Delhi District Court
State vs . Kamal And Ors. on 9 October, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 215/2004
P.S. Defence Colony
U/s 21 NDPS Act
State Vs. Kamal and ors.
JUDGMENT :
a. Sl. No. of the case : 115/04
b. Date of Institution : 11.06.2004
c. Date of Commission of Offence : 14.04.2004
d. Name of the complainant : SI Manish Joshi
PS Defence Colony
e. Name of the accused and his : (1.) Kamal
parentage and address S/o Ram Chandra
R/o F130/6D, Gautam
Nagar, New Delhi
(2.) Sanjay
S/o Ram Chandra
R/o F130/6D, Gautam
Nagar, New Delhi
(3.) Parmanand @ Parma
(Proceedings abated on
14.12.2011)
f. Offence complained of : U/s 21 NDPS Act
g. Plea of the accused : Pleaded not guilty
FIR NO. 215/2004 PAGE 1 OF PAGE 29
PS DEFENCE COLONY
h. Order reserved : 09.10.2013
i. Final Order : Acquitted
j. Date of such order : 09.10.2013
1. All the three accused persons in this case were sent up for trial for the commission of offence U/s 21 NDPS Act.
2. The facts in brief are that on 14.04.2004, on receipt of secret information, IO/SI Manish Joshi along with Ct. Kaushal Kumar and secret informer reached the spot i.e. Ganda Nala, Gautam Nagar, where he met with SI Ravinder and Ct. Girish who were on patrolling duty. He shared the said information to them and also joined one public person namely Rajeev Kumar in the raiding party. Thereafter they all started keeping watch on persons coming towards the Ganda nala. At around 11.00 p.m., they saw the accused Kamal coming towards Ganda Nala and on the pointing out of secret informer, he was apprehended. On his search, he was found in possession of Smack weighed about 20 grams. Thereafter on the basis of disclosure statement of accused Kamal, accused Sanjay and Parmanand(since deceased) were arrested. Tehrir was prepared and the present case FIR was registered in PS Defence Colony and after completing the other formal investigation, the challan was presented before the court for trial.
FIR NO. 215/2004 PAGE 2 OF PAGE 29 PS DEFENCE COLONY
3. A prima facie case having been made out against all the accused persons, charge was framed against all the three accused persons on 28.08.2004, under section 21 of NDPS Act to which they all pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has examined fifteen witnesses namely Rajesh as PW1, ACP S.K Tomar as PW2, Ankit Gupta as PW3, HC Jitender Kumar as PW4, Ct. Kaushal Kumar as PW5, Inspector Haricharan Verma as PW6, SI Ravinder Pandit as PW7, HC Rajinder as PW8, Ct. Kuldeep Singh as PW9, Ct. Karan Singh as PW10, SI Manish Joshi as PW11, HC Yudhvir Singh as PW12, Ct. Satish Kumar as PW13, ASI Bhagwan Sahay as PW14 and Dr. Ashok Kumar Dalela as PW15.
5. PW1 Rajesh has testified that he did not know anything about this case and came to know only when he received the summons from the court. PW1 further testified that the police party never recovered any smack or other contraband from the accused persons on 14.04.2004 at about 11.00 p.m., in his presence. Police never requested him to join any raiding party. PW1 further testified that he did not know accused Kamal and he was never arrested in his presence with smack. PW1 further testified that police had recorded his statement and obtained his signature on some papers in the chowki Gulmohar Park. PW1 further testified that the seizure FIR NO. 215/2004 PAGE 3 OF PAGE 29 PS DEFENCE COLONY memo Ex. PW1/A of smack recovered from accused Kamal bears his signature. PW1 further testified that notice under section 50 NDPS Act Ex. PW1/B also bears his signature and similarly personal search memo of accused Kamal Ex. PW1/C and arrest memo of accused Ex. PW1/D also bear his signatures. PW1 was cross examined by Ld. APP as he was resiling from his earlier statement. In his cross examination PW1 has denied all the suggestion in toto put forth to him by the Ld. APP. He has further denied the statement Ex. PW1/A to have ever made to the police. In his cross examination by Ld. Defence Counsel, PW1 has testified that he put his signatures on blank papers on Ex. PW1/A to Ex. PW1/D and mark Ex. PW1/A.
