Delhi District Court
The State vs Rameshwar Mehto S/O Sh on 26 March, 2008
IN THE COURT OF SH BABU LAL ADDL SESSIONS
JUDGE/SPECIAL JUDGE (NDPS)DELHI
SC No 144/07
The State Versus Rameshwar Mehto S/o Sh
Mahesh Mehto R/o Vill.
Ratanmala PO and PS
Majwalia,Distt.Betia,Bihar.
FIR No 449/07
P.S. Kashmere Gate
U/s 20/61/85 NDPS Act.
Arguments heard on 25.03.2008
Judgment pronounced on 26.03.2008
JUDGMENT
1. Prosecution has filed the present challan against accused Rameshwar Mehto U/s 20 of Narcotic Drugs and Psychotropic Substances Act ( hereinafter referred to as 1 the Act). Case of the prosecution in brief is that on 7.8.07 Ct Tejbir Singh was allegedly on duty at out gate, ISBT, Kashmere Gate. At about 4.20 p.m. while he was checking the passengers, accused is alleged to have come with a heavy bag towards outgate and on seeing him, he allegedly turned back. On suspicion, he is alleged to have apprehended him. When Ct Tejbir Singh allegedly asked accused to open the bag, he became perplexed and told that it contained Ganja. He allegedly opened the bag and found Ganja contained a black coloured polythene. In the meantime, ASI Manohar Lal is alleged to have reached there. ASI Manohar Lal is alleged to have ascertained the recovered substance as Ganja. ASI Manohar Lal allegedly recorded statement of Ct Tejbir Singh. Weighing material was brought by Ct Tejbir Singh from police post. 4/5 passers by were allegedly requested to join the proceedings but they declined 2 expressing their genuine difficulties. ASI Manohar Lal is alleged to have given notice U/s 50 of the Act to the accused and apprised him of his legal right that since Ganja had been recovered from his possession and he could be in possession of more contraband, therefore, his search was required to be taken and if he so desired, his search could be taken in the presence of a Gazetted Officer or a Magistrate. But he is alleged to have declined this offer. Ganja was allegedly taken out and was weighed and it came to 12 Kg out of which 500 gram Kg was taken as sample and was converted into a pulanda. Remaining Ganja was converted into another pulanda. Form FSL is alleged to have been filled in. Thereafter both the pulandas and form FSL are alleged to have been sealed with the seal of MLJ. Both the pulandas and form FSL were allegedly taken into police possession. Tehrir was allegedly prepared. Case was 3 allegedly got registered by sending Ct Tejbir Singh to the PS with rukka and case property with directions to hand over the rukka to duty officer and case property along with form FSL to SHO. After registration of the case, SI M.S.Kamal is alleged to have reached the spot as investigation was assigned to him. He is alleged to have prepared site plan, arrested accused, conducted his personal search, recorded statement of the witnesses, sent information U/s 57 of the Act to Senior Officers of the Police, got the sample sent to FSL. After obtaining report of FSL, he is alleged to have tendered the same in evidence. After completion of the investigation, he filed the chargesheet in the court.
2. On appearance, accused was supplied with copies of the challan and documents filed therewith as required under Section 207 Cr.P.C.
3. Charge U/s 20 of the Act was framed against the 4 accused Rameshwar Mehto to which he pleaded not guilty and claimed a trial.
4. In order to bring home guilt of the accused, prosecution in all has examined as many as eight witnesses out of which PW-6 Ct Tejbir Singh and PW-9 ASI Manohar Lal are witnesses of alleged recovery and rest of witnesses are witnesses of investigation.
5. The accused was examined under Section 313 Cr.P.C. His case is that he is innocent and has been falsely implicated in this case.
