Delhi District Court
State vs Rajinder on 15 May, 2015
IN THE COURT OF MS.AMBIKA SINGH:METROPOLITAN MAGISTRATE-06
CENTRAL DISTRICT: TIS HAZARI COURTS
DELHI
FIR No. 120/03
State V/s Rajinder
U/S 20/61/85 NDPS Act
PS Sadar Bazar
CC. No. 190/2
UID no. 2401RO357442003
Date of Institution : 28.06.2003
Date of commission of offence : 12.04.2003
Name of the complainant : SI K. L. Yadav
Name and address of accused : Rajinder S/o Sh. Tittu R/o H. no. 5927,
Gali no. 15, Sigliran Mohalla, Singada
Chowk, Sadar, Bazar, Delhi
Offence charged with : Section 20/61/85 NDPS Act
Plea of guilt : Pleaded not guilty
Final order : Acquitted
Date on which order has been reserved: 15.05.2015
Date of pronouncement of Judgment : 15.05.2015
JUDGMENT
1 Prosecution has filed the present case against the accused Rajinder S/o tittu for the offence u/s 20/61/85 NDPS Act.
2 Prosecution's case is that on 12.04.2003 at about 3.20 PM at Railway Godown, behaind Priyadarshni Jhuggi Colony, Delhi, Delhi, within the jurisdiction of PS Sadar Bazar, Delhi, the accused was found Ganja 600gm and thereby committed an offence punishable u/s 20/61/85 of NDPS Act. Accused was accordingly charge-sheeted and on 21.07.2008 charge u/s 20/61/85 NDPS Act was framed against the accused, to which he pleaded not guilty and claimed trial.
3 Prosecution examined the following witnesses in support of its case ;-
4 PW-1 ASI Swadesh Kumar deposed that on 12.04.2003, he was posted at PS Sadar Bazar as HC and on that day, he alongwith SI K.L Yadav and Ct. Manawar were in special drive for the search of pick pocketers. They all were in civil dress and were present at Qutub Pul where SI K. L. Yadav received secret information that one person was sitting in the shadow of the veranda of old type railway godown and having ganja in white polythene and the person had intention to sell the same and if raided he would be apprehended. SI K. L. Yadav reduced the said secret information on one paper which is Ex. PW1/A and informed to SHO Sadar Bazar and he was requested to come at Qutub Road, Tanga Stand. Thereafter, he alongwith police officer and sercret informer reached at the tanga stand gate parking, where, they met SHO Sadar Bazar. IO SI K. L. Yadav handed over the written secret information to SHO, PS Sadar Bazar. Thereafter, under the supervision of SHO, 4-5 public persons were requested to join the investigation but none agreed and left the spot without disclosing their name and addresses. Thereafter, raiding party was prepared including secret informer. Thereafter, he alongwith Ct. Manawar and secret informer moved towards veranda of godown and SI K L Yadav and SHO Satyaverat Yadav remained near the jhuggi. Ct. Manawar apprehended one person at about 3.20 PM. SI K. L. Yadav and SHO came at the spot. The person was holding one white polythene in his left hand. On inquiry, the person disclosed his name Rajinder. IO K L Yadav gave written notice u/s 50 NDPS to the accused which is Ex. PW1/B. Rajinder was also informed orally that he can get himself searched in the presence of Gazetted officer or Magistrate and he can personally search the police officer before his search. On this said notice, accused reply that he does not want to call any officer or magistrate and he does not want to conduct the search of police officer first. He offered his personal search. The reply was reduced by K L Yadav which is Ex. PW1/C. He conducted the personal search of IO SI K L Yadav and memo was prepared which is Ex. PW1/D. Thereafter, SI K L Yadav conducted the personal search of accused Rajinder and from the left hand of accused, one white plastic polythene was prepared . The polythene was checked and from this ganja was recovered. On measuring, it was found 600 gm. 100Gm was separated as sample from recovered ganja. IO filled CFSL Form. Thereafter, IO prepared pullanda of recovered ganja and sample and both sealed with the seal of KLY and SVY. Seal handed over to him after its use. Both pullanda were taken into possession through seizure memo Ex. PW1/E. Thereafter, IO prepared rukka and same was handed over to Ct. Manawar for registration of FIR. Thereafter, Ct. Manawar alongwith second IO ASI Mahavir Singh came at the spot after registration of FIR. IO ASI Mahavir Singh prepared site plan at the instance of SI K L Yadav. Thereafter, accused was arrested vide memo Ex. PW1/F. The personal search of accused was also conducted vide memo Ex PW1/G. He correctly identified the case property and accused in the court that day.
