobile phone regarding above-said motorcycle which are marked as Mark Y. He has further deposed that on 19.08.2021, he received a notice under Section 133 M.V. Act as Ex.PW-9/B upon which, he replied that he sold the above-said motorcycle to Sh. Dinesh Kumar and same is Ex.PW-9/C. This witness was also cross-examined by the Ld. Defence counsel.
SC No. 6712022 State Vs. Sunil Kumar Page 13 of 2915. PW-10 is ASI Bachu Singh. He is the second IO of the case and has deposed that on 20.04.2021, he was posted at PS BHD Nagar and on that day, after the registration of FIR, the present case was marked to him by the order of SHO. He has further deposed that Ct. Rajdeep handed over to him the copy of FIR and original tehrir and thereafter, he along with Ct. Rajdeep reached the spot where he met ASI Sita Ram along with HC Jitender and accused Sunil Kumar. He has further deposed that the custody of the accused was handed over to him by ASI Sita Ram along with the documents. He has further deposed that thereafter, he prepared the site plan at the instance of ASI Sita Ram as Ex.PW-4/C. He has further deposed that thereafter, he interrogated the accused and after interrogation, accused Sunil was arrested vide arrest memo Ex.PW-4/D, conducted the personal search of the accused as Ex.PW-4/E and during his personal search, the original notice under Section 50 of the NDPS Act and one Aadhar card were recovered. The witness recorded the disclosure statement of the accused as Ex. PW-4/F, bearing his signatures at point C and after that, they took the accused to the police station and got a medical examination done through Constable Rajdeep. He has further deposed that on 20.04.2021, he sent an intimation under Section 57 of the NDPS Act to the ACP as Ex. PW-1/B. He has further deposed that 27.04.2021, he moved an application for withdrawal of the samples under Section 52A of the NDPS Act (Mark 1) along with the inventory as Ex.P/D/4. He has further deposed that the proceedings under Section 52 of the NDPS Act were carried out by the learned Magistrate on the same day and the said order was Ex.P/D/5. He has further deposed that after taking the samples, three sealed pullandas duly sealed with the seal of 'PG' was handed over to him along with the sample seal by the Court and thereafter, he deposited the pullandas SC No. 6712022 State Vs. Sunil Kumar Page 14 of 29 in the malkhana. He has further deposed that during the investigation, he inquired regarding the motorcycle no.DL4SBH 7880 and served notice under Section 133 MV Act Ex. PW-9/B to Bhupender Bansal, the registered owner of the above-said motorcycle upon which, Bhupender Bansal gave his reply that on 21.01.2021, he sold the said motorcycle to one Sh. Dinesh and Bhupender produced an affidavit regarding sale/purchase of the above-said motorcycle as Ex.PW-9/A. He has further deposed that he also collected the photocopy of register of Notary who had notarized the affidavit executed by Bhupender Bansal and Dinesh Kumar, the copy of the register of notary is Mark 2 and the Notary Public namely Gurdeep Singh issued a certificate that affidavit for sale/purchase of above-said motorcycle no.DL4SBH 7880 dated 28.01.2021 was attested by him vide serial no.599 and the same is Mark 3. He has further deposed that thereafter, the samples were sent to FSL Rohini through Ct. Mukesh and also issued a letter to MLO, Janak Puri for the particulars of the above said motorcycle and the said letter is Mark 4 upon which MLO, Janak Puri provided vehicle particulars which is Ex.P/D/9. He has further deposed that thereafter, he was transferred from the police station and handed over the case file to MHC(R). This witness was also cross-examined by the Ld. defence counsel.
