Delhi District Court
C.B.I vs . Vinod Kumar Bhatnagar on 8 August, 2014
1
IN THE COURT OF Ms. VEENA RANI, CHIEF METROPOLITAN
MAGISTRATE, DISTRICT SOUTH EAST, SAKET COURT, NEW DELHI.
C.B.I Vs. Vinod Kumar Bhatnagar
RC No.03/1984CIU(NC), New Delhi
U/s 14 of Dangerous Drugs Act.
Date of filing of the charge sheet : 13091984
Date of reserving order : 25072014
Date of pronouncement : 08082014
JUDGMENT
(a) Serial Number of the case : 21/3 of 1984
(b) The date of the commission of : 24011984
the offence
(c) The name of the complainant : D.K.Papriwal,DSP/CBI/CIU/
NC.
(d) The name of the accused Vinod Kumar Bhatnagar
person, his parentage and S/o Sh. B.S. Bhatnagar
residential address R/o 510, Asia House,
Kasturba Gandhi Marg,
New Delhi
(e) The offence complained of : U/s 14 of Dangerous Drugs
Act.
(f) The plea of the accused : Pleaded not guilty.
(g) The final order : Acquittal.
(h) The date of the order : 08082014
PROSECUTION CASE:
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 2
1) The case of the prosecution is that on 23.01.84 on the directions of the SP NARCOTICS Branch CBI a team of CBI team headed by DSP was patrolling Chanakya Puri Area New Delhi for the purpose of conducting surprise check, in order to detect illicit trafficking in narcotics drugs. At about 21:15 hours on Chandergupta Marg and outside American Embassy school a whitish fiat car was seen parked on the left hand side of the road. The occupant of the car (accused herein) was questioned about his presence at that point of time. That person had subsequently disclosed his name as Vinod Kumar Bhatnagar, s/o Sh. B.S. Bhatnagar, r/o Asia House KG Marg, New Delhi and could not satisfactorily explain about his presence. Subsequently, the said car was searched and some 21 Kg of heroin was recovered. There was another car on the other side of the road. The occupant of the other car was able to 'escape' from the spot. In this way two cars were seized and the accused was arrested.
2) The charges were framed under S.14 of the Dangerous Drugs Act, 1930 and the prosecution examined 15 PWs. The accused was also examined under 313 Cr.P.C. and opted to examine 5 DWs.
PW1 : Sh. R.P. Gupta (Security officer - cum - Registrar American School)
3) On the date of occurrence the PW1 was in American Embassy school for checking the security near the Southern entrance gate of the school. One DSP Shri DK Papriwal contacted PW1 outside the gate of RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 3 the school at about 9:15 pm. Mr. Papriwal also disclosed his identity and requested PW1 to join the raiding party to witness the search, of heroin. At that time maintenance supervisor Mr. Vimal Kumar (PW6) was also with PW1. They saw one person V.K. Bhatnagar being interrogated by the CBI. The accused V.K. Bhatnagar told that he had some contraband. However, the occupant of the other car was able to make an escape. The key of the dickey was taken from the accused V.K. Bhatnagar and thereafter the fiat car was searched and from the dickey one blue coloured suitcase was recovered from the dickey of the car. The DSP requested help in searching the contents and PW1 allowed the use of the school facility to open the suitcase. PW1 obtained the permission of the Director of the School on telephone for the use of the school facility by the raiding party which was approved by him. Suitcase Ex. P1 was opened. They found a blue coloured flowery printed quilt on top and underneath the raiding party took out 18 packages of white substance in that. All the packages were opened one by one which were wrapped in polythene covers and weighed, and all the measurements were recorded. Recovery memo Ex. PW 1/A was prepared at the spot which is signed by PW1 at point A. Facsimile seal was affixed on each page of the recovery memo. The personal search of the accused was also conducted vide memo Ex. PW 1/B which bears signature of the said witness at point A. Search memo in regard to both the cars was also prepared at the spot which is Ex. PW 1/C and D which bears signature of the said witness at point A. Seal after use was handed over to me vide memo Ex. PW 1/E which bears signature of the said RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 4 witness at point A. Site plan was also prepared at the spot which also bears signature of the said witness at point A on Ex. PW 1/F. However, the said seal was not produced by PW1 in the court. Facsimile of seal of CBIE was prepared at the spot which was signed at point A which is Ex. PW 1/G. A Slip Ex. P2 was affixed on the suitcase Ex. P1 which bears signature of the said witness at point A. The keys by which the suitcase was opened was also sealed in any envelop which bears signature of the said witness and the envelope is Ex. P3 and my signature is at point A. All the packages bears signature of the said witness at point A. These all envelopes are sealed with the seal of CBIE and all the envelopes bears signature of the said witness. The packets numbering 18 were weighed separately and their weights were written on the paper and they weigh varying from ½ kg to 3 kg or near about. The samples were also taken out from each packet of heroin weighing about 5 grams and 2 samples each were taken from all the 18 packets and in this way 36 samples were taken out which were also sealed separately in envelopes. Out of those 36 envelopes, 18 envelopes are Ex. P40 to P57 which are all having the seal of CBIE intact and are also bearing signature of the said witness at place A. Pillow cover is Ex.P94. These proceedings started at about 9:15 pm and lasted for about 4 hours till about 1:15 / 1:30 A. M. in the night. The total weight was around 21 Kg.
PW2 ::: ASI V. Ram
4) On 3111984 PW2 was posted as HC in narcotic branch and took 18 samples along withseal from malkhana incharge Harchand SI to CFSL and also took a letter Ex.PW2/A which is signed by Sh. V.S. RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 5 Nain DSO, IO of the case whose signature is identified by PW2. The said witness obtained acknowledgment at point A on the office copy and handed over letter Ex.PW2/A to the IO. PW2 had put his signature in the malkhana register at page no:10. PW3 ::: Ct. Ram Avadh
5) On 2421984 PW3 was posted as Ct. in the Narcotic Branch and on that day PW3 brought 18 sealed envelops samples of this case which were sealed with the seal of CFSL and deposited the same with the incharge Malkhana who made necessary entry in the malkhana register at page no:10 in his presence. PW2 also brought the CFSL report along with the sample. He handed over the CFSL input to IO for necessary action.
PW 4 ::: Har Chand
6) On 24.01.84 PW4 was working as Sub Inspector in CBI CIU (NC) and was looking after malkhana of the Br. On that day Shri DK Papriwal, DSP deposited with him in the malkhana case property concerning to this case which consisted one suitcase and 36 sealed packets sealed with the seal of CBI/E and other property which he entered in the malkhana register at page 10, Sl. no. 7 to 11. The facsimile of seal was also deposited alongwith the property by Shri DK Papriwal, DSP. On 31.01.84 Shri Kanshi Ram HC had taken 18 sealed samples of heroin marked A1 to R1 from me for depositing the same in the CFSL. PW4 has further stated that so long the property remained with him, it remained intact and nobody tampered with it. The entry record is Ex. PW 4/A. PW 5 :: Sh. D.K. Papriwal DSP CBI in the Narcotics branch RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 6
7) PW5 was working as DSP CBI in the Narcotics branch from Middel of August 1982 to August 1986. On 23.01.84 PW5 was directed his S.P. to lead a patrol party in C. Puri Area New Delhi for the purpose of conducting surprise check, in order to detect illicit trafficking in narcotics drugs. Accordingly, PW5 along with Inspectors, Rajinder Singh, Jai Singh and SI Umed Singh left CBI office at about 20:45 pm that day by the staff car no. DHE 1178 for the purpose of patrolling. The car was driver by Constable driver Rattan Singh. At about 21:15 hours they were patrolling in C. Puri area on Chandergupta Marg and outside American Embassy school on whitish fiat car was seen parked on the left hand side of the road. PW5 asked the driver to stop the car by the side of that car. Then PW5 asked Inspector Rajinder Singh and Inspector Jai Singh to question the occupant / driver of the car about his presence at that point of time. Both these officers went to that car and asked the occupant about his presence at that point of time. That person had subsequently disclosed his name as Vinod Kumar Bhatnagar, s/o Sh. BS Bhatnagar, r/o Ashia House KG Marg, New Delhi could not satisfactorily explain about his presence. Inspector Rajinder Singh had asked him to come out of the car and to that he made an attempt to start the car and leave the scene. Ins. Rajinder Singh forced him out of the car and put off the ignition switch. The person who was forced out of the car is present in the court i.e. the accused Vinod Kumar Bhatnagar. On this Ins. Rajinder Singh had questioned him about his conduct of starting the car, the accused got perplexed and revealed that he had a suit case in the dickey of his car containing herein powder. I came out of the car and RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 7 on seeing two persons at the gate of the school called them. PW5 introduced himself and asked about their identity. One of them is told that he was Mr. RP Gupta Security Officer and Registrar of the American Embassy School and the other disclosed that he was Mr. Vimal Kumar working as Maintenance Supervisor in that school. The accused was asked if he had any associate with him. He pointed out towards a car on the opposite side of the road. Immediately, Ins. Rajinder Singh proceeded to that car from which a person alighted and started running, on the road in the southern direction. Rajinder Singh Ins gave a chase to him but returned after sometime and informed that he could not apprehend that person. Then CBI officers and the witnesses offered their personal searches to the accused during which nothing incriminating was found. Before the personal search PW5 had asked Sh. RP Gupta and Vimal Kumar to become witness to the incident to which they agreed. Searches of the raiding party were given in the presence of these witnesses, who also gave their personal search to the accused.
