Delhi District Court
State vs . Ganga on 1 October, 2022
IN THE COURT OF SH. DEEPAK WASON:
SPL. JUDGE (NDPS): DWARKA COURTS: NEW DELHI
SC No. 377/2021
FIR No. 703/2020
PS: Chhawla
U/s. 20 (b) (ii) (B) NDPS Act
State vs. Ganga
Date of Institution of case:26.06.2021
Date of arguments:01.10.2022
Date on which Judgment pronounced:01.10.2022
JUDGMENT
CNR No. : DLSW010059492021
Date of commission of the offence :17.07.2020
Name of complainant :Ct. Arvind
Name and address of accused :Ganga,
W/o Sh. Patliya
R/o Prem Nagar Basti,
Najafgarh, Rewla,
Khanpur, New Delhi
Offence complained of :20 (b) (ii) (B) NDPS Act
Plea of accused :Pleaded not guilty
Date of order :01.10.2022
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 17.07.2020, HC Amar Chand along with Ct. Arvind were on patrolling duty at Parena Basti on foot and about 12:00 noon, one secret informer met them and informed them that one lady namely Ganga, who used to run a Grocery Shop and also sell the ganja, would be coming from the side of Jhatikara Village along with ganja and if raided then, she could be apprehended, thereafter, HC Amar Chand requested some SC No. 377/2021 State Vs. Ganga Page 1 of 26 passersby to join the investigation but all refused the same and left the spot without disclosing their names and addresses. It is further the case of the prosecution that thereafter, HC Amar Chand and Ct. Arvind took their positions near the gate of the bus depot and at about 12:15p.m, one lady was seen coming from the side of Jhatikara Village and she was carrying a white colour thali on her head and the secret informer signaled towards that lady by saying that she was Ganga. It is further the case of the prosecution that after seeing the police party, accused Ganga was trying to flee away from the spot but she was stopped by police party by saying that they have to search that thaili and after checking the thaili, same was found ganja. Thereafter, Ct. Arvind telephonically informed the police station about the same and after that, SI Jag Mohan along with W/Ct. Poonam reached the spot and thereafter, they handed over the custody of the accused and recovered ganja to SI Jag Mohan and thereafter, SI Jag Mohan introduced himself and shared the secret information and introduced the raiding party to the accused and also informed about her legal rights. It is further the case of the prosecution that thereafter, SI Jag Mohan prepared notice under Section 50 Narcotic Drugs and Psychotropic Substances Act, (in short, the NDPS Act) and was given to the accused in original, upon which she gave her thumb impression on the same. Thereafter, W/Ct. Poonam checked the bag and upon checking, one polythene was found inside the bag containing a leafy, grassy substance having a foul smell and on its physical appearance, it appeared to be ganja and the same was weighed with the help of an SC No. 377/2021 State Vs. Ganga Page 2 of 26 electronic weighing machine, which was brought by Ct. Arvind from the police station and it was found to be 2 kg 500 grams, out of which, SI Jag Mohan took one sample of 100 grams from the recovered ganja and separately sealed in a green colour thaila and the sample was converted into pullanda with the help of white cloth and gave marks to the samples as Mark A and remaining ganja was kept in the same polythene and the said polythene was kept in the same bag and was converted into pullanda with the help of white cloth and same was marked as Mark B and both the pulandas were sealed with the seal of 'JM' and seal after use was handed over to Ct. Arvind. It is further the case of the prosecution that thereafter, Inspector Jog Mohan informed the SHO and after some time, SHO reached the spot and Inspector Jag Mohan produced sealed pulandas before SHO and thereafter, same were counter sealed by the SHO with his seal 'GM' and both the pulandas were seized by SI Jag Mohan and case property along with FSL form, copy of seizure memo were handed over to SHO and thereafter, SHO left the spot. It is further the case of the prosecution that thereafter, SI Jag Mohan prepared a tehrir and handed over the same to Ct. Arvind for registration of FIR.