16. PW-11 is Sh. Dinesh Kumar, S/o Pattu Singh, R/o House No.79, Q-Block, Roshanpura, Najafgarh, New Delhi previously residing at 56B/57A, Dharampura Ext. Najafgarh, New Delhi. He has deposed that on 21.01.2021, he purchased a motorcycle no.DL4SBH 7880 from Bhupender Bansal for a sum of Rs.5,500/- but same was not transferred by him in his name due to which he along with Bhupender Bansal executed an affidavit for sale/purchase dated SC No. 6712022 State Vs. Sunil Kumar Page 15 of 29 28.01.2021 as Ex.PW9/A. He has further deposed that his brother-in- law namely Sunil Kumar i.e. accused took the above-said motorcycle on 20.04.2021 and later on, he came to know that accused Sunil Kumar was apprehended by the police with the above-said vehicle. He has further deposed that IO inquired from him regarding the RC, however, the same was lost. He has further deposed that IO recorded his statement. This witness was also cross-examined by the Ld. Defence counsel.
17. PW-12 is ASI Mukesh Kumar. He has deposed that on 24.12.2021, he was posted as an ASI at PS BHD Nagar and on that day, the investigation of the present case was marked to him as ASI Bachu Singh was transferred. He has further deposed that thereafter, he recorded the statement of Dinesh, S/o Puttu Ram. He has further deposed that on 29.12.2021, after receiving of FSL result as Ex.P/D/10 from the MHC(R), he prepared the charge sheet and filed the same before the Court. This witness was also cross-examined by the Ld. Defence counsel.
18. It is a matter of record that during the trial, the statement of the accused under Section 294 Cr.P.C was recorded on 04.01.2023 wherein the accused has admitted the genuineness of certain documents i.e DD No.7A dated 20.04.2021 as Ex.P/D/1, DD No.26A dated 20.04.2021 as Ex.P/D/2, DD No.49A dated 20.04.2021 as Ex.P/D/3, inventory dated 20.04.2021 as Ex.P/D/4, order dated 27.04.2021 of sample withdrawal along with 15 photographs as Ex.P/D/5, RC No.100/21/21 as Ex.P/D/6, RC No.94/21/21 as Ex.P/D/7, RC No.101/21/21 as Ex.P/D/8, vehicle particulars of Transport Department, Janakpuri as Ex.P/D/9, FSL result dated SC No. 6712022 State Vs. Sunil Kumar Page 16 of 29 17.08.2021 as Ex.P/D/10, FIR no. 179/21 as Ex.P/D/11. Thereafter, prosecution evidence was closed vide order dated 24.01.2023 and today i.e 30.01.2023, the statement of the accused under Section 313 Cr.P.C has been 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.
19. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
FINDINGS:
20. The records of the present case reveal that the accused stands charged for the possession of an intermediate quantity of contraband i.e 3 Kg 920 grams of Ganja (with pithu bag) and 3 Kg 377 grams of Ganja (without pithu bag) while transporting the same on a motorcycle bearing registration no. DL4SBH 7880. 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 in front SC No. 6712022 State Vs. Sunil Kumar Page 17 of 29 of Indira Market, Main Jharoda to Najafgarh Road, New Delhi, and was 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.
21. It is to be kept in mind that the non-joining 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 non-examination 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.
22. 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.
23. In the present case, as per the story of the prosecution, on SC No. 6712022 State Vs. Sunil Kumar Page 18 of 29 20.04.2021, SI Sita Ram along with HC Jitender and Ct. Rajdeep were on patrolling duty and while performing the duty, 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.
24. 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, PW-1 ACP Joginder Joon has deposed in his cross-examination that there were some shops near the spot. He has further deposed that in his presence, ASI Sita Ram had not called any public person. PW-3 SHO Jagtar & PW-6 ASI Jitender Singh have deposed in their cross- examination that there were some shops near the spot and ASI Sita Ram requested 5-6 persons to join the proceedings but all of them refused, however, no notice was given. PW-4 HC Rajdeep has deposed in his cross-examination that there were no shops near the spot, however, he did not remember whether any public person was called during the entire proceedings. PW-7 SI Sita Ram has deposed in his cross-examination that there were some shops near the spot and was a running road and he requested 2-3 public persons to join the proceedings but all of them refused, however, no legal notice was given to them. PW-10 ASI Bachu Singh has deposed in his cross- examination that various public persons were passing through the spot and he requested them to join the proceedings but all of them refused, however, he had not given legal notice to them. Hence, from the examination of the above witnesses, it is evident that the public SC No. 6712022 State Vs. Sunil Kumar Page 19 of 29 persons were present at the spot but the perusal of the cross- examination of the 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 non-joining the investigation despite remaining at the spot for a considerable period.
