Delhi District Court
State vs . Kulwant Singh Etc. on 26 July, 2013
1
IN THE COURT OF DIG VINAY SINGH
SPECIAL JUDGE : NDPS : ROHINI COURTS : DELHI
In the matter of : SC no. 20/08
FIR no. 117/07
State Vs. Kulwant Singh etc.
PS Bindapur
U/s 20/61/85 NDPS Act
State
Versus
1. Kulwant Singh @ Goldy
S/o Sh.Sukhdev Singh
R/o B413 ke samne,
Tilak Nagar, Delhi.
2. Pawan Yadav
S/o Sh.Jagdish Yadav
R/o H.No. 312, Ward no.11,
Mohalla Bhatti Gali, Near P.S,
City Jhajjar (Haryana).
Date of receipt : 12.02.2008
Date of arguments : 26.07.2013
Date of announcement : 26.07.2013
JUDGMENT
1. The above named two accused were sent up for trial along with one SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 1 of 43 2 more accused, namely Durga Singh, but since accused Durga Singh stopped appearing in the matter and against him proclamation proceedings were going on, vide order dated 19.07.2012, my Ld. Predecessor Court separated trial of accused Durga Singh.
2. The facts of the case are that on 14.02.2007 at about 8.00 PM, ASI Shiv Kumar along with other police officials were routinely checking vehicles, near Himalaya Sagar restaurant, Pali Factory, near Ganda Nala, Bindapur, Delhi. They noticed one Hyundai Accent Car which was not having any number plate on the front side. It was stopped. On being enquired, the driver of the car, i.e. accused Pawan Yadav, could not produce documents of registration etc. On suspicion, one bag kept between the front two seats of the car was checked. The said bag was found to be containing 10 Kg 200 Gm Ganja. At that time, accused Kulwant Singh was sitting on the rear seat of the car and accused Durga was sitting on the front passenger seat of the car. Out of the recovered Ganja, sample was drawn and was sent to the FSL lab. FSL result also confirmed the material to be Ganja.
SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 2 of 43 3
3. Accordingly, a charge U/s 20 and 29 of NDPS Act was framed against all the three accused to which they pleaded not guilty and claimed trial. (At that time, accused Durga Singh was also facing trial, but he subsequently stopped appearing in the matter.)
4. In support of its case, prosecution examined total ten witnesses. 4.1. Out of the ten prosecution witnesses, PW2 HC Dilbagh Singh, PW6 Ct. Surjeet, PW7 ASI Shiv Kumar and PW8 Ct. Devender are the recovery witnesses. It is deposed by these witnesses that on 14.12.2007, while posted at Police Station Anti Snatching Cell, West District, Paschim Vihar, Delhi, they along with Ct. Satbir and Ct. Vijay Kumar were checking vehicles and had installed barricades at the spot, between 7 PM to 9 PM. They reached the spot under DD no.5 Ex.PW7/A. At about 8.10 PM, one Hyundai Accent Car came from the side of Pankha Road in which accused Kulwant and Pawan were present along with accused Durga Singh. Accused Pawan Yadav was driving the car whereas accused Durga Singh was sitting on the front passenger seat and accused Kulwant Singh was sitting on the back SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 3 of 43 4 seat. There was no number plate on the front side of the car. The car was stopped and the registration certificate of the car was demanded but no satisfactory reply was given, which raised suspicion. On checking the car, one bag was found between the front two seats. The bag was checked and was found to be containing Ganja. At that time, 34 public passersby were requested to become witness but they did not agree. Thereafter, written notices U/s 50 NDPS Act were separately served upon the three accused and the accused were told that they had legal right to be searched in presence of a Gazetted Officer or a Magistrate. Search of raiding team members was also offered to the accused, before their search was conducted. The accused refused to exercise their right, which was noted down on the notices. The notices of all the three accused are proved as Ex.PW2/A, B & C and the refusal of the three accused are proved as Ex.PW2/D, E & F, qua accused Pawan, Durga and Kulwant, respectively. Thereafter, Ct. Satbir was sent to bring one weighing scale, who brought one taraju. The total weight of Ganja came to be 10 Kg 200 gm out of which two samples of one kilogram each were separated. The sample pullandas and the main case property were SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 4 of 43 5 sealed with the seal of SK belonging to PW7. The sample pulinda were given Mark A & B and the remaining case property was given Mark C. The bag was also sealed separately as fourth pullanda. Form FSL was filled up, on which also specimen seal was applied. Thereafter, case property was seized vide memo Ex.PW2/G. Vide DD no. 6 Ex.PW7/B, PW7 requested senior officers to send further investigating officer of the case. Thereafter, rukka Ex.PW7/C was prepared which was handed over to PW8 Ct. Devender for being taken to the police station for registration of FIR. PW8 was also handed over all the sealed parcels, the FSL form and, a carbon copy of seizure memo to be taken to the police station and to be handed over to the SHO in compliance of Section 55 of NDPS Act. These witnesses identified the case property in the court as Ex.P1 to P4, and also identified the accused facing trial.
