Delhi District Court
Fir No. 482/2014 State vs . Ram Avtar @ Shakaal Etc Page No.1 Of 26 on 14 January, 2019
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE02 (EAST) SPL. JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
S.C. No. 1405/16
FIR No.482/14
U/s 20 NDPS Act
PS Geeta Colony
State
Versus
(1) Ram Avtar @ Shakaal s/o Gurucharan Singh
D13 Rani Garden
Delhi110031
(2) Mohd. Tarikh Ahmed s/o Sh. Anwaar
Village Ramnanpur PS kadirchowk
Ditrict Budaun UP ........... Accused
Date of Institution: 08.09.2014
Reserved for Judgment on : 11.12.2018
Judgment pronounced on: 14.01.2019
JUDGMENT
The prosecution case in brief is that on 24.07.2014,SHO PS Geeta Colony called SI Deepak and informed that the secret informer present has information about selling of ganja in the area of Rani Garden and that the action should be taken immediately. Secret informer gave information to SI Deepak that a person namely, Shakaal would pass through Ambedkar Park, Rani FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.1 of 26 Garden in between 9 p.m to 10 p.m. The said information was recorded vide DD no.17A at about 20:00 hours. A raiding party was constituted by the order of SHO, consisting of HC Vinay, Ct. Praveen and Ct. Sachin and after lodging DD no.18A and taking necessary material, the raiding party proceeded to the spot alongwith secret informer and reached at Ramleela Ground, Rani Garden, Delhi. SI Deepak requested 45 passersby to join the raiding party but they left away disclosing their genuine reasons. Raiding staff was briefed. Secret informer informed SI Deepak that Shakaal would come with his associate from Pushta Road, Geeta Colony and would go to Rani Garden through Ambedkar Park. Raiding party took their position at the spot. It is further the case of the prosecution that at about 21:45 hours, two persons were seen coming from the side of Pushta Road towards Ambedkar Park. Both the said persons were having colourful kattas (bags) in their right hands. Secret informer identified the said persons as Shakaal and his associate. Both the said persons were apprehended with the kattas (bags) and on enquiry their names came to be known as Ram Avtar @ Shakaal and Mohd. Tarik Ahmad. Both the said persons were informed about the secret information that they are in possession of ganja. Notices u/s 50 NDPS Act were prepared and they were informed that their search has to be conducted and that they have legal right to be searched in the presence of any Gazetted Officer/Magistrate and that the arrangement for the same can be made but both the said persons refused for the same. Accused Ram FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.2 of 26 Avtar written his refusal on the notice u/s 50 NDPS Act and since accused Mohd. Tarik was illiterate, his refusal was got written through accused Ram Avtar @Shakaal as per dictation of accused Mohd. Tarik. Both the said persons were also offered the search of raiding party but they refused for the same. The bag being carried by accused Ram Avtar was taken from his right hand, it was opened and checked and found containing ganja. On the said katta(bag) Galaxy Gulistha 1121 Golden Sella Basmati Rice was found written. The said katta was weighed and it was found to be 5 Kgs 200 grams. The bag being taken by accused Mohd. Tarik was also taken. LRD Hari Bhari Basmati Rice was written on the said katta. On weighing, it was found to be 3 Kgs 500 grams. Two samples of 200 grams each were drawn from the ganja recovered from accused Ram Avtar @ Shakaal which were kept in a transparent polythene and with the help of cloth the said samples were converted into pullandas and were given Mark A and B. Remaining ganja was kept in the same bag, converted into pullanda and serial no.1 was given to it. Similarly, two samples of 200 grams each were drawn from the ganja recovered from accused Mohd. Tarik which were kept in the transparent polythene and pullandas were prepared with the help of cloth and the same were given Mark C and D. Remaining ganja was kept in the same bag which was also converted into pullanda and given serial no.2. All the said parcels were sealed with the seal of GC23 PS Geeta Colony East Distt. Form FSL was filled at the spot and same seal was affixed on it. Seal after use was handed over to FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.3 of 26 HC Vinay. The said pullandas and other documents were seized. SI prepared a rukka and handed over the same to Ct. Praveen alongwith all the parcels, FSL form and carbon copy of seizure memo with direction to hand over the rukka to Duty Officer for the registration of FIR and the parcels etc to SHO for conducting the proceedings u/s 55 NDPS Act. Case was got registered through duty officer and after registration of case further investigation was entrusted to ASI Rajender Singh who reached at the spot. He prepared the site plan. He arrested the accused persons, conducted their personal search and recorded their disclosure statements. ASI Rajender Singh recorded the statements of the witnesses. He prepared the report u/s 57 NDPS Act. On 30.07.2014, sample pullandas were sent to FSL. FSL result was obtained and filed on record. After completion of the investigation, chargesheet was prepared against the accused persons u/s 20 NDPS Act and they were sent to Court for trial.
