Delhi District Court
State vs Sunil Kumar @ Monu on 25 January, 2019
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE02 (EAST) SPL. JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
S.C. No. 2171/16
FIR No.228/16
U/s 20/61/85 NDPS Act
PS Mayur Vihar
State Versus Sunil Kumar @ Monu
S/o Sh. Harvansh Lal
R/o H.No.29/150, Trilok Puri,
Delhi
Date of Institution 02.09.2016
Arguments heard 21.01.2019
Date of order 25.01.2019
JUDGMENT
1. The prosecution case in brief is that vide DD No.58B dated 04.06.2016, SI Bengali Babu, Ct. Sajjan and Ct. Sandeep were on patrolling duty in the area. At about 9 pm, when they reached on the road which goes from Gazipur to Wireless Road near Kabir Property, secret informer came there and informed that a person will come from Chilla village having huge quantity of ganja and go to 32 block, Trilok Puri, Delhi and he can be apprehended if raided. This information was recorded u/s 42 of NDPS Act and thereafter, SI Bengali Babu passed the secret information to SHO concerned telephonically who further FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 1 of 29 passed the said information to ACP. SHO asked them to take immediate action. Thereafter, SI Bengali Babu constituted a raiding party, asked 45 public persons to join the raiding party but none agreed. Thereafter, the raiding team made nakabandi near Gazipur Road and Wireless Road Tpoint and at about 9.15 pm, one person having a big blue colour polythene bag in his right hand, came from the side of Chilla village and he was apprehended near Kabir Property at the instance of secret informer. On interrogation, the accused disclosed his name as Sunil Kumar @ Monu. Accused was told about the secret information that he might be in possession of ganja and thereafter a notice u/s 50 NDPS Act was given to accused and its contents were also read over and explained to accused. He was also apprised about his legal rights that he can get himself searched in the presence of any Gazetted Officer or Magistrate and that the arrangement for the same can be made. Accused was also informed that he can also take the search of the police party before his search. Accused refused to do so and wrote his reply on the notice that he does not wish to get himself searched in the presence of Gazetted Officer. The accused signed his refusal on the notice. Thereafter, the polythene was checked and it was found containing ganja. The polythene containing ganja was weighed on the weighing scale brought by Ct. Sajjan Singh. The total weight of the ganja was found to be 2 kgs out of which 500 grams of ganja was drawn as FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 2 of 29 sample, and same was kept in plastic polythene which was converted into cloth pullanda. Sample pullanda was given Mark S and pullanda of remaining recovered ganja was given Mark A and both pullandas were sealed with the seal of BB. FSL form was filled up at the spot. Both the pullandas were seized vide seizure memo. Seal after use was handed over to Ct. Sajjan Singh. SI Bengali Babu prepared the rukka and handed over the same to Ct. Sandeep alongwith both the pullandas, form FSL and carbon copy of seizure memo with the direction to hand over the pullandas, FSL form and carbon copy of seizure memo to SHO and rukka to Duty Officer. After registration of case, further investigation was marked to SI Anuj Kumar. Thereafter, SI Anuj Kumar along with Ct. Sandeep reached the spot where SI Bengali Babu along with staff and the accused met him and he handed over all the documents prepared by him along with accused to SI Anuj Kumar. Thereafter, SI Anuj Kumar put FIR number on all the documents which were handed over by SI Bengali Babu. Thereafter, SI Anuj Kumar prepared site plan at the instance of Bengali Babu, interrogated the accused, conducted his personal search in which Rs.50/ in cash along with notice u/s 50 NDPS Act was recovered, his disclosure statement was recorded and he was arrested in this case. SI Anuj Kumar along with staff and accused made efforts to trace out the source of supply namely Khan in the area of Gazipur and FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 3 of 29 nearby but he could not be traced out. Thereafter, they came back to PS, sent accused behind lockup and deposited the personal search articles in the malkhana. SI Anuj Kumar prepared report u/s 57 NDPS Act in the PS and the same was submitted to the then SHO who forwarded the same to ACP concerned. On 27.07.2016, SI Anuj Kumar directed Ct. Rahul to deposit the exhibits of the case at FSL Rohini who after receiving the same from MHCM, deposited the same at FSL Rohini. Pending receipt of FSL result, chargesheet was prepared against the accused u/s 20/61/85 of NDPS Act and he was sent to Court for trial.
