Delhi District Court
State vs (I) Pawan Kumar (In J/C) on 7 September, 2012
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE(NDPS)/ADDL.SESSIONS JUDGE (NORTH
EAST) : KARKARDOOMA COURTS, DELHI
SC No. 06/2010
FIR No. 204/2009
PS Crime Branch
Under Section 21 & 29 NDPS Act
Case ID 02402R0057632010
State Versus (i) Pawan Kumar (In J/C)
S/o Hukam Chand
R/o Hall Bazar, Katra Sher Singh,
Near Gandhi Gate, Amritsar, Punjab.
(ii) Pawan Kumar @ Naresh
S/o Murari Lal
R/o H. No. 125A, 2nd Floor, Chandu Park,
Near Jagatpuri, Delhi.
Date of Institution 26.02.2010
Date of hearing Arguments 30.08.2012
Date of Judgment 07.09.2012
J U D G M E N T
1. In the present case, the accused Pawan Kumar S/o Hukam Chand, is facing trial for the offence punishable U/s 21 (c) of the FIR204/2009 PS Crime Branch Page 1/17 Narcotic Drugs and Psychotropic Substances Act, 1985, whereas, the accused Pawan @ Naresh is facing trial for the offence punishable U/s 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. In order to prove the charges against the accused persons, the prosecution has examined a total of eleven witnesses, who are all police officials, except PW8 Deendayal, the record clerk from Road Transport Authority, who has produced the particulars of the registration of motorcycle no. DL 5 S AA 5682. There is no public witness to the alleged incident and the alleged recovery of contraband, from the possession of the accused Mumtaz @ Guria.
3. After completion of prosecution evidence, the statement of accused persons were recorded U/s 313 Cr.P.C., on 17/05/2012. Both the accused have denied all the incriminating evidence against them and have deposed that they are innocent and have been falsely implicated in this case. The accused have not led any defence evidence, despite opportunity.
4. After completion of trial, final arguments were addressed by Sh. S.K. Dash, Ld. Additional P.P. for the State and Sh. S.N. Qureshi , Advocate, for accused Pawan @ Naresh and Sh. K.N. Sharma, Advocate, for accused Pawan S/o Sh. Hukam Chand. The Ld. Addl. FIR204/2009 PS Crime Branch Page 2/17 P.P. for the State has argued that the prosecution witnesses have proved the recovery of 500 grams of 'Heroin' from the possession of the accused Pawan S/o Sh. Hukam Chand and have also proved on record that both the accused persons have conspired together to commit the offence punishable U/s 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and therefore, the accused Pawan S/o Sh. Hukam Chand, be convicted for the offence punishable U/s 21
(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the accused Pawan @ Naresh, be convicted for the offence punishable U/s 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
5. On the other hand, Sh. K.N. Sharma, Advocate, for the accused Pawan S/o Sh. Hukam Chand, has argued that both the accused have been falsely implicated in this case and no recovery was effected from the possession of accused Pawan S/o Sh. Hukam Chand. He has further argued that the rukka Ex. PW11/A was not prepared by SI Satyawan and he got it prepared through HC Sohan Pal. But, IO SI Satyawan has failed to disclose any reason, as to why, the rukka Ex. PW11/A was not recorded by him in his own hand.
6. He has further argued that the alleged recovery was affected on 08/12/2009 and the sample was allegedly sent to FSL on 16/12/2009, FIR204/2009 PS Crime Branch Page 3/17 and therefore, there is a delay of about 8 days in sending the samples to the FSL and the same violates the guidelines issued by the NCB and the same is fatal to the prosecution case.
7. Sh. S.N. Qureshi, Advocate for accused Pawan @ Naresh has further argued that there is no evidence on record to prove any conspiracy between the accused persons, to attract the provisions of Section 29 of The NDPS Act against accused Pawan @ Naresh. He has also argued that the mere presence of the accused Pawan @ Naresh, at the spot, at the time of the alleged recovery, does not prove the conspiracy between the accused persons. He has further argued that the complainant SI Satyawan allegedly reached at the spot at about 7.30 am and remained there till 6.50 pm and the IO SI Bhagwan Singh also reached the spot at about 2.50 pm and remained there till 6.50 pm but, no public persons were joined to the proceedings and the investigations by both the investigating officers despite their alleged presence at the spot for about 11 hours.
