Delhi District Court
State vs 1. Sudhir @ Kalwa (Bail) on 22 December, 2014
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 24/09 FIR No. : 88/09 PS : Crime Branch U/Sec. : 20 NDPS Act Case ID : 02402R0231672009 State Versus 1. Sudhir @ Kalwa (Bail) S/o Sh. Ram Kumar R/o Village Alipur, P.O. Khajuri, District Meerut, U.P. Date of Institution : 03.08.2009 Date of reserving order : 29.08.2014 Date of Judgment : 22.12.2014 JUDGMENT
THE PROSECUTION CASE:
1. On 14.06.2009 at about 9.15 a.m., PW-10 SI Vivek Pathak received an intelligence from a secret informer in the police station Narcotics Cell, Delhi that a person namely Sudhir @ Kalwa, a resident of Alipur, Meerut U.P. was indulging in supply of charas in Delhi and he would come near Metro Station, Dilshad Garden to supply charas to someone between 10.15 a.m.-11.15 a.m. and If immediately raided, he could be apprehended. PW-10 SI Vivek Pathak made requisite enquiry from the secret informer and satisfied himself.FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 1/22
2. At about 9.30 a.m., PW-10 SI Vivek Pathak produced the secret informer before PW-8 Insp. M.L. Sharma, In-charge, Narcotics Cell and briefed him about the secret information. PW-8 Insp. M.L. Sharma made requisite enquiry from the secret informer and satisfied himself. He conveyed the secret information to Sh. S. R. Yadav, ACP, N&CP through telephone who directed him to take legal action and conduct a raid.
3. At about 9.45 a.m., PW-10 SI Vivek Pathak reduced the secret information into writing in rojnamcha register vide DD No. 6 Ex.PW6/B and submitted a copy thereof to PW-8 Insp. M.L. Sharma as required under section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'the NDPS Act'). He constituted a raiding team comprising himself, PW-2 HC Mukesh Singh and PW-3 Ct. Rakesh and the secret informer.
4. PW-10 SI Vivek Pathak collected IO bag, field testing kit and electronic weighing machine. At about 10.00 a.m., he alongwith raiding team departed from Narcotic Cell in an official vehicle No. DL 1 CJ 3481 which was driven by ASI Rajbir Singh vide DD No. 7. On the way, he requested 5 passengers at Ramesh Park, Bus Stand and 5 passers-by at karkari mor to join the raiding team but they expressed genuine excuses and proceeded on their way without disclosing their names and addresses.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 2/225. At 10.30 a.m., PW-10 SI Vivek Pathak alongwith raiding team reached at near Metro Station, Dilshad Garden. He briefed the members of the raiding team in detail and positioned them within the radius of 10 meters near the place of information and started waiting for the accused persons.
6. At about 10.45 p.m., accused Sudhir @ Kalwa was seen coming from the side of Apsara Border on foot. Secret informer identified him as Sudhir @ Kalwa. He stood at a distance of 3-4 steps from their position. He started waiting for someone. After 3-4 minutes, the accused Sudhir @ Kalwa started to move from there.
7. At about 10.50 a.m., PW-10 SI Vivek Pathak with the assistance of accompanying staff apprehended him. He introduced himself and the members of the raiding team to him. The accused Sudhir @ Kalwa was carrying a black-blue and red colour bag on his left shoulder. He informed him about the secret information that he was indulging in supply of charas and he had come there to supply charas to someone and he was suspected to be carrying charas. He informed the accused Sudhir @ Kalwa that his cursory search was required to be conducted. He informed him that it was his legal right that if he desired so, his search could be conducted in the presence of any Gazetted Officer or Magistrate and they could be arranged. He informed him that he can conduct search of the members of the raiding team and the government vehicle prior to his search.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 3/228. PW-10 SI Vivek Pathak had given a notice under section 50 of the NDPS Act Ex.PW2/A to the accused Sudhir @ Kalwa and carbon copy thereof is Ex.PW2/F which was served upon him. He read over and explained the contents of the said notice to him. He explained the meaning of Gazetted Officer or Magistrate to him. The accused Sudhir @ Kalwa read the notice and understood his legal right. He declined to exercise his legal right. PW-10 SI Vivek Pathak recorded his refusal in Hindi on the original notice as the accused expressed his inability to write his refusal. He read over and explained the refusal to him. Refusal of accused is Ex.PW2/B. The accused acknowledged correctness of the refusal so recorded by putting his signatures in Hindi thereon.
