Delhi District Court
State vs . Saroj Chaudhary Etc. on 8 May, 2014
1
In the Court of Dig Vinay Singh ASJ/Special Judge : NDPS
Rohini Courts : Delhi
In the matter of :
SC No. 15/13
State Vs. Saroj Chaudhary etc.
FIR no. 07/13
PS Crime Branch
U/s 20/25/29 NDPS Act
State
Versus
1. Saroj Chaudhary @ Suresh @ Lambu @ Vicky
S/o Sh. Surya Kant Chaudhary
R/o Village Bilbar, P.S Raj Nagar,
District Madhubani (Bihar).
Present Add : Jhuggi No. N-9/C-112,
Lal Bagh, Azad Pur, Delhi.
2. Ranjeet Kumar
S/o Sh. Laxman Prasad
R/o Jhuggi no. N-9/125,
Near Laxmi Narain Mandir,
Lal Bagh, Azad Pur, Delhi.
Date of receipt : 24.06.2013
Date of arguments : 08.05.2014
Date of announcement : 08.05.2014
JUDGMENT
1. The above named two accused were sent for trial with the case of prosecution that on 9.1.2013 at 6.15 AM at T-point Corner, G.T.Road, Lal SC no. 15/13 Dtd...08.05.2014 Page 1 of 35 2 Bagh Jhuggi Basti Road near Masjid, Azad Pur, Delhi the two accused were found in possession of one gunny bag each which they were carrying on their respective shoulders, inside which they were carrying 'ganja'. After serving notices U/s 50 NDPS Act, the two accused and their bags were searched. The bag possessed by accused Saroj Chaudhary was found to be containing 25 Kg 500 Gms of ganja. The bag possessed by accused Ranjit was found to be containing 24 Kg 500 Gms Ganja. From the contraband contained inside the gunny bags, two-two samples each of ganja was separated. The case property was sealed and taken into possession. Thereafter, the case was got registered and the two accused were formally arrested. Allegedly, the two accused made disclosure statements, pursuant to which Jhuggi no. N25-A/218, Lal Bagh Jhuggies was raided and at the pointing out of the two accused, from inside the jhuggi, another gunny bag containing 23 Kgs of ganja was found. From this recovered ganja also, samples were drawn and the case property was seized. Besides ganja, certain other packing material was also recovered from the jhuggi which was also seized. Thereafter, both the accused also led the police team to House no. 14A, Khasra no. 133/22, Gali no. 8, Milan Vihar, Jagat Pur, Burari, Delhi, from where also three more gunny bags containing ganja were recovered. The weight of those three gunny bags containing ganja turned out to be 15 Kg, 17 Kg and 20 Kg. From the said recovered ganja also, samples were drawn and the case property was seized. On completion of investigation chargesheet was filed. FSL result also confirmed the recovered substance to be ganja.
2. Besides the abovenamed two accused, chargesheet was also filed against one more accused Subhash Jha who is a proclaimed offender, as the SC no. 15/13 Dtd...08.05.2014 Page 2 of 35 3 house in Milan Vihar, from where part recovery was effected belongs to him and allegedly the other contraband recovered was lifted by the accused from house of Subhash Jha.
3. Accordingly, accused Saroj Chaudhary was charged for offence U/s 20 NDPS Act for possessing the above mentioned quantity of ganja. He was also charged for offence U/s 29 NDPS Act for being in conspiracy with his co-accused Ranjit Kumar and the proclaimed offender Subhash Jha, in procuring, possessing, transporting and supplying/selling the ganja. Accused Saroj was also charged for offence U/s 25 NDPS Act for permitting his jhuggi no. N25-A/218, Lal Bagh, Azad Pur, Delhi for the commission of offence mentioned above.
4. Accused Ranjit was charged for offence U/s 20 of NDPS Act for possessing the above mentioned quantity of ganja. He was also charged for offence U/s 29 NDPS Act for being in conspiracy with his co-accused Saroj Chaudhary and the proclaimed offender Subhash Jha, in procuring, possessing, transporting and supplying/selling the ganja.
5. Both the accused pleaded not guilty to the charges and claimed trial. It would be pertinent to mention here that third accused Subhash Jha who was owner of the house no. 14A, Milan Vihar, was proclaimed offender throughout the trial of this case. He was declared proclaimed offender on 29.05.2013.
6. In support of its case, prosecution examined total eleven witnesses.
Evidence of those witnesses, against the proclaimed offender, was recorded U/s 299 Cr.P.C.
6.1 From amongst the witnesses examined by the prosecution, PW6 Ct.
Rupesh Kumar was the witness of initial recoveries from the two accused SC no. 15/13 Dtd...08.05.2014 Page 3 of 35 4 Saroj Chaudhary and Ranjit Kumar, when they were apprehended with one gunny bag each. PW7 HC Dilbagh Singh and PW10 ASI Harsh Wardhan are witnesses to the recoveries from the Jhuggi no. N25-A/218, Lal Bagh, and also the house no. 14-A, Milan Vihar, besides the initial recoveries. 6.2 PW11 ASI Rajvir Singh was the subsequent investigating officer who reached the spot after registration of FIR and after the disclosure statements of the two accused. He effected recoveries from Jhuggi no. N25-A/218, Lal Bagh, and the house no. 14-A, Milan Vihar. 6.3 Rest of the witnesses are more or less formal in nature. 6.4 PW1 HC Sandeep, the reader to ACP concerned proved receipt of report U/s 42 NDPS Act in the form of copy of DD no. 2 Ex.PW1/A and the receipt of two reports U/s 57 of NDPS Act regarding seizure and arrest of the two accused, Ex.PW1/B & C, in the office of ACP, and that the ACP saw and signed those reports. He identified the hand writing and signatures of the ACP concerned.
6.5 PW2 HC Jag Narain was the malkhana moharrar who deposed that on 9.1.2013 the parcels Mark A to F, sealed with the seal of HV and PSR were deposited in the malkhana along with two FSL forms and two carbon copies of the two seizure memos by the SHO Inspector P.S.Rana vide entry Ex.PW2/A in the register no. 19. This witness also deposed that on that very day at about 11.20 PM, Inspector Padam Singh Rana again deposited total 13 sealed pullandas bearing Mark G, H, I, X, Y, Z, X-1, X-2, Y-1, Y-2, Z-1, Z-2 & K sealed with the seal of RSS and PSR along with two FSL forms and carbon copies of two seizure memos vide entry Ex.PW2/B in register no.19. He also deposed that on the night intervening 9th and 10th January, 2013, personal search articles of the two accused SC no. 15/13 Dtd...08.05.2014 Page 4 of 35 5 were deposited vide entry Ex.PW2/C and that thereafter on 15.1.2013, the sample parcels were sent to the FSL through Ct. Jagat Nagar along with the FSL forms vide Road Certificate Ex.PW2/D. The carbon copies of the seizure memos are proved by the witnesses as Ex.PW2/F-1 to F-5. 6.6 PW3 W/HC Suman was the duty officer who proved FIR Ex.PW3/A, endorsement on rukka Ex.PW3/B, and DD no. 13, 14, 15 & 23 as Ex.PW3/C, D, E & F, respectively.
