Delhi District Court
State vs . Santosh @ Gattar Etc. on 15 May, 2013
In the Court of Sh. Arvind Bansal : MM (Central) - 04
Tis Hazari Courts, Delhi
JUDGMENT
FIR No. 133/05 U/s 27/61/85 NDPS Act & S. 174A IPC PS NDRS State vs. Santosh @ Gattar Etc. A Sr. No. of the case 02401 R038002005 B Date of institution 06/05/2005 C Date of commission of 15/03/2005 offence D Name of the complainant SI Brijesh Malik through State E Name of the accused & his 1. Mohd. Shamshad @ Tisri Aankh parentage and address s/o Mohd. Usman r/o Jhuggi No. C-5, Paharganj, New Delhi.
2. Santosh @ Gattar s/o Bhagwat Prasad r/o Vegabond, Ajmeri Gate Side, NDRS, Delhi. (already convicted vide plea bargaining proceedings) F Offence complained of U/s 27/61/85 NDPS Act & S. 174A IPC G Plea of the accused Pleaded not guilty H Order Reserved on 15/05/2013 I Final order Accused Mohd. Shamshad @ Tisri Aankh acquitted u/s 27/61/85 NDPS Act & Convicted u/s 174A IPC J Date of such order 15/05/2013 Brief statement of reasons for decision of the case:
1. Accused Shamshad is facing trial having been charged for the offence FIR No. 133/05, PS NDRS State vs. Santosh @ Gattar Etc. Page No. 1 of 10 u/s 27/61/85 NDPS Act. The facts in brief leading to the commencement of criminal proceedings against the accused may be summed up as under:- On 15.03.2005 at about 07:35 am at Platform No. 8/9, NDRS (New Delhi Railway Station), Delhi accused was found consuming smack (Diacetylmorphine) with the help of panni pipe. After completion of the necessary formalities u/s 27/61/85 NDPS Act, FIR was registered against the accused. He was formally arrested and his personal search memo and arrest memo were prepared.
2. After completion of the investigation, challan u/s 173 Cr.P.C. was filed by the IO on 06.05.2005 u/s 27/61/85 NDPS Act. The Court took cognizance of the offence on the facts alleged in the challan and proceeded against the accused. Accused was supplied with the copy of challan in compliance of Sec. 207 Cr.P.C. After hearing the arguments, notice u/s 27 of NDPS Act was served upon the accused, to which accused pleaded not guilty and claimed trial.
3. It is necessary to observe that the accused stopped appearing before the Court and the Court after necessary observations, ordered the issuance of process u/s 82 CrPC against the accused.
The accused Shamshad failed to appear before the Court despite publication of a declaration U/s 82 (1) Cr.P.C. and was thus, declared ABSCONDING vide order dated 07.08.2012. The accused by his non appearance before the Court despite publication of a declaration u/s 82 CrPC, committed an offence U/s 174 A IPC. Later, on 01/01/2013, accused Shamshad was apprehended by the police at Ajmeri gate Side, NDRS as he had been declared ABSCONDING vide order dated 07.08.2012 of the Court in case FIR no. 133/05, PS NDRS, U/s 27 NDPS Act and was produced before the Court in compliance of statutory requirements. Finally, after completing the necessary formalities of investigation, IO filed the supplementary charge sheet in the FIR No. 133/05, PS NDRS State vs. Santosh @ Gattar Etc. Page No. 2 of 10 Court against the accused for the offence punishable u/s 174 A IPC.
3. In support of its case u/s 27 NDPS Act prosecution produced and examined following witnesses:
PW1 HC Prem Raj testified that 15.03.2005, he was on patrolling duty with Constable HC Ishwar Dayal and Ct. Virender at Platform No. 8/9, North Side, Near pakka bridge of New Delhi Railway Station. At about 07:30 am, he noticed that a person (with co-accused Santosh) was sitting and consuming smack with the help of panni pipe. He deposed that he requested 4 / 5 passersby to join the proceedings, but none of them agreed and went away without disclosing their names and addresses. They apprehended both the accused and informed them about their right to get their personal search conducted in the presence of Gazetted Officer or a Magistrate and also gave them an individual notice u/s 50 of NDPS Ex. PW1/A & B but they refused to avail their right. Thereafter, case property including one panni and two pipes was taken into possession by him. After preparing the pulanda, he sealed it with the seal of BM vide seizure memo Ex. PW1/C. He also filled up FSL form. Seal after use was handed over to HC Ishwar dayal. Thereafter, he prepared Tehrir Ex. PW1/D and gave it to Ct. Virender along with pulanda and seizure memo to get FIR registered. He deposed that Ct. Virender went to PS and after registration of FIR, came back to the spot along with SI Abhimanyu, the second IO. He handed over the custody of accused and prepared documents to 2nd IO, who prepared site plan at his instance and same is Ex. PW1/E. The separate notices u/s 52 NDPS Act to both the accused are Ex. Pw1/F & G. Thereafter, 2nd IO arrested and personally searched both the accused vide memos Ex.PW1/H to Ex. PW1/K respectively. His statement was also recorded by 2nd IO. He correctly identified the case property as Ex. P1 (colly) and carbon copies of FIR No. 133/05, PS NDRS State vs. Santosh @ Gattar Etc. Page No. 3 of 10 notices u/s 50 NDPS Act as Ex. P-2 (colly).