9. PW-10 SI Vivek Pathak requested 5-7 persons from the crowd gathered there out of curiosity to join the proceedings but none of them agreed and proceeded on their way without disclosing their names and addresses.
10. Thereafter, PW-10 SI Vivek Pathak conducted cursory search of the accused Sudhir @ Kalwa. He taken the black, blue and red colour bag from the shoulder of the accused. He checked the said bag. It was having one black colour polythene inside it. He opened the said polythene. It contained black colour solid substance. He checked a piece of the said substance with the help of field testing kit. It was found to be charas. He weighed the charas with polythene on an electronic weighing scale.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 4/2211. It weighed 1.200 kgm. He drawn 2 samples of 50 grams each from the recovered charas and kept them into two small polythene and converted them into two cloth parcels which were given mark A and B respectively. The remaining 1.100 kgm charas was kept in the same polythene and converted into a cloth parcel which was given mark C. He filled form FSL. He sealed all the three parcels with his seal having impression 'VP'. He affixed the said seal on form FSL. Seal after use was handed over to PW-2 HC Mukesh Singh. He seized the said three sealed cloth parcels and form FSL vide seizure memo Ex.PW2/C.
12. PW-10 SI Vivek Pathak prepared a rukka Ex.PW10/A and handed it over to PW-3 Ct. Rakesh for registration of FIR. He handed over him the rukka, three sealed cloth parcels, form FSL and a carbon copy of seizure memo with the direction to hand over the rukka to Duty Officer and other articles to PW-9 Insp. Akshay Kumar, SHO, PS Crime Branch, Nehru Place, Delhi.
13. At about 01.50 p.m., PW-3 Ct. Rakesh proceeded from the spot to PS Crime Branch in the said official vehicle.
14. At about 3.15 p.m., PW-3 Ct. Rakesh reached at police station Crime Branch, Nehru Place and handed over rukka to PW-7 HC Chand Ram, Duty Officer, PS Crime Branch. At 3.17 p.m., he handed over the said three cloth parcels mark A, B and C, form FSL and a carbon copy of seizure memo to PW-9 Insp. Akshay Kumar, SHO, PS Crime Branch.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 5/2215. PW-7 HC Chand Ram, Duty Officer, PS Crime Branch, Nehru Place, Delhi recorded kayami vide DD No. 9 Ex.PW7/A on receipt of rukka from PW-3 Ct. Rakesh at about 3.15 p.m. He made endorsement Ex.PW7/B on the rukka. He got the case FIR Ex.PW7/C recorded through computer operator and recorded bandi DD No. 11 Ex.PW7/D. He assigned further investigation of the case to PW-5 SI Rajbir Singh on the instruction of ACP, N & CP.
16. PW-9 Insp. Akshay Kumar counter-sealed the said 3 sealed cloth parcels and form FSL with his official seal having impression 'AK'. He enquired FIR number from Duty Officer and mentioned it on the said sealed parcels, form FSL and carbon copy of seizure memo.
17. At about 3.35 p.m., PW-9 Insp. Akshay Kumar called PW-4 HC Chand Ram, In-charge, malkhana to his office with Register no. 19. He handed him over the said 3 sealed cloth parcels, form FSL and carbon copy of the seizure memo. PW-4 HC Chand Ram made an entry at Sl. no. 297 in Register no. 19 regarding deposit of the said articles in malkhana and a copy of the relevant page containing the said entry is Ex.PW4/A. PW-9 Insp. Akshay Kumar made an entry in the rojnamcha register vide DD No. 10 Ex.PW7/E in that regard at 3.35 p.m.
18. At 4.15 p.m., PW-5 SI Rajbir Singh proceeded from police station Narcotics Cell in the said official. At about 4.45 p.m., he reached at the spot where PW-10 SI Vivek Pathak met him alongwith raiding team and accused person.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 6/2219. PW-10 SI Vivek Pathak handed him over the documents and custody of the accused Sudhir @ Kalwa. PW-5 SI Rajbir Singh prepared the site plan Ex.PW5/A at the instance of PW-10 SI Vivek Pathak. He recorded statement of HC Mukesh Singh. After interrogation, he arrested accused Sudhir @ Kalwa vide arrest memo Ex.PW2/D. He conducted personal search of the accused Sudhir @ Kalwa vide personal search memo Ex.PW2/E. In his personal search, carbon copy of the notice under section 50 of the NDPS Act Ex.PW2/F and a sum of Rs.70/- were recovered. He recorded disclosure statement Ex.PW5/B of the accused Sudhir @ Kalwa.