6. PW- 6 Ct Tejbir Singh in his testimony has stated that on 7.8.07 he was on duty at out gate, ISBT, Kashmere Gate. At about 4.20 p.m. while he was checking the passengers, accused is deposed to have come with a heavy bag towards outgate and on seeing him, he turned back. On suspicion, he is deposed to have apprehended him. When he asked accused to open the 5 bag, he is deposed to have become perplexed and told that it contained Ganja. He is deposed to have opened the bag and found Ganja contained a black coloured polythene. In the meantime, ASI Manohar Lal is deposed to have reached there. ASI Manohar Lal is deposed to have ascertained the recovered substance as Ganja. ASI Manohar Lal is deposed to have recorded his statement which has been proved as Ex PW6/A. Weighing material is deposed to have been brought by him from police post. ASI Manohar Lal is deposed to have given notice U/s 50 of the Act Ex PW9/B to the accused and apprised him of his legal right that since Ganja had been recovered from his possession and he could be in possession of more contraband, therefore, his search was required to be taken and if he so desired, his search could be taken in the presence of a Gazetted Officer or a Magistrate. But he is deposed to have 6 declined this offer vide his reply Ex PW9/C. Ganja is deposed to have been taken out and was weighed and it came to 12 Kg out of which 500 gram Kg was taken as sample and was converted into a pulanda. Remaining Ganja was converted into another pulanda. Form FSL is deposed to have been filled in. Thereafter both the pulandas and form FSL are deposed to have been sealed with the seal of MLJ. Both the pulandas and form FSL were taken into police possession vide memo Ex PW6/B. Tehrir Ex PW9/A was prepared and handed over to him with with directions to hand over the rukka to duty officer and case property along with form FSL to SHO. He is deposed to have handed over the tehrir to duty officer and other articles to SHO. SHO is deposed to have put his seal of AK on all the articles and deposited them in the malkhana. He is deposed to have reached the spot and handed over copy of FIR and tehrir to SIM.S. Kamal. 7
SI M.S. Kamal is deposed to have prepared site plan Ex PW6/C at his instance. He has identified Ganja recovered from accused as Ex P-1, polythene as Ex P-2 and black bag as Ex P-3. He has identified remnants of sample as Ex P-4.
7. Mutatis mutandis PW-9 ASI Manohar Lal has also deposed to the same effect on all the material facts, and his testimony has not been reproduced here for the sake of brevity.
8. PW-1 is Inspector Arun Kumar. On 7.8.07 he was working as SHO, PS, Kashmere Gate when Ct Tejbir Singh came to him at 5.55 and handed over two pulandas and form FSL sealed with the seal of MLJ along with carbon copy of the seizure memo. He is deposed to have affixed his seal of AK on both the pulandas as also on form FSL and put FIR number thereon. He is deposed to have deposited the above articles in the malkhana. He is 8 deposed to have signed register No 19 against the relevant entry. He is deposed to have made DD No 23A in this regard copy of which has been proved as Ex PW1/A.
9. PW-5 ASI Jagdish Chander was working as duty officer on 7.8.07. On that day at about 5.55 p.m. he is deposed to have received a rukka through Ct Tejbir Singh and sent by ASI Manohar Lal on the basis of which he recorded FIR in this case. He has proved copy of the FIR as Ex PW5/B and endorsement made by him on the rukka as Ex PW5/A.
10. PW-2 Hc Bijender Singh was working as MHCM on 8.7.2007 in PS Kashmere Gate. He has deposed that on that day Inspector Arun Kumar Sharma, SHO had deposited two pulandas, one form FSL duly sealed with the seal of MLJ and AK along with carbon copy of seizure memo in malkhana vide entry No 4433 in register 9 No 19. He has further testified that on the same day IO SI M.S.Kamal had deposited personal search of accused in the malkhana. On 27.8.07 he is deposed to have got sent the sample pulanda and form FSL sealed with the seal of MLJ and AK to FSL Rohini through Ct Ved Parkash through RC No 136/21. On 16.11.07 result of FSL along with pulanda containing remnants of sample is deposed to have been received in malkhana through Hc Devender. He is deposed to have deposited sample parcel containing remnants in the malkhana and handed over result to IO. He is deposed to have made entry in register No 19 in this regard. He has proved copy extract of register No 19 showing above entries as Ex PW2/A. He has also proved copy of RC No 136/21 as Ex PW2/B and copy of receipt as Ex PW2/C.