2. After the registration of the FIR, Ct. Arvind returned to the spot and handed over the copy of the FIR and original tehrir to SI Jag Mohan. Thereafter, SI Jag Mohan interrogated the accused and after interrogation, the accused was arrested and her personal search was conducted. It is further the case of the prosecution that thereafter, they SC No. 377/2021 State Vs. Ganga Page 3 of 26 returned to the police station and after recording the disclosure statement of the accused, a medical examination of the accused was conducted and thereafter, SI Jag Mohan sent the intimations under Section 57 of NDPS Act to ACP through SHO and thereafter, samples were sent to FSL Rohini vide RC no. 188/21/20 through Ct. Balram and thereafter, SI Jag Mohan prepared the charge sheet and sent the same to the Court.
3. Vide order dated 25.05.2022, 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 2 Kg 500 Grams of Gaanja (cannabis) to which she pleaded not guilty and claimed trial.
4. The prosecution examined 8 witnesses in support of its case who are as follows:
5. PW1 is Inspector Gyanender. This witness was posted as the SHO PS Chhawla at the relevant time and has deposed that on 17.07.2020, he was present in the area of the police station and at that time, SI Jag Mohan telephonically informed him to reach the spot ie Main Jhatikara Road, Opposite Bus Depot, Rewla, Khan Pur, Prerna Basti, Delhi, upon which, he reached the spot where SI Jag Mohan along with W/Ct. Poonam, HC Amar Chand, and Ct. Arvind along with one lady Ganga met him. He has further deposed that in the meanwhile, Ct. Arvind brought a weighing machine to the SC No. 377/2021 State Vs. Ganga Page 4 of 26 spot and thereafter, IO weighed the recovered ganja which was kept in white colour plastic panni on weighing the same, it was found 2 Kg 500 grams of ganja, and thereafter, he left the spot. He has further deposed that thereafter, he again came to the spot and IO produced 2 sealed parcels/ pullandas duly sealed with the seal of 'JM', FSL form, and carbon copies of seizure memo before him and he checked the same and both the sealed parcels and FSL Form were having specimen seal of 'JM' which were counter sealed by him with 'GM'. He has further deposed that thereafter, he took the case property in the police station and deposited it in the malkhana PS. He has further deposed that on his direction, MHC(M) made an entry in register No. 19 at serial no. 2118 as Ex. PW1/A and thereafter, he lodged DD No.107A as Ex.PW1/B, regarding depositing of the case property about the compliance of Section 55 NDPS Act. This witness was crossexamined by Ld. defence counsel.
6. PW2 is HC Ram Avtar. He is the Duty Officer and has proved the FIR as Ex. PW2/A and endorsement on the rukka as Ex. PW2/B. He has further deposed that on the same day, at about 11:18 am, HC Amar Chand and Ct. Arvind made their departure entry for patrolling at beat No. 7 vide DD No. 26A as Ex.PW2/C. This witness was crossexamined by the Ld. defence counsel.
7. PW3 is Head Constable Rakesh Kumar. He is the MHC(M) and deposed that on 17.07.2020, he made the entry in register no. 19 at serial no. 2118 as Ex.PW1/A. He SC No. 377/2021 State Vs. Ganga Page 5 of 26 has further deposed that on 07.09.2020, two sealed pulandas were sent to FSL Rohini through Ct. Balram vide RC No. 188/21/2020 as Ex.PW3/A and after returning from FSL, Ct. Balram handed over the receipt of the same to MHC(M) as Ex.PW3/B. He has further deposed that till the case property and FSL form remained in his custody, the same was not tampered with. This witness was also crossexamined by Ld. defence counsel.
8. PW4 is Ct. Arvind. He is the complainant of the case and has deposed that on 17.07.2020, he was posted at P.S Dabri as Constable and on that day, he along with HC Amar Chand were on patrolling duty in the area of Prerna Basti on foot and at about 12:00noon, one secret informer met them and informed that one lady namely Ganga, who used to run a Grocery shop would sell the ganja and would come from the side of Jhatikara Village along with ganja, if raided, she can be apprehended. He has further deposed that thereafter, HC Amar Chand requested 45 passersby to join the investigation, however, they refused the same and left the spot without disclosing their names and addresses. He has further deposed that thereafter, they took their position near the gate of the bus depot and at about 12:15 pm, one lady coming from the side of Jhatikara Village and was carrying a white thaili on her head and after seeing her, secret informer pointed out towards the accused and stated that she was Ganga and after seeing the police, that lady tried to flee away from the spot, however, she was stopped by them and upon checking the thaili, same was found containing ganja and SC No. 377/2021 State Vs. Ganga Page 6 of 26 thereafter, he telephonically informed in the police station, upon which, SI Jag Mohan along with W/Ct. Poonam reached the spot. He has further deposed that thereafter, they handed over the custody of the accused and the recovered substance/ganja to SI Jag Mohan and further deposed on the lines of IO / PW5 Inspector Jag Mohan. This witness was also crossexamined by Ld. defence counsel.