2. After compliance of section 207 Cr.P.C., charge u/s 20(ii) (B) of NDPS Act was framed against the accused persons to which they pleaded not guilty.
3. In order to prove its case, prosecution examined 10 witnesses. PW1 is HC Kadir Ahmed. He deposed that on 24.07.2014 at about 8 p.m, a secret informer came in the PS and informed regarding the secret information that one person namely Shakal, involved in supply of ganja alongwith his companion would come in FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.4 of 26 Rani Garden and if raided, can be apprehended. He produced the secret informer before SHO and recorded the information vide DD no.17A, copy of which is Ex.PW1/A. He also deposed that at about 8.30 p.m, SI Deepak had recorded DD no.18A Ex.PW1/B. He is also the FIR recorder. He proved the copy of FIR Ex.PW1/C and his endorsement on rukka is Ex.PW1/D. He also issued certificate u/s 65B of Indian Evidence Act which is Ex.PW1/E. He also deposed that SHO lodged DD no.4A Ex.PW1/F regarding depositing and counter sealing of the case property.
4. PW2 is Insp. Vivek Tyagi. He is the then SHO. He deposed that Duty officer came to him alongwith secret informer and DD no.17A and reported about the illegal supply and sale of ganja by one Shakaal and his associates. He enquired from the informer and called SI Deepak who proceeded on raid vide DD no.18A. He further deposed that later on at about 1.00 am, Ct. Praveen appeared and handed over six parcels sealed with the seal of GC 23 PS Geeta Colony East District alongwith carbon copy of seizure memo and FSL form and he put his seal of GC01 PS Geeta Colony East District on the said parcels and FSL form and also put FIR number on the parcels and documents and initials the same. He called MHCM HC Kiran Pal with register No.19 and deposited the case property in the malkhana and recorded DD no.4A. He further deposed that SI Rajender had submitted report u/s 57 NDPS Act copy of which is Ex.PW2/A. FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.5 of 26
5. PW3 is SI Deepak. He is the first IO. He organized the raiding party and conducted the raid. He apprehended the accused persons, served notices u/s 50 NDPS Act upon them. He checked the bags of accused which were found containing ganja. He effected the recovery of contraband from both the accused. He prepared the rukka and got the case registered. PW4 is HC Vinay. He is the witness of investigation. Seal after use was handed over to him. PW6 is Ct. Parveen. He is also the witness of investigation. He took rukka to PS and got the case registered. He handed over the case property to SHO for conducting the proceedings u/s 55 NDPS Act. PW7 is Ct.Sachin. He is also remained in the investigation. Thus, these are the witnesses of apprehension of accused and recovery of ganja effected in this case. All the witnesses have deposed more or less the same as stated in para '1' of the Judgment and therefore, the same is not being repeated for the sake of brevity.
6. PW5 is HC Kiranpal. He is the then MHCM. He made entries regarding deposit of case property in the malkhana vide entry no. 364 Ex.PW5/A. He also handed over two sealed parcels Mark A and C to Ct. Pradeep for depositing at FSL Rohini who took the same vide RC no.102/21 Ex.PW5/B. Acknowledgment is Ex.PW5/D.
