Delhi District Court
State vs . Mohd. Sameer on 16 October, 2019
CNR No. DLCT0202477718
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DLCT0202477718
CIS No. 10634/18
State Vs. Mohd. Sameer
FIR No. 381/17
PS : Nabi Karim
U/s. 27(a) NDPS Act
JUDGMENT
1) The date of commission of offence : 21.11.17
2) The name of the complainant : ASI Sandeep Kumar
3) The name & parentage of accused : Mohd. Sameer S/o Mohd. Savaleen R/o. House No. 314, Main Bazar, Delhi Gate, Darya Ganj, Delhi.
4) Offence complained of : u/s. 27(a) NDPS Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 16.10.2019 Date of Institution : 30.07.2018 Judgment reserved on : 16.10.2019 Judgment announced on : 16.10.2019 THE BRIEF REASONS FOR THE JUDGMENT:
1. The case of the prosecution against the accused is that on CIS No. 10634/18, State Vs. Mohd. Sameer, FIR No. 381/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 1 / 10 CNR No. DLCT0202477718 21.11.17, at about 12.00 PM, at Dak Parcel, near Dakghar, Khali Jameen, Pahar Ganj, Delhi, within the jurisdiction of PS Nabi Karim, he was found consuming Diacetylmorphine in a small quantity. On the said allegations, accused was charged with the offence under Section 27 (a) of the NDPS Act.
2. After investigation, chargesheet was filed against the accused.
The copy of chargesheet was supplied to the accused in compliance of Section 207 Cr. P.C. Thereafter, charge was framed against the accused under Section 27(a) NDPS Act, to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution has examined six witnesses.
Accused admitted as per section 294 Cr.PC, the fact as to the recording of the present FIR, certificate u/s. 65B Evidence Act and the FSL report.
4. After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. The testimonies of prosecution witnesses are hereby discussed, in brief, as follows: 6.1) PW1 Ct. Aarif Mohd and PW2 ASI Sandeep deposed on the CIS No. 10634/18, State Vs. Mohd. Sameer, FIR No. 381/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 2 / 10 CNR No. DLCT0202477718 same lines that on 21.11.17, they were returning after attending the PCR call and at about 12.00 PM, when they reached at Parcel Road, Dak Ghar, Railway Line, Pahar Ganj, they saw that a boy, whose name was revealed as Mohd. Sameer, was sitting with the wall and was consuming smack through panni pipe. The said person was apprehended. Notice u/s. 50 NDPS Act Ex. PW1/A was served upon the accused. Accused was searched and one panni pipe, panni, match box containing match sticks and some burnt sticks were recovered from his possession. The said panni pipe, panni, match box containing match sticks and some burnt sticks were seized vide memo Ex. PW1/B and sealed with the seal of SV. FSL form was filled. Rukka Ex. PW2/A was prepared, FIR got registered, site plan Ex. PW1/C was prepared and accused was arrested. They identified the accused and the case property Ex. P1 in the court.
6.2) PW4 ASI Wahid Ahmed deposed regarding the depositing of sealed pullanda and FSL form in the Maalkhana by Inspector Yashpal Singh on 21.11.17. PW1 further deposed that on 05.01.18 he had handed over the case property to Ct. Majid Khan vide RC No. 6/21/17 for depositing the same to FSL Rohini. He also proved the entries made in this regard in register no. 19 as Ex. PW4/A. 6.3) PW6 Inspector Yashpal Singh, deposed that on 21.11.17, CIS No. 10634/18, State Vs. Mohd. Sameer, FIR No. 381/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 3 / 10 CNR No. DLCT0202477718 Ct. Arif arrived at the PS and handed over him a sealed pullanda, one FSL form and copy of seizure memo. PW6 further deposed that he put the FIR number on the said exhibits. He also deposed that he called the MHC(M) and deposited the said case property, seizure memo and FSL form in Maalkhana. PW6 further deposed that he forwarded the notice u/s. 57 NDPS Act, which is Ex. PW3/A. 6.4) PW3 HC Raj Kishore deposed that on 21.11.17, further investigation of this case was marked to him. Thereafter, he went to the spot where he met with ASI Sandeep and the accused. IO ASI Sandeep handed over him the custody of the accused. Ct. Arif, who returned back from the PS, handed him over the copy of FIR and original rukka. Site plan Ex. PW1/C was prepared, accused was arrested and personally searched. He identified the accused and the case property Ex. P1 in the court. 6.5) PW5 ASI Gajender Singh deposed that on 04.01.18, the investigation of the present case was marked to him. He further deposed that he send the case property to FSL for chemical analysis through Ct. Majid, collected the FSL report Ex. PW5/A and after completion of investigation filed the charge sheet.
7. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of CIS No. 10634/18, State Vs. Mohd. Sameer, FIR No. 381/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 4 / 10 CNR No. DLCT0202477718 accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
8. Now, I consider the points contended by the Ld. Counsel for the accused one by one. Ld. Counsel for accused argued that no independent witness was joined in the investigation. First of all, I consider the legal position on this point. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is wellsettled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly CIS No. 10634/18, State Vs. Mohd. Sameer, FIR No. 381/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 5 / 10 CNR No. DLCT0202477718 comply with these provisions. [Emphasis supplied] Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witness with the recovery proceedings and thereafter in the proceedings qua the serving of notice u/s. 50 NDPS Act and thereon and to strictly comply with the provisions of Code of Criminal Procedure. Merely mentioning that public persons were requested to joined the investigation is of no avail. Name of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation. Hence, the abovementioned creates doubt on the case of the prosecution.
9. Further, the seal after use was not handed over to any independent person. Seal after use was handed over to Ct. Arif. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. 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 CIS No. 10634/18, State Vs. Mohd. Sameer, FIR No. 381/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 6 / 10 CNR No. DLCT0202477718 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."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
Hence, considering the legal position, the benefit of doubt should be given to the accused.
10. Further, the case property was sent to FSL with the huge delay. The case property was deposited in the Maalkhana on 21.11.17, while the same was sent to FSL on 05.01.18. There is no explanation as to why the case property was kept in Maalkhana for more than one month. The persons whose seals were affixed on the case property were posted in the same police station and they had the custody of seal also. In these circumstances, the possibility of tempering with the case property cannot be ruled out.
11. Besides all this, the seizure memo of the case property Ex. PW1/B, bears the number of FIR. As per the rukka and testimony of witnesses, Ex. PW1/B was prepared prior to registration of FIR. If that be so then how Ex. PW1/B bears the FIR number. Now, I CIS No. 10634/18, State Vs. Mohd. Sameer, FIR No. 381/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 7 / 10 CNR No. DLCT0202477718 consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
12) The case of the prosecution is that the accused was consuming Diacetylmorphine, if that be so then the IO must have got done the medical examination of the accused immediately as to whether Diacetylmorphine was present in the blood / body of the accused or not. This could have been the best scientific evidence for the prosecution to prove its case but no such steps were taken by the investigating officer. This creates a gaping hole in the case of the prosecution.
13. In the judgment titled as "S.L.Goswami v. State of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held: "...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to CIS No. 10634/18, State Vs. Mohd. Sameer, FIR No. 381/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 8 / 10 CNR No. DLCT0202477718 somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
14) The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
15) In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Mohd. Sameer of the charges framed in the present case. Case property be confiscated to the CIS No. 10634/18, State Vs. Mohd. Sameer, FIR No. 381/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 9 / 10 CNR No. DLCT0202477718 State. Same be destroyed. File be consigned to Record Room subject to compliance of section 437A Cr.PC.
Digitally signed KAPIL by KAPIL KUMAR
KUMAR Date: 2019.10.16
15:38:07 +0530
Announced in the open court (KAPIL KUMAR)
on 16.10.2019 Metropolitan Magistrate05
Central District, Tis Hazari Courts/Delhi CIS No. 10634/18, State Vs. Mohd. Sameer, FIR No. 381/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 10 / 10