Delhi District Court
Of Buta Singh vs State Of Punjab, 2006 (2) Cc on 19 January, 2010
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IN THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS)
DISTRICT NORTH, DELHI
SC NO. 19/09
STATE
versus
SUKH CHAND SHEIKH,
s/o SHRI NURUL HUDA,
r/o VILLAGE-KHAMEDA,
PS MADGRAM, DISTT. BIRBHOOM,
WEST BENGAL.
FIR No. :9/09
Offence Under Section : 21 NDPS Act
Police Station :Sadar Bazar
Date of institution: 16.03.09
Date of taking up the matter for the first time: 21.05.09
Date of conclusion of arguments: 16.01.10
Date of judgment: 19.01.10
Counsel for State: Sh. I U H Siddiqui, Additional Public Prosecutor
Counsel for Accused: Sh. Pradeep Anand, Advocate
JUDGMENT
1. As per prosecution case, on 17.01.09, when ASI Nassu Ahmed alongwith ASI Rajender Singh and Ct. Hawa Singh, all posted in PS Sadar Bazar were on patrol duty in the area of chowk Qutab Road, Sadar Bazar, Delhi SC No. 19/09 Page 1 of 28 pages 2 at about 3:10pm, secret informer contacted ASI Nassu Ahmed and informed that one person wearing pant shirt standing near tonga stand, Qutab Road, is carrying a packet of smack and if raided, he can be arrested and smack can be recovered.
2. ASI Nassu Ahmed, the first Investigating Officer (IO)recorded the secret information on a piece of paper and conveyed the information to SHO Sadar Bazar on mobile phone. The first IO requested 4-5 passersby to join raid after sharing the secret information with them but all of them went away expressing their personal difficulty. As such, the first IO constituted a raiding party consisting of himself, ASI Rajender Singh and Ct. Hawa Singh.
3. Alongwith the secret informer, the raiding party proceeded to the spot and reached there at about 3:35pm; secret informer pointed towards the accused standing near tonga stand Qutab Road and after the raiding team apprehended him, the accused disclosed SC No. 19/09 Page 2 of 28 pages 3 his name and address. The first IO shared with the accused the secret information and explained to him his legal right to be searched in the presence of some gazetted officer or magistrate and his right to take search of the police party and the vehicle; in this regard the first IO served on the accused notice under Section 50 NDPS Act, which was read over and explained to him. The accused refused to get himself searched in presence of magistrate or a gazetted officer and also refused to take search of police party and he wrote his reply on notice under Section 50 NDPS Act to that effect.
4. In the meanwhile at about 3:45pm SHO Sadar Bazar reached the spot on official vehicle after recording DD No. 17A and the accused was produced before the SHO who was also informed about the notice under Section 50 NDPS Act and the SHO also informed the accused about his legal rights.
5. Thereafter, the first IO took search of the accused in which from right pocket of his pant one gray polythene SC No. 19/09 Page 3 of 28 pages 4 bag was recovered containing 292 pouches of smack; the entire smack recovered from the accused was weighed and was found to be 30 grams.
6. From the recovered smack, the first IO drew two samples of 5 grams each and converted the same into two cloth pullandas Mark 2&3. Remnant smack with polythene was converted into cloth pullanda Mark 1 and paper slips of 292 pouches were converted into pullanda Mark 4. The first IO prepared form FSL and sealed all the four pullandas Mark 1,2,3&4 as well as form FSL with his seal of NA. SHO countersealed all the four pullandas and form FSL with his seal of DS and label memos bearing sample seals and signatures of witnesses were placed in the pullandas, whereafter all the four pullandas and form FSL were seized by the first IO.
7. Thereafter, all the sealed pullandas alongwith form FSL and carbon copy of seizure memo were handed over by the first IO to the SHO who left the spot at 4:45pm.
8. Thereafter, the first IO wrote tehrir and sent the SC No. 19/09 Page 4 of 28 pages 5 same to the duty officer through Ct. Hawa Singh for registration of the case.
