Delhi District Court
State vs . Batto on 4 July, 2011
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.: 77/2011(old No. 86N/2008)
Unique ID No.: 02404R0490052006
FIR No.: 1297/2006
PS: Sultan Puri
U/S 21 NDPS Act
STATE VS. BATTO
W/o Neki Ram,
R/o Jhuggi No. L/W-33,
Mangol Puri, Delhi.
Date of Institution: 14.10.2006
Date of conclusion of Arguments: 10.06.2011
Date of pronouncement of Judgment: 04.07.2011
JUDGMENT
1 Accused Batto has been charge-sheeted by PS Sultan Puri for commission of offence under Section 21 of Narcotic Drugs and Psychotropic Substances Act (herein after referred to as 'NDPS Act').
2 Case of the prosecution, briefly stated, is to the effect that on 14.08.2006, ASI Rajender Singh, Ct. Virender Kumar and Ct. Gajender were on routine patrolling duty and at about 8:20 pm at AB Block Masjid, Sultan Puri, a secret informer met them and revealed that one lady could be apprehended with smack who would be coming from the Mangol Puri Side and would be going towards C Block, Kumhar Basti. Information was flashed to PS and SHO and one lady Ct. were requested FIR No.: 1297/06, PS: Sultan Puri page 1 of 10 to reach the spot. Several passersby were requested to join the investigation but they all declined. In the meanwhile, Lady Ct. Rajesh reached at the spot and she was apprised about the secret information and was joined in the raiding team. At about 9:20 pm, accused was found coming and at the instance of secret informer, she was apprehended. Accused was made aware about her legal rights but she refused to avail the same. In the meanwhile, SHO also reached at the spot and he also made the accused aware about her legal rights. Notice u/s 50 NDPS Act was also prepared and served upon the accused. Lady Ct. Rajesh took search of accused and from her possession, one transparent plastic thaili was recovered which was containing brown-colored powder. It was found to be smack having total weight as 30 grams. Two samples of 5 grams each were drawn for sampling purpose and pullandas were prepared. Requisite documentation was done at the spot. Since the possession of smack was illegal and unlawful, it is in these circumstances that the accused has been arrested and charge-sheeted.
3 Charge-sheet was filed in the court on 14.10.2006.
4 Accused was charged u/s 21 NDPS Act vide order dated 18.12.2006. She pleaded not guilty and claimed trial.
FIR No.: 1297/06, PS: Sultan Puri page 2 of 10 5 Prosecution was directed to adduce evidence and examined nine witnesses viz. PW1 HC Satpal (MHC(M)), PW2 ASI Ranbir Singh (Second Investigating Officer), PW3 HC Khushi Ram (Duty Officer), PW4 HC Rakesh Kumar, PW5 Ct. Virender Kumar (recovery witness), PW6 Sh. Vijender Singh (Laboratory Assistant, Chemistry Division, FSL, Delhi), PW7 Retired ASI Rajender Singh (First Investigating Officer), PW8 Inspector Mohd. Iqbal (the then SHO, PS Sultan Puri) and PW9 Lady Ct. Rajesh (recovery witness) 6 Accused, in her statement under Section 313 Cr.P.C., pleaded innocence and claimed that she had been falsely implicated. She, however, did not wish to lead any evidence in defence.
7 It would not be out of place to mention that case got delayed as earlier accused stopped appearing before the court. She was declared Proclaimed Offender vide order dated 09.09.2009 and later on, she was apprehended and was again produced before this court on 16.05.2011.
8 I have heard Ms. Purnima Gupta, Ld. APP and Sh. Basant Kumar, Ld. defence counsel and carefully gone through the entire material available on record.
9 Ms. Purnima Gupta, Ld. Addl. P.P. has contended that prosecution has been able to prove its case to the hilt. She has argued that material spot witnesses have FIR No.: 1297/06, PS: Sultan Puri page 3 of 10 entered into witness box and they have fully supported the case of prosecution and corroborated one another on each and every aspect of the case and there is no reason to disbelieve the case of prosecution.
10 Sh. Basant Kumar, Ld. defence counsel has, on the other hand, claimed that accused has been falsely implicated.
11 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material on record.
12 One significant aspect has been probably overlooked by prosecution as well as by the defence. Accused was allegedly found in possession of smack. Samples were drawn and both counterparts of sample were sent to FSL for chemical analysis and the result of examination (Ex.PW6/A) is as under:
(i) On thin layer Chromatography, G.C. & Mass Spectroscopy examination, exhibits 'A' & 'B' were found to contain Paracetamol and Phenobarbital.
(ii)However, on Gas Chromatography examination, exhibits 'A' & 'B' were found to contain Phenobarbital - 77.3% & 76.1% respectively.
13 Thus, most crucial ingredient i.e. diacetylmorphine is found to be missing. As far as Paracetamol is FIR No.: 1297/06, PS: Sultan Puri page 4 of 10 concerned, it is a universally known analgesic composition which is not covered under the scope and ambit of NDPS Act. As far as Phenobarbital is concerned, it is undoubtedly a Psychotropic Substance as per Schedule attached to the NDPS Act. Its name is mentioned at serial no. 69 of the Schedule attached to NDPS Act. However, there is one more Schedule annexed to the rules made under NDPS Act and in such Schedule i.e. Schedule 1 attached with NDPS Rules, 1985, name of this Psychotropic Substance is not mentioned. Therefore, the possession thereof does not become penal under NDPS Act at all. Reference be made to Ouseph @ Thankachan Vs. State of Kerala (2004) 4 SCC 446 and Rajender Gupta Vs. State 123 (2005) DLT 55.