11. PW-4 Ct Ved Parkash is deposed to have taken the sample along with form FSL duly sealed with the seal 10 of MSK and AK to FSL vide road certificate 136/21 and deposited it there on 27.8.07. On his return to PS, he is deposed to have handed over receipt of RC to MHCM. He has also testified that till the time above articles remained in his custody, nobody had tampered with the same and seal thereon remained intact.
12. PW-3 Ct Parkash in his testimony has stated that report U/s 57 NDPS Act Ex PW3/A pertaining to this was received in his office on 9.8.07 vide entry at Sl No 4987. He has proved copy of diary register containing relevant entry as Ex PW3/B.
13. PW-8 Ct Neeraj Kumar was working as DD writer at PP ISBT. He has proved copy of DD No7,16 and 17 dated 7.8.07 as Ex PW8/A to 8/C respectively.
14. PW-7 SI M.S.Kamal is IO of the case. He has testified that on 7.8.07 at about 7.00 p.m. Investigation of this case was assigned to him, therefore, he reached the 11 spot i.e. out gate ISBT where ASI Manohar Lal along with his staff and accused met him. ASI Manohar Lal is deposed to have handed over documents and custody of the accused to him. He is deposed to have inspected the site and prepared site plan Ex PW6/C at the instance of Ct Tejbir Singh. He is deposed to have arrested accused vide memo Ex PW7/A and conducted his personal search vide memo Ex PW7/B. Accused was got medically examined. He is deposed to have recorded statement of witnesses. He is deposed to have sent information U/s 57 of the Act Ex PW3/A ( carbon copy is Ex PW7/C) to Sr Officer of the police. He is deposed to have got sample sent to FSL on 27.8.07 through Ct Ved Parkash. Report of FSL has been proved as Ex PX-1 and PX-2 in which contents of sample have been opined to be cannabis plant.
15. It has been argued by ld APP that accused was apprehended by the police and from his possession 12 12 Kgs of Ganja was recovered from the bag carried by him. It has been argued that sample drawn in this case was sent to FSL for chemical analysis and as per report of FSL, contents of the sample taken from the stuff recovered from the accused have been opined to be Ganja, therefore, case against the accused U/s 20 NDPS Act stands proved.
16. It is argued by ld defence counsel that place of apprehension of accused was ISBT, Kashmere Gate where public persons were available yet no one has been joined, therefore, testimony of the police officials is not trust worthy. On the other hand, ld Addl PP for the State has argued that public persons were asked by the police to join the proceedings but they declined, therefore, non joining of any independent witness was beyond the control of police.
17. It is well settled law that it is not sine qua non to 13 the credibility of police officials that invariably their testimony should be corroborated by independent witness. Even otherwise in Munshi and others vs. State 20 (1981) DLT (SN) 26 had observed that public generally hesitate to associate with police therefore the police has to take help of person known to them or the complainant. Even otherwise, in Natho Singh vs. State AIR 1973 SC 2763 the Lordship of Hon'ble Supreme Court has held that evidence of police officials cannot be discredited in the absence of the hostility to the accused. In other authority reported as State vs. M.M. Methew AIR 1978 SC (1571) it was held that evidence of police officials cannot be branded as highly interested only on the ground that they are interested in the success of their case. Even in Appa Bhai vs State of Gujrat AIR 1988 SC 696, it has been held that civilised people are generally insensitive when a crime is committed in their 14 presence. They keep themselves away from the court unless it is inevitable and they try to avoid to involve themselves. In the present case, place of apprehension of accused was out gate of ISBT. Though PW-9 ASI Manohar Lal in his testimony has stated that he had asked 4-5 passers by to join the proceedings but they declined to do so expressing their genuine difficulties and went away yet PW-6 Ct Tejbir Singh is silent if he had asked any public person to join the proceedings. He did not utter even a single word in this regard. There were stalls near the place of incident. However, ASI Manohar Lal did not ask any shop keeper or stall vendor to join in the proceedings. No explanation has been given in this regard. It shows that first IO ASI Manohar Lal intentionally avoided to join the stall vendors and shop keeper in the proceedings. No reasons have been give for such an unusual conduct on the part of IO. Therefore, 15 this is a circumstance which should be taken into account while appreciating the evidence of PW-9.
