Delhi District Court
State vs Ms Yasmin S/O Sh. Noor Hasan on 28 February, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE
(NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
Sessions Case No. 1646 of 16
FIR No.57/2013
U/s. 21 NDPS Act
PS : New Friends Colony
State
Vs.
Ms Yasmin S/o Sh. Noor Hasan
R/o Jhuggi No. 265/104, I.G. Camp
Pahari No.1, Taimoor Nagar,
New Delhi
Instituted on : 07.08.2013
Argued on : 23.02.2018
Decided on : 28.02.2018
J U D G M E N T
1 The facts of the case are like this. On 12.03.2013 ASI Devender
Singh was posted at PS, New Friends Colony. He was present in the PS.
At 10:40 am secret informer gave a secret information to him that
Anwari and Yasm are selling purias of smack in Jhuggi Basti, Pahari No.
1, Taimur Basti who can be apprehended with smack on immediate raid.
He informed the SHO on telephone who told him to take necessary
State v. Yasmin- SC No. 1646 of 2016 page 1 of 20
action. DD No. 15A was recorded by him and report u/s 42 NDPS Act
was sent to Senior officials. ASI Devender Singh constituted a raiding
party comprising SI Kamal Singh, HC Dinesh Pandit, Ct. Dev Kishan,
L/Ct. Neeraj, L/Ct. Nisha Bai. They were in civil dress. The secret
informer was also with them. ASI Devender has taken IO bag and
weighing machine with him. DD No. 17A was recorded. They left the PS
in the private vehicle and reached near Ganda Nala, Taimur Nagar. 810
passersby were asked to join them who refused to join them and left the
spot without telling their names and addresses. No notice was served
upon those persons due to paucity of time. The members of raiding team
were briefed. The secret informer was again sent to verify the
information who came back at 12.45 pm after verifying the information.
The raiding party was divided in to two parts. A raiding party comprising
of ASI Devender, L/Ct. Neeraj and Ct., Kishan was constituted and
another raiding party comprising of SI Kamal Singh, HC Dinesh and
L/Ct. Nisha was constituted. At 1.10pm raiding party comprising of ASI
Devender reached in front of Jhuggi No. 4, Taimur Nagar where
accused, who disclosed her name later on, was stopped who was carrying
one while polythene in her right hand. The information was disclosed to
State v. Yasmin- SC No. 1646 of 2016 page 2 of 20
the accused by them.
2 A notice u/s 50 NDPS Act was served upon the accused and
further told that any gazetted officer or Magistrate can be called to take
the search. This is her legal right. The accused told that she is illiterate.
She does not know how to read and write. The polythene in her hand
contains purias of smack. She has been apprehended so there is no need
to call any gazetted officer or Magistrate. ASI Devender Singh gave
introduction of members of raiding party and offered their search prior to
taking her search. The copy of notice was given to accused and the
contents were read over to her. The accused refused to exercise her legal
right. She got recorded her refusal in the notice. Lady Ct. Neeraj took the
search of accused. The polythene in the possession of the accused was
taken into possession. The polythene was opened and checked which
contained small purias of paper. There were 125 purias containing brown
colour substance which was like smack. The contents were taken out in
the polythene. The contents alongwith polythene was weighed on the
electronic weighing machine which was 13.800 grams. Two samples of
1 gram each were taken out in a transparent polythene and given Sl. no.
1A and 1B and remaining smack and purias were kept in the polythene
State v. Yasmin- SC No. 1646 of 2016 page 3 of 20
and given Sl. no.1. All of them were converted into pullandas and sealed
with seal DS. Form FSL was filled and seal DS was affixed. The seal
after use was handed over to Lady Constable Neeraj. The pullandas and
FSL form were taken into possession vide separate recovery memo.
Rukka was sent to PS through Ct. Dev Kishan alongwith sealed
pullandas, FSL form and copy of seizure memo with the direction to
hand over the rukka to Duty Officer for registration of case and case
property to SHO
3 Ct. Dev Kishan hand handed over rukka to Duty Officer who
recorded FIR. The sealed pullandas, FSL form and seizure memo were
handed over to SHO. SHO affixed his seal GC on the pullandas and FSL
form and directed MHC/M to deposit the same in the Malkhana.
