Delhi District Court
State vs Kirno Devi on 3 December, 2019
IN THE COURT OF SH. AJAY GUPTA, SPL. JUDGE (NDPS)/EAST
KARKARDOOMA COURTS, DELHI
SC No.2051/18
FIR No.301/18
U/s 21(b) of NDPS Act
PS Mayur Vihar
State Versus Kirno Devi
W/o Sh. Manohar Lal
R/o 32/180, Trilokpuri, Delhi
Date of Institution 06.10.2018
Arguments heard 22.11.2019
Date of order 03.12.2019
JUDGMENT
1. The prosecution case in brief is that on 09.08.2018 when SI Anuj Kumar alongwith HC Tej Singh and HC Manoj Tiwari were on Kanwar arrangement duty vide DD no.24B in the area of 34 Block, Sai Mandir, Trilokpuri, Delhi, at about 12.10 p.m., a secret informer came and informed SI Anuj Kumar that accused is selling smack near Central Park at chhapperwala makaan, 32 Blocks in the gali and if raided, huge quantity of smack may be recovered. The information was recorded on a paper and SHO was apprised about the said information. Duty Officer was informed and ASI Dinesh Tyagi and W/Ct Nirmala came at 34 Blocks in civil clothes. 45 passersby were requested to join the investigation but none agreed. Thereafter, raiding party was constituted comprising aforesaid staff and secret informer was also included in the FIR No.301/18 State vs Kirno Devi 1 of 26 raiding team. Thereafter, at about 12.50 pm, the raiding party alongwith secret informer reached at the spot. SI Anuj while standing by the side of wall in a gali in front of Central Park, saw that a lady was standing under the Chhapar (tin shape) in matmaila colour printed suitsalwar. Secret informer also pointed out towards the accused and thereafter he was relieved. Thereafter, ASI Dinesh Tyagi and W/Ct. Nirmala who were in civil cloths, were sent towards the said lady and when SI Anuj who was uniform came in front of said lady, she tried to run away, however, she was apprehended by W/Ct. Nirmala and ASI Dinesh Tyagi and on enquiry her name came to be known as Kirno w/o Sh. Manohar Lal. She was informed about the secret information and also apprised about her legal rights. Notice u/s 50 NDPS Act was served upon her and she was also given an option to be searched in the presence of Gazetted Officer/Magistrate and that she can also take the search of the police party but she refused for the same. ACP was informed who came at the spot. Thereafter, said lady was searched through W/Ct Nirmala and two bundles of 'Purias' tied with rubber band were recovered from under the bra of said lady. One lady purse containing cash Rs.1200/ was also taken into possession from possession of said lady. One bundle was found containing 20 purias and another was found containing 14 purias. The purias were opened and brown colour powder was found in the same. On smelling, it was found to be smack. All the purias were opened on one white colour paper and were weighed. On weighing, total weight was found to be 17 grams. Two samples of 22 grams each were drawn and the same were converted into pullandas. Remaining smack was also converted into a FIR No.301/18 State vs Kirno Devi 2 of 26 pullanda. All 34 empty purias and cash Rs.1200/ which was stated to be the sale proceed of smack, were kept in separate plastic polythenes and same were also converted into pullandas. All the pullandas were sealed with the seal of AK and taken into possession vide seizure memo. Sample pullandas were given Mark S1 and S2 and pullanda of remaining smack was given mark A and empty purias were given mark B and pullanda of recovered currency notes were given mark C. Form FSL was filled at the spot and it was also affixed with the same seal. Thereafter, SI Anuj prepared notice u/s 42.2 NDPS Act as well as rukka and handed over the same to HC Manoj Tiwari along with pullandas, FSL form, copy of seizure memo with the direction to hand over the rukka to Duty Officer and remaining articles to SHO. FIR was registered u/s 21/61/85 NDPS Act and further investigation was assigned to SI Sanjeev Kumar. Thereafter, SI Sanjeev Kumar came at the spot, prepared site plan at the instance of SI Anuj Kumar, accused was produced before the court from where she was sent to JC. Exhibits were sent to FSL. Pending receipt of FSL result, chargesheet was prepared against the accused u/s 21/61/85 of NDPS Act and filed before the court.
2. FSL result was filed on record. As per FSL result, exhibits S1 and S2 were found containing 'Diacetylmorphine', '6monoacetylmrphine', 'Acetylcodeine', 'Papaverine' and 'Caffeine'. After compliance of section 207 Cr.P.C., charge u/s 21(b) of NDPS Act was framed against the accused to which she pleaded not guilty.