20. At about 7.00 p.m., PW-5 SI Rajbir Singh alongwith the members of the raiding team and the accused Sudhir @ Kalwa proceeded from the spot. At about 8.25 p.m., he reached at police station Crime Branch, Nehru Place. He deposited articles recovered from personal search of the accused Sudhir @ Kalwa with PW-4 HC Chand Ram, In-charge, malkhana vide entry in the register no. 19 and photocopy of the relevant page containing the said entry is Ex.PW4/B. He recorded statement of PW-9 Insp. Akshay Kumar and PW-4 HC Chand Ram. At about 9.15 p.m., he left police station Crime Branch, Nehru Place.
21. At about 10.00 p.m., PW-5 SI Rajbir Singh reached at police station Narcotics Cell and produced the accused before PW-8 Insp. M.L. Sharma, In-charge, Narcotics Cell.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 7/2222. PW-5 SI Rajbir Singh prepared a special report under section 57 of the NDPS Act Ex.PW6/F and submitted it to PW-8 Insp. M.L. Sharma who forwarded it to senior officers of police and a copy thereof is Ex.PW5/C.
23. PW-10 SI Vivek Pathak submitted a report under section 57 of the NDPS Act Ex.PW6/E to PW-8 Insp. M.L. Sharma who forwarded it to senior officers of police.
24. On 26.06.2009, PW-1 Ct. Jogender Singh, as per direction of PW-9 Insp. Akshay Kumar, SHO, police station Crime Branch deposited sample parcel Mark A and form FSL with FSL, Rohini vide RC No. 178/21 Ex.PW1/A and acknowledgement receipt Ex.PW1/B.
25. Dr. Madhulika Sharma, Asstt. Director (Chemistry), Forensic Science Laboratory, Rohini examined sample parcel Mark A. According to FSL report Ex.PW5/D, sample parcel Mark A was received on 26.06.2009 through PW-1 Ct. Jogender Singh and seals were intact and tallied with the specimen seals as per forwarding letter (FSL FORM). The report is as under:
DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL (S) EXHIBITS(S) Parcel-'A' One (01) cloth parcel, sealed with the seals of "AK' (01) & 'VP' (01). It was found to contained exhibit 'A', kept in a transparent polythene. Exhibit-'A' Dark greenish-brown coloured, semi solid type material, stated to be Charas, weight (approx) 50 g with polythene.
RESULTS OF EXAMINATION
(i) The sample (s) 'A' was examined by microscopic, chemical tests, chromatography and instrumental methods. (ii) On examination, the exhibit (s) 'A' gave characteristic odour of cannabis. Microscopy revealed the presence of characteristic cystolithic hair, glandular hair, resin glands of cannabis plant. (iii) Solvent extraction showed resin. Chemical tests and chromatographic analysis gave positive results for cannabinoids including Tetrahydrocannabinol in exhibit 'A'. (iv) On the basis of the above examinations exhibit(s) 'A' was confirmed to be Charas.FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 8/22
26. On completion of investigation, accused Sudhir @ Kalwa was charge-sheeted under section 20 of the NDPS Act.
27. On appraisal of material on record, accused Sudhir @ Kalwa was charged under section 20 (b) (iii) (C) of the NDPS Act to which he pleaded not guilty and claimed trial.
28. During the evidence, prosecution examined 10 witnesses, as under:
The witnesses Description of the witnesses PW-1 Ct. Joginder Singh Sample depositor PW-2 HC Mukesh Singh Recovery witness PW-3 Ct. Rakesh Recovery witness PW-4 HC Chand Ram In-charge, malkhana PW-5 SI Rajbir Singh Investigating Officer PW-6 HC Karunakaran Reader to ACP, Narcotics PW-7 HC Chand Ram Duty Officer, police station Crime Branch PW-8 Insp. M.L. Sharma In-charge, Narcotics Cell, Shakarpur PW-9 Insp. Akshay Kumar SHO police station Crime Branch PW-10 Insp. Vivek Pathak In-charge, raiding team
29. On completion of the prosecution evidence, incriminating circumstances appearing in evidence against the accused were put under section 313 Cr.P.C.
