Delhi District Court
State vs . Pradeep Kumar @ Deepu on 22 September, 2021
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
Presided by: Ms. Manika
DLST020428192019
CR CASES/4766/2019
STATE Vs. PRADEEP KUMAR @ DEEPU
State v. Pradeep Kumar @ Deepu
FIR No. 42/2019
Police Station : Mehrauli
Under Section: 27 NDPS Act, 1985
CNR Number: DLST020428192019
Date of institution : 24.09.2019
Date of reserving : Oral
Date of pronouncement: 22.09.2021
JUDGEMENT
a) Serial number of the case : 4766/2019
b) Date of commission of : 11.01.2019 offence
c) Name of the complainant : Sub-Inspector Sohan Lal No.D/2230, PS Mehrauli, New Delhi
d) Name, parentage and : Pradeep Kumar @ Deepu address of the accused s/o Sh. Ram Prasad, r/o H.No. 2193, L-1st, Gali No.10, Sangam Vihar, New Delhi.
e) Offence complained of : Section 27 of the Narcotic Drugs State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 1 of 15 and Psychotropic Substances Act, 1985 f) Plea of the accused : Pleaded not guilty g) Final order : Acquitted h) Date of final order : 22.09.2021 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, the accused Pradeep Kumar @ Deepu is being acquitted of the offence punishable under Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') in this case FIR No. 42/2019 police station Mehrauli by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 11.01.2019, Sub-Inspector Sohan Lal, Constable Sandeep and Constable Manish were on patrolling duty in beat No.3, Ward No.8, Mehrauli, New Delhi. While patrolling, at about 03.10 pm, near Jahaaj Mahal, a secret informer informed Sub-Inspector Sohan Lal that one person sitting near the wall of Picnic Put Park is consuming smack through one plastic pipe and if raid is conducted, he could be arrested. On receipt of said information, Sub-Inspector Sohan Lal telephonically informed the SHO concerned, who after discussion with senior officers, directed Sub-Inspector Sohan Lal to immediately go to the spot and conduct proceedings. Sub-Inspector Sohan Lal alongwith State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 2 of 15 Constable Sandeep and Constable Manish as well as the secret informer went near Picnic Hut Park, where the secret informer pointed towards a person seated near the wall and stated that he was consuming smack through a plastic pipe. The secret informer was thereafter discharged. Sub-Inspector Sohan Lal asked 4-5 persons in the park to join the investigation, however, none agreed and they all left stating personal reasons without disclosing their names and addresses. Sub-Inspector Sohan Lal with the help of accompanying staff apprehended the aforesaid person and served notice under Section 50 NDPS Act upon him, informing him that he had been apprehended while consuming smack and that they suspected that he may be possessing some more smack. The accused was informed that his search was necessary and that he could get his search conducted in the presence of a Gazetted Officer or Magistrate and could also take the search of the official of the raiding party. The accused revealed his name and address as Pradeep Kumar @ Deepu s/o Ram Prasad r/o House No.2193, L-1st, Gali No.10, Sangam Vihar, New Delhi. The accused disclosed that he had already consumed all the smack that he possess and was not left with any. The accused neither opted to search the police party nor to call any Gazetted Officer or Magistrate to the spot. The accused allowed the police party to search him. Thereafter, Sub-Inspector Sohan Lal conducted personal search of the accused Pradeep Kumar @ Deepu, however, no smack was recovered from him. The police party found kept, on the ground, near the accused, one plastic pipe of silver like material (panni pipe chandi numa) and one silver like plastic bag/sheet (chandi numa panni), both bearing some burnt and some partly burnt smack like substance, State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 3 of 15 and one match box containing some lit and some fresh matchsticks. All the aforesaid articles were put in a plastic box and a pulanda was prepared after time the mouth of the box with doctor tape and sealing it with the seal of 'SL'. The same was thereafter seized. Thereafter, the seal was handed over by Sub- Inspector Sohan Lal to Constable Manish and the notice under Section 50 NDPS Act was seized vide seizure memo. Tehreer was sent to the police station through Constable Sandeep for registration of FIR. Sub-Inspector Sohan Lal prepared site plan at the instance of Constable Manish. After registration of FIR, accused was interrogated and his disclosure statement was recorded. Case property was deposited in the Malkhana. After investigation, chargesheet was filed in the court.