2. FSL result was filed in the court which confirmed that sample contained ganja. After compliance of section 207 Cr.P.C., charge u/s 20(b) (ii) (B) of NDPS Act was framed against the accused to which he pleaded not guilty.
3. In order to prove its case, prosecution examined eight witnesses.
(3.1) PW1 Ct. Sandeep Kumar and PW6 Ct. Sajjan Singh are the members of raiding patrolling/raiding team. Both these witnesses deposed more or less on the lines of 1 st para of the order.
(3.2) PW2 is Ct. Rahul who deposited the sample with FSL Rohini.
FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 4 of 29 (3.3) PW3 is SI Bengali Babu, the 1st IO who was heading the raiding team.
(3.4) PW4 is ASI Attar Singh, the Duty Officer who recorded present FIR. The copy of FIR is Ex.PW4/A. (3.5) PW5 is ASI Rajender to whom Insp. Jaipal Singh handed over two sealed parcels sealed with the seal of BB and JPS and he deposited the same in malkhana vide entry no. 2345 in register no.19 vide copy of relevant entry Ex.PW5/A. SI Anuj also produced to him jamatalashi articles along with copy of notice u/s 50 NDPS Act and Rs.50/ in cash and he deposited the same in malkhana. He has also deposed that on 27.07.2016, he handed over one sealed pullanda Mark S to Ct. Rahul vide RC no. 85/21 for deposit in the FSL. The copy of RC is Ex.PW5/B and copy of receipt is Ex.PW5/C. (3.6) PW7 is Inspector Jaipal Singh the then SHO who deposed that on 04.06. 2016, he was posted as SHO PS Mayur Vihar. On that day at about 10.30 pm Ct Sandeep came to his office and handed over two sealed parcels sealed with the seal of BB along with carbon copy of seizure memo and FSL form. He checked the said parcels and put his seal of JPS on the parcels and FSL form. Thereafter, he called the MHCM HC Rajender Kumar along with register no.19, who came to his office and he had handed over the said parcels along with said documents to HC Rajender Kumar who had deposited the case FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 5 of 29 property in the malkhana properly and made relevant entries. PW7 also lodged DD No.48A in this regard, copy of which is Ex.PW7/A. He also deposed that 05.06.2016 SI Anuj Kumar submitted report u/s 57 NDPS Act before him and same was forwarded to ACP concerned.
(3.7) PW7 is ASI Mange Ram. Inadvertently, this witness is also numbered as PW7. He was posted as Reader to ACP. He deposed that he received report u/s 57 NDPS Act Ex.PW7/A prepared by SI Anuj Kumar, forwarded by the then SHO, through daak which was registered in register at Serial No. no.3687 and thereafter said report was produced before the ACP concerned. The copy of relevant entry is Ex.PW7/B. (3.8) PW8 is SI Anuj Kumar, the 2nd IO of the case. This witness deposed that on 04.06.2016, further investigation of the case was marked to him upon which he along with Ct. Sandeep reached the spot where SI Bengali Babu along with staff and the accused met him and he handed him over all the documents prepared by him along with accused. Thereafter, he had written FIR number on all the documents which were handed over to him, prepared site plan Ex.PW8/A at the instance of Bengali Babu, interrogated the accused, conducted his personal search vide memo Ex.PW1/C in which cash Rs.50/ along with notice was recovered, recorded his disclosure statement Ex.PW1/E and arrested accused vide FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 6 of 29 arrest memo Ex.PW1/B. He also brought on record original report u/s 57 NDPS Act Ex.PW7/A. He further deposed that on 27.07.2016, he got deposited the sample to FSL Rohini through Ct. Rahul and later on collected FSL result Ex.PW8/C, prepared the chargesheet and filed it before the Court.