6.7 PW8 Ct. Jagat Singh carried the sample case property to the FSL along with the FSL forms on 15.1.2013.
6.8 PW9 Inspector Padam Singh Rana deposed that on 9.1.2013 at about 11.35 AM Ct. Rupesh brought six sealed parcels bearing Mark A to F duly sealed with the seal of HV along with two FSL forms bearing same specimen seals and one carbon copy each of the two seizure memos. The witness applied his own seal of PSR on the pullandas and thereafter the case property was deposited in the malkhana. The witness also proved that he recorded DD no.14 regarding deposition of this part of case property. This witness also deposed that on that very day at about 11 PM, ASI Rajvir brought 13 sealed parcels Mark G, H, I, X, X-, X-2, Y, Y-1, Y-2, Z, Z-1, Z-2 and, parcel Mark K, all of which were sealed with the seal of RSS, along with the two FSL forms bearing same specimen seals and carbon copies of seizure memos. The witness applied his seal of PSR and thereafter deposited the case property and documents in malkhana. Regarding this part of deposition of case property, the witness proved DD no. 23 Ex.PW3/F. 6.9 PW5 Satish Chander Yadav proved that the electricity connection installed at premises no. N25-A/218, Lal Bagh, Azad Pur, Delhi was in the SC no. 15/13 Dtd...08.05.2014 Page 5 of 35 6 name of Suresh Chaudhary S/o Sh. Surya Kant Chaudhary, vide application bearing photograph of Suresh Chaudhary Ex.PW5/A; undertaking Ex.PW5/B; and other documents Ex.PW5/C, D & E, all of which bears thumb impressions of Suresh Chaudhary. Ex.PW5/E is an affidavit of Suresh Chaudhary bearing his photograph also. The photograph is that of accused Saroj Chaudhary @ Suresh Chaudhary. 6.10 This witness also proved that the electricity connection installed at premises no. 14-A, Milan Vihar was in the name of Subhash S/o Sh. Kripanand Jha vide documents Ex.PW5/G, H & I. This connection is in the name of proclaimed offender Subhash Jha.
6.11 PW4 Inspector Jai Bhagwan deposed that on 9.1.2013, he was present in his office at about 4.45 AM when ASI Harsh Vardhan produced one secret informer before him and information against the accused was received. Thereafter, the secret information was reduced to writing by ASI Harsh Vardhan in DD no. 2 Ex.PW1/A and the raiding team left for the spot. The witness also proved submission and forwarding of the reports U/s 42 & 57 of NDPS Act, Ex.PW1/A, B & C. 6.12 From amongst the recovery witnesses, it is deposed by HC Dilbagh Singh PW7 that on 9.1.2013, he was posted as HC in AATS, Crime Branch, Kotwali, Delhi and was present at 4.15 AM in the office when one secret informer came and informed that three persons Subhash Jha (Proclaimed Offender), Hemant and Vinod were involved in supply of Ganja along with accused Saroj Chaudhary and Ranjit. Informer also informed that those persons were likely to come with ganja in Wagon-R Car no. DL8C N B 1338 between 6 AM to 6.30 AM at Lal Bagh Jhuggies, Azad Pur from Wazirabad Area. This witness shared the secret information SC no. 15/13 Dtd...08.05.2014 Page 6 of 35 7 with ASI Harsh Vardhan.
6.13 PW10 ASI Harsh Vardhan deposed that he produced the secret informer before Inspector Jai Bhagwan and thereafter, he reduced the secret information into writing under DD no. 2 at 5.30 AM. Thereafter, a raiding team comprising of HC Dilbagh Singh, ASI Harsh Vardhan PW10, Ct. Rupesh PW6 and HC Azad was constituted. The raiding team left the office for the spot under DD no. 3 recorded at 5.30 AM Ex.PW10/B. 6.14 It is deposed by PW6 Ct. Rupesh, PW7 HC Dilbagh Singh and PW10 ASI Harsh Vardhan that the raiding team along with the informer reached the spot at about 6 AM. The raiding team also carried with it the IO bag, and electronic weighing machine. On the way to the spot, certain public persons were requested to become witness at ISBT Kashmere Gate but none agreed. At the spot also, 5-6 passersby were requested to become witness but even they did not agree. At about 6.10 or 6.15 AM the two accused were noticed coming on foot from Azad Pur Terminal side. Both of them were carrying one bag each on their right shoulder. They were identified by the informer as Saroj Chaudhary @ Suresh and as Ranjit. The two accused were stopped and introduction of the raiding team was given to them. They were told about the secret information available with the police. They were informed about their legal rights U/s 50 NDPS Act. Separate legal notices Ex.PW6/A & 6/B were prepared qua the two accused U/s 50 NDPS Act in duplicate and a copy each was served upon the two accused. The two accused refused to exercise their rights and their refusal Ex.PW6/A-1 & B-1 were noted down. Thereafter, the gunny bags which the accused persons were carrying were checked. Initially, the gunny bag of accused Saroj was checked and was found to be containing SC no. 15/13 Dtd...08.05.2014 Page 7 of 35 8 Ganja. On measurement, its weight turned out to be 25.500 Kg. Out of it, two samples of 500-500 grams each were separated and were sealed in parcels Mark A & B. The remaining ganja was also sealed in parcel Mark C. FSL form was filled up. All the three parcels were sealed with the seal of HV and the same specimen seal was applied on the FSL form. Similarly, the bag recovered from accused Ranjit was checked and was found to be containing 24.500 Kg Ganja, out of which also similarly samples were drawn and sealed. The parcels pertaining to Ranjit were given Mark D, E & F. The case property was seized vide seizure memo Ex.PW6/C & D, respectively. Thereafter rukka was prepared and through Ct. Rupesh case was got registered. Besides the rukka Ct. Rupesh was also handed over all the six sealed parcels, both the FSL forms and copies of seizure memos to be taken to the police station Crime Branch and to be delivered to the SHO.