4.2. It is also deposed that PW3 Inspector Dilip Kaushik, who was appointed as further investigating officer of the case, reached the spot and prepared the site plan Ex.PW3/A at the instance of ASI Shiv Kumar. Thereafter, PW8 Ct. Devender also reached the spot and SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 5 of 43 6 handed over copy of FIR and original rukka to PW3 Inspector Dilip. 4.3. It is deposed by PW2, PW3, PW6 & PW8 that thereafter the car was seized vide memo Ex.PW1/H; all the three accused were arrested vide arrest memos Ex.PW2/J, K & L and; their personal search was conducted vide personal search memos Ex.PW2/M, N & O. It is deposed that from the personal search of all the three accused, besides some currency amount, carbon copy of notice U/s 50 NDPS Act each was recovered, which had been delivered to them by PW7 ASI Shiv Kumar. Thereafter, disclosure statements of accused Durga Singh and Pawan Kumar were noted down as Ex.PW2/P & Q, respectively.
4.4. It is deposed by PW8 Ct. Devender and PW1 Inspector Ranjit Kumar that on 14.12.2007, PW8 handed over four already sealed pulindas bearing seal of SK and Mark A, B, C & D along with one FSL form and a copy of seizure memo to PW1 who applied his seal of RK on all the four pulindas and the FSL form.
SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 6 of 43 7 4.5. It is also deposed by PW1 that thereafter, the case property was deposited in the malkhana vide an entry in Register no. 19. PW1 also deposed that PW3 Inspector Dilip prepared a report U/s 57 NDPS Act Ex.PW1/A, which was submitted to him and that he forwarded this report to senior officers.
4.6. PW5 HC Ramphal deposed that he was posted as malkhana moharrar in the concerned police station on the date of incident and that PW7 ASI Shiv Kumar deposited four pulindas, which were sealed with the seal of SK, along with one Accent car, in the malkhana regarding which an entry was made in Register no. 19 Ex.PW5/A. He also deposed that on 15.12.2007, five motorcycles and two cars were deposited in the malkhana by Inspector Dilip vide entry Ex.PW5/B. (We are not concerned with this part of recovery being not the subject matter of this case.) PW5 also deposed that on 25.01.2008, the four sealed parcels which were sealed with the seal of RK inside one plastic gunny bag was sent to the FSL, Rohini through PW8 Ct. Devender, vide RC no. 20/21 Ex.PW5/C. PW5 also deposed that after depositing the sample parcel in the FSL PW8 obtained one SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 7 of 43 8 acknowledgement receipt Ex.PW5/D from the FSL and deposited it in the malkhana. In the next breath, the witness PW5 deposed that the sealed parcel which was sent to FSL was one parcel and it was sealed with the seal of SK as well as RK.
4.7. PW8 Ct. Devender also supported the testimony of PW5 deposing that he took sealed parcel, sealed with the seal of SK, to the FSL and after obtaining an acknowledgement receipt from the FSL deposited it in the malkhana.
4.8. PW4 SI Shanti Prakash was duty officer who proved FIR Ex.PW4/A and endorsement on rukka Ex.PW4/B. 4.9. PW9 HC Jagpal was from the ACP Office, who deposed that as per record, there was no entry of any report U/s 57 of NDPS Act pertaining to this case and he proved the relevant entries from 15.12.2007 till 20.02.2007 as Ex.PW9/A. 4.10.PW10 HC Dushyant attempted to prove the relevant entries in the SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 8 of 43 9 diary dispatch register of police station Bindapur. He proved the copy of relevant entries Ex.PW10/A & Ex.PW10/B. Perusal of Ex.PW10/A would reveal that it does not reflect as to what communication was sent vide this entry no. 580 by the SHO of Police Station Bindapur on 17.12.2007 to ACP. All that is mentioned in this entry is the case particulars. It does not find mention as to whether any document or any other thing was sent from SHO, Bindapur to the ACP. Similarly, in Ex.PW10/B which is dated 31.12.2007 i.e. almost 14 days after the entry Ex.PW10/A, it is not mentioned as to for which document this entry was made and all that is mentioned in Ex.PW10/B is the letter no. 580/1PP which finds signatures of someone dated 31.12.2007.
5. On conclusion of prosecution evidence, all the incriminating evidence was put to the two accused Pawan and Kulwant in their examination U/s 313 Cr.P.C.
5.1.Accused Pawan Yadav claimed that he was not apprehended from the car or from the spot on the date, time and place as claimed by the SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 9 of 43 10 prosecution. Rather he was picked up from in front of Aggarwal Restaurant, Peeragarhi, three days prior to 14.12.2007. He was kept in illegal detention and was produced in the court on 15.12.2007. He claimed that he did not know the other two accused Kulwant or Durga Singh before he was implicated in the present case. He claimed that nothing was recovered from his possession and that he was implicated falsely in this case. He also claimed that no notice U/s 50 NDPS Act was served upon him, rather his signatures were obtained on blank papers which were converted into documents of this case. He did not opt to lead any evidence in his defence.
