Delhi District Court
Jagdamba Avasthi vs . State Of Goa, Vii (2004) Slt 85 Was ... on 31 July, 2018
State V. Sanjay @ Babloo and anr.
IN THE COURT OF PAWAN KUMAR MATTO,
SPECIAL JUDGE (NDPS), ADDITIONAL SESSIONS JUDGE,
NORTH WEST,ROHINI COURTS, DELHI
Sessions Case Number : 53156/2016
State
versus
1) Sanjay @ Bablu
Son of Sh. Balkishan
Resident of A4/390, Sultan Puri, Delhi.
2) Santosh @ Guddo
Wife of Sh. Ghanshyam
Resident of A4/390, Sultan Puri, Delhi
First Information Report Number : 107/2016
Police Station : Sultan Puri
Under section :21 (b) /21/(c) / 61/85 of NDPS Act
Date of registration of the charge sheet
in this court : 07.05.2016
Final Arguments concluded on : 24.07.2018
Date of judgment : 31.07.2018
JUDGMENT
1. The brief facts of the case are that on dated 11.02.2016, ASI Rishikesh alongwith Ct. Ashok had left the police station for patrolling at FIR No. 107/16 PS Sultan Puri Page No. 1 of 104 State V. Sanjay @ Babloo and anr.
12:20 PM vide DD no. 43B and when at about 12:45PM, they arrived at A4 Block, Sultan Puri, Delhi, a secret informer had met him and informed that a lady namely Guddo and her husband Babloo, who are indulged in the business of selling Heroine would come in A4 Block, near Maszid and if raid is conducted, they could be apprehended with the Heroine and after satisfying with the information received from the secret informer, ASI Rishikesh had informed to the SHO at about 12:55 PM, who had apprised to the ACP and at about 1:05 PM and SHO had directed to conduct raid and to do the needful also informed him that he was sending W/SI Anju. At about 1:20 PM, W/SI Anju had arrived at the spot and ASI Rishikesh had constituted a raiding team comprised of ASI Rishikesh, Ct. Ashok and W/SI Anju and requested to 45 passersby to join the investigation, but none agreed and went away from there and ASI Rishikesh, W/SI Anju and Ct. Ashok took their positions. At about 1:50PM the secret informer had pointed out towards both the accused and secret informer left the spot and both the accused were apprehended and members of the raiding team had given their introductions and on inquiry, both the accused had told their names Santosh @ Guddo and Sanjay @ Babloo. ASI Rishikesh is alleged to have apprised to both the accused of their rights of being searched in the presence of the Gazetted Officer or the Magistrate and their arrangement could be done at the spot and it was their legal right that they could conduct the search of the member of the raiding team and their vehicle and ASI Rishikesh is alleged to have made understand the FIR No. 107/16 PS Sultan Puri Page No. 2 of 104 State V. Sanjay @ Babloo and anr.
meaning of the Gazetted Officer and the Magistrate. The ASI Rishikesh is alleged to have prepared two notices u/s. 50 of NDPS Act and served the carbon copies thereof to both the accused. This ASI is also alleged to have read over the notices and after understanding their rights, both the accused are alleged to have refused and their such refusals on the original notices were reduced into writing, which were also read over to them and after admitting such refusal to be correct they are alleged to have put their signatures thereon. ASI Rishikesh is also alleged to have requested to 57 passersby to join the investigation, but all had refused after showing their helplessness and ASI Rishikesh is also alleged to have conducted cursory search of accused Babloo, wherein a transparent polythene was recovered from the left side pocket of his pant and on opening the stapled pins from the said transparent polythene brownish powder was found therein. Whereas, the SI Anju is alleged to have recovered white transparent plastic polythene from the bra worn by accused Santosh @ Guddo in her search and brownish powder was also found therein and after removing the stapled pins therefrom and on smelling, it was revealed that it, the same was Heroine. The weight of the Heroine including plastic polythene recovered from accused Sanjay @ Babloo was 122.50 grams. Whereas, the weight of the Heroine including plastic polythene allegedly recovered from accused Santosh @ Guddo was 272.50 grams and two samples of 5 grams each were taken out from the contrabands allegedly recovered from accused Sanjay @ Bablu and accused Santosh @ Guddo and six FIR No. 107/16 PS Sultan Puri Page No. 3 of 104 State V. Sanjay @ Babloo and anr.
parcels of contrabands and their samples were prepared and sealed with the seal of BS, FSL form was also filled and sample of seal was also put on the FSL Form and the contrabands and their samples were seized and six sealed parcels, FSL Form , carbon copy of recovery memos alongwith tehrir were sent to the police station through Ct. Ashok for registration of the FIR and for handing over the case properties to the SHO. Accordingly, the FIR was registered u/s 21 of NDPS Act and further investigation was assigned to another investigating officer SI Pramod. Both the accused were arrested on dated 11.02.2016 and samples of the contraband were sent to FSL on dated 17.02.2016. Statements of prosecution witnesses recorded by the IO. Accused Sanjay @ Bablu was released on bail on dated 04.06.2016. Whereas accused Santosh @ Guddo is in judicial custody since 11.02.2016. On completion of the investigation the Charge sheet was filed against both the accused U/S 21 of the NDPS Act.
2. On finding prima facie case, the charge U/S 21 (b) /61/85 of NDPS Act was framed against accused Sanjay @ Babloo. Whereas Charge u/s. 21 (c)/61/85 of NDPS Act was framed against accused Santosh @ Guddo to which, both the accused pleaded not guilty and claimed trial. Accordingly, both the accused were put on trial.
3. In order to prove its case, the Prosecution has examined 07 witnesses.
FIR No. 107/16 PS Sultan Puri Page No. 4 of 104State V. Sanjay @ Babloo and anr.
4. ASI Rishikesh has been examined as PW1. He has also been cross examined by the Ld. Counsel for accused.
5. Whereas, SI Pramod Kumar has been examined as PW 2. He has also been cross examined by the Ld. Counsel for accused.
6. Whereas, HC Parveen has been examined as PW 3. He has also been cross examined by the Ld. Counsel for accused.
7. Whereas, Ct. Ashok has been examined as PW4. He has also been cross examined by the Ld. Counsel for accused.
8. Whereas, Ct. Rakesh has been examined as PW5. He has also been cross examined by the Ld. Counsel for accused.
9. Whereas, SI Anju Dahiya has been examined as PW6. She has also been cross examined by the Ld. Counsel for accused.
10. Whereas, Inspector Ashok Kumar has been examined as PW7. He has also been cross examined by the Ld. Counsel for accused.
11. On completion of the prosecution's evidence, the statements of both the accused u/s 313 of Cr. PC were recorded, wherein, the FIR No. 107/16 PS Sultan Puri Page No. 5 of 104 State V. Sanjay @ Babloo and anr.
accused have denied the correctness of the evidence of the prosecution led against them and both the accused have pleaded innocence. Both the accused have also examined Sh. Shiv Prasad Tiwari as DW1 and Ms. Radha has been examined as DW2 . They were also cross examined by Ld. APP for the state.
12. I have heard the Ld. Counsels for the parties.
13. Ld. APP for the State has submitted that in the case in hand, the FIR was registered on the Rukka Ex.PW1/F prepared by ASI Rishikesh, who has been examined as PW1. He has submitted that secret information regarding the contraband was received on dated 11.02.2016 at 12:45 PM, while, ASI Rishikesh was on patrolling duty and he had telephonically informed to the Inspector/SHO Ashok at 12:55 PM and at 01:05 PM, SHO had telephonically directed to ASI Rishikesh to constitute a raiding team and Inspector Ashok sent to SI Anju Dahiya at the spot, as the information was received that both the accused could be apprehended with the contraband. Accordingly, at 01:20 PM, SI Anju Dahiya had arrived at the spot and this ASI Rishikesh requested to 45 passersby to join the investigation, but, none agreed and without wasting the time, he formed the raiding party comprising of himself, Ct. Ashok & SI Anju Dahiya. He has further submitted that at 01:50 PM, secret informer had pointed out about the accused and on his pointing out, both the accused Sanjay @ Babloo & Santosh @ Guddo were FIR No. 107/16 PS Sultan Puri Page No. 6 of 104 State V. Sanjay @ Babloo and anr.
apprehended and ASI Rishikesh had introduced himself and also introduced the members of raiding team to the accused and told them about the information received regarding the contraband and also told them about their legal rights to be searched before the Gazetted Officer or the Magistrate and served them notices under Section 50 of NDPS Act, which are exhibited as Ex.PW1/B & Ex.PW1/C. Both of the accused have refused to be searched in the presence of the Gazetted officer or the Magistrate. Accordingly, ASI Rishikesh had searched Sanjay @ Babloo and from the left side of pocket of his pant, 122.50 Grams of Heroine was recovered and 02 samples of 05 Grams each were separated and the parcels of the samples and remaining contraband were prepared and sealed with the seal of BS. He has further submitted that SI Anju Dahiya had conducted the search of accused Santosh @ Guddo and 272.50 Grams of Heroine was found in the inner clothes of this accused Santosh @ Guddo. He has further submitted that 02 samples of 05 grams each were also separated from the contraband recovered from this accused and parcels of the samples & remaining contraband were prepared and sealed with the seal of "BS" and also submitted that contraband recovered from the accused Sanjay @ Bablu was seized vide seizure memo Ex. PW 1/D whereas, contraband recovered from the possession of Santosh @ Guddo was seized vide memo Ex.PW1/E and the rukka was prepared and FSL Form of both the contraband was filled by ASI Rishikesh and rukka, samples, contrabands, copies of seizure memos and FSL Form were FIR No. 107/16 PS Sultan Puri Page No. 7 of 104 State V. Sanjay @ Babloo and anr.
sent to Police Station through Ct. Ashok, who has been examined, as PW4. Accordingly, rukka was given by Ct. Ashok to the duty officer, who had lodged the FIR. Whereas, the contrabands, samples, copies of seizure memos & FSL form were handed over to the SHO, who had put his seal thereon and deposited the same in the Malkhana. It is further submitted that testimony of PW1 is corroborated with the PW7, who has also deposed on the similar line and submitted that report Ex.P5 regarding the seizure of contraband was sent under Section 57 of the NDPS Act was sent by Inspector Ashok to the ACP and submitted that after registration of the FIR, Inspector Ashok had sent second IO/SI Pramod, who has been examined as PW2 and he had arrived at the spot and Ct. Ashok handed over rukka and copy of FIR to this SI Pramod, who had arrested to both the accused vide memo of arrest Ex.PW2/B & Ex.PW2/C and both the accused were personally searched and carbon copies of the notices under Section 50 of NDPS Act Ex.PW2/F & Ex.PW2/G were recovered from them during their personal search and report under Section 57 of NDPS Act ExPW 2/I regarding the arrest of both the accused was prepared by the second IO/SI Pramod and same was sent to the ACP. It is further submitted that police custody of Sanjay was also taken, but, no source of contraband was found and submitted that HC Parveen, has been examined PW3, who was the MHC(M) at that time, who has corroborated the testimony of PW 7 Inspector Ashok, as he has deposed on dated 11.02.2016 that Inspector Ashok had deposited 06 sealed parcels with the seal of "BS"
FIR No. 107/16 PS Sultan Puri Page No. 8 of 104State V. Sanjay @ Babloo and anr.
and AK along with FSL form. It is further submitted that PW 3 has proved the copy of the register no. 19 Ex.PW3/A and also submitted that SI Anju Dahiya has been examined as PW6, who has proved that during personal search of accused Santosh, she had recovered polythene wherein Heroine was kept, weight of which was 272.50 grams and further submitted that testimonies of PW1 and PW4 Ct. Ashok have been corroborated by SI Anju, who has been examined as PW6 and compliance of the Section 57 of NDPS Act has been admitted. He has further submitted that SI Rishikesh had telephonically informed about the secret information to Inspector/SHO Ashok and thus provisions of Section 42 of NDPS Act have been complied and in view of serving of the notices to both the accused , provision of Section 50 is also complied with, as the carbon copies of the notices were also recovered during the personal search conducted by SI Pramod and further submitted that prosecution has proved that accused Santosh @ Guddo was found in possession 272.50 of Heroine and accused Sanjay @ Babloo was found in possession of 122.50 grams Heroine and from the report of FSL Ex. P4 it is proved on record that the contraband recovered from both the accused were Heroine. So, accused Sanjay @ Babloo is liable to be convicted u/s. 21 (b) /61/85 of NDPS Act. Whereas Accused Santosh @ Gudd under Section 21(c) of NDPS Act and prayed for convicting both the accused thereunder.
14. On the other hand, Ld. counsel for the accused has submitted that secret information alleged to have been received by the SI Rishikesh FIR No. 107/16 PS Sultan Puri Page No. 9 of 104 State V. Sanjay @ Babloo and anr.
(PW1) from the secret informer was required to be reduced into writing and it was also required to be sent to the higher Officer of the police. But, neither such alleged secret information was reduced into writing nor the same was sent to higher officer. So the alleged giving of the such secret information by PW 1 to PW 7 Inspector Ashok through telephone cannot be treated as compliance of Section 42 and thus the mandatory provisions of 42 of NDPS Act are violated by the police officials and further submitted that PW 1 SI Rishikesh in his cross examination, he has stated that it was known to him that the accused would come from the side of Aggarwal Sweet. But, it is not mentioned in the rukka. It is further submitted that PW 1 also deposed during his cross examination that he had informed to members of the raiding team that from which side, the accused would come. But, PW 6 Anju Dahiya has deposed that it was not told to her by the PW 1 SI Rishikesh, as to from which side, accused would come and also submitted that PW 1 has deposed that he was not aware about the addresses of the accused. Whereas, PW 4, has deposed that accused reside near mosque. PW 5 Constable Rakesh is also alleged to have come alongwith second IO/SI Parmod, he also stated that he knows to the accused Santosh and son of the accused Santosh had also arrived at the spot at 5:30 PM and there are material contradictions in the testimonies of these prosecution witnesses. So, their testimonies are also doubtful. He has also submitted that seizure memos Ex PW 1/D and Ex. PW 1/E are not signed by any of the accused and also FIR No. 107/16 PS Sultan Puri Page No. 10 of 104 State V. Sanjay @ Babloo and anr.
submitted that no signature are there on the alleged disclosure statements of both the accused and in view of the absence of the signatures on the seizure memos Ex PW 1/D and Ex. PW 1/E, the recovery of the contrabands become suspicious. He has further submitted that PW 4 during his crossexamination has deposed that both the accused had signed the seizure memos. But, the seizure memo Ex. PW 1/D and Ex. PW 1/E do not bear the signature of any of the accused. He has further submitted that second IO SI Pramod (PW 2) has deposed that prior to the returning of Ct. Ashok at the spot, no document was prepared by him and further submitted that PW 2 SI Pramod has deposed during his cross examination that Ct. Ashok had returned at the spot from the police station after 25 minutes of his arrival and no document was prepared by him prior to his arrival. Whereas, PW 6 SI Anju Dahiya has deposed during her cross examination the all the documents were prepared by PW 2 SI Pramod prior to the returning of the Ct. Ashok at the spot and also submitted that the statement of W/SI Anju Dahiya was recorded u/s. 161 on dated 12.02.2016 wherein it is stated she was discharged on dated 11.02.2006 at 6:05 PM after recording of disclosure statement of Sanjay but PW 2 has deposed during his cross examination that PW 6 SI Anju Dahiya remained present till 11:55 PM and when, PW 2 was confronted with the statement of SI Anju Dahiya recorded by him during the investigation, then, PW 2 SI Pramod has admitted it to be correct that it is not mentioned in the statement of SI Anju Dahiya dated FIR No. 107/16 PS Sultan Puri Page No. 11 of 104 State V. Sanjay @ Babloo and anr.
11.02.2016 & 12.02.2016 u/s. 161 of Cr. P.C that SI Anju Dahiya had accompanied him to the house of Duty MM, as well as, during medical examination of accused Santosh and submitted that there are contradictions in the statement of PW 2 and PW 6. Ld. Counsel for accused has also submitted that there are material contradictions in the testimony of PW4 and PW6 regarding the place of search of this accused Santosh @ Guddo as PW4 has deposed in the court that the alleged search of the accused Santosh conducted opposite to mosque near the house, whereas PW6 has deposed that the alleged search of this accused Santosh was conducted in front of a shop situated near the mosque behind the counter of a shop and the height of the counter was merely three feet and further submitted that contraband is alleged to have been recovered from the bra of the accused Santosh @ Guddo. So decency and dignity was required to be maintained at the time of allege search of the accused. Since search of this accused Santosh @ Guddo is alleged to have been conducted in a public place and in indecent manner, that too in the absence of any public witness in thickly populated area and submitted that in view of the nonmaintaining the norms of decency at the time of alleged search of this accused, the search of this accused become doubtful and benefit of doubt are liable to be given to the accused. He has further submitted that since the contraband are alleged to have been recovered during the personal search of both the accused, so the notices u/s.50 of the NDPS Act were required to be served to both the accused, but the same have never FIR No. 107/16 PS Sultan Puri Page No. 12 of 104 State V. Sanjay @ Babloo and anr.
been served and the signatures of the accused were forcibly taken on blank papers and subsequently notices u/s. 50 of NDPS Act were prepared thereon. It is further submitted that it is not mentioned in the register no. 19 that the notices under Section 50 of the NDPS Act which were allegedly recovered during the personal search of both the accused during their personal searches of both the accused were ever deposited in the malkhana, and PW3 has also not deposed that the carbon copies of the notices u/s. 50 of NDPS Act were deposited in the malkhana and submitted that had the copies of notices u/s 50 of the NDPS Act been recovered from both the accused, the same could be deposited in the Malkhana and in the absence thereof, doubts are created in the case of prosecution regarding the service of the notices u/s.50 of NDPS Act and in view of the violation of provision of section 50 of NDPS act, accused are liable to be acquitted. He has also submitted that PW6 SI Anju Dahiya has failed to identify the photographs of the alleged place of occurrence, filed by the accused and whereas, Ct. Ashok who has been examined as PW4, has identified two of the photographs filed by the accused and submitted that had SI Anju Dahiya ever gone to the place of alleged occurrence, she could identify the alleged place of occurrence, in the photographs. He has further submitted that in view of the same, presence of SI Anju Dahiya becomes doubtful at the place and time of the alleged occurrence. He has also submitted that carbon copy of the notice Ex.PW3/F of accused Santosh @ Guddo and carbon copy of the notice Ex.PW3/G of accused FIR No. 107/16 PS Sultan Puri Page No. 13 of 104 State V. Sanjay @ Babloo and anr.