25. Admittedly, the police officials remained on the spot for a considerable time and the IO had 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. Sub-section (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 which renders the recovery proceedings unworthy of credence. Hence, all these facts give some doubt to the story of the prosecution.
SC No. 6712022 State Vs. Sunil Kumar Page 20 of 2926. Apart from this, PW-1 ACP Joginder Joon has deposed in his cross-examination that he reached the spot at about 9:00 p.m in his government Innova. Even, PW-3 SHO Jagtar has deposed in his cross- examination that he reached the spot in a government gypsy at 8:45 a.m. The prosecution has also failed to produce either the log book of the official vehicle used by the ACP or SHO at the relevant time. 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 ACP & SHO had moved to the spot from their office in a government vehicle. Even, PW-1 has admitted as correct that whenever the government vehicle is used, logbooks are being maintained by the driver of the vehicle. He also admitted as correct that on the same day, the logbook was also maintained by the driver, however he did not remember whether IO collected the logbook with regard to the present case. PW-3 has also admitted as correct that whenever government vehicle is used, logbooks are being maintained by the driver of the vehicle. He also admitted as correct that on the same day, the logbook was maintained by the driver, however, IO had not collected any logbook with regard to the present case. Hence, it creates a grave suspicion regarding the truthfulness of the case of the prosecution.
27. There is also a contradiction with regard to the seal as PW-6 ASI Jitender Singh has deposed in his cross-examination that he handed over the seal to ASI Sita Ram on the next day however, no handing over memo was prepared in this regard. On the contrary, PW- 7 SI Sita Ram has deposed in his cross-examination that HC Jitender had not handed over the seal to him as he deposited the same in the malkhana on the same day.
SC No. 6712022 State Vs. Sunil Kumar Page 21 of 2928. Further, as per the prosecution story, the accused was apprehended with the illegal contraband while transporting the same on a motorcycle bearing no. DL4SBH 7880. PW-7 SI Sita Ram has deposed in his cross-examination that the motorcycle was having one key and seizure memo was prepared by him in this regard and he signed the same. He admitted as correct that as per seizure memo Ex. PW-4/B, it was nowhere mentioned about the key. The perusal of Ex. PW-4/B shows that the fact regarding the recovery of the key of the motorcycle has not been mentioned. It is a very surprising fact that if no key was recovered then how the motorcycle was being driven by the accused.
29. Further, as per the cross-examination of PW-4 HC Rajdeep, he went to the police station for the registration of the FIR and he was alone in the gypsy and reached back the spot at about 11:15 a.m alone but he did not remember how ASI Bachu Singh came at the spot which is again in contrast to the deposition of PW-10 ASI Bachu Singh who has deposed in his cross-examination that he came to the spot on his motorcycle and Ct. Rajdeep was on his motorcycle. On the other hand, PW-7 SI Sita Ram has deposed in his cross- examination that Ct. Rajdeep went to the police station through private motorcycle for registration of the FIR and he again reached the spot along with ASI Bachu Singh who was on his motorcycle.
