Delhi District Court
State vs . 1 Rasheed Abisoye on 28 July, 2012
FIR No. 68/07 PS Spl. Cell
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 40/08
ID No. 02403R0119532008
FIR No. 68/07
PS Special Cell
u/s 21 NDPS Act
State Vs. 1 Rasheed Abisoye
S/o Abisoye
R/o 2, Oyebanji Street,
Lagos, Nigeria
2 Sunday Baba Tunde @ Steven
S/o Baba Tunde
R/o H.No. 10, Oyebanji Street,
Lagos, Nigeria
3 Mehmood Shah
Mohd. Zahi
C68, Lajpat Nagar II,
New Delhi
(Proclaimed Offender)
Date of Institution : 08.02.2008
Judgment reserved on : 21.07.2012
Date of pronouncement : 28.07.2012
SC No. 40/08 Page 1 of 22
FIR No. 68/07 PS Spl. Cell
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act").
2. Briefly stated the allegations against the accused persons, as contained in the chargesheet are as follows:
(a) It is asserted that on 3/10/2007 at about 4:20 PM SI Satender Kumar Singh received a secret information that one Afghani national aged about 20/22 years would be coming near gali no. 13, Govind Puri at about 6:00 pm. to supply heroin to a Nigerian Citizen. The said information was reduced in the daily diary vide DD no. 10 and was produced before the ACP and also discussed with him and Insp. Devender Singh.
(b) A raiding party was constituted as per the instructions of the ACP consisting of SI Satender Kumar Singh, SI Mohd. Mobin, ASI Rakesh Kumar, HC Naresh, HC Balraj, HC Devinder, Ct. Yashpal, Ct.
Rajesh under the supervision of Insp. Devinder Singh. The said team alongwith secret informer left the police station Special Cell for the spot in two private vehicles.
(c) On the way IO SI Satender Kumar Singh is stated to have requested 56 passersby at Sarai Julena Stop and 56 public persons at Balmiki Chowk Govindpuri to join the raiding party but none of them is SC No. 40/08 Page 2 of 22 FIR No. 68/07 PS Spl. Cell stated to have agreed. The vehicles were parked at road side on Ravi Das Marg. The members of the raiding party were briefed by Devinder Singh and were deployed at different positions and at about 5:45 PM two persons, aged 2558 years having African looks and dark complexioned, came from the side of Gali no. 13, Govindpuri and stood in the parking and started waiting for someone. After 10 minutes, an Afghanistan national, having white complexion aged about 2022 years and carrying an orange polythene in his right hand came from the side of Rampur, Kalkaji and he too after crossing the Ravidas Marg entered into parking area. The aforementioned three persons were identified by the secret informer as the suspects. The Afghani looking person then took out two packets from the orange coloured polythene that he was carrying in his right hand and handed over one packet each to the dark complexioned persons. At this stage, assertedly one of the dark complexioned man saw the members of the raiding team approaching and jumped from the iron railing mounted on the wall of parking place. He was however apprehended by the police officials. On enquiry, the Afghani looking person revealed his name as Mehmood Shah, the African person who had jumped from the parking railing revealed his name as Rasheed Abisoye and the other dark complexioned person revealed his name as Sunday Baba Tunde. SC No. 40/08 Page 3 of 22
FIR No. 68/07 PS Spl. Cell (d) The IO is stated to have introduced himself and the other
members of the raiding party to the accused persons and is also stated to have apprised the accused persons of the secret information received. It is further asserted that the accused were also then served with the notices u/s 50 NDPS Act. Since the accused persons are stated to have refused to be searched in the presence of the Gazetted Officer and Magistrate, they were searched by the IO himself. It is asserted that on search, accused Rasheed and Baba Tunde were found in possession of one packet each containing 1.010 kg. and 1.025 kg. cream colour powder respectively. Accused Mehmood Shah was found in possession of two packets mark