Sanjay @ Babloo do not bear the signatures of these accused, so it is clear that notices u/s 50 of NDPS Act are also planted on the accused.
It is further submitted by Ld. Counsel for accused that in the case in hand, the secret information regarding the contraband is alleged to have been received by the first Investigating Officer (PW1) while he was on patrolling duty on dated 11.02.2016 and the accused are alleged to have been arrested on 11.02.2016 and submitted that police has violated the provisions of Section 42 of NDPS Act, as even after arriving in the police station, the secret information was not reduced into writing nor such information was ever conveyed to senior officers of police and in view of the gross violation of mandatory provisions of section 42 of the NDPS Act, accused are liable to be acquitted. Ld. counsel for the accused has also submitted that in the case in hand, the contraband are alleged to have been recovered in their personal search and accused Santosh @ Guddo is a lady and at the time of the alleged search of this accused, no decency has been opted by the police at the time of the alleged search and further submitted that both the accused have been falsely implicated in the present case and no notice under Section 50 of the NDPS Act was served to them. But, the signatures of the both the accused are obtained on blank papers and also submitted that alleged replies of both notices under Section 50 of the NDPS Act are almost same in verbatims and submitted that since the occurrence is alleged to have taken place in the day light and it is a public place, but no sincere efforts have been made for joining of the public witness in the FIR No. 107/16 PS Sultan Puri Page No. 14 of 104 State V. Sanjay @ Babloo and anr.
investigation and in the absence of any public witness, the testimonies of the police witnesses cannot be relied upon as the same are full of contradictions and doubts and also submitted that PW 1 Rishikesh is alleged to have used the seal BS, but the said seal is doubtful, because the name of this first IO Rishikesh does not start from B and during his crossexamination he has admitted that it was his private seal and also submitted that SHO has been examined as PW 7, who does not have any such knowledge about the seal of this IO as BS, which is allegedly used by the IO SI Rishikesh and submitted that the seal after its use is alleged to have been handed over to Ct. Ashok and after alleged use of the said seal, the pullandas and the seal were allegedly handed over to same Ct. Ashok and Ct. Ashok has taken the parcels to the police station. So, the possibility of tempering with the parcels cannot be ruled out. He has further submitted that no signature of accused on the seizure memos were obtained by the IO. He has also submitted that PW 1 Rishikesh has deposed that he had prepared two FSL forms and no copy thereof was prepared. Whereas the copy of FSL form Ex. PW 1/DA reveals that one FSL form was filled which was common to both the alleged contrabands and also submitted that PW 1 has deposed that FSL form was also printed on its back. Whereas, PW 6 SI Anju Dahiya has deposed that FSL form consisted of three pages. Whereas PW 4 has stated during his crossexamination that two FSL forms were filled. So, testimony of PW 1, PW 4 and PW6 regarding the FSL form are found to be contradictory and inconsistent and also submitted that in the FIR No. 107/16 PS Sultan Puri Page No. 15 of 104 State V. Sanjay @ Babloo and anr.
register no. 19 Ex. PW 3/A, it is not mentioned that FSL form was also deposited in the malakhana. So, the case of the prosecution also becomes doubtful and similarly copy of register no. 21 Ex. PW 3/B and acknowledgement Ex. PW 3/C given by the FSL, it contains no reference of FSL form and submitted that FSL form was required to be filled at the place of occurrence, but as the copy of register no. 19 Ex. PW 3/A reveals that in the register no. 19 it is not mentioned that the FSL Form was also deposited in the Malkhana. So, the possibility of manipulation of FSL Form cannot be ruled out. He has also submitted that the accused are innocent persons and both the accused are falsely implicated. It is further submitted that FSL from was not deposited in the malkhana had it been deposited , it could be mentioned in the register no. 19 Ex. PW 3/A and also in the road certificate, but it is not mentioned in the register no. 19 that FSL form was ever deposited in the malkhana nor it is mentioned in the road certificate,that it was also given to SI Rishikesh, when he took samples to FSL. It is further submitted that since the seal of BS used by PW 1 Rishikesh is alleged to have been handed over to Ct. Ashok after its use and thereafter the samples of the contraband and seal were also handed over to Ct. Ashok and Ct. Ashok also deposed in the court that said seal was returned by him to PW 1 SI Rishikesh on the same night and since the samples of the contrabands are also alleged to have been deposited by PW 1 SI Rishikesh in the FSL, so the possibility of tempering with the samples cannot be ruled out, as the seal was well within the possession of SI FIR No. 107/16 PS Sultan Puri Page No. 16 of 104 State V. Sanjay @ Babloo and anr.
Rishikesh even on the day, when he had taken the samples to the FSL. It is further submitted that in view of the material contradictions, the testimonies of PW4 and PW 5 are also found to be doubtful and the same cannot be relied upon, H e has further submitted that if the testimony of SI Anju PW 6 is looked into, she has deposed in the court that the weight of the samples including polythene was 5 grams each, whereas, in the report of FSL Ex. P 4 reveals that the weight of the one sample of the contraband is mentioned as 6.18 grams including polythene. Whereas the weight of another sample of the contraband is mentioned as 6.22 grams and thus there are material contradictions in the testimony of PW1, PW4, PW 6 and the report of FSL Ex P4. Ld. Counsel for accused has further submitted that since accused Santosh @ Guddo is an illiterate lady, she knows merely signing and her signatures were obtained by the police on blank papers without making her understand the meaning of Gazetted Officer or the Magistrate and notice Section 50 of the NDPS Act is also not served and signatures of both the accused were obtained and carbon copies of the notices are alleged to have been given both the accused, but the MHC(M) has failed to support the case of the prosecution and the prosecution has failed to prove on record that carbon copies of the notices u/s 50 of NDPS Act were ever deposited in the malkhana and thus mandatory provision u/s.50 has been grossly violated by the police and also submitted that it was the duty of the IO to join the public witness, but, no efforts have been made to join the public witnesses. Despite of the fact that the FIR No. 107/16 PS Sultan Puri Page No. 17 of 104 State V. Sanjay @ Babloo and anr.
alleged place of occurrence is thickly populated area and PW 1 has alleged that the public person refused to join the investigation, but, no notice to any of the person has been given for non joining the investigation nor any name or address of such person has been disclosed. The contrabands are alleged to have been recovered from both the accused on dated 11.02.2016 Whereas, the samples thereof are alleged to have been sent to the FSL on dated 17.02.2016 and delay in sending the samples to the FSL is not explained and further submitted that since the samples are also alleged to have been taken by SI Rishikesh to the FSL on 17.02.2016 and by that time, he had already received the seal from Ct. Ashok which was allegedly handed over by him to Ct. Ashok, so, the possibilities of tempering with the samples cannot be ruled out and further submitted that no FSL form was filled at the spot. So, in the copy of the register no. 19, it is not mentioned that the FSL form was also deposited in the malkhana and similarly in the road certificate, it is not mentioned that FSL form was also given with the samples and submitted that since the FSL form is alleged to have been filled by PW 1 SI Rishikesh and PW 1 has deposed that two separate FSL forms were filled by him regarding the contrabands alleged to have been recovered from both the accused whereas the copy of FSL Form Ex. PW1/DA reveals that only one FSL form was received in the FSL . So, the possibility of preparing of the FSL Form at the time of depositing the samples in the FSL cannot be ruled out and submitted that there was so many material contradictions regarding the alleged place the FIR No. 107/16 PS Sultan Puri Page No. 18 of 104 State V. Sanjay @ Babloo and anr.
search of accused Santosh @ Guddo, numbers of FSL Forms and weight of the samples in the testimonies of PW 1, PW 6 and report of FSL and it is also not proved beyond reasonable doubts that the FSL form was filled at the spot or that notices u/s. 50 were served to the accused and in view of gross violation of section 42 of NDPS Act , both the accused are liable to be acquitted.
15. In rebuttal ld. APP for state has submitted that case in hand the compliance of provision of section 42 of the NDPS Act has been done by way of telephonic call made by SI Rishikesh to Inspector/SHO Ashok and further submitted that since 272.50 grams of Heroine has been recovered from accused Santosh @ Guddo and 122.50 grams of Heroine has been recovered from Sanjay @ Bablu. So, accused Sanjay @ Babloo is liable to be convicted u/s. 21 (b)/61/85 of NDPS Act and accused Santosh @ Guddo is liable to be convicted u/s. 21 (c) 61/85 of NDPS Act.
16. I have given thoughtful consideration to the submissions made by the Ld. Counsel for the parties and perused the record.
17. The perusal of the record reveals that in the case in hand 272.50 grams of Heroine is alleged to have been recovered from accused Santosh @ Guddo whereas 122.50 grams of Heroine is alleged to have been recovered from accused Sanjay @ Bablu and in order to prove the FIR No. 107/16 PS Sultan Puri Page No. 19 of 104 State V. Sanjay @ Babloo and anr.
charges framed against the accused. The prosecution has examined seven witnesses.
18. ASI Rishikesh has been examined as PW1, who has deposed that on 11.02.2016, he was posted as ASI in police station Sultanpuri and on that day, at about 12.20 PM, he alongwith Ct. Ashok left the police station for patrolling duty vide departure entry no. 43B Ex.PW1/A in a private vehicle in the area of A4 Block, Sultanpuri and at about 12.45 P.M., when they were present near Mosque, A4 Block, Sultanpuri, a secret informer met them and informed that one lady namely, Guddo and her husband Babloo, who are involved in the business of supplying smack would come in the area of A4 Block, Sultanpuri to supply smack and if raid is conducted, they could be apprehended. He had conveyed this information telephonically to SHO Inspector Ashok at 12.55pm and Inspector Ashok told him that he would talk about this information to the ACP and would give proper instructions to him and after some time. At 1.05pm, PW1 ASI Rishikesh had received telephonic call of SHO, who had directed him to conduct a raid and that he was sending SI Anju Dahiya at the spot. At about 1.20pm, SI Anju Dahiya arrived at the spot. PW1 ASI Rishikesh had requested 45 passersby to join the raiding party, but none agreed and without wasting time, he formed the raiding partly comprising himself, Ct.Ashok and SI Anju Dahiya. PW1 ASI Rishikesh deputed Ct. Ashok at a distance of about 20 meters ahead of him and deputed SI Anju Dahiya FIR No. 107/16 PS Sultan Puri Page No. 20 of 104 State V. Sanjay @ Babloo and anr.
at a distance of about 10 meters behind him. At about 1.50pm, secret informer told him that both the alleged accused were coming and at that time, they were at a distance of about 30 meters from him. They were coming from the side, where, SI Anju Dahiya was deputed. After pointing out towards the lady namely, Guddo and her husband Babloo, secret informer left the spot. When, they reached near the place, where, he was standing, he gave signal to SI Anju Dahiya, as well as, to Ct. Ashok and they all apprehended both of them. On interrogation, they disclosed their names as Sanjay @ Babloo and Santosh @ Guddo w/o Ghanshyam. Secret informer had also informed their names as Babloo and Guddo w/o Babloo. However, the actual name of the lady accused was revealed Santosh @ Guddo w/o Ghanshyam. This witness has correctly identified both the accused persons namely Sanjay @ Babloo and Santosh @ Guddo in the Court. He had given his introduction and the introduction of his staff to both the accused persons and informed them that he had information that both of them were having smack in their possession. He told them that they could take his search, as well as, of his staff and also of their car. He had also apprised to both the accused persons about their legal rights that if they want, then their search could be conducted in the presence of Gazetted officer/Magistrate. He served original notices u/s 50 NDPS Act to both the accused persons. The original notices u/s. 50 NDPS Act served upon accused Sanjay @ Babloo is Ex.PW1/B and the notice served on accused Santosh @ Guddo is ExPW1/C. Both the notices reflects the FIR No. 107/16 PS Sultan Puri Page No. 21 of 104 State V. Sanjay @ Babloo and anr.
signature of accused Sanjay and Santosh at point B. Both the accused stated that they did not want to be searched in the presence of Gazette officer/Magistrate. He had recorded the replies of both the accused persons to the notices u/s 50 of the NDPS Act in their respective notices. The reply given by accused Sanjay and by accused Santosh are at point X to X on their respective notices Ex.PW1/B and Ex.PW1/C. He had conducted the search of wearing clothes of Sanjay @ Babloo. One transparent polythene, which was tied with staple pins was recovered from the left side pocket of his wearing pant. This polythene was containing brown (matmaila) colour powder. He has further deposed that he opened the said polythene after removing the staple pins and he checked the powder,which was smelling like smack (heroin). He has further deposed that he was carrying electronic weighing scale in his bag and he took weight of that polythene containing smack and its weight was 122. 50 gms. He has further deposed that he took out two samples of 5 gms each from the recovered smack and same were kept in transparent polythene, which was tied with staple pins. He has further deposed that thereafter, both these samples wrapped with white clothes and were given mark as A1 and A2 and the polythene containing rest of the smack i.e. 112.5 gms was wrapped with white clothes and it was given mark A. He has further deposed that all the three parcels were sealed with the seal of BS and recovered smack were seized vide memo Ex.PW1/D. He has further deposed that on his instructions, SI Anju Dahiya took search of the FIR No. 107/16 PS Sultan Puri Page No. 22 of 104 State V. Sanjay @ Babloo and anr.
clothes of the accused Santosh @Guddo and one transparent polythene containing brown (matmaila) coloured powder was recovered from the bra worn by accused Santosh @ Guddo and SI Anju Dahiya produced the said polythene before him. He has further deposed that this polythene was also tied with staple pins and he opened this polythene and checked the contents, which were smelling like smack (heroin). He has further deposed that he took weight of that polythene containing smack and its weight was 272. 5 grams and he took out two samples of 5 grams each from the recovered smack and same were kept in transparent polythene, which was tied with staple pins. He has further deposed that thereafter, parcels of both these samples with white clothes were prepared and were given mark as B1 and B2 and the polythene containing rest of the smack i.e. 262.5 gms was wrapped with white clothes and it was given mark B. He has further deposed that all the three parcels were sealed with the seal of BS and recovered smack were seized vide memo Ex.PW1/E and he filled the form of FSL. He has further deposed that thereafter he prepared rukka Ex.PW1/F and handed over the seal to Ct. Ashok and he had handed over the rukka, all the six sealed parcel and FSL form to Ct. Ashok and he was sent to PS at about 4.50 pm with the direction to hand over the rukka to Duty officer and to hand over the sealed parcels and FSL form to SHO Insp.Ashok. He has further deposed that he made a request in the rukka itself for sending another IO at the spot for conducting further investigation of this case. He has further deposed that at about 5.10 -
FIR No. 107/16 PS Sultan Puri Page No. 23 of 104State V. Sanjay @ Babloo and anr.