5.2.Similarly, accused Kulwant Singh also stated that he was not apprehended from any such car on the date, time and place as claimed by the prosecution; he did not know other two accused prior to his implication in this case; rather he was picked up from Ramesh Nagar on 14.12.2007 when he was returning from his office to his house; nothing was recovered from his possession and the case property has been planted upon him; no notice had been served upon him and his signatures were also obtained on the blank papers which were SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 10 of 43 11 converted into documents of this case. Even accused Kulwant did not opt to lead any evidence in his favour. He claimed that he was picked up by the police stating that they would drop him to his house.
6. I have heard Ld. Prosecutor for the State and Ld. Counsel Sh. Kashmir Singh for the accused.
6.1.It is argued by the Ld. Prosecutor that all the prosecution witnesses have supported the case of prosecution and the witnesses have corroborated each other. He claimed that there is no material contradiction in the testimony of witnesses to disbelieve their testimony and merely because independent witnesses were not joined, the version of prosecution witnesses should not be doubted. 6.2.On the other hand, Ld. Counsel for the accused argued that there is no compliance of Section 57 of NDPS Act; the case property when produced in the court was having a big hole in which a hand could be easily put and therefore anything could have been taken out or kept inside the bag; the notices U/s 50 NDPS Act which were claimed to SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 11 of 43 12 have been served upon the accused and, allegedly recovered in their personal search has not been proved and; lastly, he pointed out various contradictions in the testimony of the prosecution witnesses.
7. In a criminal case trial, initial burden of proof is always on the prosecution and the said burden is quite heavy. The prosecution has to prove its case independent to the defence of an accused and it is not for an accused to prove his defence. The case of prosecution must stand independently of the defence of accused. Weaknesses in defence cannot be called in aid to claim that prosecution has succeeded in proving its case. Prosecution case has to be proved beyond reasonable doubt. With that basic principle of criminal jurisprudence in mind, let us examine whether the case of prosecution is believable and whether conviction can be based on it.
8. Admittedly, no public witnesses has been joined in this case. No doubt, law is that even a testimony of police official can be believed and acted upon, but it is with a rider that the testimony of those police official should be trustworthy. Cases under NDPS Act invites one of the most SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 12 of 43 13 stringent punishments provided in law. The harsher the punishment is, the stricter is the degree of proof and more care has to be taken in evaluating and appreciating the evidence, particularly in absence of independent witnesses.
9. In the present case, since the recovery of contraband is claimed to be a chance recovery and since there was no prior secret information available with the police, therefore, there was no requirement of compliance of Section 42 of NDPS Act. Also, since the recovery of contraband is not effected from the person of any of the three accused and instead it was found inside a bag inside a vehicle, therefore there was no requirement of compliance of Section 50 of NDPS Act. There is no dispute so far as this legal position is concerned. However, the claim of prosecution witnesses that yet notices U/s 50 NDPS Act was served upon each of the three accused, would itself show that everything is not as fair as claimed by the witnesses. I shall deal with this aspect of the matter little later, prior to it, it may be mentioned that there is non compliance of Section 57 of NDPS Act in the present case.
SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 13 of 43 14
10.Ld. Counsel for the accused rightly pointed out that there is non compliance of Section 57 of NDPS Act. To counter this argument, Ld. Prosecutor argued that PW1 proved Ex.PW1/A which is nothing short of a report U/s 57 NDPS Act.
10.1.Perusal of testimony of PW1 (SHO) would reveal that he indeed claimed that Inspector Dilip Kaushik had submitted a report Ex.PW1/A to him which he signed and forwarded to the senior officers. Ex.PW1/A is a carbon copy and original of this document has not been filed on record for reasons best known to the prosecution. Instead one of the prosecution witnesses (PW9 HC Jagpal), who was summoned from the concerned ACP Office reported that as per records there is no entry of receipt of any report U/s 57 NDPS Act, between 15.12.2007 to 20.12.2007. I have already mentioned above that Ex.PW10/A & 10/B does not go to show anything since these two documents do not prove that any report U/s 57 NDPS Act was dispatched from the office of SHO to the office of ACP.
10.2.Ex.PW1/A, despite being a carbon copy, bears signatures of SHO in SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 14 of 43 15 original at point A. It also bears signatures of Dilip Kaushik, but under carbon impression.
10.3.U/s 57 NDPS Act, the requirement is that a report as to seizure of contraband and also as to arrest of accused must be given by the person seizing the case property or arresting the accused to immediate superior police officer. Seizure of contraband in this case was done by PW7 ASI Shiv Kumar. There is no report U/s 57 NDPS Act given by ASI Shiv Kumar.
10.4.The accused was arrested by Dilip who was Sub Inspector on the date of incident and was thus indeed a Subordinate police officer to the SHO who was an Inspector. Therefore, so far as arrest of the three accused persons are concerned, the report Ex.PW1/A given by SI Dilip Kaushik to his SHO was by itself sufficient compliance of Section 57 NDPS Act, but not for the seizure of case property.