which were concealed in the orange packet held by him. The big packet was found containing 1.025 kg. and small packet was containing 610 gm. of cream colour powder. All the four packets recovered from the possession of accused Rasheed, Baba Tunde and Mehmood Shah, on testing with the help of field testing kit, gave positive result for heroin. Samples were then drawn out from each of the packets and the remaining substances were sealed in separate pullandas, the FSL Form was filled, seal after use was handed over to SI Mohd. Mobin. Accused Mehmood Shah was also found in possession of Rs. 3 lakhs in cash containing 400 notes of RS.500/ and 100 notes of Rs.1000/ denomination and the same were also seized. The rukka was prepared and was sent to PS for registration of the case. SC No. 40/08 Page 4 of 22
FIR No. 68/07 PS Spl. Cell (f) Further investigation of the case was then conducted by SI
Satender Sangwan, who had come to the spot after the case was entrusted to him. During further investigation SI Satender Sangwan prepared the site plan and formally arrested the accused persons and seized mobile phones bearing no. 9971576882 from accused Rasheed Abisoye and 9971817431 and 9873263778 from accused Mehmood Shah. The remaining proceedings were completed at the spot and the accused were produced before the SHO concerned and the case property was deposited in the Malkhana. During investigation accused Sunday Baba Tunde led the police party to this rented house at 1433 A/13, Govindpuri, Kalkaji, New Delhi and from there his passport was recovered.
(g) On 30/10/2007, samples taken out from the substance were sent to FSL through HC Naresh Kumar.
3. On the basis of the aforementioned allegations and the material placed on record by the investigating agency, charges were framed against all the three accused persons vide order dated 16.04.2008 for the offence punishable u/s 21 NDPS Act.
4. It is relevant to mention herein that the accused Mehmood Shah was granted interim bail for the first time by the orders of Hon'ble High Court dated 18/12/2008. The said interim bail was extended from time to time by the Ld. Predecessors of this court and as per record this accused SC No. 40/08 Page 5 of 22 FIR No. 68/07 PS Spl. Cell jumped the interim bail and absconded and was finally declared Proclaimed Offender vide order dated 7/12/2009.
5. The Prosecution in order to prove its case against the remaining two accused persons has examined 16 witnesses in all. (including one numbered 14A).
6. PW1 Insp. Satender Kumar Singh, PW5 HC Balraj Singh, PW8 Insp. Devender Singh and PW10 Mohd. Mobin, being all members of the raiding team have deposed on similar lines. They have supported the assertions made in the charge sheet. All of them have described in detail the search and seizure proceedings conducted with respect to accused persons Rasheed Abisoye, Sunday Baba Tunde and Mehmood Shah on 3/10/2007. They have also in particular deposed that it was PW1 SI Satender Kumar Singh who had issued notices u/s 50 NDPS Act and had served it upon the accused persons. Notices u/s 50 NDPS Act issued to accused Rasheed Abisoye, Sunday Baba Tunde and Mehmood Shah have been exhibited as Ex.PW1/A, ExPW1/C and Ex.PW1/E respectively. The seizure memos with respect to recoveries from accused Rasheed Abisoye, Sunday Baba Tunde and Mehmood Shah have been proved as Ex.PW1/G, Ex.PW1/H, Ex.PW1/J and Ex.PW1/I respectively. rukka prepared by PW1 has been proved as Ex.PW4/D. The report prepared by him u/s 57 NDPS Act has been exhibited as Ex.PW6/A. SC No. 40/08 Page 6 of 22 FIR No. 68/07 PS Spl. Cell
7. PW2 Sh. Iqbal Singh has interalia deposed that on 24/4/2006 he had given third floor of his house on rent to Jaheer Shah and had prepared a lease agreement regarding the said tenancy and that Jaheer Khan was residing in the said premises along with son Ahmed Mehmood Nadir, his wife and his brother. This witness had identified accused Mehmood Shah as Ahmed Mehmood Nadir.