4 Duty Officer handed over the copy of FIR and rukka to Ct. Dev
Karan with the direction to hand over the same to SI Iccha Ram. Both of
them came back to spot.
5 ASI Davender and L/Ct. Neeraj and accused were found present on
the spot. Site plan was prepared at instance of ASI Davender who
handed over the accused to SI Iccha Ram. The accused was interrogated
who was arrested and personal search and arrest memo were prepared.
State v. Yasmin- SC No. 1646 of 2016 page 4 of 20
Disclosure statement of accused was recorded. The supplier was
searched in the area of Sadar Bazar but in vain. The statements of
witnesses u/s 161 CrPC were recorded.
6 The report u/s 57 NDPS Act was prepared and sent to ACP
through SHO. Sealed sample pullandas and FSL form were sent to FSL
Rohini for chemical examination. The FSL report was received. Charge
sheet prepared and filed in the court for trial.
7 Accused put her appearance. Copy of charge sheet and documents
are supplied to her. After hearing charge u/s 21 (b) NDPS Act is framed
against her to which she pleaded not guilty and claimed trial.
8 Prosecution has examined 9 witnesses. Prosecution evidence is
closed. Accused is examined u/s 313 CrPC. Her defence is that she has
been taken from her house when she tried to go to house of her Chachi.
She is falsely implicated in this case. She has examined one witness in
defence evidence.
9 PW1 ASI Kuldeep stated that on 12.3.2013 he was Duty Officer
from 8am till 4.00pm at PS, New Friends Colony. At 3.30pm, Ct. Dev
Kishan has brought one rukka upon which FIR Ex. PW1/A was got
typed through Computer Operator. He made an endorsement Ex. PW1/B
State v. Yasmin- SC No. 1646 of 2016 page 5 of 20
on the rukka and handed over the same alongwith copy of FIR to Ct. Dev
Kishan with the direction to give the same to SI Iccha Ram.
10 PW4 HC Vijay Singh stated that on 12.3.2013 he was Malkhana
Mohrar at PS, New Friends Colony. SHO/Insp. Govind Chauhan has
handed over four sealed pullandas ( with Sl. No. 11, 1A, 1B and 1C)
duly sealed with seals DS and GC and FSL form to him. He has made
an entry at Sl. No. 1940 of register no. 19, copy of which is Ex. PW4/A.
On 18.3.2013 sealed pullanda with Sl. no. 1A was sent to FSL through
Ct. Dev Kishan vide RC No. 42/21/2013, copy of which is Ex. PW4/B
which bears his signatures at point A. Ex. PW4/C is the copy of receipt
of FSL. During cross examination he stated that FIR number was put on
the pullandas and thereafter it was handed over to him. The seals DC and
GC were handed over to him.
11 PW5 Insp. Govind Chauhan stated that on 12.03.2013 he was
posted as SHO, PS, NFC. At 04.00 pm he was present in the office. Ct.
Dev Kishan came to his office and handed over to him four sealed
pullandas duly sealed with seal of DS with Sl. No. 1, 1A, 1B and 1C
alongwith FSL Form and seizure memo. He has put his seal GC on the
pullandas and FSL form. He called MHC/M in his office alongwith
State v. Yasmin- SC No. 1646 of 2016 page 6 of 20
Register No. 19. Duty Officer was called to take FIR. FIR Number was
put on the pullandas and document. Four sealed pullandas, FSL form and
seizure memo were deposited in Malkhana and an entry at Sl. No. 1940
Ex.PW4/A in register no. 19 was made which bears his signature at
pointA. On12.3.2013 and 13.3.2013 reports u/s 57 NDPS Act Ex.
PW3/B and PW5/A were given to him by ASI Devender and SI Iccha
Ram and same were forwarded to ACP, PS, New Friends Colony.
During cross examination he stated that he has never met the accused
prior to registration of the case.