7. PW8 is ASI Rajender. He is the IInd IO. He reached at the spot where accused alongwith documents of this case were FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.6 of 26 handed over to him. He prepared the site plan Ex.PW8/A. He arrested the accused vide memo Ex.PW4/A and conducted his personal search vide memo Ex.PW4/A1. He also arrested accused Tariq Ahmed vide arrest memo Ex.PW4/B and conducted his personal search vide memo Ex.PW4/B1. He deposited the jamatalashi articles of accused in the malkhana. He further deposed that on 25.07.2014, he prepared report u/s 57 NDPS Act which is Ex.PW2/A and submitted the same to SHO who forwarded the same to ACP. On 28.07.2014, both the accused were produced before the Court of Sh. Sanjay Sharma, Ld. ASJ and on the direction of the court case property was also produced which was also sealed with the seal of the Court and it was deposited in the malkhana. On 30.07.2014, the case property was got deposited in malkhana through Ct. Praveen. He obtained the FSL result Ex.PW8/B and placed the same on file. He got the proceedings u/s 52A NDPS Act done through Ld. MM. He identified the notices u/s 50 NDPS Act recovered during personal search of both the accused.
8. PW9 is Ms. Rashmi Sharma, the then ACP. She deposed that on 25.07.2014, Insp. Vivek Tyagi, the then SHO informed her telephonically that a secret information was received regarding supply of ganja and she directed the SHO to take action. She also deposed that on 26.07.2014, report u/s 57 NDPS Act prepared by ASI Rajender forwarded by Insp. Vivek Tyagi was received in the office which was placed before her by the Reader. FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.7 of 26 She signed the said report Ex.PW9/A.
9. PW10 is HC Kavinder. He produced the despatch register as per which, on 26.07.2014, report u/ 57 NDPS Act prepared by ASI Rajender, forwarded by Insp. Vivek Tyagi was received in the office and was diaried at sr.no. 2679 and then it was placed before ACP who had seen and signed the same. He deposed that the date of receipt of the said report has been inadvertently mentioned as 25.07.2014 whereas it is 26.07.2012. The copy of the entry is Ex.PW10/A.
10. Statements of accused persons u/s 313 Cr.P.C were recorded wherein accused Ram Avtar has stated that he is innocent. He has been falsely implicated in this case after lifting him from his house. His signatures were obtained by the police on some blank and semi written documents which were later on converted into the documents of this case. The reply of the notice u/s 50 NDPS Act was also forcefully got written by him. Nothing was recovered from him and whatever recovery has been shown, the same has been planted upon him by the police officials. Accused Tarikh Ahmad has stated that he has been falsely implicated in this case. He was working on the shop of Akbar Kabari at Rani Garden as labour on monthly remuneration of Rs.6500/ p.m. One day, police officials came to the shop and asked for Akbar Kabari who was not present at the shop at that time. At the relevnt time, he was eating food after FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.8 of 26 sitting on rehri. He was taken by the police officials to PS where he was falsely implicated in this case. He was told by the police officials that as soon as Akbar Kabari comes, he will be released. His thumb impressions were obtained by the police officials forcibly on some blank papers. Nothing has been recovered from him. Accused persons have not led any evidence in their defence.
11. Arguments have been heard from the Ld. Addl. PP as also from the Ld.Counsel for accused. Ld. Addl.PP has argued that the recovery witnesses examined by the prosecution have proved the recovery of 5 Kgs 200 grams from accused Ram Avtar and 3 Kgs 500 grams from accused Mohd. Tarikh Ahmad. All the relevant provisions of NDPS Act have been duly complied with. The witnesses have supported the prosecution case. FSL result confirms that the recovered substance was ganja. It is therefore, argued that the prosecution has been able to prove its case against the accused.
12. Ld. Counsel for accused argued that the case of the prosecution is false and fabricated. Accused Ram Avtar was lifted from his house and accused Mohd. Tarikh Ahmad was lifted from kabari shop and falsely implicated in this case. There is no compliance of Section 42 and 50 of NDPS Act in this case. Seizure memo bears the FIR number which suggest that documents were prepared after sitting in the PS. Ld. Counsel has drawn the attention on the entries made in register no.19 and stated that there is no FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.9 of 26 mention about seal of SHO. No public persons has been associated by the IO at the time of apprehension of accused persons and alleged recovery effected from them. Ld. Counsel has drawn the attention of the Court to the testimonies of all the police witnesses and stated that despite admission of the witnesses regarding availability of public witnesses at the spot, no effort was made to join them in the investigation. It is submitted that FSL form was not deposited in the Malkhana nor sent to FSL and thus, the tampering of case property cannot be ruled out. It is requested that accused persons may kindly be acquitted.