10.5.At the time when contraband was recovered from the car and it was sealed after samples were drawn from it, SI Dilip was not even present at SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 15 of 43 16 the spot. He reached the spot after the case property had already been sealed and after the case property had already been sent to the police station. In such circumstances, the report regarding seizure of contraband ought to have been given by ASI Shiv Kumar by giving complete circumstances of recovery of contraband. He did not give any report and therefore, Ex.PW1/A is not sufficient compliance of Section 57 NDPS Act qua recovery of contraband. Even otherwise, this report Ex.PW1/A by SI Dilip does not give complete circumstances of recovery of contraband. Because of this noncompliance of Section 57 of NDPS Act, prejudice is caused to the accused and on this technical ground, accused deserves to be acquitted.
10.6.The report Ex.PW1/A is in absolute noncompliance of Section 57 of NDPS Act, which provision requires complete circumstances of the seizure and arrest to be mentioned in the report by the person seizing or arresting an accused. When ASI Shiv Kumar seized the contraband, it was he who should have given a report of complete circumstances of seizure of Ganja, within 48 hours, to immediate superior officers, but he did not give any such report.
SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 16 of 43 17 10.7.In the case of Sukhdev Singh v. State of Haryana, (2013) 2 SCC 212 it is mentioned in Para 26 that compliance of Sec. 57 of NDPS Act is also mandatory. In the present case it has not been complied with.
11. Not only there is non compliance of 57 of NDPS Act, but also when the case property was produced in the court for the first time on 07.08.2009, in the testimony of PW2, the main case property parcel Mark C, was found torn at two places. The parcel Mark C was in fact a cloth parcel prepared at the spot but when it was produced in the court, it was inside a plastic gunny bag. The cloth parcel was torn and some substance from inside the sealed cloth parcel had spilled over in the plastic bag. In the cross examination, PW2 admitted that the hole was big enough that one hand can be inserted inside the parcel. Thereby meaning that the case property could be easily taken out or kept inside the cloth parcel. Though, PW2 volunteered that the case property cannot be taken out from the hole in which one hand can enter, but the very fact that one hand can be inserted inside a hole would show that the hole was big enough to take out or keep the Ganja inside. Ganja is not such a material which is big in size. It is rather flowery leafy material and SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 17 of 43 18 therefore, the voluntary statement of this witness that the case property cannot be taken out from the hole was inconsequential. In a case of NDPS Act, keeping the case property in absolute intact condition is of utmost importance.
12. Not only the existence of hole in the main case property demolishes the case of the prosecution but also the testimony of none other than the malkhana moharrar PW5 HC Ramphal would show that everything was not fairly done with respect to the case property. When the malkhana moharrar appeared as PW5, he deposed that it was ASI Shiv Kumar who deposited four pulindas in the malkhana and those four pulindas were sealed with the seal of SK. He also deposed that ASI Shiv Kumar also deposited one Accent Car in the malkhana regarding which entry was made in Ex.PW5/A. Ex.PW5/A is an entry in Register no. 19, which is required to be made when any case property is deposited in the malkhana. This document also reads that it was ASI Shiv Kumar who deposited the case property in the malkhana. In column no. 3 of Register no. 19, the name and signatures of the depositor of the case property is required to be mentioned. This column does not find SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 18 of 43 19 mention that the SHO deposited the case property. Now, this testimony of PW5 as well as the document Ex.PW5/A is in stark contradiction to the version of other prosecution witnesses who claimed that after the pulindas were sealed at the spot by ASI Shiv Kumar, they were handed over to Ct. Devender to be taken to the police station who took them from the spot to the police station and thereafter SHO PW1 Inspector Ranjit Kumar applied his seal of RK and then deposited them in the malkhana.
12.1.PW5 does not say that when the pulindas were deposited in the malkhana, they were sealed with the seal of RK also. He specifically deposed that the pulindas were sealed only with the seal of SK. As against the fact that when the pulindas were deposited in the malkhana, they were sealed only with the seal of SK, when the sample parcel was sent to the lab on 25.10.2008 it was sealed with the seal of RK also. This fact also demolishes the case of the prosecution. 12.2.PW5 initially deposed that all the four sealed pulindas were sent to the FSL, and at that time they were sealed with the seal of SK. Though SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 19 of 43 20 subsequently he stated that only one parcel was sent which was having seal of SK and RK but then this answer does not explain as to when the pulindas were having only one seal of SK each on the date of deposition of the case property in the malkhana, how come the second seal of RK came to be applied on pulindas. How, when and where the second seal came to be applied is not explained. Admittedly, signatures of SI Shiv Kumar were not obtained on Ex.PW5/A. Admittedly, on Ex.PW5/A it is not mentioned that the pulindas deposited in the malkhana were sealed with the seal of RK (seal of SHO) also.
