Central Administrative Tribunal - Delhi
Dilbagh Singh vs Govt. Of Nct Of Delhi on 11 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO.275/2011 NEW DELHI THIS THE 11TH DAY OF NOVEMBER, 2011 HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) HONBLR DR. DHARAM PAUL SHARMA, MEMBER (J) Dilbagh Singh Aged about 46 years HC in Delhi Police S/o Sh. Rati Ram PIS No.28840845, R/o 20/221, Gali No.4, Nai Basti, Bahadur Garh, Haryana Applicant (By Advocate: Shri Anil Singal) VERSUS 1. Govt. of NCT of Delhi Through Commissioner of Police PHQ, IP Estate, New Delhi. 2. Addl. Commissioner of Police (Operations), PHQ, IP Estate, New Delhi. 3. Sh. M.R. Gothwal (EO) DCP (D.E. Cell) Police Bahawn, Asif Ali Road, Delhi. Respondents. (By Advocate: Mrs. Renu George) ORDER (ORAL) MRS. MANJULIKA GAUTAM, MEMBER (A):
We have heard both the counsel. During the course of the arguments, learned counsel for the applicant pointed out that another OA No.3342/2010 filed by the co-delinquent has been allowed by the Tribunal vide order dated 14.10.2011. Learned counsel for the respondents has no objection to the submission made.
2. We have perused the order dated 14.10.2011 in OA number 3342/2010 and are of the opinion that the above mentioned order does not apply in its entirety to the case of the applicant. Accordingly, we are proceeding to examine the case of the applicant on merits.
3. There were four co-delinquents in the matter and a common chargesheet was served upon them, which reads as follows:
I, M.R. Gothwal, Deputy Commissioner of Police, DE Cell,Delhi, the Enquiry Officer, charge you Inspr. Suresh Dabas, No.D-I/958, the then SHO/Rohini, SI Anant Kiran No.D-3108, ASI Dharampal No.4569/D and HC Dilbagh Singh No.303/NW that on 20.12.2000, while you all were posted at PS Rohini, North-West District, Delhi. The team headed by you, SI Anant Kiran apprehended one Keshar Singh while in possession of 1.800 Kg. Charas like contraband substance. In the meantime, you, Inspr. Suresh Dabas, the then SHO Rohini reached the spot and the recovered case property alongwith FSL form was seized and took the possession of case property. You, SI Anand Kiran prepared a Rukka and sent it to Duty Officer PS Rohini for registration of FIR. Subseqsuently, a case vide FIR No. 886 dated 20.12.2000 u/s 20/61/85 NDPS Act was registered and case was handed over to you, ASI Dharampal for further investigation. It is further alleged that you, HC Dilbagh Singh, Duty Officer had made endorsement on two Rukkas. It is also revealed from the scrutiny of record that you, Inspr. Suresh Dabas had taken over the possession of case property with FSL from the spot and deposited the case property with FSL form in PS Malkhana vide DD No.24A dated 20.12.2000 but register No.19 as well as 21 is silent and as per register No.19, you , SI Anand Kiran I/C PP Vijay Vihar had deposited the case property vide Mud No.2124/2000 of register No.19 PS Malkhana. You, Inspr. Suresh Dabas the then SHO Rohini failed to check the entry made by MHC (M) in register No.19 of PS Malkhana. MHC(M) handed over only the sample of the case for depositing with FSL Malviya Nagar to Const. Rajender Singh No.717/NW vide RC No.40/21/2001 dated 4.3.2001. But at the time of deposition in the Ld. Court, Const. Rajender Singh confronted with his statement recorded u/s 161 Cr.P.C. as Road Certificate No.40/21 dated 4.3.2001 was also silent about FSL form. Apart from this, both the investigating officers did not comply with the provision of section 57 NDPS Act in this case and also failed to record the statement of Const. Rajender property. Later, challan of this case was sent to court of judicial verdict but the Ld. Court of Shri N.K. Sharma, ASJ has adversely commented upon the above noted shortcomings and the case was acquitted with the recommendations for taking appropriate action against the erring police officers, which has defamed the image of Delhi Police.
The above act on the part of you, Inspr. Suresh Dabas No.D-I/958, the then SHO/Rohini, SI Anant Kiran No. D/3108, ASI Dharampal No.4569/D(now SI) and HC Dilbagh Singh No.303/NW (now No.698/Sec.) amounts to gross misconduct, negligence and carelessness in the discharge of your official duties which you are liable for punishment under the provisions of Delhi Police (Punishment and Appeal)Rules-1980.