13. PW3 SI Deepak, PW4, HC Vinay, PW6 Ct. Praveen and PW7 Ct. Sachin are the witnesses of apprehension and recovery on which the prosecution case mainly rests. PW8 ASI Rajender is IInd IO. PW3 SI Deepak, who is the first Investigating Officer has deposed that on 24.07.2014, he was called by the SHO, he went there and SHO Insp. Vivek Tyagi told him about the secret informer who informed him that one person Shakaal would pass in between 9 p.m to 10 p.m through Ambedkar Park, Rani Garden with ganja and if raided, can be apprehended. The said information was lodged vide DD no.17A Ex.PW1/A. On the direction of SHO, he prepeared the raiding team comprising of himself, HC Vinay, Ct. Sachin, Ct. Praveen and secret informer. He lodged DD no.18A Ex.PW1/B and left the PS. After reaching at the spot he requested 45 public persons to join the raiding ream after briefing them but FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.10 of 26 none agreed and left the place without giving their names and addresses. He further deposed that at about 9.45 p.m., two persons were seen coming from the side of pushta road towards Ambedkar Park having pastic katta in their hands who were pointed out by the secret informer who told him that they were the persons about whom he had given information. Both the said persons were apprehended and on enquiry their names came to be known as Ram Avtar and Mohd. Tariq. They were informed about the information and that their search has to be conducted and that it was their legal right that their search can be conducted in the presence of Magistrate or a Gazetted Officer and arrangement for the same can be made but they refused. Notice u/s 50 NDPS Act Ex.PW3/A and Ex.PW3/C were served upon them and reply of accused Ram Avtar was written on the notice by him and reply of accused Mohd. Tariq was got written through accused Ram Avtar since accused Mohd. Tariq was illiterate. The replies are Ex.PW3/B and Ex.PW3/D. He further deposed that the bag from accused Ram Avtar and Mohd.Tariq were untied and on checking, the same were found containing ganja. On weighing, the ganja in the bag of Ram Avtar was found to be 5 Kg 200 grams and in the bag of Mohd.Tariq Ahmad was found to be 3 Kgs 500 grams. He has further deposed that two samples of 200 grams each were drawn from the bags recovered from both the accused and converted into sample pullandas and marked A,B, C and D and remaining ganjas were also converted into pullandas and given serial no.1 and 2. The case property was sealed with the seal FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.11 of 26 of GC23 PS Geeta Colony East District and the same were seized vide memo Ex.PW3/E. PW3 prepared the rukka Ex.PW3/F and handed over the same to Ct. Praveen alongwith parcels, FSL form and carbon copy of seizure memo. Case was got registered and parcels etc were handed over to SHO. After registration of the case ASI Rajender came at the spot. He prepared the site plan Ex.PW8/A. He arrested the accused persons, conducted their personal search. Report u/s 57 NDPS Act was prepared and submitted to SHO. Case property was sent to FSL. Similar is the deposition of PW4 HC Vinay.
14. In the present case, PW6 Ct. Praveen and PW7 Ct. Sachin are also the witnesses of investigation but both these witnesses have been declared hostile by the prosecution on some material points and cross examined by the Ld. Addl.PP. They have simply admitted the suggestions put by the Ld. Addl.PP during their cross examination after declaring them hostile.
15. In the present case, secret informer visited the PS and met PW1 HC Kadir Ahmed and passed on the information to him. PW1 HC Kadir Ahmed has deposed that a secret information was received that one person namely Shakal is involved in the supply of ganja alongwith his companions in Rani Garden and if raid be conducted, he could be apprehended. PW1 produced the secret informer before SHO. PW2 Insp.Vivek Tyagi is the then SHO FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.12 of 26 before whom the secret informer was produced alongwith DD no.17A. He enquired from the secret informer and then he called PW3 SI Deepak. PW3 SI Deepak went to the SHO room where SHO told him about the secret informer who was present there. The secret informer informed him that one person Shakal would come having ganja in his possession on that day in between 9 p.m to 10 p.m and would pass through Ambedkar Park, Rani Garden, if raided can be caught. PW3 informed about the secret information to PW4,6 and 7. DD no.17A Ex.PW1/A was recorded by PW1 HC Kadir regarding the information. Ex.PW1/A reads as under:
"Samay 2000 hours per darj hai ki ish samay mukhbir khas ne wahajir DO room aakar suchna di hai ki ek Shakal naam ka vyakti apne sathiyo ke saath milker ganja supply va bechne ka avaidh dhanda Rani Garden se ker raha hai, yadi raid ki jave toh ganje sahit pakda ja sakta hai ......"
