Delhi District Court
Sc No 9041/16 Fir No. 333/11 Ps R.K.Puram ... vs . Suresh Pages 1 Of 17 on 24 January, 2017
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
CNR No. : DLND01-000209-2012
S.C. No. : 9041/16
FIR No. : 333/11
PS: : R.K.Puram
U/S: : 20/61/85 N.D.P.S Act
State
Versus
Suresh,
S/o Sh. Kirori Mal,
r/o Jhuggi No. 109,
Ekta Vihar, Sector 6,
R.K.Puram,
New Delhi. ......... Accused
Date of receipt of file in this Court : 13.01.2017
Date when arguments were heard : 24.01.2017
Date of judgment : 24.01.2017
JUDGMENT
1 The charge sheet in the present case has been filed against the aforementioned accused under section 20 of The Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act'). 2 Briefly stated, the facts that can be culled out from the assertions made in the charge sheet and documents filed therewith are as follows:
SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 1 of 17
a) On 05.12.2011 at about 02.30p.m when PW10 SI S.P. Samariya was present at PS R.K.Puram then one secret informer informed him that one person would come opposite Tempo stand, Ekta Vihar, Sector-6, R.K.Puram, Delhi at about 03.30 p.m who would be having illegal Ganja and could be apprehended upon a raid.
b) PW 10 recorded the said information vide DD no. 25A and informed about the secret information to PW8 Insp. K.L. Yadav, SHO PS R.K. Puram.
Upon directions of PW8, the PW 10, PW9 H.C. (ASI) Mahabir Singh alongwith the secret informer reached Ekta Vihar,Sector-6, R.K. Puram, New Delhi where PW10 after intimating about the secret information requested 4-5 passersby to join the raiding party but they all left by giving reasonable excuse and without disclosing their names and addresses. Without wasting any time,PW 10 and PW9 formed a raiding party and took position along the corner of the road by concealing themselves.
c) At about 03.40 p.m. one person was seen coming on foot from towards the side of Mohan Singh Market, Sector-6, R.K.Puram, who was having a red colour bag ( thela ) in his right hand. The secret informer after seeing that person gave the pre arranged signal upon which PW10 apprehended him with the help of PW9 who disclosed his name as Suresh ( accused ).
d) PW10 thereafter informed the accused that they were having an information that he was having the possession of illegal Ganja. He also intimated him about his legal rights. PW 10 thereafter gave notice under section 50 NDPS Act to him, a copy of said notice was given to him and his receiving was obtained on the original copy. PW10 informed the accused that he was having a legal right to be searched before a Magistrate or a gazetted officer and that before his search he was also having the legal right to search the raiding party. The accused stated that he did not want SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 2 of 17 himself to be searched before a magistrate or a gazetted officer and opted to be searched by the police raiding party. PW10 thereafter told about the proceedings to 4-5 passersby but they did not join the investigation and left without telling their names and after giving reasonable excuses.
e) PW10 thereafter searched the red colour bag in the hand of the accused and found a white colour polythene containing leaves and twigs. From the smell and physical characters, it was found to be Ganja. Intimation regarding the recovery was given to PW8/ SHO PS R.K. Puram on telephone and he was requested to come to the spot. The recovered Ganja was weighed upon which it was found to be 1.4 kg. Out of it, 100 grams each was taken out as samples, which were put into plastic pouches and samples were prepared. The remaining 1.2 kg Ganja was put in the same white colour polythene. Thus three separate pullandas were prepared which were marked as Mark A, Mark B and Mark C respectively. The red colour cloth bag was converted into a separate cloth pullanda which was given Mark D. Form FSL was also filled. All the above said four pullandas and Form FSL were sealed with the seal of SPS and after use the seal was handed over to PW9. The said four pullandas and form FSL were seized as evidence through seizure memo.
f) In the meanwhile PW8/ SHO reached at the spot who further sealed the said four pullandas and Form FSL with his seal of KL.
g) PW10 prepared the rukka and handed it over to PW9 who took the same for getting the case FIR registered. After the registration of the case FIR, further investigation of the case was marked to PW6 SI Mahabir Singh. During investigation PW6 prepared the site plan of the spot at the instance of PW10. PW6 also arrested the accused in the present case, conducted his jamatalashi, recorded his disclosure statement and also recorded the statement of witnesses.
SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 3 of 17
h) The accused disclosed that he had purchased said recovered Ganja from one Mahesh whose address was not known to him but he was often found present at Shani Mandir, Vasant Vihar, outer ring road. Despite efforts no clue could be found qua said Mahesh.
i) On 06.12.2011 PW6 produced the accused before learned Duty MM from where he was remanded to Judicial Custody till 20.12.2011. On 06.12.2011 a Special report was prepared under section 57 NDPS Act regarding the recovery of Ganja and arrest of accused which was received in the office of ACP concerned. Further investigation was marked to PW3 SI Subhash Chand.
j) PW3 got the pullanda containing the sample Ganja deposited at FSL, Rohini vide RC No. 98/21/11 dated 20.12.2011 and subsequently obtained the FSL result. After receiving and collecting the report from FSL, the present charge sheet was filed.
3 On he basis of material placed on record, charge was framed against the accused by the learned predecessor of this court vide order dated 10.02.2014 for the offence punishable under section 20 NDPS Act. The accused pleaded not guilty and claimed trial.
4. In order to prove its case against the accused, the prosecution has examined total ten witnesses.
5. PW1 Ct. Lalit Prasad has deposed to the effect that on 20.12.2011 upon the directions of PW-3 SI Subash Chand he took the sample sealed pullanda and Form FSL having seal of SPS and KL from MHC(M) H.C. Ashok Kumar /PW2 vide RC no 58/21 from the Malkhana and deposited the same at FSL Rohini, Delhi and handed over the receipt to PW2. The said receipt has been proved as Ex PW1/A. PW1 deposed that till the sample remained with him, no one tampered with it and its seal remained intact.
6. PW2 ASI Ashok Kumar was working as MHC(M) PS R.K. Puram on SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 4 of 17 05.12.2011 and deposed to the effect that on that day at about 06.15 p.m PW8 / SHO P.S R.K. Puram came to the Malkhana and handed over to him four sealed pullandas A, B, C and D with the seal of KL and SPS, FSL form with the said seals and carbon copy of the seizure memo. PW2 deposited the same in the Malkhana vide entry no. 2403 Ex PW2/A. He deposed that on 05.12.2011 PW6 SI Mahabir Singh deposited the articles recovered during the personal search of the accused i.e copy of notice under section 50 NDPS Act and cash Rs. 70/-. The entries in that regard were also made at serial no. 2403 ExPW2/A. He deposed that on 20.12.2011 one pullanda Mark A along with form FSL and other documents sealed with seal of KL and SPS were handed over to PW1 vide RC no. 98/21/2011 Ex PW2/B for depositing the same in FSL Rohini. The entry in that regard was made in register no. 19. After depositing the same, PW1 handed over its receipt Ex PW1/A to PW3. He deposed that on 11.04.2012 PW3 SI Subhash Chand deposited one sealed parcel sealed with the seal of FSL Rohini in the Malkhana qua which entry was made in register no. 19 by PW2. He deposed that till the samples remained in his possession no one tampered with the same and the seals remained intact.
7. PW3 SI Subhash Chand is the second IO of the case. He was entrusted with the investigation of this case on 10.12.2011. He deposed that on 15.12.2011 he sent the relevant exhibits / samples to FSL through constable Maruti Munde but on that day due to some clerical mistake and problem the same could not be received by the FSL authority due to which the said constable returned back to the PS with the exhibits and documents which were deposited in the Malkhana on the same day. He deposed that after removing the objections made by FSL, he again sent said exhibits/samples to FSL Rohini, Delhi through PW1 and after depositing the samples / exhibits in FSL he was in that regard informed by PW1.
SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 5 of 17
8. PW4 ACP Mahender Singh has deposed that on 06.12.2011 report regarding the arrest of accused and seizure of contraband under section 57 NDPS Act was received in his office vide diary no. 8265, the same was produced before him by his reader and he had seen the same. The said report has been proved as Ex PW4/A . Copy of diary register wherein the said information was recorded by reader of PW4 has been proved as Ex PW4/B.