3. In order to prove its case, prosecution examined thirteen witnesses.
FIR No.301/18 State vs Kirno Devi 3 of 26 (3.1) PW1 ASI Dinesh Tyagi, PW2 W/Ct. Nirmala, PW7 HC Tej Singh and PW10 HC Manoj Tiwari are the members of raiding team/recovery witnesses. These witnesses have deposed more or less as discussed in 1st para of the order.
(3.2) PW3 W/Ct. Puri Demin is the DD writer, who deposed that on 09.08.2018 at about 11.35 hours, she lodged DD No.24B regarding departure of SI Anuj Kumar, HC Tej Singh and HC Manoj Kumar for Kanwar arrangement duty in 34 Block Mandir, Trilokpuri, Delhi. Copy of the said DD is Ex.PW3/A. PW3 further deposed that at about 12.16 hours, SI Anuj Kumar telephonically informed her about receipt of information that one lady was selling smack in purias at 32 Block, Trilokpuri near Central Park, Delhi and requested to send some lady constable. PW3 informed about the said information to SHO and ASI Dinesh Tyagi and W/Ct. Nirmala were sent to spot and said information was recorded vide DD No.28B. Copy of the said DD is Ex.PW3/B. (3.3) PW4 is HC Narender who deposited the sample parcels with FSL Rohini.
(3.4) PW5 is ASI Attar Singh who lodged present FIR, copy of which is Ex.PW5/A. (3.5) PW6 is HC Ajay Kumar, the MHCM who deposed that on 09.08.2018, PW8 Inspector Manoj Kumar Sharma, the then SHO called him in his office along with register no.19 and handed over five sealed parcels sealed with the seal of MKS and AKS along with carbon copy of seizure memo and FSL form and he deposited the same in Malkhana FIR No.301/18 State vs Kirno Devi 4 of 26 and made relevant entry at sl. no. 2559 in register no.19 which was also initialed by SHO. Copy of the relevant entry is Ex.PW6/A. PW6 further deposed that on the same day, PW13 SI Sanjeev handed over personal search articles of accused which was also deposited by him in the Malkhana and relevant entry at sl. no.2560 was made. Copy of said entry is Ex.PW6/B. PW6 also deposed that on 23.08.2018, on the direction of IO, he handed over two sealed parcels Mark S1 and S2 along with FSL form and necessary documents to PW4 HC Narender for depositing the same at FSL Rohini and PW4 deposited the same vide RC No.132/21/18 copy of which is Ex.PW6/C and copy of receipt is Ex.PW6/D. (3.6) PW8 is Inspector Manoj Kumar Sharma who deposed that on 09.08.2018, at about 12.20 pm, PW9 SI Anuj Kumar informed him about receipt of secret information regarding selling of smack by accused upon which he directed PW9 to take necessary action. PW8 further deposed that at about 3.45 pm, PW10 HC Manoj Tiwari came to his office and produced five sealed pullandas along with FSL form, carbon copy of seizure memo and notice u/s 42.2 NDPS Act. Thereafter, he put his seal of MKS on the parcels and FSL form and said parcels and documents were deposited in Malkhana through PW6/MHCM. PW8 further deposed that on 09.08.2018, the notice u/s 42.2 NDPS Act which was forwarded to ACP concerned. Copy of the said notice is Ex.PW8/A. PW8 further deposed that on 10.08.2018, PW13 SI Sanjeev Kumar produced report u/s 57 NDPS Act which was forwarded to ACP concerned. Copy of the same is Ex.PW8/B. FIR No.301/18 State vs Kirno Devi 5 of 26 (3.7) PW9 is SI Anuj Kumar, the IO of the case. This witness has also deposed more or less on the lines of 1st para of the order.