9. Ct. Hawa Singh reached the police station and handed over tehrir to the duty officer who registered FIR on the basis thereof vide DD No. 20A and after making of duty officer endorsement on tehrir, further investigation was handed over to SI Arun Kumar, the second IO who proceeded to the spot.
10. The second IO prepared siteplan at the instance of the first IO and recorded statements of witnesses and arrested the accused, whereafter personal search of the accused was taken.
11. SHO after reaching the police station recorded FIR number on all the pullandas as well as form FSL and carbon copy of seizure memo. After getting entries done in register no.19, the pullandas with form FSL and carbon copy of seizure memo were deposited in malkhana by the SHO vide DD No. 23A.
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12. Reports under Section 57 NDPS Act were sent to
superior officers as regards recovery of contraband and arrest of accused.
13. Sample pullanda Mark 2 alongwith FSL form was sent to FSL Rohini on 03.02.09 for forensic analysis and vide report dated 26.02.09, Assistant Director (Chemistry) FSL Rohini Delhi opined that the contraband of pullanda Mark 2 contained 19.44% diacetylmorphine.
14. Chargesheet was filed against the accused for offence under Section 21/61/85 NDPS Act before my learned predecessor. On 18.03.09 my learned predecessor framed charge for offence under Section 21 NDPS Act to which the accused pleaded not guilty and claimed trial.
15. In support of its case prosecution examined nine witnesses, whereafter the entire incriminating evidence was put to the accused, who denied correctness of the same and pleaded that he has been falsely implicated in this case. Accused opted not to lead any evidence in his SC No. 19/09 Page 6 of 28 pages 7 defence. I have heard Sh. IUH Siddiqui, learned Addl. Public Prosecutor for State and Sh. Pradeep Anand counsel for accused and perused the record.
16. PW1 Ct. Hawa Singh, a member of the raiding team deposed the facts pertaining to the receipt of secret information, raid, recovery and seizure of contraband. However, as regards notice under Section 50 NDPS Act, number of pullandas, registration of FIR, arrival of second IO and arrest of accused, PW1 had to be declared hostile and was cross examined by the learned prosecutor.
17. PW2 HC Daljeet Singh, posted as duty officer in PS Sadar Bazar at the relevant time deposed having registered FIR Ex. PW2/A on the basis of rukka received by him and having made endorsement Ex. PW2/B on the rukka.
18. PW3 Ct. Prakash, posted as reader to ACP, Sadar Bazar at the relevant time deposed having received SC No. 19/09 Page 7 of 28 pages 8 report under Section 57 NDPS Act Ex. PW3/A vide diary entry Ex. PW3/B.
19. PW4 HC Rajeev Kumar, posted as MHC(m) at PS Sadar Bazar at the relevant time deposed that vide register no.19 entry Ex. PW4/A, SHO deposited four sealed parcels with one FSL form in malkhana; that on 03.02.09 two sealed parcels and form FSL were handed over by him to ASI Dhyan Singh vide entry Ex. PW4/B in register no.19; that on 27.02.09 the FSL result with remnant case property was deposited in malkhana and FSL report was handed over to IO vide entry Ex. PW4/C. PW4 also proved a copy of road certificate as Ex. PW4/D and FSL report as Ex. PW4/E.
20. PW5 ASI Dhyan Singh deposed having collected two samples with form FSL from malkhana and having deposited the same in FSL.
21. PW6 ASI Rajender Singh, another member of the raiding party deposed the facts pertaining to receipt of secret information, raid, recovery and seizure of SC No. 19/09 Page 8 of 28 pages 9 contraband and arrival of the second IO on the spot followed by arrest of the accused. PW6 identified the case property as Ex. P1 to Ex. P10 including the contraband.
22. PW7 SI Arun Kumar, the second IO deposed the facts pertaining to the assignment of further investigation to him, his arrival at the spot, his preparation of siteplan Ex. PW7/A at the instance of the first IO followed by arrest and personal search of the accused as described above. PW7 also proved his report under Section 57 NDPS Act as Ex. PW7/B.