9. PW5 Dr. Subhra Kumar Paul is Sr. Scientific Officer ( Chemistry ), FSL Rohini, Delhi. She deposed that on 20.12.2011 one sealed cloth parcel Mark A sealed with the seal of SPS and KL with forwarding letter (FSL Form ) was received in the said office and same was handed over to him for Chemical examination. He deposed that the said parcel was found to contain greenish brown pressed vegetative flowering fruiting top material stated to be Ganja with weight approximately 97.40 grams with polythene. He deposed that on the basis of examination physical, microscopic, chemical and TLC ExA it was found to be Ganja ( Cannabis). Remnants were sealed with the seal of SKP FSL Delhi. The said report has been proved as ExPW5/A and copy of FSL form ( forwarding letter ) has been proved as Ex PW5/B.
10. PW6 SI Mahabir Singh is the first IO of the case. He deposed to the effect that on 05.12.2011 the investigation of the case was marked to him and after getting the copy of FIR and original Tehrir from Duty Officer, he along with PW9 H.C. (ASI) Mahabir Singh reached at the spot at Ekta Vihar, Tempo Stand, Sector 6, R.K.Puram where PW10 SI S.P. Samariya met them along with the accused. PW6 prepared the Site plan ExPW6/A at the instance of PW10. PW6 interrogated the accused and arrested him in this case. The arrest memo and personal search memo of accused have been proved as ExPW6/B and Ex PW6/C respectively. He has deposed that SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 6 of 17 during the personal search of the accused one notice under section 50 NDPS Act and cash of Rs. 70/- were recovered. PW6 recorded the statement of PW9 and deposed that in the mean time PW8 / SHO came at the spot. He deposed that on the next day i.e. 06.12.2011 he took the accused in the area of Hanuman Mandir but the source who used to supply Narcotics substance to him was not traceable.
11. PW7 SI Udai Singh was the Duty Officer who deposed that on 05.12.2011 he received rukka from PW9 sent by PW10 on the basis of which he recorded the case FIR ExPW 7/A. He deposed that it took about one hour in recording of said FIR and endorsement to that effect on the rukka is ExPW7/B. He handed over copy of FIR and original rukka to PW6 as per the instructions of the SHO. PW7 also registered DD no.28A ExPW7/C in respect of receipt of rukka and subsequent registration of FIR.
12. PW8 Insp. K.L. Yadav was posted as SHO P.S. R.K.Puram on 05.12.2011. He deposed to the effect that on 05.12.2011 at 04.45p.m PW10 intimated him on his mobile phone about the apprehension of accused and recovery of Ganja weighing 1.400 Kg. from him upon which he reached the spot and found PW9, PW10 and accused present at the spot. He deposed that PW10 handed over to him four pullandas, one pullanda was containing 1200 gram of Ganja, second and third pullandas were containing one sample of 100 grams each and fourth pullanda contained a bag of red colour which was used by the accused to carry the contraband. PW8 put his own seal of KL on the said pullandas which were already sealed with the seal of SPS. PW8 took the pullandas, seizure memo and FSL form from the spot, reached PS R.K. Puram and deposited the same in Malkhana while DD no. 29A which is Mark PW8/A.
13. PW 9 ASI Mahabir Singh and PW10 SI S.P. Samariya are both the members of the police raiding party and recovery witnesses. They have SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 7 of 17 deposed on the lines of the case of the prosecution as mentioned in the charge sheet, as mentioned above, and same is not being repeated for the sake of brevity. The seizure memo vide which all the above said four pullandas and FSL form were seized has been proved as Ex PW9/A. The pullanda Mark B containing sample, pullanda Mark C containing the contraband minus the samples and pullanda Mark D containing red colour bag from which the contraband was allegedly recovered from accused have been proved as Ex P1,ExP2 and Ex P3 respectively. The notice u/s 50 NDPS Act as prepared by PW10 and served upon the accused has been proved as Ex PW10/A. The rukka prepared by PW10 has been proved as ExPW10/B. The testimony of the said witnesses would be discussed at the relevant stages of the judgment.