(3.8) PW11 is ACP Shobhit Saksena who deposed that on 09.08.2018, SI Anuj Kumar (PW9) and SHO PS Mayur Vihar informed him about apprehension of a lady near central park H.No.32/180 Trilokpuri. Thereafter, he reached at the spot at about 1.10 p.m where PW9, PW2 W/Ct. Nirmala alongwith other police officials and accused was present and PW9 apprised him about the facts. PW12 further deposed that he the accused was personally searched through PW2 W/Ct. Nirmala who produced two bundles tied with rubber band which were recovered from under bra of accused and one purse was also recovered from her hand. Both the bundles were checked. One bundle was found containing 20 purias while another bundle was containing 14 purias. From both the bundles, two purias each were opened and found containing black colour powder which was checked and on smelling, it was found to be smack. The purse was also checked and it was found containing 1200 in cash which was sale proceeds of the smack. Thereafter, all the 34 purias were opened and smack contained therein were taken on plain paper and in the meantime, HC Tej Singh was directed to bring electronic scale from the nearby market and he brought the same. Thereafter, the said recovered smack was weighed and its weight was found to be 17 grams. Two samples of 2 grams each from the recovered heroin were drawn and same were kept in two separate plastic polythenes which were converted into cloth parcels and were given mark S1 and S2. Remaining smack was kept in a separate FIR No.301/18 State vs Kirno Devi 6 of 26 polythene, converted into cloth parcel and was given Mark A. 34 plain papers used for making purias were also converted into a cloth parcel and it was given Mark B. The purse containing Rs.1200/ was also converted into cloth parcel and it was given Mark C. SI Anuj sealed the parcels with the seal of AK and had also filled up the form FSL and it was also affixed with the same seal and thereafter, all the parcels and FSL form were taken into possession vide seizure memo Ex.PW1/B. (3.9) PW12 is ASI Rajiv, reader to ACP. This witness deposed that on 09.08.2018, information u/s 42.2 NDPS Act (Ex.PW12/A) was received in his office which was diaried by him at sl. no.3707 and was produced before ACP/PW11 who signed the same. Copy of relevant entry is Ex.PW12/B. PW12 also deposed that on 10.08.2018, report u/s 57 NDPS Act (Ex.PW12/C) was received in the office which was also diaried by him at sl. no.3726 and was produced before PW11 who signed the same. Copy of said entry is Ex.PW12/D. (3.10) PW13 is SI Sanjeev Kumar, the second IO of the case. This witness deposed that on 09.08.2018, at about 04:15 pm, while he was present in police station, duty officer handed over copy of FIR and original rukka to him as further investigation was assigned to him. Thereafter, he alongwith PW10 HC Manoj Tiwari reached the spot where SI Anuj Kumar, ASI Dinesh Tyagi, HC Tej Singh, W/Ct. Nirmala along with accused were found there. SI Anuj Kumar apprised him regarding the case and handed over documents and custody of the accused. Thereafter, he prepared site plan Ex.PW13/A at the instance of SI Anuj Kumar, arrested accused vide memo Ex.PW1/C, recorded FIR No.301/18 State vs Kirno Devi 7 of 26 disclosure statement of accused Ex.PW1/D and notice u/s 50 of NDPS Act Ex.P6 was recovered in her personal search. Thereafter, accused was brought to PS. She was got medically examined and produced before duty magistrate from where she was sent to JC. On 23.08.2018, samples were got deposited in FSL, Rohini through HC Narender. After completing the investigation, chargesheet was submitted in the court. Report u/s 57 NDPS Act Ex.PW12/C was prepared and sent to officer concerned. On receipts, FSL result Ex.PW13/B was submitted in the court.
4. Statement of accused u/s 313 Cr.P.C was recorded wherein she pleaded her innocence and stated that she has been falsely implicated in this case. Nothing was recovered her possession and her thumb impressions were obtained on blank papers.
5. 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 PW1 ASI Dinesh Tyagi, PW2 W/Ct. Nirmala, PW7 HC Tej Singh and PW10 HC Manoj Tiwari examined by the prosecution have proved the recovery of smack from the possession of accused. 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 smack. Thus, it is argued that the prosecution has been able to prove its case against the accused and therefore, he may be convicted.
6. Ld. Counsel for the accused, on the other hand, argued that the FIR No.301/18 State vs Kirno Devi 8 of 26 accused has been falsely implicated in the present case and nothing was recovered from the possession of the accused and the contraband has been planted upon her. It is also argued that the spot is a public place and admittedly public persons were passing through the spot but no public person has been associated by the IO at the time of apprehension of accused and alleged recovery. Preparation of notice u/s 50 NDPS Act at the spot and its service to accused is highly doubtful. Ld. Counsel submitted that the raiding team members stated that the accused was given an option to have her search conducted in the presence of a Gazetted Officer and accused has refused but the refusal of the accused has not been proved on record as her refusal has not been mentioned on the notice u/s 50 NDPS Act and signed by the accused. Ld. Counsel further submitted that in this case, the parcel of the contraband Mark A has been tampered with as raiding team members deposed that the remaining smack was kept in the transparent polythene and then converted into a cloth parcel but when the said parcel was produced and opened before the court, smack was found kept in a paper puria. He also submits that the documents i.e. seizure memo as well as notice u/s 50 NDPS Act bear the FIR number though these documents were prepared prior to registration of FIR. Thus, it is prayed that accused may be acquitted.