5.15 p.m SI Parmod along with constable Rakesh came at the spot and he produced both the accused, the seizure memo and notice u/s 50 NDPS ACT before S.I Parmod . He has further deposed that in the mean time Ct. Ashok reached at the spot with copy of FIR and original, Rukka, which he handed over to S.I Parmod and S.I Parmod prepared the site plan at his instance and thereafter he was discharged from the investigation of this case. He has further deposed that on the same day he had also prepared a report regarding the seizure of heroin u/s 57 NDPS act is Ex. P5 . He has further deposed that on dated 17/02/16 he took two samples and FSL Forms from MHCM vide R.C No. 82/21/16 and took the same to the FSL and deposited the samples and FSL forms in the FSL and obtained the receipt thereof and thereafter he returned to the PS and handed over the acknowledgment receipt to the MHCM. He has further deposed that during the period the case property remained, in his custody same was not tempered with and he has correctly identified he has corrrectly identified the polythene containing brown (Matmala) colour powder which was recovered from the possession of the accused Sanjay @ Bablu and the Polythene containing brown colour powder that is Smack Ex. P1 and on seeing the polythene containing brown (Matmala ) colour powder as the same which was recovered from the possession of the accused Santosh @ Guddo and polythene containing brown color powder that is Smack is Ex. P2 and on seeing the small polythene containing brown (Matmala) colour powder, he has deposed that it is the sample which FIR No. 107/16 PS Sultan Puri Page No. 24 of 104 State V. Sanjay @ Babloo and anr.
was taken out by him out of the Smack recovered from the possession of the accused Sanjay @ Bablu, the same is Ex. P3 and having three seal impressions is Ex. P4 and on seeing the small polythene containing brown (Matmala) colour powder, he has deposed that it was sample which was taken out by him out of the Smack recovered from the possession of the accused Santosh @ Guddo and polythene containing brown colour powder is Ex. P5 and having three seal impressions is Ex.P6. This witness was cross examined by Ld. Counsel for accused and during his cross examination who has admitted that he did not mention the registration number of the private vehicle in his departure entry no. 43 B is Ex. PW1/A as well as in the rukka. He has denied that he did not mention the registration number of the vehicle number in departure entry as well as in rukka as no vehicle was used at any point of time in any raid and the seal of BS is his personal seal he has not informed any where in the police station that he is using seal of BS not as per as per the initial of his name . He has further deposed that he has been using the seal of BS for last two years . He has denied that the seal of BS does not belong to him and he is using the seal of some other police official without bringing in the knowledge of his seniors officers. He has admitted to be correct that seal is not issued to him from the police station and he got prepared the same on his own. He has further deposed that he has not informed to his seniors regarding the numbers of seal of BS that he has with him. Volunteered. He has only one seal of BS. He has denied that he got FIR No. 107/16 PS Sultan Puri Page No. 25 of 104 State V. Sanjay @ Babloo and anr.
prepared several seals of BS and he used the same to manipulate the case property like in present case. He has further deposed that he recorded refusal of both the accused persons in verbatim on the notice u/s 50 NDPS act and he did not obtained the signatures of accused persons on the Samples Mark A1 , A2 , B1, & B2 as well as on main pulandas Mark A & B. He has further deposed that he did not obtained signatures of accused persons on respective seizure memos. He has further deposed that he did not make any endorsement on the seizure memo regarding their refusal to sign the seizure memos. He has further deposed that he did not mention this fact in the Rukka. He has denied that both the seizure memos were falsely prepared or that none of the accused were present at the time of preparation of these memos or that for this reason neither the signatures of accused persons or their refusal in this regard appearing on the seizure memos. He has further deposed that W/S.I Anju Dahiya came at the spot at about 1.20 P.M. W/SI Anju did not left the spot in his presence. He has further deposed that Ct. Ashok returned back from the police station after the registration of FIR in his presence at the spot and SI Pramod did not prepared any document before arrival of Ct. Ashok from PS after the registration of FIR . He has further deposed that Ct. Ashok came to the spot after 25 minutes after the arrival of SI Ashok on the spot. He has further deposed that SI Parmod and Ct. Rakesh came on spot in a car and he does not know by what means SI Anju came on the spot. Ct. Ashok went to PS for registration of FIR by his car and he returned to the spot FIR No. 107/16 PS Sultan Puri Page No. 26 of 104 State V. Sanjay @ Babloo and anr.
in same car. He has further deposed that only one FSL form was prepared and no carbon or photo copy of the same was prepared by him. He has further deposed that separate FSL forms were prepared for both the recoveries from the both accused persons. He has further deposed that single copy(in original) of two FSL forms were prepared by him and he filled up all the columns of both the FSL forms and he affixed only one seal impression on each FSL forms. He has further deposed that he did not mention about alleged recovered substance from accused Santosh in the FSL form filled up for accused Sanjay @ bablu & vice verca . He has further deposed that the FSL form consist of one page only and it was printed from the both sides and both FSL forms were prepared by him in his own handwriting. He has further deposed that at this stage attention of the witness is drawn towards of photo copy of FSL form lying on judicial record and then witness is further cross examined. He has further deposed that he has seen the copy of FSL form it is the copy of same FSL form filled up by him at the spot on 11.02.2016 and the copy of is Ex. PW 1/DA. He has admitted to be correct that he prepared only one FSL form pertaining to recovery of contraband from the both accused persons and he had left the column that is remark encircled portioned X on the FSL form Ex.PW1/DA as that is filled by the SHO and rest of the columns except the FIR No. on this FSL form were filled up by him. He has further deposed that the secret informer met him at a distance of about 10 15 meters from the Maszid and it was the same direction from where FIR No. 107/16 PS Sultan Puri Page No. 27 of 104 State V. Sanjay @ Babloo and anr.
accused persons came towards the Maszid. He has further deposed that the secret informer had told regarding the directions from which accused persons would come. However he did not inform the approximate time of arrival of accused persons. He has further deposed that the secret informer informed him that accused persons would come from the side of Aggarwal Sweets road and go towards Maszid. He has further deposed that he did not inform any senior police officer regarding the directions, from where, accused persons would come and would go. He has admitted it to be correct that he did not mention about this fact in the rukka and he informed about the directions of arrival of accused persons to the members of raiding party. He has also admitted it to be correct that there are residential houses on the one side of the road and there are few shops on both sides of the road near Maszid. He has also admitted it to be correct that he did not make any effort to call anyone from Maszid, shops and residential houses to become member of the raiding team or even after apprehending the accused persons. He has further admitted it to be correct that he did not prepare any memo regarding handing over or taking back of seal to Ct. Ashok and SI Pramod did not enquire from him, as to the date and time, on which, he took back his seal from Ct. Ashok. He has further deposed that he did not investigate any case under NDPS Act before this case and he did not join any course during his duty in DP pertaining to Narcotics. He has further deposed that he did not make any request for requisition of field testing kit from his senior police officers or from Narcotics Department.
FIR No. 107/16 PS Sultan Puri Page No. 28 of 104State V. Sanjay @ Babloo and anr.
He has deposed that he left the spot at about 05:30 p.m. and he did not know about the distance of house of accused from the spot and he did not remember whether any member of the team was already posted in the division, where house of the accused was situated. He has further deposed that the secret informer had told him about the physical description of accused persons and the secret informer did not tell him the name of area, where accused persons used to reside. He has denied that no notice U/s 50 NDPS Act was served to the accused persons or that accused persons were never informed about their legal rights. He has denied that he wrote refusal of both accused persons of his own or that because of this reason both the refusal are word by word same. He has denied that accused persons were forced to sign different and blank and semi printed documents in the police station or that same were converted into different documents in relation to present case to make out a false case against both the accused persons. He has denied that accused persons were lifted from their house in the early morning on 11.02.2016 in the presence of neighbours or that they were falsely implicated in the present case. He has denied that nothing incriminating was recovered from the possession of the accused persons or that their instance or that both the accused persons are innocent or that they have been falsely implicated in the present case. He has denied that the provisions of NDPS Act have been violated during apprehension of the accused, alleged recovery and investigation or that the alleged recovery of the contraband has been planted upon FIR No. 107/16 PS Sultan Puri Page No. 29 of 104 State V. Sanjay @ Babloo and anr.
the accused persons or that nothing happened in the manner as deposed by him in his examination in chief or that he has deposed falsely. PW 1 is alleged to have received secret information regarding the contrabands and he has deposed in the court that since at the time of receiving of such information that he was on patrolling and he had conveyed the information to the SHO /Inspector Ashok. Ld. Counsel for the accused has submitted that the alleged secret information received by ASI Rishikesh was required to be reduced into writing and the same was also required to be sent to the higher officer as mandated Section 42 of the NDPS Act. Whereas Ld. APP for the State has submitted that since PW 1 ASI Rishikesh was on patrolling duty at the time of receiving of such information, so, he had telephonically informed Inspector Ashok and it may be treated as compliance of section 42 of NDPS Act, but, this court does not find any force in the submissions made by ld. APP for the state as this is mandatory u/s. 42 of the NDPS Act that the information was required reduced into writing and it was also required to be sent to the Higher Officers. Even if ASI Rishikesh was on patrolling duty at the time of receiving of alleged secret information. He could reduced the same into writing and could send the same to the Higher Officers. But testimony of the PW 1 reveals that he has no where mentioned in his testimony that such secret information either reduced into writing or it was sent to the Higher Officer. So, this court of the considered opinion that the provision of section 42 (1) 42 (2) of NDPS Act have not been complied with. PW 1 has alleged that notices u/s. 50 of NDPS Act were FIR No. 107/16 PS Sultan Puri Page No. 30 of 104 State V. Sanjay @ Babloo and anr.
also served to the accused and PW 2 has also deposed that during the personal search of both the accused carbon copies of notices u/s 50 of NDPS Act were recovered. But PW 3 HC Parveen who has been examined as PW 3, has no where mentioned that carbon copies of notices u/s. 50 were ever deposited in the Malkhana. Had the notices been served to both the accused or the carbon copies thereof been delivered to both the accused or that the carbon copies of notices been recovered during their personal search, then, the same could be deposited in the malkhana and MHC(M) could be the best witness to prove the same through his record. But, no cogent evidence has been brought forth on the record to prove that notices were ever recovered during the personal search of both the accused and same were deposited in the malkhana. So the testimony of PW 1 is not fortified or corroborated with the documentary proof that copies of notices were recovered from accused or deposited in the malkhana. So, the service of the notice u/s. 50 becomes doubtful. The PW 1 has deposed that the FSL form were also filled and seal of BS was put thereon. During his crossexamination he has deposed that seal of BS is personal seal and he has not informed in Police Station regarding his seal. PW1 has also deposed during his crossexamination that separate FSL form were prepared for both the recoveries from both the accused and single copy of two FSL form was prepared by him. But, perusal of the copy of FSL Form Ex.PW1/DA reveals that only one FSL Form was filled. PW1, during his crossexamination has deposed that secret informer did not FIR No. 107/16 PS Sultan Puri Page No. 31 of 104 State V. Sanjay @ Babloo and anr.
tell him the area, where the accused used to reside.
19. Whereas, SI Parmod Kumar has been examined as PW2, who has deposed that on 11.02.2016, he was posted as SI in PS Sultan Puri and on that day at 05:05PM., SHO Inspector Ashok Kumar directed him to conduct further investigation of the present case. He has further deposed that he alongwith Ct. Rakesh went to the spot i.e. near Maszid ABlock, Sultan Puri, Delhi where ASI Rishikesh alongwith SI Anju Dahiya met him and he produced both the accused namely Sanjay @ Bablu and Santosh @ Guddo before him ASI Rishikesh informed that smack was recovered from both the accused persons and he produced two seizure memos of smack and two notices U/s 50 NDPS Act. He has further deposed that both the accused persons namely Sanjay @ Bablu and Santosh @ Guddo are present in the court today and he identify them. He has further deposed that he mentioned the FIR number of this case on the seizure memos Ex.PW1/D and Ex.PW1/E as well as on the original notices U/s 50 NDPS Act already exhibited as Ex. PW1/B and Ex. PW1/C. He has further deposed that he interrogated both the accused persons and recorded the statement of SI Anju Dahiya and in the meantime, Ct. Ashok came to the spot with copy of FIR and original rukka and he handed over the same to him. He has further deposed that thereafter, he discharged ASI Rishikesh and Ct. Ashok from the spot and again said, he prepared the site plan Ex. PW2/A at the instance of ASI Rishikesh and thereafter discharged him from the investigation of FIR No. 107/16 PS Sultan Puri Page No. 32 of 104 State V. Sanjay @ Babloo and anr.
this case. He has further deposed that he arrested accused Santosh @ Guddo and Sanjay @ Bablu vide arrest memo Ex. PW2/B and Ex. PW 2/C and he conducted personal search of accused Sanjay @ Bablu vide memo Ex. PW2/D. He has further deposed that the carbon copy of notice U/s 50 NDPS Act was recovered during his personal search and SI Anju Dahiya was instructed to take personal search of accused Santosh@ Guddo. He has further deposed that SI Anju Dahiya produced one copy of notice U/s 50 NDPS Act and informed that same was recovered from the possession of accused Santosh @ Guddo. He has further deposed that he prepared personal search memo of accused Santosh @ Guddo is Ex. PW2/E and the carbon copies of notice U/s 50 NDPS Act recovered from accused Santosh @ Guddo and from accused Sanjay @ Bablu is Ex. PW2/F and Ex. PW2/G. He has further deposed that he recorded the disclosure statements of both the accused persons is Ex. PW2/G and Ex. PW2/H and both the accused persons were taken to SGM Hospital by him Ct. Rakesh and SI Anju Dahiya for conducting their medical examination. He has further deposed that thereafter, both the accused persons were produced before Ld. MM at his residence and the police custody remand of accused Sanjay @ Bablu was taken. He has further deposed that the judicial custody remand of accused Santosh @ Guddo was taken and he alongwith SI Anju Dahiya had taken her to Tihar Jail. He has further deposed that during the police custody remand of accused Sanjay @ Bablu, he was first brought to PS Sultan Puri and produced FIR No. 107/16 PS Sultan Puri Page No. 33 of 104 State V. Sanjay @ Babloo and anr.
before SHO and then he was put in lock up. He has further deposed that he prepared report U/s 57 NDPS Act regarding arrest of both the accused persons is Ex. PW2/I. He has further deposed that on the next day i.e. 12.02.2016, accused Sanjay @ Bablu was taken near Jahangir Puri police station in search of supplier but he could not be traced and on the next day i.e. 13.02.2016, accused Sanjay @ Bablu was again taken near Jahangir Puri police station in search of supplier, but he could not be traced and thereafter, he was produced in the court and he was sent to JC. He has further deposed that on 17.02.2016, I got deposited the two samples alongwith FSL form through ASI Rishikesh at FSL Rohini and during investigation, he recorded the statements of the witnesses, collected the FSL report and thereafter, filed the charge sheet. This witness was cross examined by ld. Counsel for accused. During his cross examination who has deposed that SI Anju Dahiya remained with him till 11:55 p.m. on 11.02.2016 and he had recorded statement of SI Anju Dahiya regarding the fact that she accompanied him to the house of Ld. Duty MM as well as during the medical examination of accused persons and going to Tihar Jail. He has admitted to be correct that it is not mentioned in the statements dated 11.02.2016 and 12.02.2016 under Section 161 Cr.P.C. of SI Anju Dahiya that she accompanied him to the house of Ld. Duty MM as well as during the medical examination of accused persons and going to Tihar Jail. He has denied that the statement dated 12.02.2016 of SI Anju Dahiya was prepared by him. He has admitted to be correct that in the FIR No. 107/16 PS Sultan Puri Page No. 34 of 104 State V. Sanjay @ Babloo and anr.
statement dated 12.02.2016 that SI Anju Dahiya was discharged from the spot itself after the arrest of accused persons. He has further deposed that he did not record the statement of Ct. Rekha during investigation of this case and as he has not visited the house of accused persons, he cannot tell the distance between the spot of apprehension of the accused and their house. He has further deposed that he did not enquire from ASI Rishikesh regarding the date and time, when he obtained his seal from Ct. Ashok. He has further deposed that he alongwith Ct. Rakesh went to the spot by his private car and he did not take any reimbursement regarding the use of his private car for official purpose and he has not mentioned the registration number of his car or any document prepared by him in this case. He has further deposed that Ct. Ashok came at the spot after about 25 minutes of his arrival and no documents was prepared by him before the arrival of Ct. Ashok at the spot. He has further deposed that despite of his asking, both the accused did not sign on their respective disclosure statements. He also did not make any endorsement regarding the same. He has further deposed that ASI Rishikesh did not tell him that secret informer told him regarding the directions from which the accused persons would come at the spot. He has denied that he has not done fair investigation or nothing incriminating was recovered from the possession of the accused persons or that their instance by ASI Rishikesh nor he produced the contraband and the accused before him. He has denied that both the accused persons are innocent and have been falsely implicated in the FIR No. 107/16 PS Sultan Puri Page No. 35 of 104 State V. Sanjay @ Babloo and anr.
present case or that the provisions of NDPS Act have been violated during apprehension of the accused, alleged recovery and investigation. He has denied that the alleged recovery of the contraband has been planted upon the accused persons in order to falsely implicate them. He has denied that nothing happened in the manner as deposed by him in his examination in chief or he is deposing falsely. Thus, the testimony of this witness is found to be contradictory an inconsistent in the testimony of PW 6 has this PW 2 has deposed during his cross examination that Ct. Ashok had come at the spot after about 25 minutes of his arrival at the spot and no document was prepared before arrival of Ct. Ashok at the spot. Whereas crossexamination of PW 6 SI Anju Dahiya is looked into she has deposed therein that SI Pramod had prepared the documents i.e. memo of arrest of both the accused , personal search memo , disclosure statements of both the accused prior to arrival of Ct. Ashok at the spot from the police station and deposed that Inspector Pramod did not prepare any document after arrival of the Ct. Ashok at the spot. During his crossexamination this witness has also deposed that SI Anju Dahiya remained with him on 11:55 pm on dated 11.02.2016 but when he was confronted with the statement of SI Anju Dahiya statements u/s. 161 Cr. P.C. recorded on dated 11.02.02016 she has admitted that it is not mentioned therein . The signatures of both the accused on their alleged disclosure statements are not found nor any endorsement thereon regarding the refusal to sign is made by this second investigating officer SI Pramod and during his FIR No. 107/16 PS Sultan Puri Page No. 36 of 104 State V. Sanjay @ Babloo and anr.
crossexamination this witness has deposed that he did not record the statement of Ct. Rekha who is alleged to have accompanied the accused Santosh @ Guddo to the hospital at the time of her medical examination. It is no where clarified by PW 1 & PW 2 in their statements as to when Ct. Rekha had come. Since, the testimony of this witness is found to be contradictory to the testimony of PW 6 so it does not inspire any confidence.