23. PW8 ASI Nassu Ahmed, the first IO deposed the facts pertaining to receipt of secret information which he wrote down as Ex. PW8/A, conduct of raid, recovery and seizure of contraband, preparation of rukka and registration of case followed by arrival of the second IO and preparation of siteplan at his instance. PW8 also identified the case property Ex. P1 to Ex. P11. However, as regards certain vital points pertaining to the SC No. 19/09 Page 9 of 28 pages 10 investigation PW8 had to be declared hostile and was cross examined by the learned prosecutor.
24. PW9 Inspector Dara Singh, SHO Sadar Bazar at the relevant time deposed about receipt of secret information by him, his departure to the spot vide DD No. 17A Ex. PW9/1, proceedings of recovery and seizure of contraband at the spot including preparation of label memos Ex. PW9/2-5, receipt of case property by him and deposit thereof by him in malkhana vide DD No. 23 Ex. PW9/6 as described above. PW9 also identified the case property Ex. P1 to Ex. P11.
25. No other evidence was brought.
26. As described above, the incriminating evidence on being put in statement under Section 313 CrPC, the accused denied the correctness of the same and pleaded that he was illegally picked up from Shankar Piyao in Sadar Bazar and falsely implicated in this case.
27. During final arguments learned Addl. Public Prosecutor took me through entire evidence on record SC No. 19/09 Page 10 of 28 pages 11 and contended that except a few minor contradictions, all the prosecution witnesses have supported the charge consistently. Learned prosecutor contended that there has been full compliance of all the statutory requirements in this case.
28. Per contra, learned defence counsel contended that prosecution has miserably failed to prove its case. Learned defence counsel pointed out various contradictions and improbabilities in the statements of police witnesses. It was further argued by learned defence counsel that there is total non compliance with the provisions of Section 42 NDPS Act, which is fatal to the prosecution case. Learned defence counsel while reading through testimony of witnesses laid a special emphasis on the weak memory of the witnesses who are police officials but did not remember complete facts pertaining to the alleged incident that took place hardly three months ago.
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29. At the very outset, in my view this is not a case of mere minor lapse of memory. It is indeed surprising that police witnesses, including even the first IO, who is most crucial witness of prosecution, did not remember the complete facts and learned prosecutor had to step in and elicit specific facts by way of leading questions in cross examination. It is not that the witnesses stepped into the box after years of time gap; the investigating officer ASI Nassu Ahmed testified as PW8 on 07.07.09 as regards the alleged raid and recovery of 17.01.09 but suffered amnesia in his testimony and even had audacity to say that since it has been a long time after the proceedings, he forgot to mention the relevant facts in chief examination. A period of less than seven months cannot be, by any parameters, taken to be a long time that would lead to fading of memory, that too on the most vital parts of investigation.
30. PW1 Ct. Hawa Singh was examined even much earlier on 17.04.09 but even he did not depose complete SC No. 19/09 Page 12 of 28 pages 13 facts and learned prosecutor had to get him declared hostile and elicit full facts by way of leading questions in cross examination. This witness suffered amnesia within a span of three months.
31. Another police witness PW6 ASI Rajender Singh also had to be brought in line by way of leading questions of learned prosecutor allowed by my learned predecessor.
32. Such fragile memory of prosecution witnesses that too the police witnesses in a case where no public person is joined in the proceedings, cannot be a safe piece of evidence to convict an accused and that too for such a grave offence.
33. Interestingly, the contraband allegedly recovered from possession of the accused on the spot was not checked with any field testing kit, as admitted by the PW6 ASI Rajender Singh in his cross examination and it is out of his experience that he smelt and identified smack in the contraband. The first IO PW8 ASI Nassu Ahmed went SC No. 19/09 Page 13 of 28 pages 14 a step ahead in responding to specific question as to how he came to know that the seized powder was smack; PW8 stated that it was mentioned in the secret information that smack could be recovered and accused himself told that it was smack. It is indeed not just irresponsible, but also quite a dangerous practice to conduct such proceedings merely on the basis of personal assumptions. For, if the powder allegedly recovered and assumed to be a contraband merely on the basis of smell and the so called experience, turns out to be some harmless or even talcom powder upon analysis in forensic lab, by the time the report is issued, the accused would suffer unnecessary incarceration and the detention would be illegal.