7. PW1 ASI Dinesh Tyagi, PW2 W/Ct. Nirmala, PW7 HC Tej Singh and PW10 HC Manoj Tiwari are the witnesses of recovery on which the prosecution case mainly rests. PW9 SI Anuj Kumar is the 1st IO who was heading the raiding team. PW13 SI Sanjeev Kumar is the second FIR No.301/18 State vs Kirno Devi 9 of 26 IO to whom the further investigation was entrusted. PW7, PW9 and PW10 deposed that on 09.08.2018, at about 12.10 pm, when they were in arrangement duty of Kanwar vide DD No.24B in the area at 34 Block near Sai Mandir, Trilokpuri, Delhi, one secret informer came and informed PW9 that one aged lady was selling smack in purias at 32 Block Trilokpuri near Central Park in the gali in front of Chhapparwala/tin house. PW9 noted down the information on a plain paper in compliance of section 42.2 of NDPS Act vide Ex.PW8/A and informed the SHO telephonically about the same. The witnesses further deposed that on the direction of SHO, he informed the Duty Officer and requested to send some police officers including lady constable and after some time ASI Dinesh Tyagi and W/Ct. Nirmala came in civil cloths and met him. PW1, PW2, PW7, PW9 and PW10 deposed that PW9 requested 45 passersby after briefing them about the information, to join the raiding team but none agreed and they left the spot. Thereafter, PW9 prepared a raiding team comprising secret informer and aforesaid police staff and at about 12.50 pm, they reached near Central Park, 32 Block, Trilokpuri, Delhi and took position in the gali ahead of the park by the side of the wall. The witnesses deposed that PW9 saw in the gali that one aged lady i.e. accused wearing matmaila colour suitsalwar was standing under the chhappar (iron tin) towards whom the secret informer pointed out and left the spot. The said lady was selling smack in purias there. Thereafter, PW9 directed PW1 ASI Dinesh Tyagi and PW2 W/Ct. Nirmala to go to the accused and when he (PW9) along with other raiding team members who were in uniform, came in front of the accused, she started running from there. Accused FIR No.301/18 State vs Kirno Devi 10 of 26 was apprehended by PW1 ASI Dinesh Tyagi with the help of PW1 W/Ct. Nirmala and her name was known as Kirno. The witnesses deposed that accused was told about secret information that she was selling smack in purias to persons there and she might be in possession of smack and in this regard her search was to be conducted and it was her legal right that she may be searched in the presence of Gazetted Officer or Magistrate or that she can take search of any of the raiding team members prior to her search if she so desired but she refused for the same. Then he prepared notice u/s 50 NDPS Act and original notice was given to the accused who put her signature on the copy notice Ex.PW1/A at point B. Thereafter, PW9 informed PW11/ACP and requested him to reach the spot and after sometime, PW9 reached the spot. PW9 briefed the ACP and on the direction of PW11, PW2 W/Ct. Nirmala conducted personal search of accused by the side of a wall and in personal search of accused, two bundles tied with rubber band were recovered under the bra of accused. One purse was also recovered from the possession of accused. The recovery witnesses further deposed that on checking, one bundle was found containing 20 purias and the other bundle was found containing 14 purias. From both the bundles, two purias each were opened and same were found containing black colour powder which was checked and smelled by him it was found to be smack. The purse was also checked and it was found containing 1200 in cash which was stated to be sale proceeds of the smack. Thereafter, all the 34 purias were opened and smack contained therein were taken on plain paper and in the meantime, PW7 HC Tej Singh was directed to bring electronic scale from the nearby market and FIR No.301/18 State vs Kirno Devi 11 of 26 he brought the same. The witnesses further deposed that the recovered smack was weighed and its weight was found to be 17 grams. Two samples of 2 grams each from the recovered heroin were drawn and same were kept in two separate plastic polythenes which were converted into cloth parcels and were given mark S1 and S2. Pullanda of remaining smack was kept in a separate polythene, converted into cloth parcel and was given Mark A. 34 plain papers used for making purias were also converted into a cloth parcel and it was given Mark B. The purse containing Rs.1200/ was also converted into cloth parcel and it was given Mark C. Form FSL was filled. All the parcels and FSL form were sealed with the seal of AK and same were taken into possession vide seizure memo Ex.PW1/B. The witness further deposed that PW9 prepared rukka Ex.PW9/A and handed over to PW10 HC Manoj Tiwari along with all the parcels, copy of seizure memo, FSL form and notice u/s 42.2 NDPS Act with the direction to produce the rukka to DO for registration of FIR and remaining articles to SHO for necessary action. The witnesses further deposed that after sometime, PW13 SI Sanjeev along with PW10 HC Manoj Tiwari came at the spot. PW9 briefed the PW13 and handed over all the documents along with accused to him. The witnesses further deposed that PW13 interrogated the accused, prepared site plan Ex.PW13/A at the instance of PW9, arrested accused vide arrest memo Ex.PW1/C and recorded her disclosure statement Ex.PW1/D and in personal search of accused notice original notice u/s 50 NDPS Act Ex.P6 was recovered.