20. Whereas, HC Parveen has been examined as PW 3 who has deposed that on 11.02.2016 he was posted as MHC(M) at PS Sultan Puri and on that day Inspector Ashok Kumar deposited six sealed parcels sealed with the seal of BS and AK along with FSL form and copy of two seizure memos in the malkhana for which he made entry at serial no. 5454 in the register no.19. He has further deposed that today he has brought register no.19 containing the entry made at serial no. 5454 (original seen and returned) and the copy of the entry made at serial no. 5454 is Ex.PW3/A. And he obtained the signatures of Inspector Ashok in register no. 19 and he identify the signatures of Inspector Ashok at point X in the Ex.PW3/A. He has further deposed that on 17.02.2016 the two samples (Heroin) bearing the seal of BS and AK were handed over to ASI Rishikesh vide RC no.82/21/16 for depositing the same in FSL and he made endorsement in this regard in register no. 19. He has further deposed that after depositing the samples in FSL, ASI Rishikesh handed over the acknowledgement of FIR No. 107/16 PS Sultan Puri Page No. 37 of 104 State V. Sanjay @ Babloo and anr.
receipt to him. He has further deposed that today he has brought register no. 21 containing the original RC no.82/21 and the acknowledgement receipt. (original seen and returned) and the original RC No.82/21 and acknowledgement receipt are Ex.PW3/B and Ex.PW3/C respectively. He has further deposed that on 12.04.2016 Ct. Rakesh handed over the FSL result alongwith the remnants i.e two sealed parcels bearing the seal of FSL, STY in the malkhana. He has further deposed that during the period, the case property remained in his possession same was not tampered. This witness was cross examined by ld. Counsel for accused . During his cross examination he has deposed that the case property was deposited by Inspector Ashok in the malkhana at about 5.30 pm on 11.02.2016 and he went to the room of SHO with register no. 19. He has further deposed that neither ASI Rishikesh nor SI Parmod did not deposit any article with him at malkhana and he remained in the room of SHO for about 20 minutes and made entry at serial no. 5454 in his room. He has further deposed that he does not remember how many FSL forms were deposited and the FSL forms were in open form and were not sealed. He has further deposed that he did not help SHO in sealing the case property and the SHO affixed his seal of AK on the case property in his presence and he remained posted as MHC(M) in PS Sultanpuri from the month of February, 2015 till February, 2016. He has further deposed that he does not remember the date when he was discharged from the duty of MHC(M) in the month of February,2016 and SHO never visited during FIR No. 107/16 PS Sultan Puri Page No. 38 of 104 State V. Sanjay @ Babloo and anr.
his duty period to check the case property of the present case. He has further deposed that he handed over the sample to ASI Rishikesh on the verbal directions of SHO and ASI Rishikesh did not show any document to him at the time of obtaining the samples from him. He has further deposed that he did not obtain signatures of ASI Rishkesh at column no.7 of register no.19 while handing over samples to him. He has denied that no FSL form was deposited or sent to FSL by him or because of this reason same is not mentioned in column no.7 of register no. 19 or in register no. 21 or in column no. 4 of register no.19. He has admitted to be correct that in column no. 4 of register no. 19, it is no where mentioned that FSL form was also deposited along with case property. He has denied that he along with ASI Rishikesh and SI Parmod to tamper with case property or that case property was never deposited by SHO Ashok Kumar or that he manipulated all the entries in register no. 19 and 21 to make out a false case against the accused persons in connivance with ASI Rishikesh, SI Parmod and SHO Ashok Kumar. He has denied that nothing happened in the manner as deposed by him in his examination in chief or he is deposing falsely.
This witness has proved the copy of the register no. 19 Ex. PW 3/A and it is claimed by the prosecution that Ct. Ashok was sent to the police station alongwith the contraband their samples, copy of the seizure memo and FSL Form and the same were deposited in the malkhana by the SHO/Inspector Ashok Kumar after putting his seals thereon . PW 3 also claims that FSL form was also deposited on FIR No. 107/16 PS Sultan Puri Page No. 39 of 104 State V. Sanjay @ Babloo and anr.
11.02.2016 by Inspector Ashok Kumar but the copy of EX. PW 3/A reveals that it is no where categorically mentioned that FSL Form was also deposited in the malkhana on that day. This witness also proved the copy of road certificate Ex. PW 3/B but it is also not mentioned therein that FSL Form was also taken by SI Rishikesh alongwith the parcels for taking the same to the FSL on 17.02.2016 and since these documents do not reveal about the deposit of the FSL form in the malkhana on 11.02.2016 and also of obtaining the FSL Form on dated 17.02.2016 at the time of taking of the parcels of samples of the contraband to the FSL so the oral testimony of PW 1 SI Rishikesh & PW 3 HC Parveen MHC(M) and also Inspector Ashok becomes doubtful and this PW 3 has also deposed during his crossexamination that he does not remember as to how many FSL forms were deposited. No doubt that this witness has denied that no FSL form was deposited and sent to the FSL but as copy of PW 3/A does not reveal about the deposit of the FSL Form in the malkhana so, the oral testimony of PW1, PW3 and PW7 do not inspire any confidence and I am inclined to hold that the prosecution has failed to prove that FSL Form was deposited in the malkhana on dated 11.02.2016 or that it was obtained by SI Rishikesh on dated 17.02.2016. Since the copy of PW 3/A does not reveal about the deposit of the FSL Form.
21. Whereas, Ct. Ashok has been examined as PW 4, who has deposed that on 11.02.2012, he was posted as constable in the PS Sultan Puri and on that day at about 12.20 pm he alongwith ASI FIR No. 107/16 PS Sultan Puri Page No. 40 of 104 State V. Sanjay @ Babloo and anr.
Rishikesh left PS for petrolling duty vide departure entry no.43B Ex.PW1/A . He has further deposed that they started petrolling in a private vehicle in the area of A4 Block, Sultanpuri and at about 12.45 PM, when they were present near Mosque, A 4 Block, Sultanpuri a secret informer met them and informed that one lady namely Guddo and her husband Babloo, who are indulged in the business of supplying the smack would come in the area of A4 Block, Sultanpuri to supply smack and if raided they could be apprehended. He has further deposed that ASI Rishikesh conveyed this information telephonically to SHO/Inspector Ashok at 12.55 PM and he told him that he would talk about this information with the ACP and would give proper instructions to him after some time. He has further deposed that at 1.05PM ASI Rishikesh received a telephonic call of SHO , who directed him to conduct the raid and he informed him that he was sending SI Anju Dahiya at the spot. At about 1.20PM, SI Anju Dahiya right at the spot. He has further deposed that ASI Rishikesh requested 45 passersby to join the raiding party, but, none agreed and without wasting time, ASI Rishikesh formed the raiding party comprising of himself and SI Anju Dahiya. ASI Rishikesh deputed him at a distance of about 20 meters towards the mosque. He has further deposed that SI Anju Dahiya was deputed by ASI Rishkesh at a distance of about 10 metres behind him. He has further deposed that at about 1.50 pm, secret informer told to the ASI Rishikesh that both the accused were coming from the side of Sultan Puri and ASI Rishikesh gave signal to this witness and SI Anju FIR No. 107/16 PS Sultan Puri Page No. 41 of 104 State V. Sanjay @ Babloo and anr.
Dahiya by touching his hairs and after receiving the signal of ASI Rishikesh, both the accused were apprehended by the raiding team and on interrogation, they disclosed their names as Sanjay @ Babloo and Santosh @ Guddo w/o Ghanshyam and also deposed that secret informer had informed their names as Babloo and Guddo w/o Babloo. However, the actual names of the lady accused was disclosed Santosh @ Guddo w/o Ghanshyam and the name of the male accused was Sanjay @ Babloo s/o Mr. Bal Kishan. He has further deposed that ASI Rishikesh gave his introduction and the introduction of his staff to both the accused and informed them that he had information that both of them were having smack in their possession and ASI Rishikesh told them that they can take his search as well as search of his staff and also of their car and ASI Rishikesh also apprised both the accused about their legal rights that if they wanted, then their search could be conducted in the presence of the Gazetted officer/ the Magistrate. He has further deposed that ASI Rishikesh served notices u/s 50 NDPS Act to accused Sanjay @ Babloo is Ex.PW1/B and the notice served to accused Santosh @ Guddo ExPW1/C. He has further deposed that both the accused stated that they did not want to be searched in the presence of the Gazetted Officer/ the Magistrate and ASI Rishikesh recorded their replies and the IO requested 45 passersby to join the proceedings, but, none joined and they left the spot after showing their personal difficulties. He has further deposed that ASI Rishikesh conducted the search of wearing clothes of Sanjay @ Babloo and one FIR No. 107/16 PS Sultan Puri Page No. 42 of 104 State V. Sanjay @ Babloo and anr.
transparent polythene, which was tied with staple pins was recovered from the left side pocket of the pant worn by him. He has further deposed that this polythene was containing brown (matmaila) colour powder and ASI Rishikesh opened the said polythene after removing the staple pins and checked the powder,which was smelling like smack (heroin) and ASI Rishikesh was carrying electronic weighing scale in his bag and ASI Rishikesh took weighed the polythene containing smack. He has further deposed that its weight was 122. 50 grams. ASI Rishikesh took out two samples of 5 grams each from the r smack allegedly recovered from the accused Sanjay @ Babloo , He has further deposed that thereafter, both the samples of smack with remaining smack i.e. 112.5 grams were seized vide memo Ex.PW1/D . He has further deposed that on the instructions of ASI Rishikesh, SI Anju Dahiya took search of the clothes of the accused Santosh @Guddo after taking her by the side of one house and after sometime, she along with accused Santosh @ Guddo returned to the spot and produced one polythene closed with the staple pins and informed that it was recovered from the bra worn by the accused Santosh @ Guddo. He has further deposed that ASI Rishikesh opened the said polythene and checked the contents thereof, which were smelling like smack (heroin) and ASI Rishikesh weighed the polythene containing the smack and its weight was 272.5 grams and took out two samples of 5 grams each from the smack which was recovered from the accused Santosh @ Guddo. He has further deposed that thereafter, both the samples of smack with the FIR No. 107/16 PS Sultan Puri Page No. 43 of 104 State V. Sanjay @ Babloo and anr.
remaining smack 262.5 grams were sealed with the seal of BS and seized vide memo Ex.PW1/E and ASI Rishikesh filled form of FSL and prepared the rukka Ex.PW1/F and ASI Rishikesh handed over the seal to him. He has further deposed that ASI Rishikesh handed over the rukka or six sealed parcels, FSL form and copies of seizure memos to him and he was sent to PS at about 4.50 PM with the direction to hand over the rukka to Duty officer and to hand over the sealed parcels, copies of seizure memos and form of FSL before SHO/Inspector Ashok. He has further deposed that he went to PS by the private santro car of ASI Rishikesh and he reached in the PS at 5.05 PM. He has further deposed that he produced all the six sealed parcels, Form of FSL and copies of seizure memo before the SHO and produced the rukka before the duty officer. He has further deposed that after registration of FIR, he obtained its copy and original rukka from duty officer and left the PS after making DD no. 18A and then came to the spot at about 6.00 PM. He has further deposed that SI Parmod was also present at the spot and he handed over copy of FIR and original rukka to SI Parmod. His statement was recorded by IO and thereafter, he returned to Police Station from the spot. He has further deposed that during the period, the case property remained in his custody, same was not tampered with and on seeing the polythene containing brown (Matmala) colour powder and on seeing the same he has deposed that it was same smack Ex. P1, which was recovered from the possession of the accused Sanjay @ Bablu and on seeing the FIR No. 107/16 PS Sultan Puri Page No. 44 of 104 State V. Sanjay @ Babloo and anr.
polythene containing brown (Matmala) colour powder, he has deposed that it was the same smack Ex. P2which was recovered from the possession of the accused Santosh @ Guddu and on seeing the small polythene containing brown (Matmala) colour powder he has deposed that it was sample Ex. P3 which was taken out by ASI Rishikesh out of the Smack recovered from the possession of the accused Sanjay @ Bablu and deposed that the cloth having three seal impressions Ex.P4 and on seeing the small polythene containing brown (Matmala) colour powder, he has deposed that and it was sample of smack Ex. P5 which was taken out by ASI Rishikesh out of the Smack recovered from the possession of the accused Santosh @ Guddo and the cloth having three seal impressions is Ex.P6. Then, the Addl. PP had sought permission to ask leading questions to the witness regarding the signing of the parcels of the contraband as well as their samples as to whether this witness had witnessed SI Parmod signing on Ex.P1, Ex.P2, Ex.P 4 and Ex.P6 and this witness had replied that he did not remember and when, he was asked as to when did he return from the Police Station after getting the FIR registered,whether the case property was still lying at the spot and this witness had replied that the case property was not lying at the spot, when, he returned from the Police Station. This witness was cross examined by ld. Counsel for accused. During his cross examination he has deposed that the registration number of Santro car of ASI Rishikesh was DL4C 1165 and the secret informer told them that accused persons would come from the side of Aggarwal FIR No. 107/16 PS Sultan Puri Page No. 45 of 104 State V. Sanjay @ Babloo and anr.
sweets and go towards mosque. He has further deposed that the secret informer told them that accused persons were about to come. He has further deposed that he did not tell the the exact time when accused persons would come and he was not posted in the beat, where mosque was situated. He has further deposed that the secret informer told them that age of the woman is about 50 years and the age of man is about 45 years and the secret informer also told them that accused persons resides near the mosque and the Santro car was parked in front of mosque and there are shops besides the main gate of mosque and shops are also on the opposite side of the mosque. He has admitted it to be correct that there are houses on the opposite side of mosque and the search of accused Santosh @ Guddu was taken near a house, which was on the opposite side of the mosque and towards the right side of the mosque. He has further deposed that the police team did not go inside the mosque to call any independent person to join in the investigation and only some passersby outside the mosque were requested, who had declined to join the investigation. He has admitted it to be correct that no legal action was taken by the IO against any of the public persons, who had declined to join the investigation. He has further deposed that he had driven the santro car from the spot to the PS and he had gone alone and when he returned from the PS to the spot, besides both the accused persons, ASI Rishikesh, SI Parmod, SI Anju Dahiya and one constable whose name he did not remember was present. He has further deposed that after his return from the PS to the FIR No. 107/16 PS Sultan Puri Page No. 46 of 104 State V. Sanjay @ Babloo and anr.
spot and he remained there for about 12 minutes. He did not know whether or not any police vehicle or private vehicle of any police official were parked at the spot, when, he had reached there after getting the FIR registered. He has further deposed that when they were waiting for the accused to come to the spot and he was standing near the mosque towards the left side, which leads to AB extension, Sultan Puri and it was ahead of the street / gali which leads to A block Sultan Puri. He has further deposed that SI Anju Dahiya was standing on the right side of the mosque, which leads to Aggarwal sweets and there were some shops near the place, where SI Anju Dahiya was standing. He has further deposed that the weighing scale was electronic and he did remember from where, the electric connection was taken to operate the electronic weighing machine. He has further deposed that the contraband was weighed in front of a nearby shop by keeping the electronic weighing scale on a table and the table was lying at the spot and it was used by the IO. He has further deposed that the shop, where the contraband was weighed was located near the spot, where SI Anju Dahiya was standing and it was near the mosque. On seeing the photograph Ex.PW4/DA, he has further deposed that it is the same of the mosque of Sultan Puri and the accused persons had been apprehended from the said mosque shown at point A. On seeing the photograph Mark DX1 he said that he cannot identify whether or not photograph was taken of the area which comes within the jurisdiction of PS Sultan Puri. After seeing the photograph Ex.PW4/DB, he said that FIR No. 107/16 PS Sultan Puri Page No. 47 of 104 State V. Sanjay @ Babloo and anr.
the same is of the park which is near the mosque of Sultan Puri. He has further deposed that the seal given to him by ASI Rishikesh after sealing the case property was returned to him on the same evening at about 9.0010.00 pm, when he came to the PS and he did not remember whether or not any document of handing over of the seal by ASI Rishikesh to him was prepared and he did not remember whether or not any document of return of the seal by him to ASI Rishikesh was prepared. He has further deposed that he does not remember whether or not SI Parmod had made any inquiry from him regarding the handing over of seal by ASI Rishikesh to him and then returning of the same to him. He has further deposed that when, he had taken the seal pullandas, original tehrir etc. from the spot to the PS, the seal of ASI Rishikesh was with him. He has further deposed that he had signed on the seizure memos of the contraband Ex. PW1/D and Ex. PW1/E and he did not remember, who had signed on the same and both the accused persons had also signed on the seizure memos. He did not remember whether or not accused persons had put their signatures on the pullandas prepared by ASI Rishikesh. He has further deposed that ASI Rishikesh had first weighed the empty polythenes and then put the samples of Heroin in them and weighed them again. He has further deposed that the samples were taken out from the polythenes containing the contraband by tilting the same and some of the contraband was kept into empty polythenes which was converted into samples and then into pullandas. He has further deposed that ASI FIR No. 107/16 PS Sultan Puri Page No. 48 of 104 State V. Sanjay @ Babloo and anr.
Rishikesh had drawn the samples and prepared the pullandas, while he was standing next to the accused. He has further deposed that ASI Rishikesh had filled two FSL forms at the spot and one carbon copy of each of the FSL forms was also prepared and the signatures of both the accused persons were taken on the FSL forms after reading and explaining the same to them and he had also signed on the FSL forms. He has admitted it to be correct that the office of Mr. Kamruddin is located near the spot of apprehension of both the accused persons. He has denied that as accused Santosh @ Guddu has slapped to the son of Mr. Kamruddin and accused Sanjay @ Babloo had abused the son of Mr. Kamruddin as he was demanding protection money, both the accused were falsely implicated in the present case. He has denied that Mr. Kamruddin was a secret informer of the police. He is admitted to be correct that Mr. Kamruddin has been expired. He has denied that he had tampered with the alleged recovered contraband, as the seal was with him or that the contrabands have been planted upon both the accused persons and the actual culprits had been let off. He has denied that both the accused persons were never apprehended at the spot. He has denied that all the documents have been fabricated and manipulated to falsely implicate the accused persons in the present case. He has denied that no independent person has been associated as a witness in the investigation, as no such incident as alleged had ever occurred. He has denied that the accused persons were forced to sign on the blank papers, which were converted into documents, so, as FIR No. 107/16 PS Sultan Puri Page No. 49 of 104 State V. Sanjay @ Babloo and anr.
to make out the false case against them or he has deposed falsely. This PW 4 is also the alleged witness to the recovery of the contraband from the accused Sanjay @ Babloo and this witness, during his cross examination has deposed that accused Santosh @ Guddo was taken near a house, which was on the opposite side of mosque. Where, the accused Santosh @ Guddo is alleged to have been searched by SI Anju Dahiya. Whereas, SI Anju Dahiya has deposed during her cross examination that she has conducted the search of the accused Santosh @ Guddo under the shed of a shop behind the counter out side the said shop and hight of the said counter behind which the accused was personally searched by her was about 3 feet and shop was also opened and the said shop was situated adjacent to the main gate of mosque and she has also deposed that accused Santosh @ Guddo was never taken opposite the mosque for her search, thus, there are material contradiction in the testimonies of this PW 4 and PW 6 regarding the place of alleged search of the accused Santosh @ Guddo. During his crossexamination, this witness has also deposed that the contraband was weighed in front of a shop, but, the IO has failed to make effort for joining of the public witness even from the said shop. This witness has also deposed that the seal was given to him by ASI Rishikesh after sealing the case property at the same time, he has also deposed that on the same evening at 9:0010:00 PM, he had handed over the same seal to ASI Rishikesh. Since the sealed parcels and the seal of BS of ASI Rishikesh was also handed over to Ct. Ashok PW 4 and the same seal FIR No. 107/16 PS Sultan Puri Page No. 50 of 104 State V. Sanjay @ Babloo and anr.
was also returned by the PW 4 to PW 1 Rishikesh on the same evening and admittedly on dated 17.02.2016, the Rishikesh is alleged to have taken the parcels from the malkhana for depositing the same in the FSL, so the possibility of tempering with the parcels/case property cannot be ruled out. This PW 4 has also deposed during his crossexamination that two FSL Forms were filled at the spot by ASI Rishikesh and one carbon copy of each form was also prepared and signatures of both the accused were also taken on FSL Form. But, the perusal of the copy of FSL Form EX.PW1/DA reveals that only one FSL Form was filled wherein both the contrabands (alleged to have been) recovered from both the accused are mentioned. This witness has admitted that the office of Kamruddin is also situated near the spot of the alleged apprehension of both the accused. No doubt he has denied that Kamruddin was secret informer of the police or that accused Santosh @ Guddo had slapped to the son of Kamruddin and accused Sanjay had also accused to the son of Kamruddin, as, he was demanding money from them or that they have been falsely implicated . But as the testimony of this witness is also found to be contradictory to the testimony of other prosecution witnesses so the testimony of this witness is also appears to be suspicious, so the same does not inspire any confidence.