30. The accused Sudhir @ Kalwa pleaded innocence and claimed false implication. According to him, no charas was recovered from his possession. He stated that the recovery witnesses deposed against him being police officials and interested witnesses. He stated that his signatures/thumb impressions were obtained on some blank papers, some written documents and some proformas, forcibly.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 9/2231. In defence evidence, the accused has not examined any witness.
32. I have heard Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. G.S. Singh, Ld. defence counsel and considered the evidence, oral and documentary, on record.
33. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that the prosecution has proved compliance to the provisions of section 42, 50, 55 and 57 of the NDPS Act. In the alternative, he submitted that the recovery of charas was effected from a raxin bag carried by the accused Sudhir @ Kalwa and as such, provision of section 50 of the NDPS Act is not applicable. He submitted that the prosecution has examined recovery witnesses namely PW-10 SI Vivek Pathak, PW-2 HC Mukesh Singh and PW-3 Ct. Rakesh. He submitted that the said recovery witnesses have proved the recovery of chars from accused. He submitted that the charas recovered from the accused Sudhir @ Kalwa was properly preserved, sealed and deposited in the police malkhana. He submitted that the sample parcel remained intact till its examination by FSL. He submitted that non-association of public witnesses is not fatal to the case of the prosecution as PW-10 SI Vivek Pathak made several efforts to join independent witnesses. He submitted that public is averse to become witness in such matters. He submitted that there is no contradiction in the depositions of the recovery witnesses. He submitted that the prosecution has proved recovery of commercial quantity of charas from the accused.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 10/2234. Sh. G.S. Singh, Ld. defence counsel submitted that provision of section 50 of the NDPS Act is applicable as the personal search of the accused was carried out. He submitted that the accused was not informed about his legal right to be searched in the presence of a Gazetted Officer or a Magistrate. He submitted that the accused was not informed that he could be taken to the nearest Gazetted Officer or the nearest Magistrate for conducting his search. He submitted that no senior officers of police or Gazetted Officer or Magistrate was called after apprehension of the accused for his search. He submitted that the place of apprehension of the accused was located in a crowded area. However, no effort was made to associate any public witness or any official from Metro Station, Dilshad Garden. He submitted that there was delay of 10 days in sending sample parcel to FSL, Rohini for chemical analysis. He submitted that the seal remained with the raiding team during that period and therefore, the possibility of tampering cannot be ruled out. He submitted that there are material contradictions in the depositions of the recovery witnesses. He submitted that site plan does not depict the clear picture of the place of incident. He submitted that no investigation was made regarding source and destination of supply. He submitted that departure entry and arrival entry pertaining to PW-10 SI Vivek Pathak and PW-5 SI Rajbir Singh not proved on record. He submitted that the prosecution has failed to prove that illicit charas was recovered from the accused.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 11/22NON-COMPLIANCE OF SECTION 50 OF THE NDPS ACT:
35. Issues arisen for consideration are whether the provision of section 50 of the NDPS Act would be applicable to the present case and if applicable, whether the obligation under section 50 of the NDPS Act was statutorily discharged.
36. Issue of applicability of section 50 of the NDPS Act can be addressed from two approaches. First is that the police had prior information that the accused Sudhir @ Kalwa would be visiting the place of information to supply charas and a notice under section 50 of the NDPS Act was given to the accused prior to his personal search and search of the bag carried by him. Secondly, the accused was searched prior to search of the bag carried by him. In both these eventualities, section 50 of the NDPS Act would be applicable. Hon'ble Supreme Court of India held so in 'Gurjant Singh @ Janta v. State of Punjab', Criminal Appeal No. 1868/2013 decided on October 28, 2013.
37. In 'State of Rajasthan vs. Parmanand', 2014 (2) JCC [Narcotics] 66; Hon'ble Supreme Court has held as under:
"12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent no. 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent no. 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 12/22
38. To be more precise, in Om Prakash v. State, Crl. A. No. 453 of 2014 decided on 23.05.2014, Hon'ble Delhi High Court held as under:
"79. In the present case, undoubtedly, the Appellant was searched by PW-10 although that search did not lead to recovery of any narcotic substance. The fact that the person of the Appellant was searched has been admitted by PW-10. He was served with the notice under Section 50 of the NDPS Act. The Court is unable to agree with the submission of the learned APP, which appears to have found favour with the trial Court, that in the present case there existed no reason to issue a Section 50 notice since the recovery was effected from the Wagon-R car. The evidence makes it clear that PW-10 did issue a Section 50 NDPS Act notice since he believed that apart from the Wagon-R car, the Appellant himself might be carrying some prohibited substance and it was not possible for him at that stage to rule out such a contingency. PW-10 served a copy of the notice on the Appellant. Since the Appellant was, in fact, searched pursuant to the notice issued, it is not open now for the prosecution to contend that there was no need to issue such notice and, therefore, the failure to observe the requirement of Section 50 of the NDPS Act was not fatal to the prosecution."