18. Second circumstance which requires consideration is that soon after apprehension of accused, ASI Manohar Lal is deposed to have appeared at the spot. He is deposed to have recorded statement of Ct Tejbir Singh Ex PW6/A and sent the same to PS for registration of the case. Rukka Ex PW9/A was sent at 5.45 p.m. Recovery is alleged to have been effected at 4.10 p.m. No explanation is forthcoming as to what was done between 4.10 p.m. to 5.45 p.m. when rukka was sent. On the basis of rukka FIR Ex PW5/B was recorded. In Ex PW5/B it has been mentioned that information was received at 5.55 p.m. and recorded in general diary as DD No 22A which shows that DD was recorded first and then FIR was recorded. First of all, FIR has to be recorded and only then it is to be followed by a DD in the daily diary 16 register. But practice of the police in recording DD first and then recording FIR is contrary to the provisions of law as contained in section 154 of Code of Criminal Procedure. This practice has been deprecated by Hon'ble Supreme Court in Paramjit Singh vs State of Punjab, AIR 2008 SC 441 where it has been held that when any information has been received by the PS, if it discloses commission of a cognizable offence, FIR has to be straightway recorded. It was further held that practice of the police official governed by Punjab Police Rules to enter the information into daily diary of PS first and then record the FIR is contrary to provisions of Code of Criminal Procedure inasmuch as provisions of Punjab Police Rules do not override the provisions of Code of Criminal Procedure. By this method police can easily overcome the difficulty of anti dating and anti timing of the FIR. After FIR has been recorded, DD to this effect 17 is required to be made in daily diary. Purpose of such entry in daily diary is to ensure that FIR had actually been recorded at the time given in the DD entry. Therefore, in the present case, no reliance can be placed on the assertion of the prosecution that FIR was recorded on 7.8.07 at 5.55 p.m. inasmuch as distance between place of incident and PS is 1 K.M. as mentioned in the FIR, rukka was sent at 5.45 p.m., Ct Tejbir Singh might have taken time to reach PS, DD No 22A was recorded first and then FIR was recorded. It does not appeal to the reasons that all these proceedings could have been completed within 10 minutes. Therefore, possibility of whole of the proceedings being conducted in the PS can not be ruled out.
19. It is further argued that it is duty of the prosecution to rule out the possibility of sample being changed or tampered with and if same has not been ruled 18 out, accused is entitled to benefit thereof. On the other hand, ld Addl PP has argued that prosecution has examined all the witnesses who might have handled the sample, therefore, possibility of sample being changed or tampered with stands ruled out.
20. PW-9 ASI Manohar Lal in his testimony has stated that after recovery of 12 Kg Ganja, he had taken out 500 gram Ganja as sample and sample Ganja and remaining Ganja were converted into two separate pulandas which were sealed with the seal of MLJ. He is deposed to have also filled in form FSL and sealed the same with above seal and handed over both the pulandas and form FSL to Ct Tejbir Singh with directions to hand over the same to SHO. According to PW-6 Ct Tejbir Singh, he hand handed over two pulandas and from FSL to SHO along with form FSL having aforesaid seal impressions. SHO has been examined as PW-1 Inspector 19 Arun Kumar. He has stated that on 7.8.2007 Ct Tejbir Singh had produced two pulandas and form FSL sealed with the seal of MLJ along with carbon copy of seizure memo. He is deposed to have affixed his seal of AK on both the sealed pulandas as also on FSL form, put FIR number on them and deposited the same in malkhana. MHCM is deposed to have made entries in register No
19. He is deposed to have also lodged DD No 23A Ex PW1/A in this regard. MHCM in this case has been examined as PW-2. PW-2 Hc Bijender Singh in his testimony has deposed that on 8.7.2007 SHO Inspector Arun Kumar Sharma had deposited two pulandas, one FSL form duly sealed with the seal of MLJ and AK and copy of seizure memo in PS Malkhana and he made in register No 19. Copy of the malkhana register has been proved as Ex PW2/A. If I peruse copy of register No 19 Ex PW2/A, I find that it is nothing but reproduction of 20 seizure memo which only narrates that two pulandas and one FSL form sealed with the seal of 'MLJ' were deposited. There is no mention of the fact in Ex PW2/A if pulandas were also sealed with the seal of AK. Therefore, version of PW-1 Inspector Arun Kumar and PW-2 Hc Bijender Singh is not supported by Ex PW2/A that two pulandas and form FSL sealed with the seal of MLJ and AK were deposited in the malkhana.