22. Whereas, Ct. Rakesh has been examined as PW 5, who has deposed that on 11.02.2016, he was posted as constable in PS Sultan Puri and on that day, he joined the investigation of this case with SI FIR No. 107/16 PS Sultan Puri Page No. 51 of 104 State V. Sanjay @ Babloo and anr.
Pramod and on that day, at about 5.00 p.m, he along with IO SI Pramod went to the spot i.e near Mosque A4 Block Sultanpuri. Where, ASI Rishikesh and SI Anju Dahiya met them. He has further deposed that IO SI Pramod Kumar made enquiries from SI Anju Dahiya and recorded her statement and ASI Rishikesh produced two accused namely Sajay @ Bablu and Santosh @ Guddu before SI Pramod. He has further deposed that IO SI Pramod interrogated both the accused and arrested them vide memos of arrest Ex.PW2/B and Ex.PW2/C and SI Pramod conducted the personal search of accused Sanjay @ Babloo from which, the copy of notice under Section 50 NDPS Act was recovered. He has further deposed that the personal search memo of accused Sanjay @ Babloo was prepared by IO, which is Ex.PW2/D. He has proved the copy of notice under Section 50 NDPS Act in the name of accused Sanjay @ Babloo Ex.PW2/G and further deposed that this is the same copy of notice which was recovered from the personal search of accused Sanjay @ Babloo. He has correctly identified accused Sanjay @ Babloo in the court and further deposed that SI Anju Dahiya took the personal search of the accused Santosh @ Guddo and she informed that one copy of notice under Section 50 NDPS Act was recovered. He has further deposed that the personal search memo of accused Santosh @ Guddo Ex. PW2/E was prepared by SI Pramod and proved the copy of notice under Section 50 NDPS Act in the name of accused Santosh @ Guddo is Ex.PW2/F. He has further deposed that thereafter, both the accused persons were taken to SGM Hospital and FIR No. 107/16 PS Sultan Puri Page No. 52 of 104 State V. Sanjay @ Babloo and anr.
IO got conducted the medical examination of both the accused persons. He has further deposed that then, both the accused persons were produced before Ld. Duty MM at his residence and IO took two days PC remand of accused Sanjay. Whereas, accused Santosh @ Guddo was sent in Judicial Custody. He has further deposed that accused Sanjay was produced before the SHO by IO and then he was sent to Lock up. This witness was cross examined by ld. Counsel for the accused . During his cross examination, who has deposed that he along with SI Pramod reached at the spot at about 5.10 p.m. by the car of SI Pramod and the car was parked by SI Parmod in front of mosque. He has further deposed that he did not notice, if the vehicle of any other police official was also parked near mosque and during the period, he remained present at the spot, no police official came at the spot and no police official left the spot. At that time ASI Rishikesh and SI Anju Dahiya were already present there, when they reached at the spot. He has further deposed that he finally left the spot along with SI Anju Dahiya, SI Pramod and both the accused persons after about one and half hours. He did not remember at what time ASI Rishikesh left the spot and he cannot say whether ASI Rishikesh left the spot 15 minutes, 30 minutes or one hour before they left the spot. He did not remember vide which mode of transport ASI Rishikesh left the spot and he did not remember what was the first document prepared by SI Pramod after arriving at the spot. He has further deposed that only arrest memo and personal search memo were prepared by SI Pramod in his presence FIR No. 107/16 PS Sultan Puri Page No. 53 of 104 State V. Sanjay @ Babloo and anr.
and he is not aware what other documents were prepared by SI Pramod after his reaching at the spot. Photocopies of notices under Section 50 NDPS Act were recovered from the personal search of both the accused persons and when, he along with SI Pramod reached at the spot, ASI Rishikesh, SI Anju Dahiya and accused person was found standing on the right side of the mosque near shops. He has further deposed that the writing work was done by SI Pramod, while sitting at the corner of the street near mosque. He has further deposed that IO SI Pramod might have done the writing work while sitting on a chair. He has admitted it to be correct that there are shops on both the sides of mosque, as well as, in front of the mosque and there is a tea shop in front of mosque and a general store on the right side of the main gate of the mosque and they left the spot finally at 6.30 p.m. He has further deposed that the house of the accused persons is situated within the distance 100 - 200 meters from the mosque and he knew about the house of the accused persons, as he was posted in the same beat and he knew them before the present case also. He has further deposed that he was posted in the same beat prior to 11.02.2016 and he did not inform SI Pramod and ASI Rishikesh that he knew both the accused persons and he also knew their residential address. He has further deposed that while he was on the spot, Sachin, son of accused Santosh came on the spot at about 5.305.45 p.m and he remained at the spot till 6.30 p.m. He has admitted it to be correct that many persons gathered at the spot and all the shops situated near the spot were opened at that FIR No. 107/16 PS Sultan Puri Page No. 54 of 104 State V. Sanjay @ Babloo and anr.
time and after leaving the spot, IO took the accused persons for their medical examination and he also produced them before Ld. Duty MM. He did not remember, the name of Ld. Duty MM and at that time, SI Anju Dahiya was also accompanying them and he did not remember as to whether or not any other police official was also accompanying him, SI Anju and SI Pramod. He did not remember whether there was any other lady police member alongwith SI Anju. He had denied that he never joined the investigation of the present case or that because of this reason, he was not in a position to tell whether there were any other police officials with them or not when they took accused persons for medical examination or for producing them before the Ld. Duty MM. He has denied that he never visited the spot along with SI Pramod or that he signed all the documents, while sitting at the police station at the instance of SI Pramod and ASI Rishikesh to make a false case against the accused. He has denied that nothing happened in a manner as deposed by him in his examination in chief. He has denied that no notices under Section 50 NDPS Act were recovered from the personal search of accused persons or that he has deposed falsely. The testimony of this witness is also found to be inconsistent to the testimony of PW 6 Anju Dahiya and PW 1 SI Rishikesh as during his crossexamination, this witness has deposed that during the period he remained at the spot no police official came at the spot and no police official left the spot. Whereas PW 1 Rishikesh has deposed that he left the spot after coming of SI Parmod and PW 6 in her statement under FIR No. 107/16 PS Sultan Puri Page No. 55 of 104 State V. Sanjay @ Babloo and anr.
Section 161 of CrPC has stated that she was discharged. This witness has also alleged that photocopies of notices u/s. 50 were recovered from both the accused, during their personal search, but, had the notices been found in personal search of these accused the same could be deposited in the malkhana, but PW 3 has no where mentioned that notices were also deposited in the malkhana. So, in the absence of any documentary proof, it appears to be doubtful that notices were ever served or copies thereof were ever recovered during their personal search. So, the service of the notice u/s. 50 of the NDPS Act becomes doubtful. This witness has also deposed that SI Anju Dahiya had also accompanied them to the Duty MM when accused were taken before the Duty MM. But, the testimony of this witness is found to be contradictory suspicious and his presence at the spot is doubted.
23. Whereas, SI Anju Dahiya has been examined as PW 6, who has deposed that on 11.02.2016, she was posted as SI in the PS Sultan Puri and on that day at about 1.10 p.m, SHO Inspector Ashok Kumar directed her to join the raiding team of ASI Rishikesh. She has further deposed that she left the PS in between 1.10 p.m to 1.15 p.m. for the spot i.e near mosque, A4 block, Sultan Puri. ASI Rishikesh and Ct. Ashok met her at the spot. She has further deposed that ASI Rishikesh apprised her about the secret information i.e bringing of Smack by some persons and ASI Rishikesh asked some public persons to join the raiding team, but none joined and they left the spot without disclosing FIR No. 107/16 PS Sultan Puri Page No. 56 of 104 State V. Sanjay @ Babloo and anr.
their identities. She has further deposed that ASI Rishikesh took his position in front of mosque and On his direction, she took her position about 10 meters behind of ASI Rishikesh and Ct. Ashok took his position about 20 meters ahead of ASI Rishikesh. She has further deposed that the secret informer was standing with ASI Rishikesh and at about 1.50 p.m, ASI Rishikesh gave signal to her to remain alert as one male and one female were seen coming towards mosque. She has further deposed that when those two persons reached near the place, where ASI Rishikesh was standing, all three police officials surrounded both the persons and on interrogation, they disclosed their names as Santosh @ Guddo and Sanjay. This witness has correctly identified to the accused Sanjay as on that day accused Santosh @ Guddo was not produced who was in Judicial Custody and the Ld. Counsel for the accused had stated that he was not disputing the identity of accused Santosh @ Guddo, who was not produced in the court on that day from JC. She has further deposed that ASI Rishikesh gave introduction of himself, as well as, the members of raiding team to both the accused persons and the informer had already left the spot after pointing out towards both the accused persons. She has further deposed that ASI Rishikesh told both the accused persons that they were having information that both of them were carrying smack, so, they had to take their search. She has further deposed that ASI Rishikesh further told both the accused persons that if they wanted they could take the search of the members of raiding team and ASI Rishikesh informed both the FIR No. 107/16 PS Sultan Puri Page No. 57 of 104 State V. Sanjay @ Babloo and anr.
accused persons, about their legal right that if they wanted, then, they could be searched before the Gazetted officer/ the Magistrate. She has further deposed that IO SI Rishikesh prepared two notices under Section 50 of NDPS Act and he served one notice to accused Sanjay another notice to accused Santosh @ Guddu. She has further deposed that two original notices under Section 50 of NDPS Act are Ex.PW1/B and Ex.PW1/C and both the accused refused to be searched before any Gazetted officer/Magistrates and their refusal were written by IO on their respective notices under Section 50 of NDPS Act. She has further deposed that ASI Rishikesh conducted search of accused Sanjay and one polythene containing brown (Matmela) color powder was recovered from the front side left pocket of pant worn by accused Sanjay. She has further deposed that this polythene was folded and then stapled and ASI Rishikesh opened the polythene by removing the pins and then took its smell. He has further deposed that thereafter, he informed that this powder was smack (Heroin) and ASI Rishikesh weighed the recovered packet containing smack with the help of electronic weighing machine. She has further deposed that its weight was 122.5 grams and IO took two samples of 5 grams each from the recovered smack and these samples were put in the small polythene and tied with rubber band and IO prepared parcels of clothes these samples and gave Mark A1 and A2 to these samples and the polythene containing remaining contraband was also wrapped with white cloth and IO gave mark A to this parcel. She has further deposed that on the directions of the IO, She took FIR No. 107/16 PS Sultan Puri Page No. 58 of 104 State V. Sanjay @ Babloo and anr.
accused Santosh @ Guddo at the shed near the shops and She took her search. He has further deposed that one polythene containing brown color (Matmela) was recovered from the inner wear of accused Santosh @ Guddo and she took accused Santosh and the recovered polythene containing brown color powder before ASI Rishikesh and informed him that the said polythene was recovered from the possession of accused Santosh. She has further deposed that this polythene was folded and then stapled and ASI Rishikesh opened the polythene by removing the pins and then took its smell and thereafter, he informed that this powder was smack (Heroin). She has further deposed that ASI Rishikesh weighed the recovered packet containing smack with the help of electronic weighing machine and its weight was 272.5 grams. She has further deposed that IO took two samples of 5 grams each from the recovered smack and these samples were put in the small polythene and tied with rubber band. He has further deposed that IO prepared parcels of clothes of these samples and gave Mark B1 and B2 to these samples and the polythene containing remaining contraband was also wrapped with white cloth and IO gave mark B to this parcel. She has further deposed that all the six parcels were sealed by the IO with the seal of BS and the contraband of parcel A and the samples Mark A1 and A2 recovered from accused Sanjay were taken into possession by the IO vide seizure memo Ex.PW1/D and the parcels Marked as Mark B, B1 and B2 (recovered from accused Santosh @ Guddo) were also seized vide seizure memo Ex.PW1/E and the FSL FIR No. 107/16 PS Sultan Puri Page No. 59 of 104 State V. Sanjay @ Babloo and anr.
form was also filled up by the IO and they also affixed the seal of BS on the FSL form. She has further deposed that the seal of BS was handed over to Ct. Ashok by the IO and then ASI Rishikesh prepared rukka and he handed over rukka, all the six sealed parcels, FSL Form and copy of seizure memos to Ct. Ashok and sent him to PS with the direction to produce the rukka before Duty Officer and the case properties Form of FSL form and copies of seizure memo before SHO. She has further deposed that after sometime, SI Pramod and Ct. Rakesh came to the spot and the further investigation was taken up by SI Pramod and ASI Rishikesh produced both the accused persons and documents before SI Pramod and informed him about the recovery of smack from both the accused persons. She has further deposed that SI Pramod prepared the site plan at the instance of ASI Rishikesh and Ct. Ashok returned to the spot with copy of FIR and original rukka. She has further deposed that he had handed over the copy of FIR and original rukka to SI Pramod and then, SI Pramod recorded her statement and he also recorded the statement of Ct. Ashok and SI Pramod interrogated both the accused persons and arrested them vide arrest memos Ex.PW2/B and Ex.PW2/C and SI Pramod took personal search of accused Sanjay and one carbon copy of notice under Section 50 of NDPS Act was recovered from him. He has further deposed that the copy of notice under Section 50 NDPS Act is Ex.PW2/G and the personal search memo was prepared by SI Pramod is Ex PW2/D and on the direction of IO SI Pramod, he took personal search of accused Santosh @ Guddo and FIR No. 107/16 PS Sultan Puri Page No. 60 of 104 State V. Sanjay @ Babloo and anr.
one carbon copy of notice under Section 50 NDPS Act was recovered from her possession. She has further deposed that the copy of notice under Section 50 NDPS Act is Ex.PW2/F and the personal search memo was prepared by SI Pramod which is Ex. PW2/E and SI Pramod interrogated both the accused persons and recorded their separate disclosure statements which are Ex.PW2/G1 and Ex.PW2/H and then, both the accused persons were taken to SGM hospital for their medical examination and IO also called one lady constable Rekha from PS and then custody of accused Santosh @ Guddo was given to her. She has further deposed that both the accused were produced before Ld. Duty MM at his residence and IO obtained two days PC remand of accused Sanjay and accused Santosh was ordered to be sent in JC and thereafter, they along with accused Sanjay came to PS. She has correctly identified the case properties Ex. P1, P2, P3, P4, P5 and P6. This witness was cross examined by ld. Counsel for accused and during her cross examination she has deposed that she was present in the PS on 11.02.2016 since morning i.e. 9.0010.00 am and she did not make any entry regarding her arrival in PS in the morning at 9.00 am to 10.00am. She did not make any separate DD entry regarding her arrival in PS after the investigation of the present case. SI Parmod recorded her statement twice and he had read over her those statements dated 11.02.2016 and 12.02.2016, after recording of the same by SI Parmod. She has further deposed that her statement dated 12.02.2016 was recorded by SI Parmod in the evening of 12.02.2016. She has admitted FIR No. 107/16 PS Sultan Puri Page No. 61 of 104 State V. Sanjay @ Babloo and anr.
it to be correct that in her statements dated 11.02.2016 and 12.02.2016, it is not mentioned that accused persons were taken for medical examination in the SGM Hospital or that Ct. Rekha was called at SGM Hospital by SI Parmod or that the accused persons were produced before Ld. Duty MM in her presence. She has also admitted it to be correct that in her statement dated 11.02.2016 and 12.02.2016, it is mentioned that she was discharged from the investigation, from the spot itself. She has denied that she did not accompany accused persons to SGM Hospital along with SI Parmod at any point of time or that Ct. Rekha was not called in her presence or that accused persons were never produced before Ld. Duty MM in her presence. She has also denied that she never joined the investigation of the present case or that she simply signed all the documents, while sitting in the PS to make a false case against the accused persons at the instance of ASI Rishikesh and SI Parmod. She has denied that she was not present in the PS or that because of this reasons there is no DD entry regarding her joining of duty in the morning on 11.02.2016. She has further deposed that on notices u/s 50 NDPS Act Ex.PW1/B and Ex.PW1/C ASI Rishikesh had obtained signatures of accused Sanjay and Santosh before obtaining her signatures on the original notices and IO ASI Rishkesh signed both the notices after obtaining her signatures, as well as signature of Ct. Ashok Kumar on the original notices. She has further deposed that carbon copies of both the notices were given to both the accused persons and that ASI Rishikesh did not obtain her signature FIR No. 107/16 PS Sultan Puri Page No. 62 of 104 State V. Sanjay @ Babloo and anr.