30. Furthermore, PW-1 ACP Joginder Joon has deposed in his cross-examination that ASI Sita Ram conducted all the proceedings in a government gypsy. On the other hand, PW-3 SHO Jagtar has deposed in his cross-examination that ASI Sita Ram conducted all the proceedings on the bonnet of his car which is again in contrast to the SC No. 6712022 State Vs. Sunil Kumar Page 22 of 29 deposition of PW4 HC Rajdeep who has deposed in his cross- examination that ASI Sita Ram conducted all the proceedings while sitting in a street in the gypsy while PW-6 ASI Jitender Singh has deposed in his cross-examination that ASI Sita Ram conducted all the proceedings while sitting on the bonnet of the gypsy which is totally in contrast to the deposition of PW-7 SI Sita Ram who has deposed in his cross-examination that he conducted all the proceedings while sitting on stairs near one shop.
31. Further, PW-10 ASI Bachu Singh has deposed in his cross-examination that Ct. Rajdeep took the accused for his medical examination whereas, PW-4 HC Rajdeep has deposed in his examination-in-chief that IO got conducted the medical examination of the accused.
32. Further, PW-4 HC Rajdeep & PW-6 ASI Jitender Singh have admitted as correct in their cross-examination that it is nowhere mentioned in their statements under Section 161 Cr.P.C that notice under Section 50 of the NDPS Act was given to the accused. As per the prosecution story, PW-7 IO/SI Sita Ram has served the notice under Section 50 of the NDPS Act to the accused and reply of the accused was taken on the carbon copy of the notice wherein accused replied that he did not want to be searched in the presence of the Gazetted Officer. It is quite a surprising fact that when the notice under Section 50 of the NDPS Act has been served to the accused, then why the said fact has not been mentioned in the statements of under Section 161 Cr.P.C of PW-4 HC Rajdeep & PW-6 ASI Jitender Singh that notice under Section 50 of the NDPS Act was given to the accused. Hence, in these circumstances, the serving of the notice SC No. 6712022 State Vs. Sunil Kumar Page 23 of 29 under Section 50 of the NDPS Act to the accused seems to be doubtful.
33. It is pertinent to mention here that the presence of PW-4 HC Rajdeep i.e one of the recovery witness is also doubtful and his testimony does not appear to be trustworthy. It is also a matter of record that the documents i.e recovery memo, seizure memo, arrest memo, personal search memo, disclosure statement etc. were prepared in his presence which is evident from the record as the said documents bear the signatures of PW-4 but the perusal of his cross-examination shows that he was not aware of most of the answers asked to him. From the examination of this witness, it prima facie appears that he was not aware of the very material things of the case.
34. Further, PW-1 ACP Joginder Joon has deposed in his cross-examination that SHO had not left the spot in his presence which is in contrast to the deposition of PW-3 SHO Jagtar who has deposed in his cross-examination that he along with ACP left the spot at the same time and the said fact was supported by PW-7 SI Sita Ram.
35. Further, as per the cross-examination of PW-1 ACP Joginder Joon, the recovery memo Ex. PW-1/A was prepared in the presence of SHO Jagtar, however, he did not remember whether SHO signed the same or not. Even, PW-3 SHO Jagtar has deposed in his cross-examination that the seizure memo was prepared in his presence but he had not signed the same. The perusal of Ex. PW-1/A shows that it does not bear the signatures of SHO Jagtar although, he remained at the spot for a considerable time. There would have been no difficulty SC No. 6712022 State Vs. Sunil Kumar Page 24 of 29 in obtaining the signatures of SHO Jagtar on the seizure memo to secure his presence at the spot. The above-said lacunas are fatal to the case of the prosecution and cast serious doubt in the story of prosecution.
36. Further, PW-4 HC Rajdeep has deposed in his cross- examination that he left the spot at 11:30 a.m along with HC Jitender which is again in contrast to the deposition of PW-10 ASI Bachu Singh who has deposed in his cross-examination that they left the spot at about 3:30 p.m. On the other hand, PW-6 ASI Jitender Singh has deposed in his cross-examination that they left the spot after 2:00 p.m. It is a matter of record that the accused was arrested at the spot itself and it is evident from the record that the arrest memo Ex. PW-4/D bears the signatures of HC Rajdeep at point A which was prepared at 2:00 p.m. It is quite a surprising fact that when HC Rajdeep had left the spot at about 11:30 p.m after completion of investigation then how the arrest memo of the accused which was prepared at 2:00 p.m and that too having the signatures of HC Rajdeep. From the perusal of the testimonies of above witness show that there is a great variation with regard to the timings.