4. Statement of accused u/s 313 Cr.P.C was recorded wherein he pleaded that he was lifted from his residence and was falsely implicated in this case.
5. Arguments have been heard from the Ld. Addl. PP as also from the Ld. Counsel for accused. Ld. Addl. PP has argued that the recovery witnesses examined by the prosecution have proved the recovery of 2 Kgs ganja from the possession of accused. All the relevant provisions of NDPS Act have been duly complied with. The witnesses have supported the prosecution case. FSL result confirms that the recovered substance was ganja. It is therefore, argued that the prosecution has been able to prove its case against the accused.
6. Ld. Counsel for accused argued that the case of the prosecution is false and fabricated. There are material contradictions in the testimony of prosecution witnesses. Nothing was recovered from the possession of the accused and he has been falsely implicated in this case. Search and seizure of the case property from the possession has not been duly proved as the seizure memo bears the FIR number which FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 7 of 29 suggest that documents were prepared after sitting in the PS. It is also submitted that the production of the case property after its search and seizure before the Sr. Police Officer and its deposition in the malkhana are also doubtful as the relevant entry of register no.19 does not mention the time of its deposit and the author of the relevant entry of register no.19 i.e. Ct. Sonu has also not been examined by the prosecution and thus, the production of alleged contraband and its deposit in the malkahana has not been duly proved. It is also argued that the spot is a public place and public persons were passing through the spot but no public person has been associated by the IO at the time of apprehension of accused and alleged recovery effected from him. Ld. Counsel has drawn the attention of the Court to the testimonies of all the police witnesses and stated that despite admission of the witnesses regarding availability of public witnesses at the spot, no effort was made to join them in the investigation. It is also submitted that the samples of the present case were not sent to FSL in time and that there is delay of about 45 days in sending the samples to FSL. Thus, it is requested that accused may kindly be acquitted.
7. PW1 Ct. Sandeep, PW3 SI Bengali Babu and PW6 Ct. Sajjan are the three witnesses of recovery on which the prosecution case mainly rests. PW8 SI Anuj Kumar is the second IO to whom the further investigation was entrusted. PW1, PW3 and PW6 deposed that on 04.06.2016, they were on patrolling duty FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 8 of 29 in the area vide DD no.58B. At about 9.00 p.m when they reached on the road which goes from Gazipur Road to Wireless Road near Kabir property, a secret informer met PW3 SI Bengali Babu and informed him that a person i.e. accused will come from the side of Chilla village with ganja and go towards 32 block Trilokpuri, and if raided can be apprehended. PW3 deposed that he recorded this information u/s 42 NDPS Act and passed the information to SHO who further gave the information to ACP. PW3 was directed to take immediate action upon which he organized a raiding party comprising himself, PW1 and PW6. He requested 45 passers by to join the raiding party but none agreed. PW1, PW3 and PW6 further deposed that they did nakabadi at the Tpoint from Gazipur Road and Wireless Road near Kabir Properties and at about 9.15 p.m., accused Sunil was seen coming from the side of Chilla Village and was apprehended on the pointing out of secret informer and at that time, he was having a polythene containing some substance in his right hand. They further deposed that on interrogation, accused disclosed his name as Sunil Kumar @ Monu and he was informed about the receipt of secret information regarding suspected possession of ganja by him and was told that his search is to be taken before the Gazetted Officer but he stated that he does not want his search to be conducted in the presence of gazetted officer because the police has already come to know that he was in possession of FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 9 of 29 ganja. The witnesses further deposed that on checking the polythene, Ganja was recovered, it was weighed and its total weight was found to be 2 Kgs out of which 500 gms of ganja was taken out as sample, kept in a polythene, converted into a cloth pullanda, sealed with the seal of BB and said pullanda was given Serial Mark S while the remaining 1.5 kgs ganja was kept in the same polythene and it was also converted into cloth pullanda, sealed with the same seal and it was given serial Mark A. The witnesses further deposed that pullandas were seized vide seizure memo Ex.PW1/A and FSL form was filled up and thereafter, PW3 sent both the sealed pullandas, FSL form, seizure memo and rukka to the PS through PW1 with the direction to hand over pullandas to SHO and remaining documents to Duty Officer. PW1 also deposed that he handed over the pullandas to SHO who put his seal of JPS on these pullandas and handed over the same to MHCM for depositing the same in malkhana. PW1 also deposed that he handed over the rukka and the remaining documents to duty officer for registration of FIR and after registration of case, further investigation was entrusted to PW8 SI Anuj who came to the spot and conducted further investigation and arrested the accused, prepared site plan and recorded disclosure statement.