12 PW8 ASI Devender is the first Investigating Officer of the case.
He stated that on 12.03.2013 he was posted at PS, New Friends Colony.
He was present in the PS. At 10:40 am secret informer gave a secret
information to him that Anwari and Yasin are selling purias of smack in
Jhuggi Basti, Pahari No. 1, Taimur Basti,m who can be apprehended on
immediate raid with smack. He produced the secret informer before
SHO. DD No. 15A Ex. PW8/B was recorded by him. He constituted a
raiding party on the instructions of SHO comprising SI Kamal Singh,
HC Dinesh Pandit, Ct. Dev Kishan, L/Ct. Neeraj, L/Ct. Nisha Bai and
left for Ganda Nala, Taimur Nagar in private vehicles after recording
State v. Yasmin- SC No. 1646 of 2016 page 7 of 20
departure entry which is Ex. PW8/C. The secret informer was also with
them. Few passersby were asked to join them who refused to join them
and left the spot without telling their names and addresses. The secret
informer was again sent to verify the information who came back after
verifying the information. The raiding party was divided in to two parts.
He alongwith L/Ct. Neeraj and Ct., Kishan was in one team and another
raiding party comprising of SI Kamal Singh, HC Dinesh and L/Ct.
Nisha was constituted. His rading team alongwith secret informer went
towards Pahari No. 1 where accused was found sitting on a stool outside
her jhuggi No. 104 who wasapprehended on the signalof informer. He
gave the introduction to the accused who was apprised of her right tobe
searched in the presence of gazetted officer or Magistrate.
13 A notice u/s 50 NDPS Act Ex. PW6/A was served upon the
accused who refused to call Gazetted Officer or Magistrate. Her reply
was recorded on the notice which bears her thumb impression at point B.
One polythene was recovered from her possession. The polythene was
opened and checked which contained 125 small purias of paper
containing brown colour substance which was like smack. The contents
were taken out in the polythene. The contents alongwith polythene was
State v. Yasmin- SC No. 1646 of 2016 page 8 of 20
weighed which was 13.800 grams. Two samples of 1 gram each were
taken out in a transparent polythene and given Sl. no. 1A and 1B and
remaining smack was kept in the same polythene and given Sl. no.1. All
of them were converted into pullandas and sealed with seal DS. Form
FSL was filled and seal DS was affixed. The seal after use was handed
over to Lady Constable Neeraj. The pullandas and FSL form were taken
into possession vide recovery memo. Ex. PW7/A. Rukka Ex. PW8/A
was prepared and sent to PS through Ct. Dev Kaaran Jha alongwith
sealed pullandas, FSL form and copy of seizure memo with the direction
to hand over the rukka to Duty Officer for registration of case and case
property, FSL form and seizure memo to SHO. SI Ichha Ram alongwith
Ct. Dev Karan Jha reached on the spot to whom seizure memo and
accused were handed over. Site plan was prepared at his instance. He has
identified the accused. He has prepared report u/s 57 of NDPS Act Ex.
PW3/B and produced before Reader to SHO. He has identified the case
property produced in the court. During cross examination he stated that
he has requested public persons to join them near Ganda Nala near
Honey Money Top Shop. It was 11.20am. He has requested the workers
working there to join but they refused on the ground that are busy in
State v. Yasmin- SC No. 1646 of 2016 page 9 of 20
their work. Severalother shops were opened at that time. No one from
those shops also joined on the ground that they are busy in their work.
They were in civil dress. They have reached at the house of accused at
around 1.10pm. No public person gathered at the time of arrest of
accused though she was arrested from a thickly populated area. Notice
u/s 50 NDPS Act was prepared within 23 minutes. Nothing was
recovered from sarsari search of the accused conducted by L/Ct. Neeraj.
The suggestion is denied that notice was not served upon the accused or
accused was not apprised of her right to be searched in the presence of
Gazetted Officer or Magistrate or no witness was called from the market.