8) According to PW5 Sh. RP Gupta had questioned the accused and during which he confirmed that he was carrying a suitcase of heroin powder, in the dickey of his car DEC 5810 whitish fiat. This was the car which was on hand left side of the road i.e. on the side of the American School. The other car had no. DEC 3857 from which the person had run away. The accused was asked to open the dickey of is car which he opened with the help of a key which was in the bunch containing the ignition key of his car. The dickey was found to contain a big size suitcase and it was found closed. The said suitcase RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 8 is Ex. P1. Sh. RP Gupta on request permitted us to complete the remaining formalities in the school premises. I had asked Ins. Rajinder Singh and driver Rattan Singh to bring the two fiat cars in the school compound. Then Sh. Umed Singh SI carried the suitcase and the accused alongwith me, the two witnesses and Ins. Jai Singh came to the reception area of the school. There the accused was asked to open the suitcase, and that he opened by a key which he took out from the right hand pocket of his coat. The suitcase was found to contain a cut portion of a quilt of green leaves design and in that were wrapped 18 polythene packets containing white substance, suspected to be heroin. (At this stage the sealed packet Ex. P3 was opened which contained the key of the said suit case Ex. P1 and one envelope. This envelope was sealed with the seal of KCL. (Seal of Sh. KC Lohia MM, New Delhi). This envelope also bears signature of the said witness at point B. Suit case was also found to contain one pillow having blue design. (At this stage while opening the lock of the suit case with the key taken out from the envelop Ex. P3 the suit case lock was opened but the key was broken into two pieces in court). The said key bearing no. 170S (Semsonite) was the same with which the suit case was opened by the accused. The two pieces of the keys are Ex.P3/1 and 2. In the meantime Inspector Rajinder Singh joined them.
9) According to PW5 the 18 polythene packets were then alphabetically marked A to R. Then each packet was individually opened. The packets were further found to contain polythene covers inside. There were three polythene covers including the outer cover in 16 packets RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 9 and there were two polythene covers including the outer cover in two packets. Each packet with its last polythene cover then weighed and most of the packets weighed around 1 kg except two packets weighing near about 400 and 500 grams and one packet was around 3 kgs and one about 1.900 kgs. The total weight approximately was 21.105 kgs from each of the lot / packet two samples weighing 5 grams each were then drawn in khakhi envelope which were in turn kept in fresh khakhi envelopes and these samples were respectively marked as A1, A2, B1, B2 up to R1 and R2. The sample packets were closed and on the outer cover were signed by the CBI Officers i.e. Rajinder Singh, Jai Singh and myself and the two witnesses. The heroin packets were kept in their respective covers and their opening were closed by taping them. The outer covers of these packets was similarly signed as stated above. Each of the heroin packets were then placed in khakhi paper covers which were also respectively marked A to R and were signed by all concerned stated above. The 36 sample packets A1 A2 to R1 R2 and 18 packets of heroin were then sealed by the seal CBI. The quilt was signed by the CBI officers and the witnesses and so also the pillow and its cover were similarly signed. The heroin packets A to R were placed back in the guilt placed in the above stated suitcase. The suitcase was closed and before that the pillow and its cover were also placed inside. The suitcase was then closed and locked with its key and it was tied with a thread and sealed with the above seal after pasting a paper containing signatures of the witnesses and the CBI officers. It was sealed with the same seal. The metallic key samsonite of the suitcase was placed in a RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 10 polythene cover and it turn kept in a khakhi cover which was closed, signed by the witnesses and CBI officers and was also seized by the above seal. Four fascimile of the above seal were prepared under the signatures of the CBI officers and the witnesses. Recovery memory was prepared and on each page of recovery memo the seal impression was taken. The seal after use was given to Sh. RP Gupta witness for safe custody.
10)The PW5 further testified that the personal search of the accused and the search of the two fiat cars stated above were taken, and separate memos were prepared in respect of each and duly signed by the CBI officers and the witnesses. The accused was arrested. The SP CBI had been informed and he paid a visit to the school somewhere between 2230 hours to 2330 hours. Copies of recovery memo and personal search memo had been given to the accused. A site plan was prepared depicting the scene of occurrence under the signatures of the witnesses and the CBI officers.
11)According to the testimony of PW5 the proceedings in this case at Chandergupta Marg had started at about 9:15 pm on 23.01.84 and the following proceedings in the school premises completed at about 1:15 am on 24.01.84. With a seized property and the accused PW5 came to his office and prepared a report regarding seizure of the above stated heroin, from the possession of the accused and gave to my SP for registration of a case. Thereon case RC 3/84 was registered against the accused and at about 3:30 am PW5 handed over the accused and the memos etc. to the investigating officer, Sh. Nair the RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 11 then DSP (PW12) and deposited the property with CBI CIU (NC) malkhana.
PW6: Shri Vimal Kumar S/o Shri Prem Nath, age 58 r/o A19, Amar Colony, Lajpat Nagar
12)As per the testimony of PW6 he was working as Maintenance Supervisor in American Embassy School. During January 1983 also, he was working in the same place. Shri R.P. Gupta was the Security Officer of the school. On 23.01.84, PW6 and Mr. R.P. Gupta (PW1) were present in the school at about 9.00 p.m. when Shri Papriwal of CBI approached and said that he needed some help. Thereafter the 'boot' of the car was checked and the suitcase was recovered. The suitcase was taken inside the reception of the school and the articles were taken out and a list was prepared. There were 18 packets in all. There Mr. Papriwal told PW6 that the substance was 'confirmed' heroine. One pillow was also found inside the suitcase. Each packet was weighed separately and was listed. The total weight was between 22 or 21 kg approximately. Each packet was opened and small quantity of heroin was taken out from each packet which was divided into two portions. Thus out of the 18 packets 36 samples were drawn. The samples were taken in brown envelopes and these envelopes were sealed. The samples were marked ABC etc. The remaining packets containing the substance were also sealed by putting them in some envelopes probably brown in colour.
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 12 PW7 : Sh. G.S. Bhatnagar
13) PW7 was the registered owner of fiat car bearing registration no. DEC 5810. He had purchased this vehicle from one Mr. Kumar of Kailash Colony. He had taken this car on superdari from the court and it is still with me. The superdarinama is Ex. PW 7/A. In January, 1984 he had given this car to V.K. Bhatnagar, who is his younger brother.
PW8 : Insp. Rajender Singh :
14)PW8 has stated that on 23.01.84, he was posted as Inspector in the Narcotics Branch of CBI. On that day Sh. D.K. Pariwal, the then DSP, CBI, asked him to join the patrolling party in the night. A patrolling party consisting of myself, Sh. Papriwal, Inspr. Jai Singh and SI Med Singh was formed. They all left in staff car No. DHE 1178 driven by constable Rattan Singh at about 8.45 P.M. when they were patrolling in the area of P.S. Chanakyapuri at Chandra Gupt. Marg and going towards American Embassy, a fiat car No. 5810 was seen parked on the left hand side of American Embassy near American school. Sh.
Papriwal directed PW6 and Inspector Jai Singh to find out the circumstances, under which it was there at 9.15 P.M. Accordingly, PW8 along with Inspector, Jai Chand approached the car. It was occupied by Vinod Kumar who was sitting on the driver's seat. No one else was there in the car. PW8 questioned him and asked him he was carrying heroine powder in the car. Vinod Kumar became a little nervous and perplexed and tried to run away by starting the car. But RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 13 PW8 immediately grappled him and took him out of the car and look out the ignition key from the car. On further interrogation the accused disclosed that he was carrying huge quantity of contraband heroine in a suitcase which he had kept in the dickey of the car. In the meantime, PW8 enquired from him if he had any associates. Then he pointed out towards another flat car No. DEC 3857 across the road near American Embassy immediately rushed towards that car leaving Insp. Jai Singh and other staff with the accused. The occupant of that car ran away. PW8 chased him but could not approach him. Then PW8 came back to the spot. There in the presence of two witnesses and CBI officers and the accused, the dickey of the car was got opened. It was found to contain one blue coloured Samsonite suitcase which was locked. The suitcase was opened by accused V.K. Bhatnagar with a key which he was having. The suitcase contained a green colour small quilt and a pillow cover. One suitcase contained a green colour small quilt and a pillow cover. One end of the quilt was opened and 18 packet of heroin were recovered. Then we shifted made the American school for proceeding. One of the witnesses was a school authority and he took us inside the school. The suitcase was carried inside the school by accused V.K. Bhatnagar and the car was parked in the school. All the eighteen packets were taken out from the green colour quilt. Each of them was covered with three polythene covers. All packets were marked with alphabets from A to R. Packets marked Q and R had two polythene covers and the others had three. One by one the eighteen packets were weighed with a single polythene cover. Fourteen packets weighed about 1 kg each RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 14 and two packets weighted about ½ Kg each and two packets weighed about 3 Kg each. The total quantity was 21 Kg 105 gms including the weight of polythene covers. Out of each packet, two representative samples of five gm each were drawn in Khaki proper envelope. Each khaki envelope was put in another khaki envelope. The samples were marked A1, A2, B1, B2.......R1, R2. The remaining heroin powder was kept in the same polythene covers and wrapped as originally in the other covers. The torn mouth of the polythene covers was closed with adhesive tape. The polythene covers were signed by independent witnesses and CBI officers. Each packet was placed under Khaki envelope. Similarly the samples were also signed by independent and CBI officers. The Khaki envelope containing the polythene packets of heroin were also signed by witnesses CBI officers. The samples and packets were there sealed with CBI/E. the personal search of the accused was also taken through personal search memo Ex PW1/B. which bears signatures of PW8 at point E. Both cars were searched and nothing incriminating was recovered. The samples and packets were then sealed with CBI/E. The personal search of the accused was also taken through personal search memo Ex PW1/B which bears signatures of PW8 at point E. Both cars were searched and nothing incriminating was recovered. The memos Ex PW1/C, D were prepared in this report and the same bear signatures of PW8 at point C. The proceeding of recovery started at 9.15 p.m. and concluded at 1.15 A.M. on 24.01.84. The recovery memo Ex PW 1/A was prepared and specimen impression of seal was put on each page of recovery memo. It bears signatures of PW8 at point E. The suitcase alongwith RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 15 the contraband heroin who sealed at the same place and a slip bearing signature of the said witness and signature of others was parted thereon. The quilt was also signed by witnesses and CBI officers. Similarly, the pillow cover was also signed. The quilt Ex P95 bears signatures of PW8 at point E. The pillow cover Ex P94 bears signature of PW8 at E. The 18 packets one Ex P4 to Ex P21 and the same bear signatures at point E. The packets Ex P4 to Ex P21 which ne sealed with court seal, were opened in the court. These packets contain polythene covers Ex P22 to Ex P39 which also bear signatures of PW8 at point E. The envelopes are marked A1 to R1 and contain samples sent to CFSL. The envelopes mark A2 to R2, which have been exhibited as Ex P40 to Ex P57 also bear the signature of PW8 at point E.