5 PW-2 HC Parmod deposed that on 13.05.2003, he was posted at PS Sadar Bazar and on that that, on the direction of ASI Mahavir Singh, he obtained sample pullanda in the sealed condition and took the same from PS Sadar Bazar vide RC. no. 40/12 and deposited the same in FSL, Malviya Nagar. After depositing the same, the receipt was handed over to HC Naag Singh, MHC (M). He further deposed that case property remain intact so far it remain in his possession.
6 PW-3 Ct. Ajay deposed that on 14.04.2003, an information u/s 57 NDPS Act regarding case FIR no. 120/03 dated 12.04.2003, u/s 20/61/85 NDPS Act was received by the office of the ACP and the same was entered at the serial no. 1863/23. The copy of information is Ex. PW3/A bearing signature of ACP at point A. 7 PW-4 SI K. L. Yadav deposed that on 12.04.2003 he was posted at PS Sadar Bazar and on that day, he along with HC Swadhesh Kumar and const. Manawar Khan, both are in civil dress reached at the Qutub Pull at about 3 pm. They were on patrolling duty. One secret informer met them and shared the information that one person having a white polythene in his hand and was sitting near a old godown type in the south of Qutub Pull and he was searching for the customers to sell the ganja, if raid is conducted, he might be apprehended red handed. He reduced this information in a white paper and also informed the SHO through wireless set and requested him to come at the Qutub Road, Tanga Stand. At about 3.15 PM the then SHO came at the spot in his govt . Gypsy. He shared the secret information with the SHO and also handed over the written secret information to him which is already Ex.PW 1/A. He asked the 4/5 passerbys to join the raiding party but none of them agreed and left the place without disclosing their names and addresses. Thereafter, he prepared the raiding party consisting of HC Swadhesh Kumar, const. Manawar Khan, SHO and the secret informer. At the instance of secret informer, HC Swadhesh and const. Manawar Khan nabbed the one person who was sitting in the varandah of the old godown in the south of Qutub Pull whose revealed his name as Rajinder. they also reached at the spot immediately as they were following the HC Swadhesh and const. Manawar Khan. He served him notice u/s 50 NDPS Act which is already Ex.PW 1/B. The accused was also informed that if he wanted , he can get himself searched in the presence of Gazeted officer or Magistrate and also can taken search of the police party before his search. On this notice, the accused gave reply that he does not want call any Gazetted officer or Magistrate and he does not want to conduct the search of the police officers. The reply is Ex.PW 1/C. He had got searched the HC Swadhesh Kumar and nothing incriminating was recovered from his possession. The personal search memo is Ex.PW 1/ D. The polythene which was recovered from the hand of the accused was checked and it was found containing the ganja. He weighed the ganja and it was found to be 600 grams out of which, 100 grams was taken as a sample and kept in an another polythene and remaining 500 grams were kept in the same polythene. The sample and the remaining ganja were sealed with the seal of KLY. Form FSL was also filled up. Seal after use was handed over to HC Swadhesh Kumar. The SHO also affixed his seal SVY on both the pulandas and on the FSL form. The seizure memo was prepared which is already Ex.PW 1/ E. He handed over both the pulandas, form CFSL and one carbon copy of the seizure memo to the SHO. He prepared a rukka which is Ex.PW 4/ A and sent it to the PS through const. Manawar Khan for registration of the FIR. After registration of the FIR, const Manawar Khan along with ASI Mahavir Singh i.e. second IO came to the spot, he handed over the custody of the accused and the other documents to him. At his instance, second IO prepared the site plan which is mark X. IO recorded his statement and relieved him. He correctly identified the accused and case property in the court that day.