4. The main charge against the applicant in this OA is that he had made endorsement on two `rukkas. While the matter was pending in the High Court of Delhi, an inquiry was conducted by the ACP concerned and in his report dated 13.08.2001, it was concluded that only one `rukka was prepared and sent for registration of the case and that the other document was the fair copy of the `rukka. The relevant part of the report reads as follows:
The undersigned has gone through the relevant papers/documents of case FIR No.886/2000. The Honble court has pointed out towards the preparation of two rukkas out of which appears fabricated. SI Anant Kiran who had prepared the rukka submits that only one rukka was prepared and sent to PS for the registration of the case and that the other one is the fair copy of the first rukka hence there is no manipulation, illwill on fabrication.
It will be pertinent to mention here that the contents of rukka, FIR and seizer memo are same which shows that the I.O. didnt had any malafide intention. As has been mentioned above, I.O. himself admits that he had prepared the fair copy and only this fair copy was supplied to the accused.
The Honble court has also pointed out the I.O. SI Anant Kiran was changed on the day when the case was registered. Since in this case `Charas was seized by SI Anant Kiran, as is procedure, the investigation was handed over to ASI Dharam Pal.
5. While rejecting the bail application of the accused, the Honble High Court passed orders dated 4.10.2001, which reads as follows:
This is a petition under Section 439, Cr. P.C. for grant of bail in case FIR No.886/2009, under Section 20/61/85 NDPS Act, P.S. Rohini.
Learned counsel for the petitioner argued that petitioner was falsely implicated in the case; that copies of documents supplied show that two ruqqas were prepared; that there are cuttings on figures at 5.40 and at 1.0 kg. It is further argued that there is no corresponding entry in Registrar No.19 for sending the CFSL form to the Laboratory; that recovery was effected on 20th December, 2000 and samples were sent on 4th March, 2001; there is no independent witness, therefore, the petitioner is entitled to be released and bail. Learned APP for State, relying upon the affidavit of Mr. R.P. Upadhyaya, DCP explained that ruqqa had to be rewritten because there was some overwriting and cutting on the figures noticed above, otherwise it is verbatim the same and that there was no other ruqqa. The circumstances under which the second ruqqa came to be prepared would necessarily requisite appreciations on evidence which is not permitted at this stage. Whether the explanation given is right or wrong would have considered at the end of the trial. Similarly, other issues raised by the learned counsel for the petitioner can be no help to him at this stage.
Taking into consideration the fact, the petitioner was found in possession of 1.8 kg. of charas from the bag which was carried by him, no case for grant of bail is made out.
Petition stands disposed of.
6. However, the trial court in its judgment dated 7.04.2005, while deciding the case finally, made the following observations:
When the I.O. SI Anant Kiran was cross examined by the accused, he deposed that he prepared only one rukka and when he was confronted with Ex.PW3/DB, he admitted that it is in his hand writing and it also bears, the endorsement of the Duty Officer at point A and it is a photocopy of the rukka prepared by him. In his further cross examination, he admitted that original of Ex.PW3/DB which bears the endorsement of the Duty Officer was torn out after preparing rukka Ex.PW7/a. He further admitted that after registration of the FIR, further investigation was given to ASI Dharampal and original rukka (photocopy of which is Ex.PW3/DB) was taken back from ASI Dharampal and thereafter it was changed to rukka Ex.PW7/A and this rukka Ex.PW7/A was not sent to the Duty Officer for registration of the FIR and later on he got the endorsement of the Duty Officer on Ex.PW7/A and at that time the investigation of this case was not with him.
15. The above tempering in the rukka which is the genesis of the FIR by SI Anant Kumar in collusion with Duty Officer PW3 HC Dilbagh Singh and the 2nd I.O. PW6 ASI Dharampal is very unhealthy affairs on the part of the investigating agency which can not be ignored and this tempering with the rukka clearly strenghthen the defence version of the accused that he was lifted from his house by SI Anant Kiran and was brought to the police station where he was falsely implicated by planting the contraband in question.
16. Furthermore, the provisions of section 57 of the NDPS Act has not been complied with by both the investigating officers, as no such report has been placed and proved on record for the reasons best known to them.
17. In the light of the above discussion and for the reasons given therein, I am of the considered view that the prosecution has failed to prove its case against the accused beyond the shadow of reasonable doubt. Accordingly, accused is acquitted of the charge u/s 20 NDPS Act by giving him due benefit of doubt. Since, he is in custody, the Jail Superintendent is directed to release him forthwith, if not required in any other case. Case property be disposed of in accordance with law after the expiry of the period of revision/appeal, if any. A copy of this judgment be sent to the Commissioner of Police for taking appropriate action against both the I.O.s and the Duty Officer named above. File be consigned to RR.