8. Ld. Counsel for the accused stated that the IO of this case has not associated any public witness in this case. However, Ld. Addl. PP stated that there is no need to associate any public FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 10 of 29 witness as the testimonies of police officials are straight forward regarding recovery of ganja from the accused. He submitted that testimonies of police officials cannot be disbelieved. Accused was apprehended while the police officials were on patrolling. Admittedly, there is no public witness to recovery effected and all the recovery witnesses are police officials. The place of apprehension as per site plan Ex.PW8/A is near Kabir Property, Wireless Road, Trilokpuri, Delhi. The time of apprehension of accused is about 9.15 p.m. PW3 has stated that he requested 45 passersby to join the raiding party but none agreed and they all left the spot without giving their names and addresses. Similar is the statement of PW1 and PW6. As per PW3, secret information was received by him at about 8.20 pm and later on, on the direction of SHO concerned, he formed raiding party and made nakabandi near Kabir Property but no public witness was joined in the proceedings. PW3 has simply stated that he asked 45 public persons to join the raid but none agreed but this plea of PW3 does not carry much weight. Admittedly, place of apprehension and the place where nakabandi was done is a public place which is surrounded by several residential houses/flats and there was considerable time available with the PW3 to join public witness in the raid but he did not make efforts to join any public witness from the residential area or from across the road. Rather PW3 admitted, in his crossexamination, that he did not approach the FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 11 of 29 residents of DDA Flats or 31 Block Jhuggi Extension for joining the investigation. He further admitted that he did not serve any notice to any person for joining the investigation. He cannot tell the names and addresses of the persons who refused to join the raiding party. No written notice was served upon them. Testimonies of all the raiding party members shows that the spot is a busy place. Many public persons used to pass through the same, it being a residential area as well as service road. There was enough time and opportunity to join the public persons in the raiding team. No notice was served to the public persons nor any action taken against them on their refusal to join the investigation.
9. Interestingly, on the one hand PW1, PW3 and PW6 deposed that PW3 asked public persons to join the raiding party but none agreed and they left the spot without telling their names and address and on the other hand, PW3 has ironically stated in his crossexamination that he informed SHO about the secret information through the mobile of one passerby. All these facts, suggest that either the version of PW1, PW3 and PW6 are incorrect or PW3 did not make any effort to join public persons as witness to the investigation or that no such secret information was received by PW3 as PW7 Inspector Jaipal Singh has nowhere stated in his statement that he had received any communication telephonically from PW3 about the secret information. Even 2nd IO PW8 SI Anuj Kumar did not join any FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 12 of 29 public person to the proceedings conducted by him. Rather he had clearly stated in his crossexamination that he had not called any public person from nearby locality to join the proceedings. Police officials remained at the spot till about 12.30 am. Thus, the police team remained at the spot for more than three hours. During this long time, no one from the public was joined though place of apprehension is a residential area. Thus, it appears that no genuine effort was made to join the public persons in the raiding team. Ld. Addl.PP has referred to the decision of Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 arguing that failure to associate independent witnesses is not fatal to the prosecution case as long as it is shown that efforts were made and none was willing. However, in the said case, Hon'ble Supreme Court emphasized that it has to be shown that after making efforts the police official was not able to get the public witness associated either in raid or the arrest of the culprit. In other words, in every case, it will have to be examined whether serious efforts were made by the police to associate public witnesses.
