Delhi District Court
State vs 1. Ram Niwas on 3 December, 2013
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
State Versus 1. Ram Niwas
S/o Late Sh Kabool Chand
R/o 501, Kuber Building
Maidan Garhi, New Delhi.
2. Mukesh Kumar
S/o Sh Ram Singh
R/o Plot No. 13A, DK
Nagar, Khatipura Road
Jhotwara, Jaipur
Rajasthan.
SC No. 18A/11
FIR No. 152/11
U/S: 20 NDPS Act
PS: Neb Sarai
Date of institution : 23.08.2011
Date of reserving judgment : 29.11.2013
Date of pronouncement : 03.12.2013
Final Decision : Acquitted
Computer ID Number : 02406R0216042011
J U D G M E N T
Both the accused persons were sent to face trial by SHO PS Neb Sarai on allegations that on 28.06.2011 they both were found in possession of 5.350 KG of ganja, at Forest Lane, Near St. Marry Public School, Sainik Farms, New Delhi, within the jurisdiction of PS Neb Sarai, in contravention of the provisions of Section 8(c) of the NDPS Act, which is an offence punishable U/S 20(b)(ii)(B) SC No. 18A/11 State Vs Ram Niwas & Anr 2 of the above said Act.
2. The prosecution story, in brief, is that on the above date the IO/PW8 SI Kamal Kishore, alongwith PW1 HC Ishwar Chand, PW6 HC Satish Kumar and Cts. Kishan Pal and Ravi, was on patrolling duty in the area of the above PS and they all had reached near St. Marry Public School at Sainik Farms at about 5.45 PM when they had spotted two persons on a motorcycle bearing registration no. DL 3S AT 1946 and one bag was also seen kept in between both of them. On suspicion the IO/PW8 had signalled them to stop the motorcycle, but they had rather speeded it up but were apprehended by the police party and on enquiry the identity of the person driving the above motorcycle was reveled as the accused Ram Niwas a resident of Maidan Garhi, New Delhi and of the pillion rider it was revealed as the co-accused Mukesh Kumar, a resident of Jaipur, Rajasthan.
3. It is alleged that on being asked by the IO/PW8, the accused persons could not give any satisfactory reply regarding the contents of the above bag and on checking the same was found to contain a blue colour polythene containing ganja. The IO/PW8 had requested 3-4 passersby to join the proceedings, after they were apprised about the entire facts, but none of them had agreed to join and they all had left without disclosing their names and addresses and even no notice could be given to anyone of SC No. 18A/11 State Vs Ram Niwas & Anr 3 them due to paucity of time.
4. It is also alleged in the chargesheet that the IO/PW8 had then served upon notices U/S 50 of the NDPS Act Ex. P4 & Ex. P5 respectively upon the accused persons apprising them of their legal rights to be searched in the presence of a Magistrate or a Gazetted Officer, who could also be called at the spot, as there was possibility of further recovery of some narcotic drugs from them, but vide their replies given by them in their own handwritings on the carbon copies of the said notices Ex. PW1/D & Ex. PW1/E respectively, they both had refused to exercise their above rights while saying that they were not in possession of any further ganja and the ganja possessed by them had already been recovered. They had also refused to take the search of the members of the police team on being offered in this regard.
5. It is further alleged that thereafter, the search of both the accused persons and their above motorcycle was conducted by the IO/PW8, but nothing incriminating was recovered in such search. The IO/PW8 had also intimated the above facts to PW4/SHO Inspector Kulbir Singh and the SHO, in-turn, had directed the IO/PW8 to carry out the further proceedings regarding the above recovered ganja. The IO/PW8 had then weighed the above ganja and its weight came to be 5.350 KG in total and he had taken out two samples of 500 Grams each of ganja therefrom and the SC No. 18A/11 State Vs Ram Niwas & Anr 4 samples were kept in two separate polythenes, which were further kept in cloth pieces and were converted into parcels and were given marking as S1 and S2. The remaining ganja was kept in the same polythene and it was also converted into a cloth parcel and given marking as R1 and all the above three parcels were sealed with the seals of KK, Form FSL was filled up at the spot and the same seal affixed thereon and then the above three parcels and the FSL Form were taken into possession vide seizure memo Ex. PW1/A and seal after use was handed over to PW1 HC Ishwar Chand. The above motorcycle was also seized vide a separate seizure memo Ex. PW1/C.