13.It is also not mentioned in Ex.PW5/A that any FSL form was also deposited with the case property on that day. PW5 also did not depose in his examination in chief that any such FSL form was deposited in the malkhana along with the case property, on 14.2.2007. If that was so, from where the FSL form was sent to the lab on 25.1.2008? It is not clear as to when, where and by whom that FSL was prepared or deposited in the malkhana. Not only on Ex.PW5/A, but also on the road certificate Ex.PW5/C, there is no mention of sending of FSL form along with the sample pulinda to the lab. Even on the acknowledgment receipt obtained SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 20 of 43 21 by Ct. Devender Ex.PW5/D, there is no mention of the FSL form deposited with the cloth parcel. All these things demolish the case of prosecution.
14.Not only there is no mention of deposition of FSL form in Ex.PW5/A or the road certificate Ex.PW5/C or the acknowledgment receipt Ex.PW5/D but also the prosecution witnesses contradicted themselves as to how many copies of FSL form were filled up and whether the original copies of FSL form or its carbon copy were sent to the malkhana through Ct. Devender along with the case property, from the spot. 14.1.PW6 Ct. Surjit and PW7 ASI Shiv Kumar deposed that the carbon copy of FSL form was also prepared. ASI Shiv Kumar deposed that carbon copy of FSL form were given to Ct. Devender to be taken to the police station along with case property. As against it, Ct. Devender PW8 deposed that not one but three FSL forms were separately filled up and all those three forms were filled up in duplicate and that he took three carbon copies of the three forms to the police station with the case property whereas original remained with the investigating officer. What SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 21 of 43 22 happened to the original FSL form, if the carbon copies were sent to the police station, is not clarified. The original FSL forms have not been filed on record. Usually, it is the original form which is sent to the lab and which is deposited in the malkhana with the case property. The testimony of prosecution witnesses leaves a grave doubt as to whether one form was filled up in duplicate or three forms were filled up.
15.Also there is contradiction in the testimony of witnesses as to with which material the seal was affixed on FSL form. PW1 Inspector Ranjit Kumar deposed that the FSL form which he received with the case property through Ct. Devender was having seal impression with the help of 'lac' and that he also affixed his seal with 'lac' only. Against this testimony, PW2 HC Dilbagh deposed that the seal impression was affixed at the spot with ink as well as lac. Ct. Surjit deposed that it was with ink as well as lac. ASI Shiv Kumar deposed that the seal was applied with lac and that too on carbon copy. These facts again creates doubt whether the FSL form was filled up at the time and place as claimed by the prosecution witnesses.
SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 22 of 43 23
16. PW5 HC Ramphal also deposed that along with the four pulindas ASI Shiv Kumar had deposited the car on 14.12.2007. This deposition of PW5 is in absolute variance to the version of other prosecution witnesses, according to whom the pulindas were not deposited by ASI Shiv Kumar, rather the pulindas were deposited by the SHO PW1. It is also the case of other prosecution witnesses that car was seized and deposited in the malkhana not by ASI Shiv Kumar but by subsequent IO SI Dilip PW3. In the testimony, though PW5 deposed that Inspector Dilip deposited five motorcycles on 15.12.2007 but this witness remained absolutely silent that Inspector Dilip deposited either the car in the malkhana or he deposited personal search articles recovered from the personal search of the accused.
17.When Inspector Dilip conducted personal search of the accused, the personal search articles should have been deposited in the malkhana. It may be mentioned that in the personal search of each of the three accused, certain currency and carbon copy of notice U/s 50 NDPS Act are shown to have been recovered as mentioned in the personal search memos Ex.PW2/M, 2/N and 2/O yet, there is no mention of deposition of SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 23 of 43 24 personal search articles by Inspector Dilip either in the testimony of PW5 or in Ex.PW5/A. Instead PW5 was also examined by the court as court witness on 26.10.2009 when he specifically deposed that the carbon copy of notices allegedly recovered in the personal search of accused were never deposited in the malkhana. In such circumstances, a serious doubt is created as to the veracity of prosecution witnesses and as to the truthfulness of the version of case of prosecution.
18.The initial IO ASI Shiv deposed that he had affixed two or three seals on each of the pulindas prepared at the spot. Ex.PW5/A the entry in malkhana register does not support this testimony and instead indicates that there was only one seal of SK on each of the pulindas. Even the FSL result finds mention that there was one seal of SK along with one seal of the SHO on the sample pulinda sent to the lab. If ASI Shiv Kumar affixed two or three seals on each of the pulinda as mentioned by him in his cross examination and yet the pulinda which reached FSL had only one seal of SK indicates only one thing that the case property was not kept untampered. This fact alone entitles the accused to be acquitted. PW8 Ct. Devender also deposed that when he took sample SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 24 of 43 25 pulindas to FSL, it was sealed with the seal of SK only. He deposed that there was no seal of SHO also on the sample pulinda which he took to the lab from the malkhana.
19.As per examination in chief of Ct. Devender, at the spot, the three pulindas carrying contraband were only converted into sealed pulindas. He did not depose that the bag was also converted into a sealed pulinda whereas others claim that the bag was also converted into sealed pulinda.