15) The key with which the suitcase was opened by accused, was kept in a polythene paper and sealed in a Khaki envelope. The envelope is Ex P3 which bears the signature of the said PW at point E (The envelope which is sealed with court seal is opened). It contains two pieces of a key) Ex P3/12 are pieces of the key which was used by the accused to open the suitcase. The suitcase Ex P1 is the same which was found in the dickey of the car. (The slip posted on the suitcase was in a very obliterated condition now).
16) The specimen of seal was taken on Ex PW 1/G which bears the signature of the said PW at point E. The site plan Ex PW1/F was prepared by Sh. D.K. Papriwal at the spot and it bears the signature of RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 16 the said PW at point E. The car bearing No. DEC 3857, is Ex P95. It is the car, from which the accomplice of V.K. Bhatnagar ran away. Copies of recovery memo and personal search memo were given to the accused. The heroin powder contains in the packets producing today to the same which was recovered.
17)The witness PW1, PW5, PW6, PW8, PW12 etc. havw mentioned of the following exhibits:
i. The suitcase which was recovered from the car of the accused is Ex. P1, ii. the slip which was pasted on the suitcase is Ex. P2 which bears signature of the said witness at point B. iii. The envelope in which the key sealed is Ex. P3.
iv. The key of the suit case (which was broken in the presence of the court today and is now in two parts) is Ex. P3/1 and 2.
v. The 18 khakhi envelopes in which the heroin alongwith the polythene covers was sealed are Ex.P4 to Ex. P21 and each envelope bears signature of the said witness at point B. (The 18 envelopes sealed with the seal of KCL were opened and were found to contain the sample envelopes marked A1 to R1 which are Ex. P76 to Ex. P93 which bears signature of the said witness.
vi. The outer envelope bearing the seal of Sh. KCL and CFSL are RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 17 Ex. P58 to Ex. P75.
vii. The pillow cover with pillow Ex. P94 and it bears signature of the said witness at point B. viii. The pillow Ex. P94/1 is also signed by the witness.
ix. The quilt Ex. P95 also bears signature of the said witness.
x. The recovery memo Ex. PW 1/A is signed on each page. It was prepared by Ins. Rajinder Singh on his dictation and it bears the facsimile of the seal on each page.
xi. The personal search of the accused is Ex. PW 1/B. It bears signature of the said witness at point B. xii. The search of car no. DEC 5810 was conducted vide memo Ex.
PW 1/C which also bears signature of the said witness.
xiii. The search of the car No. DEC 3857 was conducted vide memo Ex. PW 1/D which bears signature of the said witness.
xiv. The receipt of the seal given by RP Gupta to me is Ex. PW 1/E. RP Gupta signed the receipt at point A. xv. The site plan Ex. PW 1/F was prepared by Sh. Rajinder Singh on the instructions of PW5 and is signed by the witness.
xvi. The recovery memo and personal search memo bear the signatures of the accused V.K. Bhatnagar at point C in token of having received a copy of the same.
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 18 xvii. The report to the SP is Ex. PW 5/A and it bears signature of the PW5 at point B on page 6 of the report.
xviii. The then SP Sh. Jaspal Singh's order are on page no. 6 with his signatures which is identified by PW5 at point X. PW5 had seen Sh. Jaspal Singh signing and therefore PW5 was conversant with the signature of his SP.
xix. The formal FIR was registered which is Ex. PW 5/B is signed by Sh. Jaspal Singh at point X. xx. The facsimile of the seal is Ex. PW 1/G which bears signature of the said witness at point B. xxi. Case property, car Ex. P96 identified by the witness.
PW9: (There are two statements of PW9)
18. No:1 is PW9 HC Om Vir (recorded on 08091994) :According to the said PW, probably in March, CBI officers had come to Asia House, where the accused used to reside (H No:510, Asia House). The said premises was opened by them by taking key from the accused V.K. Bhatnagar and the house was searched in presence of PW9. Chowkidar was also present and search continued till early morning. The CBI had seized documents and cash from the house in his presence. PW9 had signed all the documents.
Statement of another witness Narender Singh who is also numbered as PW9
18) PW9 Sh. Narender Singh :::: According to his testimony he knew Kuldeep Singh , proprietor of M/s Kanwar Motors, Karol Bagh who RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 19 used to do business of car and purchase of vehicles at Shankar Market, shop No:7 in 1982. A car was sold to him by Kuldeep Singh for a commission of about Rs.500/ each from seller as well as buyer. It was in respect of DEC3857. Sh. Daleep Singh had brought the car and it was sold to Kuldeep Singh. The money was taken by Daleep Singh.
PW10 Sh. D.J. Kanha
19) PW10 was posted in 1984 in Narcotic branch of CBI as Inspector. Io had instructed him to verify the details of car No:DEC5810 from Traffic Police. Inspection details submitted by me is Ex.PW10/A. PW 11 PS Gaur
20) PW11 was working as Assistant Admn. Officer with National Insurance Co at its Divisional Office no. 2 Jhandewalan Extension from 1980 to 1986. He was the Incharge of Motor Department at that time. The cover note Ex. PW 11/A was issued by us on receipt of the proposal from the insured. The receipt Ex. PW 11/B has also been issued by them. The receipt is signed by the then Accounts Officer Mr. PK Chandna. PW11 identified his signatures. PW 12 ::: Sh. K.S. Nair DSP, CBI STF, N. Delhi in S.A.
21)PW12 have been working as DSP, CBI in Delhi since 1982. He was working as DSP in the Narcotics (SIU XI) branch during the year 1984 on 24.01.84. PW12 was entrusted the investigation of the case by Sh. Jaspal Singh, the then S.P Narcotics branch. The FIR is Ex PW 5/B which bears signatures of Sh. Jaspal Singh the then SP at points X. He had worked with him and identified his signatures. Similarly complaints of Sh. D.K. Papriwal, the then DSP is Ex PW 5/A. Sh.
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 20 Papriwal had signed at point B and Sh. Jaspal Singh has signed at point X vide endorsement in the complaint. He examined Sh. D.K. Papriwal.
22)PW12 had sent the samples to the CFSL for chemical analysis and opinion. There been 18 samples. They were sent for examination through Shri Kanshi Ram, the then HC alongwith the samples facsimile of the seal affirmed on the recovery memo as well as in the seized properties. There samples were deposited in the malkhana of the branch by the seizing officer after the recovery. PW12 also examined Shri R.A. Mohan, who collecting the CFSL report and the 18 remained samples from the CFSL.
23)PW12 also examined Sh. Gopal Swaroop Bhatnagar, the brother of Sh. V.K. Bhatnagar (accused) who claimed the ownership of flat car number DEC 5810, from the dickey of which the suspected heroine was recommend. Sh. Gopal Swaroop Bhatnagar had also given in writing claiming the ownership of the car and also furnished the photocopies of the registration certificate of the car.
24)PW12 also examined Sh. S.N. Gulati of Nizamuddin from whom flat car DEC 5810 was purchased. He also examined the issue of the ownership which had been transferred to one Mr. Kuldeep Singh residence of Chandigarh. However, in investigation it was found that no person in the name of Kuldeep Singh had even residence of the given address. No person also came forward till date to claim the ownership of the said abovesaid car. The flat car DEC 5810 was released on superdari.
25)During investigation, PW12 carried out the search of the house of RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 21 the accused in the presence of the independent witnesses vide memo Ex PW 9/A. The said witness PW12 (I.O.) identified the letter from Sh. Gopal Swaroop Bhatnagar addressed to PW12 and received by PW12 on 17.02.84. The letter is Ex PW 12/B. The letter addressed to Gopal Swaroop Bhatnagar is Ex PW 12/C. The samples alongwith facsimile seal sent to CFSL through letter Ex PW 2/A with Shri Kanshi Ram. This letter bearing the signature of the said PWs as point A. The endorsement of CFSL the receipt of samples is as point A. The opinion of CFSL was also received in the branch. The same is Ex Px. After the opinion, PW12 filed the charge sheet in this case charge sheet is Ex P4. It bears the signature of the said PWs as point A. It also bears the endorsement of our SP at point B in both the pages.