6. PW2 S.K Tomar has testified that on 14.04.2004, at about 9.30 p.m., Inspector Hari Chand Verma informed him on telephone that SI Manish Joshi, has got an information that somebody would bring the smack near Nala, Gautam Nagar. He also reached there on request of SHO Defence Colony i.e. Ganda Nala, pulia Gautam Nagar. SHO and SI Manish Joshi and one other police official were already present there and they had already apprehended the accused Kamal present in the court. PW2 further testified that when he reached, the recovery of smack of 20 grams from accused had already been effected . PW2 further testified that he told the accused that he had a right of his search before any Gazetted officer FIR NO. 215/2004 PAGE 4 OF PAGE 29 PS DEFENCE COLONY of Magistrate but the accused refused for the same. Accused had already confessed about his involvement. The seizure memo of smack was prepared vide memo Ex. PW1/A. From the 20 grams of smack, two samples of two grams each were taken out and both the samples were sealed in separate pullanda and the remaining smack was sealed in the pullanda and all the three pullandas were sealed with the seal of MJ. SHO also put his seal of HCB on all the three pullandas. IO also filled FSL form at the spot. SI and SHO put their specimen seal on the FSL form. All the three pullandas and FSL form were taken into possession by IO vide memo Ex. PW1/A. PW2 further testified that the seal after use was handed over to some official but he did not remember his name. PW2 was cross examined by Ld. APP as he was resiling from his earlier statement. In his cross examination. PW2 has denied the suggestion to this effect that he made his statement to the IO that he gave direction to SI Manish Joshi to take formal search of accused Kamal. PW2 has further denied the suggestion to this effect that on his direction, the formal search of accused Kamal was taken and from the right pocket of accused, one small packet of brown colour substance i.e. smack was recovered.
PW2 has correctly identified the case property which are Ex. P1 to P3 respectively.
7. PW3 Ankit Gupta has testified that nothing had happened in his FIR NO. 215/2004 PAGE 5 OF PAGE 29 PS DEFENCE COLONY presence. Nobody was arrested in his presence nor any recovery was effected in his presence from any person. He did not know accused Sanjay present in the court nor anything was recovered in his presence, however arrest memo of accused Sanjay Ex. PW3/A and personal search Ex. PW3/B and seizure memo of Mom Dasta, Mussal and weights and scale Ex. PW3/C bear his signatures. PW3 further testified that police did not record his statement nor they inquired from him regarding the case.
PW3 was cross examined by Ld. APP as he was resiling from his earlier statement. In his cross examination, PW3 has denied the suggestion to this effect that accused Sanjay was in the police custody and he joined the investigation on the request of the IO. PW3 has further denied the suggestion to this effect that accused Sanjay led them to his residential house at F130/6D, Gautam Nagar and got recovered one Mom dasta, one mosli of steel, one dabba and one small weighing scale and some weights near the tank of his house roof in his presence. PW3 further denied the suggestion to this effect that IO sealed those articles in his presence. PW3 has further denied to make any statement Mark PW3/A to the police.
In his cross examination by Ld. Defence counsel, PW3 has testified that he was called at the police post Gulmohar Park and was asked to sign some blank papers.
FIR NO. 215/2004 PAGE 6 OF PAGE 29 PS DEFENCE COLONY
8. PW4 HC Jitender Kumar has testified that on 15.04.2004, at 12.50 a.m., Ct. Kaushal Kumar came to him and handed over rukka sent by SI Manish Joshi for registration of the case on the basis of which, he recorded the present case FIR which is Ex. PW4/A. Ld. counsel for accused did not prefer to cross examine PW4.