6.15 It is deposed by PW6 Ct. Rupesh that he took rukka, case property and other documents to the police station Crime Branch, Malviya Nagar where he handed them over to Inspector SHO P.S.Rana except the rukka. He handed over the rukka to the duty officer and got the case registered. The six sealed parcels, the two FSL forms and the copies of seizure memos were handed over to the SHO, who applied his seal on the parcels and specimen seals on the FSL, and thereafter the SHO deposited the case property in the malkhana after noting down the FIR number on the documents and parcels. After getting the case registered, he carried copies of FIR and original rukka to AATS, Crime Branch, Kotwali where he handed over those documents to ASI Rajvir. Thereafter, he stayed back in the office and ASI Rajvir left for the spot.
SC no. 15/13 Dtd...08.05.2014 Page 8 of 35 96.16 It is deposed by PW7 HC Dilbagh Singh, PW10 ASI Harsh Vardhan and PW11 ASI Rajvir that ASI Rajvir reached the spot at 2.30 PM and thereafter interrogated the two accused. He prepared site plan Ex.PW10/D and formally arrested the two accused vide arrest memos Ex.PW7/F & G, personal search of the two accused was conducted vide memos Ex.PW7/H & I. In the personal search of the two accused, a copy of notice U/s 50 NDPS Act each was also recovered besides other material. The two accused gave disclosure statements Ex.PW7/B & 7/C, respectively, disclosing about the likelihood of recovery of more ganja from jhuggi no. N25-A/218, Lal Bagh, jhuggies, and house no. 14-A, Milan Vihar. After recording the disclosure statements of the two accused in writing, ASI Rajvir, telephonically, informed Inspector Jai Bhagwan and proceeded to conduct raid at the two premises.
6.17 Initially the team along with accused reached jhuggi no. N25-A/218. The lock of the door of jhuggi was opened with the help of a key recovered from personal search of accused Saroj Chaudhary. Inside the jhuggi, one gunny bag containing ganja weighing about 23 Kgs was recovered. Out of it also, two samples were drawn and the three parcels were given Mark G, H & I. FSL form was filled up. These three parcels were sealed with the seal of RSS and the same specimen seal was applied on the FSL form. From the same jhuggi, one taraju, weights of different measurements, electric heating machine and some polythenes were also recovered. The polythenes inside green polythene weighed 4.5 Kg, whereas the polythenes inside one bora weighed 4 Kg. All these materials were also sealed in a parcel given Mark K, which was also sealed with the seal of RSS. The case property was taken into possession vide memos SC no. 15/13 Dtd...08.05.2014 Page 9 of 35 10 Ex.PW7/A & A-1.
6.18 Thereafter, the two accused led the police team to House no. 14-A, Khasra no. 135/122, Milan Vihar, Delhi, which house belonged to Subhash Jha. From inside that house also, three gunny bags containing ganja measuring 15 Kg, 17 Kg and 20 Kg were recovered which were given Mark X, Y & Z. From those bags also, two-two samples each were drawn and were kept in parcels Mark X-1, X-2, Y-1, Y-2, Z-1 and Z-2, respectively. The parcels were sealed with the seal of RSS and same specimen seal was applied on the FSL form. These parcels were taken into possession vide memo Ex.PW7/E. Thereafter, the case property and the accused were taken to the police station Crime Branch, Malviya Nagar. The case property recovered from the two premises was produced before the Inspector SHO who applied his own seal of PSR on the case property parcels and the FSL Forms. Thereafter, he deposited those documents and parcels in the malkhana. Thereafter, the accused were taken to the Office of AATS, Crime Branch, where they were produced before Inspector Jai Bhagwan, who also interrogated the two accused. Arrival entry in the office of AATS is proved Ex.PW11/B under DD no.2 lodged at 2.00 AM in the midnight. 6.19 ASI Rajvir proved his report U/s 57 NDPS Act is Ex.PW1/C. Similarly, PW10 ASI Harsh Vardhan proved his report U/s 57 NDPS Act as Ex.PW11/B. 6.20 The two accused were identified in the court by the witnesses, and the case property was also proved in the court as Ex.P-1 to P-19. Carbon copies of the two notices U/s 50 NDPS Act are proved as Ex.PW7/K & L, qua accused Saroj Chaudhary and Ranjit.
7. On completion of the prosecution evidence, all the incriminating evidence SC no. 15/13 Dtd...08.05.2014 Page 10 of 35 11 was put to the two accused in their statements U/s 313 Cr.P.C. 7.1. Accused Saroj claimed that nothing was recovered from his possession or at his instance. He claimed that he was sleeping inside an auto rickshaw near the Masjid at the spot at about 4 or 4.15 AM, when he was apprehended by the police which include Dilbagh Singh and Ct. Rupesh. After he was apprehended, he was pushed into a vehicle by the police and subsequently accused Ranjit was also brought from somewhere. The accused denied that he was informed of his legal rights or he was served with the notice U/s 50 NDPS Act. He claimed that his signatures were obtained by the police on documents in the office and no such proceedings were conducted at the spot. He claimed that he has been implicated in the present case. He claimed that ASI Rajvir never came to the spot. He also denied that he or Ranjit were taken to jhuggi no. N25-A/128 or to the premises no. 14A, Milan Vihar. The accused admitted that he was earlier a tenant in the jhuggi no. N25-A/218, around one year prior to the date of incident and thereafter he had left the jhuggi with his family and moved to his native place. He denied that any keys of the jhuggi were recovered from his possession. He admitted that the electricity connection in the jhuggi was in his name, as he was earlier residing in the jhuggi as a tenant. It is claimed that the case property was planted upon him by the police. Though the accused claims that he was falsely implicated in this case but he did not come up with any reason as to why he would be falsely implicated in this case. He also claims that he was beaten by the police. 7.2. Even accused Ranjit claim that he has been falsely implicated in this case.
He claimed that he was sleeping on the pavement at about 4.30 AM near Masjid, when he was taken by the police in a police vehicle where Saroj SC no. 15/13 Dtd...08.05.2014 Page 11 of 35 12 Chaudhary was already present. The he was straightaway taken to the office by the police. He claims that no bag or contraband was recovered from his possession and he did not lead the police team to any jhuggi or any other premises. He claimed that he had no concern with the jhuggi or premises whatsoever. He also claimed that no legal notice was served upon him U/s 50 NDPS Act and no such legal rights were informed. He claimed that his thumb impressions were obtained by the police in the office, and when he was produced in the court he came to know that contraband has been planted upon him. He claims that he was not even knowing co-accused Saroj Chaudhary prior to his implication in the present case. Even this accused did not come up with any reason as to why he would be falsely implicated. He also claimed that he did not make any disclosure statement in the case.
7.3. The two accused did not opt to lead any defence in their favour.
8. I have heard Ld. Prosecutor for the State and Ld. Counsel Sh.Kundan Kumar for accused Ranjit and as amicus curiae for accused Saroj Chaudhary.