PW13 : PW 13 :: Sh Ashok Kher
26) In 1984 PW13 was working as Development Officer in National Insurance Co, Jhandewalan, New Delhi. During that period, he was doing insurance work and one Mr. Narinder Singh was the agent. Mr. Narinder Singh had an office at Shanker Market and he used to do insurance on their behalf. The cover note which is regarding vehicle no. DEC 3857 bears the signatures of Mr. Narinder Singh at point A on Ex. PW 11/A. PW13 identified his signatures. The policy is already exhibited as Ex. PW 11/B. One Mr. Mann from CBI office had come and inquired about the insurance of the vehicle number DEC 3857.
PW14 : Sh. Umed Singh, Retired Inspector CBI RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 22
27) Examination of this witness was deferred at the request of the Ld. PP for the CBI as he stated that case property was not available during his examination. He was never summoned again for the completion of his deposition.
PW15 : PW 15 KS Chabra
28)On 31.01.84, 18 sealed parcel were received in the office of the laboratory. Seal was intact and tallied with the official specimen seal. The parcel contained 5 gm (approx) white powder in each parcel marked A1 to R1. On chemical analysis Ex. A1 to R1 gave positive test for heroin. My report is Ex. PX which bears signature of the said witness at point A and is correct. The remnant of the exhibits were returned with the seal impression of KSC/SSO, CFSL, CBI Chem. div. Delhi. Samples were received alongwith the forwarding letter which was sent by SP, CBI. The same is Ex. PW 2/A which were received in the office by case asstt of CFSL. The endorsement of our office is at point A. At this stage the 18 sealed envelopes sealed with the seal of Ld. MM are opened. The same are already exhibited as P58 P75. I have seen the remnants in all the exhibits i.e. P58 to P75 and these are the same which are sent to me for examination. These are Ex.P76 to P93.
The issue is whether for the 'search & seizure' operation the CBI had followed the prescribed procedure under the Dangerous Drugs Act, 1930?
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 23
29)The defence has raised the issue of the competence of the CBI to investigate the matters relating to the Dangerous Drugs Act, 1930. In response the CBI has placed the letter No. 4/1/82LD dated 24th Aug. 1984/ 6984 wherein the offence under S.14 of the Dangerous Drugs Act, 1930 has been shown.
30)India had participated in the second International Opium Conference held at Geneva in 1925 which adopted the convention relating to dangerous drugs. To give effect to the obligations undertaken by the Government of India by signing and ratifying the said convention, the Dangerous Drugs Act, 1930 came to be enacted to vest in the Central Government the control over certain operations concerning dangerous drugs. Article 25 of the Universal Declaration of Human Rights, 1948, and Article 12 of the International Covenant on Economical, Social and Cultural Rights, 1966, reflect the concern of the international community for the protection of the individual's right to the enjoyment of the highest attainable standards of physical and mental health. The other International Conventions which prompted the legislation are set out in Section 2(ix) of the Act. The the act centralized and vested in the Central Government, the control over certain operations relating to dangerous drugs and increase and render uniform the penalties for offences relating to such operations. The act provided for the procedure to be adopted by the officers while carrying out the search & seizure operations.
As far as the CBI is concerned it has to :
firstly satisfy the requirements of S.3 of the DSPE Act, RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 24 1946;
secondly the CBI ought to follow the procedure prescribed under the Dangerous Drugs Act, 1930 visàvis arrest / search / seize etc. The issue is whether the "Dangerous Drugs Act, 1930" was notified under S.3 of the DSPE Act, 1946 when the investigations of the present case were initiated on 23.01.1984. In other words :: Was the CBI competent to investigate the present case. A query u/s 165 Evidence Act. can be put to CBI to produce the S.3 notification which was in effect as on 23.01.1984.
37. The defence counsel has raised this issue at the time of the final arguments. However, no suggestion was ever put to the I.O. during the crossexamination. This being a pure legal issue has to be disposed of even if raised for the time at the stage of the final arguments.
38. The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India. The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Deptt. Of India during World War II. Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. The Delhi Special Police Establishment Act was therefore brought into force in 1946. The CBI's power to investigate cases is derived from this Act.
39. The legal powers of investigation of CBI are derived from the DSPE Act 1946. This Act confers concurrent and coextensive powers, duties, privileges and liabilities on the members of Delhi Special Police Establishment (CBI) with Police Officers of the Union Territories. The Central Government may extend to any area, besides Union Territories, the powers and jurisdiction of members of the CBI for investigation subject to the consent of the Government of the concerned State Govt.
While exercising such powers, members of the CBI of or above the rank RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 25 of Sub Inspector shall be deemed to be officers incharge of Police Stations of respective jurisdictions. The CBI can investigate only such of the offences as are notified by the Central Government under the DSPE Act.
40. Law and Order is a State subject and the basic jurisdiction to investigate crime lies with State Police. Besides, due to limited resources, CBI would not be able to investigate crimes of all kind. The CBI can investigate only offences or classes of offences as are notified by the Central Government under Section 3 of the DSPE Act.
The arguments of the defence visàvis the competence of the CBI does not hold water.
Now coming to the second aspect (assuming that the CBI was competent to investigate the offenses under the Dangerous Act, 1930. Whether the prescribed procedure was followed (NO):
The relevant provisions of the provisions of the Dangerous Act, 1930 :
S.4: PROHIBITION OF CERTAIN OPERATIONS ::::: No one shall:
(a) cultivate any coca plant or gather any portion of a coca plant,
(b) manufacture or possess prepared opium, unless it is prepared from opium lawfully possessed for the consumption of the person so possessing it, ...
S.8: CONTROL OF STATE GOVERNMENT OVER INTERNAL TRAFFIC IN MANUFACTURED DRUGS AND COCA LEAF ::::: (1) No one shall
(a) import or export interprovincially, transport, possess or RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 26 sell any manufactured drug, other than prepared opium, or coca leaf, ...
SECTION 14: PUNISHMENT FOR CONTRAVENTION OF SECTION 8A Whoever, in contravention of Section 8, or any rule 53 made under that section, or any condition of a licence issued thereunder,"
(a) imports or exports interprovincially, transports, possesses or sells any manufactured drug or coca leaf, or
(b) manufactures medicinal opium or any preparations containing morphine diacetylmorphine or cocaine, shall be punishable with imprisonment which may extend to three years, with or without fine.
S.22. (I) The Collector, or other officer authorised by the Local Government in this behalf, or a Presidency Magistrate or a Magistrate of the first class, or a Magistrate of the second class specially empowered by the Local Government in this behalf, may issue a warrant for the arrest of any person whom lie has reason to believe to have committed an offence punishable under Chapter III, or for the search, whether by day or by night, of any building, vessel or place in which he has reason to believe any dangerous drug in respect of which an offence punishable under Chapter III has been committed is kept or concealed.
(2) The officer to whom a search warrant under subsection (I) is addressed shall have all the powers of an officer acting under RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 27 section 23.
S.23. (I) Any officer of the department of Excise, Police, Customs, Salt, Opium, or Revenue, superior in rank to a peon or constable, authorised in this behalf by the Local Government, who has reason to believe, from personal knowledge or from information given by any person and taken down in writing, that any dangerous drug in respect of which an offence punishable under Chapter III has been committed is kept or concealed in ally building, vessel or enclosed place, may, between sunrise and sunset,
(a) enter into any such building, vessel or place;
(b) in case of resistance, break open any door and remove any other obstacle to such entry;
(c) seize such drug and all materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under section 33 and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter III relating to such drug; and
(d) detain and search, and, if he think proper, arrest any person whom he has reason to believe to have committed an offence punishable under Chapter III relating to such drug :
Provided that if such officer has reason to believe that a search warrant cannot be obtained without affording RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 28 opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, vessel or enclosed place at any time between sunset and I sunrise, after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under subsection (I), or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.
Power of seizure & arrest in public places:
24. Any officer of any of the departments mentioned in section 23 may
(a) seize, in any public place or in transit, any dangerous drug in respect of which he has reason to believe an offence punishable under Chapter III has been committed, and, along with such drug, any other article liable to confiscation under section 33, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter relating to such drug ;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter III: and, if such person has any dangerous drug in his possession and such possession appears to him to be unlawful, arrest him and any other persons in his company.
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 29
26. All officers of the several departments mentioned in section 23 shall, upon notice given or request made, be legally bound to assist each other in carrying out the provisions of g this Act.
S.27. Whenever any person makes any arrest or seizure under this Act, he shall, within fortyeight hours next after seizures, arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.
28. Any person empowered under section 23 or section 24 who
(a) without reasonable grounds of suspicion, enters or searches, or causes to be entered or searched, any building, vessel or place ;
(b) Vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any dangerous drug or other article liable to be confiscated under section 33, or of seizing any document or other article liable to seizure under section 23 or section 24; or
(c) Vexatiously and unnecessarily detains, searches or arrests any person, eha.11 be punished with fine which may extend to five hundred rupees.
29. (1) Every person arrested and article seized under a warrant issued under section 22 shall be forwarded without delay to the RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 30 authority by whom the warrant was issued; and ' every person arrested and article seized under section 23 or section 24 shall be forwarded without delay to the officer in charge of the nearest police station or to the nearest officer of the Excise Department empowered under section 30.
(2) The authority or officer to whom any person or article is forwarded under this section shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article.
S.30. The Local Government may invest any officer of the Power to invest Excise Department OY any class of such officers, with the powers of an officer in charge of a police station for the investigation of offences under this Act.