9. PW5 Ct. Kaushal Kumar has testified that on 14.04.2004, he along with SI Manish Joshi was present at police post where one secret informer came and informed SI Manish Joshi that one person by the name of Kamal would come at Pul Ganda Nala and he was having illegal smack in his possession. SI Manish Joshi informed SHO and ACP on telephone regarding this fact and they directed SI to conduct raid . PW5 further testified that SI Manish Joshi made DD no. 28 and after that, he along with SI, secret informer left the police post to proceed towards the spot. At about 10.35 p.m., when they reached Pulia ganda Nala, SI Pandit and Ct. Girish met them to whom SI Manish Joshi informed about the secret information and they were joined in the raiding party. PW5 further testified that SI Manish Joshi asked 45 public persons to join the raiding party from whom one public person namely Rajiv Kumar agreed to join the raiding party and he joined them. PW5 further testified that at about 11.00 p.m., one person was seen coming from Aurobindo Margside. He was apprehended on the pointing out of secret informer whose name later on was revealed as Kamal present in the FIR NO. 215/2004 PAGE 7 OF PAGE 29 PS DEFENCE COLONY court. PW5 further testified that accused was asked by SI Manish Joshi to verify the secret information and if he was having smack in his possession and they want to take his search. PW5 further testified that SI Manish Joshi gave notice under section 50 NDPS Act to the accused and he asked the accused if he wants to be searched in presence of Magistrate or Rajpatrik Adhikari but accused refused for the same. PW5 further testified that in the meantime, SHO Inspector S.C. Verma and ACP Sh. S.K Tomar also reached the spot and they also asked the accused for his search in presence of Magistrate or Gazetted officer but accused refused for the same. PW5 further testified that the SHO and ACP gave direction to Manish Joshi to take search of accused. SI Manish Joshi took formal search of Kamal and from the right pocket of the pant, one small packet wrapped in plastic was taken out . The same was checked and found containing brown colour powder i.e. smack. The same was weighed by the IO and it was found in total 20 grams. PW5 further testified that two samples of two grams each were taken out. Both the samples were sealed in pullanda separately after putting the same in small polythene bag and the remaining smack was sealed in same panni and after that in cloth parcel. PW5 further testified that FSL form was filled at the spot and all the three pullandas were sealed with the seal of MJ and specimen seal of MJ was also put on FSL form also. All the three pullandas and FSL forme were taken into possession vide memo Ex. PW1/A. FIR NO. 215/2004 PAGE 8 OF PAGE 29 PS DEFENCE COLONY Seal of MJ after use was given to him. After that, SI prepared rukka and handed over the same to him and he went to the PS and got the FIR registered. Thereafter he along with copy of FIR and original rukka came back to the spot with ASI Bhagwan Sahay. The pullandas were also sealed with the seal of SHO i.e HCV and the same seal was also put on the FSL form and seal of HCV was kept by SHO in his possession. PW5 had also correctly identified the case property as Ex. P1, P2 and P3 respectively. PW5 has further testified that SI Bhagwan Sahai prepared the site plan at the instance of SI Manish Joshi. SI Manish Joshi handed over all the papers and accused to SI Bhagwan Sahai. Accused Kamal present in the court was arrested by IO vide Ex. PW1/D and his personal search was also taken. One notice under section 50 NDPS Act was recovered from the pocket of shirt of accused and the same was taken into possession vide memo Ex. PW1/C which is Ex. P4.
In his cross examination, PW5 has testified that notice under section 50 was written by SI Manish Joshi. PW5 further testified that SI Manish Joshi weighed the smack. The balance was available in the IO kit. PW5 further testified that no recovery was effected in the presence of ACP. PW5 further testified that seizure memo was prepared when he came back with rukka and copy of FIR from PS.
10. PW6 Inspector Harcharan Verma has testified that on 14.04.2004, FIR NO. 215/2004 PAGE 9 OF PAGE 29 PS DEFENCE COLONY at about 1.30 p.m., SI Manish Joshi informed him on telephone that one secret informer had informed him that a person by the name of Kamal who is brother of Parma B.C of PS Defence Colony, is involved in sale of smack, would pass through ganda nala, Gautam Nagar and has illegal smack in his possession and if raided, he could be apprehended. He informed ACP Defence Colony S.K Tomar regarding the said information and he also directed him to conduct raid immediately and told him that he would also come to the spot. PW6 further testified that he directed SI Manish Joshi on telephone to conduct the raid and also told him that he along with ACP would come to the spot i.e. pulia ganda nala, Gautam Nagar, New Delhi where he found SI Manish Joshi, secret informer, SI Ravinder Pandit along with other staff and one public person namely Rajiv Kumar and SI Manish Joshi who had already apprehended accused Kamal present in the court. Accused Kamal was produced before ACP and told that if he wanted to be searched before the ACP in his presence or in the presence of Magistrate but accused had refused for the same. PW6 further testified that ACP directed SI Manish Joshi took formal search of accused Kamal and from the right pocket of his pant, one small plastic bag containing some brownish colour powder was recovered. The said powder appeared to be smack. SI Manish Joshi took out weighing machine from IO kit and the same was weighed and the total weight of smack with plastic bag was 20 grams from which two samples of two grams FIR NO. 215/2004 PAGE 10 OF PAGE 29 PS DEFENCE COLONY each were taken out and the same were put in separate pouches and remaining smack was sealed after putting the same in same plastic and all the three pullandas were sealed with the seal of MJ. IO also filled FSL form at the spot and he also put the specimen seal of MJ on FSL form. All the three pullandas with FSL form were taken into possession vide memo Ex. PW1/A. PW6 further testified that IO handed over all the three pullandas, FSL form and copy of seizure memo to him and he put his seal of HCV on all the three pullandas and FSL form. Seal of MJ was handed over to Ct. Kaushal Kumar and he kept his seal of HCV in his possession after use. SI Manish Joshi prepared the rukka at the spot and got the case registered through Ct. Kaushal Kumar. ASI Bhagwan Sahai recorded his statement on 15.04.2004. PW6 further testified that on 19.04.2004, ASI Bhagwan Sahai informed him on telephone that he had apprehended accused Sanjay, the brother of accused Kamal on the disclosure statement of accused Kamal. After that, ASI Bhagwan Sahai gave him two pullandas sealed with the seal of BS and one FSL form and specimen seal of BS along with copy of seizure memo. He put his seal of HCV on both the pullandas and FSL form and deposited the same along with copy of seizure memo and FSL form in the Malkhana. PW6 further testified that on 06.05.2004, ASI Bhagwan Sahai informed him at about 12.45 a.m. on telephone regarding arrest of accused Parmanand @ Parma and he handed over three pullandas sealed FIR NO. 215/2004 PAGE 11 OF PAGE 29 PS DEFENCE COLONY with the seal of BS and CFSL form having specimen seal of BS and copy of seizure memo pertaining to recovery of smack effected from accused Parmanand . PW6 further testified that he put his seal of HCV on all the three pullandas and FSL form and deposited the same in the malkhana with CFSL and copy of seizure memo. PW6 had also correctly identified the case property.