9. Counsel for the two accused has pointed out that so far as the recovery effected from the jhuggi no.25A/218, Lal Bag Jhuggies and H.No.14A, Milan Vihar, are concerned, those recoveries were not pursuant to the secret information received and noted down in this case, but those recoveries were pursuant to the disclosure statements of the two accused, allegedly, yet there is no compliance of Section 42 NDPS Act qua those recoveries.
10. Perusal of the initial report U/s.42 NDPS Act Ex. PW1/A reveals that initially the information available with the investigating agency was that SC no. 15/13 Dtd...08.05.2014 Page 12 of 35 13 there was a likelihood of certain accused coming with ganja in a Wagon-R car. Not only that the present two accused were not found inside any vehicle whatsoever, and were found on foot, but also the fact is that the recovery from the two premises was not pursuant to the secret information Ex. PW1/A. It is the case of the initial Investigating Officer PW10 ASI Harshvardhan as well as the subsequent Investigating Officer PW11 ASI Rajbir that after the accused were apprehended and interrogated at the spot, they made disclosure statements separately and thereafter both of them led the police team to the two premises, one after another, from where additional gunny bags containing ganja were recovered. From jhuggi no. 25A/218, Lal Bagh Jhuggies, one gunny bag containing 23 kgs ganja was recovered, whereas from the second premises, three bags containing 15, 17 & 20 Kgs of ganja were recovered.
11. PW11 ASI Rajbir as well as the other witnesses admitted that regarding this part of recovery, only telephonic information was sent to the senior officers. ASI Rajbir admitted that he did not send any written communication to the senior police officers from the spot or thereafter regarding disclosure statements of the two accused in compliance of Section 42 of NDPS Act. Thus, so far as the recovery effected from the two premises are concerned, admittedly, there is non-compliance of Section 42 of NDPS Act. It is now well settled that non-compliance of Section 42 of NDPS Act would vitiate the proceedings.
12. Recently, in the case of Kishan Chand v. State of Haryana, (2013) 2 SCC 502 , Supreme Court held as follows;
"19. The provisions like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in Karnail SC no. 15/13 Dtd...08.05.2014 Page 13 of 35 14 Singh [(2009) 8 SCC 539 : (2009) 3 SCC (Cri) 887] carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds.
20. While dealing with the requirement of complying with the provisions of Section 50 of the Act and keeping in mind its mandatory nature, a Bench of this Court held that there is need for exact compliance without any attribute to the element of prejudice where there is an admitted or apparent non-compliance. The Court in State of Delhi v.Ram Avtar [(2011) 12 SCC 207 : (2012) 1 SCC (Cri) 385] held as under: (SCC pp. 216-17, paras 26-27) "26. The High Court while relying upon the judgment of this Court in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and rejecting the theory of substantial compliance, which had been suggested in Joseph Fernandez [Joseph Fernandez v. State of Goa, (2000) 1 SCC 707 : 2000 SCC (Cri) 300] , found that the intimation did not satisfy the provisions of Section 50 of the Act. The Court reasoned that the expression „duly‟ used in Section 50 of the Act connotes not „substantial‟ but „exact and definite compliance‟. Vide Ext. PW 6-A, the appellant was informed that a Gazetted officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside.
27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] , the theory of „substantial compliance‟ would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of SC no. 15/13 Dtd...08.05.2014 Page 14 of 35 15 the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial."
13. Also recently, in the case of Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 SCC 67, Supreme Court held as follows;
"7. We are in this case concerned only with the question whether PW 1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under Section 50 of the NDPS Act. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to a five-Judge Bench. This Court in Vijaysinh Chandubha Jadeja [(2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a gazetted officer or a Magistrate. This Court also held that it is mandatory on the part of the authorised officer to make the accused aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. .............................
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 person 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.
9. We are of the view that non-compliance with this mandatory procedure has vitiated the entire proceedings initiated against the appellant-accused. ...................... Consequently, the conviction and SC no. 15/13 Dtd...08.05.2014 Page 15 of 35 16 sentence imposed by the Sessions Court and affirmed by the High Court are set aside.................."
14. Thus, so far as the four bags containing ganja recovered from the two premises are concerned, the case of the prosecution falls flat because of non-compliance of Section 42 of NDPS Act.
15. Turning to the recoveries effected from the two accused individually while allegedly they were carrying one gunny bag each on their shoulder at the time of their apprehension, qua it Section 42 of NDPS Act is claimed to have been complied with in the form of DD No.2 Ex. PW1/A. The ACP indeed received the true copy of DD No.2 in the form of Ex. PW1/A, which was seen and signed by the ACP within the stipulated period. But the question is, whether this DD No.2 was in fact the secret information initially recorded, or was it a document subsequently recorded, and the first written secret information was concealed by the investigating agency?
16. The best witness to answer this question was the initial investigating officer ASI Harshvardhan who was examined as PW10. In the cross-examination, this witness deposed that when the informer was produced before him by HC Dilbag he did not reduce the secret information into writing. He rather deposed that he had produced the informer before Inspector Jai Bhagwan and that Inspector Jai Bhagwan had noted down the secret information on a piece of paper when the informer was produced before him. On being questioned as to what happened to the said piece of paper containing secret information, he answered that it was not in his knowledge as to whether the said piece of paper on which Inspector Jai Bhagwan noted down the information was filed in the present case or not. The fact of the matter is that in the entire charge sheet of this case, the said secret information reduced to writing by SC no. 15/13 Dtd...08.05.2014 Page 16 of 35 17 Inspector Jai Bhagwan has not been filed on record. Inspector Jai Bhagwan though denied having recorded any such information but ASI Harshvardhan was very categorically in stating that Inspector Jai Bhagwan had noted down the secret information on a piece of paper. DD No.2 was lodged subsequently. The initial secret information recorded in the present matter by Inspt. Jai Bhagwan has not seen light of day. This fact creates a reasonable suspicion as to true and actual compliance of Section 42 NDPS Act qua the initial recovery also and as to the truthfulness of the version of the prosecution.
17. This fact assumes importance in view of certain answers given by ASI Harshvardhan as to what information was received. In his cross- examination, ASI Harshvardhan stated that the information given to him was that 2-3 persons would come with contraband. He again stated that information was regarding five persons involved in supply of contraband, but the information was that only two accused would come to supply ganja, although they were involved with other two persons and therefore total five persons were named in the information. On being questioned, ASI Harshvardhan also deposed that he had recorded the fact that only two persons would come with ganja, in the DD No.2 Ex. PW1/A. When attention of the witness was drawn towards Ex. PW1/A he admitted that in the said document name of three persons was noted as persons likely to come with ganja and not the name of two persons. This fact again creates a reasonable suspicion as to whether Ex. PW1/A was actually recorded at the time it has been shown to have been recorded and as to whether this information was reduced to writing before proceeding to the spot by the investigating agency. These facts coupled with certain circumstances SC no. 15/13 Dtd...08.05.2014 Page 17 of 35 18 would show that all is not that which meets the eye.