444PW5 : Sh. D.K. Papriwal (DSP in the "Narcotics Branch" of the CBI) deposed that on 23.01.2984 he was under order/direction of the SP (CBI) to lead a patrol party for conducting a surprise check in the area of P.S. Chanakya Puri in order to detect illicit trafficking in Narcotics Drugs. The procedure u/s 22 requires warrant of arrest / search / seizure. However, the procedure u/s 23 is 'without warrant' and the authorised officer may conduct the raid provided that if such officer has reason to believe that a search warrant cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, vessel or enclosed place at any time between sunset and I sunrise, after recording the grounds of his belief. In the present case the procedure u/s 22 was not applied therefore it RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 31 was mandatory for the concerned officer to give the reason for his belief. It has been admitted by him during the cross that the SP (CBI) Sh. Jaspal Singh had given him order (to patrol) in writing and the same must be in the secret file. The said order of the SP has not been placed on record as an evidenceexhibit. Even Sh. Jaspal Singh (SP -CBI) has not been examined though he had visited the school premises at about 10:30 P.M. when the seizure process was going on. The CBI has come up with no explanation as to what were the 'reasons for the belief' which were required to be given.
CHANCE RECOVERY v/s SECRET INFORMATION:
444The CBI has submitted in their written clarification that the recovery from the accused person was a "chance recovery". PW5 (Sh. D.K. Papriwal (DSP "Narcotics Branch" CBI) deposed that on 23.01.2984 he was under order/direction of the SP (CBI) to lead a patrol party for conducting a "surprise check" in the area of P.S. Chanakya Puri in order to detect illicit trafficking in Narcotics Drugs. It has been admitted by him during the cross that the SP (CBI) Sh. Jaspal Singh had given him order (to patrol) in writing and the same must be in the secret file. Thus it was not a prearranged raid as per the testimony of PW5.
444However, PW8 (Rajendar Singh Inspector "Narcotics Branch" CBI) deposed that the entire recovery was based on 'secret information'. PW8 has deposed that he was asked by PW5 to accompany him to a patrol. Furthermore, he has stated during the cross that he was asked to stay beyond his usual duty hours 9:30 RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 32 A.M. to 4:30 A.M. - because there was a secret information.
Thus the 'patrolling' was sort of prearranged as per the testimony of PW8 whereas PW5 has not mentioned anything about the 'secret information'.
444Generally the police authorities term their recoveries as "chance recovery" to escape the rigours of the prescribed procedure The CBIversion regarding who openedup the cardickey (doubtful) 444The issue of the carkeys by which the dickey of the car was opened (doubtful situation): This issue is significant because the prosecution wants to show that the accused was apprehended with the contrabands during the patrol and the packets were recovered from his car. However, the defence has questioned the very 'so called' recovery operation during the patrol. The defence has also argued that the accused was brought from the Ashoka Hotel and that the entire contrabands were 'planted' in the dickey of the car of the accused. It is for this reason that there is a need to analyse as to who opened the car 'dickey'.
444On the very onset, the version of the CBI that its team in a matter of few minutes after leaving the CBI office (at R.K. Puram) on a 'general patrolling' had come across the accused alongwith the drugs appears to be artificial. Furthermore, the version of the CBI that the accused 'readily' admitted his guilt of possessing the drugs also appears meritless. The witnesses PW1 as well as PW6 (Sh. Vimal Kumar of the school) both had admitted that the accused was 'beaten up' by the CBI officers.
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 33 444The following analysis would hint out that the defence has been able to establish factors which raise serious doubts about the version of the recovery of the drugs from the accused.
i. PW1 Sh. R.K. Gupta has narrated in his chief that when he was asked by the DSP (CBI) to be witness to the 'raid', he accompanied the DSP to the car where the accused was standing 'outside' the car. While the accused was being 'interrogated. PW1 Sh. R.K. Gupta further stated that he saw the CBI officers beating the accused while he was coming out of car but did not specify whether it was the bluish coloured FIAT car or the white coloured FIAT car.
ii. As per PW1 the accused was being beatenup by the CBI officers who were trying obtain the carkeys to openup the dickey of the car. Thereafter, the cardickey was openedup by the CBI officers and the suitcase of contrabands was discovered. On the other hand the witness PW8 : Sh. Ranjinder Singh (Insp. CBI Narcotics Branch) has admitted in his cross that when they were instructed by the DSP Sh. Papriwal to check the car, he and another Sh. Jai Singh reached the driver's seat of the car in which the accused was sitting. As soon as the accused was questioned by PW8, the accused 'tried' to flee / speed away but PW8 switched off the ignition and snatched away the keys from the car of the accused. The witness PW8 further admitted that he then pulled out the accused from the car. The keys snatched by PW8 was a bunch of keys arranged in a keyring and was retained by PW8 till the time accused admitted that he was carrying contrabands in the car. The accused was later given the keys and asked by PW8 to openup the cardickey.
iii. PW5 : Sh. Papriwal - DSP, CBI had stated in his chief :
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 34 "The accused was asked to open the dickey of his car which he opened with the help of a key which was in the bunch containing the ignition key of his car."
iv. PW1 said that the cardickey was openedup by the CBI officers whereas PW8 said that the cardickey was opened up by the accused. Another contradiction is that PW8 stated that he pulled out the accused from the car while PW1 stated that the accused was standing 'out' of the car and was interrogated.
v. As per PW1 the accused was beatenup for the keys.
vi. As per PW5 the keys were with the accused and he was asked to openup the dickey.
vii. As per PW6 (Sh. Vimal Kumar - Maintenance Officer of the school) "...the keys of the car were taken from the accused by Mr. Papriwal for searching the dickey."
viii. As per PW8 the accused 'tried' to flee / speed away but PW8 switched off the ignition and snatched away the keys from the car of the accused.
42.The abovesaid inconsistency in the testimonies of the PWs does not inspire much confidence in the prosecution version of 'recovery'.
The recovery.
444PW1 : Sh. R.P. Gupta (Asst. Administrative Officer-cum- Security Officer-cum-Registrar American Embassy School) has stated in his cross that he had no duty hours and that his duty RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 35 was a '24hours' duty. On 23/01/1984 he had been on his regular duty from 8:00 A.M. to 5:00 P.M. and had again decided to come at 9:00 P.M. for 'checking'. He generally used his own vehicle to commute from his residence in Safdarjang Enclave to the American Embassy School but on 23/01/1984 at 9:00 P.M. he came to the school on a taxi. He had claimed travel expenses from the school authorities and was dropped at home the next day by the school car. PW1 had also admitted that : "I had stated to the CBI that - we saw one person Sh. Vinod Kumar Bhatnagar s/o Sh. V.S. Bhatnagar r/o 510 Asia House New Delhi who was detained by the CBI party. " PW1 further admitted in his cross that he might have omitted to state (before the CBI) that the accused was beatenup by the CBI.
444PW6: Sh. Vimal Kumar has admitted that when he saw the accused for the first time, the accused was surrounded by 'various' officers.
: stated in his chief that the key of the dickey was taken from 444PW1 the accused and the dickey was openedup by the CBI official. On search, one blue coloured 'suitcase' was recovered from the dickey of the car. The DSP Sh. Papriwal (PW5) made a request help in searching the contents and PW1 allowed the use of the school facility to openup suitcase.
444The witness PW8 (Insp. Rajender Singh - CBI) had stated in his chief that when on the directions of his DSP (PW5) he had gone to check the suspicious car (DBC 5810) he interrogated the accused and came to know of the other car which was parked on the other side of the road. That was the moment when PW8 had RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 36 given a chase to the 'second' suspect but could not apprehend him. It was further stated by PW8 that after unsuccessfully chasing the 'second suspect' for 12 Km the said witness PW5 returned to the road and the cardickey of DBC 5810 was opened up. This testimony suggests that PW8 was present at the time of the recovery of the contraband from the cardickey. However, according to PW5( Sh. D.K. Papriwal - DSP, CBI) when Insp. Rajendar Singh (PW8) had returned after giving a chase to the 'second suspect' - all members of the raiding party had gone inside the school. For the convenience of understanding the relevant portions of the testimonies are being reproduced thus:
444PW5 (D.K. Papriwal - DSP, CBI) during crossexamination:::
" I cannot say after how much time of 9:15 p.m. we went inside the school. It was 5/10 minutes. Except Rajinder Singh all other members of the raiding party had gone inside the school. Rajinder Singh had gone after occupant of another car. I cannot tell exactly when Rajinder Singh came back. It can be 15/20 minutes or more."
444PW5 has mentioned in his chief that PW8 had joined them after the search proceedings had already commenced . The relevant portion of his testimony is: "In the meantime Inspector Rajinder Singh joined them."
444According to PW8 (Insp. Rajinder Singh, CBI) :
"I inquired from him (accusedVinod Bhatnagar) if he had other any associates. Then he pointed out towards another fiat car No. DBC 3857 across the road near RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 37 American Embassy. I immediately rushed towards that car leaving behind Insp. Jai Chand and other staff with the accused. The occupant of the other car ran away. I chased him but could not apprehend him. Then I came back to the spot. There in the presence of two witnesses and CBI officials and the accused, the dickey of the car was got opened." ... "Then we shifted inside the American /school for proceedings."
444There appears to be contradiction between the testimonies of PW5 & PW8. According to PW5 all other members of the raiding party had gone inside the school Except Rajinder Singh. That is to say that PW5 after unsuccessfully chasing the 'second suspect' had directly come to the school reception. However, according to PW8 he (after unsuccessfully chasing the second suspect) first came to search the dickey of the car and then 'all' shifted to the school reception office.
444The said contradiction of two important PWs do not inspire much confidence in the prosecution version.
The escape of the second 'suspect' not satisfactorily explained by the CBI. No investigation visàvis the second suspect.