8. As per prosecution case, on 09.08.2018 at about 1.20 pm, near Central FIR No.301/18 State vs Kirno Devi 12 of 26 Park in front of Chhapparwala makaan no.32/80, Trilokpuri, Delhi, accused was found in possession of 17 grams smack. Thus, the prosecution was required to establish the same beyond reasonable doubt. However, perusal of testimony of prosecution witnesses reflects several material contradictions in their statement made before the court.
9. The seizure of the contraband at the spot from the possession of the accused and conducting of proceedings after apprehension of the accused at the spot appear to be very doubtful. As per PW7 HC Tej Singh, PW9 SI Anuj and PW10 HC Manoj Tiwari, they were on arrangement duty of Kanwar on 09.08.2018 in the area of 34 Block near Sai Mandir, Trilokpuri, Delhi and in this regard PW3 W/Ct. Puri Demin brought on record copy of DD No.24B as Ex.PW3/A. However, this document appears to be not reliable because in her statement PW3 deposed that at about 11.35 hours she had lodged DD No.24B vide which PW7, PW9 and PW10 departed for Kawanr arrangement duty in 34 Block Mandir, Trilokpuri, Delhi but from the DD Ex.PW3/A it is not clear as to at what time said DD was lodged by PW3. PW7, PW9 and PW10 also did not disclose as to when they left the PS for Kanwar arrangement duty. In their statement, PW7, PW9 and PW9 simply stated that on 09.08.2018, they were Kanwar arrangement duty in the area of 34 blocks and PW at about 12.20 pm, secret informer informed PW9 SI Anuj that accused was selling smack in purias at 32 blocks. It is not clear from said DD Ex.PW3/A as to what was the mode of transportation used by PW7, PW9 and PW10 and as to what arms and ammunition, IO kit/bag etc were carried out by PW10.
FIR No.301/18 State vs Kirno Devi 13 of 26
10.Apprehension of accused, service of notice u/s 50 NDPS Act, arrival of ACP/PW11 and conducting of proceedings in presence of PW11 also appears to be highly doubtful. As per PW7, PW9 and PW10 when they were on Kanwar arrangement duty, at about 12.10 pm, one secret informer informed PW9 SI Anuj Kumar about selling of smack by accused in purais in 32 blocks, Trilokpuri, Delhi. Thereafter, PW9 noted said information in compliance of section 42.2 NDPS Act Ex.PW8/A and telephonically informed about the said information to SHO/PW8 Inspector Manoj Kumar Sharma who directed to take necessary action. Thereafter, PW9 informed the Duty Officer and requested him to send some police official and lady staff. Thereafter, PW1 ASI Dinesh Tyagi (then HC) and PW2 W/Ct. Nirmala came in civil cloths and met PW9. Thereafter, PW9 constituted raiding party comprising aforesaid staff and secret informer and at about 12.50 pm they reached near Central Park, 32 Blocks, Trilokpuri, Delhi where accused was apprehended at the instance of secret informer. As per PW9, after apprehension of accused, he prepared notice u/s 50 NDPS Act and gave original notice to accused and also telephonically informed PW11/ACP and requested him to reach at the spot. However, in his evidence, PW11 deposed that on 09.08.2018 when he was present in his office, PW9 and SHO PS Mayur Vihar informed him about apprehension of accused while SHO/PW8 Inspector Manoj Kumar Sharma is silent on this aspect and he has nowhere stated in his statement that he had informed PW11/ACP about the apprehension of the accused with alleged contraband. Further, from the statement of PW9 and PW11 it is not clear as to when PW9 informed PW11 about the apprehension of FIR No.301/18 State vs Kirno Devi 14 of 26 accused with alleged contraband. PW11 has nowhere stated the time when he was informed by PW9 about apprehension of accused. All these facts clearly show that either statements of PW8, PW9 and PW11 are incorrect or PW9 never informed PW11 about the apprehension of accused at the spot.