10. The Hon'ble Supreme Court in Ritesh Chakraborty Vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150 deprecated the practice of Investigating Officer in not noting down the names of the public persons, who fail to join the investigation.
FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 13 of 29
11. In Anup Joshi Vs. State, 1999 (2) CC Cases 314, and Roop Chand Vs. State of Haryana, 1999 (1) CLR 69; the failure to proceed against the public persons, who refused to join the investigation was considered as suggestive of the fact that the explanation for nonjoining of witnesses is an afterthought and is not worthy of credence.
12. In the case of Mohd. Masoom Vs. State of NCT of Delhi, Criminal Appeal 1404/11, decided by Hon'ble Delhi High Court on 09.04.2015, the Hon'ble High Court in Para No. 10 held as under: "10. "Appellants" conviction is primarily based upon the testimonies of the police officers/officials only. Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of the police officials. Sometimes, it becomes highly difficult for the police officials to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of independent public witnesses is not a mere formality. Simply saying by the police witnesses that public witnesses were not available without any evidence to that effect would not suffice. The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 14 of 29 to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits."
13.The Hon'ble High Court in para '21' of the aforesaid Judgment held that it has become almost routine practice for the police to say that passersby were requested to join and they declined and went away without disclosing their names and therefore, the Court should be wary of routinely accepting such explanation.
14. In the latest case of Om Prakash Vs. State III (2014) CCR 1 (Del.), it is held that 'in absence of clear evidence to show that sincere effort was made, Court should not simply accept proposition that generally in such cases no member of public comes forward to help prosecution'. Reliance also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.
15.In the present case, public persons were not made to join the proceedings at the time of recovery at the spot and there seems to be no genuine efforts to join them. Hence, non joining of public witnesses at the time of recovery creates doubt regarding the entire proceedings being genuine.
16.Ld. Defence Counsel has submitted that there is violation of Section 42 of NDPS Act in as much as PW3 did not record "Grounds of Belief" and sent to senior officials. Ld. Addl. PP, on the other hand has submitted that there is no violation of FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 15 of 29 Section 42 NDPS Act because PW3 has received the secret information given to him by the secret informer and he, telephonically gave the said information to SHO who further passed this information to ACP concerned.
17. The mandatory nature of the above requirement of law regarding recording of "Grounds of Belief" was explained in Karnail Singh Vs. State of Haryana VI (2009) 8 SCC 539 which is as under: "In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature referred to in Subsection (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 16 of 29 per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total noncompliance of requirements of Subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or nonsending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 17 of 29 all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
18.In the present case, secret information was received by PW3 SI Bengali Babu. He deposed that at about 8.20 p.m. when he reached on the road which goes from Gazipur to Wireless Road near Kabir Property, one secret informer came and informed him that one person would come after sometime from the side of Chilla Village with ganja and go towards 32 Block, Trilokpuri, Delhi, and if raided he can be apprehended. He informed the SHO telephonically and the said information was got lodged vide DD 58B Ex.PW3/C by SI Bengali Babu meaning thereby that till arrival of PW3 SI Bengali Babu at PS, no any DD was lodged regarding secret information which was passed to SHO by SI Bengali Babu from the spot at about 8.20 pm. As per PW3, on receipt of secret information, he immediately informed SHO who allegedly told PW3 to take appropriate action and thereafter, PW3 made nakabandi at the spot, apprehended accused at the instance of secret informer with ganja and conducted several proceedings and after registration of the case, SI Anuj Kumar came at the spot, who conducted further proceedings of the case and finally he left the spot at about FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 18 of 29 10.45 pm. Furthermore, PW7 Inspector Jaipal Singh the then SHO did not depose even a single word regarding receipt of secret information by PW3 SI Bengali Babu. It is clear that no DD was lodged by PW7 regarding receipt of secret information by PW3. Furthermore, PW7 ASI Mange Ram has also nowhere stated that he has received any copy of DD regarding receipt of secret information regarding which DD No.58B was lodged by PW3. Compliance of Section 42 NDPS Act is not attracted in chance apprehension. However, the present case is a case of receipt of secret information. There is no corroborative evidence in this case regarding recording of secret information and sending the copy thereof to the SHO/ACP. Furthermore, in his crossexamination, PW3 SI Bengali Babu has ironically stated that he informed the SHO about the secret information by using the mobile of a passer by as he was not having his mobile at that time. This testimony of PW3 creates very serious doubt as PW3 has not disclosed the name and mobile number of that passerby. PW1 and PW6 are silent on this point and simply stated that PW3 informed SHO telephonically about secret information. All the circumstances create doubt about presence of members of raiding party at the spot and in turn case of the prosecution seems to be doubtful. Thus, in the present case the link evidence with regard to sending of secret information to the senior police officer is missing and therefore, from the evidence, it can be inferred that information regarding FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 19 of 29 receipt of secret information was never sent to SHO and that it was never received by the ACP.