39. To dispel any doubt in this regard, at the cost of prolixity, relevant portion of deposition of PW-10 SI Vivek Pathak, In-charge of the raiding team, is reproduced under:
".....I told him that his search is to be conducted and if he want his search can be conducted in the presence of a Gazetted Officer or a Magistrate. I also offered my search, search of the raiding party and search of the official vehicle, prior to his search. I prepared a notice U/s. 50 NDPS Act and carbon copy of the same was served upon the accused persons. The original notice U/s. 50 NDPS Act on record is Ex.PW2/A..... ".....I conducted the search of the accused Sudhir @ Kalwa and took out the black and blue colour bag which he was having at his shoulder. I opened the bag and found a black colour polythene inside....."FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 13/22
40. Let us examine as to whether the provision of section 50 of the NDPS Act was complied or not.
41. PW-10 SI Vivek Pathak was the In-charge of the raiding team. As already noted above, he merely informed the accused that if he desired so, his search can be conducted in the presence of a Gazetted Officer or a Magistrate.
42. Therefore, it is evident that PW-10 SI Vivek Pathak did not inform the accused that it was his legal right that if he desired so, his personal search could be conducted in the presence of any Gazetted Officer or Magistrate.
43. This becomes apparent from a perusal of deposition of the other members of the raiding team. PW-2 HC Mukesh Singh was a member of the raiding team. On this aspect, he deposed as under:
".....SI Vivek Pathak told the facts of the secret information to the accused. Thereafter, SI asked the accused that if he wanted his search could be taken in the presence of Gazetted Officer or a Magistrate....."
44. PW-3 Ct. Rakesh was also a member of the raiding team. He has deposed similarly on this aspect.
45. It is therefore, evident that PW-10 SI Vivek Pathak given a mere option or offer to the accused. He did not communicate the accused his legal right to be searched in the presence of any Gazetted Officer or Magistrate. He has not statutorily discharged legal obligation as imposed under section 50 of the NDPS Act.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 14/2246. In 'Ashok Kumar Sharma Vs. State of Rajasthan', 2013 (1) C.C. Cases (SC) 232, Hon'ble Supreme Court of India considered deposition of In-charge, of raiding team i.e. Additional Superintendent of Police (Crimes), Jaipur City. It was observed that:
"The question as to whether this procedure has been complied or not in this case the deposition of PW-1 assumes importance, which reads as follows:
He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished. He gave his consent in writing and said that I have faith on you, you can search me."
"8. The above statement of PW-1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused persons has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person."
47. It is further evident from perusal of notice under section 50 of the NDPS Act Ex.PW2/A given to the accused that he was not informed that he could be taken to the nearest Gazetted Officer or the nearest Magistrate. He did not make any effort to produce the accused before any Gazetted Officer or Magistrate. He has not made any effort to call any Gazetted Officer or Magistrate to the spot to conduct the search.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 15/2248. This Court is deriving support in reaching to this conclusion from 'Om Prakash v. State' (supra), as under:
"80. The admitted position is that the notice under section 50 of the NDPS Act that was served to the Appellant did not mention that he could be taken to the nearest Magistrate or Police Station which had a Gazetted Officer....."
EFFECT OF NON-COMPLIANCE OF SECTION 50 OF THE NDPS ACT:
49. In 'Vijaysinh Chandubha Jadeja v. State of Gujarat' reported as (2011) 1 SCC 609; Hon'ble Supreme Court held in the para no. 22 of the judgment, as under:
"22......We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search."
FAILURE TO JOIN PUBLIC WITNESSES:
50. Let us examine as to whether any sincere effort was made to join public persons in search and seizure proceedings.
51. PW-10 SI Vivek Pathak who was In-charge of the raiding team deposed as under:
".....On the way I requested five passengers at Ramesh Park, Bus Stand and five persons at karkari mor to join the raiding party but all refused and left the spot without disclosing their names and addresses.... After his refusal, I requested 7-8 persons, who gathered at the spot, to join the proceedings but all refused and left the spot without giving their names and addresses....."FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 16/22
52. PW-10 SI Vivek Pathak, in his cross-examination stated as under:
".....I had not called any official from the nearby Metro Station....."