11.In his statement, PW9 deposed that after apprehension of accused, he was apprised about his legal right but she refused to exercise her legal right and thereafter, PW9 prepared a notice u/s 50 NDPS Act and original notice was given to accused and PW11/ACP was informed and he was also requested to reach at the spot. After sometime, ACP/PW11 reached at the spot and thereafter, accused was searched by PW2 and remaining proceedings were conducted in presence of PW11. The Ex.P6 is original notice u/s 50 NDPS Act which was given to accused and Ex.PW1/A is carbon copy of notice. As per PW1, PW2, PW7, PW9 and PW10, notice u/s 50 NDPS Act Ex.P6 and its carbon copy Ex.PW1/A were prepared at the spot by PW9, however, both these documents witnessed by only one witness i.e. PW2 W/Ct. Nirmala and signatures of other witnesses were not obtained on the said notice. It is not explained as to why PW1, PW7 and PW10 did not sign the notice. Furthermore, there is overwriting at point X on the both the notices and same has not been initialed by PW9. Furthermore, as per these witnesses, accused was apprised that it was her legal right that she can be searched in presence of Gazetted Officer or Magistrate but accused refused for the same and her reply was written on carbon copy of notice Ex.PW1/A, however, no such reply is available on the carbon copy of FIR No.301/18 State vs Kirno Devi 15 of 26 notice Ex.PW1/A. The document Ex.PW1/A i.e. carbon copy of notice u/s 50 NDPS Act bear signatures of accused at point B and no reply of accused is there. All these facts create doubt about service of notice u/s 50 NDPS Act by PW9 at the spot in presence of aforesaid witnesses. In such circumstances, it is held that compliance of notice u/s 50 NDPS Act is not duly proved.
12.Registration of FIR Ex.PW5/A is also appears to be doubtful. In his PW5 ASI Attar Singh Yadav, the Duty Officer deposed that at about 3.30 pm, PW10 HC Manoj Tiwari brought rukka of this case before him and he got registered FIR No.301/18 Ex.PW5/A. PW5 also deposed he made endorsement Ex.PW5/B, issued certificate u/s 65B of Indian Evidence Act Ex.PW5/C and also made a kayami entry vide DD No.25A. However, this certificate is not reliable as it bears different FIR number i.e. 103/18 while the FIR number of the present case is 301/18. From the document/certificate Ex.PW5/C, it appears that this document was issued in a routine manner because it is semi printed document blank space meant for FIR number, date etc was filled later which shows that it not reliable as it bears FIR No.103/18 while the actual FIR number of this case is 301/18. Thus, it appears that present FIR was already registered and certificate Ex.PW5/C was issued later on. This certificate also does not bear the date and time when it was issued. Thus, the certificate Ex.PW5/C is not reliable.
13.The entry made by MHCM in the register no.19 regarding deposit of sample pullanda and documents also appear to be highly doubtful. PW6 HC Ajay, the MHCM deposed that on 09.08.2018, PW8/SHO called him FIR No.301/18 State vs Kirno Devi 16 of 26 in his office along with register no.19 and handed over five sealed parcels sealed with the seal of MKS and AKS along with carbon copy of seizure memo and FSL. PW6 further deposed that he deposited the pullandas and aforesaid articles in Malkhana and made relevant entry at sl. no.2559 in register no.19. Copy of the said entry is brought on record as Ex.PW6/A. Though, the entry Ex.PW6/A bear the name of PW8/SHO Inspector Manoj Kumar Sharma in the column no.3 meant for depositor's name, however, it does not bear the signature of PW8. Bare perusal of the entry Ex.PW6/A further shows that this entry is merely a repetition of the contents of seizure memo and it doesn't mention about the deposit of any pullanda, FSL form and copy of seizure memo. There is no mention that PW8 had put his seal of 'MKS' on the pullandas and then deposited the same with the MHCM. There is no discussion that FSL form was deposited with the MHCM and same was sent to FSL for authentication of seal. It is not mentioned either in the register no.19 or in the road certificate that FSL form was deposited and sent to FSL. It is also clear from the copy of RC Ex.PW6/C and acknowledgement receipt Ex.PW6/D that FSL form and sample were not sent to FSL for authentication of seal. It is well settled law that in case FSL form is not deposited in the Malkhana or with the FSL, the case of the prosecution will be highly doubtful. In the case of Radha Kishna Vs. State, 87(2000) DLT 106, the Hon'ble High Court has explained the importance of ensuring that the FSL form is duly sent with sample for testing. In para '26' of the Judgment, it was explained : "It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central Forensic FIR No.301/18 State vs Kirno Devi 17 of 26 Science Laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instance case, this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/police station".