8. PW3 Sh. Om Prakash has interalia deposed that on May, 2007 he had executed a lease agreement with Rasheed, Onuekwusi Ogueri John and Aremustaeven with respect to first floor situated at H.No. 1433A, Street no. 13, Govind Puri, Kalkaji. He had identified accused Rasheed and has further deposed that accused Sunday Baba Tunde was also residing along with Rasheed in the aforementioned tenanted premises.
9. PW4 SI Mohan Lal has deposed that he was the duty officer on 3/10/2007 and that on this date he had received the rukka of the present case through PW5 HC Balraj and had registered the FIR, Ex.PW4/A and had made endorsement on the rukka, Ex.PW4/B.
10.PW6 SI Diler Singh has deposed that he was posted as Reader to ACP. As per the record produced by this witness, on 4/10/2007 PW8 Insp. Devinder Singh had forwarded the reports u/s 57 NDPS Act regarding the recovery and arrest of accused persons prepared by SI Satender Singh, to SC No. 40/08 Page 7 of 22 FIR No. 68/07 PS Spl. Cell the office of ACP and that the said reports were put before the ACP and entry was made in the register. The copy of the reports produced by this witness have been duly exhibited during his testimony as Ex.PW6/A and entry ExPW6/B.
11.PW7 ASI Naresh Kumar has deposed that on 30/2/2007 on the directions of senior officials, he had taken four pullandas from MHC(M) vide RC no. 114/21/07 and deposited the same with FSL, Rohini. He has also specifically deposed that so long as the case property remained with him, it was not tampered with.
12.PW9 Insp. Satender Sangwan, second investigating officer of the present case has interalia deposed that after the registration of the FIR and on the instruction of PW8 he had gone to the spot on 3/10/2007 and that PW1 had produced the accused persons before him. According to him he had prepared site plan Ex.PW1/N at the instance of PW1 SI Satender Kumar Singh and he had then interrogated and arrested all the accused persons. The disclosure statements of the accused persons Rasheed Abisoye, Sunday Baba Tunde and Mehmood Shah asserted to have been recorded by him have been exhibited as Ex.PW1/L, ExPW1/K and Ex.PW1/N respectively. He has also deposed that on the personal search of all the accused persons the original copy of notice u/s 50 NDPS Act were recovered. He has further deposed that mobiles of accused Mehmood SC No. 40/08 Page 8 of 22 FIR No. 68/07 PS Spl. Cell Shah and Rasheed Abisoye were seized by him vide memo ExPW8/A and B respectively and that he had also collected the call details and rent agreements of accused Mehmood Shah, Rasheed and Sunday Baba Tunde from their mobile companies and then landlords. As per his deposition, after the completion of the proceedings at the spot he produced all the accused persons before SHO and thereafter deposited the articles recovered from the personal search of the accused persons with the MHC(M).
13.PW11 Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd. has placed before the court the call details record of mobile no. 9971576882 for the period 25/9/2007 to 4/10/2007. The said record has been exhibited as Ex.PW11/C. The subscriber enrollment form of this number has also been produced by this witness and has been exhibited as Ex.PW11/A. As per the said document the name of the subscriber of the aforementioned mobile number is Rasheed Alao Abisoye r/o 1700/3 Govindpuri Extension, Kalkaji, new Delhi.
14.PW12 Insp. Parasnath, SHO P.S. Special Cell has inter alia deposed that on the intervening night of 3/4 October, 2007 at about 11:00 PM, HC Balraj came to his office and handed over to him seven pullandas, three carbon copy of seizure memos and FSL forms. According to this witness, all the seven pullandas and the FSL form were having one seal each with SC No. 40/08 Page 9 of 22 FIR No. 68/07 PS Spl. Cell the initial of SKS and DKN and that he thereafter also put one seal each on the seven pullandas and the FSL form, with the initial of PNC. The said case property according to him was then deposited in the Malkhana. He has also deposed about the production of the accused persons before him.