separately on carbon copies of the notices. She has further deposed that before service of notices u/s 50 NDPS Act to the accused persons, public persons were requested to join the investigation, but none joined. She has further deposed that as it was a thorough fare and many public persons were coming there, out of those persons IO requested to join the investigation. She has further deposed that IO did not give any notice to them and IO did not note down their names and addresses. She has admitted it to be correct that there were shops on both the sides of the main door of the Maszid and on the opposite side of the Maszid, there were shops on the ground floor and residential houses were also built above those shops and the shops were opened and before visiting the spot on 11.02.2016, she had never visited the spot before it. She has further deposed that she reached at the spot on her scooty after asking about the address on his way to the spot and she had not mentioned registration number of her scooty in her departure entry 45B. She has further deposed that the distance between the spot and the PS was of about 2.5 to 3 km and she reached at the spot within 10 minutes after enquiring about the spot. She has further deposed that when she reached at the spot, she met with ASI Rishikesh in front of the Mosque and IO did not tell her whether accused persons would come after one hour, two hour or three hours and IO did not tell them about the physical description of the accused persons except their ages. She has further deposed that IO did not tell her regarding the direction, from which accused persons would come. IO did not tell her regarding the FIR No. 107/16 PS Sultan Puri Page No. 63 of 104 State V. Sanjay @ Babloo and anr.
mode, vide which, accused persons would come at the spot. She has further deposed that IO did not tell her whether accused persons were resident of that area or resident of some other place. She has further deposed that none of the member of the raiding team, as well as, the police official, who came on the spot later on, told in her presence that they were aware about the residential address of the accused persons. She has further deposed that both the notices were served one by one but she did not remember to whom notice u/s 50 NDPS Act was served firstly. Reply on both the notices were recorded by IO in verbatim in the language of the accused and he did not write reply of his own and again said reply was written in Hindi and IO made understand to the accused persons that Gazetted officer are like SDM and other officers and no other example was given or explained. She has denied that accused persons were never given any option to be searched before any Ld. MM or any Gazetted Officer or that their signatures were obtained forcefully on blank papers or that same were later on converted into notices u/s 50 of NDPS Act to make out a false case against the accused persons. She has denied that She signed notices u/s 50 of NDPS Act, while sitting at the PS or that no notices were served on the accused persons at the spot. She has further deposed that the accused person were apprehended, when they walked past her and reached near ASI Rishikesh and there were shops in the opposite side, where she was standing in site plan Ex.PW2/A. She has further deposed that accused Santosh was searched under a shed in the FIR No. 107/16 PS Sultan Puri Page No. 64 of 104 State V. Sanjay @ Babloo and anr.
direction, where they took position and the search of accused Santosh was never taken in any house or shop situated on the opposite of mosque. She has further deposed that the search of the accused Santosh was done under the shed of a shop and behind the counters and at that counter was outside the shop. She has also deposed that height of the said counter, behind which, the accused Santosh was personally searched was about 3 feet, and that shop was opened, that shop was situated adjacent to the main gate of the mosque. She has further deposed that the shop was in the west side of the main gate of the mosque and she did not remember regarding the name of the shop or about the type of the shop. She has further deposed that the search was taken outside that shop and even personal search of the accused Santosh was done at same place in the same manner and the seizure memos Ex.PW1/D and Ex.PW1/E were signed by her, Ct. Ashok, IO and accused and again said she did not remember whether the same were signed by accused or not and she did not remember that the accused persons had signed their disclosure statements or not. She has further deposed that he left the spot finally at 6.30 pm along with SI Parmod in a car and ASI Rishikesh had left the spot before they left the spot. He has further deposed that he does not remember the exact time of leaving the spot by ASI Rishikesh. She failed to tell tell the exact time of arrival of Ct. Ashok at the spot from PS after registration of FIR. She has further deposed that SI Parmod had prepared the documents i.e. memos of arrest of both the accused, personal search memos, FIR No. 107/16 PS Sultan Puri Page No. 65 of 104 State V. Sanjay @ Babloo and anr.
disclosure statements of both the accused persons prior to the arrival of Ct. Ashok at the spot from PS. She did not know, vide which, mode Ct. Ashok had arrived at the spot and he did not remember which documents were prepared by SI Parmod, after arrival of Ct. Ashok, at the spot. She has admitted it to be correct that SI Parmod did not prepare any document, after arrival of Ct. Ashok, at the spot and ASI Rishikesh had told her after smelling the contrabands that the same were Smack. She has further deposed that he did not smell or check the contrabands whether the same were Smack or not and she can tell after seeing any article whether the same is Smack or not. She has further deposed that she has not obtained any training regarding the Narcotic Drugs and she can not tell after smelling, whether the any contraband is Smack or not. She has further deposed that the weight of the sample was done after putting the sample of the contrabands therein and thus the weight of the sample 5gms is including the weight of the polythene. She has further deposed that IO was carrying weighing machine with him, on which the contrabands and samples were weighed and the samples and contrabands were weighed outside the shops, which are situated adjoining to the main gate of the mosque and the weighing machine was electronic and plug thereof was inserted in a shop. She has further deposed that she did not know regarding the name or type of the shop, from where, the connection of electricity for weighing the contrabands was taken and the work of writing was also done outside the said shop and she remained stand outside the said FIR No. 107/16 PS Sultan Puri Page No. 66 of 104 State V. Sanjay @ Babloo and anr.
shop along with the accused. She has denied that she was not in a position to tell the name and type of the shop, from where, the electricity connection for weighing the contrabands was taken, for the reason that she has never joined the investigation in the present case or that no such proceedings were ever done in her presence or that she had signed all the documents in the PS. She has further deposed that seizure memo was prepared before the preparation of FSL form and the FSL form consisted of three pages and he can not tell whether all the three pages of FSL form were printed from both sides or from one side. He has further deposed that he can not tell who signed the FSL form and she did not sign the FSL form and she can not tell the number of the FSL form, which were filled. He has further deposed that she can not tell whether separate FSL form for each alleged recovery was prepared or single FSL form was prepared in the present case for the alleged recovery. She has denied that she has intentionally given an evasive reply regarding the number of FSL form, as no FSL form was prepared in her presence and the pullandas/parcels of the case property and sample were prepared by IO ASI Rishikesh himself and no other police official helped him in this process. Same is her reply regarding the weighing of the contrabands. She has further deposed that at this stage, the witness has shown the four photographs already on the judicial record are Ex.PW4/DA, Ex.PW4/DB, Mark DX1 and DX2, on seeing these photographs she has stated that she can not say that whether these four photographs are of place of alleged occurrence or FIR No. 107/16 PS Sultan Puri Page No. 67 of 104 State V. Sanjay @ Babloo and anr.
not. She has further deposed that she is still posted in the same PS. She has denied that he is not able to identify the spot in the photographs as she has never visited the spot or that nothing happened in the manner as deposed by her in her examination in chief. She has denied that he was never sent by SHO on 11.02.2016 on the spot or that no contraband was recovered from the possession of the accused persons or the contrabands were planted on the accused persons by ASI Rishikesh in connivance with SI Parmod and SHO to falsely implicate the accused persons in the present case. She has denied that accused persons were lifted from their house in the morning of 11.02.2016 at about 6.30 am in the presence of neighbours and family's members of the accused persons or that later on they were falsely implicated in the present case. He has denied that as accused Santosh @ Guddo had slapped the son of Mr. Kamruddin, who was secret informer of police and accused Sanjay@ Bablu had abused the sons of Mr. Kamruddin, as they were demanding Rangdaari from the accused persons or that at the instance of sons of Kamruddin. She has further deposed that she did not know whether Taufiq and Nawab are the sons of Kamruddin and they are secret informers of the police or not. She has denied that she has deposed falsely at the instance of IO to falsely implicate the accused persons or he is identifying the accused and case property at the instance of the IO. This witness is alleged to have recovered the contraband from the bra of the accused Santosh @ Guddo in her search, if the testimony of this witness is looked into, this FIR No. 107/16 PS Sultan Puri Page No. 68 of 104 State V. Sanjay @ Babloo and anr.
witness has alleged that she had conducted the search of accused Santosh @ Guddo in front of a shop near mosque, behind the counter of a shop, height of which was 3 feet and she has also admitted during her crossexamination that the shop was also opened at the time of alleged search whereas, PW4 Ct. Ashok has alleged that the search of this accused Santosh @ Guddo was conducted opposite the mosque near a house. Thus, there are material contradictions in the testimonies of PW 4 & PW 6. It is worthwhile to mention here that this PW 6 has failed to identify the photographs of the alleged place of occurrence, when, the same were shown to her by the Ld. Counsel for the accused. Whereas PW4 , Ct. Ashok identified two photographs, since, this witness has failed to identify the photographs of the alleged place of occurrence so her presence at the spot appears to be doubtful. The testimony of this witness also appears to be self contradictory, as in her statement recorded u/s. 161 of Cr.PC, she had stated that she was discharged at the spot after arrival of Second IO.SI Pramod. But, at the time of her examination in the court she has deposed that she had left the spot alongwith SI Pramod. This witness has nowhere stated in her statements recorded u/s. 161 of Cr PC, Ct. Rekha was called upon, whereas at the time of her crossexamination she has deposed that Ct. Rekha was also called upon and if this prosecution witness had left the spot after coming of second IO, then how could she tell about the proceedings regarding the medical examination of the accused and production of these accused before the Duty Magistrate and thus, the FIR No. 107/16 PS Sultan Puri Page No. 69 of 104 State V. Sanjay @ Babloo and anr.
testimony of this witness is also improved and embellished. This witness has also during her crossexamination that carbon copies of these notices u/s. 50 were also given to the accused. But had the carbon copies of these notices been given to the accused, then the same could be deposited in the malkhana. But PW 3 has nowhere stated that the carbon copies of such notices were deposited in the malkhana. PW1 SI Rishikesh has deposed that he had told to the members of the raiding team,m as to from which direction, the accused would come. But this witness during her crossexamination has deposed that IO did not tell her as to from which direction accused would come. Thus, there are material contradictions in the statement of PW 1 & PW 6. This prosecution witness also failed to tell as to how many FSL Forms were allegedly filled by the IO. Thus, the presence of this witness is becomes doubtful. Had she been there at the time of alleged search she could tell about the number of FSL Form and she could also identify the photographs of alleged place of occurrence. Since, the PW2 SI Pramod has deposed that he had prepared the documents after returning of the Ct. Ashok, whereas this prosecution witness has deposed during her crossexamination that SI Pramod had did not prepare any document after arrival of Ct. Ashok. Thus, the testimonies of PW6 SI Anju Dahiya & PW2 SI Pramod are contradictory. So, the same becomes doubtful. Since the accused Santosh @ Guddo is a lady so as per the mandate of section 51 (2) of Cr. P.C decency was also required to be maintained at the time of alleged search. If the statement of PW 6 is FIR No. 107/16 PS Sultan Puri Page No. 70 of 104 State V. Sanjay @ Babloo and anr.
taken to be true, then the alleged search of accused Santosh @ Guddo is conducted by this PW 6 in open place as the hight of the counter of the shop was merely 3 feet, behind which, the alleged search of this accused is conducted. As this witness during her crossexamination has also admitted that the shop was also opened. NO doubt that section 50 (4) of NDPS Act mandates that the search of lady accused is required to be conducted by a female but Section 51 (2) of Cr. P C. mandates that the decency is also required to be maintained. But in the case in hand the decency has not been adopted at the time of alleged search.
24. The testimony of this witness (PW1) is also found to be contradictory to the testimony of PW 1. Since this witness has failed to identify the photographs of the alleged place of occurrence and in view of the contradictions in the place of alleged search of the accused Santosh @ Guddo. The testimony of this witness also appears to be doubtful. Since this witness PW 6 has also failed to adopt the decency at the time of the alleged search of accused Santosh @ Guddo. So the alleged search also becomes doubtful.
25. Whereas, Inspector Ashok Kumar has been cross examined as PW 7, who has deposed that on 11.02.2016, he was posted at PS Sultan Puri as SHO and on that day at about 12:55 pm, while he was present in the PS, he had received a telephonic call from ASI Rishikesh, who had informed him that he was present in the area of PS Sultan Puri FIR No. 107/16 PS Sultan Puri Page No. 71 of 104 State V. Sanjay @ Babloo and anr.
and he had received an information that one lady namely Guddo and her husband Babloo, who are indulged in the business of Smack (Heroin), they would come near Mosque, in A4 Block, Sultan Puri with Smack and if raided, they could be apprehended. He has further deposed that on receiving of this information, he went to the office of the ACP Mr. Darade Sharad Bhaskar, which was on the back side of PS Sultan Puri in the same building and he discussed about the secret information received by ASI Rishikesh and after discussion, ACP directed him to proceed as per law. He has further deposed that he had telephonically instructed ASI Rishikesh to conduct raid and inform him and he was sending WSI Anju Dahiya for participating in the raid and he had instructed WSI Anju Dahiya to talk with ASI Rishikesh on phone and accordingly as per his direction she went to the spot. He has further deposed that on the same day at 05:05 pm, Ct. Ashok came to PS Sultan Puri and he produced six sealed parcels sealed with the seal of BS along with FSL form and two copies of seizure memos. He has further deposed that he enquired the FIR number of the present case from the Duty Officer and he specified the FIR number on all the sealed parcels, as well as, on the FSL form and copies of seizure memo and affixed his seal of AK on all the six sealed parcels and on FSL form. He has further deposed that he called MHC(M) in his room with register no. 19 and he handed over all the sealed parcels, as well as, the FSL form and copies of seizure memos to MHC(M) for depositing the same in the Malkhana. He has further deposed that at 05:20 pm, he made DD FIR No. 107/16 PS Sultan Puri Page No. 72 of 104 State V. Sanjay @ Babloo and anr.
No.17A Ex. PW 7/A in the DD register regarding depositing of sealed parcels and above documents in the malkhana and ie. proved the copy of entry made in DD register Ex.PW7/A1. He has further deposed that at about 06:10 pm, he received telephonic call from second IO SI Parmod , who informed him regarding the arrest of accused Santosh @ Guddo and Sanjay @Babloo in the present case, about the disclosure statements made by both the accused persons and he also informed him that he was going to Ld. Duty MM at his residence for producing both the accused, for seeking judicial custody of accused Santosh @ Guddo and police custody of accused Sanjay @ Babloo. He has further deposed that at about 10:30 pm, SI Parmod Kumar produced accused Sanjay @ Babloo before him in the PS and this witness has correctly identified the accused Sanjay @ Babloo. He has further deposed that on the same day, ASI Rishikesh had produced information of seizure of Heroin in compliance of Section 57 NDPS Act and he forwarded the said report/intimation Ex. P5 for the office of ACP. He has further deposed that on the same day, SI Parmod had produced information of arrest of both the accused in compliance of Section 57 NDPS Act and he forwarded the said report/intimation Ex. PW2/1 for the office of ACP and during the period, the case property remained in his custody, same was not tampered with. This witness was cross examined by Ld. Counsel for accused during his crossexamination who has deposed that he did not make any DD entry of the secret information, which was allegedly telephonically conveyed to him by ASI FIR No. 107/16 PS Sultan Puri Page No. 73 of 104 State V. Sanjay @ Babloo and anr.
Rishikesh. ASI Rishikesh did not tell him regarding the exact time, at which, accused persons to come at the spot and he had only told him that they would come soon. He has further deposed that he had requested him to come to the spot, but, he could not go there, as he was busy in some other official work. He has further deposed that he did not get any telephonic information regarding the time of alleged recovery of contraband from accused persons by ASI Rishikesh. He has further deposed that ASI Rishikesh had not given him any information in writing that he was using the seal of BS and not of his initials. He has further deposed that after affixing his seal on the case property, he had kept it with himself and had not given the same to anyone, he did not remember the date, when the samples were taken from the Malkhana to the FSL and he also did not remember the name of the police official, who had taken the same. He has further deposed that he had given standing instructions to the MHC(M) that whenever any contraband is recovered, the same is to be sent to the FSL soon and within 34 days. He has further deposed that MHCM did not require any written permission from his witness for each case for sending the exhibits from the malkhana to the FSL and further deposed that the MHC(M) or the CHITTHA Munshi deputes a constable or any other police official for taking the case property from malkhana to FSL and he generally supervised the MHC(M) who sends the case property in all the cases at the earliest to the FSL and he did not supervise each case independently. He was not aware about the reason for sending the FIR No. 107/16 PS Sultan Puri Page No. 74 of 104 State V. Sanjay @ Babloo and anr.
case property to FSL on 17.02.2016 although the same was deposited on 11.02.2016 in the malkhana and he is not aware about the reason for delay of 56 days for sending the case property to the FSL. He has further deposed that only one FSL form was produced before him, which he was counter signed by him and which he had affixed his seal and he did not remember the number of pages of the FSL form. He was not aware, if Ct. Rakesh accompanied SI Parmod for the spot and he is aware that Ct. Rakesh was posted as on 11.02.2016 in the Beat area of ABlock, where the spot of recovery is situated. He has denied that no information was received by him from ASI Rishikesh on 11.02.2016 regarding any secret information received by him in respect of the present case or because of this reason, he did not make any entry regarding the receiving of secret information by ASI Rishikesh. He has denied that no report u/s 57 NDPS Act was received or forwarded by him or that nothing happened in the manner as deposed by him in his examination in chief or accused persons were lifted from their house and later on falsely implicated in the present case by planting contrabands on them or that he never received case property and sample pullenda from Ct. Ashok. He has denied that MHCM made false entries in register no.19 at his instance or that he is deposing falsely. Thus, from the testimony of this witness also clear that this witness has also not reduced into writing the information allegedly received by him on telephone from PW 1 ASI Rishikesh. This witness has deposed that he had deposited the case properties alongwith the FSL Form, but the FIR No. 107/16 PS Sultan Puri Page No. 75 of 104 State V. Sanjay @ Babloo and anr.
copy of the register no 19 Ex. PW 3/A reveals that it is nowhere mentioned therein FSL form was also deposited by this witness in the malkhana on dated 11.02.2016. Thus the testimony of this witness is not corroborated the documentary evidence. Since, this witness has also deposed during his crossexamination that ASI Rishikesh has not given any information to him that he was using the seal of BS. So, the testimony of PW 1 also becomes suspicious who failed to inform his senior officers that he was using the seal of BS which does not start the initial of his name. Since, this witness was incharged of police station being Inspector/SHO. But, he failed to tell any reason regarding the delay in sending the samples of the alleged contraband to the FSL on 17.02.2016. Unexplained delay in sending the samples to the FSL the case of the prosecution suspicious. This witness has also deposed that he had received the information from ASI Rishikesh regarding the contraband on telephone, but, no Call Detail Record of this witness or of ASI Rishikesh has been brought on the record. In view of above discussion, the testimony of this witness become suspicious. So the same does not inspire any confidence.