In Radha Kishan, after referring to Delhi High Court Rules, Part III Chapter 18B, regarding proper proof of custody of articles, it was held by this Court that the evidence of preparation and dispatch of the FSL form was critical for ensuring that the sealed sample was kept intact in the police malkhana. An adverse inference would be drawn against the prosecution in the event the FSL form was not proved to have been prepared and dispatched. To the same effect are the judgments in Moolchand and Phool Kumar. Further, it has been held in Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT 577, that oral evidence which is contrary to the documentary evidence ought not to be relied upon. In the instant case, despite the prosecution witnesses asserting that the FSL form was prepared, not only is the FSL form unavailable on the record but the photocopies of the store room register and road certificate throw considerable doubts whether the FSL form was in fact prepared and dispatched. These documents are unreliable. For the above reasons, it is held that in the instant FIR No.301/18 State vs Kirno Devi 18 of 26 case the noncompliance with the mandatory requirement of preparation and dispatch of the FSL form with the sample sent for testing is fatal to the case of the prosecution."
14. In the present case recovery was effected on 09.08.2018. However, samples were sent to FSL on 23.08.2918. The samples were sent to FSL after about 13 days. Hon'ble High Court in the case of Matlub Vs. State 67(1997) DLT 372 held that sample needs to be sent to FSL without delay and if samples are dispatched with delay and no explanation is given, tampering with the seal can be inferred. IO has not explained the reason of delay in sending the exhibits to FSL. As per PW9, seal after use was handed over to PW7. PW9 deposed that he had received his seal back on the next day, however, PW7 HC Tej Singh is silent on this point and he has nowhere stated in his statement that seal after use was handed over to him. Thus, preparation of handing over/taking over memo of seal was necessary but PW9 has clearly stated that he did not prepare any handing over or taking over memo of seal. In such circumstances, the testimony of PW9 qua handing over of seal and taking back the same is not reliable. If version of PW9 is relied then it is clear that the seal was returned by PW7 before sending the samples to FSL. Thus, handing/taking over memo of seal is imperative to ascertain as to on which date seal was handed over and same was taken back. However, it is clear from the statements of PW9 and PW7 that no handing/taking over memo was prepared by PW9. In these circumstances, the delay in sending the case property to FSL without any valid reason, creates doubt over the handling of sample and chances of tampering of the sample parcels cannot be FIR No.301/18 State vs Kirno Devi 19 of 26 ruled out.
15. Further, as per PW1, PW2, PW7 and PW9, the contraband was kept by the accused in a polythene and after drawing two samples from the contraband recovered from the accused, the remaining contraband was again kept in the said polythene and the same was converted into a cloth pullanda which was given Mark A. However, when Mark A was produced before the court during evidence, this parcel was found containing the smack in paper puria and not in the polythene. Thus, under these circumstances, the tampering of case property cannot be ruled out.
16.Furthermore, as per recovery witnesses, the seizure memo Ex.PW1/B was prepared at the spot prior to registration of FIR. However, perusal of this document clearly shows that it bears FIR number. Though, PW1 ASI Dinesh Tyagi (then HC) deposed that the FIR number and sections were written subsequently on Ex.PW1/A and Ex.PW1/B, however, he has not disclosed as to who wrote the said particulars on these documents. PW9 SI Anuj Kumar who prepared the document Ex.PW1/B did not depose anything on this aspect. Similarly, PW13 SI Sanjeev, the second IO also did not depose anywhere that he put FIR number on the seizure memo Ex.PW1/B. As per PW13, after registration of case, he along with HC Manoj Tiwari reached the spot, recorded statement of PW9, arrested accused, recorded her disclosure statement and brought the accused to PS where he recorded statement of PW11/ACP and accused was got medically examined. In his crossexamination, PW13 deposed that DO handed him over certificate u/s 65B of Indian FIR No.301/18 State vs Kirno Devi 20 of 26 Evidence Act and he had written the FIR number on the said certificate and he has no where stated that he put FIR number on seizure memo Ex.PW1/B. Site plan Ex.PW13/A which was alleged to have been prepared at the spot also do not reflect clear digit of FIR number and in his crossexamination, PW13 admitted that the pattern of numerical number of '1' is diffrent at point X on Ex.PW13/A. Thus, it appears that either FIR was already registered prior to apprehension of accused and FIR number was filled on the seizure memo later on or that the testimony of recovery witnesses that the contraband was seized at the spot from the possession of accused is incorrect. All these facts go to the root of the case and creates heavy doubt regarding the veracity of the prosecution case qua search and seizure of the alleged contraband at the spot.