21. Next step taken by MHCM was that he had sent the sample to FSL for chemical analysis. PW-2 Hc Bijender Singh has further stated that on 27.8.07 he had sent one sample pulanda and form FSL sealed with the seal of MLJ and AK to FSL through Ct Ved Parkash. Ct Ved Parkash has been examined as PW-4. According to him one sample pulanda and form FSL sealed with the seal of ''MSK'' and ''AK'' were taken by him to FSL vide RC No 136/21 on 27.8.07. Copy of RC as Ex PW2/B. If 21 I peruse copy of RC Ex PW2/B, I find that there is no mention that sample pulanda sealed with the seal of MLJ and AK was accompanied by any form FSL. Therefore, Ex PW2/B copy of RC does not support the version of MHCM PW-2 Hc Bijender Singh and PW-4 Ct Ved Parkash that FSL form had also been sent along with sample pulanda. There is an endorsement in Ex PW2/A regarding sending of the sample to FSL in which it is mentioned that a sample pulanda sealed with the seal of MLJ and AK and form FSL were sent to FSL through Ct Ved Parkash on 27.8.07. Therefore, it is clear that form FSL was not sealed with above seals. Even otherwise the version of PW-4 Ct Ved Prakash is that pulanda and form FSL were sealed with the seal of ' MSK' and 'AK' and not 'MLJ' and 'AK'. It is clear that sample and FSL form when deposited in the malkhana were not having both the seals of MLJ and AK thereon but had seals of 'MSK' and 22 'AK' thereon. Even there is no mention of sending of FSL form to FSL in Ex PW2/B.
22. In State of Rajasthan vs Daulat Ram AIR 1980 SC 1314, it was held that it was the duty of the prosecution to prove that while in their custody, the sample was not tampered with before reaching the public analyst. In Subhash Chand Mishra vs State 2002(2) JCC 1379, it was held by their lordships that prosecution is under an obligation to prove that the sample delivered to CFSL was in the same condition and there was no possibility of tampering with it. In Mohd Hasim vs State ( Delhi) 1999 ( 3) C.C. Cases DHC 149 and Eze Val Okele @ Val Eze vs Narcotic Control Bureau 2005 1 AD ( Cr.) DHC 185, it has been held that prosecution is bound to produce even link evidence that sealed pulandas of case property from the time they were taken till they were deposited in the malkhana and till they were 23 deposited in the FSL, the seal thereon was not tampered with by examining all the witnesses who had handed the sample. It was also held that if any link is missing, then it can not be said that prosecution has ruled out the possibility of sample being tampered with or changed and accused would be entitled for acquittal. In view of these authorities and above discussion, I am of the view that on this very count, accused is entitled for benefit of doubt.
23. Therefore, facts brought on record do not rule out the possibility of sample being changed or tampered with in the malkhana. In other words, prosecution has not ruled out the possibility of case property and sample being changed or tampered with in the malkhana. It also does not stands proved on record that seal on the sample as well as on FSL form remained intact from the time they were deposited in the malkhana till they were sent to 24 FSL. These are some of the circumstances which create a doubt about veracity of the prosecution case.
24. In view of reasons given above, I hold that it will be most unsafe to rely upon the testimony of prosecution witnesses. Accordingly I come to the conclusion that that prosecution has failed to prove its case against accused beyond reasonable doubts. After giving benefit of doubt, accused Rameshwar Mehto is accordingly acquitted. He be set at liberty forthwith, if not required in any other case.
Announced on the Open Court
on 26.03.08 (BABU LAL)
ASJ/SPL. JUDGE( NDPS)
DELHI
25