9. PW5 is Inspector Jag Mohan. He is IO of the case and has deposed that on 17.07.2020, he was posted at PS Chhawla as SubInspector and on that day, on receiving of DD No. 63A, he along with Wct. Poonam reached the spot ie Bus Depot, Prerna Basti main Jhatikara Road where HC Amar Chand, Ct. Arvind along with the accused Ganga met them. He has further deposed that thereafter, HC Amar Chand and Ct. Arvind handed over the custody of accused Ganga along with a bag that was recovered from accused Ganga to him and thereafter, he recorded the statement of Ct. Arvind as Ex.PW5/A. He has further deposed that thereafter, W/Ct. Poonam took the search of the bag of accused Ganga and apprised her about her legal rights that her search can be taken in the presence of any Magistrate or Gazetted officer and also apprised the accused that before her search, the accused can take the search of the police party. He has further deposed that he prepared notice under Section 50 NDPS Act with the help of carbon as Ex.PW5/K and the original notice under Section 50 NDPS Act as Ex.PW5/J was given to the accused. He has further deposed that thereafter, W/Ct. Poonam took the search of the bag of the accused and SC No. 377/2021 State Vs. Ganga Page 7 of 26 on checking the bag, one polythene was found inside the bag which was containing a leafy, grassy substance having a foul smell and its physical appearance, it was found to be ganja. He has further deposed that thereafter, on his direction, Ct. Arvind brought the electronic weighing machine from the police Station and thereafter, he weighed the recovered ganja with the help of an electronic weighing machine and the weight of the recovered ganja was found 2 Kg and 500 grams and thereafter, he took one sample of 100 grams from the recovered ganja and separately sealed in a green colour thaila and sample was converted into pullanda with the help of white cloth and gave marks to the sample as Mark A and remaining ganja i.e 2 Kg 400 grams ganja was kept in same polythene and said polythene was kept in the same bag and bag was converted into pulanda with the help of white cloth and marked as Mark B. He has further deposed that both pulandas were sealed with a seal of 'JM' and after use, the seal was handed over to Ct. Arvind and thereafter, he informed the SHO and after some time, SHO reached the spot and he produced the sealed pulandas before SHO and thereafter, SHO counter sealed both the pulandas with the seal of 'GM' and thereafter, he seized both pulandas vide seizure memo as Ex.PW5/B. He has further deposed that thereafter, case property, FSL form, and copy of seizure memo were handed over to SHO, and thereafter, SHO left the spot and after that, he prepared a tehrir, based on the statement of Ct. Arvind, under Section 20 NDPS Act as Ex.PW5/C and handed over to Ct. Arvind for registration of FIR. He has further deposed that after registration of FIR, Ct. Arvind SC No. 377/2021 State Vs. Ganga Page 8 of 26 returned to the spot and handed over to him a copy of the FIR and original tehrir. He has further deposed that after interrogation, accused Ganga was arrested as Ex.PW5/F and her personal search was conducted as Ex.PW5/G and thereafter, they returned to the police station and he recorded the disclosure statement of the accused as Ex.PW5/H. He has further deposed that thereafter, he got conducted a medical examination of the accused at RTRM hospital, and after medical examination, the accused was sent to lock up, and thereafter, he sent intimation under Section 57 of NDPS Act to ACP through SHO as Ex.PW5/I. He has further deposed that thereafter, he sent pulandas to FSL through Ct. Balram vide RC No. 188/21/20 as Ex.PW3/A and after recording the statement of witnesses, he prepared the charge sheet and sent it to Court. This witness was also cross examined at length by Ld. Defence counsel.