444The evidence adduced from the side of the prosecution suggests that that the accusedherein was not the only suspect in the entire factspectrum - there was another person in another car who had been 'successful' in fleeing from the spot leaving behind the other car.
has narrated that when he was asked by the 444PW1 Sh. R.K. Gupta RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 38 DSP (CBI) to be witness to the 'raid', he accompanied the DSP to the car where the accused was standing 'outside' the car. While the accused was being 'interrogated', onetwo other CBI officers moved towards the other car parked on the other side of the road. It was at that point of time that the occupant of the 'other car' had escaped (on foot) from the spot thus leaving behind the 'other' car. During the crossexamination PW1 stated that the 'other person' who had escaped from the spot was chased by 23 officers followed by an ambassador car and CBI Jeep. According to PW8 it was he who had chased the person in the 'other car' (bearing No. DBC 3857) on foot for 1 2 kilometres but could not apprehend.
444PW5:: The testimony of PW5 (Sh. Papriwal - DSP, CBI) in his chiefexamination narrated the 'escape' of the second suspect as "... The accused was asked if he had any associate with him. He (the accused) pointed out towards a car on the opposite side of the road. Immediately Ins. Rajinder Singh proceeded to that car from which a person alighted and started running, on the road in the Southern Direction. Rajender Singh Ins. Gave chase to him but returned after some time and informed that he could not apprehend that person."
Maintenance Officer of the school) :
444PW6 (Sh. Vimal Kumar -
"There was another car on the opposite side of the road. There was some suspicion about that car also. Two CBI officials ran after the driver of that car but he managed to escape."
444The version of the CBI 'not being able to apprehend' the other suspect does not inspire much confidence. The fact that the CBI RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 39 did not seriously investigate the matter of the other 'suspect' has provided strength to the version of the defence that the accused 'alone' had been targeted.
444The defence has also tried to establish that the CBI officer deliberately did not apprehend the 'other' person from the 'other' car. The search memo (Ex. PW1/D) of the 'other' car bearing No. DEC 3857 clearly shows at No. (8) that one letter head pad of 'DEEP CINEMA' Ashok Vihar, Delhi110052 Phone No. 741956 was recovered. Despite the said recovery no investigation was done visàvis DEEP CINEMA. The CBI conducted the inquiry only regarding the car and not its occupant. A sketch could have been prepared but even that was not done. The I.O. of the case Sh. K.S. Nair (DSPCBI) was examined as PW12 and has admitted in his cross that the ownership of the car (DBC 3857) could not be established in the entire investigation. PW12 further admitted that he 'never investigated' any link of DEEP CINEMA with this car (DBC 3857). PW12 further admitted that the wife of the accused had made a complaint regarding her husband (missing from the party at the Hotel Ashok) at P.S. Chanakya Puri. The said fact has also been confirmed by DW4 (HC Ved Prakash) who stated that as per the record an FIR No. 28 dated 23.01.1984 was registered by the complainant Smt. Chand Bhatnagar wife of Sh. Vinod Bhatnagar. The said FIR has been exhibited as DW1/A. (Original Seen and Returned).
444Moreover, no efforts were made to identify or apprehend the said person, therefore, leading to the view that, in fact, the story of the prosecution is frivolous and lacks any concrete evidence. Thus, the false implication of the accusedherein is a serious possibility in RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 40 the entire gamut of facts. There is a conflicting version visàvis the escape of the 'other' suspect. PW1 has admitted in his cross :
"I noticed somebody running towards Panchsheel Marg' and twothree people were chasing him they were followed by an ambassador car and CBI Jeep."
444However, PW5 had stated that the occupant from the other car ran towards southern direction. The witness PW5 (Sh. Papriwal DSP, CBI) in his report to the SP (Ex. PW5/A) mentioned: : "the driver got out from the and started running in the southern direction on Chandragupt Maurya Marg away from the scene. "
The factum of the other suspect 'running towards the southern direction has also been confirmed / rementioned in the chief examination of PW5 where it is stated that the said person alighted (from the other car) and started running on the road towards the 'southern direction'.
444The perusal of the site plan clearly suggests that Pancheel Marg is in the 'Northern Direction' and the suspect (who had escaped) ran towards the 'southern direction'. Therefore the testimony of PW1 and that PW5 point out to two opposite directions. There are two possibilities:
First is that one of the said two witnesses had been stating falsely;
Second that both the witnesses are correctly stating and in that case the only inference would be that there must have been 'two persons' running in the opposite directions : one towards the North; and the other towards the South.
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 41 In the event of the first possibility being 'the factum' the conflicting versions of the two witnesses would render both the testimonies doubtful. In the event of the second possibility being 'the factum', the explanation / version of the accused seems more probable that there were 'two persons' who had 'escaped' from the spot. No matter which possibility was the 'factum', the benefit of doubt goes to the accused.
Sanctity of the seal:
444In the cases where the subject matter of the offence committed is the articles for which expert opinion is necessary to prove the nature of the contraband article, it is more imperative on the part of the investigating agency to adopt such a method so as to safeguard the sanctity of seal of samples; that the seal used was covered and sealed in order to improbabilise the misuse of it; to show that the same articles were taken out from the malkhana after an entrustment of the same in the malkhana ; that the same has been sent to Chemical Analyst; and that comparison mechanism was cleverly adopted by the Analysts; and that report of Chemical analyst does pertain to the articles actually seized. Unless these links of evidence are independently proved and also collectively connected, the benefit of the consequential serious and genuine doubt may only tilt the balance against the prosecution case. Even if any link is cut in the above said chain, doubt to a normal mind will arise. When the law is stringent the procedure should be scrupulous and the agency which acts under the law should adopt all care and caution avoiding any doubt arising thereof.
444In the present case stress was made that sanctity of sealing was not made out and chances of tampering was not ruled out; and that link evidence to the effect that sample was RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 42 retained intact before it was sent to chemical analysis, was unsatisfactory.
THE SEAL WAS LOST BY THE PUBLIC WITNESS:
444PW1 has admitted that the seal handed over to him at the time of the recovery (for keeping in safe custody) was lost by him and that he had not lodged any FIR in that regard. PW1 also stated that he was not told to preserve the seal. The seals are normally given to the public witnesses in such cases to ensure that samples are not tampered with, till the samples reach the CFSL for examination. The PW1 had lost the seal was never even reported to the police. There is nothing on record to show that the fact of loss of seals was ever brought to the notice of the concerned authorities. The defence counsel submitted that this fact raises a presumption of tampering with of sample, and fabrication of prosecution story, the benefit of which ought to have been given to the Accusedherein.
Non production of the Malkhana Register 444The witness PW4 has stated that on 24.01.1984 he was posted as Sub. Insp. In the CBI (CIU) (NC) branch and was looking after the malkhana of the said branch. On 24.01.1984 Sh. D.K. Papriwal (DSP) had deposited with him in the malkhana the property with the seal CBI/E and the same were entered in the malkhana register at page 10, Sl. No. 7 to 11. However, the said register has not been exhibited as evidence.
444The witness PW--3 Ram has stated that on 24.02.1984 he was posted as Constable at the Narcotic Branch of CBI and on that day RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 43 he had brought the 18 sealed samples from the CFSL (after the chemical analysis) and were deposited with the incharge Malkhana who made the necessary entry in the Malkhana Register at page 10 in the presence of PW3. However, even the said register has not been exhibited.
444According to the CBI the exhibit PW4/A was duly adduced by the witness PW4. The said exhibit PW4/A is a two paged 'loose - papered' document which has been prepared by the CBI. However, the question is whether it is enough to fulfil the requirement of the 'register'. The requirement of the production of the 'register' is not an empty formality. Generally such 'registers' are brought by the witnesses and the courts return them after seeing by mentioning OSR - Original Seen and Returned. The relevant pages / extracts are then put on record. A malkhana register necessarily has to have some 'continuity' to depict that there was some 'register maintained' with the malkhana.
444This witness (PW4) is admittedly a witness who was appearing in his official capacity. In the deposition of PW4 it has not been specifically recorded that while exhibiting Ex.PW4/A, the original file had been brought by the witness. Loose paper / documents have to be a part of the file which would be the file of the Department.
444 The argument of the CBI - that the PW4/A alone is enough to fulfil the requirement - is not convincing. For the nonproduction of Malkhana Register much was spoken to in State of Rajasthan v. Gurmail Singh 2005 (1) (Crimes) 346 (SC) wherein it was RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 44 observed :
"Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana."
Delay of 78 days in sending the samples to the CFSL:::
444 In the present case the alleged recovery was made on 23/24 Jan. 1984 but the samples were picked up by HC Kanshi Ram 31.01.1984 to be deposited in the CFSL. Thus there was a delay of some seven days in sending the sample for testing. The defence counsel has submitted that that the prosecution has not advanced any cogent reasons explaining why it took over 7 days for the sample to be sent for testing to the CFSL located in Delhi itself. He pointed out that in Des Raj v. State, (83 (2000) DLT 282 had held a delay of 12 days to be fatal for the prosecution and consequently set aside the conviction.
THE CFSL FORM not filled ::::::
444It is the normal procedure that when the incriminating articles are seized and are required to be sent to the Central Forensic Science Laboratory those articles are immediately sealed and deposited in Malkhana at the Police Station till they are taken out and sent to the Laboratory. Contemporaneously with seizure and sealing of such articles, impression of seal used on sealed articles is put on a RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 45 form, commonly called, the 'CFSL form'. This is so done because at the time of analysis of sealed packets in laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tempering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the Police to the Forensic Science Laboratory, Such a form contains the nature of crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the Case/Police Station. Radha Kishan vs State : 2000 CriLJ 4090, 2000 (56) DRJ 619 (accused was acquitted due to apprehension of the seal tampering) 444In the present case it appears that no CFSL Form was submitted at the time when the sealed items were being submitted in the Malkhana. The witness PW4 Sh. Har Chand has stated that on 24.01.1984 he was posted as Sub. Insp. In the Malkhana of the branch CBI (CIU) NC and had received certain samples from PW5 Sh. Papriwal. However, nothing has been mentioned whether any CFSL form was also submitted. In a large number of such cases the Courts have observed that the prosecution has to establish that the CFSL form was deposited in Malkhana and had thereafter been sent along with sample to CFSL otherwise there is a possibility that there could be tampering with seals of samples sent to CFSL, and as such sealed samples did RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 46 remain with their seals intact before reaching CFSL.