CHARGE
3. Vide order dated 05.02.2020 passed by learned predecessor of this Court, notice for the offence punishable under Section 27 of the NDPS Act was served upon the accused to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
4. Vide order dated 16.03.2020 passed by learned predecessor of this Court, in compliance of the provisions of Section 294 Cr.P.C., the accused was called upon to admit or deny the genuineness of documents i.e. (i) FIR No.42/2019 dated 11.01.2019, (ii) Certificate under Section 65B Evidence Act, (iii) Entry of register No.19 of MHC(M) PS Mehrauli regarding deposition of case property in Malkhana, which he admitted and the same were accordingly exhibited as Ex.A-1, Ex.A-2 and State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 4 of 15 Ex.A-3 respectively. In view of the admission made, evidence of prosecution witnesses namely duty officer Head Constable Parmod Kumar, Constable Sandeep and MHC(M) was dispensed with.
EVIDENCE OF THE PROSECUTION
5. To prove its case, the prosecution in all examined two witnesses. PW-1 Sub-Inspector Sohan Lal i.e. the complainant and the investigating officer in the present case. PW-2 Constable Manish is one of the recovery witnesses in the present case.
STATEMENT / DEFENCE OF THE ACCUSED
6. In his examination under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he is innocent and a false case has been registered against him by the police. The accused did not lead any evidence in his defence.
ANALYSIS AND FINDINGS
7. The record has been thoroughly and carefully perused. The respective submissions of Mr. Rajat Bansal, learned Assistant Public Prosecutor for the State and Mr. Hukum Singh Rathore, learned counsel for the accused, have been considered.
8. The case of the prosecution is that on the fateful day the accused was found consuming smack in a public place. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the fact that the accused was consuming a narcotic drug/psychotropic substance (smack) and/or the recovery of smack from the possession of the accused. However, for the reasons mentioned hereinafter the State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 5 of 15 prosecution has failed to establish beyond reasonable doubt that the accused was consuming any narcotic drug/psychotropic substance.
Re: Consumption of smack by accused not proved
9. The allegation against the accused in the present case is that he had committed the offence punishable under Section 27 NDPS Act as he was found consuming smack with the help of pipe and panni. In the testimony, PW-1 Sub-Inspector Sohan Lal and PW-2 Constable Manish have deposed that they had gone to the place of incident on receipt of secret information where the secret informer had pointed out towards the accused. They have, however, not described in their examination in chief as to whether the accused had been found by them to have been consuming any narcotic drug or psychotropic substance. In fact, in their cross-examination, both the aforesaid witnesses have specifically admitted that they had not seen the accused consuming smack at the place of recovery. Thus, the testimony of PW-1 and PW-2 does not aid the case of the prosecution that the accused was consuming any substance, let alone smack or any other narcotic drug or psychotropic substance on the alleged date, time and place.
10. As per the admission made by PW-1 in his cross- examination, he had neither reduced the secret information in writing nor made any DD entry regarding the secret information in the police station. Further, the secret informer, who had allegedly informed the complainant Sub-Inspector Sohan Lal regarding the accused consuming at the alleged place, has neither State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 6 of 15 been named nor cited as a witness in the chargesheet, let alone been examined.
11. No other witness has either been cited by the prosecution or examined in the above regard. Accordingly, no eye witness to the accused having been found consuming smack on the alleged date, time and place has been examined by the prosecution.