14. The statement of accused under section 313 Cr.PC was recorded by the learned predecessor of this court in which he denied all the material incriminating circumstances appearing in prosecution evidence on record against him. He inter alia stated that he was not apprehended in the manner deposed by the prosecution witnesses, no notice u/s 50 NDPS Act was served upon him and no request was made to him to sign on any paper. He stated that he was not carrying any polythene and no drugs were recovered from his possession. He stated that he never went to the alleged spot ( of recovery ), was lifted from his house and was falsely implicated in this case. He stated that no samples from any substance were drawn in his presence. He stated that Ct.Maruti Munde had tampered with the samples and that the case property and the samples have been tampered with. He stated that on 05.11.2012 at about 11.00 a.m he was present at his house when Ct. Nihal came there, took him to PS R.K. Puram on the pretext that SHO had called him, he was made to sit at PS for many hours, thereafter his signatures were obtained on some blank papers and he was falsely SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 8 of 17 implicated in the present case. He preferred not to lead any defence evidence.
15. I have heard the final arguments on behalf of learned Addl. PP for State and the learned defence counsel. I have also carefully perused the record.
16. Learned Addl. PP for the State has argued that the accused was found in possession of intermediate quantity of Ganja to the tune of 1.400kg., the material recovery witnesses i.e. PW9 and PW10 have deposed against the accused, there is no contradiction in the testimony of PW9 and PW10 and hence the accused is liable to be convicted under section 20 (b)(ii)(B)NDPS Act, 1985. He further argued that there was no tampering with the seals or the samples. He further argued that Notice u/s 50 NDPS Act and the report under section 57 NDPS Act regarding the arrest of accused and seizure of contraband have been proved as Ex PW10/A and Ex PW4/A respectively. He also referred to FSL report Ex PW5/A and argued that the sample was found to contain 'Ganja' (Cannabis). He thus argued that the prosecution has proved its case against the accused beyond reasonable doubt and that the accused be convicted under section 20 (b)(ii) (B)NDPS Act, 1985.
17. Learned defence counsel on the other hand argued that the prosecution has failed to prove the charge against the accused beyond reasonable doubt and he is entitled to acquittal in this case. He referred to the testimony of PW3 SI Subhash Chand and argued that PW3 has deposed to the effect that on 15.12.2011 he had sent the relevant exhibits / samples to FSL through Ct. Maruti Munde but due to some clerical mistake and problem these were not received by FSL due to which said Ct. returned back to the PS wherein the said exhibits and documents were deposited. In that context he contended that neither said Ct.Maruti Munde has been cited SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 9 of 17 nor examined by the prosecution nor PW2 who was working as MHC(M) has deposed regarding sending of samples / exhibits to FSL on 15.12.2011 and even no such entry has been proved in the register being maintained by PW2. He argued that in the absence of testimony of Ct. Maruti Munde, the prosecution has failed to prove that the samples / exhibits were not tampered with by Ct Maruti Munde or someone else on 15.12.2011. He contended that the sample which was sent to FSL would thus become unreliable and it would be fatal to the case of the prosecution. He also argued that as per the case of the prosecution two samples of 100 grams each were taken out of the recovered contraband, however, only one sample was sent to FSL and the prosecution could not explain as to why the other sample was never sent to FSL. He further argued that even when PW1 again as per the case of the prosecution took the sample to FSL on 20.12.2011, PW1 has deposed a wrong RC no. as 58/21 and PW2/ MHC(M) has mentioned said RC no. as 98/21/11 Ex PW2/B. He argued that no public witness despite their availability and busy time ( about 3.40p.m ) were joined in the alleged recovery, seizure and other investigation by the investigating agency which would create a strong suspicion over the alleged recovery. He also during arguments highlighted various contradictions in the testimony of PW6, PW8, PW9 and PW10. The said contradictions would be mentioned and dealt with at the relevant stage during the course of the judgment. He thus argued that in view of the unreliability of the sample sent to FSL, non joining of public witnesses despite their availability without any sufficient reason and explanation and material contradictions in the testimony of material witnesses, the prosecution has failed to prove its case against the accused beyond reasonable doubt and that the accused be acquitted in this case under section 20(b)(ii)(B)NDPS Act, 1985.