6. Thereafter, the IO/PW8 had prepared the rukka Ex. PW8/C and had handed over the same to PW6 HC Satish Kumar, alongwith the above three sealed parcels, Form FSL and copies of the seizure memos, with directions to go to the PS and to hand over the rukka to the Duty Officer and the parcels and other documents to the SHO. On the basis of the above rukka the FIR Ex. PW3/A of this case was got registered by the Duty Officer/PW3 HC Anupam. The above sealed parcels, FSL Form and copies of seizure memos were also handed over by PW6 to the SHO/PW4 and the SHO had then affixed his seals of KS on the above parcels and FSL Form and had deposited the above parcels and documents in the malkhana of the PS. After registration of the case PW6 had returned back at the spot and had handed over the original rukka and a copy of the FIR to the IO/PW8, who SC No. 18A/11 State Vs Ram Niwas & Anr 5 had then prepared the site plan Ex. PW1/B at the spot, arrested the above two accused vide memos Ex. PW1/G and and PW1/F, conducted their personal search vide memos Ex. PW1/H and PW1/I and recorded their disclosure statements Ex. PW1/K and PW1/J respectively. In the personal search of the accused Ram Niwas, Rs 50/- in cash, one mobile phone make G-5 and the original notice U/S 50 of the NDPS Act were recovered and in the personal search of the other accused Mukesh Kumar only the original notice U/S 50 of the NDPS Act was recovered and both the accused were then taken to PS, were got medically examined and the above motorcycle and their personal search articles were also got deposited in the malkhana.
7. On the next day, i.e. on 29.06.2011, one report U/S 57 of the NDPS Act Ex. PW9/A was also sent by the IO/PW8 to the concerned ACP/PW9 Sh Rajender Singh regarding the arrest of the accused persons and seizure of the above ganja. One sealed sample Mark S1 was also got deposited with the FSL Rohini on 17.08.2011 through PW7 Ct. Ashok Kumar, alongwith the FSL Form, and after recording the statement of witnesses and completing some other formalities of investigation, a chargesheet for commission of the offence punishable U/S 20 of the NDPS Act was ultimately filed against both the accused persons in this court, pending the receipt of the FSL report.
8. The chargesheet was filed in this court on SC No. 18A/11 State Vs Ram Niwas & Anr 6 23.08.2011 and cognizance thereof was taken on the same day. The FSL report Ex. PW2/D (collectively), alongwith its forwarding letter of the FSL, which is per-se admissible U/S 293 Cr.P.C., was also subsequently received in this court and it was confirmed therein that the above sample was of ganja (cannabis).
9. A prima facie case for commission of the offence punishable U/S 20 (b)(ii)(B) of the NDPS Act was found to be made out against both the accused persons and hence a charge for the said offence was also framed against them by this court on 27.09.2011.
10. The prosecution in support of its case has examined total 9 witnesses on record and their names and the purpose of examination etc. is being stated herein below:-
11. PW1 HC Ishwar Chand, PW6 HC Satish Kumar and the IO/PW8 SI Kamal Kishore are all the members of the above raiding team which had apprehended the accused persons from the above spot and had recovered the above ganja from their possession. They all have broadly deposed on the above lines of the prosecution story and have identified the accused persons as well as the entire case property and samples produced on record.
12. PW2 HC Raghubir was the MHC(M) of the above PS at SC No. 18A/11 State Vs Ram Niwas & Anr 7 the relevant time and he has deposed regarding the deposit and movement of the above case property and personal search articles etc. He has also proved on record the relevant entry at Serial No. 595 of the register no. 19 of the malkhana as Ex. PW2/A, the above RC No. 59/21/11, vide which the sample parcel was sent to FSL, as Ex. PW2/B and has also brought on record the acknowledgement given by the FSL in token of receipt of the said parcel and the FSL Form as Ex. PW2/C. In his statement, the above FSL result, which is per-se admissible in evidence U/S 293 Cr.P.C., was also tendered on record as Ex. PW2/D, alongwith the forwarding letter of the FSL.
13. PW3 HC Anupam is the Duty Officer who has proved the FIR of this case as Ex. PW3/A and his endorsement Ex. PW3/B made on the original rukka regarding the registration of this case.