10. PW6 is ASI Amar Chand. He is one of the members of the patrolling team and has deposed on the lines of PW4 Ct. Arvind and PW5 Inspector Jag Mohan. This witness was also crossexamined by Ld. defence counsel.
11. PW7 is Head Constable Balram. He has proved the copy of RC as Ex.PW3/A and acknowledgment of the case as Ex.PW3/B. This witness was also crossexamined by Ld. defence counsel.
12. PW8 is W/Constable Poonam. She is one of the members of the patrolling team and has deposed on the lines SC No. 377/2021 State Vs. Ganga Page 9 of 26 of PW4 Ct. Arvind and PW5 Inspector Jag Mohan. This witness was also crossexamined by Ld. defence counsel.
13. It is a matter of record that during the trial, the statement of the accused under Section 294 Cr.P.C was recorded on 26.09.2022 wherein the accused has admitted the genuineness of certain documents i.e DD No. 74A dated 17.07.2020 as Ex.P/D/1, FSL result dated 29.10.2020 and intimation under Section 57 of NDPS Act as Ex.P/D/3. Thereafter, prosecution evidence was closed vide order dated 27.09.2022 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 her to which she stated that she 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 the matter was posted for final arguments.
14. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
FINDINGS:
15. The records of the present case reveal that the accused stands charged for the possession of an intermediate quantity of contraband i.e 2 kg 500 grams of ganja (cannabis). The stringent provisions are provided under the law regarding the punishment, especially in the NDPS cases. The scheme of the NDPS Act and its objects and reasons mandate that the SC No. 377/2021 State Vs. Ganga Page 10 of 26 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 at main Zhatikara Road, in front of Bus Depot, Perna Basti, New Delhi, and the accused was found in possession of an intermediate quantity of ganja (cannabis). Hence, it has to be proved that the accused was found in possession of the contraband i.e ganja (cannabis).
16. The Ld. counsel for the accused has argued that the notice under Section 50 NDPS Act was defective as the accused was not explained about her legal right to be searched before a Gazetted officer or Magistrate. During the arguments, Ld. counsel for the accused referred to the case of D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416 to contend that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence.
17. Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right SC No. 377/2021 State Vs. Ganga Page 11 of 26 upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusations and also to lend credibility to the search and seizure conducted by the empowered officer.
18. The question which thus arises for consideration is whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere inquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by the State of Punjab Vs. Baldev Singh (1999) 3 SCC 977.
19. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimize the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer SC No. 377/2021 State Vs. Ganga Page 12 of 26 or a Magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction.
20. As per the prosecution story, it is undisputedly clear that the quantity of the contraband seized in the case is 2 Kg 500 grams of ganja (cannabis), and the same was found kept in a white colour polythene/bag which was recovered and seized from the possession of the accused. Although, the proceeding was carried out for the service of notice under Section 50 of the Act and obtaining the consent of the accused which may be questioned, but the question as to whether there was such a requirement to serve accused notice under Section 50 of the NDPS Act, if answered it would be answered in negative.
21. Hon'ble Supreme Court in the case of State of HP v Pawan Kumar (2005) 4 SCC 350 held very clearly that applicability of Section 50 of NDPS Act would be necessary only in case of search of a person and not in case of the bag, baggage or container.
22. The scope and ambit of Section 50 of the Act was examined in considerable detail by Constitution Bench in State of Punjab v. Baldev Singh (supra) and para no. 12 of the report is being reproduced below:
"12. On its plain reading, Section 50 would come into play SC No. 377/2021 State Vs. Ganga Page 13 of 26 only in case of a search of a person as distinguished from a search of any premises, etc.
23. Hence, the arguments raised by the accused on this issue are not entertainable.
24. Further, it has to be proved that the accused was found in possession of the contraband i.e ganja (cannabis). The record reveals that no independent public person was joined in the proceedings.
25. 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.
26. 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 SC No. 377/2021 State Vs. Ganga Page 14 of 26 burden lies heavily on the prosecution to prove two things. Firstly, that genuine and sincere efforts were made by the investigating officer to join independent persons in the proceedings, and secondly, that the evidence of the official witnesses does not suffer from any infirmity.
27. In the present case, as per the story of the prosecution, on 17.07.2020, HC Amar Chand was on patrolling duty with Ct. Arvind and on receiving secret information, accused Ganga was apprehended 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.