26. On completion of the prosecution evidence, the statements of accused persons u/s 313 Cr. PC were recorded, wherein, the accused have denied the correctness of the evidence led against them by the prosecution and both the accused have pleaded innocence. The accused has also examined Sh. Shiv Prasad Tiwari has been examined FIR No. 107/16 PS Sultan Puri Page No. 76 of 104 State V. Sanjay @ Babloo and anr.
as DW 1 and Ms. Radha has been examined as DW 2 . they were also cross examined by Ld. APP for the state.
27. DW1: Sh. Shiv Prasad Tiwari S/o Sh.Ramjas Tiwari, who has deposed that his house is situated in front of the house of accused Sanjay and Santosh and on dated 11.02.2016 at about 7.00 am, both the accused were taking tea in their house and he had seen that three male police personnels had come out from the house of the accused alongwith these two accused Santosh @ Guddo and Sanjay @ Bablu (who are present in the Court ) and all those three police personnel had taken away these two accused with them in custody in his presence. This witness was also cross examined by Ld. APP for state. During his cross examination, who has deposed that the distance between his house and house of accused may be of 14 feet. He has denied that on dated 11.02.2016 at 07.00AM, he had not seen the accused while taking them tea in their house and the cups wherein accused were taking tea were made of bone china. He has denied that he did not enter in the house of accused at that time and accused Santosh used to work as maid servant in the kothies, whereas accused Sanjay @ Bablu is lame, so he was not able to do any work at that time. He has admitted to be correct that he did not file any complaint to DCP or any higher police official regarding any apprehension of the accused by the police. He has denied that he had not filed any complaint to any higher officer of the police for the reason that the accused were not arrested from their FIR No. 107/16 PS Sultan Puri Page No. 77 of 104 State V. Sanjay @ Babloo and anr.
house. He has denied that he is not a summoned witness and he has come today to depose at the instance of accused Bablu.
28. Whereas Ms.Radha W/o Sh.Krishan Kumar has been recorded as DW 2 who has denied she has deposed that on dated 11.02.2016 at about 7 am, she was going to the school of her son, at that time he saw that three police personnels were coming out of the house of the accused alongwith both the accused persons Santosh @ Guddo and Sanjay @ Bablu. She has further deposed that all the police personnels were on foot and in her presence all the three police officials took away both the accused persons in their custody. This witness was cross examined by ld. APP for State. During his cross examination who has deposed that she did not remember the day of the week was on 11.02.2016 and she did not remember on the day Holi or Diwali was celebrated in the year 2016. She has admitted it to be correct that she did not file any complaint to DCP or any higher police official regarding any apprehension of the accused by the police. He has denied that he had not filed any complaint to any higher officer of the police for the reason that the accused were not arrested from their house or that she is not a summoned witness and she has come today to depose at the instance of accused Bablu.
29. Ld. APP for the State has submitted that in the case in the case, the FIR was registered on the Rukka Ex.PW1/F prepared by ASI FIR No. 107/16 PS Sultan Puri Page No. 78 of 104 State V. Sanjay @ Babloo and anr.
Rishikesh, who has been examined as PW1. He has submitted that secret information was received at 12:20 PM while ASI Rishikesh was on patrolling duty and he was telephonically contacted with Inspector/SHO Ashok at 12:55 PM and at 01:05 PM, SHO had telephonically directed to ASI Rishikesh to conduct a raiding team and Inspector Ashok sent to SI Anju Dahiya at the spot, as the information was received that both the accused could be apprehended with the contraband. Accordingly, at 01:20 PM, SI Anju Dahiya had arrived at the spot and this ASI Rishikesh requested to 45 passersby to join the investigation, but, none agreed and without wasting the time, he formed the raiding party comprising of himself, Ct. Ashok & SI Anju Dahiya. He has further submitted that at 01:50 PM, secret information told that both the accused were giving and on pointing out by the secret informer, both the accused Sanjay @ Babloo & Santosh @ Guddo were apprehended and ASI Rishikesh had introduced himself and also introduced the members of raiding team and told about the information received regarding the contraband and also told about their legal rights to be searched before the Gazetted Officer or Magistrate and served notices under Section 50 of NDPS Act to both the accused, which are exhibited as Ex.PW1/B & Ex.PW1/C. Both of the accused have refused to be searched in the presence of Gazetted officer or Magistrate. Accordingly, ASI Rishikesh had searched Sanjay @ Babloo and from the left side of pocket of his pant, 122.50 Grams of Smack was recovered and 02 samples of 05 Grams each were separated. He has FIR No. 107/16 PS Sultan Puri Page No. 79 of 104 State V. Sanjay @ Babloo and anr.
further submitted that SI Anju Dahiya had conducted the search of accused Santosh @ Guddo and 272.50 Grams of Smack was found in the inner clothes of this accused Santosh @ Guddo. He has further submitted that 02 samples of 05 grams each were also separated from the contraband and all the samples & contrabands were sealed with the seal of "BS" and contrabands were seized and the rukka was prepared and contrabands. Samples of contraband form of FSL of both the contraband was filed by ASI Rishikesh and rukka, samples, contraband, copies of seizure memo and Form FSL were sent to Police Station through Ct. Ashok, who ha been examined as PW4. Accordingly, rukka was given by Ct. Ashok to the duty officer, who had lodged the FIR. Whereas, the contraband, samples, copies of seizure memo & form of FSL were handed over to the SHO, who had put his seal thereon and deposited the same in the Malkhana. It is further submitted that testimony of PW1 is corroborated with the PW7, who has also deposed on the similar line and submitted that report Ex.P5 regarding the seizure of contraband under Section 57 of the NDPS Act was sent by PW1 to the ACP and submitted that after registration of the FIR, Inspector Ashok had sent second IO/SI Pramod, who had examined as PW2 and he had appeared at the spot and Ct. Ashok handed over rukka and copy of FIR to this SI Pramod, who has arrested to both the accused vide memo of arrest Ex.PW2/B & Ex.PW2/C and both the accused were searched and carbon copies of the notice under Section 50 of NDPS Act Ex.PW2/F & Ex.PW2/G were recovered from them and FIR No. 107/16 PS Sultan Puri Page No. 80 of 104 State V. Sanjay @ Babloo and anr.
report under Section 57 of NDPS Act regarding Ex.PW2/I was sent by second IO/SI to the ACP and reports under Section 57 of NDPS Act are admitted by the accused. It is further submitted that police custody of Sanjay was also taken, but, no source of contrabands were found and submitted that HC Parveen, who has been examined PW3, who was the MHC(M) at that time, who has corroborated the testimony of PW7 Inspector Ashok, as he has deposed on dated 11.02.2016 that Inspector Ashok had deposited 06 sealed parcels with the seal of "BS" and AK along with FSL form. It is further submitted that PW3 has proved the copy of the registered no. 19 Ex.PW3/A and also submitted that SI Anju Dahiya has been examined as PW6, who has proved that during personal search of Santosh, she has recovered 275.50 grams smack was recovered from the accused Santosh @ Guddo and further submitted that testimony of PW1 and PW4 Ct. Ashok have been corroborated by SI Anju who has been examined as PW6 and compliance of the Section 57 of NDPS Act has been admitted. He has further submitted that ASI Ravi Kumar had telephonically told to PW7 Inspector Ashok about the secret information and Inspector Ashok had informed to the ACP. Thus, Section 42 of NDPS Act has been complied with and further submitted that prosecution has proved on record that 122.50 grams heroine has been recovered from accused Sanjay and he is liable to be convicted under Section 21(b) of NDPS Act. Whereas, it is proved on record that 272.5 Grams heroin, has been recovered from the accused Santosh @ Guddo, so, she has also liable to be convicted FIR No. 107/16 PS Sultan Puri Page No. 81 of 104 State V. Sanjay @ Babloo and anr.
under Section 21(c) of NDPS Act and prayed for convicting both the accused thereunder.
30. Since the testimony of PWs Ct. Rakesh, SI Anju Dahiya PW6 and Ct. Ashok (PW4) are inconsistent on the material points as discussed hereinabove. The place of alleged search of the accused Santosh @ Guddo also becomes doubtful. The prosecution has failed to prove on record beyond reasonable doubt that the Notice under Section 50 of NDPS Act were ever served to the accused. Since DW1 and DW2 have deposed that both the accused were lifted from their house on dated 11.02.2016 in the morning.
31. Since, the prosecution has alleged that accused Santosh @ Guddo was found in possession of 272.50 grams of Heroine (diacetylmorthine) and accused Sanjay @ Bablu was found in possession of 122.50 grams of Heroine (diacetylmorthine) and PW 1 ASI Rishikesh and PW 6 SI Anju Dahiya have alleged that two samples of 5 gram each were taken from the contrabands alleged to have been recovered from accused Sanjay @ Bablu and Santosh @ Guddo. Whereas the report of FSL Ex.P4 reveals that the weights of the samples were 6.22 grams and 6.18 grams. Thus, the variation is found in the weight of samples of alleged contrabands, sent to the FSL. Since in the case in hand PW1 has deposed that after using his seal was handed over to Ct. Ashok and Ct. Ashok has been examined as PW 4 FIR No. 107/16 PS Sultan Puri Page No. 82 of 104 State V. Sanjay @ Babloo and anr.
who has deposed that he had returned the seal to ASI Rishikesh on the same evening at 9:00/10.00 PM. No memo regarding the handing over the seal to ASI Rishikesh to Ct. Ashok was ever prepared nor any memo regarding the returning of seal by Ct Ashok to ASI Rishikesh is prepared. Since PW 1 has deposed that seal after use was handed over to Ct. Ashok and after affixing the seal on the parcels of the contrabands and their samples, he had handed over the all the parcels and his seal to Ct. Ashok and when, ASI Rishikesh is also alleged to have taken the samples on 17.02.2016 from the MHC(M) for depositing the same in the FSL and since the variations are found in the weight of the samples as deposed by PW1 & PW 6 and in the report of FSL, so in view of the such variation in the weight of the samples the possibility of tempering with the samples cannot be ruled out.
32. As their lordship of the Supreme Court of India in case Rajesh Jagdamba Avasthi Vs. State of Goa, VII (2004) SLT 85 was pleased to hold "the credibility of the recovery proceedings is considerably eroded, if it is found that the quantity actualy found by the PW1 was less than the quantity sealed and sent to him. As he rightly emphasised, the question was not how much was seized, but, whether there was actual seizure and whether there was an actual seizure and whether what was seized was really sent for chemical analysis to PW1. The prosecution has not been able to explain this discrepancy and therefore, it renders the case of the prosecution doubtful"
FIR No. 107/16 PS Sultan Puri Page No. 83 of 104State V. Sanjay @ Babloo and anr.
33. Since the first IO, namely, ASI Rishikesh (PW1) has deposed that a secret information was received by him regarding the contraband at about 12:45 PM, when he was on patrolling duty and both the accused were apprehended by the police on dated 01:50 PM. First Investigating Officer ASI Rishikesh (PW1) has failed to reduce into writing the information regarding the contraband and also failed to send the written information to his higher officer in writing and since the alleged place of occurrence is a thorough fair in a thickly populated area and despite availability of numbers of the public persons, the IO has failed to make sincere efforts for joining of public witness. Similarly, PW 2 SI Pramod has also failed to make sincere efforts for joining of public witness at the time of alleged personal search of both the accused.
34. Since, their lordship of the Hon'ble High Court of Delhi in case Mohd. Masoom Vs. State of NCT of Delhi 219(2015) DLT 271 was pleased to hold that "Appellants conviction is primarily based upon the testimonies of the police officers / officials only. Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of the police officials. Sometimes it becomes highly difficult for the police officials to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of FIR No. 107/16 PS Sultan Puri Page No. 84 of 104 State V. Sanjay @ Babloo and anr.
independent public witnesses is not a mere formality. Simply saying by the police witnesses that public witnesses were not available without any evidence to that effect would not be suffice. The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits".
35. In the instant case, despite availability of independent public witnesses, no genuine and sincere efforts were made by the Investigating Officer to associate them. The explanation offered by the Investigating Officer does not inspire confidence. Secret information was received at around 09.30 a.m. at Crime Branch, Chanakyapuri. Allegedly, A2 was to receive a huge consignment of Heroin / smack at IGI Airport from Afghan Nationals who were to arrive in India by Afghan National flight at about 12.30 p.m. or thereafter. Apparently, the police officials had sufficient time to make sincere efforts to associate independent public witnesses in the raiding team. However, nothing was done. For the first time, when the raiding team reached Lajpat Nagar at about 11.30 a.m., some passersby were allegedly asked to join the raiding party. They purportedly declined to participate taking the plea that they were busy in their own work. It has come on record that there were number of shops at Lajpat Nagar, where the police party had FIR No. 107/16 PS Sultan Puri Page No. 85 of 104 State V. Sanjay @ Babloo and anr.
followed A2s car. None of the shopkeepers was requested to be a part of the raiding team. Again, at 06.30 p.m., an attempt was allegedly made at the airport to join some public persons in the raiding team but none was willing and they left without disclosing their names and addresses. It is a matter of record that the raiding team remained at the spot till 03.00 a.m. It is strange that for about thirteen hours the Investigating Agency was not able to associate even a single independent public witness at any stage of the investigation. Admitted position is that there were number of police officials, government / private employees, Traffic Police Control Room, Prepaid Taxibooth, CISF officials and shopkeepers, etc. at the crowded and busy airport. It is not explained as to why only the passersby were requested to join the investigation. Even their names or addresses were not recorded and no action whatsoever was taken for their refusal to assist in the investigation. Apparently, the Investigating Agency were not interested to make any independent witness to be a part of the raiding team.
36. So in the light of the above mentioned judgment I am inclined to hold that in the absence of any public witness to the alleged recovery of the contrabands and in view of inconsistent testimonies of the police witnesses, the alleged recovery from the accused becomes doubtful. Since PW1 has alleged that at the time of receiving of secret information regarding the contraband he was on patrolling and he had conveyed the information to the SHO /Inspector Ashok telephonically.
FIR No. 107/16 PS Sultan Puri Page No. 86 of 104State V. Sanjay @ Babloo and anr.
Ld. Counsel for the accused has submitted that the secret information alleged to have been received by ASI Rishikesh was required to be reduced into writing and the same was also required to be sent to the higher officer in writing, as mandated Section 42 of the NDPS Act. Whereas ld. APP for the State has submitted that since PW 1 ASI Rishikesh was on patrolling duty at the time of receiving of such information, he had telephonically informed to Inspector Ashok about the same and it may be treated as compliance of section 42 of NDPS Act, but this court does not find any force in the submissions made by ld. APP for the state. As provision Section 42 of the NDPS Act is mandatory, in accordance with which, the secret information alleged to have been received by ASI Rishikesh was required to be reduced into writing and it was also required to be sent to the Higher Officer. ASI Rishikesh was on patrolling duty at the time of receiving of alleged secret information and in the considered opinion of this court , he could reduced the same into writing subsequently and could send the same to the Higher Officer in writing.
37. Since their lordship of Supreme Court in Catina of judgments was pleased to hold that provisions of Section 42 of NDPS Act is mandatory and in the case in hand, no secret information regarding the contraband was reduced into writing nor such information was sent to higher officer by the PW1 in writing. The first IO PW1 has deposed that telephonic information was given to the PW7, who is the SHO. But, no Call Detail Records of the said phones of {PW1 & PW7) FIR No. 107/16 PS Sultan Puri Page No. 87 of 104 State V. Sanjay @ Babloo and anr.
have been brought on the record, which may prove that such information was either given by PW1 to PW7 or by PW7 has ever recorded such information from PW1 as mandated by Section 42 of NDPS Act and since such information in writing is not given to the higher officer even after arrest, so, I do not find any force in such submission of the Ld. APP for the State.
38. Since their lordship of Supreme Court of India in case titled as Beckodan Abdul Rahiman Vs. State of Kerala AIR 2002 SC 1810, was pleased to hold that "We are of the firm opinion that the provisions of subsection (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted. Both the trial court as well as the High Court have failed to consider this aspect of the matter which warrants the setting aside of the impugned judgment".
39. Their lordship of Supreme Court also referred an other judgment passed in case Rajender Singh vs. State of Haryana (2011) 8 SCC 130, wherein the constitution bench of their lordship of Supreme Court was pleased to hold that the non compliance of provision of Section (1), (2) of Section 42 of the NDPS Act are impermissible.