8. Both the Ld. defence counsels have also argued that no senior officer had visited the spot during the entire period of 11 hours and there are several contradictions in the deposition of the prosecution witnesses, which makes the entire prosecution case doubtful and FIR204/2009 PS Crime Branch Page 4/17 therefore, both the accused be acquitted of the charges alleged against them.
9. I have carefully gone through the case file & I have given my considered thoughts to the arguments addressed by the Ld. Defence Counsels and the Ld. Addl. PP for the State. Perusal of the record shows that PW11 SI Satyawan, has deposed that on 08/12/2009, he was posted at Narcotics Branch, Shakarpur and at about 6.00 a.m., a secret informer came to him and informed him about the accused persons and disclosed that the accused Pawan R/o Chandu Park, Jagatpuri, Delhi will come to supply 'Smack' between 7.00 am to 8.30 am, near Durgapuri Chowk, Durga Mandir, Shahdara, Delhi, to other person, namely, Pawan R/o Punjab. The secret information was reduced into writing vide DD No. 8 at 6.30 A.M. This witness has further deposed that after receiving the information, he produced the secret informer before SI Vivek Pathak, Incharge, Narcotics Cell and after satisfying himself about the secret information, SI Vivek Pathak informed ACP, N & CP, Sh. Sube Ram Yadav, at his residence, telephonically, who directed him to taken action immediately. He has further stated that the true copy of DD no. 8, was also handed over to SI Vivek Pathak, and as per his directions, a raiding party was FIR204/2009 PS Crime Branch Page 5/17 constituted and they reached the spot and took their positions near the spot. At about 7.50 a.m., the accused Pawan came from the side of GT Road and the secret informer identified him as accused Pawan R/o Punjab. After reaching the spot, the accused Pawan R/o Punjab, waited at the spot for about three four minutes and in the meantime, the accused Pawan R/o Chandu Park also came there on a motorcycle bearing registration No. DL 5S AA 5682. The secret informer identified him as accused Pawan R/o Chandu Park, Delhi. Thereafter, accused Pawan R/o Chandu Park handed over a red colour polythene to accused Pawan R/o Punjab and thereafter, both the accused were apprehended by the police party. Thereafter, he informed the fact of secret information to both of them and told them that their personal search was to be conducted and also informed them about their legal rights. Thereafter, the notices U/s 50 NDPS Act were served upon the accused persons and their refusals were recorded. Thereafter, their personal search were conducted, wherein, 500 grams of Heroin was recovered from the possession of the accused Pawan S/o Sh. Hukam Chand.
10. Perusal of the record further shows that the IO has not made any effort or an endeavour to produce the accused persons before a FIR204/2009 PS Crime Branch Page 6/17 Gazetted Officer or a Magistrate, prior to conducting their personal search. It has been held by the Hon'ble Appex Court in case titled as Vijaysinh Chandubha Jadeja Vs. State of Gujarat, reported as AIR 2011, SC 77, as under:
"22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under Subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Therefore, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed In Re: Presidential Poll MANU/SC/0047/1974 : (1974) 2 SCC 33, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section FIR204/2009 PS Crime Branch Page 7/17 50 of the NDPS Act introducted and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of Subsection (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings. It may verily strengthen the prosecution as well".
(emphasis supplied by me).
11. It has been further held by the Hon'ble Supreme Court in case titled as Narcotics Control Bureau Vs. Sukhdev Raj Sodhi, reported as AIR 2011 SC 1939, as under: "5. The obligation of the authorities under Section 50 of the NDPS Act has come up for consideration before this Court in several cases and recently, the constitution Bench of this Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat MANU/SC/0913/2012 : (2011) 1 SCC 609 has settled this controversy. The Constitution Bench has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 FIR204/2009 PS Crime Branch Page 8/17 must be very strictly construed.
6. From the perusal of the conclusion arrived at by this Court in Vijaysinh Chandubha Jadeja's case, it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazette officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazette officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, as Endeavour should be made by the prosecution agency to produce the suspect before the nearest Magistrate.
(emphasis supplied by me).