11. PW7 SI Ravinder Pandit has also deposed the same facts as deposed by PW5.
In his cross examination, PW7 has testified that ACP and SHO had not signed the notice under section 50 NDPS Act.
12. PW8 HC Rajinder has testified that on 20.04.2004, an information/report under section 57 NDPS Act was received by their office pertaining to accused Kamal and entry in the diary register was made in this regard at S.No. 2494. The report was sent by the IO. The same was put up before ACP S.K. Tomar who signed the same which is Ex. PW8/A and diary register is Ex. PW8/B. PW8 further testified that on 21.04.2004, their office had received report under section 57 NDPS Act pertaining to accused Sanjay and entry in this regard is Ex. PW8/C and diary register is Ex. PW8/D. PW8 further testified that on 07.05.2004, their office had received information under section 57 NDPS Act pertaining to accused Parmanand @ Parma and entry in this regard is Ex. PW8/E and diary FIR NO. 215/2004 PAGE 12 OF PAGE 29 PS DEFENCE COLONY register is Ex. PW8/F. Accused persons did not prefer to cross examine PW8.
13. PW9 Ct. Kuldeep Singh has testified that on 19.04.2004, he along with ASI Bhagwan Sahay went for investigation of this case at about 12.55 p.m. They reached Sudarshan road, Gautam Nagar at about 1.50 p.m near H.P Tailor shop where they saw one person who started running towards adjoining street on seeing them. ASI Bhagwan Sahay asked him to stop but he started walking by taking fast steps but he was apprehended. His name was revealed as Sanjay who was identified by ASI Bhagwan Sahay as brother of accused Kamal who was already arrested in this case as smack was recovered from him. At this, ASI Bhagwan Sahay suspected accused Sanjay might have smack in his possession. A notice u/s 50 NDPS Act was served upon him vide which they offered the search in presence of Gazetted officer or Magistrate but he refused. The said notice is Ex. PW9/A and reply of accused is Ex. PW9/B. PW9 further testified that accused Sanjay present in the court was interrogated and his disclosure statement Ex. PW9/C was recorded. Thereafter 45 public persons were asked to join the proceedings and on this one person namely Ankit joined the same. Thereafter accused led them to the roof of his house from where he got recovered Mamdasta, Musal and one Dhakkan of Dabba of blue colour. Scale and some weight were also there. All those articles FIR NO. 215/2004 PAGE 13 OF PAGE 29 PS DEFENCE COLONY were taken into police possession after seizing the same with the seal of BS vide seizure memo Ex. PW3/C. Seal after use was handed over to him. Accused was arrested vide memo Ex. PW3/A and personal search was carried out vide memo Ex. PW3/B. SHO also put his seal of HCV. FSL form was filled up at the spot and after that the same was deposited in the Malkhana. PW9 further testified that on 30.05.2004, he took the samples and case property from Malkhana along with CFSL form vide RC no. 32/21 to deposit the same in CFSL, Chandigarh on 31.05.2004. PW9 had also correctly identified the case property.
In his cross examination, PW9 has testified that no recovery of smack was effected from accused Sanjay in his presence.