20.Inspector Ranjit Kumar deposed that the copy of seizure memo presented to him by Ct. Devender along with the case property was already containing FIR number and the FIR number was not put by him in the police station. He claimed that the duty officer might have written the FIR number. Whereas Inspector Dilip claimed that it was he who noted down the FIR number on seizure memo when he reached the spot. Had Inspector Dilip noted down the FIR number on the seizure memo after he reached the spot then FIR number could not have appeared on carbon copy of the seizure memo which had already been SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 25 of 43 26 sent to the police station even before Inspector Dilip came to the spot.
21.As mentioned above, though there was no requirement of giving notice U/s 50 NDPS Act in the present case and yet it was given, but the deposition of witnesses about the notices creates a deep shadow of doubt. Allegedly carbon copy of notices were served upon the three which were subsequently recovered in their personal search. Those carbon copies had not seen the light of day till date. As per malkhana moharrar HC Ramphal they were never deposited in the malkhana. Ct. Surjit deposed that when notices were delivered to the accused, they themselves noted down their refusal. It is similarly deposed by ASI Shiv Kumar. But Ct. Devender deposed that the refusal was not written by the accused but was written by ASI Shiv Kumar.
22.Ct. Surjit also deposed that original notices were delivered to the accused and not carbon copies whereas other witnesses claimed that carbon copies were delivered and not original notices.
23. The notices Ex.PW2/A, B & C filed on record are original notices and on SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 26 of 43 27 the backside of those notices refusal of the three accused finds written. These three notices were admittedly prepared before registration of FIR but the FIR number and four pulindas ASI case particulars finds mention on all the three notices. Strangely, the refusal noted down by the three accused is verbatim same even though it is claimed by the initial IO ASI Shiv that the accused themselves noted down their refusal. The fact that the refusal are verbatim same means that those refusals were noted down by someone on the dictation of one person or they were copied from the first one noted down. These facts again create doubt.
24.HC Dilbagh Singh deposed that all the members of the police party reached the spot for checking the vehicles in a government vehicle i.e. Tata 407 driven by Ct. Vijay but no log book entry has been filed on record to support the case of prosecution.
25.Besides the abovementioned facts there are various serious contradictions in the testimony of prosecution witnesses. 25.1.There are also serious discrepancies in the testimony of witnesses as SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 27 of 43 28 to whether the scale with which case property was measured was a hand held taraju with two pans or whether it was electronic weighing machine. ASI Shiv in his cross examination deposed that the weighing machine was electronic. Whereas HC Dilbagh and Ct. Devender deposed that it was manual taraju with two pans. Also ASI Shiv in his cross examination deposed that the weighing scale was available with him whereas PW2 HC Dilbagh, Ct. Surjit PW6 and PW8 Ct. Devender all deposed that Ct. Satbir had brought the taraju from somewhere. Ct. Devender even deposed that Ct. Satbir had brought the taraju from one nearby shop and it was returned after about an hour. 25.2.HC Dilbagh PW2 deposed that the two barricades which were installed at the spot at the time of checking of vehicles were taken by the police party along with them in their Tata 407 vehicle from their office, whereas, ASI Shiv Kumar deposed that the barricades were already lying on the road and were not taken by the police along with them. Ct. Devender deposed that barricades were permanently available at the spot and were not taken in Tata 407. This fact creates doubt about the genuineness of case of prosecution.
SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 28 of 43 29 25.3.Ct. Devender deposed that he took rukka and case property to the police station from the spot in government vehicle i.e. Tata 407. HC Dilbagh also deposed that it was taken in government vehicle. As against it the initial investigating officer ASI Shiv Kumar deposed that he took it in an auto rickshaw.
25.4.PW2 HC Dilbagh and PW6 Ct. Surjit deposed that when the spot was finally left, the car of accused was driven to the police station by Ct. Surjit and all other persons including accused went to the police station in Tata 407 vehicle. As against it, Ct. Surjit also deposed in his cross examination that the car was taken by Ct. Devender along with the four pulindas. Inspector Dilip PW3 also deposed that the accused and police including him went back in Tata 407. When he was questioned as to what happened to the two wheeler on which he came to the spot, he could not give any satisfactory reply as to whether it was loaded on the tempo 407 or it was taken by somebody else from the spot. This fact creates serious doubt.
25.5.Inspector Ranjit also deposed that after use, he handed over his seal to SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 29 of 43 30 PW5 HC Ramphal who returned it after 15 days but HC Ramphal was silent as to handing over of seal to him.
25.6.It is deposed by HC Dilbagh Singh PW2 that at the time when vehicles were being checked at the spot, the number of vehicles was noted down by SI Shiv Kumar whereas Ct. Surjit, PW6 Ct. Devender and, PW8 deposed that number of vehicles was not noted down by ASI Shiv Kumar.
25.7.It is also questionable as to when Ct. Devender returned to the spot after getting the FIR registered. HC Dilbagh deposed that Ct. Devender returned at 11 PM whereas ASI Shiv Kumar deposed that when Ct. Devender returned to the spot till he was there till 10.30 to 10.45 PM. Ct. Devender on the other hand deposed that he reached the spot at 10.10 PM.