18. The case of prosecution in nutshell is that on 05.12.2011 at about SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 10 of 17 03.40p.m opposite tempo stand, Ekta Vihar, Sector 6, R.K.Puram, New Delhi he was found in possession of 1.4 Kg Ganja in contravention of the provision of NDPS Act and thereby committed an offence punishable under section 20 (b)(ii)(B)NDPS Act, 1985. As per the Table appended with NDPS Act, 1985, with respect to Ganja, the small quantity is 1000 grams ( One Kg.) and the commercial quantity is 20 Kg. It is thus the case of the prosecution that the accused was found in possession of Cannabis to the extent of quantity lesser than commercial quantity but greater than small quantity as per the provisions of the NDPS Act, 1985.
19. The case of the prosecution as deposed by PW2 ASI Ashok Kumar /MHC(M) is that on 20.12.2011 one sealed pullanda Mark A ( containing one of the sample ) and other documents were handed over to PW1 Ct. Lalit Prasad vide RC No. 98/21/2011 ExPW2/B for depositing the same in FSL Rohini, an entry to that effect was made by PW2 in his register no. 19 being maintained by him, PW1 deposited the same with FSL on 20.12.2011 vide receipt Ex PW1/A and thereafter handed over the said receipt to PW2. PW3 SI Subhash Chand, second IO of the case, has also inter alia deposed that after removing the objections made by FSL, he again sent the sample to FSL Rohini through PW1. The said sample was subsequently received by FSL, Rohini which gave its report ExPW5/A mentioning that it contained Ganja ( Cannabis ).
19.1 It would be pertinent to note that PW3 has specifically deposed that on 15.12.2011 he had sent the relevant exhibits /samples to FSL through Ct. Maruti Munde but on that day, due to some clerical mistake and problem it could not be received by FSL authority, therefore, Ct. Maruti Munde returned back at PS with the exhibits and documents which were deposited in the Malkhana on the same day.
19.2 The above said testimony of PW3 would show that both the SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 11 of 17 samples were in fact taken out from the Malkhana of PS R.K. Puram on 15.12.2011 and were handed over to one Ct.Maruti Munde who took those to FSL Rohini but was not able to deposit those there. PW3 in that context has deposed in his cross examination by ld defence counsel that he had orally instructed Ct.Maruti Munde to collect the samples from the MHC(M), he could not say if the said Const. gave any receipt of receiving the samples to MHC(M), neither he recorded the statement of the said constable nor he has been cited as a witness and he could not give any reason for not doing so. He denied the suggestion of the defence that Ct.Maruti Munde had tampered with the samples or that on 20.12.2011 the tampered sample had been sent to FSL.
19.3 It is thus an admitted position of the prosecution that in fact both the samples were taken out by Ct. Maruti Munde on 15.12.2011 from MHC(M) but were not deposited with FSL Rohini on that day and the samples and documents were deposited by said Ct. back in FSL on 15.12.2011. The prosecution has however failed to cite or examine said Ct. Maruti Munde to prove the said fact and to further prove that when he was having the possession of the samples on 15.12.2011 then he did not either tamper with the said samples himself or that he did not allow anyone else to tamper with the samples. It raises a very strong doubt over the authenticity and reliability of one out of said samples which was subsequently sent to FSL on 20.12.2011. It is absolutely fatal to the case of prosecution. It is also pertinent to note that the testimony of PW2 / MHC(M) is totally silent with respect to his handing over the said samples to above said Ct. Maruti Munde on 15.12.2011 upon directions of PW3. PW2 has only deposed regarding the sending of sample through PW1 on 2012.2011 but has not deposed anything about 15.12.2011. PW2 has also failed to prove on recored any such entry in his relevant register or Road Certificate (RC) to SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 12 of 17 prove that he handed over such samples to Ct.Maruti Munde on 15.12.2011. It is further a material concealment during the maintaining of records by the appropriate authorities. Even PW1 has deposed wrong RC no. vide which he allegedly took one of the sample on 20.12.2011 for depositing at FSL Rohini. As the authenticity and reliability of the samples become strongly suspicious and doubtful on 15.12.2011 itself, therefore, no credence can be placed upon sample sent to FSL Rohini on 20.12.2011 through PW1 and the consequent FSL report Ex PW5/A. Even if the recovery of some substance is deemed to have been proved by the prosecution, then also in view of the above said discussion and a very strong doubt on the sample sent to FSL, the prosecution has thus failed to prove beyond reasonable doubt that said allegedly recovered substance was Ganja (Cannabis) and that the accused was in fact found in possession of Ganja ( Cannabis ). It is absolutely fatal to the case of prosecution. Benefit of doubt goes in favour of the accused who is entitled to acquittal in this case.