14. PW10 Ct. Karan Singh has testified that on 14.04.2004, at about 10.30 p.m., SI Manish Joshi along with one person came in the police chowki and reduced into writing one secret information in his presence vide DD no. 28 vide Ex. PW10/A. He had also received information that ASI Bhagwan Sahay be sent to the spot at Ganda Nala, Gautam Nagar, for investigation of FIR no. 215/04, u/s 21 NDPS Act. He reduced the said information into writing vide DD no. 35 which is Ex. PW10/B. Accused persons did not prefer to cross examine PW10.
15. PW11 SI Manish Joshi has testified that on 14.04.2004, at about FIR NO. 215/2004 PAGE 14 OF PAGE 29 PS DEFENCE COLONY 10/10.15 p.m., one secret informer came to police post and informed him that a person by the name of Kamal who is brother of Parma, a bad character, was dealing with Narcotics drugs and would pass near Ganda nala, Gautam Nagar carrying smack in his possession. On this information, he passed the said information to SHO PS Defence Colony and ACP Defence Colony. SHO Defence Colony directed him that approval had been sought from ACP and he should immediately conduct a raid and apprehend Kamal. PW11 further testified that at about 10.30 p.m., he along with Ct. Kaushal Kumar and secret informer proceeded to Ganda Nala, Gautam Nagar vide departure DD no. 2 where at about 10.35 p.m., he met SI Ravinder and Ct. Girish who were patrolling in the area. He shared the information with them. He further shared the information with 45 passersby out of which one Rajeev Kumar agreed to be a member of raiding party. PW11 further testified that after preparing the raiding party, they did nakabandi at Ganda Nala and started keeping watch on persons coming towards the Ganda Nala from Aurobindo Marg side. PW11 further testified that on the pointing out of secret informer at about 11.00 p.m., they saw a person coming towards Ganda Nala. The raiding party came out to catch him and on seeing the police present, the said person started moving back. On this, he along with Ct. Kaushal caught the said person whose identity was revealed as Kamal present in the court. PW11 further testified that he asked for his personal search to be FIR NO. 215/2004 PAGE 15 OF PAGE 29 PS DEFENCE COLONY conducted either from Gazetted officer or a Magistrate and also told that he had right to conduct personal search of the police personals and Rajeev Kumar. PW11 further testified that he served with him a notice under section 50 of NDPS Act which is Ex. P4. On this, Kamal stated that he was in possession of smack and did not want his personal search to be conducted. He further refused to take the personal search of the police personals and Rajeev Kumar. His reply on the notice is Ex. PW7/A. PW11 further testified that in the meantime, SHO Defence Colony and ACP Defence Colony arrived at the spot and they were briefed about the developments. ACP Defence Colony introduced himself to Kamal and stated that he is a Gazetted officer of Defence Colony and if he wanted, he could get his personal search conducted from him but accused refused for the same. On this, ACP Defence Colony directed to take personal search of accused Kamal. PW11 further testified that he took the personal search of accused and recovered a polythene bag containing brown powder from his right side pocket of his pant, which was smack. The said smack was measured and it was found to be 20 grams out of which two samples of two grams each were drawn as sample. The recovered smack and two samples of two grams each were duly sealed by making pullanda and were sealed with the seal of MJ. The FSL form was filled up at the spot.
The pullandas containing smack were handed over to the SHO
Defence Colony along with FSL form and copy of the seizure
FIR NO. 215/2004 PAGE 16 OF PAGE 29
PS DEFENCE COLONY
memo of smack Ex. PW1/A, for safe custody. SHO Defence Colony put his seal of HCV and took the said articles in his possession. SHO Defence Colony kept the seal of HCV with him and he handed over the seal to Ct. Kaushal Kumar. He prepared rukka vide Ex. PW1/A and got the case registered through Ct. Kaushal Kumar. After this, SHO marked the investigation to ASI Bhagwan Sahay who arrived at the spot. PW11 further testified that on his pointing out , he prepared the site plan. Ct. Kaushal Kumar reached the spot and handed over the copy of FIR and rukka to ASI Bhagwan Sahay. PW11 had also correctly identified the case property. Ld. counsel for accused did not prefer to cross examine PW11.
16. PW12 HC Yudhvir Singh has testified that on the intervening night of 14/15.04.2004, SHO H.C Verma deposited three sealed pullandas duly sealed with the seal of NJ and HCV in the Malkhana and two pullandas were having the marking S1, S2 and third pullanda was marked as A1. He also deposited CFSL form and seizure memo of the case property of this case. PW12 further testified that he made entry in the Malkhana register vide entry no. 1780 and SHO also signed the said entry at the time of deposition of case property which is Ex. PW12/A. PW12 further testified that on 19.04.2004, two sealed pullandas duly sealed with the seal of BS and HCV were deposited. The SHO deposited CFSL form and seizure memo in the Malkhana vide entry no. 1791 which is Ex.