15.PW13 ASI Paramjeet Singh has deposed that he was working as MHC(M) P.S. Special Cell, Lodhi Colony on 3/10/2007 and that on this date he was called by the SHO in his office and was handed over 7 pullandas, one FSL form and carbon copy of seizure memo and that he had deposited the same in Malkhana vide entry Ex.PW13/A. According to him on 4/10/2007 SI Satender Sangwan also deposited in the Malkhana the articles recovered from the search of the accused persons and one mobile phone of accused Rasheed Abisoye vide entry ExPW13/B. According to him on 6/10/2007 SI Satender Sangwan also deposited two mobile phones belonging to Mehmood Shan vide entry Ex.PW13/C. He has further deposed that on 30/10/2007 the four sealed pullandas and FSL form were handed over to HC Naresh Kumar vide RC no. 114/21, Ex.PW13/H for depositing the same in FSL, Rohini and on 25/2/2008 four sealed parcels sealed with the seal of FSL Rohini were received in malkhana through SI Satender Sangwan vide entry no. ExPW13/F. According to this witness till the samples remained in his custody no one tempered with the same and the seal remained intact. SC No. 40/08 Page 10 of 22
FIR No. 68/07 PS Spl. Cell
16.PW14 Dr. Madhulika Sharma, Assistant Director, CFSL, Rohini has deposed that on 30/10/2007, four parcels marked S1, S2, S3 and S4 alongwith FSL form and specimen seal impression were received in the FSL office and same were handed over to her for chemical examination. According to her, on the basis of chemical examination, Ex.S1 to ExS4 were found to contain diacetylmorphine to the extent of 48.5%, 48.8%, 54.3% and 31.1% respectively. The report prepared by her with respect to the said samples has been exhibited as Ex.PW14/A. It is also a matter of record that on the applications filed on behalf of the accused persons, fresh samples were taken out from the case property and sent for retesting to the FSL by the Predecessor of this court. With respect to the analysis of the samples sent to her by the Predecessor of this court, Dr. Madhulika Sharma has deposed that on 28/10/2010, two paper parcels marked RT1 and RT2 sealed with the seal of SJ alongwith forwarding documents and specimen seal impression were received in the FSL office and same were handed over to her for chemical examination. According to her deposition on the basis of chemical, thin layer chromatography and GCMS examination, Ex.RT1 and ExRT2 were found to contain diacetylmorphine to the extent 14.12% and 27.0% respectively. The report prepared by her with respect to the said samples has been exhibited as Ex.PW14/B. SC No. 40/08 Page 11 of 22 FIR No. 68/07 PS Spl. Cell
17.PW14 (A) Ct. Balwinder Singh has produced the original DD No.11A dated 3.10.07, DD No.10A dated 3.10.07 and DD No.12A dated 3/4.10.07 and the same have been exhibited as Ex.Pw14/A, Ex.Pw14/B and Ex.Pw14/C respectively. As per the record produced by him, DD No.11A was lodged by inspector Paras Nath, SHO PS Special Cell, Lodhi Colony on 3.10.07, DD No.10A was lodged by DO PS Special Cell, Lodhi Colony on 3.10.07 at about 11pm, DD 12A was lodged by DO PS Special Cell, Lodhi Colony on the intervening night of 3/4.10.07 at about1.15am.
18.PW15 Ct. Gurvinder Singh has produced the original DD No.10 dated 03.10.2007, DD No.11 dated 03.10.2007, DD No.14 dated 03.10.2007, DD No.19 dated 03.10.2007 and the same have been exhibited as Ex.PW15/A, Ex.PW15/B, Ex.PW15/C and Ex.PW15/D respectively. As per the record produced by him, DD No.10 was lodged by SI S.K. Singh at about 04.20 PM on 03.10.2007, DD No.11 was lodged by SI S.K. Singh on 03.10.2007 at about 04.35 PM, DD No.14 was lodged by DO on 03.10.2007 at about 09.40 PM and DD No.19 was lodged by SI Satender Sangwan on 03.10.2007 at about 04.20 PM.