444 Their Lordships of the Supreme Court in the case of State of Rajasthan v. Daulat Ram, (1980 Chandigarh Criminal Cases 83 (SC) under the Opium Act, 1878 observed that the admitted case of the prosecution was that the samples changed several hands before reaching the Public Analyst, and yet none of the concerned witnesses was examined by the prosecution to prove that while the samples were in their custody, the seals had not been tampered with. The Apex Court observed that the inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during this periodfact which had to be proved affirmatively by the prosecution.
444In Lacho Devi v. State, 1990 (2) C.C.Cases 395 (HC) observed that it was incumbent upon the prosecution to prove by cogent evidence all links to prove that the case property was not tampered with by any one till the samples were deposited in the CFSL for analysis. The Court held that the link evidence was missing to the effect that the sealed parcels had not been tampered with by any one before they were deposited in the Malkhana, and there was no cogent reliable evidence that the CFSL form had, also been deposited with Moharar Malkhana and that it also remained in his custody till it had been sent with the samples to CFSL. In another leading case Pradeep Kumar v. State, 1990 C.C. Cases 69 (HC) it was observed that one of the safeguard which could ensure sanctity of seal, was affixation of specimen of the seal on the CFSL form which had to be done simultaneously with sealing of parcels.
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 47 444The Division Bench in Amarjit Singh and Anr. v. State (Delhi Admn), 1995 JCC 91 (DB) observed that it was for the prosecution to prove that not only the case property was duly sealed with the particular seals and was duly deposited in the Malkhana untempered but it was also incumbent on the prosecution to show that the samples which had been duly sealed, remained intact till they reached the office of CFSL. In proving these facts, it was necessary for the prosecution to prove that the CFSL form containing the specimen seals which was duly filled in at the time of taking the sample also remained intact and it reached the office of CFSL along with the samples.
444The significance of "FORM CFSL" visàvis the Dangerous Drugs Act, 1930 has been highlighted in a judgment of the Hon'ble Delhi High Court reported as HARI SINGH Versus GOVT. OF NCT OF DELHI (CRL.R.P. No.282/2003)::: "in fact no witness of the prosecution has deposed about the deposit of CFSL form in the Malkhana or its consequent despatch with the sample pullanda to the CFSL."
THE CFSL REPORT IS NOT A DETAILED REPORT:
444The witness from the CFSL PW13 has exhibited the analysis report which merely says that the samples Exhibits No. A1 to R1 gave positive tests for Heroin. In the present case the SP (CBI :
CIU {NC} New Delhi) who was not examined as a PW sent a covering letter dated 31.01.1984 to the Director CFSL - the said letter is Ex. PW2/A - vide which the opinion was sought on two points :
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 48 Whether the contents of the sample packets (A1 to R1) contained heroin ?
The source of the origin of the contraband was also asked to be intimated .
444The report was prepared and signed by the Senior Scientific Officer (Chemistry) who gave his report on 15.02.1984 and opined that the samples A1 to R1 gave positive tests for heroin. It has been vehemently argued by the defence counsel that the said expert opinion was vague and did not specify the detailed analysis. I find some force in that argument.
444 In State of Himachal Pradesh v. Jai Lal and Ors., 1999 (5) SCALE 445 at 449 paras 17& 18), the court observed that an expert is not a witness of fact, his evidence is really of advisory character and it is the duty of an expert witness to furnish the details with necessary scientific criteria for testing the accuracy of the conclusion so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The credibility of such a witness depends on the reasons staled in support of his conclusions and the data and materials furnished which form the basis of his conclusion. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 49 depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions. In the instant case the expert who had tested the alleged sample and given a report was not even examined. His report does not furnish any analytical data and, therefore, no reliance could be placed on such a piece of evidence because it is not supported by any analytical data. No reason was given by the expert witness. Moreover, only one query was answered and not the other query which sought opinion on the 'source of origin of the contraband'.
444The CBI on the other hand has contended that it was for the defence to elicit material facts from the said expert witness in the crossexamination. The contention of the CBI does not hold much water. It was for the expert witness to detail out the process / procedure / test etc. in the report. Such scientific criteria / details ought to have been part of the chief document i.re the report. When the report itself was not detailed the accused had the choice not to crossexamine such a witness.
THE DEFENSE VERSION:
DW1 ::: Vidyut Chatterjee 444 DW1 was working as a Catering Supervisor in the Ashoka Hotel since 1971. He was supervising a marriage party in banquet hall of Ashoka Hotel. The party went on upto 1:30 am. It was month of January 1984. One lady alongwith three daughters was sitting on the sofa while all the guest had left the party. He asked the lady as to why she was sitting here and with children and had RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 50 not gone. She told that her husband had left the party and had not returned by that time. At about 8:30 or 9:00 pm. DW1 was standing entrance gate of Banquet Hall and some persons came and enquired about the party and they were looking for a person and then they pointed out towards the accused. The accused was not seen in the party thereafter. DW1 had come to know from the wife of Mr. Bhatnagar that the accused was missing. DW1 referred the case to the security department for necessary action and wife of Mr. Bhatnagar gave a telephone number of Munirka where brother of Mr. Bhatnagar was informed about his missing from the party. The accused was taken away by one of those persons who had come to the Banquet Hall and enquired about a person in the party.
DW2 ::: Captain MS Sharma 444In the year 1984 DW2 was posted as Chief Security Officer with Ashoka Hotel, New Delhi. One Mr. Chatterjee came alongwith Mrs. Chand Bhatnagar alongwith two children. She told that her husband who had come with them to attend the party had not returned. DW2 went to whether the car was there or not in the parking of Ashoka Hotel on the Annexe side. A fiat car which was pointed out by the lady that their car was still in the parking lounge. DW2 instructed the guard to look for the person who comes to take the car.
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 51 444 At about 2/2:30 am when DW2 was taking tea in office, guard came to inform that 2/3 persons had come and wanted to take the key alongwith car. DW2 was informed that the persons were CBI Officials and wanted to take the car with them. They further informed that accused V.K. Bhatnagar was already taken. DW2 handed over the key and the token. DW2 informed the wife of accused V.K. Bhatnagar about this incident. Thereafter CBI officials went alongwith car.
DW3 :: Zamil Ahmed Khan 444On 23.01.84 DW3 was coming from Chanakya cinema after seeing a movie and was going to my house at Bara Hindu Rao at about 9:15 pm. He was going on Chander Gupta road near American Intl. School, and saw one car coming which was ambassador car regd. No DHG 1178 of black colour. The car stopped near my scooter and I saw four / five persons got down from the car. The accused was being beaten mercilessly. Two or four person passing by that site also stopped there. DW3 asked those persons as to why they were giving merciless beating to the accused. DW3 was pushed back saying that they were police person. According to DW3 the accused was handcuffed and they took the accused towards a car which was standing on the opposite side of the road. That was a fiat car having reg. no. DEG 3857, which was of cream colour. All these persons taking the accused towards the car reached near the car. One of the persons RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 52 amongst those persons two had come in the car, opened the dickey of fiat car. There was an attache in that dickey which was taken out the colour of suit case was dark it was either blue or black. They opened the suitcase. Before the opening the attachy those persons had shouted "found it ! found it !". One of those persons when opened the suit case, a razai like cloth was on the upper of the attachey. That cloth was removed and there were some small bags. They again stated that it was heroin. All these persons alongwith attachy, there car as well as fiat car were taken inside the premises of International School of American.
444On 2526 of Jan, DW3 read in the papers that heroin was recovered from Chanakyapuri area. After about 1520 days DW3 had gone to the house of the accused situated at Asia house on Curzon road. DW3 conveyed that in case any help was needed, he would do for the sake of humanity.
DW4 ::: HC Ved Praksh 444 DW4 brought summoned record today of PS Chanakyapuri and as per the record FIR No. 28 was registered on 23.01.84. The name of the complainant Chand Bhatnagar wife of Vinod Kumar Bhatnagar, R/o 510, Asia House, New Delhi. After going through the record DW4 could not say if any notice was issued to the complainant before the cancellation of FIR or not. There is no sign of endorsement of any Magistrate if he had accepted the RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 53 cancellation report or not. The photocopy of the FIR is Ex. DW 1/A. OSR.