FIR NO. 215/2004 PAGE 17 OF PAGE 29 PS DEFENCE COLONY
PW12/B. PW12 further testified that on 06.05.2004, he received three pullandas duly sealed with the seal of BS and HCV, handed over by the SHO with CFSL form and seizure memo vide entry no. 1814 which is Ex. PW12/C. PW12 further testified that on 30.05.2004, vide RC no. 32/21, he sent the samples to Chandigarh through Ct. Kuldeep along with the CFSL form which was attested by the DCP. He made entry in this regard at entry No. 1780 which is Ex. PW12/D. Ld. counsel for accused did not prefer to cross examine PW12.
17. PW13 Ct. Satish Kumar has testified that on 05.05.2004, he along with IO were on patrolling duty. At about 11.15 p.m., when they reached near main gate, Central Park, Gautam Nagar, at about 11.45 p.m., accused Parmanand @ Parma, present in the court, was seen coming from the side of Gurudwara Lane, Gautam Nagar who was identified as BC of the area by ASI Bhagwan Sahay. Accused was told that he was in possession of smack and notice u/s 50 NDPS Act was served upon him which is Ex. PW13/A. PW13 further testified that accused was further told that it was his right that for his search, Gazetted officer or Magistrate be arranged and it was also told to him that he could take search of the police official before taking his search, but he declined for the same. Accused Parmanand told that he was not in possession of smack but he disclosed that on 14/15.04.2004, in the night, he along with his brother Sanjay had FIR NO. 215/2004 PAGE 18 OF PAGE 29 PS DEFENCE COLONY fled away with smack and he had hidden that smack in a polythene beneath the stones near a tree at vacant place near AIIMS hospital. Copy of notice u/s 50 NDPS Act is Ex. PW13/B and reply of accused is Ex. PW13/C. Accused Parmanand made disclosure statement which is Ex. PW13/D and in pursuance of disclosure statement, accused led them at the said place and got recovered polythene containing smack from beneath the stones near a tree. The recovered smack was weighed by weighing scale and it was found to be five grams out of which two samples of one gram each were taken and same were converted into sealed parcel with the seal of BS. CFSL form was filled up. PW13 further testified that the seal after use was given to him. Personal search memo of accused was prepared vide Ex. PW13/E and his arrest memo is Ex. PW13/F. PW13 further testified that since it was night time, as such no public witness was available. Case property along with CFSL form and coy of seizure memo were produced before the SHO and after being satisfied, he had put his counter seal of HCV on the case property and FSL form. Case property along with CFSL form, copy of seizure memo were seized vide memo Ex. PW13/G. PW13 had also correctly identified the case property.
In his cross examination, PW13 has testified that nothing was recovered from the personal search of accused except notice u/s 50 NDPS Act. PW13 further testified that the notice u/s 50 NDPS Act was written by the IO himself.
FIR NO. 215/2004 PAGE 19 OF PAGE 29 PS DEFENCE COLONY
18. PW14 ASI Bhagwan Sahay has testified that on the intervening night of 14/15.04.2004, at about 1.30 a.m., he was handed over DD no. 35 and he reached the spot at Ganda Nala, Gautam Nagar where SI Manish Joshi along with other police staff and accused Kamal were present. SI Manish Joshi handed over to him relevant documents of the case and Ct. Kaushal Kumar handed over to him original rukka and copy of FIR. SI Manish Joshi pointed out the spot and he prepared the site plan vide Ex. PW14/A. PW14 further testified that he interrogated accused Kamal who made disclosure statement. He got medically examined the accused Kamal and arrested him vide memo Ex. PW1/D and conducted his personal search vide memo Ex. PW1/C. During the personal search of accused, notice u/s 50 NDPS Act was recovered which is Ex. P4. PW14 further testified that he brought accused Kamal to the PS and produced him before SHO who verified the facts from him and he was sent to lock up. He again joined the accused Kamal in investigation to search out his associates involved in the sale and supply of heroin but could not be traced on that day. PW14 further testified that he submitted his report u/s 57 NDPS Act to the SHO for sending the same to senior police officer which is Ex. PW14/B. PW14 further deposed the same facts as deposed by PW9. PW14 further testified that he prepared special report under section 57 NDPS Act with regard to accused Sanjay and submitted the same before the SHO for sending the same to his senior officers which is FIR NO. 215/2004 PAGE 20 OF PAGE 29 PS DEFENCE COLONY Ex. PW14/C. PW14 further deposed the same facts as deposed by PW13. PW14 further testified that he prepared special report under section 57 NDPS Act with regard to accused Parmanand and submitted the same before the SHO for sending the same to his senior officers which is Ex. PW14/D. PW14 further testified that he got sent the sample parcels of heroin recovered from accused Kamal and Parmanand and parcel of Okhli and Musli to FSL. After collecting the same, the same was placed on file. The disclosure statement of accused Kamal was recorded vide Ex. PW14/E. PW14 had also correctly identified the case property. In his cross examination, PW14 has testified that on 15.04.2004, no recovery of smack was effected in his presence.