12. From the above pronouncements, it is clear that the provisions of Section 50 NDPS Act are mandatory in nature, and are to be complied strictly. But, in the present case, the IO has not complied the provisions of Section 50 NDPS Act, strictly. The IO was duty bound to produce the accused persons before a Gazetted Officer or a Magistrate, immediately, after their apprehension by the raiding party, prior to conducting their personal search. Furthermore, the refusal by the accused persons, to get themselves searched in the presence of a Gazetted Officer or a Magistrate, does not appear to be voluntary. Both the accused were already surrounded by the police party, when the notice U/s 50 NDPS Act were allegedly served upon them. FIR204/2009 PS Crime Branch Page 9/17
13. It is further observed that no public person has joined the investigations as a witness. The complainant SI Satyawan reached the spot at about 7.30 a.m. and remained at the spot till the completion of the proceedings, till 6.50 p.m. and the IO SI Bhagwan Singh reached the spot at about 2.50 p.m. and remained there with other police officials till 6.50 p.m. During this entire period of almost about 11 hours, no public witness has joined the investigations. It has been stated by the IO and the other members of the raiding party that several public persons were asked to join the police party, but, nobody obliged and those persons had left the spot, without disclosing their names and addresses to the IO. IO has failed to serve any notice upon such public persons, for their willful noncooperation. It has been held by the Hon'ble High Court of Delhi in case titled as Mohd. Raffique Vs. State, reported as 2000 II AD (Cr.) DHC 365, as under: "9. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may, in this context, be made to the provisions of sub Section (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under Section 100 of the FIR204/2009 PS Crime Branch Page 10/17 Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 IPC. In the instance case, there is nothing to indicate that the authorised officer had served or even attempted to serve an order in writing upon any public witness as envisaged by subSection (8) of Section 100 Cr.P.C. In this connection, I may usefully excerpt the following observations of Malik Shariefu Din, J. in Rattan Lal Vs. State, 1987 92) Crimes 29: "....... In the case in hand the seizure and the arrest have been made under section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by subsection (4) of section 100 Cr.P.C. The explanation offered is that public witnesses were requested but they declined to cooperate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to cooperate without reasonable cause inspite of any order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187 I.P.C. and this has been clearly spelt out in subsection (8) of section 100 Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention the same has been made in the case diary. Obviously, there is a deliberate attempt defeat the legislature safeguards."
10. It has come in the evidence of Sub Inspector Satpal (P.W.6), Constable Jamil Ahmad (P.W. 4) and Constable Sukhram Pal (P.W. 3) that Gali Masjid Wali is a thickly FIR204/2009 PS Crime Branch Page 11/17 populated area. It seems inconceivable that no one from the public had come to the spot to witness the alleged search and seizure operation. Having regard to the area and the place of search and seizure, it appears that public witnesses were available but no serious attempt was made by Sub Inspector Satpal (P.W. 6) to associate them before searching the appellant. I am unable to find any reason as to why he did not even make any attempt to associate any independent witness or witnesses during the course of search and seizure operation."
(emphasis supplied by me).
14. Perusal of the record further shows that the alleged sample of Heroin, 'MarkA', was sent to FSL Rohini alongwith the FSL form through Ct. Sat Pal, on 16.12.2009. The alleged recovery was affected from the possession of the accused Pawan S/o Hukam Chand on 08.12.2009. Therefore, there is a delay of about 8 days in depositing the samples at the FSL, Rohini. No explanation has been given by the IO, regarding the delay in submitting the samples to FSL Rohini, for chemical analysis.
15. It has been held by the Hon'ble High Court of Delhi in case titled as Matloob Vs. State (Delhi Administration), reported as 67 (1997) DLT 372, as under:
"11. My attention was drawn to Delhi High Court Rules and Orders PartIII Chapter 18B, which interalia, provides that articles for the opinion of FIR204/2009 PS Crime Branch Page 12/17 the chemical examination should be forwarded without the least possible delay. In considering all this, delay if any, can be explained by the prosecution. Samples to CFSL in this case were despatched about one month after the substance was seized and no explanation for so much time taken in despatching the samples is forthcoming on record. Thus the prescribed promptitude appears to be lacking in this case."
(emphasis supplied by me).