7. On the basis of the above observations, the departmental inquiry was instituted against the applicant. According to the inquiry officer, one of the main grounds on which the accused was acquitted by the trial court was that two `rukkas were prepared by the IO/DO. Regarding this point, the inquiry officer has made the following observations:
Another charge that defaulter HC Dilbagh Singh who was the DO at the relevant time has made endorsement on two Rukkas. Vide exhibit 5/C and 5/D, the two Rukkas have been exhibited and the same have been confirmed by PW-5 and PW-6. The explanation given by the defaulters is that there was some cutting/overwriting in the original Rukkas and they prepared the second Rukka to correct the mistake and the plea that there is no difference between the two Rukkas. Though the perusal of the two Rukkas revealed that except cutting on one pointed that the FIR was lodged on the basis of the original Rukka sent by the delinquent SI Anant Kiran, the first IO, and the endorsement was made regarding registration of the FIR by defaulter HC Dilbagh Singh the then DO. It is not understood as to what was made regarding registration of the FIR by the defaulter HC Dilbagh requirement of preparing the second Rukka and bringing both Rukka on the police file/in the notice of the Trial Court. Defaulters have put forth the plea that the issue was raised by the accused before the Learned High Court and the same was rejected by the Learned High Court. The perusal of the order of the High Court as submitted reveals that the Issue which was decided by the Learned High Court was regarding the grant of bail U/s 439 Cr.P.C. and the other issues were left for the decision of the Learned Trial Court. So the plea that Learned High Court did not given any weightage to the issue of two Rukkas has no weight and Learned Trial Court has taken very adverse view of the existence of two Rukkas. Though there appears to be no malafide on the part of the delinquents in preparing the two Rukkas but it is highly unprofessional that two Rukkas existed in the case file which is a gross violation of the basis principle of the law and procedures in the criminal jurisprudence. The existence of the two Rukkas casts doubt and suspicion about the authenticity and reliability of the IOs. This was one of the greatest mistakes which the defaulters have committed regarding the preparation of the two Rukkas and this proved fatal for the case. The plea of the defaulters that the enquiry was conducted and a report was submitted by the then DCP/North-West vide exhibit DW-1/A in the Honble High Court also does not come to their rescue as there is no denial of the preparation of the two Rukkas vide this report. Defaulter SI Anant Kiran, in his written defence statement has made contradictory clarification on the matter which goes to prove the charge against defaulters.
8. The disciplinary authority, agreeing with the inquiry officer, awarded the punishment of forfeiture of one year approved service to Inspector Suresh Dabas and punishment of forfeiture of one year approved service each to SI Anand Kiran, ASI Dharam Pal and HC Dilbagh Singh. The appellate authority in its order dated 21.12.2009 reduced the above punishment to that of `censure and made the following observations on the issue of two `rukkas:
Further, since the second rukka was verbatim copy of the first rukka it cannot be said there were mlafide intents or any effort to make improvements. As far as the FSL from is concerned, the same is mentioned in the RUKKA, DD entry No.24-A dated 20.12.2000 and also entered in register No.19. It is a fact that FSL would not have accepted the exhibits for analysis without FSL Form. Under the circumstances, I feel that the award of major punishment would be on the excessive side. Therefore, I hereby reduce the punishment of forfeiture of one year approved service to that of censure.
9. It is, therefore, clear that the main charge against the applicant was that of endorsement on two `rukkas. This fact has not been denied by the applicant at any stage but both the disciplinary authority and the appellate authority in their orders have not been able to pin-point any malafide intention with which the two `rukkas were made. In fact, the appellate authority has accepted that the second `rukka is the verbatim copy of the first `rukka. The explanation of the applicant is merely that there was cutting in the first `rukka and, therefore, fresh copy was made and both were kept on record. That being so no malafide or ill intention can be attributed to the applicant as has been observed by the appellate authority. Furthermore, once the act of delinquency i.e. preparing two rukkas, has been duly explained and the same has been accepted by the appellate authority, there may not be any warrant for imposing any penalty. In these circumstances, the applicant cannot said to be guilty of gross misconduct, negligence and carelessness for which he was proceeded against in the inquiry. Therefore, he cannot legitimately be awarded any penalty at all. Accordingly, we are of the considered view that the penalty of censor is not tenable in the facts and circumstances of the case. Therefore, we are of the opinion that it was only a procedural lapse and not the offence committed by the applicant for which punishment was to be imposed.
10. In view of the above, the OA is allowed and the impugned orders passed by the disciplinary and appellate authorities are quashed and set aside, with all consequential benefits. No costs.
(Dr. Dharam Paul Sharma) ( Manjulika Gautam )
Member (J) Member (A)
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