19. PW15 Dr. Ashok Kumar Dalela has testified that on 31.05.2004, his laboratory received four sealed parcels marked R1, S1, Q1 and Q2 along with specimen seals of BS, MJ, and HCV on CFSL forms and other case related documents through Ct. Kuldeep Singh. The seals on the parcels were intact and tallied with specimen seals as mentioned in his report. He gave his report which is Ex. PW14/G. PW15 further testified that after the examination, the exhibits were resealed with the seals of "CHEMISTRY CFSL, CHANDIGARH". Both the accused did not prefer to cross examine PW15.
20. After closing of prosecution evidence, statements of accused Sanjay FIR NO. 215/2004 PAGE 21 OF PAGE 29 PS DEFENCE COLONY and Kamal were recorded U/s 281r/w 313 Cr.P.C. In their statements, they both denied to have committed the offence and claimed to have been falsely implicated in this case. Accused further denied to lead any defence evidence.
21. I have heard the Ld. APP for the State and the Ld. Counsel for the accused persons and have also perused the record.
22. In the instant case, however, the evidence led by the prosecution does not put forth a convincing ground to convict the accused. First of all, the prosecution appears to have seamed together three different cases involving three different accused and offences committed at three different times. Resultantly, the evidence has been a medley of various facts.
23. Besides, there are material discrepancies in the testimonies of various prosecution witnesses. In the incident relating to recovery from accused Kamal, the major conflict is between the evidence of PW2, the ACP who visited the spot at the time of incident and other police officials forming the raiding party. As per the testimony of PW2, when he reached the spot, the recovery of contraband had already been effected from the possession of accused and accused had already confessed of having committed the crime. Section 50 of the NDPS Act makes it mandatory for the searching officer to take FIR NO. 215/2004 PAGE 22 OF PAGE 29 PS DEFENCE COLONY the accused, if he so requires, to the nearest magistrate or gazetted officer. In this case, all the police officials who were part of the raiding team including the concerned SHO PW6 have deposed that PW2 had accompanied PW6 to the spot and PW2 informed the accused of his right of being searched by a magistrate or gazetted officer as per section 50 of the Act. But PW2 has denied to have accompanied PW6 to the spot. PW5 has specially deposed that PW2 gave the direction for search to PW6 and only thereafter the search was carried out, as per testimony of PW2, when he reached, search had already been conducted.
24. Besides, the public witness who joined the investigation regarding accused Kamal has also not supported the prosecution case. In order to prove the recovery from accused Kamal, the prosecution has produced PW1 Rajesh but he has denied to identify the accused. He has also stated that the accused Kamal was never arrested in his presence with smack. He has further testified that the police obtained his signatures on some paper on which his statement was recorded and he has categorically admitted that the police party never recovered any smack or other contraband from accused Kamal on the day of incident. The prosecutor has cross examined him on several material points. Nonetheless nothing could be elicited from him against the accused.
FIR NO. 215/2004 PAGE 23 OF PAGE 29 PS DEFENCE COLONY
25. Further, as far as compliance with the provision of section 50 of the Act is concerned, the same has also not been done according to the law. The search by a magistrate of gazetted officer must be offered before the actual search is carried out. But in the present case, PW2 has apprised the accused of his right u/s 50 of the Act only when the recovery had already been effected. As such, there was no adherence to the terms of section 50 of the Act. The offer made by PW2 was totally ineffectual at the time when it was made. Search of the accused can also be defaulted on the ground that there is no evidence to show that the officials who took his search were authorised in terms of the provisions of section 42 of the Act. No official is competent to take the search unless he is specially authorized under section 42 of the Act. The copy of the notice u/s 50 of the Act has been proved as Ex. PW1/B. Besides, the evidence also does not make it clear as to how the copy of the notice having the reply and signature of the accused Kamal was seized. As per the deposition of PW5, one notice under section 50 NDPS Act was recovered from the pocket of shirt of the accused on his personal search. None of the other witnesses has supported this fact in their evidence. The personal search memo of accused Kamal also does not mention recovery of any such copy.