18. The secret information is claimed to have been received in the office of Anti-Auto Theft Squad, Crime Branch at an odd hour at about 4.15 AM. The informer first met HC Dilbag Singh and then he was produced before ASI Harshvardhan and then he was produced before Inspector Jai Bhagwan. When the police witnesses were questioned as to their presence in the office on the intervening night of 8th & 9th January, 2013, the different answers given by the witnesses raises reasonable suspicion. 18.1. ASI Harsh Vardhan replied that he used to remain and remained present in the office 24 hours as per instructions of senior officers and the remaining team also remains present 24 hours turn by turn. Ct. Rupesh deposed that he was present in the office on the intervening night, in question, although he did not use to remain in the office during night time during those days. He deposed that on that day, they were present in the office because of instructions of senior officers to check the vehicles and that they had checked the vehicles on that night near Shanti Van. He was very categorical in deposing that Inspector Jai Bhagwan, ASI Harsh Vardhan and HC Dilbagh Singh were also present at Shanti Van as they had installed barricades between 10 PM to 12 or 12.30 AM in the midnight, and then they returned to their office and went to sleep. 18.2. Contrary to the answer of Ct. Rupesh, HC Dilbagh deposed that he was present in the office on the night in question as per instructions of Inspector Jai Bhagwan but the entire remaining team remained in the office throughout the night and they did not go anywhere else. He categorically deposed that there was no instructions from any senior police officer to go to any other place. It was this witness to whom the SC no. 15/13 Dtd...08.05.2014 Page 18 of 35 19 secret informer came and met first of all at odd hours at 4.15 AM in the midnight to deliver information. When he was questioned whether the informer knew that this witness was present and would be available in office on that night, initially the witness deposed that the informer knew that he was present in the office that night. He claimed that no one was sleeping at the time when the information was received and the information was received in presence of all the raiding team members as well as Inspector Jai Bhagwan. Subsequently, he deposed that the previous day to that night, he had not informed the informer about his presence in the office and he had informed the informer about his presence in the office only on that very night. The witness again replied that he had not informed the informer that night about his presence in the office, and in fact the informer used to come and go in the office off and on. 18.3. These answers given by the witnesses raises reasonable suspicion because when the secret informer was not aware that HC Dilbagh would be present in the office at that odd hours and when the informer was not communicated that witness would be so present, the factum of the informer going and delivering the information at such odd hours raises eye brows. If there was no information available with the investigating agency prior to 4.15 AM on the intervening night, they had no occasion whatsoever to stay back in the office throughout night. Nobody claims that there was any expectation of receipt of information.
19. Besides the above mentioned facts, the answers of none other than the first investigating officer ASI Harsh Vardhan about an important aspect of the matter creates reasonable doubt. ASI Harsh Vardhan in his cross examination deposed that he had obtained signatures of the accused on SC no. 15/13 Dtd...08.05.2014 Page 19 of 35 20 the parcels prepared at the spot. It may be reminded that ASI Harsh Vardhan had recovered the two gunny bags from the possession of the two accused allegedly when the two accused were carrying one gunny bag each on their right shoulders. When those bags were produced in the court, admittedly, those bags were not containing any signatures of either of the two accused. It was admitted by the investigating officer that the pullandas produced in the court did not bear the signatures of the accused. If the initial investigating officer had obtained signatures of the two accused on the parcels prepared at the spot, absence of those signatures on the parcels produced in court, creates a suspicion as to whether the case property was kept in the same condition in which it was recovered and sealed at the time of incident. If the signatures were obtained, then absence of those signatures indicate and creates a reasonable doubt about tampering of the case property.
20. Also prosecution witnesses have given various contradictory answers qua the initial recovery, which creates reasonable suspicion. 20.1. Ct. Rupesh deposed that ten to fifteen minutes after their apprehension, the two accused were cursorily searched and before their cursory search, they were not served with any notice. He also deposed that in the said cursory search of accused, nothing was recovered, but he could not remember whether any document qua this cursory search was prepared by the investigating officer or not. This witness was very categorical in deposing that the gunny bags were checked after 35-40 minutes of the cursory search of the two accused at the spot.
20.2. Similarly, HC Dilbagh also deposed that the two accused were cursorily searched find out, if they were carrying any arms with them and thereafter SC no. 15/13 Dtd...08.05.2014 Page 20 of 35 21 after 3-4 minutes, the plastic bags were checked. He was also very categorical that no document was prepared regarding non-recovery of any incriminating substance from the body of the two accused. He categorically deposed that nothing was recovered from the body of accused persons. 20.3. On the other hand, ASI Harsh Vardan deposed that the cursory search of the accused was conducted after the boras were checked and not before it.
20.4. If the accused were searched even before service of notice U/s 50 NDPS Act, the same vitiates the recovery. Though in the present case service of notice U/s 50 NDPS Act was not necessary, since the contraband was not recovered strictly from the body of the two accused, yet the investigating agency chose to serve the two accused with the notices. It is now well settled that in such cases, if the notice is served, then the notice has to be strict and absolute compliance of provisions of Sec. 50 NDPS Act. Searching an accused and thereafter giving notice U/s 50 NDPS Act vitiates the trial.