16. Perusal of said information reveals that there is only mention that Shakal was doing the work of supply of illegal ganja from Rani Garden alongwith his associates. The information was not that he would come having ganja in his possession on that day in between 9 p.m to 10 p.m and would pass through Ambedkar Park, Rani Garden. Ex.PW1/A clearly show that there was no such information that accused would pass through Ambedkar Park. Be that as it may, PW3 has stated that secret informer informed him FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.13 of 26 that Shakaal would come having ganja in his possession, he did not state that accused Shakaal would come with his companion. He stated that the said information was lodged in DD no.17A. Perusal of said DD no.17A reveals that it does not find mention about passing of accused Shakaal through Ambedkar Park with ganja in between 9 p.m to 10 p.m. PW3 recorded DD No. 18A regarding departure from PS. The said DD also contains the information passed on to him. Evidence shows that only DD no.17 was produced before SHO by PW1 but the said DD does not disclose about the information that accused would pass through Ambedkar Park in between 9 p.m to 10 p.m. There is no evidence that DD no.18A was ever placed before SHO.
17. Ld. Defence Counsel has submitted that there is violation of Section 42 of NDPS Act in as much as PW3 SI Deepak did not record "Grounds of Belief" and sent to senior officials. Ld. Addl.PP, on the other hand has submitted that there is no violation of Section 42 NDPS Act because PW1 has received the secret information given to him by the secret informer and he placed DD no.17 before the SHO/ACP concerned.
18. The mandatory nature of the above requirement of law regarding recording of "Grounds of Belief" was explained in Karnail Singh Vs. State of Haryana VI (2009) 8 SCC 539 which FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.14 of 26 is as under: "In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature referred to in Subsection (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.15 of 26 it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total noncompliance of requirements of Subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or nonsending a copy of such information to the FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.16 of 26 official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
19. In the present case, secret information was received by PW1 HC Kadir Ahmad and appeared before SHO alongwith secret informer. However,the said DD no.17 Ex.PW1/A recorded by PW1 does not show as to at what time and at which place the accused would come. It only finds mention that accused is doing illegal work of selling ganja in Rani Garden. Another DD no.18A i.e. departure entry recorded by PW3 which also finds mention about the FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.17 of 26 information has never been sent to SHO or ACP. PW2 Insp. Vivek Tyagi, the then SHO has simply stated that SI Deepak proceeded for the raid vide DD no.18A around 8.30 p.m. He has no where stated that DD no.18A was also placed before him or that he forwarded the same to ACP concerned. PW2 has also not stated that he forwarded copy of DD no.17 to ACP. Prosecution has examined PW9 Rashmi Sharma, the the ACP but she has deposed that SHO informed her telephonically that a secret information was received regarding supply of ganja. She directed the SHO verbally to take necessary action in this regard. The testimony of PW9 clarifies that the information recorded vide DD no.17A or DD no.18A have not been sent to her but she was informed verbally. There is also contradiction in the statement of PW9 as PW9 ACP Rashmi Sharma stated that she was informed about the secret information on 25.07.2014 at about 8 p.m while the case of the prosecution is that information was received on 24.07.2014 at about 8 p.m. Even in cross examination, she admitted that in her statement dated is mentioned as 24.07.2014 has been mentioned inadvertently and the date 24.07.2014 is actually 25.07.2014. In view of the evidence available on record, this Court finds that the provision of Section 42 of NDPS Act have not been complied with in this case.