14 PW6 Ct. Dev Kishan has corroborated the version of PW8 and
further added that both the raiding teams simultaneously reached at the
jhuggi where accused were sitting outside and apprehended. He went to
PS with sealed pullandas, form FSL, seizure memo and rukka. He
handed over the rukka to DO and other articles to SHO of the PS. He has
handed over the copy of FIR and rukka to SI Ichha Ram for further
investigation. He alongwith SI Icchha
Ram came back to the spot where site plan was prepared by SI Iccha
Ram at the instance of ASI Devender Singh. Accused was arrested
State v. Yasmin- SC No. 1646 of 2016 page 10 of 20
whose personal search and arrest memo Ex. PW7/B and C were
prepared. Notice u/s 50 NDPS Act Ex. PW7/D was recovered from
personal search of accused taken by L/Ct. Neeraj. Her disclosure
statement Ex. PW9/D was recorded. The accused took them to Sadar
Bazar for the arrest of supplier who could not be traced out. He has
identified the case property produced in the court. During cross
examination he stated that information was given to SHO in his
presence. They have left in two four wheelers but he does not know their
registration numbers. The cars were called by ASI Devender. There is
one taxi stand outside the PS. They were six police officials. All of them
were in uniform. The cars were not called from taxi stand but running
vehicles were stopped for going to the spot. The neighbours gathered on
the spot on seeing them but they were not joined in the proceedings. The
accused is illiterate. Accused cannot read the contents of notice but same
were read over to her by IO. IO has told the accused to take their search
prior to her search. The accused has refused to call the Gazetted Officer.
SHO did not come to spot. The suggestion is denied that no recovery
was effected from the accused who was lifted from her house and
thereafter contraband was planted.
State v. Yasmin- SC No. 1646 of 2016 page 11 of 20
15 PW7 Lady Constable Neeraj Khari stated that on 12.03.2013 she
has accompanied ASI Devender alongwith other members of the raiding
party to Taimur Nagar where ASI Devender disclosed that one lady has
to be apprehended who is carrying contraband. Two teams were
contituted as per the direction of ASI Devender. She was with ASI
Devender and Ct. Dev Kishan. They went to Jhuggi No.104, Taimur
Nagar, where accused was present in front of jhuggi. She has asked the
name of the accused and conducted a search. One polythene was
recovered from her possession which contained powder like substance.
ASI Devender has asked her about the source of smack upon which
accused told that she has procured it from Sadar Bazaar area. They went
to Sadar Bazaar area to identify the supplier. She was declared hostile
and cross examined at length by Ld. Addl.PP for the State. During cross
examination, she admitted that IO has asked two passersby to join the
raiding party at Pahari No. 1 who refused to join them. She admitted
that secret informer was with them. She admitted that a notice u/s 50
NDPS Act was served upon the accused who was apprised of her right to
be searched in the presence of Gazetted Officer/Magistrate. The reply of
the accused was recorded in the notice. The IO has offered his search
State v. Yasmin- SC No. 1646 of 2016 page 12 of 20
prior to taking the search of accused. She admitted that 125 small
pouches were recovered from the polythene in possession of the accused.
The contents were taken out in a transparent polythene. It was 13 grams
and 800 miligrams. 2 samples of 1 gram each were taken out. The
sample smack and remaining smack were converted into pullandas and
sealed with the seal of DS and taken into possession vide fard
Ex.PW7/A. Seal was also affixed on FSL Form. Accused was arrested.
Personal search and arrest memo Ex.PW7/B & C were prepared.
Disclosure statement of the accused was recorded. Notice u/s 50 NDPS
Act Ex.PW7/D was recovered from the personal search of the accused
alongwith currency notes in the denomination of Rs.10 and 100. She has
identified the case property produced in the Court.
16 PW3 H. M. Bakshi, ACP stated that on 12.03.2013 he was ACP,
New Friends Colony. On that day, a report u/s 57 NDPS was received
from ASI Devender duly forwarded by SHO. The entry was made at Sl.
No. 1876 by his reader HC Willson, the copy of which is Ex.PW3/A.