20.5. Recently, in the case of Rakesh @ Shankar Vs. State, decided by Hon'ble High Court on 8.1.2014, in Criminal Appeal no. 663/2010, the facts were that the accused of that case got down from a bus and he was carrying a box on his shoulder. From the said box, allegedly 21 Kg of Ganja was recovered after compliance of Sec. 50 of NDPS Act. The accused of that case was convicted by the Ld. Trial Court. In the Hon'ble High Court, the only contention raised by the accused was non-compliance of Sec. 50 of NDPS Act. Accepting the said contention, the conviction of the accused was set aside, and Hon'ble Delhi High Court relying upon the cases of State of Delhi Vs. Ramavtar @ Rama 2011 (7) SCALE 428; the SC no. 15/13 Dtd...08.05.2014 Page 21 of 35 22 case of State of Punjab Vs. Baldev Singh (1994) 3 SCC 299; the case of Mantoon Kumar Vs. State Criminal Appeal no. 174 of 2005 and decided on 3.12.2013 and; the case of Gurjant Singh @ Janta Vs. State of Punjab 2013 (13) SCALE 295, held that non-compliance of Sec. 50 of NDPS Act even in a case where recovery is affected from a trunk, after the investigating agency chooses to give such notice, would be fatal. The contention of prosecution that Sec. 50 NDPS Act was not required to be given before searching the trunk of that case was rejected by Hon'ble High Court and following observations were made in para no. 8, 9, 10 & 11 of the judgment :-
8. It is contended by the learned APP for the State that since no notice under Section 50 of the Act was required to be given before searching the trunk being carried by the appellant, the defect in the notice given to him would not render the recovery illegal. His contention in other words is that if the recovery, without giving notice under Section 50 of the Act is legal, any defect in the notice cannot render the recovery to be illegal. In Gurjant Singh @ Janta versus State of Punjab [2013 (13) Scale 295], the case of the prosecution was that some police officers were present at T-
Point in the area of Village Ugrahan in connection with Nakabandi when a tractor trolley was got stopped and was checked. Three gunny bags were found lying inside the trolley. The police officer informed the appellant before the Apex Court that he intended to search the gunny bags as he suspected some incriminating article in the said gunny bags. He further informed that if he so desired the search could be conducted in the presence of a Gazetted Officer or a Magistrate. This was also the case of the prosecution that the appellant before the Apex Court expressed his consent that the search could be conducted in the presence of some Gazetted officer or a Magistrate. After recording statement of the appellant and getting it signed from him, one DSP was called to the spot. The gunny bags were then searched and poppy husk was found in them. It was urged before the Trial Court that there was violation of Section 42 and 50 of the Act in as many as search was not conducted in presence of a Gazetted Officer or a Magistrate since the DSP, who came to the spot was SC no. 15/13 Dtd...08.05.2014 Page 22 of 35 23 not a regularly promoted DSP, but was only an Inspector in the category of Own Rank Pay (ORP) and, therefore, could not be a Gazetted Officer. The Trial Court took the view that there was no necessity to comply with Section 50 of the Act and, therefore, did not go into the question as to whether PW-3 was competent in terms of Section 50 of the Act or not. The High Court having agreed with the Trial Court, the appellant approached the Apex Court. It was held by the Apex Court that reliance upon Baldev Singh (supra) was wholly misplaced since the principle laid down in the said case postulates a situation where a police officer in the normal course of investigation of an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and in the course of such investigation when a search is completed and in that process happens to stumble upon possession of a narcotic drug or psychotropic substance, the question of invoking Section 50 would not arise. It was observed that in the absence of any prior information as to possession of any narcotic drug and psychotropic substance, a police officer might have held a search in the course of discharge of his duties as contemplated under the provisions of Code of Criminal Procedure and, therefore, it would be impossible to state that even under such a situation, the application of Section 50 would get attracted. The Apex Court noted that PW-6 having noticed that the three gunny bags lying in the tractor of the appellant took the view that before effecting search of gunny bags the necessity of affording an opportunity to the appellant to conduct the search in the presence of the Gazetted Officer or a Magistrate was imperative and, therefore, such search had to be necessarily conducted in accordance with the provisions of Section 50 of the Act. It was held that in these circumstances, the conclusion of the Trial Court holding that Section 42 and 50 were not applicable was a total misunderstanding of the legal provisions and in light of the notice placed before it and consequently the conclusion arrived at for convicting the appellant was wholly unjustified.
During the course of judgment, the Apex Court highlighted the importance of notice under Section 50 of the Act and held as under:-
"It will have to be stated that such compliance of the requirement under Section50 of holding of a search and seizure in the presence of Gazetted officer or a Magistrate, cannot be an empty formality. In other words, the offer to the person to be searched in the presence of a Gazetted officer or a Magistrate, should really serve the purpose of SC no. 15/13 Dtd...08.05.2014 Page 23 of 35 24 ensuring that there was every bona fide effort taken by the prosecution to bring forth the grave offence of possession of narcotic substance and proceed against the person by way of prosecution and thereby establish the truth before the appropriate judicial forum. In the same breath such a course of compliance of Section 50 would also enable the person accused of such a grave offence to be convinced that the presence of such an independent Gazetted officer or a Magistrate would also enable the person proceeded against to demonstrate that there was no necessity for holding any search on him and thereby persuade the concerned Gazetted officer or Magistrate to protect his fundamental right of freedom, from being unlawfully proceeded against. In other words, the purpose of Section 50 was to ensure that on the one hand, the holding of a search and seizure was not a farce of an exercise in order to falsely implicate a person by unscrupulous police authorities, while on the other hand to prevent an accused from committing an offence of a serious nature against the society, warranting appropriate criminal proceedings to be launched and in the event of establishing such offence, conviction and sentence to be imposed in accordance with law. Therefore, such a dual requirement of law prescribed under Section 50cannot be dealt with lightly by the Courts dealing with the trial of such offences brought before it."
..................
10 The facts of this case are identical to the facts in Gurjant Singh @ Janta (supra). In Gurjant Singh @ Janta (supra) the police officers were present at the „T‟ Point in connection with nakabandi, whereas in the case before this Court the police officers were present at the bus stand for the purpose of checking the buses passing from there. In Gurjant Singh @ Janta (supra), the case of the prosecution was that poppy was found in gunny bags lying in the tractor being driven by the appellant. In the case before this Court, the case of the prosecution is that he was carrying the bag containing ganja on his shoulders. In view of the binding decision of the Apex Court in Gurjant Singh @ Janta (supra) it must necessarily be held that since the Investigating Officer of the case before this Court chose to give a notice under Section 50 of the Act to the appellant before searching the bag being carried by him on his shoulder, the said notice should have conformed to the requirement of Section 50 of the Act and if the notice did not conform to the said requirement, the recovery of ganja from him would be per se illegal.
SC no. 15/13 Dtd...08.05.2014 Page 24 of 35 2511. It is quite clear from a perusal of the notice Ex.PW1/A that the appellant was not informed that he had a legal right to the effect that the bag being carried by him could be searched in the presence of a Magistrate or a Gazetted Officer. The appellant was only informed that if he so desired he and the bag being carried by him could be searched in the presence of a Magistrate or a Gazetted Officer. This intimation would not amount to conveying to the appellant that he had a legal right to be searched in the presence of a Magistrate or a Gazetted Officer. It is quite possible that had the appellant been informed of such a legal right being available to him he would have chosen to exercise that right instead of allowing the police officers to search him. Since the aforesaid notice Ex.PW1/A does not meet the strict requirement of Section 50 of the Act, the recovery pursuant to the said notice cannot be said to be legal."
20.6. Since, the notice of that case did not meet the strict requirements of Sec.
50 of NDPS Act, the recovery was held to be illegal and the accused of that case was acquitted by Hon'be Delhi High Court.