25.8.In the cross examination, Inspector Dilip deposed that the case property was deposited in the malkhana on 15.12.2007 and then he again deposed that some part of the case property was deposited on SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 30 of 43 31 14.12.2007 and same was deposited on 15.12.2007. He however admitted that he did not sign column no. 3 of the Register no.19. 25.9.There is also contradiction in the testimony of witnesses as to at what time and by which mode of transport, subsequent investigating officer Inspector Dilip reached the spot. HC Dilbagh PW2 deposed that Inspector Dilip reached the spot on his scooter at 11.00 PM. Inspector Dilip himself deposed that he reached the spot on his scooter at 10 PM. Ct. Surjit PW6 deposed that Inspector Dilip came on his motorcycle and not scooter and that too one hour after Ct. Devender had left the spot. He subsequently deposed that Inspector Dilip came to the spot along with Ct. Devender on the motorcycle. ASI Shiv Kumar deposed that Inspector Dilip came to the spot at 10.10 PM. On the other hand, Ct. Devender deposed that he came back to the spot from the police station alone and not with Inspector Dilip.
25.10.There is also contradiction as to when ASI Shiv left the spot. HC Dilbagh deposed that he left at 11.30 PM or 12 mid night. Inspector Dilip deposed that he left between 11 to 11.30 PM. Ct. Surjit deposed that all SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 31 of 43 32 including ASI Shiv Kumar left the spot together. ASI Shiv deposed that he left at 10.30 or 10.45 PM.
25.11.The prosecution witnesses HC Dilbagh, Inspector Dilip and Ct. Devender deposed that keys of the car were seized but no such key was deposited in the malkhana. All these facts create more than reasonable doubt about the case of the prosecution benefit of which goes to the accused.
26. Ld. Counsel for the accused also argued that the recovery and seizure has not been made in accordance with the standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi and in this regard, he placed reliance upon the case of Union of India Vs. Bal Mukund &Ors., 2009 Crl. L. J. 2407. Clause 1.9 & 1.10 of the Instructions reads as under : "1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 32 of 43 33 affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples.
1.10 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret Drug sample/Test Memo" to be sent to the chemical laboratory." 26.1.On the other hand, Ld. APP for the state argued that noncompliance of standing instructions cannot vitiate trial and it is only an irregularity and not illegality.
26.2.Though noncompliance of standing instructions by itself may not vitiate trial and it may be only an irregularity and not illegality, however, it SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 33 of 43 34 assumes importance in the facts and circumstances of the present case discussed herein above, and particularly in view of serious contradictions and also in absence of independent witnesses.
27.The story putforth by the prosecution that the passersby were requested, who refused to join raid, does not inspire confidence for the reasons that not even the names or addresses of those persons were attempted to be found or noted down by the investigating officer. It is very easy to say that the persons left the spot even without telling their names and addresses. I don't understand as to what kind of police is it, which cannot even find out name or address of a person who is requested to become witness. Whereas, if it comes to an accused they can find out entire biography in the disclosure statement. Even otherwise, the requirement under sub sec. 4 of sec. 100 Cr. P. C. is that independent local respectable inhabitants have to be joined. Thus mere asking the passersby would not be compliance of those provisions. Of late a disturbing trend is noticed in criminal cases, particularly in NDPS cases, wherein in almost every case, Delhi Police makes a statement that passersby were requested, but they left the spot without telling their SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 34 of 43 35 names and addresses. I don't understand as to why the investigating agency does not even try to join independent witnesses from local inhabitants 27.1.In the case of Mohd. Raffique vs. State 2000 CRI. L. J. 2401, DELHI HIGH COURT, it is observed as follows;
"6. In State of Punjab v. Baldev Singh (1999) 4 JT (SC) 595 : (1999 Cri LJ 3672), it was held that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the Act also to the extent they are not inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Act, the safeguards provided under the Code of Criminal Procedure are also required to be followed. It is well settled that failure to comply with the provisions of the Code of Criminal Procedure in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 of the Code of Criminal Procedure per se does not vitiate the trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguards would be violative of the SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 35 of 43 36 reasonable, fair and just procedure. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597), it was held that when a statute itself provides for a reasonable, fair and just procedure, it must be honoured. Thus, an accused has the right to a reasonable, fair and just procedure. The statutory provisions embodied in Sections 41 to 55 and Section 57 of the Act and Sections 100, 102, 103 and 165 of the Code of Criminal Procedure provide for a reasonable, fair and just procedure.
7. Section 50 of the Act read along with subsection (4) of Section 100, Cr.P.C. contemplates that search should, as far as practicable be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so the onus would be on the prosecution to establish that the association of such witness was not possible on the facts and circumstances of a particular case. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Thus, the statutory desirability in the matter of search and seizure is that there should be two or more independent and respectable witnesses. The search before an independent witness would impart much more authenticity and creditworthiness to the search SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 36 of 43 37 and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against authorised officers. In other words, the Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping in view the severe punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure as envisaged by the statute scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of statutory safeguards committed by the authorized officer during search and seizure operations and may also undermine respect of law. That cannot be permitted.