53. PW-2 HC Mukesh Singh was a member of the raiding team. He deposed as under:
".....SI Vivek Pathak did not ask any body to join the raiding party after coming out from Narcotics Branch... .....On reaching at the spot SI Vivek Pathak did not ask any person to join the raiding party. It is correct that police officials used to remain present at Metro Station and red light. No police official was called from Metro Station or from the red light to join the raiding party and proceedings....."
54. PW-3 Ct. Rakesh was also a member of the raiding team, he deposed as under:
".....It is correct that public persons used to pass from PS Narcotics Cell. Just after coming out of the Narcotics Cell SI Vivek Pathak did not ask any public persons to join the raiding party.....SI Vivek Pathak did not ask any security official present at the Metro Station or any traffic police official present at the red light to join the raiding party.....
It is correct that the spot is busy area. Secret informer pointed out the accused from the distance of 10-15 steps. Just after apprehending the accused SI Vivek Pathak did not ask any public person to join the proceeding....."
55. PW-10 SI Vivek Pathak received information at about 09.15 a.m. in police station Narcotics Cell that accused would be reaching near Mazar, Shastri Park Metro Station between 10.45 a.m.-11.45 a.m. to supply charas. He had sufficient time to join independent witnesses in search and seizure proceedings.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 17/2256. The spot was situated in a congested area. The spot was just in front of Metro Station, Dilshad Garden. PW-10 SI Vivek Pathak did not call any officer / official from Metro Station, Dilshad Garden to join the proceedings. PW-5 SI Rajbir Singh did not join any public person during arrest proceedings. He has stated in his cross-examination that he did not call any public person to join the investigation.
57. Besides assertion that PW-10 SI Vivek Pathak made efforts to join public persons at Ramesh Park, Bus Stand and karkari mor and onlookers who gathered at the spot, there is nothing on record to show that any sincere attempt was made to join public persons in search and seizure proceedings. There were officers / officials available in the Dilshad Garden Metro Station near the spot. He made no effort to join any employee from the said office in search and seizure proceedings despite availability and sufficient time at his disposal.
58. In 'Inder Dev Yadav v. State of NCT', Crl. Appeal No. 545/2011 decided on 01.05.2014; Delhi High Court observed as under:
"4. The appellants' conviction is based upon the testimonies of police personnel/officials alone. No independent public witness was associated at any stage of the investigation. No reasonable or plausible explanation has been offered by SI Bhasker Sharma, In-charge of raiding team and SI Sanjay who took over the investigation subsequently for not associating any public witness despite having ample time and opportunity. The proceedings were conducted at the spot till around 12.00 (night). Non-joining of independent witness to the recovery creates serious doubt about the genuineness of the prosecution case.FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 18/22
It is not rule of law but of prudence that public witnesses should be joined. This is desired to lend authenticity and credibility to the search and the recovery. Of course, it is not an absolute rule. The evidence of police witnesses without slightest independent evidence requires to pursue with great care and caution."
59. In 'Mohd. Irfan v. Directorate of Revenue Intelligence', Crl. Appeal No. 783/12 decided on 8th November, 2013; Hon'ble Delhi High Court has observed as under:
"3......Apparently, the complainant's version remained uncorroborated from independent sources/witnesses. Joining of independent public witnesses is not a formality to be performed and sincere attempts were required to be made by the prosecution before apprehension of the accused to procure the public witnesses whose identity /particulars were not doubtful."
60. In 'Om Prakash v. State' (supra), Hon'ble Delhi High Court observed as under:
"71. Routinely, no attempt is being made by the police in such cases to associate public witnesses. In the absence of clear evidence to show that a sincere effort was made, the Court should not simply accept the proposition that generally in such cases no member of the public comes forward to help the prosecution. In Ajmer Singh vs. State of Haryana (2010) 3 SCC 746, it was held that in such circumstances the Court will have to determine whether the evidence of the police officer "was believable after taking due care and caution in evaluating their evidence". In the present case, given the shoddy investigation, the failure to associate any independent witness constituted an additional factor to disbelieve the case of the prosecution."