14 In view of aforesaid, even if I assume that brown- coloured powder was in fact recovered from the conscious possession of accused Batto, it does not by itself invite any Penal action.
15 Moreover, there are other material aspects of the case which I cannot resist commenting upon.
16 Spot witness PW5 Ct. Virender Kumar has though supported the case of prosecution yet in his cross- examination, he very categorically claimed that the place from where the accused had been apprehended was a thickly populated area and there were many residents and shops around the spot and that IO has not requested FIR No.: 1297/06, PS: Sultan Puri page 5 of 10 any resident or shopkeeper to join the investigation. Lady Ct. Rajesh had reached the spot in a rickshaw and no effort was made to cite the rickshaw-puller as witness. Moreover, according to PW5 Ct. virender Kumar, ASI Rajender Singh had made call to PS from a PCO. Ct. Gajender had allegedly brought weighing machine (tarazoo) from a nearby shop. Neither that shopkeeper nor that PCO staffer was even formally asked to join the investigation. It was incumbent on the part of investigation to have at least made sincere efforts to join the public witnesses but, no effort, even namesake, has been made despite the fact that public persons were available at the spot.
17 Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution and FIR No.: 1297/06, PS: Sultan Puri page 6 of 10 simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses more so when they are available right at the elbow.
18 Moreover, secret informer was accompanying police party and according to PW5 Ct. Virender, such secret informer remained at the spot till the proceedings were completed. This means that secret informer was not shy in coming in open. In the case of PEERASWAMI VS.
STATE NCT OF DELHI, (DELHI) 2007(4) R.C.R.(CRIMINAL) 339, it has been observed as under
by our own High court:-
"The manner in which DD Ex.PW5/A has been recorded, casts doubt on the receipt of information itself. This doubt is further fortified from the testimony of PW-14, who stated that SI Raj Kumar had received telephonic information and communicated the same to him whereas Sub Inspector Raj Kumar stated that the information was received through a secret informer. The other factors which throw doubt on the story of prosecution is that the secret informers are nourished by the police to receive informations about the crimes. They are never brought face to face before the accused persons because that puts their lives in danger, neither their identity is disclosed to the courts and courts also do not insist upon their identity. But in the instant case, it is testified by Sub Inspector Raj Kumar that despite the fact that secret informer had given specific address where the FIR No.: 1297/06, PS: Sultan Puri page 7 of 10 trade of smack and charas was being carried out, the secret informer was made a part of the raiding party. He was taken to the spot and he also pointed out to the appellant Peeraswmi and at his pointing out the appellants were arrested. If the identity of the secret informer was not so secret and he could accompany police party up to the house and come face to face with the appellant, there is no reason why he could not have been produced in the court for deposition. The entire story of secret informer in fact is falsified from the testimony of PW14, who stated that the information was received on telephone."
19 As per the case of prosecution, the alleged contraband had been recovered from the person of accused. When she was searched by Lady Ct. Rajesh, the transparent plastic thaili was recovered from beneath her wearing salwar. It is surprising that the police team did not think of the modesty of a woman and dared to search her in a public place in open. Concerned police officials should have shown basic minimum courtesy and if at all, they wanted to search the accused, she should have been taken inside any proper enclosure instead of her being searched and whisked in open under chock-a- block public gaze.
20 Moreover, since the possession is from the person of accused, Section 50 NDPS Act automatically comes into play. Two copies of such notices were allegedly prepared and according to PW5 Virender Kumar, original FIR No.: 1297/06, PS: Sultan Puri page 8 of 10 notice was given to the accused. However, this does not go in consonance with the case of prosecution as original notice is part of challan and has been proved as Ex.PW8/A. If at all, carbon copy had been served upon the accused, it would have naturally been recovered subsequently from the possession of accused at the time of her personal search. However, her personal search memo Ex.PW2/A reveals that nothing at all was recovered at the time of her such search which means that notice u/s 50 NDPS Act was not at all served upon the accused. In this regard, testimony of MHC(M) is also important as he has deposed that no personal search articles of accused were deposited with him. He also does not now the impression of seal on FSL Form and according to him, sample pullandas were sent to FSL through ASI Ranbir Singh but he had not whispered even a single word regarding dispatch of FSL Form along with pullandas. ASI Ranbir Singh has, however, attempted to fill up the lacunae in this regard by claiming that he had taken the FSL Form along but fact remains that even the Road Certificate has not been placed on record which might have substantiated such fact. Needless to say that in such type of matters, production and exhibition of Road Certificate is of paramount importance.
21 In view of my aforesaid discussion, I find it to be a fit case where accused deserved to be acquitted. Said contradictions create doubt in the veracity of case of prosecution and moreover, such recovered powder does not fall within the ambit of NDPS Act. Accused Batto is FIR No.: 1297/06, PS: Sultan Puri page 9 of 10 resultantly acquitted of offence under Section 21 of NDPS Act.
22 Accused be released from jail forthwith if not required in any other case.
23 Case property is confiscated to State and be destroyed after expiry of period of appeal, if any.
24 File be consigned to Record Room.
Announced in the open Court On this 04th day of July, 2011.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer District:Rohini Courts:Delhi FIR No.: 1297/06, PS: Sultan Puri page 10 of 10