28. As far as the testimonies of witnesses about the joining of independent witnesses are concerned, PW4 Ct. Arvind has deposed in his crossexamination that the accused was apprehended near one Bus Depot and there were various buses. He has further deposed that HC Amar Chand has called various public persons to join the investigation but all of them refused. He further deposed that SI Jag Mohan had not called any person to join the investigation. PW5 Inspector Jag Mohan has deposed in his crossexamination that he did not remember how many public persons gathered at the spot, however, he had not called any public person to join the investigation. PW6 ASI Amar Chand has deposed in his crossexamination that the accused was apprehended near one Bus Depot, however, there were no buses. He has further SC No. 377/2021 State Vs. Ganga Page 15 of 26 deposed that he had called 34 public persons to join the investigation but all of them refused. He has further deposed that SI Jagmohan also requested 34 public persons to join the proceedings but all of them refused, however, no legal notice was given to them. PW8 W/Ct. Poonam has deposed in her crossexamination that public persons were requested to join the proceedings but all of them left and no legal notice was given to them. It is evident from the perusal of the examination of the witnesses that despite the availability of witnesses and remaining at the spot for a considerable period, IO of any other police official had not made sincere efforts to join the public persons in the investigation nor served any notice to them for nonjoining the investigation.
29. Admittedly, the police officials remained on the spot for a considerable period and 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. The raiding team had remained at the spot for a considerable period. It is quite a 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 in a casual and routine manner 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 spells out that if a public witness refuses or neglects to attend a search without reasonable cause despite an order in writing, SC No. 377/2021 State Vs. Ganga Page 16 of 26 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 prosecution's story.
30. There are various other lacunas in the story of the prosecution. PW4 Ct. Arvind has deposed in his cross examination that SI Jag Mohan prepared the site plan at his instance as well as HC Amar Singh. On the other hand, PW6 ASI Amar Chand deposed in his crossexamination that he did not remember the site plan, however, the same was prepared by SI Jag Mohan. However, it is quite interesting to note here that the perusal of the entire record shows that the site plan has not been prepared in the present case which is a serious dent in the story of the prosecution. In the absence of any site plan, it cannot be said that where the recovery was effected and no reasons have been given by the IO that why the site plan has not been prepared by the IO.
31. Apart from this, it is even more surprising that the SC No. 377/2021 State Vs. Ganga Page 17 of 26 document Ex. PW5/I i.e information under Section 57 of the NDPS Act is undated which fact has been noticed during the examination of PW5 Inspector Jag Mohan, who has deposed that he sent intimation under Section 57 of the NDPS Act to ACP through SHO which is Ex. PW5/I. However, it was observed by the Court that the date has not been mentioned on Ex. PW5/I. It is worthwhile to note here that the provisions of Section 57 of the NDPS Act are directory in nature. Violation of these provisions would not ipso facto violate the trial. However, Investigating Officer cannot ignore these provisions and such failure will have bearing on the appreciation of evidence regarding the arrest of the accused or seizure of contraband.
32. Further, PW4 Ct. Arvind has deposed in his cross examination that HC Amar Chand, W/Ct. Poonam including him signed the disclosure statement. Even, PW6 ASI Amar Chand has deposed in his crossexamination that he as well as Ct. Arvind has signed the disclosure statement of the accused on the spot. However, it is interesting to note that the perusal of Ex. PW5/H i.e disclosure statement shows that it does not bear the signatures of any of the abovesaid witnesses.
33. Furthermore, PW4 Ct. Arvind as well as PW6 ASI Amar Chand have deposed in their crossexamination that only SI Jag Mohan and accused Ganga had signed/put a thumb impression on the personal search memo and no other police official had signed the said document. However, the SC No. 377/2021 State Vs. Ganga Page 18 of 26 perusal of document Ex. PW5/G shows that it also bears the signatures of Ct. Arvind at point B and W/Ct. Poonam at point C. These things show doubt with regard to the presence of the above said officials at the spot.