The report bears his signature at pointA on Ex.PW3/B. On 13.03.2013,
report u/s 42 NDPS Act Ex.PW3/C was received from SI Iccha Ran
dully forwarded by SHO. The copy of DD No. 15A Ex.PW3/D was also
State v. Yasmin- SC No. 1646 of 2016 page 13 of 20
received with the information. The entry was made at Sl. No. 1876 in the
Dairy Register by HC Willson, the copy of which is Ex.PW3/E.
17 PW2 Dr. Kanak Lata Verma, Sr. Scientific Officer stated that on
18.03.2013one sealed cloth parcel mark1A with seals of DS & GC was received for chemical examination. The parcel was opened and it contained light brown colour powdery substance with lumps in a polythene. On chemical, TLC and GC - MS examination, it was found to contain diacetymorphine, monoacetymorphine, paracetamole, caffine and phenobarbitalin the quantity of 33.2%, 18.10% and 13%. The remnants were resealed with seal KLV FSL DELHI and sent to IO. The report is Ex.PW2/A. 18 PW9 SI Iccha Ram stated that on 12.03.2013 Ct. Dev Kishan handed over one rukka and copy of FIR to him for further investigation upon which he alongwith Ct. Dev Krishan came to jhuggi, Pahari No.1, Taimur Nagar where ASI Devender, L/Ct. Neeraj and accused were present. The accused was handed over to him. He prepared site plan Ex.PW9/A at the instance of ASI Devender. The accused was interrogated whose disclosure statement Ex.PW9/B was recorded. The accused was arrested. Personal search and arrest memo Ex.PW7/B & C State v. Yasmin- SC No. 1646 of 2016 page 14 of 20 were prepared. The accused took them to Sadar Bazaar area in search of supplier but in vain. A report u/s 57 NDPS Act Ex.PW5/ A was prepared and placed before SHO. He recorded the statements of witnesses. The exhibits were sent to FSL and report was collected. He prepared the charge sheet and filed in the court of trial. During cross examination he stated that he reached at the spot at 05:00 PM in his private Santro Car. 19 The accused has examined one witness in Defence evidence. DW 1 Almina stated that around 4 5 years ago at 9 am she alongwith accused and 45 other ladies was sitting in front of her house where 10 - 15 police officials in uniform came and surrounded the accused. They asked the accused to accompany them. Accused accompanied them to PS and later on she came to know that accused has been detained in the PS. She alongwith 4 - 5 ladies went to PS to bring back the accused but in vain. During cross examination by the Ld. Addl. PP the suggestion is denied that she has come to depose in favour of the accused being her neighbour.
20 Ld. Addl. PP for the State submitted that recovery witnesses have duly corroborated the case of prosecution. He further submitted that the recovery of smack stands proved from the accused. He further submitted State v. Yasmin- SC No. 1646 of 2016 page 15 of 20 that the link evidence has been duly proved.
21 Ld. Counsel for the accused submitted that there are number of contradictions in the testimony of police officials. He further submitted that every contradiction in the testimony of official witness assumes importance, the benefit of which goes to the accused. He further submitted that the link evidence is not complete so possibility of tampering with the case property cannot be ruled out. 22 Heard and perused the record.