20. PW9 who is a recovery witness has deposed to the effect that after reaching the spot, PW10 asked 4-5 passersby to join the raid after telling them the secret information which he had with him but none agreed to join the raid and left the spot without telling their names and addresses. In his cross examination by ld. defence counsel, PW9 inter alia admitted that people were available at and near the said Tempo stand ( alleged spot of recovery ). He further deposed that the IO did not ask either the Tempo stand owner or the employees thereof to join the investigation. 20.1 PW10 who is also a recovery witness as per the case of the prosecution has deposed to the effect that after reaching the spot i.e opposite Tempo stand, Ekta Vihar, R.K. Puram, New Delhi, he asked 4-5 passersby to join the raid after telling them the secret information which they had but none agreed to join the raid and left without telling their names and SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 13 of 17 addresses. He deposed that before giving notice u/s 50 NDPS Act to the accused, he had again asked the public persons to join the search proceedings but none agreed and he could not serve notice upon them for want of time. In his cross examination by ld defence counsel, PW10 admitted that the spot was a public place and people were coming and going. He materially contradicted PW9 by deposing that he had asked the Tempo owners to join the investigation but none agreed. It would be pertinent to note that as mentioned above, PW9 has deposed to the effect that PW10 had not asked either the tempo stand owner or the employees thereof to join the investigation.
20.2 PW6 SI Mahabir Singh has also admitted in his cross examination that he did not join any public person in the proceedings conducted by him. 20.3 The alleged time of recovery from the accused is about 3.40p.m at a very busy public place i.e. opposite a tempo stand. It is also an admitted position that public persons were present and were coming and going at the spot. As discussed above, there is also a material contradiction in the testimony of PW9 and PW10 to the effect that PW10 had asked or had not asked the tempo owners to join the investigation or not. Nothing has thus come on record to show that any sincere efforts were made by the IO to join any public witness or passersby in the proceedings. No doubt the learned Addl. PP for State has rightly argued that ordinarily the public at large show their disinclination to come forward to become a witness but the least that is expected that the investigating agency must be able to satisfy the court that genuine and sincere efforts were made by the investigating officer to make public persons join the proceedings. It has been repeatedly held by the higher courts that in such cases as the present one, the investigating agency must show that sincere efforts were made to join independent witnesses and that the investigating agency cannot merely take a stand that SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 14 of 17 public witnesses refused to join the investigation. In this regard particular reference is made to the judgments reported as Ritesh Chakravarty Vs. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150 and Roop Chand Vs. State of Haryana 1999(1) C.L.R. 69. In Ritesh's case ( Supra), the Hon'ble Supreme Court has deprecated the practice of the investigating officials in not enquiring about the names of the public persons who failed to join the proceedings on request of the police officials. In the other judgment, it has been observed by the Hon'ble High Court that the failure to proceed against the public persons who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an afterthought and is not worthy of credence. In view of the said discussion, a cloud of doubt is raised over the recovery of contraband itself from the accused.