8. It is undisputed that no public witness was associated during the course of search and seizure proceedings and the prosecution case hinges solely on the testimony of police officials. As per prosecution case the secret information was received at 9.35 a.m. and the appellant was apprehended at about 10 A.M. Thus, there was sufficient time to SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 37 of 43 38 procure attendance of public witnesses to witness the search and seizure. This is not a case where due to urgency of the matter or for any other reason, it was not possible to comply with the provisions of subsection (4) of Section 100 for associating public witness during the course of search and seizure. It is also undisputed that the appellant was apprehended in Gali Masjid Wali, which is a thickly populated area. Prosecution witnesses SHO P. L. Puri (P. W. 2) Constable Sukhram Pal (P.W. 3) Constable Jamil Ahmad (P. W./4) and SI Satpal (P.W. 6) want us to believe that at the relevant time public witnesses were approached but they declined to join the raiding party.
9. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may, in this context, be made to the provision of subsection (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under Section 100 of the Code, when called upon to do so by an order in writing delivered SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 38 of 43 39 or tendered to him, shall be deemed to have committed an offence under Section 187, IPC. In the instant case, there is nothing to indicate that the authorized officer had served or even attempted to serve an order in writing upon any public witness as envisaged by subsection (8) of Section 100, Cr.P.C. In this connection, I may usefully excerpt the following observations of Malik Shariefu Din, J. in Rattan Lal v. State, (1987) 2 Crimes 29 (Delhi) : ". . . . . . . .In the case in hand the seizure and the arrest have been made under Section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by subsection (4) of Section 100, Cr.P.C. The explanation offered is that public witnesses were requested but they declined to cooperate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to cooperate without reasonable cause in spite of an order in writing, to witness the seizure and search, he will be deemed to have SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 39 of 43 40 committed an offence under Section 187, I.P.C. and this has been clearly spelt out in subsection (8) of Section 100, Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards."
10. It has come in the evidence of SubInspector Satpal (P.W. 6), Constable Jamil Ahmad (P.W. 4) and Constable Sukhram Pal (P.W. 3) that Gali Masjid Wali is a thickly populated area. It seems inconceivable that no one from the public had come to the spot to witness the alleged search and seizure operation. Having regard to the area and the place of search and seizure, it appears that public witnesses were available but no serious attempt was made by SubInspector Satpal (P.W. 6) to associate them before searching the appellant. I am unable to find any reason as to why he did not even make any attempt to associate any independent witness or witnesses during the course of search and seizure operation.
SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 40 of 43 41
11. As stated earlier, the compliance with the procedural safeguards contained in the Code of Criminal Procedure and the Act are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the authorized officer. It has to borne in mind that where the error, irregularity or illegality touching the procedure committed by the authorized officer is so patent and loudly obtrusive that it leaves on his evidence an indelible stamp of infirmity or vice, which cannot be obliterated or cured, then it would be hazardous to place implicit reliance on it. The aforesaid circumstances make the court to be circumspect and look for corroboration of the testimony of the said police officials from independent sources. No such corroboration is coming forth in this case."
27.2.Learned prosecutor for the State argued that non joining of independent witnesses cannot be fatal to the case of prosecution. Indeed it may not be in a given case. But then the testimony of police witnesses must be inspiring and believable. In a serious case of NDPS SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 41 of 43 42 Act, inviting stringent punishment, the abovementioned serious discrepancies cannot be ignored. An accused cannot be convicted on such tentative evidence. It is in these discrepancies that non joining of witnesses assumes significance.
28.In the present case admittedly no written notice was served upon public persons to become witness and no legal action was taken against those who refused to become witnesses. Admittedly public witnesses were available at the spot. Time of arrest was also not such that public witnesses were not available. Rather it was the time when the road remains the busiest in a day. Having regard to the area, the time and the place of search and seizure, it appears that public witnesses were available but no serious attempt was made by the investigating officer.
29. No relaxation can be given to the prosecution when crucial witnesses in a serious offence like NDPS case, falters. Punishment under NDPS Act is one of the severest punishments provided. The severer the punishment is, the stricter the rules of procedures and the appreciation of evidence have to be.
SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 42 of 43 43 29.1.In Mousam Singha Roy and Others v. State of West Bengal 2003 (3) JCC 1385 : [(2003) 12 SCC 377], Supreme Court held :
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since the higher degree of assurance is required to convict the accused."
30. The evidence led in the present case does not pass the degree of assurance required, in the facts and circumstances of this case discussed above. All the facts and circumstances discussed above, create more than reasonable doubt about the case of the prosecution, benefit of which goes to the accused and the accused are acquitted. File be consigned to the Record Room.
Announced in open Court (DIG VINAY SINGH)
on 26th July, 2013. ADDL. SESSIONS JUDGE
ROHINI COURTS: DELHI
SC no. 20/08 FIR no. 117/07 Dated : 26.07.2013 Pg.. 43 of 43