14. PW4 Inspector Kulbir Singh is the then SHO and he has deposed regarding receiving of the information from the IO/PW8 about the apprehension of the accused persons with ganja and giving of directions by him to the IO/PW8 for taking the necessary action. He has also deposed regarding the handing over of the above sealed parcels of the case property and samples to him, alongwith the FSL Form and copies of the seizure memos, by PW6 HC Satish Kumar and the deposit thereof in the malkhana, after affixing his seals on the above parcels and FSL Form and SC No. 18A/11 State Vs Ram Niwas & Anr 8 also about lodging of one DD No. 18A Ex. PW4/A in this regard. He has also subsequently forwarded the above report U/S 57 of the NDPS Act submitted to him by the IO/PW8 to the ACP concerned.
15. PW5 HC Ranjeet Singh is the Reader to the concerned ACP Mehrauli at the relevant time and he has stated that one information U/S 57 of the NDPS Act of this case was received in their office from the SHO PS Neb Sarai on 29.06.2011 and it was entered in the dak register vide entry at serial no. 3774 Ex. PW5/A and was put up before the ACP and seen and endorsed by the ACP.
16. PW7 Ct. Ashok Kumar is the person who had taken the above sealed sample parcel of this case, alongwith the FSL Form, and had deposited it with the FSL on 17.08.2011, vide RC Ex. PW2/B and against acknowledgement Ex. PW2/C issued by the FSL.
17. PW9 Sh Rajender Singh is the ACP concerned who had seen and endorsed the above information U/S 57 of the NDPS Act Ex. PW9/A of this case on the date of its receipt in his office, i.e. on 29.06.2011.
18. After the conclusion of the evidence of the prosecution, the statements of the accused U/S 313 Cr.P.C. were recorded by this court and all the incriminating evidence brought on record by the prosecution was put to SC No. 18A/11 State Vs Ram Niwas & Anr 9 the accused persons and the same was denied by them to be incorrect. They both have specifically denied their apprehension by the police officials from the above spot, alongwith the above motorcycle, or the recovery of the above quantity of ganja from their possession and have claimed themselves to be innocent and to have been falsely implicated in this case by the above police officials at the instance of PW1 HC Ishwar Chand, who was allegedly having some inimical relations with the accused Ram Niwas as the above accused had taken the side of his one friend Sh Sunil Kumar, a resident of Neb Sarai and running a grocery/parchun shop in the area, who had made some complaint against PW1 HC Ishwar Chand. It is also claimed by the accused Ram Niwas that on the basis of the above complaint made by Sh Sunil Kumar, some vigilance enquiry was also initiated against him and some other police officials and since he was also helping the above Sh Sunil Kumar in pursuing his complaint, he was also earlier implicated in a false case U/S 107/151 Cr.P.C. It is also claimed by both of them that they were forcibly picked up from the cloth shop of accused Ram Niwas on the main IGNOU Road on 28.06.2011 and were taken to PS in a black colour Santro car and were falsely implicated in this case by planting the above ganja. It was further stated that the accused Mukesh Kumar had come from Rajasthan to Delhi only to attend the marriage of the son of the accused Ram Niwas, which was to be solemnized after some days. They have also chosen to lead evidence in their defence.
SC No. 18A/11 State Vs Ram Niwas & Anr 10
19. DW1 Ct. Mukesh examined on record is an official from the office of the Complaint Branch of DCP, South and he has stated that one complaint received in their office by post on 03.11.2009 was entered in the relevant register of complaints vide entry at serial no. 3236 and on the directions of the DCP concerned, the same was sent for enquiry to ACP, Public Grievances on the same day and was also subsequently received back in their office, alongwith the enquiry report. He has proved on record the above relevant entry of the concerned register of their office as Ex. DW1/A and as per the above document, the complaint was made by the above Sh Sunil Kumar and was against HC Ishwar Chand and Ct. Balwant etc. However, he has also stated that the original of the above complaint or the record of the action taken thereon stood already destroyed in terms of the order dated 18.03.2013 of the DCP concerned.
20. DW2 Sh Sunil Kumar is the above friend of the accused Ram Niwas and he has stated that few days before 17.10.2009, he was raising some construction in his house in Lal Dora area of his village when HC Ishwar had demanded some bribe from him and had also threatened to involve him in some false case. He has also stated that subsequently he was involved in a false case of Excise Act by HC Ishwar on 17.10.2009 and the accused Ram Niwas had stood surety for him in the said case. He has also stated about making of a complaint by him on 27.10.2009 against SC No. 18A/11 State Vs Ram Niwas & Anr 11 HC Ishwar to the Commissioner of Police and some other authorities and has further stated that HC Ishwar had even threatened to falsely implicate the accused Ram Niwas in some false case and he had also subsequently come to know that HC Ishwar had falsely implicated the above accused in this case.