444DW5 : Accused V.K. Bhatnagar (Dt. 23102009) 444 According to DW5 on 24.01.84 I he, alongwith his family members had gone to the Ashoka Hotel to attend the marriage of one of his friend's niece in the evening. He reached at about 7:30 pm. He had gone to Ashoka Hotel in a car which belonged to his brother. The car was parked in the annexe side of Ashoka Hotel. The key of the car was taken by the security guard and token was given to DW5. As there was a lot of rush, the security guard took the key from him for parking the car in the proper place. DW5 had entered in the banquet hall at about 8:30 pm and occupied the seal alongwith his wife and children at one sofa. 444 Subsequently one of his old friends namely Sh. Harish Gadiyal approached him alongwith 2/3 persons and asked DW5 to come along. Sh. Harish Gadiyal told him that he had to introduce the accused to some foreigner for some Liaoning work. The accused was initially reluctant as he was having food but later agreed on the insistence. The accused was taken to the car parking area the main parking side of Ashoka hotel. The moment the accused stepped out of the hotel entrance he was pounced upon by 2/3 persons and was dragged inside a black ambassador car and started abusing and asking about other accomplice. In the car there were already 3/4 persons sitting and they drove the accused to the American International School situated in Chanakyapuri area. After reaching at school, they dragged the RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 54 accused out of the car and started beating him mercilessly. They stripped him and took out his coat as well as the tie. They dragged him to another fiat car. The car was already opened and its door were opened by Sh. Rajender Singh. Then he opened the dickey of the car and asked the accused (DW5) to take out the suitcase and put it on the road side. He asked him to open the suitcase. Then he opened the suitcase with they key which he was already having. After opening the suitcase Rajender Sing (PW8) took out a quilt, under the quilt there was a lot of packets of white materials and they started shouting that "heroine mil gai, heroine mil gai" and then Inspector Ram Murti pulled the accused (DW5) from my hair and started thrashing me and everybody joined him in giving fist blows and kicks to me. Then they took out everything of my pocket, purse, watch, token of the car, ring and some money. Then they took me to the American Embassy School and brought that fiat car also in the premises of the school and they started weighing and counting and sampling the packets containing white powder.
444 The witness DW5 (accusedherein) has also deposed that a sum of Rs.6,000/ was recovered from his house, which were seized. The said amount was later on released to me on superdari. CBI officials brought him back to Ashoka Hotel at about 2:00 am and they seized his car (DBC 5810) from their, which was standing in the parking area. The key of the vehicle was taken from the Security Officer of Ashoka Hotel. The accused was brought alongwith the car to the CBI office in R.K. Puram. From RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 55 R.K. Puram office CBI officials took him in their vehicle in the house of Sh. SK Sharma at Green Park. The accused did not know this man S.K. Sharma. S.K. Sharma was not at his house but his wife was there. CBI officials searched the house of S.K. Sharma. CBI officials asked his wife whether she identify me. She recognized the accused as Gopalji. Small quantity of drug was recovered from the search of house of S.K. Sharma. CBI Officials brought DW5 back to their office in RK Puram. In the office they obtained his signatures on 67 plain papers. They brought him in custody in the court and was not allowed to contact any advocate by CBI officials.
444 When DW5 was arrested from Ashoka Hotel his wife made complain to the PS about the whereabouts of the accused who was missing. His wife made a complaint to CBI Director vide her letter dated 27.01.84. The accused identified the signatures of his wife at point A to A on mark X. The postal receipt of this letter which is Ex. DW 5/1 and acknowledgment card is Ex. DW 5/2. 444 The accused (DW5) has also deposed that after his release from the jail , he had sent a complaint vide my letter dated 2541984 by registered post complaint is Ex.Dw5/3 which bore his signature at point A to A. He also have sent this letter by registered post the copy of the receipt of the postal department is Ex. DW5/4 at the acknowledgment card address to the then J.S. Bawa director CBI and the same is Ex. DW5/5. Similarly, he sent a copy of the above said letter to Sh. P.C. Shrivastava the then DIG CBI the postal receipt of the same is Ex. DW5/6 at the RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 56 acknowledgement card is DW5/7. The said letter was received on 22.06.84 as per acknowledgment card. Similarly, DW5 also sent a copy of the aforesaid complaint to the Hon. Minister of Home Affairs. The acknowledgment is Ex. DW 5/8 the aforesaid acknowledgment card shows the receipt of the letter as it bears the stamp of the Home Ministry. No inquiry was done from me by the CBI / Home Ministry. The accused (DW5) also met personally DIG CBI Mr. Shrivastav who assured that proper action will be taken no action was ever taken. The accused also approached the CBI office for summoning the original complaints and record from their office. A letter to the CBI on 27.10.09 is Ex. DW 5/9 and the aforesaid letter was received in CBI office on 28th October 2009. The seal of the CBI appears in portion B to B1. However, no response was received.
444 The accused (DW5) further deposed that he made a complaint regarding harassment and beating done to him by Sh. K.S. Nayar the then DSP and against Mr. DS Mann who was beaten me in the office of CBI. The copy of the complaint was sent through registered post to the court of Sh. K.C. Lohia, the then Magistrate in Delhi. The complaint is dated 21.06.84 and the acknowledgment card and postal receipt are mark as PW 5/10, 5/11, 5/12. Since no action was taken on the aforesaid complaints, the accused (DW5) remained silent in this regard.
THE DELIBERATIONS OF THIS COURT ON THE DEFENSE RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 57 VERSION:
444A perusal of the defence version would reveal that the accused - DW5 put efforts to establish his innocence. The various communications were made by him to the CBI. Though the CBI are not bound to response to postal communications - particularly during the investigations - such communications certainly qualify to be a 'fact' depicting the situation of an accused and can be lead as evidence during the trial. The witness Sh. K.S. Nair (PW12) admitted during his cross that the wife of the accused had made a complaint regarding her husband (missing from the party at the Hotel Ashok) at P.S. Chanakya Puri. The said fact has also been confirmed by DW4 (HC Ved Prakash) who stated that as per the record an FIR No. 28 dated 23.01.1984 was registered by the complainant Smt. Chand Bhatnagar wife of Sh. Vinod Bhatnagar. The said FIR has been exhibited as DW1/A. (Original Seen and Returned).
444A fact is said to be "proved" when, after considering the matters before R, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be 'disproved' when, after considering the matters before it, the Court either believes that it does not exist, or considers its nonexistence so probable that a RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 58 prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved".
4444The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. It is well settled that the burden which rests on the accused does not absolve the prosecution from discharging its initial burden of establishing the case "beyond all reasonable doubts". It is also wellsettled that the accused need not set up a specific plea of his offence and adduce evidence.
4444In Woolmington v. The Director of Public Prosecutions, [1935] Appeal Cases 462, Viscount Sankey, L.C. observed:
"Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence ... "
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 59 4444In K.M. Nanavati v. State of Maharashtra, [1962] Suppl. 1 SCR 567 it is observed that:
"In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution' to prove 'the guilt of the accused."
4444It is an established principle of law that the standard of proof for the accused is not at par with the prosecution and he may establish his plea by raising a "probability" unlike the "burden of proof beyond reasonable doubt" resting upon the prosecution.
4444In the case of M.S. Narayana Menon Alias Mani v. State of Kerala reported in (2006) 6 Supreme Court Cases 39, the Hon'ble Apex Court had held that the burden of proof on accused is not heavy; he can discharge its burden on the basis of preponderance of probabilities through direct or circumstantial evidence.
4444The testimonies of DW1, DW2, DW4 & DW5 appear cogent and consistent. The police witness DW4 has confirmed the registration of the FIR. The witnesses DW1 and DW2 were in the Ashoka Hotel and have consistently deposed about the situation faced by the wife of the accused. DW2 has narrated how the car RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 60 was taken away by the CBI personals. The witness DW5 i.e. the accused himself stood in the witness box to testify his version. The testimonies of the all the defence witnesses stood consistent and unshaken.
4444It will be useful to refer to some of the passages from the text books of outstanding authors on evidence. In Phipson on Evidence, 13th edn. page 44 & 48 the passages read as follows:
"The burden is upon the prosecution of proving a defendant's guilt beyond reasonable doubt before he is convicted. Even where the evidential burden shifts to the defendant the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes. If on the whole case the jury have such a doubt the defendant is entitled to be acquitted."
"In criminal cases the prosecution discharge their evidential burden by adducing sufficient evidence to raise a prima facie case against the accused. If no evidence is called for the defence the tribunal of fact must decide whether the prosecution has succeeded in discharging its persuasive burden by proving its case beyond a reasonable doubt. In the absence of any defence evidence, the chances that the prosecution has so succeeded fare greater. Hence the accused may be said to be under an evidential burden if the prosecution has established a prima facie case. Discharge of the evidential burden by RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 61 defence is not a prerequisite to an acquittal. The accused is entitled to be acquitted if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner.....No matter what the charge.....the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
4444In the present case even if the entire evidence of the defenceside is ignored, the prosecution ought to have proved and established its 'own' case beyond reasonable doubt in which it failed. The defenceside was not only able to create doubt over the prosecution version, it was also able to establish its defence and the accused rightfully deserves an acquittal.
4444The Hon'ble Apex Court in Rang Bahadur Singh V. State of U.P. reported in AIR 2000 SC 1209 has held as follows :
"The timetested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar 62 4444The shotcomings of the prosecution case have already been discussed. The defence on the other side has been successful in casting doubts over the version of the CBI. The defenceversion (setup through the defence witnesses) cannot be 'disbelieved'. In view of the facts & circumstances of the case and considering the various case laws I am not hesitant to acquit the accused. I appreciate the able assistance of the counsels for the parties. The public prosecutor arguing for the CBI has rendered sincere assistance to this court. The job of a prosecutor is not merely to secure conviction.
4444 The accused Vinod Bhatnagar is hereby acquitted of all charges against him in this case.
At the request of ld. Counsel for the accused the existing bail bond and surety bond of the accused is accepted as per the compliance of Section 437(A) of Cr.P.C. File be consigned to the record room.
Announced in the open court on this 8th day of August, 2014.
(VEENA RANI) Chief Metropolitan Magistrate South East District / Saket Courts New Delhi RC No.03/1984CIU(NC), CBI Vs. Vinod Kumar Bhatnagar