34. It can be argued that when secret information was received, the first IO was outside police station on patrol duty, so had no access to the field testing kit. But nothing prevented the first IO ASI Nassu Ahmed who was accompanying ASI Rajender Singh and Ct. Hawa Singh to SC No. 19/09 Page 14 of 28 pages 15 send either of them to the police station to fetch the field testing kit even after apprehending the accused on the spot. Even the packaging material, viz. cloth for pullandas and sealing material etc. would also have been got fetched from the police station since it is nobody's case nor can the same be that even on patrol duty, IO bag was carried by the first IO.
35. It fails to inspire confidence that even in such a grave offence the investigating officer would go by his mere sense of smell and the so called experience, especially experience of such an investigating officer who fails to depose even the most crucial facts in his chief examination and takes shelter under the lame excuse of lapse of memory over a passage of time.
36. Memory of PW1 Ct. Hawa Singh, who was examined just three months after the alleged raid failed him to such an extent that contrary to the entire prosecution case of seizure of four pullandas, PW1 deposed that only three pullandas were prepared on the SC No. 19/09 Page 15 of 28 pages 16 spot. Not only this PW1 went on to say that the accused was arrested by ASI Nassu Ahmed the first IO, contrary to the entire prosecution case and remained silent about delivery of rukka by him from the spot, followed by arrival of the second IO and arrest proceedings; PW1 had to be brought in line by learned prosecutor by way of leading questions in cross examination.
37. Contrary to the entire prosecution case, PW1 stated that notice under Section 50 NDPS Act as well as reply thereof were written personally by the SHO.
38. PW1 stated that he could not even tell as to who wrote rukka, though as per prosecution case it is he who took the rukka to the police station.
39. PW1 stated that the case property was deposited in malkhana by the SHO. But the relevant entry of register no.19 Ex. PW4/A names the first IO ASI Nassu Ahmed as the person who deposited the case property in malkhana, which is in itself contrary to the entire prosecution case.
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40. Similarly, PW6 ASI Rajender Singh suffered lapse of memory on certain vital aspects. In his chief examination, PW6 stated that reply of the accused to notice under Section 50 NDPS Act "was oral and it was not reduced into writing"; on being allowed by my learned predecessor, the learned prosecutor put a leading question and showed the written reply to PW6 and only then PW6 admitted that the reply was in writing.
41. Similarly, as regards the seal of the first IO also, PW6 stated in chief examination that seal of the first IO was NS but in response to leading question put by the learned prosecutor with the permission of my learned predecessor and on being shown the documents, PW6 admitted that the seal was NA and not NS.
42. PW6 ASI Rajender Singh deposed that the secret information was written down by the IO in his presence in the daily diary register, which is totally contrary to the entire prosecution case that the secret information was SC No. 19/09 Page 17 of 28 pages 18 received when the police officials were outside the police station on patrol duty.
43. PW6 stated that reply to the notice under Section 50 NDPS Act was written by the accused, which is contrary to the statement of other witnesses including the first IO who stated that accused being illiterate, reply to the notice was written by him (the first IO).
44. PW6 ASI Rajender Singh stated that nothing was written on the 292 paper pouches (pudias), which also is totally contrary to the entire prosecution case and specifically the detailed testimony of PW9 SHO who stated that numbering on the paper pouches was done by one of the police officials on the spot. The first IO ASI Nassu Ahmed, on being shown the paper pouch slips admitted that the same bore numbers but stated that he did not remember as to who wrote those numbers.
45. PW8 ASI Nassu Ahmed, the first IO stated contrary to the testimony of other witnesses that the notice under Section 50 NDPS Act is not in his handwriting and stated SC No. 19/09 Page 18 of 28 pages 19 that the same had been got written by him from some subordinate whose name he did not remember.