The witness was duly cross examined by legal aid counsel for accused.
PW2 SI Abhimanyu testified that 15.03.2005, on receipt of copy of FIR and original Tehrir and he went to the spot at Platform No. 8/9, North Side, Near pakka bridge of New Delhi Railway Station along with Constable Virender where SI Brijesh Malik and HC Ishwar Dayal met him. SI Brijesh Malik handed over the accused and other relevant documents to him after explaining the whole incident. He prepared site plan already Ex. PW1/E at the instance of SI Brijesh Malik. He also proved the arrest and personal search memos of both the accused as already Ex. PW1/H to K. After medical examination, accused were produced before the Court. The witness also correctly identified the case property as already Ex. P-1 & P-2 (Colly).
The witness was duly cross examined by the legal aid counsel for the accused.
It is pertinent to mention that vide his separate statement u/s 294 r/w S. 313(1)(a) CrPC, accused admitted the FSL result as Ex. C1.
4. Further, in support of its case u/s 174-A IPC prosecution produced and examined following one witness.
PW3 HC Harpal Singh testified that on 01.01.2013, he was on duty at PS NDRS and at about 11 am, one secret information was received that one person namely Shamshad who was ABSCONDING in case pertaining to Police Station New Delhi Railway Station, was standing near Parcel House, ajmeri Gate Side, NDRS. He deposed that he along with Ct. Bagicha Singh & Ct. Mukesh kumar and informer reached at the spot and at the instance of informer, apprehended the accused who revealed his name as Shamshad. He deposed that FIR No. 133/05, PS NDRS State vs. Santosh @ Gattar Etc. Page No. 4 of 10 accused was declared ABSCONDING in case FIR No. 133/05, PS NDRS, U/s 27 NDPS Act. He deposed that he prepared Kalandra u/s 41(1)(c) CrPC, DD no. 15A dated 01.01.2013, arrested & personally searched the accused vide documents Ex. PW3/A (Colly).
The witness was not cross examined by Legal Aid Counsel for the accused.
As no material witness was left to be examined, PE was closed and the matter was fixed for Statement of accused.
5. In his statement recorded u/s 313 Cr.P.C., accused denied all the incriminating evidence against him and pleaded false implication. However, he chose not to lead evidence in his defence.
Final arguments advanced by the Ld. APP for State and Ld. Legal Aid Counsel for the accused heard. Record carefully perused.
Appreciation of Evidence:
7. It is to be seen that the accused has been shown to have been caught red handed on 15.03.2005 at about 07:30 am from North side, under Pakka bridge Platform No. 8/9 New Delhi Railway Station. Further, the accused was allegedly caught red handed while consuming smack with the help of panni pipe.
The place and timing of arrest of the accused is such where the presence of independent public witnesses cannot be ruled out. Rather, PW1 SI Brijesh Malik admitted in his examination in chief that he requested passersby to join the investigation but none of them agreed and went away without disclosing their names and addresses, but he did not give any written notice to the public persons who refused to join the investigation.
In these circumstances, burden lies on the prosecution to establish that the FIR No. 133/05, PS NDRS State vs. Santosh @ Gattar Etc. Page No. 5 of 10 association of such persons as Public witnesses was not possible in the facts and circumstances of this case. The arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to seen with suspicion.
There is nothing in the testimony of the police witnesses examined whether any sincere efforts were made by them to join the independent witness. PW1 deposed that no Railway employee was present near the spot but admitted the presence of other public persons. He, however, let them leave without involving them in any proceeding. Such an ordinary conduct of the police official does not support the case of prosecution and acts fatal to the entire set of events put forth by the prosecution. The witness has failed to depose to the effect whether even the names and addresses of such public persons were asked for or recorded or whether any legal action was taken against them for not joining investigation. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the local police in the present case cannot be ruled out.
This observation of the court is fortified by the following observations of the Hon'ble High Court of Punjab & Haryana in case titled Roop Chand vs. State of Haryana, 1999 (1) C.L.R 69:
"...It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case.