21. I have heard the arguments advanced by Sh Inder Kumar, Ld Additional PP for the State and Ms Sunita Tiwari Ld counsel for both the accused and have also appreciated the evidence led on record and the other record of the case.
22. There are various contradictions, loopholes and lacunae in the story of the prosecution and the evidence led on record does not inspire much confidence and cannot be made the basis of the conviction of the accused persons. Further, the chances of the false implication of the accused persons are also reflected from the record itself.
23. Though, all the three official witnesses of recovery have deposed that they all were on the patrolling duty at the above place at the relevant time of interception of the accused persons, but no document in the form of any DD entry etc. in this regard has been brought or proved on record. PW1 has stated that he does not even remember if any such departure DD was made at the SC No. 18A/11 State Vs Ram Niwas & Anr 12 PS or not, PW6 also says that he does not remember if it was got recorded or not and even the IO/PW8 though says that the same was recorded, but he does not remember the particulars thereof. In the absence of the above documentary evidence, the oral depositions of the witnesses in this regard lack corroboration on the above aspect.
24. Again, according to the prosecution story, the accused persons were apprehended near the St. Marry Public School and the distance between the PS and the above place /spot has been stated by PW1 and the IO/PW8 to be around 1½ KM, but PW6 has stated the above distance to be less than 1 KM. They were on foot when they had left the PS for patrolling and also at the time when they had seen the accused persons coming on the above motorcycle and according to all the above witnesses, when the IO/PW8 had signalled the motorcycle of the accused to be stopped, the accused persons had speeded up the motorcycle. As per PW1, he had seen the accused persons from a distance of 20-30 yards, the IO/PW8 says to have seen them from a distance of 8-10 yards only and PW6 states it to be 15-20 steps. As per PW6, the motorcycle of the accused persons was at the speed of 50 KMPH when it was seen by him and if the depositions of the above witnesses are believed that the accused persons had speeded up their motorcycle, there was no question of stopping of the above motorcycle of the accused by the witnesses from such a speed after giving a SC No. 18A/11 State Vs Ram Niwas & Anr 13 chase when the witnesses were on foot only. Though, the IO/PW8 had stated the speed of the motorcycle to be only 10-20 KMPH at that time, but even his above depositions are sharply in contrast and contradiction to the above depositions of PW6 and cannot be believed for one other reason also that admittedly there were no other vehicles passing from the said road at the relevant time.
25. One other major flaw in the story of the prosecution is that no public or independent witnesses has been joined at any stage of the investigation, though the accused persons were apprehended from a public place at a busy evening time of around 5.45 PM and admittedly there were residential houses and farm houses on both sides of the road and also one school named St. Marry School situated at a short distance of about 15-20 paces only. None of the police officials had even requested any security official or chowkidar etc. of the above school to join the proceedings and though the IO/PW8 has vaguely stated that he had requested some passersby to join the proceedings, after the interception of the accused persons, but his above depositions do not inspire much confidence and do not reflect the sincere efforts made on his part to join any such public or independent witnesses.
26. One other major discrepancy in the prosecution story is that the signatures of only PW6 Ct. Satish are appearing in original on the carbon copies of the notices SC No. 18A/11 State Vs Ram Niwas & Anr 14 U/S 50 of the NDPS Act Ex. PW1/D and PW1/E given to the accused persons and all the other contents of these notices, including the signatures and names of the witnesses and of the IO/PW8 as well as the replies of the accused given on the said notices, are in carbon only. There is no satisfactory explanation on record as to how PW6 could have signed on the above carbon copy of the notices in original when the rest of the contents of the said notices were in carbon and even he has stated on record that he had signed on the above notices when the carbon was still attached with the original notices. Even, PW1 has made contrary depositions on record on this aspect because at one stage of his cross examination, he had stated that he himself had signed on the original notice and carbon notices separately whereas he had stated again that HC Satish had signed the carbon copy of the notices separately. The above discrepancy and contradictions in the prosecution evidence not only makes the genuineness of the above document and the prosecution story to be doubtful but it also makes the very presence and participation of PW6 in the above proceedings to be doubtful.
27. Again, it is not clear as to from where the above weighing scale used in this case was arranged on which the above ganja and samples taken therefrom were weighed. As per the depositions made by PW1 the above weighing scale was brought by Ct. Krishan Pal, but from where it was SC No. 18A/11 State Vs Ram Niwas & Anr 15 brought had remained in mystery due to non examination of Ct. Krishan Pal. PW1 has even not been able to tell the weighing capacity of the above scale or its make etc. and though, PW1 has stated that the ganja and samples were weighed and taken in three attempts, but PW6 has stated that he does not now remember as to how many times the weight of the ganja and samples were taken. Even the above cloth pack from which the blue colour polythene containing ganja was recovered has not been seized in this case or produced on record and PW6 was even not able to tell the colour of the above cloth.