46. As regards reply to the notice, the first IO stated in chief examination that it is he who wrote the reply to the notice but in cross examination in self contradiction he stated that reply to the notice is not in his handwriting.
47. A very significant aspect that remains unexplained is that as per prosecution case, specifically the testimony of PW9 SHO Inspector Dara Singh, four label memos Ex. PW9/2-5 were prepared bearing his signatures with carbon copy of each memo placed inside the pullandas. But the FSL report dated 26.02.09 fails to mention having found any label memo inside the two pullandas sent for chemical analysis. This causes a serious dent in the truthfulness of prosecution story.
48. Another very crucial aspect is the unexplained delay in sending the sample contraband to the forensic lab. As per prosecution case, the contraband was seized on 17.01.09 and was sent to FSL on 03.02.09.
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49. So far as the legal position is concerned, in the case of BUTA SINGH vs STATE OF PUNJAB, 2006 (2) CC CASES 42, Hon'ble High Court held that failure of prosecution to explain by leading evidence delay of 8 days in dispatch of sample to FSL is fatal to the prosecution. In the case of PARMINDER SINGH vs STATE OF HARYANA, 2007 (2) JCC (NARCOTICS) 71, failure to explain the delay of 25 days in sending the sample for analysis was taken as a circumstance by the Hon'ble High Court that creates doubt about truthfulness of prosecution case.
50. In the case of BALBAN SINGH vs STATE, III (2008) CCR 395, Hon'ble Delhi High Court held as under:
"13. The next submission concerned the delay of over a month and a half in sending the seized sample for testing to the FSL. The seizure was made on 22nd July, 2002 and the sample was sent for testing on 13th September 2002. The Supreme Court has in Valsala vs State of Kerala, II (1993) CCR 167 SC = 1993 (2) Crimes 267 SC and later SC No. 19/09 Page 20 of 28 pages 21 in State of Gujrat vs Ismail U Hazi Patel, (2003) 12 SCC 19, held that the delay per se would not be material. What had to be established was that the seized articles were in proper custody and in proper form and that the sample sent to the chemical analyst for testing was the same that was seized."
51. In the case of GURCHARAN SINGH vs STATE OF HARYANA, 2008 (1) CC CASES (HC) 375, it was held as under:
"14. However, the glaring aspect of the case is that the sample was seized on 20.06.94 and the same was sent to the forensic science laboratory on 05.07.94. This delay has largely remained unexplained. It has to be noticed that even though the seals remain with the police officials and the possibility of its tampering cannot be ruled out."
52. As described above, it was the duty of prosecution to prove by leading evidence the explanation for delay in SC No. 19/09 Page 21 of 28 pages 22 sending the sample to the FSL. But no such evidence was adduced. It is also not a case that the evidence on record establishes to the hilt that there was no scope of any tampering with the seized material and that the sample tested by the FSL was the same that was seized in the raid. In the present case, what is to be seen is as to whether there are any circumstances that would give rise to a reasonable doubt as regards safe custody of the material allegedly recovered from the accused. What is to be seen is as to whether the evidence as regards keeping the allegedly recovered contraband in safe custody rules out the possibility of tampering.
53. Register no.19 is a crucial evidence that would reflect the conditions in which the recovered material was kept in order to rule out the possibility of tampering. As described above, contrary to the entire prosecution case that the case property was deposited in the malkhana by the SHO, the entry Ex. PW4/A of register SC No. 19/09 Page 22 of 28 pages 23 no.19 reflects the name of person depositing the case property as ASI Nassu Ahmed, the first IO.
54. As per entry Ex. PW4/B of register no.19, only the two pullandas were sent to FSL; as per road certificate Ex. PW4/D also only two pullandas were sent to FSL; as per receipt Ex. PW4/E also only two sealed pullandas were received in the FSL. There is no evidence on record to show that FSL form also was sent to the FSL alongwith the pullandas and consequently, it remains unexplained as to how the FSL received the FSL form with which the seal on the pullandas was tallied as per report dated 26.02.09.