23 It is admitted preposition of law that burden of proving the case never shifts. It lies on the prosecution. The defence version may be false but the prosecution cannot derive any advantage from the falsity or other infirmities of the defence evidence so long as it does not discharge the initial burden of proving its case beyond reasonable doubt. 24 There are number of contradictions and omissions in the testimony of official witnesses which go to the root of the case of the prosecution. 25 The evidence on the record shows that SI Kamal, ASI Devender, HC Dinesh Pandit, Lady Constables Nisha, Neeraj and Ct. Dev Kishan Jha left the PS on the basis of secret information that accused is selling the contraband at Pahari No. 1, Taimur Nagar, Delhi. They have left in State v. Yasmin- SC No. 1646 of 2016 page 16 of 20 two private vehicles. The testimony of PW6 shows that there were two private vehicles. The running vehicles on the road were stopped. The vehicles were not taken from the Taxi Stand outside the police station. It is for the prosecution to explain the mode of transport when the police officials have left the PS on the basis of secret information. The number of both the vehicles are not disclosed by any of the PWs for the reasons best known to them. It is out of question to stop the running vehicles for going to the spot especially when the taxi stand is situated just outside the PS. It creates a doubt over testimony of police officials that they have used two private vehicles for going to place of occurrence. 26 PW6, 7 & 8 are the members of the raiding party. PW8 who was heading the raiding party. It has come in their testimony that two raiding teams were constituted. SI Kamal was heading one raiding party whereas PW 8 alongwith 6 & 7 was heading another raiding party. The testimony of PW6 shows that members of both the raiding team simultaneously reached at jhuggi of the accused whereas this fact has not been deposed by PW7 and 8. The members of other raiding team are not shown as witnesses for the reasons best known to the prosecution. It creates a doubt whether members of both the teams have apprehended State v. Yasmin- SC No. 1646 of 2016 page 17 of 20 the accused in the fashion as projected by the prosecution. 27 The testimony of PW6 shows that they were in uniform whereas testimony of PW8 shows that they were in civil dress. There is contradiction to this effect which is not a major contradiction but prosecution has failed tot clarify this contradiction. 28 The testimony of PW8 shows that no public person gathered at the time of apprehension of the accused whereas testimony of PW6 shows that neighbours gathered on the spot on seeing them but they did not ask any of them to join the proceedings. The neighbours gathered on the spot on seeing the police party. It was the duty of the PW8 to ask them to join the proceedings but no such step was taken by him for the reasons best known to him rather he has gone to the extent on saying that no one gathered at the spot. This creates a doubt about the fairness of the proceedings conducted by PW8.
29 The testimony of PW8 nowhere shows that he was carrying weighing machine with him in order to weight the alleged recovered contraband from the possession of accused. It shows that PW8 was not carrying any weighing material with him and proceedings were not conducted in the manner as deposed by the witnesses.
State v. Yasmin- SC No. 1646 of 2016 page 18 of 20
30 The testimony of PW6 and 8 shows that seal after use was handed
over to PW7. PW7 has omitted to depose this fact. The omission to depose this fact amounts to contradiction which goes to the root of the case of prosecution.
31 The accused has led defence evidence. The defence evidence does not inspire confidence as no complaint was filed with the higher police officials in case accused was lifted from her house by the police. There is no explanation why no complaint was given against the act and conduct of the police officials which creates a doubt on the testimony of DW1. Her testimony is not relied upon.
32 The link evidence is equally important. All the safe guards that are to be taken is regarding safe custody of seized items and it is to be seen whether there was any chance of tempering and it is also to be whether the sealed items reached to the FSL without tempering. PW4 is MHC/M. His testimony shows that sample pullandas bearing Sl. no. 1A was sent to FSL through Ct. Dev Kishan vide RC No. 42/21/13 who has deposited the acknowledgement Ex. PW4/C with him. PW6 is Ct. Dev Kishan. He has nowhere deposed that he has taken the sample pullanda alongwith form FSL from MHC/M and deposited the same in FSL, Rohini. This is State v. Yasmin- SC No. 1646 of 2016 page 19 of 20 a material omission in his testimony. The link evidence is missing. The prosecution has failed to show that sealed poullanda was not tampered till it reaches in the hands of chemical examiner. There is no evidence on record to show that sealed pullanda remained untampered from the time when it was taken from MHC/M and deposited in FSL, Rohini. The possibility of tampering with the case property cannot be ruled out. The link evidence is incomplete, the benefit of which goes to the accused. The conviction cannot be based when link evidence is missing. Reliance is placed on "Khurshid v. State of Punjab" 1992(2) Crimes 963. 33 In view of my aforesaid discussion I have no hesitation to hold that prosecution has failed to prove its case beyond shadow of reasonable doubt. The accused is acquitted of offence charge. The case property be destroyed after the expiry of the period meant for appeal or revision as the case may be.
34 File be consigned to record room.
Announced in the open court on 28th February, 2018 (SURESH KUMAR GUPTA) Additional Sessions Judge04 & Spl. Judge (NDPS) SouthEast, New Delhi State v. Yasmin- SC No. 1646 of 2016 page 20 of 20