16. It has been further held by the Hon'ble High Court of Delhi in case titled as Rishidev @ Onkar Singh Vs. State (Delhi Administration), decided on 01.05.2008 in Crl. Appeal No. 757/2000, as under: "8. In a significant judgment in Parminder Singh v. State of Haryana 2007 (2) JCC (Narcotics) 71, the Punjab and Haryana High Court found that there was no explanation for the delay of 25 days in sending the samples for analysis. In para 13 of the judgment it was held as under: (JCC @ p.76)
13. No. explanation has come forward from the side of the prosecution as to why the samples were sent after a gap of 25 days for analysis. S.K. Nagpal, Retired Senior Scientific Officer, FSL, Madhuban PW2 has stated that on 7.8.2001 five sealed parcels were received in the Laboratory, but the same were returned back due to the reason that the FIR in that case was registered on 12.7.2001, with the objection regarding the delayed deposit of sample parcels. As per this witness, according to the narcotic Control Bureau Instructions, the sealed FIR204/2009 PS Crime Branch Page 13/17 parcels should be deposited within 72 hours with the Chemical Examiner. He has further stated that two samples were to be taken of the seized contraband as per instructions. The explanation given by DSP Chander Singh PW6 to this witness was that samples could not be sent earlier due to VVIP duties. Ram Kumar MHC PW3 brought Rapat Roznamcha from 12.7.2001 to 16.7.2001. During this period, it has been shown that the Police Force was not sent for VVIP duty at anytime. The crossexamination or Ram Kumar MHC PW3 was deferred by the trial court to enable the witness to produce the Roznamcha from 16.7.2001 to 13.8.2001. This witness was not brought into the witness box by the prosecution. We can safely infer that Ram Kumar PW3 was not brought again into the witnessbox, as the period from 16.7.2011 to 13.8.2001 did not show any VVIP duty. It is clear that the Investigation Officer Chander Singh DSP PW6 has only made an excuse, which is not convincing, that the samples could not be sent because of VVIP duty."
The above passage shows that there is a time limit of 72 hours stipulated by the narcotics Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event."
(emphasis supplied by me)
17. In the present case, the prosecution has led the evidence FIR204/2009 PS Crime Branch Page 14/17 regarding the deposition of the case property at the Malkhana on 08.12.2009 and sending of the sample to FSL on 16.12.2009. But, there is no evidence to explain the delay of about 8 days in sending the samples to FSL for chemical examination and the same violates the guidelines of NCB. Perusal of the record further shows that the case property was produced before the Court, for the first time, during the examination of PW3 HC Ramesh Chand and it was observed by the Ld. Predecessor of this Court that the colour of the sample of Smack was darker than the case property. This observation also casts a doubt on the prosecution case and there is every possibility that the sample was not taken from the case property.
18. From the perusal of the record, it is also observed that the IO SI Satyawan has not recorded the rukka Ex.PW11/A, himself and the rukka Ex.PW11/A was got prepared by him through HC Sohan Pal. IO SI Satyawan has failed to disclose any reason or disability for not preparing the rukka Ex.PW11/A in his own hand.
19. Perusal of the record further shows that there is no evidence on record to indicate any conspiracy between the accused persons, to attract the provisions of Section 29 of the NDPS Act. There is no recovery from the possession of accused Pawan @ Naresh. The mere FIR204/2009 PS Crime Branch Page 15/17 presence of accused Pawan @ Naresh at the spot, at the time of alleged recovery from the accused Pawan S/o Hukam Chand, is not sufficient to prove the offence U/s 29 of the NDPS Act against him. In this case, even the alleged recovery from the possession of accused Pawan S/o Hukam Chand is doubtful.
20. From the above discussion, I am of the considered opinion that the prosecution has failed to prove its case against the accused persons, beyond a shadow of doubt, and therefore, the accused Pawan S/o Hukam Chand is hereby acquitted for the offence punishable U/s 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused Pawan @ Naresh is also acquitted for the offence punishable U/s 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The bail bond furnished by the accused Pawan @ Naresh, accepted on 20.03.2010, is extended for a further period of six months from today, as per the provisions of Section 437A of the Cr.P.C. The accused Pawan S/o Hukam Chand shall furnish his bail bond in the sum of Rs.20,000/ with one surety in the like amount, within a period of one week from today. The personal bond is submitted by accused Pawan S/o Hukam Chand and the same is accepted till 14.09.2012. He is permitted to submit the surety bond till 14.09.2012. Both the FIR204/2009 PS Crime Branch Page 16/17 accused are further directed to appear before the appellate court, as and when, the notices are issued to them by the appellate court, in any appeal, if preferred by the State, against their acquittals. File be consigned to record room, after due compliance. Announced in the open court on this 7th day of September, 2012. Brijesh Kumar Garg Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.
FIR204/2009 PS Crime Branch Page 17/17