55. Further, as per entry Ex. PW4/A of register no.19, the original notice under Section 50 NDPS Act recovered from personal search of accused after arrest was deposited in malkhana. The said original notice under Section 50 NDPS Act was filed alongwith the chargesheet and is described in the list of documents. But there is no SC No. 19/09 Page 23 of 28 pages 24 entry in the register no.19 to show movement of the original notice out of malkhana.
56. Even the entry Ex. PW4/A of register no.19 is a mere verbatim copy of the seizure memo only. There is no observation in Ex. PW4/A that the articles described have been deposited in the malkhana. Under such circumstances, possibility of tampering cannot be ruled out.
57. Further, PW5 ASI Dhyan Singh who allegedly took the sample parcels to FSL stated in his cross examination that he did not notice the markings/numbers on the sample pullandas.
58. As described above, contrary to the testimony of the SHO and the first IO no label memos were found by the chemical examiner in the pullandas sent to FSL. It creates strong doubt as to whether the contraband analysed at FSL was the one that was allegedly recovered from the accused.
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59. In view of such circumstances coupled with the quality of oral testimony brought on record as described above, unexplained delay in sending the samples to the FSL gains significance and destroys credibility of the prosecution case.
60. Then, as regards timing of arrest also the evidence fails to inspire confidence. The time of arrest in the arrest memo Ex.PW1/E is shown to be 07:00pm but there is overwriting in the portion of minutes in the said time and there is no correction initial on the same. Even otherwise, as per prosecution case the accused was apprehended at about 03:35pm. In the case of SEHDEV vs STATE, 2009 (3) JCC (NARCOTICS) 128, Hon'ble Delhi High Court held that such a discrepancy of timings cannot be brushed aside since the concept of informal arrest as contrasted with formal arrest is not envisaged in the Criminal Procedure Code or even NDPS Act and the arrest memo is supposed to bear the precise time of SC No. 19/09 Page 25 of 28 pages 26 apprehending the accused, failing which the arrest memo creates considerable doubt.
61. The record thus, is riddled with numerous inconsistencies, improbabilities and glaring contradictions which strike at the very root of the matter and create strong doubt as regards truthfulness of prosecution case. Conduct of raid and recovery of contraband as well as arrest of accused does not appear to have taken place in the manner alleged by the prosecution.
62. Prosecution has failed to prove its case beyond reasonable doubt. As such the accused is held not guilty of charges framed against him. Consequently the accused is acquitted. Bail bond is cancelled and surety is discharged.
63. In my considered view, the present case cannot be closed at this stage itself. The manner in which the first investigating officer ASI Nassu Ahmad and his companions of the alleged raid namely Ct. Hawa Singh SC No. 19/09 Page 26 of 28 pages 27 and ASI Rajinder Singh deposed in this case is not just shocking for the alleged lapse of their memory but also for the aspects on which their memory allegedly failed them. As described above, such aspects were so basic and rudimentary that it appears too simplistic to believe that it was just a bonafide lapse of memory. For example, the first investigating officer himself stating in his chief examination that he wrote reply to the notice and in self contradiction stating in his cross examination that the same is not in his handwriting; and ASI Rajinder Singh going to the extent of stating that reply of accused to notice under Section 50 NDPS Act was oral, which is unprecedented; and Ct. Hawa Singh deposing almost completely hostile to the prosecution case. It definitely needs to be looked into by the superior authorities of the investigating agency to rule out possibility of efforts to shield the accused or the possibility of efforts to bail out an innocent person framed in such a serious case.
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64. A copy of this judgment be sent to the Commissioner of Police to probe into the above issues in the overall interest of the institution and for appropriate action.
65. I must also place on record appreciation for Sh. Pradeep Anand, Advocate, learned counsel for accused with whose able assistance this case came to be decided within one year of the alleged offence.
66. File be consigned to records.
ANNOUNCED IN THE OPEN COURT ON 19th JANUARY 2010 (GIRISH KATHPALIA) ADDL. SESSIONS JUDGE SPECIAL JUDGE, NDPS(NORTH) DELHI SC No. 19/09 Page 28 of 28 pages