20. Ld. Counsel for the accused stated that the IO of this case has not associated any public witness in this case. However, Ld. Addl.PP stated that there is no need to associate any public FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.18 of 26 witness as the testimonies of police officials are straight forward regarding recovery of ganja from the accused. He submitted that testimonies of police officials cannot be disbelieved. Accused was apprehended on the basis of secret information. Admittedly, there is no public witness of recovery effected from the house in question and all the recovery witnesses are police officials. The place of apprehension as per site plan Ex.PW8/A is near Ambedkar Park, Rani Garden, Delhi. The time of apprehension of accused persons is 9.45 p.m. PW3 deposed that he requested 45 public persons to join the raiding team after briefing them but none agreed and left the place without giving their names and addresses. He also stated that HC Vinay and Ct. Sachin took their position in gali in front of the police booth. Thus, there was police booth near the place of apprehension as also since there was gali, it is crystal clear that there were residential houses near by that place. In cross examination, he has stated that he did not write down the names and addresses of the public persons who were requested to join the proceedings nor any action was taken against them. The spot is a road and public persons were passing through. PW4 HC Vinay has stated in cross examination that near the spot, there were shops and residential flats and houses. He admitted that the public persons were available at the spot. PW6 has stated that IO had not noted down the names of 4 5 persons who were requested tojoin the raiding party. He admitted that there are residential houses and flats near the spot and that the public persons were walking at the spot. No one was called from the FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.19 of 26 ppolice booth by the IO. PW7 Ct. Sachin has stated that there are residential houses near the gali in which he had taken the position. IO had not requested any public person from the said residential houses or shop to join the proceedings. Public persons were present in the park at that time. Testimonies of all the police officials shows that the spot is a busy place. It was about 9.00/9.30 p.m when the accused persons were apprehended. Many public persons used to pass through the spot and admittedly there were persons present in the park. It was a residential area. No public witness has been joined from the residential area to join the proceedings. IO even did not serve any notice to any of the residents. PW7 has clearly stated that IO had not requested any public person from the said residential houses or shop to join the proceedings. Accused persons were apprehended at about 9/9.30 p.m. There was enough time and opportunity to join the public persons during recovery of ganja. No notice was served to the passersby who refused to join nor any action taken against them on their refusal to join the investigation. Police officials reached at the place of recovery at about 9/9.30 pm and PW8 stated that he left the said place at about 3.30 a.m. Thus, the police team remained at the spot for more than five hours. During this long time, no one from the public was joined though place of apprehension is a residential area. Thus, it appears that no genuine effort was made to join the public persons in the raiding team. Ld. Addl.PP has referred to the decision of Ajmer Singh Vs. FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.20 of 26 State of Haryana, (2010) 3 SCC 746 arguing that failure to associate independent witnesses is not fatal to the prosecution case as long as it is shown that efforts were made and none was willing. However, it is seen that in the said decision, Hon'ble Supreme Court emphasized that it has to be shown that after making efforts the police official was not able to get the public witness associated in either raid or the arrest of the culprit. In other words, in every case, it will have to be examined whether serious efforts were made by the police to associate public witnesses.
21. The Hon'ble Supreme Court in Ritesh Chakraborty Vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150 deprecated the practice of Investigating Officer in not noting down the names of the public persons, who fail to join the investigation.
22. In Anup Joshi Vs. State, 1999 (2) CC Cases 314, and Roop Chand Vs. State of Haryana, 1999 (1) CLR 69; the failure to proceed against the public persons, who refused to join the investigation was considered as suggestive of the fact that the explanation for nonjoining of witnesses is an afterthought and is not worthy of credence.
23. In the case of Mohd. Masoom Vs. State of NCT of Delhi, Criminal Appeal 1404/11, decided by Hon'ble Delhi High FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.21 of 26 Court on 09.04.2015, the Hon'ble High Court in Para No. 10 held as under: "10. "Appellants" conviction is primarily based upon the testimonies of the police officers/officials only. Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of the police officials. Sometimes, it becomes highly difficult for the police officials to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of independent public witnesses is not a mere formality.
Simply saying by the police witnesses that public witnesses were not available without any evidence to that effect would not suffice.
The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits."
24. Hon'ble High Court in para '21' of the aforesaid Judgment held that it has become almost routine practice for the police to say that passersby were requested to join and they declined and went away without disclosing their names and therefore, the Court should be wary of routinely accepting such explanation.
FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.22 of 26
25. In the latest case of Om Prakash Vs. State III (2014) CCR 1 (Del.), it is held that 'in absence of clear evidence to show that sincere effort was made, Court should not simply accept proposition that generally in such cases no member of public comes forward to help prosecution'. Reliance also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.
26. In the present case, public persons were not made to join the proceedings at the time of recovery at the spot and there seems to be no genuine efforts to join them. Hence, nonjoining of public witnesses at the time of recovery creates doubt regarding the entire proceedings being genuine.