21. There are also material discrepancies and contradictions in the testimony of material prosecution witnesses including the members of the raiding team leading to a strong suspicion over the entire case of the prosecution including the alleged recovery from the accused. 21.1 PW6 has deposed to the effect that on the next day i.e.06.12.2011 he took the accused to the area of Hanuman Mandir but the source was not traceable. In his cross examination, he surprisingly deposed that he had made DD entry in the DD register and departure entry on the next day when he took the accused for searching the source. PW9 on the other hand in complete contradiction to the testimony of PW6 has deposed that on the same day i.e 05.12.2011 he and PW6 tried to search for the person who had given the contraband to the accused at around Shani Mandir, Outer Ring road. The date and place of said alleged search for said source are contradictory in the testimony of PW6 and PW9 raising a suspicion over their testimony.
SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 15 of 17 21.2 PW10 has deposed to the effect that on 05.12.2011 at about 02.30p.m he was present at the police station and at that time one secret informer met him who informed him about the accused. In his cross examination, PW10 has deposed that he received this information at about 02.30p.m. in the presence of PW9. PW9 has however deposed to the contrary in his cross examination that the secret information was not received by PW10 in his presence and that he was informed about it by PW10 later on.
21.3 PW9 has deposed in his cross examination that he had come to the spot along with PW10 on the motorcycle belonging to PW10 while the secret informer was riding his own motorcycle. PW10 in his cross examination has however deposed to the contrary by deposing that the secret informer had accompanied him on his motorcycle,whereas, PW9 went on other motorcycle.
21.4 PW8 deposed that at about 04.45 p.m PW10 intimated him on his mobile phone regarding the apprehension of the accused with the contraband. PW9 on the other hand contradicted PW8 by deposing that PW10 had informed the SHO about the recovery of the contraband from the possession of the accused at about 04.00p.m.
21.5 PW10 deposed in his cross examination that he had obtained the signatures of the accused on seizure memo Ex PW9/A. PW10 was thereafter shown the seizure memo Ex PW9/A upon which he admitted that it did not bear the signatures of the accused. The seizure memo Ex PW9/A would also show that it does not bear the signatures of the accused. 21.6 These all are material contradictions and discrepancies in the testimony of the material prosecution witnesses including the alleged recovery witnesses and members of the raiding team i.e. PW9 and PW10. It raises a very strong suspicion over the credibility of their testimony SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 16 of 17 including the recovery and entire case of the prosecution. The benefit of doubt goes in favour of the accused who is entitled to acquittal in the present case.
22. It has been repeatedly reiterated by the Hon'ble Supreme Court in its various judgments that it must be borne in mind that severer the punishment, greater has to be the care taken to be seen that the case of the prosecution is proved beyond all reasonable doubt. In State of Punjab Vs. Baldev Singh, (1999) 3 SCC 977 it was held that " It must be borne in mind that severe the punishment, greater has to be taken care to see that all the safeguards provided in a statute are scrupulously followed". The Hon'ble Apex Court in the case of Noor Aga Vs. State of Punjab & Anr. 2008(3) JCC ( Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act.
23. In view of the above said discussion, this court is of the opinion that the prosecution has not been able to prove its case against the accused beyond reasonable doubt and therefore the accused Suresh is hereby acquitted of the charges under Section 20(b)(ii)(B) NDPS Act, 1985. Bail bonds of the accused are cancelled and his surety is discharged.
24. The case property lying with MHC(M) PS R.K. Puram qua this case is confiscated to state and the State would be at liberty to dispose of the same as per the prescribed rules after the expiry of period of appeal / revision / order of the appellate court, if an appeal is preferred.
25. File be consigned to record room after completion of all other necessary formalities.
Announced in the open Court on 24.01.2017 (AMIT BANSAL)
SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 17 of 17 ADDITIONAL SESSIONS JUDGE-04 PATIALA HOUSE COURTS/NEW DELHI 24.01.2017 SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 18 of 17 CNR No. DLND010002092012 S.C. No. 9041/16 FIR No. 333/11 PS: R.K.Puram U/S: 20 N.D.P.S Act, 1985.
State Versus Suresh 24.01.2017 Present Sh. S.K. Kain, ld. Addl. PP for the State.
Accused on bail with Sh. A.K. Sheoran, ld counsel.