40. Since, their lordship of Supreme Court of India in case titled as FIR No. 107/16 PS Sultan Puri Page No. 88 of 104 State V. Sanjay @ Babloo and anr.
Sukhdev Singh Vs. State of Haryana 2013 (2) JCC Narcotics 41 was pleased to hold that "25. Before we part with this file, we consider it the duty of the Court to direct the Director General of Police concerned of all the States t issue appropriate instructions directing the investigating officers to duly comply with the provisions of Section 42 of NDPS Act at the appropriate stage to avoid such acquittals. Compliance to the provisions of Section 42 being mandatory, it is the incumbent duty of every investigating officer to comply with the same in true substance and spirit in consonance with the law stated by this Court in the case of Karnail Singh.
41. Since their lordship of Supreme Court of India Mohan Lal Vs. State of Rajasthan Criminal Appeal No. 1393 of 2010 was pleased to hold that
(a) The officer on receiving the information of the nature referred to in subsection (1) of Section 42 from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible FIR No. 107/16 PS Sultan Puri Page No. 89 of 104 State V. Sanjay @ Babloo and anr.
or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total noncompliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or nonsending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a FIR No. 107/16 PS Sultan Puri Page No. 90 of 104 State V. Sanjay @ Babloo and anr.
clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
42. In Rajinder Singh v. State of Haryana[34], placing reliance on the Constitution Bench, it has been opined that total noncompliance with the provisions of subsections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with satisfactory explanation for the delay can, however, be countenanced.
43. Thus, from the abovesaid judgments, it is clear that the lordship of Supreme Court was pleased to hold in said judgments that total non compliance of the provisions of Section 42(1) & 42(2) is impermissible and in the case in hand and from the testimony of the PW1, it is clear that the no information of contraband within the meaning of Section 42(1) was reduced into writing nor any report U/S 42(2) of NDPS Act was sent to the superior officer in writing and in view of non compliance of the 42(1) & 42(2) of NDPS Act and in the light of the judgment passed by the lordship of Supreme Court in the Mohan Lal Vs. State of Rajasthan(Supra), the story of the prosecution becomes suspicious and FIR No. 107/16 PS Sultan Puri Page No. 91 of 104 State V. Sanjay @ Babloo and anr.
doubtful.
44. Since the 122.50 grams Heroine is alleged to have been recovered from the left side pocket of pant worn by accused Sanjay @ Bablu and 272.50 grams of Heroine is alleged to have been recovered from the bra of accused Santosh @ Guddo. The notices u/s. 50 of the NDPS Act were required to be served to both the accused. But Ld. Counsel for the accused submitted that no notices u/. 50 of NDPS Act were served to the accused and signatures of both the accused were obtained forcibly on the blank papers and the perusal of the personal search memos of both the accused reveals that carbon copies of notices under section 50 of NDPS Act are alleged to have been recovered from both the accused. But PW 3 MHC(M) has no where mentioned in his statement that carbon copies of notices u/s. 50 of NDPS Act were ever deposited in the malkhana.
45. Since PW 6 SI Anju Dahiya is alleged to have recovered the contraband from the bra of the accused Santosh @ Guddo in her search, if the testimony of this witness is looked into, this witness has alleged that she had conducted the search of accused Santosh @ Guddo in front of a shop near mosque, behind the counter of a shop, height of which was 3 feet and she has also admitted, during her cross examination that the shop was also opened at the time of alleged search. Whereas, PW4 Ct. Ashok has alleged that the search of this FIR No. 107/16 PS Sultan Puri Page No. 92 of 104 State V. Sanjay @ Babloo and anr.
accused Santosh @ Guddo was conducted opposite the mosque near a house. Thus, there are material contradictions in the testimonies of PW 4 & PW 6. It is worthwhile to mention here that this PW 6 has failed to identify the photographs of the alleged place of occurrence, when the same were shown to her by the Ld. Counsel for the accused. Whereas, PW4 Ct. Ashok has identified two photographs, since, this witness has failed to identify the photographs of the alleged place of occurrence. So her presence at the spot appears to be doubtful. The testimony of this witness also appears to be self contradictory, as the statement of this witness recorded u/s. 161 of Cr. P. C. on dated 12.02.2016 reveals that she had stated there in that she was discharged at the spot after arrival of Second IO SI Pramod. But, at the time of her examination in the court, she has deposed that she had left the spot alongwith SI Pramod. This witness has nowhere stated in her statements recorded u/s. 161 of CrP.C., Ct. Rekha was called upon, whereas at the time of her examination in the court, she has deposed that Ct. Rekha was also called upon and if this prosecution witness had left the spot after coming of second IO, then how could she tell about the proceedings regarding the medical examination of the accused and production of these accused before the Duty Magistrate and thus, the testimony of this witness (PW16) is also improved, embellished and doubtful. No statement of any Ct. Rekha was recorded. During her crossexamination this witness has deposed that carbon copies of the notices u/s. 50 of NDPS Act were also given to the accused. But, had the carbon copies FIR No. 107/16 PS Sultan Puri Page No. 93 of 104 State V. Sanjay @ Babloo and anr.
of these notices been given to the accused, then the same could be deposited in the malkhana. But PW 3 has nowhere stated that the carbon copies of such notices were deposited in the malkhana. PW 1 SI Rishikesh has deposed that he had told to the members of the raiding team, as to from which direction, the accused would come. But PW 6 SI Anju Dahiya during her crossexamination has deposed that IO did not tell her, as to from which direction, the accused would come. This prosecution witness PW6 also failed to tell as to how many FSL Forms were allegedly filled by the IO. Thus, the presence of this witness at the time of place of occurrence becomes doubtful. Had she been there, at the time of alleged search, she could tell about the number of FSL Form and she could also identify the photographs of alleged place of occurrence. Since, the PW 2 SI Pramod has deposed that he had prepared the documents after returning of the Ct. Ashok, whereas this prosecution witness PW6 has deposed during her crossexamination that SI Pramod did not prepare any document after arrival of Ct. Ashok. Thus, the testimonies of PW 6 SI Anju Dahiya & PW 2 SI Pramod are contradictory. So, the testimonies of PW 6 & PW 2 also become doubtful.
46. Since,the accused Santosh @ Guddo is a lady so as per the mandate of section 51 (2) of Cr. P.C decency was also required to be maintained at the time of her alleged search. If the statement of PW 6 is taken to be true, then the alleged search of accused Santosh @ Guddo FIR No. 107/16 PS Sultan Puri Page No. 94 of 104 State V. Sanjay @ Babloo and anr.
is conducted by this PW 6 in open, as the hight of the counter of the shop was merely 3 feet, behind which, the alleged search of this accused Santosh has been conducted. As this witness during her crossexamination has admitted that the shop was also opened. No doubt that section 50 (4) of NDPS Act mandates that the search of lady accused is required to be conducted by a female. But, Section 51 (2) of Cr. P C. mandates that the decency is also required to be maintained. But, in the case in hand, the decency has not been adopted by the SI Anju Dahiya as she is alleged to have conducted search of the accused Santosh @ Guddo in an open place.
47. Since, there lordship of Supreme Court case State of Punjab Vs. Baldev Singh 1999 drugs cases 150 was pleased to observe:
"Section 50 (4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure. 1898 and Section 51 (2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51 (2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50 (4) of the NDPS Act read with Section 51 (2) of the Code of Criminal Procedure,1973 whenever it is found necessary to FIR No. 107/16 PS Sultan Puri Page No. 95 of 104 State V. Sanjay @ Babloo and anr.
caue a female to be searched. The document prepared by the Investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the concerned female should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. "
48. Whereas Lordship of High Court of Bombay in case Amina Abdul Shaikh Vs. State of Maharashtra criminal appeal no. 696/1991 was pleased to acquit the lady accused in view of serious infirmity in relation to the search of the lady accused holding that " the correct procedure would therefore have been for a raiding party to have taken the accused to some decent and secluded area where the personal search could have been conducted by the lady constable in the presence of lady panch and in view of the search conducted in indecent manner, the accused was acquitted by their Lordship. Since in the case in hand testimony of this witness SI Anju Dahiya PW 6 is also found to be contradictory to the testimony of PW 4 regarding the place of alleged search of accused Santosh @ Guddo as PW 6 has stated that she had conducted search of the accused Santosh @ Guddo in front of the shop near mosque behind counter of the shop height of which was 3 feet and FIR No. 107/16 PS Sultan Puri Page No. 96 of 104 State V. Sanjay @ Babloo and anr.
the said shop was opened and since the contraband is alleged to have been recovered from the bra worn by the accused Santosh @ Guddo. So, I am inclined to hold that the decency is not maintained by SI Anju Dahiya, while allegedly conducted search of the lady accused Santosh @ Guddo. Since PW4 Ct. Ashok has deposed that the search of the accused Santosh @ Guddo was conducted opposite the mosque near a house. Since, the place of alleged search of this accused Santosh @ Guddo have been disclosed to be different by PW 4 & PW 6. In view of such material contradictions in the testimonies of these prosecution witnesses, their presence at the time and place of alleged occurrence is doubted and in view of such material contradictions in the testimonies of these witnesses, their testimonies become suspicious and doubtful, so they do not inspire any confidence therein.
49. Since, PW 1 has alleged that notices u/s. 50 of NDPS Act were also served to both the accused and PW 2 has also deposed that during the personal search of both the accused carbon copies of notices u/s 50 of NDPS Act were recovered. But PW 3 HC MHC(M) Parveen, who has been examined as PW 3 has nowhere mentioned that carbon copies of notices u/s. 50 were ever deposited in the Malkhana. Had the such notices been served to both the accused or that the carbon copies thereof been delivered to both the accused or that the carbon copies of notices been recovered during their personal search, then the same could be deposited in the malkhana and MHC(M) could be the best witness to prove the same through his record. Since, FIR No. 107/16 PS Sultan Puri Page No. 97 of 104 State V. Sanjay @ Babloo and anr.
the Ld. Counsel for the accused has submitted that no notices u/s. 50 of the NDPS Act were served to the accused and signatures of the accused on the blank papers were also obtained and since no cogent evidence has been brought forth on the record to prove that carbon copies of notices were ever recovered during the personal search of both the accused or that same were deposited in the malkhana. So the testimonies of PW 1 & PW 2 are not fortified or corroborated with the documentary proof that notices were recovered or deposited in the malkhana. So, the service of the notice 50 of NDPS Act becomes doubtful.
50. Since, in the case in hand, PW 1 has deposed that seal after use was handed over to Ct. Ashok and admittedly no seal after use was handed over to the public witness and this prosecution witness Ct. Ashok (PW4) has deposed in the court that he had returned the seal used by ASI Rishikesh on the same evening at 9:10 PM and since the alleged contrabands, their samples, and the seal alleged to have been used by ASI Rishikesh were handed over to Ct. Ashok for handing over the same to the SHO on the date of the alleged occurrence and since the samples of the contrabands are alleged to have been taken by the ASI Rishikesh on dated 17.02.2016 to the FSL and on dated 17.02.2016 ASI Rishikesh was having his seal with him and since PW 1 and PW 6 have alleged that the weight of the samples were separated from the contrabands was 5 gram each whereas the report of FSL reveals that the weight of the samples were 6.12 grams and 6.18 grams, So, in the FIR No. 107/16 PS Sultan Puri Page No. 98 of 104 State V. Sanjay @ Babloo and anr.
given circumstances the possibility of tempering with the contrabands and their samples cannot be ruled out.
51. As their lordship of Hon'ble High Court of Punjab & Haryana in case Ramji Singh Vs. State of Haryana Crl. Appeal No. 1042SB of 2002 was pleased to hold that "It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out. In the present case, the seal of Investigating OfficerHoshiar Singh bearing impression 'HS' was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out.
52. Since, PW 1, during his crossexamination, has deposed that two FSL forms were filled and the Ld. Counsels for the accused has submitted that no FSL form was deposited in the Malkhana along with samples and contraband on dated 11.02.2016. Since, PW1 has deposed in the court on dated 11.02.2016 that he had handed over the parcels of sample of the contraband, contraband and FSL Form to Ct. Ashok and perusal of the copy of FSL Form copy reveals that only one FSL Form was filled and since the perusal of the copy of the register no. 19 Ex. PW 3/A reveals that it is nowhere mentioned that FSL Form was FIR No. 107/16 PS Sultan Puri Page No. 99 of 104 State V. Sanjay @ Babloo and anr.
also deposited in the malkhana alongwith the samples on dated 11.02.2016 . Similarly, the perusal of the copy of road certificate also reveals that it is nowhere mentioned that FSL form was also taken by ASI Rishikesh at the time of taking the samples to the FSL on dated 17.02.2016. So, the possibility of subsequently filling of FSL form cannot be ruled out, so, the case of the prosecution becomes doubtful. In view of contradictions in the testimonies of PW1, PW4, & PW7, their testimonies are held to be doubtful.
53. As, their lordship of Hon'ble High Court of Delhi in the case "Pradeep Kumar Vs. State 1997 IV AD(Delhi) 666" was pleased to hold that "I also tend to agree with the learned counsel for the appellant that the prosecution cannot be taken to have proved that the C.F.S.L. Form was actually deposited with the Moharir Malkhana or that it was actually sent thereafter to the C.F.S.L. of course, the Investigating Officer stated that the C.F.S.L. Form was filled in. It is also true that the Moharir Malkhana has made a statement that the C.F.S.L. Form was deposited. It also cannot be denied that the constable who took the sample parcel to the C.F.S.L. has deposed that he had deposited the C.F.S.L. Form with the C.F.S.L. However, I am not inclined to place reliance on this oral evidence as it is not supported by the documentary evidence. Had the C.F.S.L. Form been deposited with the Moharir Malkhana and had it been handed over to the constable who had taken the sample parcel to the C.F.S.L., it would have found mention in the FIR No. 107/16 PS Sultan Puri Page No. 100 of 104 State V. Sanjay @ Babloo and anr.
Register of the Moharir Malkhana. It find no such mention. There is no entry to the effect that the said Form was deposited or was later sent to the C.F.S.L. and further held "besides what has been recorded by me, I find myself one with the Learned counsel for the appellant that the prosecution version cannot be accepted as gospel truth and that doubts would legitimately be raised as the Investigating Officer made no efforts to join any witness from the Public. It is not the case of sudden apprehension and recovery. It is a case, where, secret information has been received. It is in evidence that there were shops and that consequently persons from the public were available to the investigating officer at his elbow. And yet he made no effort to join any witness from the public.
54. I feel that keeping in view what has been noticed by me above, the failure of Investigating Officer to join the witnesses from the Public assumes significance.
55. "For the reason recorded above, I hold the appeal deserves to be allowed. I do so. The conviction of the appellant U/S 20 of the Act and sentenced passed thereunder stand set a aside. Fine, if deposited, be refunded. Let the appellant be set free, if not wanted in any other case".
56. Their lordship of Supreme Court in case State of Rajasthan V. FIR No. 107/16 PS Sultan Puri Page No. 101 of 104 State V. Sanjay @ Babloo and anr.
Raja Ram, V (2003) SLT 45III (2003) CCR 198 (SC)=(2003) 8 SCC 180 was pleased to hold that:
There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case, where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not (see Bhagwan Singh v. State of M.P., (2002) 4 SCC 85). The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. IF the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Badade v. State of Maharashtra, (1973) 2 SCC 793; Ramesh Babulal Doshi v. State of FIR No. 107/16 PS Sultan Puri Page No. 102 of 104 State V. Sanjay @ Babloo and anr.
Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4 SCC 484.
57. Since, their lordship of Supreme Court of India in case Mausam Singh Roi & Others Vs. State of West Bengal (2003) 12 SCC 377 was pleased to hold that "It is settled principle criminal jurisprudence that more serious the offence, stricter the degree of proof since of higher degree of assurance is required to convict the accused".
58. Since the testimonies of prosecution's witnesses are found to be inconsistent on the material points regarding weights of the sample of contraband and serving of Notices u/s. 50 of NDPS Act is also doubtful and since mandatory provisions of Section 42 of NDPS Act have also been violated, as discussed herein above and in the absence of public witness. The testimonies of the prosecution's witnesses, who are police personnels, whose testimonies are inconsistent, doubtful & suspicious, so, they do not inspire any confidence. Since, the accused have pleaded that they were picked from their house in the morning of 11.02.2016 and since the prosecution has failed to prove its case beyond reasonable doubt that accused were apprehended with the alleged contraband and since the accused have also examined two witnesses in defence who have categorically deposed that both accused were picked by police personnels from their house. So, on the yardstick of preponderance of probability, the possibility of picking of the accused FIR No. 107/16 PS Sultan Puri Page No. 103 of 104 State V. Sanjay @ Babloo and anr.
from their house on the morning of 11.02.2016, cannot be ruled out. In the above discussed circumstances, the possibility of false implication of accused can not be ruled. Therefore, benefits of doubts are given to the accused.
59. Cumulative fact of the above discussion is that the prosecution has failed to prove the charges framed against this accused beyond reasonable doubt.
60. In view of the above discussion, accused Sanjay @ Bablu and Santosh @ Guddo are acquitted of the charges framed against them and the case properties are ordered to be disposed off after expiry of period to file the appeal. The accused Sanjay @ Bablu and Santosh @ Guddo are ordered to be released on furnish of bail bonds in the sum of Rs.10,000/ with one surety of like amount each, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure their presence in the Hon'ble appellate court and on filing of bail bond and surety bond, the file be consigned to the Record Room.
Digitally signed by PAWAN Announced in Open Court on KUMAR PAWAN KUMAR MATTO 31st July, 2018 MATTO Date: 2018.07.26 15:42:02 +0530 (Pawan Kumar Matto) Special Judge (NDPS) Additional Sessions Judge, NW, Rohini Courts, Delhi. FIR No. 107/16 PS Sultan Puri Page No. 104 of 104