27. I have perused the seizure memo Ex.PW3/E. It was prepared by PW3 SI Deepak after recovery of alleged ganja. The FIR of the present case was registered after recovery and preparation of seizure memo by PW3. However, perusal of seizure memo Ex.PW3/E reveals that it bears the FIR Number with same pen. Seizure memo was prepared by SI Deepak before registration of FIR. When the FIR was registered after preparation of seizure memo, it is not understood as to how FIR number bears on the seizure memos. There is no explanation from the prosecution side in this respect. Bearing FIR number on the seizure memo of ganja FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.23 of 26 creates doubt about some manipulation in this case.
28. Ld. Counsel argued that form FSL was not deposited in the Malkhana in this case. PW2 Insp. Vivek Tyagi has stated that Ct. Praveen appeared before him and handed over six parcels sealed with the seal of GC23 PS Geeta Colony East District alongwith carbon copy of seizure memo and FSL form. He deposited the same in malkhana through HC Kiran Pal. PW5 HC Kiran Pal has stated that the case property alongwith FSL form was handed over to him and he made entry no. 364 Ex.PW5/A. The entry made register no.19 Ex.PW5/A reveals that it is a ditto copy of seizure memo. It does not finds mentioned as to seal of which nomenclature was affixed by SHO on the pullandas. It also does not finds mention about deposit of FSL form in the Malkhana. Samples were sent to FSL on 30.07.2014. The entry in register does not show that FSL form was deposited in the malkhana or sent to FSL alongwith the parcel. Copy of RC Ex.PW5/B also does not show that FSL form was sent to FSL. Even receipt Ex.PW5/C and FSL result Ex.PW8/B does not show that FSL form was received at FSL. FSL result only finds mention about receipt of two sealed cloth parcels. Thus, it is clear that FSL form was not sent to FSL with sample pullandas. In the case of Radha Kishna Vs. State, 87(2000) DLT 106, Hon'ble High Court has explained the importance of ensuring that the FSL form is duly sent with samples for testing. The above create doubt in the case of the prosecution.
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29. In the present case, PW3 has failed to associate any public witness during apprehension and recovery from the accused. The entry made by MHCM does not find mention about deposit of FSL form in the Malkhana. There is no entry in any document that FSL form was sent to FSL with case property. FSL result Ex.PW8/B also does not bears that FSL form was received in FSL office. Seizure memo bears the FIR number while the FIR was recorded after preparation of the said seizure memo. Information received from secret informer was not to the effect that accused would pass through Ambedkar Park, Rani Garden. It only states that accused used to sell illegal ganja in the area of Rani Bagh. However, PW3 IO/SI stated that secret informer informed him that accused would pass through Ambedkar Park, Rani Garden in between 9.00 p.m to 10.00 p.m. Most importantly, there is no compliance of section 42 of NDPS Act.
30. Serious punishments are prescribed under the NDPS Act and therefore stricter the punishment, stricter the mode of proof. In the case of Noor Agha Vs. State of Punjab & Anr. 2008 (3) JCC (Narcotics) 135, the Hon'ble Court held that in a case arising out of the provisions of NDPS Act the legislature has provided very stringent punishment. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the FIR No. 482/2014 State Vs. Ram Avtar @ Shakaal etc Page No.25 of 26 interest of society and protection of statutory safeguards available to the accused.
31. In the State of Punjab Vs. Baldev Singh (1999) 3 SCC 977, the Hon'ble Supreme Court held that it must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguard provided in statute are scrupulously followed.
32. In view of my aforesaid discussions, I find that the case of the prosecution is doubtful. It is well settled law that benefit of doubt is always given to the accused. Accused Ram Avtar @ Shakaal and Mohd. Tarikh Ahmad are accordingly acquitted. However, they shall furnish personal bonds in the sum of Rs.20,000/ each with a surety of the like amount u/s 437A Cr.P.C.
File be consigned to record room after the requisite bonds are furnished.
Digitally signed byAnnounced in the open AJAY AJAY GUPTA
Location:
Karkardooma Court
court on 14.01.2019. GUPTA Date: 2019.01.14
15:10:25 +0530
(AJAY GUPTA)
Addl. Sessions Judge02(East)
Special Judge (NDPS)
KKD COURTS, DELHI.
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