20.7. Despite the fact that the information with the police named as many as five suspects and there was no prior information that the accused may not be armed, yet only four police officials went to the spot including the driver of the vehicle, and only one of them was carrying arm, again creates suspicion about the truthfulness of the case of prosecution. Normally, more than the number of suspects are included in a raiding team in order to rule out the escape of suspects. At least equal number of police officials would have been required but the act of the police in taking lesser number of policemen than the suspect, that too, without taking adequate precautions and arms create suspicion as to whether the story presented before this court is actually what had happened. ASI Harsh Vardhan admitted that he did not carry any arm. He could not even recollect whether anybody else from his team was having any arm or ammunition. These answers indicate that there is something more than which meets the eye in the present SC no. 15/13 Dtd...08.05.2014 Page 25 of 35 26 case. HC Dilbagh specifically deposed that there was an information that the accused could be armed with weapons. Yet only HC Dilbagh carried weapon to the place of incident.
20.8. There is discrepancy as to size and colour of the weighing machine used at the spot. In the cross examination of ASI Harsh Vardhan, the accused insisted on the production of the weighing machine and the weighing machine was brought by none other than the witness. The bags were kept on the weighing machine to see if the machine was actually capable of weighing the bags. Strangely, when the three bags Mark X, Y & Z were kept on the weighing machine, the display of the machine which reflects the measurement was not even visible, being covered by the bags. Some portion of the bag was also found touching the ground and therefore, it creates suspicion as to whether actually that machine was used in the measurement or not.
20.9. It would be pertinent to mention that in the cross examination of ASI Harsh Vardhan, he was specifically asked and the witness stated that when the case property was produced in the court, it had neither expanded nor the gunny bags had expanded from the time when the bags were sealed at the spot.
20.10. No certificate was obtained from the Department of Weight & Measurement to prove that the machine used was actually fit and capable of weighing the contraband. When the machine was produced in the court on 13.09.2013, it was defective and was not reflecting correct measurement.
20.11. The witnesses have given contradictory replies on the other aspects of the matter as well. ASI Harsh Vardhan deposed that the polythenes in which SC no. 15/13 Dtd...08.05.2014 Page 26 of 35 27 sample were kept were available in his IO bag, whereas, HC Dilbagh deposed that they were procured by Ct. Rupesh.
20.12. Contradictory answers were given as to where the case property was measured at the time the two accused were apprehended at the spot. HC Azad who witnessed the complete proceedings at the spot has not even been cited as a witness.
20.13. Contradictory answers has been given by the witnesses as to how the information was delivered from the spot to Inspector Jai Bhagwan about the disclosure statement of the two accused and likelihood of further recovery. ASI Harsh Vardhan deposed that ASI Rajvir gave that information through his mobile. ASI Rajvir deposed that he did not carry his mobile phone at the spot. When he was questioned as to his mobile number, he did not come up with the mobile number and it appears that he deliberately did not tell his telephone number in order to avoid detection of location of his mobile.
20.14. It is claimed by the prosecution that the jhuggi no. N25-A/218 was opened with the help of key recovered from the accused Saroj Chaudhary and also House no. 14A, Milan Vihar was similarly opened with the help of a key recovered from the accused Saroj Chaudhary. But then Ct. Rupesh and HC Dilbagh had deposed that in the initial cursory search of the two accused nothing was recovered. If nothing was recovered in the initial search of accused, from where the keys came to be possessed by the two accused is anybody's guess.
20.15. The investigation done by the investigating officer as to the ownership and possession of the Wagon-R car regarding which the information was received is highly unprofessional. Investigating officer did not satisfactorily SC no. 15/13 Dtd...08.05.2014 Page 27 of 35 28 investigate the said matter as to under what circumstances the specific number Wagon-R car was mentioned by the informer in the secret information. If the car did not visit the spot at the time of raid, still investigation ought to have been done as to the said car. Even the secret informer could have been again enquired about the information qua the car. Still, all that has been done by the investigating officer is that he during investigation came to know that one Smt. Dhanno was owner of the said vehicle. He came to know her name from the concerned Transport Authority, but strangely did not record her statement. Instead, he claimed that she had transferred the vehicle on 29.01.2013 and the earlier owner was one Sunil Gupta who had sold it on 14.1.2013 to a dealer and the dealer had sold it to Smt. Dhanno. He did not enquire whether the vehicle was available with Sunil on 9.1.2013. Instead, he claimed that Sunil did not make any such statement in this regard and that Sunil had verbally told him that he had sold his vehicle in December 2012, whereas, the dealer had told him that Sunil had sold the vehicle in January. Yet he did not record the statement of Sunil or the dealer. This conduct of the investigating officer in not investigating the matter qua the vehicle whose specific number was given by the informer creates a doubt about the fair & proper investigation of the present case.
20.16. There is also contradiction as to whether barricades were installed at the spot or not. There is also contradiction as to whether the two accused were kept standing outside the vehicle on the road or they were made to sit in the vehicle till the time the proceedings were conducted at the spot. 20.17. HC Dilbagh also deposed that at the spot, ASI Harsh Vardhan not only interrogated the two accused after recovery for about one hour, but he also SC no. 15/13 Dtd...08.05.2014 Page 28 of 35 29 prepared documents qua interrogation of the two accused which were also signed by this witness as well as ASI Harsh Vardhan. Those documents prepared by ASI Harsh Vardhan qua interrogation have not been produced in the court and the documents qua interrogation of the accused filed before this court are only prepared by ASI Rajvir and not by ASI Harsh Vardhan.
20.18. The disclosure statement of the two accused proved in this case proved as Ex.PW7/B & C are prepared by ASI Rajvir and not by ASI Harsh Vardhan. 20.19. ASI Rajvir deposed that there was no police picket at the spot. There are contradictions in the testimony of witnesses as to the time at which the police team reached the jhuggi and the subsequent premises in Milan Vihar and the time they stayed at those two places during the proceedings.
21. Signatures of accused were not obtained on the parcels prepared at the spot and the NCB guidelines were not complied qua keeping the sample parcels and FSL form etc. in an envelope and sealing the envelope thereafter. The recovery and seizure has not been made in accordance with the standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi, and in this regard reliance is placed by the accused upon the case of Union of India Vs. Bal Mukund &Ors., 2009 Crl. L. J. 2407.
Clause 1.9 & 1.10 of the Instructions reads as under:-
"1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples.SC no. 15/13 Dtd...08.05.2014 Page 29 of 35 30
1.10 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret-Drug sample/Test Memo"
to be sent to the chemical laboratory."