37. Further, PW-6 ASI Jitender Singh has deposed in his cross-examination that ASI Sita Ram left the spot at about 12:00 noon and went to the police station by bus whereas PW-10 ASI Bachu Singh has deposed in his cross-examination that ASI Sita Ram had left the spot at about 1:00 p.m and went to the police station in a government gypsy which his again in contrast to the deposition of PW-7 SI Sita Ram who has deposed in his cross-examination that he finally left the spot at 11:00 a.m and went to the police station by SC No. 6712022 State Vs. Sunil Kumar Page 25 of 29 government gypsy.
38. Further, PW-6 ASI Jitender Singh has deposed in his cross-examination that ASI Bachu Singh only prepared site plan in the presence of ASI Sita Ram whereas PW-7 SI Sita Ram has deposed in his cross-examination that ASI Bachu Singh prepared site plan, arrest memo and personal search memo in his presence, however, the disclosure statement was not recorded in his presence. On the contrary, PW-10 ASI Bachu Singh has deposed in his cross-examination that he prepared site plan, arrest memo, personal search memo and disclosure statement was recorded in the presence of ASI Sita Ram. However, the perusal of record shows that Ex. PW-4/C i.e site plan was prepared by PW-10 ASI Bachu Singh in the presence of ASI Sita Ram and it bears the signatures of ASI Sita Ram at point A.
39. The counsel for the accused has argued regarding tampering of case property till the same remained in the custody of officials. It is a settled law that to safeguard the possible 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 delay is to be ignored.
40. The perusal of record shows that illegal contraband was recovered and seized from the accused during the raid conducted by the raiding/patrolling team on 20.04.2021 but samples of ganja were sent to FSL on 06.07.2021 and there is an unexplained delay in SC No. 6712022 State Vs. Sunil Kumar Page 26 of 29 sending the samples to FSL as same were 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 whether it is the same case property that was recovered from the accused and sent to FSL or it was case property of some other case.
41. To this effect, reliance is placed upon judgment 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 for 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".
42. Further, PW-8 HC Kabool Singh has deposed in his cross-examination that SHO/Inspector Jagtar called him at his office with register no.19 and deposited the sealed case property and copy of seizure memo upon which PW-8 made entry at serial no.2124 in register no. 19 as Ex. PW-5/A. However, PW-8 has admitted as correct in his cross-examination that SHO Jagtar Singh had not signed in register no. 19 at column no. 3 while depositing the case property in malkhana and the said fact has also been admitted by PW-5 ASI Anil Kumar in his cross-examination. Hence in these circumstances, tampering with case property cannot be ruled out and it creates a serious doubt in the story of the prosecution.
43. Hence, the above-said contradictions cast grave doubt on SC No. 6712022 State Vs. Sunil Kumar Page 27 of 29 the presence of witnesses on 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.
44. Hence, from the above discussion, it is observed that there are major contradictions in the deposition of the 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 the above-mentioned 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 the 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.
45. Hence, considering the overall facts and circumstances of the present and given the above observations, accused Sunil Kumar is acquitted of the offences punishable under Section 20 (b) (ii) (B) & 25 of the NDPS Act by giving him the benefit of doubt.
46. 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.
SC No. 6712022 State Vs. Sunil Kumar Page 28 of 2947. Case property is confiscated to the State and in 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. DEEPAK Digitally signed by DEEPAK WASON WASON Date: 2023.01.30 17:15:33 +0530 Pronounced in the open court (Deepak Wason) today i.e 30th January 2023 Special Judge (NDPS): SW District Dwarka Courts: New Delhi SC No. 6712022 State Vs. Sunil Kumar Page 29 of 29