12. As per the case of the prosecution, the accused had already consumed all the smack that he had possessed and no smack was recovered from the possession of the accused. As already mentioned above, there is no eye witness account of consumption of smack by the accused. In the absence of eye witness account and recovery of smack from the accused, the fact that the accused had consumed smack could have been proved by the prosecution had some medical/scientific evidence to that effect been proved. However, in the instant case, the investigating officer did not get any medical examination of the accused conducted immediately after his apprehension to examine whether the accused had in fact consumed smack or any other narcotic drug or psychotropic substance. The same creates a gapping hole in the case of the prosecution.
13. In view of the aforesaid, the prosecution has failed to prove the main ingredient of the offence punishable under Section 27 NDPS Act that the accused was consuming a narcotic drug or psychotropic substance in public.
Re: Absence of independent witnesses
14. Evidently, no public witness to the alleged apprehension of State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 7 of 15 the accused has been either cited in the list of witnesses or examined by the prosecution. The alleged apprehension and recovery in the instant case are stated to have been effected from a public park viz. Picnic Hut, M.G. Road, Mehrauli, New Delhi at about 03:30 pm. The place of occurrence was admittedly a public place. At the alleged time, public persons, including visitors of the park and passersby would certainly have been available at the spot. In fact, in his testimony, PW-1, who is the complainant and one of the recovery witnesses, deposed that he had requested public persons who were present at the place of incident to join the investigation. As such, it is not the case of the prosecution that no public person was present or available at or near the spot of arrest and recovery.
15. Thus, despite availability, no public person was joined as a witness to the investigation. While the complainant PW-1 Sub- Inspector Sohan Lal has deposed that public persons had been asked to join the investigation but none agreed, admittedly the complainant did not even note down the names and other particulars of the said public persons, let alone serve notice upon them under Section 160 CrPC. No explanation for the same has been furnished.
16. From a perusal of the record, no serious effort for joining public witnesses appears to have been made by the police party. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 8 of 15 doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
17. In paragraph 18 of the decision in Anoop Joshi v. State, 1992 (2) C.C. Cases 314 (HC), the Hon'ble High Court of Delhi had observed as under:-
"It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 9 of 15 under the IPC ".
18. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat , AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
Re: Absence of arrival entries
19. The present case rests entirely on the alleged apprehension of the accused and recovery of case property, i.e. panni and pipe, from the possession of the accused at the relevant time by police officials namely Sub-Inspector Sohan Lal, Constable Manish and Constable Sandeep, who were on patrolling duty at Beat No.3, Ward No.8, Mehrauli, New Delhi. As per Chapter 22 Rule 49 of the Punjab Police Rules, 1934, police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose. While a departure entry vide DD No.36B dated 11.01.2019 Ex.PW-1/I has been filed, no duty roster or entry in roznamcha regarding duty hours and place of duty etc. of the abovenamed officials has been placed on record. Further, no arrival entry of the abovenamed officials has been filed on record. PW-1 Sub-Inspector Sohan Lal and PW-2 Constable Manish have also specifically admitted in their cross- examination that neither their arrival entry nor any entry of duty roster or roznamcha regarding their duty hours and place of duty State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 10 of 15 have been placed on record.
20. Since public persons were not joined in the investigation, the entries of duty roster/roznamcha regarding duty hours/place of duty and arrival entry of the said police officials, i.e. Sub- Inspector Sohan Lal, Constable Manish and Constable Sandeep become vital pieces of evidence. However, no such document or daily diary entry has been proved on record. Proof of the same is, however, indispensable as the present case rests solely on the alleged apprehension and recovery made by police officials.