19. In the present case recovery was effected on 04.06.2016, However, samples/exhibits were sent to FSL through PW2 Ct. Rahul on 27.07.2016. The samples were sent to FSL after about 50 days. Hon'ble High Court in the case of Matlub Vs. State 67(1997) DLT 372 held that sample needs to be sent to FSL without delay and if samples are dispatched with delay and no explanation is given, tampering with the seal can be inferred.
20. In the present case, PW6 Ct. Sajjan Singh stated that seal after use was handed over to him by PW3 while PW1 and PW3 did not depose anything about the same. It is also not clear as to when seal was returned by PW6 to PW3. As per PW5 and PW7, sample pullanda as well as pullanda of contraband was deposited by SHO/PW7, however, as per entry Ex.PW5/A SI Bengali Babu has deposited the pullanda. Further it also does not mention about sealing of the pullandas by the SHO. It also does not mention about deposit of FSL form.
21.There is further material contradiction regarding the place where the writing work was done by the IO. As per PW3 writing work was done at on the pavement on the road under the street light while PW1 Ct. Sandeep Kumar testified that the writing work was done at the spot while sitting on the bike.
FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 20 of 29
22. There are further contradictions regarding the weighing scale with which the recovered contraband was weighed. None of the witnesses have about deposed its make and company name. In his statement PW1 stated that Ct. Sajjan has brought normal weighing scale for weighing while PW3 stated that it was an electronic weighing scale. In his evidence, PW1 Ct. Sandeep deposed that the weighing scale was a normal weighing pane with fourfive weights and the same was brought by Ct. Sajjan from some nearby shop on the direction of SI Bengali Babu while PW6 Ct. Sajjan Kumar testified that he brought the weighing scale from a nearby kiryana shop. Likewise, PW6 stated that he brought the white cloth for making pullanda from nearby shop but again he did not disclose the name of the shopkeeper. None of the witnesses have disclosed the name and particulars of the shopkeeper from whom the aforesaid weighing machine/scale and piece of white cloth was brought.