8 PW-5 Retd. ACP Satyavrat Yadav deposed that on 12.04.2003, he was posted as SHO, PS Sadar Bazar and on that day, on receiving of information on wireless from SI K.L. Yadav regarding arrival at Tanga Stand , Qutub Road, Sadar Bazar Delhi and at about 3.10 PM, he departed for the spot from the PS vide DD No. 34 B, Ex. PW 5/ B and reached at 3.15 PM there in his govt . Gypsy. SI K.L.Yadav shared the secret information with him and also handed over the written secret information to him which is already Ex.PW 1/A. He directed the IO i.e. SI K.L. Yadav to prepare a raiding party. He asked 4/5 passerbys to join the raiding party but none of them agreed and left the place without disclosing their names and addresses. SI K.L Yadav prepared the raiding party consisting of HC Swadhesh Kumar , const. Manawar Khan, myself and the secret informer. At the instance of secret informer, HC Swadhesh and const. Manawar Khan nabbed the one person who was sitting in the varandah of the old godown in the south of Qutub Pull whose revealed his name as Rajinder. They also reached at the spot immediately as they were following the HC Swadhesh and const. Manawar Khan. SI K.L. Yadav served him notice u/s 50 NDPS Act which is already Ex.PW 1/B. The accused was also informed that if he wanted, he can get himself searched in the presence of Gazetted officer or Magistrate and also can taken search of the police party before his search. On this notice, the accused gave reply that he does not want call any Gazetted officer or Magistrate and he does not want to conduct the search of the police officers. The reply is Ex.PW 1/C. SI K.L.Yadav had got searched by the HC Swadhesh Kumar and nothing incriminating was recovered from his possession. The personal search memo is Ex.PW 1/ D. The polythene which was recovered from the hand of the accused was checked and it was found containing the ganja. He weighed the ganja and it was found to be 600 grams out of which, 100 grams was taken as a sample and kept in an another polythene and remaining 500 grams were kept in the same polythene . The sample and the remaining ganja were sealed with the seal of KLY. Form FSL was also filled up. Seal after use was handed over to HC Swadhesh Kumar. He also affixed his seal SVY on both the pulandas and on the FSL form. The seizure memo was prepared which is already Ex.PW 1/ E. SI K.L. Yadav handed over both the pulandas , form CFSL and one carbon copy of the seizure memo to him. SI K.L. Yadav prepared a rukka which is Ex.PW 4/ A and sent it to the PS through const. Manawar Khan for registration of the FIR. After registration of the FIR, const Manawar Khan along with ASI Mahavir Singh i.e. second IO came to the spot, SI K.L. Yadav handed over the custody of the accused and the other documents to him. He deposited the case property into malkhana and Second IO recorded his statement and relieved him. He came back to the PS vide DD No. 49 B dated 12.04.2003 which is Ex. PW 5/A. 9 PW-6 SI Manavir Singh deposed that on 12.04.2003 he was posted at PS Sadar Bazar and on that day, the investigation of the present case was marked to him and he reached at the spot. He prepared the site plan which is marked as Mark X. He recorded the statement of witnesses u/s 161 Cr.P.C. He arrested the accused Rajender vide arrest memo already Ex. PW 1/ F. He conducted the personal search vide personal search memo which is already Ex. PW1/G. He had deposited the sample at FSL.
10 PW-7 Retd. SI Prem Pal Singh deposed that on 12.04.2013, he was posted at PS Sadar Bazar and was working as DO from 5pm to 12 midnight. On that day, at about 5:15pm, Ct. Manvar Khan produced him one therir sent by SI K. L. Yadav. On the basis, he recorded the present FIR which is Ex. PW-7/A. He also made endorsement on the rukka which is Ex. PW7/B.
11. PW-8 ASI Naag Singh deposed that on 12.04.2003, he was posted at PS Sadar Bazar and was working as MHCM and on that day, Inspector Satyavart Yadav the then SHO of PS Sadar Bazar had deposited two pullindas sealed with the seal of KLY and SVY and one FSL form sealed with the seal of KLY and SVY. ASI Mahavir Singh also deposited cash Rs. 20 and one copy of notice u/s 50 NDPS which was recovered from the personal search of the accused to him. He deposited the said articles in the Malkhana and made a entry at serial no. 1846 in register no. 19. He further deposed that on 13.05.2003, the sample pullinda and alongwith form FSL both sealed with the seal of KLY and SVY were sent to FSL, Malviya Nagar through Ct. Promod Kumar vide RC no. 40/21. On 15.07.2003, Ct. Promod had deposited one envelop containing FSL result and one another envelop containing sample which was sent to FSL. The FSL result was handed over the ASI Mahavir. The copy of register no. 19 running into two pages is Ex, PW8/A.
13. PW-9 PW Ct. Munawar Khan deposed that on 12.04.2009, he was posted at PS Sadar Bazar and on that day, ge along with HC Swedesh and SI K.L. Yadav had gone to Qutab Chowk in search of a pick pocketer in civil dress and at about 3:00 pm they met with a secret informer who informed that one person was having a huge quantity of ganja was sitting at godown near railway and was waiting for customers, if raid is conducted he might be apprehended. The secret information was reduced in writing on a paper by SI K.L. Yadav and also informed to the then SHO regarding secret information and requested him to come at the spot which is Ex.PW1/A. The then SHO came to the spot in a gypsy and joined them. SI K.L. Yadav handed over the written secret information to SHO. SI K.L. Yadav asked 4/5 passer by to join the investigation/raiding party, however, none agreed and left the place without disclosing their name and addresses. Thereafter SI K.L. Yadav prepared a raiding party consisting himself, HC Swedesh and secret informer and took position near railway godowns. At about 3:20 pm, at the instance of secret informer, one boy who revealed his name as Rajender was apprehended by him. SI K.L. Yadav along with SHO also joined them in the meantime. Accused was told about the secret information and also informed that if he wishes, his personal search can be conducted in the presence of a gazetted officer or a Magistrate. For this he was served a notice U/s 50 of NDPS Act which is Ex. PW1/B. SI K.L. Yadav offered his personal search to the accused, however, accused refused to conduct the search. HC Swedesh took search of the SI K.L. Yadav and nothing objectional item like ganja was recovered. Thereafter SI K.L. Yadav took search of the accused which led to recovery of a polythene containing ganja. On weighing, it was found 600 gms out of which 100 gms was taken out a sample and remaining ganja was kept into the same polythin. Form CFSL was also filled up. The sample, polythene containing ganja and form CFSL was sealed with the seal of KLY and seal after use was handed over to HC Swedesh. The seizure memo is Ex.PW1/E. SHO also put his seal on the above said pulinda's. SI K.L. Yadav prepared a rukka and sent it to PS for registration of FIR through him. After registration of FIR, he alongwith ASI Mahavir came back to the spot. Accused was arrested vide memo is Ex.PW1/F and his personal search was also conducted vide memo Ex.PW1/G. IO recorded his statement. He correctly identified the accused on that day in the court.