61. In State vs. Sunil, CRL. L.P. No. 502 of 2014 decided on 19.08.2014; Delhi High Court observed as under:
"11...... No independent witness was associated in the recovery of 4 kg of charas form a public place. In the circumstances, the benefit of doubt was rightly granted to the Respondent."FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 19/22
LAPSES/DISCREPANCIES IN THE PROSECUTION CASE
62. On examination of the prosecution case, following lapses / discrepancies are noted:
63. According to PW-10 SI Vivek Pathak, he alongwith raiding team reached at the place of information in official vehicle No. DL 1 ICJ 3481 which was driven by ASI Rajbir Singh. However, the prosecution has neither examined ASI Rajbir Singh nor produced the log book.
64. In 'Mohd. Irfan v. Directorate of Revenue Intelligence' (supra); Delhi High Court observed as under:
"4.....The driver of the vehicle in which the raiding team had gone to New Delhi Railway Station was also not joined. The extracts of the log book of the vehicle were not placed on record to find out the movement of the vehicle used in the raid."
65. In 'Om Prakash v. State' (supra); Delhi High Court observed as under:
"87.The failure of the prosecution to produce the log book of the Maruti 800 car carrying the raiding party also was not a minor lapse that could have been simply brushed aside. Such a log could have corroborated the prosecution version as to whether they had apprehended the Appellant from outside the Kali Mata Mandir and at the date and time as alleged. In the absence of production of the log book, as adverse inference should have been drawn against the prosecution."
66. PW-2 HC Mukesh Singh stated in his cross- examination that "The electronic weighing machine, field testing kit and IO bag was not got issued by SI Vivek Pathak prior to leaving the PS, however, the same was with him." PW-3 Ct. Rakesh stated that SI Vivek Pathak did not get IO kit, weighing scale and field testing kit issued from malkhana.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 20/2267. However, PW-10 SI Vivek Pathak stated that in his cross-examination that "I got the field testing kit and electronic weighing machine issued from the malkhana. I had not signed any malkhana register in this regard." However, malkhana register regarding issuance of IO bag, field testing kit and weighing machine not produced before the Court. This circumstance also casts doubt on the case of the prosecution as to whether any weighing machine, field testing kit or IO bag was issued by In-charge, malkhana to PW-10 SI Vivek Pathak.
68. PW-10 SI Vivek Pathak stated that he received back his seal after 2 weeks. Sample parcel mark A was sent to FSL on 26.06.2009. It means the seal remained with PW-2 HC Mukesh Singh since 14.06.2009 to 26.06.2009. It was available to PW-10 SI Vivek Pathak during that period.
69. In 'Om Prakash v. State' (supra); Delhi High Court observed as under:
"There is also doubt whether the seals used to seal the pullandas were in fact deposited in the malkhana. The entries in the malkhana register do not reflect the deposit of the seals. In the evidence of PW-6, it is seen that according to him he handed over the seals back to PW-10 Rajbir Singh who was himself the IO. This raises sufficient doubt on whether there was an opportunity for the samples to be tampered."
70. Last but not the least, the accused was not produced before Officer-in-charge of the nearest police station after his arrest. Police station Dilshad Garden was at stones throw away from the alleged place of apprehension but the accused was not produced before Officer-in-charge of the said police station as required under section 55 of the NDPS Act.
FIR No. 88/09 State Vs. Sudhir @ Kalwa Page No. 21/2271. PW-5 SI Rajbir Singh has not explained as to how the investigation of the case was assigned to him. PW-4 HC Chand Ram, Duty Officer did not inform him about assignment of the investigation to him. It is not the case of the prosecution that ACP S.R. Yadav made any telephone call to PW-5 SI Rajbir Singh regarding entrustment of investigation to him. PW-8 Insp. M.L. Sharma, In-charge, Narcotics Cell and PW-9 Insp. Akshay Kumar, SHO, police station Crime Branch have also not stated that they informed him about assignment of investigation to him. There is no departure or arrival entry of PW-5 SI Rajbir Singh and PW-10 SI Vivek Pathak on record. There is no investigation regarding source and destination of supply.
72. Accordingly, accused Sudhir @ Kalwa is acquitted of the offence under section 20 (b) (ii) (C) of the NDPS Act.
Announced in the open court SANJAY SHARMA on this 22nd day of December, 2014. Special Judge NDPS (N-E) ASJ:KKD Courts, Delhi.
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