17.It is held by the Hon'ble High Court in the case reported as Giri Raj vs State 2000(83) DLT 201 that the prosecution case becomes highly doubtful, in case the document which were prepared prior to registration of FIR, bears the FIR number. Relevant para of the judgment reads under: "It needs to be highlighted that the rukka (Ex.PW7/A) recites that the alleged contraband was seized at 6.10 P.M. and the rukka was dispatched from the spot at 7.30 P.M. The FIR (Ex.PW2/A) shows that the same was registered at the police station at 7.40 P.M. Surprisingly, the appellant's personal search memo (Ex.PW4/B) and the seizure memo (Ex.PW4/A) bear the number of the FIR (Ex.PW2/A). The number of the FIR (Ex.PW2/A) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation FIR No.301/18 State vs Kirno Devi 21 of 26 whatsoever as to under what circumstances number of the FIR Ex.PW2/A had appeared on the top of the said documents, which were allegedly prepared on the spot before its registration. This gives rise to two inferences that either the FIR (Ex.PW2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant."
In the instant case also, it appears that the documents were prepared after registration of the FIR and in view of the settled law, the case of the prosecution becomes highly doubtful under these circumstances.
18.The prosecution has to travel the distance from 'may have' to 'must have' through the testimony of prosecution witnesses beyond reasonable doubt. However, the picture emerges from the aforesaid discussions, clearly indicate that the testimony of recovery witnesses are not in consistent with each other. Even their testimony on some material aspect is not in consonance with the documents like seizure memo, site plan and certificate u/s 65B of Indian Evidence Act, filed alongwith chargesheet. All these facts create doubt as to the veracity of prosecution case qua recovery of alleged contraband from the possession of the accused at the spot.
19.Ld. Defence Counsel stated that the IO of this case has not associated any public witness in this case. Ld. Addl. PP submitted that there is no need to associate any public witness as the testimonies of police FIR No.301/18 State vs Kirno Devi 22 of 26 officials are straight forward regarding recovery of smack from the accused. As per prosecution case, accused was apprehended on 09.08.2018 at about 1.20 pm near Central Park, in front of Chhapparwala Makaan no.32/180, Trilokpuri, Delhi. Admittedly, the place of apprehension of accused is a residential area and public persons were passing through there. From the statement of PW9 and PW13, it is clear that they did not make sincere effort to join public person before or after recovery of the alleged contraband despite having ample opportunity to do so. Admittedly, PW9 did not serve any notice to any person for nonjoining the investigation. Testimonies of all the raiding party members show that the spot is a busy place. Many public persons used to pass through the same, it being a residential area. There was enough time and opportunity to include the public persons in the raiding team. Neither any notice was served upon the public persons nor any action was taken against them on their refusal to join the investigation. 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. 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, in the said case, 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 either in 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 FIR No.301/18 State vs Kirno Devi 23 of 26 associate public witnesses.
20.In the case of Mohd. Masoom Vs. State of NCT of Delhi, Criminal Appeal 1404/11, decided by Hon'ble Delhi High 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."
21.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 is also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.
22.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 FIR No.301/18 State vs Kirno Devi 24 of 26 at the time of recovery creates doubt regarding the entire proceedings being genuine.
23. 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 interest of society and protection of statutory safeguards available to the accused.
24. 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.
25. It is relevant to mention at this stage that it is necessary for the prosecution to prove its case beyond reasonable doubt as held by the Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103.
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
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26. In view of the aforesaid discussions, the case of the prosecution is highly doubtful. It is well settled law that benefit of doubt is always given to the accused. Accused Kirno Devi is accordingly acquitted. However, she is directed to furnish a personal bond u/s 437A Cr.P.C. in the sum of Rs.10,000/ with one surety of the like amount. File be consigned to record room after the requisite bond is furnished.Digitally signed
AJAY by AJAY GUPTA
Location: Delhi
GUPTA Date: 2019.12.03
16:34:11 +0530
(Ajay Gupta)
Special Judge(NDPS)
KKD/East/Delhi
Announced in open
court on 03.12.2019
FIR No.301/18 State vs Kirno Devi 26 of 26