34. Further, as per the crossexamination of PW1 Inspector Gyanender, the recovered ganja was weighed by the IO in his presence and the case property was sealed by him at the spot with the seal of 'GM'. Even PW4 Ct. Arvind has deposed in his crossexamination that SHO signed the seizure memo. However, the record reveals that the signatures of the SHO have not been obtained on any of the documents to show his presence at the spot. The abovesaid lacunas are fatal to the case of the prosecution.
35. Further, PW1 Inspector Gyanender has deposed in his crossexamination that after receiving the information, he reached the spot at about 12:30 p.m and after weighing the recovered ganja, he left the spot and went towards Jhatikara Picket for official work and after 2025 minutes, he again returned to the spot and countersealed the case property. It is quite a surprising fact that except this witness, all the other witnesses are silent on the aspect of leaving the spot by the SHO in between the proceedings. Hence, in view of the abovesaid facts and circumstances, the story of the prosecution also appears to be doubtful.
36. Further, PW4 Ct. Arvind has deposed in his cross examination that he went to the police station for registration SC No. 377/2021 State Vs. Ganga Page 19 of 26 of FIR at about 1:00 p.m and came back at the spot at about 2:00 p.m which is again in contrast to the deposition of PW6 ASI Amar Chand who has deposed in his crossexamination that Ct. Arvind went to the police station at about 12:00 noon for the registration of the FIR and came back to the spot at about 1:00 p.m.
37. Further, as per the deposition of PW4 Ct. Arvind, he along with IO and W/Ct. Poonam finally left the spot at about 7:45 p.m and SI Jag Mohan and W/Ct. Poonam and the accused were in the car of SI Jag Mohan and HC Amar Chand was with him on his motorcycle, on the other hand, PW5 Inspector Jag Mohan deposed in his crossexamination that finally, he reached the police station at about 2:003:00 p.m. However, the deposition of above said witnesses is in contrast to the deposition of PW6 ASI Amar Chand who has deposed in his crossexamination that he along with IO and W/Ct. Poonam finally left the spot at about 2:30p.m3:00 p.m.
38. It is a matter of record that during the examination of the witness, it was observed by the Court that the original notice under Section 50 NDPS Act with the reply of the accused was neither on judicial record nor in the police file and matter was adjourned for clarification from the IO. It is a matter of record that on 26.09.2022, PW5 Inspector Jag Mohan brought the original notice under Section 50 NDPS Act along with a carbon copy of the notice which was taken on judicial record, and the same was exhibited as Ex. PW5/J and carbon copy of the same is Ex. PW5/K. During the SC No. 377/2021 State Vs. Ganga Page 20 of 26 crossexamination by Ld. Defence counsel, PW5 replied the notice under Section 50 NDPS Act along with a carbon copy of the said notice was retained by him with his miscellaneous papers and inadvertently, the same has not been filed with the charge sheet. Even, PW3 W/Ct. Sanju has deposed in his crossexamination that an original copy of a notice under Section 50 of NDPS Act was served to the accused and till the time, she remained at the spot, she did not remember if any reply of notice under Section 50 of NDPS Act was taken by the accused. Moreover, the perusal of the Ex. PW4/G i.e personal search memo shows that nothing has been recovered/seized from the personal search of the accused which creates a doubt whether the notice under Section 50 NDPS Act was served upon the accused or not. Hence, it also creates some doubt in the story of the prosecution.
39. Furthermore, PW4 Ct. Arvind has deposed in his crossexamination that SHO reached the spot at about 12:40 p.m through a government gypsy. On the other hand, PW6 ASI Amar Chand has deposed in his crossexamination that SHO came to the spot at about 1:00 p.m through a government gypsy. A perusal of the testimonies of the witnesses shows that there is a variation about the arrival of the SHO at the spot however, one thing is clear the SHO had arrived at the spot in a government vehicle. However, the prosecution has failed to produce either 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 SC No. 377/2021 State Vs. Ganga Page 21 of 26 producing such evidence, if indeed SHO has moved to the spot from his office in a government vehicle. This also creates a grave suspicion regarding the truthfulness of the case of the prosecution.