14 After conclusion of prosecution evidence ,statement of the accused u/s 313 r/w section 281 Cr.P.C was recorded by the court, in which the accused claimed false implication in the case . He also stated that the case property is planted on him. However, he did not lead defebce evidence in his favour.
15 It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt,unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
16 After going through the complete evidence and records of this case, I am of the view that the accused deserves acquittal in this case on the following grounds.
17 Firstly, if the police personnel who has apprehended the accused, was on patrolling duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
As per chapter 22 Rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no.11. The following matters shall amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. 11 is maintained.
18 In view of this rule, while deposing, none of the prosecution witnesses has told that by what entry in register no. 11, they were on patrolling in the particular area. In the present case also, this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs State 1987 (2) Crimes 29 the Hon'ble High Court held that ;
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution".
19 Secondly, the public witnesses are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in the investigation. All the witnesses examined by the prosecution are the police witnesses. Although, it can be said that it was a chance recovery but the incident had occurred at 3.20 PM and at that time from a busy locality and therefore, it can not be said that no public person would have been available at the spot and even if the prosecution has not joined public witnesses it was incumbent upon the prosecution to at least put forward plausible reasons for not doing so. The failure on the part of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs State 1992 (2) C.C. Case 314(HC), Hon'ble High Court of Delhi has observed as under:
"It is repeatedly laid down by this court that in such cases, it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made , particularly when we find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
20 In "Roop Chand Vs. The State of Haryana 1999 (12) C.L.R, the Punjab and Haryana High Court held as under:-
"3 I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4 It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also, admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
21 In Sadhu Singh Vs.State of Punjab" 1997 (3)Crime 55 the Hon'ble Punjab & Haryana High Court observed that "all the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
22 Since all the witnesses are police personnels and the necessary safeguards in the investigation have not been followed by the investigating officer, I am of the view that charges of false implication cannot be ruled out at the instance of the police.
23 Further, as per the case of the prosecution, it is not clear to whom the seal after the use was handed over and when the seal was returned to the IO. No memo has been prepared and proved on the record. The prosecution was bound to prove on the record as to when the seal was returned to the IO to remove the element of the tampering with the case property. Not only this, there is an unexplained delay in sending the sample to the excise laboratory. The incident is of 12.04.2003 and the sample was sent to the Excise Laboratory on 13.05.2003. There is no evidence that the sample remained intact till delivery to the office of chemical examiner. Till that time, the sample remained in police possession. It was the duty of the police to send the samples to the laboratory without any unexplained delay which could rule out any tampering with the case property which was not done in the present case and the case property remained in the police station at the disposal of the police.
24 The prosecution although, has tried to prove its case but there is still a reasonable doubt regarding the false implication of the accused at the hands of the police. The benefit always goes to the accused.
25 On the basis of aforesaid discussions, it is held that the prosecution has failed to prove its case beyond reasonable doubt, hence the accused Rajinder is acquitted of the offence u/s 20/61/85 NDPS Act.
Announced in the open court (Ambika Singh) Today on 15th May, 2015. Metropolitan Magistrate-06 (Central) Tis Hazari Courts, Delhi FIR No.: 120/03 PS Sadar Bazar 08.05.2015 Present: Ld. APP for the state Accused in person.
Vide my separate judgment of even date, accused Rajinder is acquitted for the offence u/s 20/61/85 NDPS Act.
In view of the provisions of Sec. 437A Cr.PC, accused is directed to furnish fresh bail bond of Rs. 5000/- and one surety in like amount. Bail bond furnished and same is accepted.
File be consigned to Record Room.
(AMBIKA SINGH) MM-06(C)/THC/Delhi 15.05.2015