19.The entire aforementioned evidence was put to both the accused and their statements u/s 313 Cr.P.C were recorded. In the said statements, the accused have denied their complicity in the present case and have stated that they have been falsely implicated. Both the accused persons have SC No. 40/08 Page 12 of 22 FIR No. 68/07 PS Spl. Cell inter alia stated that they are from Nigeria and that they used to come to India for business and had taken premises bearing no. 14/33A, street no. 13, Govind Puri, Kalkaji on rent and that they were picked up by the police officials forcibly on 03.10.2007 at about 10.30 AM. Accused Rasheed with respect to his refusal to be searched before a Magistrate or a Gazetted Officer as per Ex.PW1/A has specifically stated that he had started to write that he wants to be searched by a Magistrate and had also insisted that a Magistrate be called to the police station, but then he was kicked and given beatings with the handle of a gun which was being used by the police officials and was forced to write that he did not want the presence of a Magistrate. Accused Sunday Baba Tunde has also similarly stated that he was forced to sign blank documents and to write his refusal on the section 50 notice and the police officials were threatening to shoot him. He has infact stated that his real name is Steven Aremu but he was forced to sign as Sunday Baba Tunde. He has also pointed out that the passport belonging to him and seized by the police officials also clearly mentions his name as Steven Aremu.
20.Ld. Defence Counsels Sh. Rahul Tyagi and Sh. Y.K. Saxena have both submitted that in the present case the recovery of the contraband from the accused persons is highly doubtful keeping in view that the case property produced in the court did not bear the seal of the SHO (PNC) at all and SC No. 40/08 Page 13 of 22 FIR No. 68/07 PS Spl. Cell that therefore it is clear that the case property produced was not the one allegedly recovered from the accused persons. It is also the contention of Ld. Counsel Sh. Tyagi that the two inconsistent FSL reports available on judicial record amply make it clear that the case property has been tampered with. He has further contended that the fact that the accused was badly beaten up by the police officials and he was forced to write a refusal of section 50 notice is also evident from the statements elicited from PW9 Satender Sangwan during his crossexamination. Ld. Counsel Sh. Yogesh Saxena has also similarly contended that there has been no compliance of section 50 of the NDPS Act in as much as the contents of the said notice itself make it clear that the accused were not informed about their legal right to be searched before a Magistrate or Gazetted Officer.
21.In rebuttal, Ld. APP for the State has contended that since the contraband was recovered from packets being carried by the accused persons, there was no requirement to follow the provisions of section 50 of the NDPS Act. She has alternatively also contended that there has been a substantial compliance of section 50 of the NDPS Act and she has relied upon on the judgment of Hon'ble High Court pronounced in the case titled as Azeem Hussain vs. State of Delhi 2010 (1) JCC (Narcotics) 1 in this regard. As regards the seal of PNC not having been found on the case property when SC No. 40/08 Page 14 of 22 FIR No. 68/07 PS Spl. Cell produced in court, Ld. APP has submitted that it could be perhaps an inadvertent error on the part of the court or the then Ld. APP to get the said fact recorded and that it could be a case where the seal was so present on the case property but it was not recorded in the evidence of PW1. She has also submitted that the contention of the accused that he was beaten up by the police officials at the spot and was forced to sign documents and write his refusal on the section 50 NDPS Act notice, is not to be believed for the accused never made such a complaint when he was produced before the court during remand proceedings or even later. According to her this contention having been taken only at the stage of section 313 CrPC is an after thought.
22.I have carefully considered the submissions made by all the Ld. Counsels and have perused the entire record. I do have to agree with the contentions made on behalf of the accused persons for the following reasons:
(a) As per record, the case property was produced for the first time during the trial on 01.06.2010 when PW1 was being examined in chief.