40. It is interesting to note that the personal search of the accused was conducted by W/Ct. Poonam vide memo Ex. PW5/G and it also bears the signature of W/Ct. Poonam at point C. Further, PW8 W/Ct. Poonam has specifically deposed in his examination that she took the search of the bag of the accused and on checking the bag, one polythene was found inside the bag containing leafy, a grassy substance having a foul smell and on its physical appearance, it was found to be ganja. In this regard, at this stage, it would be relevant to go through the judgment titled as 'Mamta Vs. The State of Delhi' in Bail Application No. 2270/2021, dated 28.09.2021 wherein it was held in para no. 10 that:
Chapter V of the NDPS Act deals with the procedure. Before proceeding further, I may take note of Sections 41 and 42 as well as Section 51 of the NDPS Act, 1985. In terms of Sections 41 (2) and 42 (1) of the NDPS Act, it is only an empowered officer who can give the authorization to his subordinate officer to carry out the arrest of a person or search as mentioned therein. The aforesaid Sections also provide that an authorized officer is an officer who is superior in rank to a peon, sepoy, or constable. A police constable is not an officer authorized. In fact, the aforementioned Sections specifically bar the inclusion of a constable in the ambit of 'authorized officer'.
41. It was further observed by the Hon'ble High Court SC No. 377/2021 State Vs. Ganga Page 22 of 26 of Delhi in para no. 17 that: A holistic reading of Sections 41, 42 & 43 of the NDPS Act would show that only an empowered officer, being an officer superior in rank to a peon, sepoy, or Constable, has been authorized with the power of entry, search, seizure, and arrest. From the foregoing, it is apparent that the expression 'officer', whether empowered, authorized or subordinate has to be necessarily read to mean a person who is above the rank of a peon, sepoy, or a Constable.
42. In the present case, the secret information stated to be received was with respect to a female. A perusal of the material placed on record would show that it has not been stated why no effort was made to secure the presence of a female police officer above the rank of Constable. Admittedly, in the present case, it was not a chance recovery and the police officials were having ample time to join the police officer who is above the rank of Constable in the proceedings. In view of the above enunciation of law, this Court is of the considered view that the search conducted by W/Constable Poonam does not appear to be in strict compliance with the provisions of the NDPS Act.
43. It is pertinent to mention here that the presence of PW8 W/Constable Poonam i.e one of the recovery witnesses is also doubtful and her testimony does not appear to be trustworthy. It is also a matter of record that the documents i.e arrest memo, personal search memo, recovery memo, etc. were prepared in her presence which is evident from the record as the documents bear the signatures of PW8 but the SC No. 377/2021 State Vs. Ganga Page 23 of 26 perusal of his crossexamination shows that she was not aware of most of the answers asked to her. From the examination of this witness, it prima facie appears that she was not aware of the very material things of the case.
44. 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.
45. The perusal of the record shows that illegal contraband was recovered and seized from the accused on 17.07.2020 but samples of ganja (cannabis) were sent to FSL on 07.09.2020 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 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.
46. To this effect, reliance is placed upon judgment titled as Ramesh & Anr. Vs. State of Haryana 1998 (1) C. SC No. 377/2021 State Vs. Ganga Page 24 of 26 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".
47. In this regard, the testimony of PW3 HC Rakesh Kumar is relevant. It is pertinent to mention here that as per his deposition, the case property was deposited by Inspector Gyanender. In his crossexamination, he has deposed that in register no.19, the name of the depositor has been mentioned as SI Jag Mohan. Hence in these circumstances, the tampering with case property cannot be ruled out and it creates a serious doubt in the story of the prosecution.
48. 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 SC No. 377/2021 State Vs. Ganga Page 25 of 26 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 her. Thus accused is required to be acquitted in the present case by giving her the benefit of doubt. Thus on all counts, the guilt of the accused has not been duly proved.
49. Hence, considering the overall facts and circumstances of the present and in view of the above observations, accused Ganga is acquitted for offence punishable under Section 20 (b) (ii) (B) of the NDPS Act by giving her the benefit of doubt.
50. Accused has furnished bail bonds in terms of Section 437A Cr.P.C and shall remain in force for a period of six months from today.
51. 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: 2022.10.01 14:01:36 +0530 Pronounced in the open court (Deepak Wason) today i.e 01 October 2022 st Special Judge (NDPS): SW District Dwarka Courts: New Delhi SC No. 377/2021 State Vs. Ganga Page 26 of 26