Re: Possibility of case property being tampered with not ruled out
21. As per the chargesheet, the case property was sealed in a plastic box and the mouth of the box was sealed by the complainant Sub-Inspector Sohan Lal with the seal of 'SL' and after use the seal was handed over to Constable Manish. In their testimony, PW1 and PW2 has stated that the case property i.e. pipe, panni and match box recovered from the possession of the accused had been seized by PW-1 Sub-Inspector Sohan Lal who prepared seal handing over memo Ex.PW-1/H. However, the testimony of the prosecution witnesses/PW-1 Sub-Inspector Sohan Lal as well as PW-2 Constable Manish is silent as to the case property having been kept in a plastic box, the mouth of the plastic box having been sealed much less with the seal of 'SL' and the seal having been handed over to Constable Manish after use. Thus, while the seal handing over memo Ex.PW-1/H has been tendered in evidence, the prosecution has failed to prove that the seal in question was even used to seal the case property. Further, State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 11 of 15 admittedly, the seal in the present case was not handed over to any independent witness nor was it was deposited in the malkhana to assail the possibility of its misuse. Reliance is placed on the judgment of the Hon'ble High Court of Delhi in Safiullah v. State, 1993(1) RCR (Criminal) 622 wherein in paragraph 10 it has been observed as under:
"The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. ... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
22. Further, in Ramji Singh v. State of Haryana, 2007(3) RCR (Criminal) 452, at paragraph 7, the Hon'ble Punjab & Haryana High Court has also observed as under:
"The very purpose of giving seal to an independent person is to avoid tampering of the case property."
23. In view of the aforesaid, the possibility that the case property may have been tampered with cannot be ruled out.
Re: Other infirmities in the prosecution case
24. As per the chargesheet, the pipe and panni (sheet/bag) recovered from the possession of the accused bore some burnt and some partly burnt smack. However, the Investigating Officer did not send the said articles for examination to the FSL for determining the nature/properties of the substance present on the plastic pipe and plastic sheet/bag seized from the possession of the accused. The aforesaid lapse on part of the investigating officer is fatal to the case of the prosecution inasmuch as in the absence of positive expert opinion as to the said substance being State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 12 of 15 a narcotic drug or psychotropic substance, the prosecution's case has no legs to stand.
25. In his examination-in-chief, the complainant PW1 Sub Inspector Sohan Lal has deposed that he had prepared the seizure memo of notice Ex.PW-1/B and seizure memo of case property Ex.PW-1/C before preparing the tehrir Ex.PW-1/D and sending it for registration of FIR. The FIR was, therefore, admittedly registered after preparation of seizure memo of notice Ex.PW1/B and seizure memo of case property Ex.PW-1/C. Accordingly, it follows that the number of the FIR would have come to the knowledge of the complainant only after a copy of the FIR was brought to the spot by Constable Sandeep. Thus, ordinarily, the FIR number should not find mention in the aforesaid seizure memos, which came into existence before registration of the FIR. However, interestingly, the seizure memo of notice Ex.PW1/B and seizure memo of case property Ex.PW-1/C bear the FIR number and case details in the same handwriting and ink as the other contents. However, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memos Ex.PW1/B and Ex.PW-1/C. The same leads to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused. Reliance here is placed on the decisions of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127 and Mohd. Hashim v. State, 1999 VI AD (Delhi) 569.
State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 13 of 15 CONCLUSION
26. The facts that consumption of smack by the accused has not been proved, no independent witness was cited or examined, no daily diary entry regarding arrival or duty hours of the recovery witnesses has been filed, possibility of tampering of case property has not been ruled out and the appearance of FIR number and case particulars on the seizure memos has not been explained and there are several other infirmities in the prosecution case, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
27. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
28. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused is hereby acquitted of the offence punishable under Section 27 NDPS Act.
29. Necessary bail bonds under Section 437A Cr.P.C. with surety along with passport size photographs and proofs of residence of the accused as well as surety and proof of soundness State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 14 of 15 of the surety have been furnished by the accused Pradeep Kumar @ Deepu and accepted.
30. File be consigned to record room.
Announced in open Court on 22.09.2021 Digitally signed by MANIKA MANIKA Date:
2021.09.23 17:37:30 +0530 (MANIKA) Additional Chief Metropolitan Magistrate, South District, Saket Courts, New Delhi 22.09.2021 State v. Pradeep Kumar @ Deepu FIR No. 42/2019 PS Mehrauli Page 15 of 15