22. All the above mentioned facts create more than reasonable suspicion about the case of prosecution and the benefit of it has to be given to the accused, more particularly, when there is no independent witness and there is non-compliance of Sec. 100 of Cr.P.C.
23. Admittedly, no one from the nearby located houses/jhuggies were even requested to become witness. Masjid was located very close to the spot, yet no one from there was even requested to become witness. Only passersby are claimed to have been requested and that too some of the passersby were requested several Kms away from the spot when the raiding team was proceeding towards the spot. Those answers also indicate that there was no sincere attempt to join the two local respectable inhabitants.
24. Recently in the case of Inder Dev Yadav and Ors. Vs. The State (NCT of Delhi) Crl.A. 545/2011 & Crl. M.B.No.209/2014, Hon'ble High Court of Delhi observed as follows :-
"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, Incharge of raiding team and SI SC no. 15/13 Dtd...08.05.2014 Page 30 of 35 31 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. It is no 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."
25. In the case of Mohd. Raffique vs. State 2000 CRI. L. J. 2401, Hon'ble Delhi High Court , observed as follows;
"6. In State of Punjab v. Baldev Singh (1999) 4 JT (SC) 595 : (1999 Cri LJ 3672), it was held that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the Act also to the extent they are not inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Act, the safeguards provided under the Code of Criminal Procedure are also required to be followed. It is well settled that failure to comply with the provisions of the Code of Criminal Procedure in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 of the Code of Criminal Procedure per se does not vitiate the trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguards would be violative of the reasonable, fair and just procedure. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597), it was held that when a statute itself provides for a reasonable, fair and just procedure, it must be honoured. Thus, an accused has the right to a reasonable, fair and just procedure. The statutory provisions embodied in Sections 41 to 55 and Section 57 of the Act and Sections 100, 102, 103 and 165 of the Code of Criminal Procedure provide for a reasonable, fair and just procedure.
7. Section 50 of the Act read along with sub-section (4) of SC no. 15/13 Dtd...08.05.2014 Page 31 of 35 32 Section 100, Cr.P.C. contemplates that search should, as far as practicable be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so the onus would be on the prosecution to establish that the association of such witness was not possible on the facts and circumstances of a particular case. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Thus, the statutory desirability in the matter of search and seizure is that there should be two or more independent and respectable witnesses. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against authorised officers. In other words, the Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping in view the severe punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure as envisaged by the statute scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of statutory safeguards committed by the authorized officer during search and seizure operations and may also undermine respect of law. That cannot be permitted.
8. It is undisputed that no public witness was associated during the course of search and seizure proceedings and the prosecution case hinges solely on the testimony of police officials. As per prosecution case the secret information was received at 9.35 a.m. and the appellant was apprehended at about 10 A.M. Thus, there was sufficient time to procure attendance of public witnesses to witness the search and seizure. This is not a case where due to urgency of the matter or for any other reason, it was not possible to comply with the provisions of sub-section (4) of Section 100 for associating public witness during the course of search and seizure. It is also undisputed that the appellant was apprehended in Gali Masjid Wali, which is a thickly populated area. Prosecution witnesses SHO P. L. Puri (P. W. 2) Constable Sukhram Pal (P.W. 3) Constable Jamil Ahmad (P. W./4) and SI Satpal (P.W. 6) want us to believe that at the relevant time public witnesses were approached but they declined to join the raiding party.SC no. 15/13 Dtd...08.05.2014 Page 32 of 35 33
9. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons, who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may, in this context, be made to the provision of sub- section (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under Section 100 of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187, IPC. In the instant case, there is nothing to indicate that the authorized officer had served or even attempted to serve an order in writing upon any public witness as envisaged by sub-section (8) of Section 100, Cr.P.C. In this connection, I may usefully excerpt the following observations of Malik Sharief-u Din, J. in Rattan Lal v. State, (1987) 2 Crimes 29 (Delhi) :-
". . . . . . . .In the case in hand the seizure and the arrest have been made under Section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by sub- section (4) of Section 100, Cr.P.C. The explanation offered is that public witnesses were requested but they declined to co-operate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to co-operate without reasonable cause in spite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187, I.P.C. and this has been clearly spelt out in sub-section (8) of Section 100, Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards."
10. It has come in the evidence of Sub-Inspector Satpal (P.W. 6), Constable Jamil Ahmad (P.W. 4) and Constable Sukhram Pal (P.W. 3) that Gali Masjid Wali is a thickly populated area. It seems inconceivable that no one from the public had come to the spot to witness the alleged search and seizure operation. Having regard to the area and the place SC no. 15/13 Dtd...08.05.2014 Page 33 of 35 34 of search and seizure, it appears that public witnesses were available but no serious attempt was made by Sub-Inspector Satpal (P.W. 6) to associate them before searching the appellant. I am unable to find any reason as to why he did not even make any attempt to associate any independent witness or witnesses during the course of search and seizure operation.
11. As stated earlier, the compliance with the procedural safeguards contained in the Code of Criminal Procedure and the Act are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the authorized officer. It has to borne in mind that where the error, irregularity or illegality touching the procedure committed by the authorized officer is so patent and loudly obtrusive that it leaves on his evidence an indelible stamp of infirmity or vice, which cannot be obliterated or cured, then it would be hazardous to place implicit reliance on it. The aforesaid circumstances make the court to be circumspect and look for corroboration of the testimony of the said police officials from independent sources. No such corroboration is coming forth in this case."
26. The present case is under NDPS Act. It involves severe punishment, which in the present case may extend up to ten years. It is now accepted principle of criminal jurisprudence that severer or harsher the punishment is, stricter has to be the degree of proof and higher degree of assurance would be required.
26.1. In Mousam Singha Roy and Others v. State of West Bengal 2003 (3) JCC 1385 : [(2003) 12 SCC 377], Hon'ble Supreme Court held :
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since the higher degree of assurance is required to convict the accused."
27. It is indeed true that mere non-joining of independent witnesses cannot be fatal. Indeed it may not be in a given case. But then the testimony of police SC no. 15/13 Dtd...08.05.2014 Page 34 of 35 35 witnesses must be inspiring and believable. In a serious case of NDPS Act, inviting stringent punishment, the above mentioned serious discrepancies cannot be ignored. An accused cannot be convicted on such tentative evidence. It is in the light of these discrepancies that non-joining of witnesses assumes significance.
28. In view of the facts & circumstances, there are reasonable doubt about the genuineness and truthfulness of the case of prosecution, the benefit of which goes to the accused and the accused is acquitted of the charges.
Announced in the open court on 8th day of May, 2014. Dig Vinay Singh ASJ/Spl.Judge:NDPS N-W/Rohini Courts/Delhi SC no. 15/13 Dtd...08.05.2014 Page 35 of 35