Final arguments heard and record perused.
Vide separate judgment, the accused is acquitted in the present case under section 20(b)(ii)(B) NDPS Act, 1985. His bail bonds are cancelled and his surety is discharged.
The case property stands confiscated to the State and the State would be at liberty to dispose of the same as per the prescribed rules after the expiry of period of appeal/revision/order of the appellate court, if an appeal is preferred.
Accused is directed to furnish a personal bond in the sum of Rs.10,000/ with one surety of the like amount u/s 437A Cr.P.C.
Erstwhile accused seeks adjournment to furnish the bail bonds under section 437A Cr.PC.
Upon request, put up for furnishing the bail bonds u/s 437 A Cr.P.C on 25.01.2017.
Announced in the open court.
( Amit Bansal ) Addl. Sessions Judge 04, Delhi District, Patiala House Courts, SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 19 of 17 New Delhi 24.01.2017 SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 20 of 17 CNR No. DLND010002092012 S.C. No. 9041/16 FIR No. 333/11 PS: R.K.Puram U/S: 20 N.D.P.S Act, 1985.
State Versus Suresh 25.01.2017 Present Sh. S.K. Kain, ld. Addl. PP for the State.
Erstwhile accused with Sh. A.K. Sheoran, ld counsel. The accused has furnished bail bonds with surety Mr. Pawan Yadav in terms of order dated 24.01.2017 u/s 437A Cr.P.C.
The bail bonds have been considered and accepted for six months u/s 437A Cr.P.C.
File be consigned to record room.
Announced in the open court ( Amit Bansal )
Addl. Sessions Judge 04,
Delhi District, Patiala House Courts,
New Delhi
25.01.2017
SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 21 of 17 State/NDPS Vs. Suresh R.K. Puram PW1 Ct. Lalit Prasad - 20.12.2011- on instruction of SI Subhash Chand took sample sealed pullanda and FSL form with seal of SPS and KL from MHC(M) H.C. Ashok Kumar /PW2 vide RC to Malkhana- receipt ExPW1/A. PW2 ASI Ashok Kumar-05.12.2011 -MHC(M)- very important witness.
PW3 SI Subhash Chand - 15.12.2011 sent relevant exhibits / samples to FSL through Ct. Maruti Mundey - due to some clerical error Exhibits returned back and documents deposited in the malkhana - again after some time sent the same to FSL Rohini through PW-1- very important witness.
PW4 ACP Mahender Singh- 06.12.2011 - report regarding the arrest of accused and seizure of contraband under section 57 NDPS Act received in his office vide diary no. 8265 - said report Ex PW4/A - copy of diary register Ex PW4/B. PW5 Dr. Subhra Kumar Paul - Sr. Scientific Officer ( Chemistry ) FSL Rohini, Delhi - 20.12.2011 - Chemical Examination - Ganja weight approximately 97.40 grams with polythene - report Ex PW5/A - copy of FSL form ( forwarding letter ) Ex PW5/A. PW6 SI Mahabir Singh - 05.12.2011 - further investigation marked - prepared site plan at the instance of PW10 SI S.P.Samariya ExPW6/A - arrest memo ExPW6/B - Personal search memo Ex PW6/C. PW7 SI Udai Singh- Duty Officer- 05.12.2011 - FIR ExPW 7/A
-endorsement Ex PW7/B on the rukka - registered DD no.28A ExPW7/C in respect of receipt of rukka and subsequent registration of FIR.
PW8 Insp. K.L. Yadav - 05.12.2011 - SHO P.S. R.K.Puram-deposited pullandas, seizure memo and FSL form in malkhana vide DD no. 29A ExPW8/A. PW 9 ASI Mahabir Singh - recovery witness - seizure memo of all the pullandas and FSL form Ex PW9/A- case property Ex P-1, ExP-2 and Ex P-
3. PW10 SI S.P. Samariya - recovery witness - Notice u/s 50 NDPS Act Ex PW10/A- Rukka Ex PW10/B SC No 9041/16 FIR No. 333/11 PS R.K.Puram State Vs. Suresh Pages 22 of 17