As per the deposition of PW1, Inspector Satender Kumar, after the recovery of the contraband from the accused persons, the contraband recovered from the accused Rasheed was kept in a cloth pullanda and sealed with the seals of SKS and DSN and was given mark A. This SC No. 40/08 Page 15 of 22 FIR No. 68/07 PS Spl. Cell witness has also deposed that the contraband recovered from the accused Sunday Baba Tunde was also put in a cloth pullanda and was sealed with the seals of SKS and DSN and was given mark B. Further as per the deposition of this witness, both pullandas mark A and B were given by him to HC Balraj to produce before the SHO. Now further as per the deposition of PW12 Inspector Paras Nath who was posted as SHO PS Special Cell on the date of the incident, HC Balraj produced the sealed case property which was bearing seal of SKS and DSN before him. According to his deposition, he wrote FIR number on all the pullandas produced before him and put his seal PNC on all the said pullandas. MHCM PW13 ASI Paramjeet Singh has also inter alia deposed that the sealed pullandas A and B bearing seal of SKS, DSN and PNC were deposited in the malkhana by the SHO. In his crossexamination, he has categorically deposed that the case property was stored in the malkhana with utmost care and special caution was taken to ensure that none of the seals affixed on the case property were broken or tampered with. From the above depositions, it is clear that the pullandas mark A and B should have been bearing seals of SKS, DNS and PNC however as pointed out by Ld. Defence Counsel, the case property when produced before the court on 01.06.2010 was not found having the seal of PNC and was shown to be only bearing seals of SKS and DSN. The contention of the Ld. APP that SC No. 40/08 Page 16 of 22 FIR No. 68/07 PS Spl. Cell there has been an inadvertent error in recording of the evidence cannot be accepted at this stage. It even otherwise does not appear to have any merit for immediately after the case property was produced in court on 01.06.2010 and was not found having the seal of PNC, on behalf of the accused persons an application was filed praying therein that fresh samples be drawn from the case property and be sent for analysis. Notice of this application was given to the State and the Ld. Predecessor of this court vide order dated 01.09.2010 allowed the said application and took notice of the fact that the pullandas had only the seals of SKS and DSN. Admittedly, the State did not challenge the said order and neither did it refute at that stage that it was the court which had not recorded the presence of the seal of PNC on the pullandas. In view of the aforementioned facts, it is clear that the prosecution does not have any explanation as to how the seal of PNC was found missing from the pullandas/case property produced in the court and this failure of the prosecution lends credence to the submission of the defence that the case property has been tampered with.
(b) The aforementioned contention of the accused also draws support from the two inconsistent FSL reports proved on record. As narrated hereinabove, on an application filed on behalf of the accused persons, the samples of the contraband allegedly recovered from the SC No. 40/08 Page 17 of 22 FIR No. 68/07 PS Spl. Cell accused persons was sent for retesting to FSL vide orders of the Ld. Predecessor dated 01.09.2010. Now as per the first FSL report, Ex.PW14/A i.e. the report that was prepared with respect to the four samples sent to it during investigation, the said samples were found to contain acetylcodeine, monoacetylmorphine, diacetylmorphine and Dextromethorphan. It is also stated in the said report that the samples were found to be creamish yellow colour powder. However, with respect to the two samples drawn from the case property produced in the court, the FSL has reported vide Ex.PW14/B that they were found to contain Caffeine and diacetylmorphine. Thus, it is clear that the chemical constituents of the samples deposited during investigation and those drawn out from the case property during trial were not found out to be same. Dr. Madhulika Sharma, Deputy Director, FSL, Rohini who has prepared both the said reports was examined as PW14 and in her crossexamination she has specifically stated that it is not scientifically possible that Dextromethorphan or acetylcodeine or diacetylmorphine would get converted into caffeine and if all the samples tested by her were drawn from the same substance dextromethorphan and acetylcodeine should have been present even in the second test conducted by her. She was also specifically put a question on behalf of the defence to the effect whether it SC No. 40/08 Page 18 of 22 FIR No. 68/07 PS Spl. Cell is possible in the present case that diacetylmorphine found in the first sample got degraded into monoacetylmorphine or morphine in the second sample and she categorically stated that it was not possible. In view of the said two reports and the deposition of the Chemical Examiner, it is to be inferred that the samples sent to the FSL for the first time by the investigating agency could not have been drawn out from the contraband/case property that was produced before the court and from which a second sample was sent for retesting. Ld. APP for the State has been at pains to explain the difference in the two FSL reports and it is evident that the case property in the present case has been tampered with.