28. Further, the defence of false implication as taken by the accused persons in this case also appears to be true as it was the case of the accused persons that one member of the raiding team, i.e PW1 HC Ishwar Chand, was already known to the accused Ram Niwas and he was also having some inimical terms or ill will towards the above accused as previously, about 5-7 years back, PW1 had falsely implicated a friend of the above accused, namely Sh Sunil Kumar, in a false case of liquor and the accused Ram Niwas had stood surety for his above friend Sh Sunil Kumar and Sh Sunil Kumar had also made some complaints against PW1 HC Ishwar in this regard.
29. During the course of trial, it has been specifically admitted by PW1 HC Ishwar that one of the two accused, i.e the accused Ram Niwas, was already known to SC No. 18A/11 State Vs Ram Niwas & Anr 16 him since the time he was previously posted at PS Mehrauli and he has also stated that the above accused Ram Niwas was having a cloth shop at that time in his beat area and accused Ram Niwas was also booked by him in a case U/S 107/151 Cr.P.C., though, he has denied the suggestions of false implication of the accused in this case by him or at his instance for the reasons as the accused refused to accede to his illegal demand for money. The accused Ram Niwas in his defence has also examined on record the above Sh Sunil Kumar as DW2 and he has also stated in his depositions that HC Ishwar Chand had demanded some bribe from him when he was raising some construction of his house and on his refusal, he was threatened by HC Ishwar Chand to be implicated in some false case and he was also subsequently implicated in a case of Excise Act on 17.10.2009. He has also stated that the accused Ram Niwas has stood surety for him in the said case and subsequently on 27.10.2009 he had also sent various complaints against HC Ishwar Chand to different authorities, including the Commissioner of Police and ACP, Vigilance etc. DW1 Ct. Mukesh has also brought on record a copy of the entry no. 3236 dated 03.11.2009 of the office of the Complaint Branch of DCP, South, vide which one complaint against the above police official and some others was received in their office, was marked for some inquiry to the ACP, Public Grievances and was received back with the inquiry report. Though, the original of the above complaint or the inquiry report stood destroyed by that time, but, SC No. 18A/11 State Vs Ram Niwas & Anr 17 however, the depositions made by this witness and the record produced by him apparently substantiate the submissions being raised on behalf of the accused of his false implication in this case due to some previous enmity between him and the above HC Ishwar Chand/PW1. This fact casts serious doubts regarding the trustworthiness of the prosecution case as per which the accused persons were seen coming on a motorcycle and their identities were revealed only after inquiries conducted from them on their apprehension in this case.
30. It is well settled that the onus of proving its case beyond reasonable doubts is always upon the prosecution and in a case under any enactment like the NDPS Act laying down severe punishments, this onus becomes more high in degree and the duty of the court is to ensure that the provisions of such an enactment are complied with strictly and a higher degree of assurance is required for convicting the accused. Reference in this regard can be made to the judgment in case of State of Punjab Vs Baldev Singh 1999 Drugs Cases 150 : (1999) 3 SCC 977, wherein it was held that:-
" It must be born in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed " .
31. Reference can also be made to the case of Mausam SC No. 18A/11 State Vs Ram Niwas & Anr 18 Singh Roy Vs State of WB (2003) 12 SCC 377 wherein also it was held that it is a settled principle of criminal jurisprudence that the more serious the offence is, the stricter is the degree of proof, since a higher degree of assurance is required to convict the accused.
32. In view of the above discussion, it is held that the story being put forward by the prosecution regarding the apprehension of the accused persons from the above said place and at the above said time and the recovery of the above contraband substance from their possession does not conspire any confidence at all as the evidence led on record lacks corroboration, consistency and liability. The accused persons are, therefore, acquitted of the charge U/S 20 (b)(ii)(b) of the NDPS Act framed against them giving benefit of doubt.
33. The case property be also confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of the appeal to be filed against this judgment, if any. File be consigned to record room after the bonds U/S 437A Cr.P.C. are furnished on behalf of the accused persons.
Announced in the open
court on 03.12.2013 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No. 18A/11 State Vs Ram Niwas & Anr