23. Furthermore, the search and seizure of the contraband from the accused at the spot also appears to be doubtful. It is clear from the statement of PW1, PW3, PW6 and PW8 that the seizure memo was prepared by PW3 before sending rukka but it bears the FIR number with same handwriting and flow which fact is also admitted by PW3 in his crossexamination. PW3 clearly stated that he did not make any addition or deletion in the seizure memo which was prepared before arrival of the 2 nd IO. He also stated that seizure memo was reduced into writing FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 21 of 29 by him and the same bears FIR number in same handwriting and flow. While, PW8 SI Anuj Kumar testified that he had written FIR number on all the documents which were handed over to him, however, he has not specified the documents. This fact is also not mentioned in the report u/s 57 NDPS Act Ex.PW7/A prepared by PW8. As per Ex.PW7/A, after registration of FIR, PW8 reached at the spot, prepared site plan, recorded statement of witnesses, interrogated accused and arrested him at about 11.50 pm. While PW1 deposed that seizure memo was prepared by SI Bengali Babu at the spot before reaching of SI Anuj and he does not remember whether any addition or deletion was made on the same after reaching of SI Anuj. As per prosecution case, the second IO/SI Anuj had put the FIR number on the documents already prepared by the first IO, however, it is clear from the crossexamination of PW 3/first IO that he had prepared the seizure memo before arrival of the second IO and he had also put the FIR number on the seizure memo. All these facts reflect that either PW3 and PW8 have deposed falsely or FIR was registered prior to search and seizure of the case property. It is held by the Hon'ble High Court in the case reported as Giri Raj vs State 2000(83) DLT 201 that the prosecution case becomes highly doubtful, in case the document which were prepared prior to registration of FIR, bears the FIR number. Relevant para of the judgment reads under: FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 22 of 29 "It needs to be highlighted that the rukka (Ex.PW7/A) recites that the alleged contraband was seized at 6.10 P.M. and the rukka was dispatched from the spot at 7.30 P.M. The FIR (Ex.PW2/A) shows that the same was registered at the police station at 7.40 P.M. Surprisingly, the appellant's personal search memo (Ex.PW4/B) and the seizure memo (Ex.PW4/A) bear the number of the FIR (Ex.PW2/A). The number of the FIR (Ex.PW2/A) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW2/A had appeared on the top of the said documents, which were allegedly prepared on the spot before its registration. This gives rise to two inferences that either the FIR (Ex.PW2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant."
In the instant case also, it appears that the documents were prepared after registration of the FIR and in view of the settled law, the case of the prosecution becomes highly doubtful under these circumstances.
24. The production of case property after its search and seizure, before the SHO concerned and its deposition in Malkhana also appears to be doubtful. As per PW5 ASI Rajender the then MHCM, on 04.06.2016, Inspector Jaipal FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 23 of 29 Singh had called him in his office along with register no.19 and accordingly he went there and the SHO Inspector Jaipal Singh produced him two sealed parcels sealed with the seal of BB and JPS along with FSL form which were deposited by him (PW5) and relevant entry at sl. no.2345 in register no.19 were made, copy of which is brought on record as Ex.PW5/A. PW7 Inspector Jaipal Singh also deposed that he called MHCM HC Rajender Kumar along with register no.19 who came in his office and he handed over all the said parcels to PW5 along with said documents and he had deposited the case property in the malkhana properly and made relevant entry. However, none of these two witnesses deposed about the time of production and deposition of the case property. The document Ex.PW5/A also does not show the time of deposit of case property. Furthermore, in his crossexamination PW5 admitted that the time of deposit is not mentioned at the relevant entries. He further stated that the contents of RC No.85/21 are in the handwriting of Ct. Sonu who was working as his Munshi who written the contents on his dictation. He also deposed that entries in register no.19 are also in the handwriting of Ct. Sonu. Thus as per PW5 the entries regarding deposit of pullandas was made by Ct. Sonu while PW7 stated that he had called PW5 who made relevant entries in the register. Thus the testimony of these witnesses regarding the proceedings conducted in respect to the deposit of the pullandas of FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 24 of 29 contraband is not reliable.
25. As per prosecution case, PW1 Ct. Sandeep went to the PS alongwith copy of seizure memo, FSL Form and sealed pullandas and he handed over the same to the PW7 Insp. Jaipal Singh who put his seal of JPS on the pullandas and FSL form and deposited the same with the MHCM and also lodged DD no.48A in this regard. The MHCM has brought on record the relevant entry which as per prosecution case was made in respect to the deposit of the said pullandas and documents. It is clear from the perusal of the Entry No. 2345 that this entry is merely a repetition of the contents of seizure memo and it doesn't mention about the deposit of any pullanda, FSL form and copy of seizure memo. There is no discussion that Insp. Jaipal Singh had put his seal on the pullandas and then deposited the same with the MHCM. There is no discussion that FSL form was deposited with the MHCM and same was sent to FSL for authentication of seal. It is not mentioned either in the register no.19 or in the road certificate that FSL form was deposited and sent to FSL. It is well settled law that in case FSL form is not deposited in the Malkhana or with the FSL the case of the prosecution will be highly doubtful. In the case of Radha Kishna Vs. State, 87(2000) DLT 106, High Court has explained the importance of ensuring that the FSL form is duly sent with sample for testing. In para '26' of the Judgment, it was explained :
FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 25 of 29 It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central Forensic Science Laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instance case, this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/police station".