In the present case also admittedly the independent FIR No. 133/05, PS NDRS State vs. Santosh @ Gattar Etc. Page No. 6 of 10 witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful..."
8. This contradiction assumes significance on account of another grave contradiction which is to be seen in the document Ex. PW1/C. The said document bear the FIR number. Similarly, notice u/s 50 NDPS Act to accused Shamshad Ex. PW1/B also bears FIR number. It is an admitted case of the prosecution that the said documents were prepared by the 1st IO before sending Constable Virender with Tehrir for registration of FIR. If the 1st IO did not insert the FIR number in these documents, then the presumption is that the 2nd FIR No. 133/05, PS NDRS State vs. Santosh @ Gattar Etc. Page No. 7 of 10 IO might have inserted the FIR number in the said documents.
However, perusal of examination in chief / cross examination of PW2 shows that he did nothing with these documents prepared by the 1st IO.
It raises doubt that that the entire paper work was done by the police officials at the PS itself. It further strengthens the doubt of false implication of the accused.
9. Furthermore, the seal of 'BM' which was used to seal the recovered match sticks and panni pipe was handed over to HC Ishwar dayal after use by IO SI Brijesh Malik. No handing over memo of the seal was ever prepared. Further, the seal was also not deposited in the malkhana by HC Ishwar Dayal. This further adds to the possibility of planting the alleged panni pipe having traces of smack on the present accused.
The arrival and departure entries of the police officials on patrolling duty have also not been proved by the prosecution which raises doubt regarding the presence of the police officials at the alleged place of occurrence.
10. Admittedly, it is the case of prosecution through the testimony of police officials that when the accused Shamshad was apprehended, he was consuming smack with the help of panni pipe. In fact, the panni which was allegedly seized by the IO was also found having the traces of smack i.e., Diacetylmorphine. The police officials never requested the concerned doctor who prepared MLC to take the blood sample of the accused to ascertain that the accused had consumed smack. The MLC which has been placed on record does not prove in any way that the accused had consumed smack. The failure of the concerned police officials to request the doctor to take blood sample and their failure to apprise the doctor the circumstances of the matter requiring the medical examination of accused for ascertaining the presence of traces of FIR No. 133/05, PS NDRS State vs. Santosh @ Gattar Etc. Page No. 8 of 10 Diacetylmorphine in his blood, also affects the case of prosecution. It also strengthens the observation of the Court that the accused may have been falsely implicated in the present matter.
11. These factors and infirmities, in the considered opinion of the court, are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused and extend the benefit of doubt to the accused Shamshad. In view of the foregoing discussion, accused Shamshad is given benefit of doubt and is, accordingly, acquitted of the charged offence punishable u/s 27/61/85 NDPS Act.
12. To establish the offence u/s 174 A IPC beyond reasonable doubt, the prosecution is required to prove the following ingredients:
(A) that a proclamation U/s 82 (1) Cr.P.C. was issued against the accused by the Court.
(B) that the accused failed to appear at the specified place and time as required by the proclamation.
13. The first ingredient of the offence i.e. the publication of a proclamation against the accused stands proved from the order dated 07.08.2012 of this Court. The statement of process server HC Jagbir who had executed the process against the accused has also been perused. The process was issued against the accused U/s 82 (1) Cr.P.C. and he was declared ABSCONDING accordingly.
As per the proclamation published against the accused, he had to appear before the Court on 08.06.2011 at 10 AM but he failed to appear despite the publication of the proclamation and hence, was declared ABSCONDING.
The proceedings carried out by the police officials on 01.01.2013 i.e. the arrest of the accused Shamshad is a subsequent development which does not FIR No. 133/05, PS NDRS State vs. Santosh @ Gattar Etc. Page No. 9 of 10 affect the factum of issuance of proclamation and the non appearance of the accused thereupon. The defence of the accused that he went to his native place at kolkatta where he fell ill and could not appear before the Court, does not dent the conclusive evidence that he had failed to appear after declaration of a proclamation.
The accused has failed to accord any reasonable ground for his non appearance before the Court as required by the declaration U/s 82 (1) Cr.P.C. and thus, has failed to raise any defence on the standard of preponderance of probabilities. Even otherwise, S. 174A IPC does not create or provide any defence or exception to the accused which he could use to his benefit.
14. In view of the aforesaid discussion, Court is of the considered opinion that prosecution has proved its case against the accused beyond reasonable doubt and hence, accused Shamshad is hereby convicted of the offence u/s 174A IPC.
Dictated and announced in the open Court on May 15, 2013.
(Arvind Bansal) Metropolitan Magistrate(Central)-04 Tis Hazari Courts, Delhi FIR No. 133/05, PS NDRS State vs. Santosh @ Gattar Etc. Page No. 10 of 10