(c) Further though the State might be right in contending that the investigating agency was not required in the facts of this case, namely where the contraband was allegedly recovered from the packets carried by the accused persons, to comply with the provisions of section 50 of the NDPS Act and that therefore any defect in the wording of the notice served upon the accused will not be fatal to the case of the prosecution,the credibility of the police officials is completely demolished if one accepts the contention of the defence that the accused was beaten up and forced to give his refusal on the section 50 notice issued to him. A perusal of the section 50 notice Ex.PW1/B issued to accused Rasheed and proved before the court clearly shows that the accused had initially written 'I do w...' and SC No. 40/08 Page 19 of 22 FIR No. 68/07 PS Spl. Cell then he was made to cut the words 'do w'. The IO PW1 Satender Kumar Singh was specifically asked about the said cutting on the notice but he did not offer any explanation for the same. The second IO PW9 Satender Sangwan whose main duty was to see that the investigation carried out by PW1 was fair and impartial, when questioned about the said notice has stated that he did not make any enquiry as to why there was a cutting on the initial response to the notice. In fact, it does not appear from the answers given by this IO in his crossexamination that he was aware that he had any such duty to satisfy himself that the investigation carried by the first IO was fair. Despite having reached the spot before the case property was sent to the police station, he has stated that he did not find it necessary to check the seals that were used to seal the case property at the spot or to compare the impression of the seal affixed on the FSL form with that on the case property or to even examine whether the case property was properly sealed or not. Further this witness when questioned as to whether accused Rasheed had made any complaints of torture to him, has stated that no such complaint was made to him nor had he noticed any injuries on the person of accused Rasheed however, when specifically asked whether the accused did have injuries or not, he admits that the accused Rasheed had some injuries on his body but that he could not notice the same while interrogating him as it was night time and that the accused told him about SC No. 40/08 Page 20 of 22 FIR No. 68/07 PS Spl. Cell the injuries only after the completion of the proceedings and only thereafter, he was told by the team incharge Inspector Devender Singh and SI S.K. Singh that the accused had sustained injuries while jumping over the wall of the parking area. When further questioned as to why the MLC of this accused was not filed on the judicial record, he has merely stated that the same is available in the police file. Now a perusal of this MLC (which was taken on record and for the purposes of identification marked as mark A) shows that the accused had injuries over his face and buttocks. The abrasion over the chin below the lower lip was found to be 1/2'' X 1/4''. Despite such an injury present on the face of the accused, SI Satender Sangwan has deposed in his crossexamination that when he interrogated the accused and recorded his disclosure, the said injury was not visible to him - a statement which does not stand to reason. It also does not seem possible that a person jumping over a wall and falling on the ground would simultaneously receive injuries both on his face and his buttocks. The defence therefore does appear to be right in contending that the accused was beaten up by the police officials as he was not writing as per their instructions and that the MLC of this accused was deliberately not filed on record for it would have shown the averments recorded with respect to the manner of receiving the said injuries, in the FIR as false. SC No. 40/08 Page 21 of 22
FIR No. 68/07 PS Spl. Cell
23.In view of the discussion hereinabove, this court is of the considered opinion that in the present case, the deposition of the prosecution witnesses is not credible and it cannot be ruled out that the case property has been tampered with and therefore, the accused persons are entitled to be acquitted. Accordingly, both the accused persons stand acquitted of the charges framed against them.
Announced in open Court on this 28th day of July, 2012 (Anu Grover Baliga ) Special Judge NDPS : New Delhi Patiala House : New Delhi SC No. 40/08 Page 22 of 22