In Radha Kishan, after referring to Delhi High Court Rules, Part III Chapter 18B, regarding proper proof of custody of articles, it was held by this Court that the evidence of preparation and dispatch of the FSL form was critical for ensuring that the sealed sample was kept intact in the police malkhana. An adverse inference would be drawn against the prosecution in the event the FSL form was not proved to have been prepared and dispatched. To the same effect are the judgments in Moolchand and Phool Kumar. Further, it has been held in Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT 577, that oral evidence which is contrary to the documentary evidence ought not to be relied upon. In the instant case, despite the prosecution witnesses asserting that the FSL form was prepared, not only is the FSL form unavailable FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 26 of 29 on the record but the photocopies of the store room register and road certificate throw considerable doubts whether the FSL form was in fact prepared and dispatched. These documents are unreliable.
For the above reasons, it is held that in the instant case the non-compliance with the mandatory requirement of preparation and dispatch of the FSL form with the sample sent for testing is fatal to the case of the prosecution.
26. As per the testimony of PW8, Second IO/SI Anuj Kumar, he reached the spot at about 11:15PM on 04.06.2016 and thereafter, he prepared site plan as well as conducted personal search of the accused and prepared the document i.e. personal search memo as well as arrest memo. He also recorded disclosure statement of the accused and he finally left the spot at about 12:30AM. Thus, it is clear that by the time PW8 left the spot, it was 05.06.2016 and the personal articles of the accused which were deposited by him in the malkhana could have only been deposited on 05.06.2016, however, it is clear from the relevant entry Ex. PW5/A that the personal search articles were also deposited in the malkhana on 04.06.2016 itself. Thus the prosecution case as has been set out in the chargesheet and has been put forth in the evidence is quite contradictory to the documents brought on record by the witnesses, hence, prosecution case is again appears to be highly doubtful on this count also.
27.In the present case, PW3 has failed to associate any public witness during apprehension and recovery from the accused.
FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 27 of 29 There is no proper compliance of mandatory provision i.e Section 42 of NDPS Act. The recovery was effected on 04.06.2016 and sample was sent to FSL on 27.07.2016 with delay of about more than 50 days. It also raises serious doubts as the seizure memo was prepared after registration of FIR. Serious punishments are prescribed under the NDPS Act and therefore stricter the punishment, stricter the mode of proof. In the case of Noor Agha Vs. State of Punjab & Anr. 2008 (3) JCC (Narcotics) 135, the Hon'ble Court held that in a case arising out of the provisions of NDPS Act the legislature has provided very stringent punishment. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of statutory safeguards available to the accused.
28. In the State of Punjab Vs. Baldev Singh (1999) 3 SCC 977, the Hon'ble Supreme Court held that it must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguard provided in statute are scrupulously followed.
29.In view of the aforesaid discussions, the case of the prosecution is highly doubtful. It is well settled law that benefit of doubt is always given to the accused. Accused Sunil Kumar @ Monu accordingly acquitted. However, he shall furnish a FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 28 of 29 personal bond in the sum of Rs.10,000/ with a surety of the like amount u/s 437A Cr.P.C.
30. File be consigned to record room after the requisite bond is furnished.
Digitally signed AJAY by AJAY GUPTA
Location: Delhi
GUPTA Date: 2019.01.25
17:05:43 +0530
(Ajay Gupta)
ASJ02/ Special Judge(NDPS)
KKD/East/Delhi
Announced in open
court on 25.01.2019
FIR No. 228/2016 State vs Sunil Kumar @ Manu U/s 20 NDPS Act PS Mayur Vihar 29 of 29