26. As per the testimony of the police witnesses, SHO /PW5 also put his seal on the parcel containing the contraband recovered from FIR NO. 215/2004 PAGE 24 OF PAGE 29 PS DEFENCE COLONY accused Kamal. However, when those parcels were produced before the court for identification, no seal affixed by PW5 was found on them. Otherwise also, as per the testimony of PW5 himself, the seal after use was not handed over to any other witness and the same was kept by him with himself.
27. Further, as per the testimony of the witnesses, the smack found in the possession of accused was weighed before being put into parcel and as per testimony of PW5, weights and measures were lying with PW11 in his kit. However, no other witness including PW11 has supported him on this point. PW11 has not stated anywhere that he was having a kit comprising weights and measures and he weighed the contraband. Thus, in this respect also the evidence is doubtful.
28. Another accused Sanjay was allegedly arrested on 19.04.2004 by PW5 and PW14. In the first place, no grounds have been furnished by the prosecution as to why the accused Sanjay has been tried by accused Kamal. Accused Sanjay is not stated to have been arrested on the disclosure statement of accused Kamal. Therefore there is no connection between the arrest of these two persons. And so far as the recovery is concerned, no contraband has been recovered from the possession of accused. On the basis of the disclosure statement Ex. PW9/C, the police recovered certain articles i.e imam dasta, Musal FIR NO. 215/2004 PAGE 25 OF PAGE 29 PS DEFENCE COLONY and one Dhakkan and Dabba along with some scales and weights but no contraband. On the basis of these articles, the accused cannot be held guilty for the offence.
29. Again, the recovered articles were produced to the SHO/PW5 in the police station where he affixed the seal on the parcels. Sealing by SHO was meaningless because the articles were not recovered in his presence.
30. The third accused Parmanand is stated to have been allegedly arrested on 05.05.2004 . Again there is no explanation as to why this accused is prosecuted along with two other accused persons. No contraband was recovered from his possession at the spot. However, as per disclosure statement Ex. PW13/B, in pursuance of search, smack was recovered from nearby place in the vicinity of AIIMS hospital. In this case also, the seal of the SHO was affixed only at the police station and not at the spot in the presence of PW5. From the evidence, it is not clear whether the parcels were bearing the same seals when they were produced in the court. Also there is no explanation as to how the copy of notice under section 50 NDPS Act was recovered from the possession of accused because there is no seizure memo to this effect.
31. The prosecution was also required to prove that the sample of FIR NO. 215/2004 PAGE 26 OF PAGE 29 PS DEFENCE COLONY contraband was not tampered with before the same was deposited with the CFSL. There is no reliable evidence in the court to show whether the contraband recovered from the possession of accused was ever deposited in the CFSL. PW5 who was SHO at that time has not deposed anything with regard to this fact. PW16 the official from CFSL has testified that he received parcels on 31.05.2004. Thus the parcels were deposited to FSL after undue delay. In Nilmani vs. State of Orissa 1997(2) East CRI(C) 439, the Orissa High court has held that "that the fact that the seal as well as the sample remained with the official for a long time, it caste a doubt on the prosecution story and the possibility of tampering cannot be ruled out".
32. Again, it is also necessary for the prosecution to prove that the CFSL form containing specimen seal was filled at the spot and was sent to the CFSL. In the present case, the recovery witnesses have stated that the CFSL form was also filled at the spot and the same along with three parcels containing contraband were taken into possession by the IO as per seizure memo. However, there is no evidence that the CFSL form was also deposited either in the Malkhana or with the CFSL. The CFSL report which is Ex. PW14/G, does not state that the CFSL form was received in the CFSL. PW15 who has proved the said report has also deposed about the receiving of parcels and he has not stated anything with FIR NO. 215/2004 PAGE 27 OF PAGE 29 PS DEFENCE COLONY regard to form No. 29. In Gulam Mohd. vs. State, 1997 JIC 78, The Delhi High Court has held that "in order to prove that the sample was not tampered with, the CFSL form is an important piece of evidence. When there is no evidence to show that the same was deposited in the Malkhana along with the sample or it was sent to the office of the CFSL, there is every possibility of tampering and conviction cannot be held on these grounds".
33. The prosecution evidence also reveals that the samples and seizure memo both were prepared before the registration of the FIR but yet both the seizure memo as well as form 29 bears the FIR number. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery 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 given by the aforesaid witnesses and creates a good deal of doubt about recovery in the manner alleged by the prosecution. Similar view has been held in Zohra vs state 2000(83) DLT 177 (Del).
34. All these infirmities in the prosecution evidence seriously reflects on FIR NO. 215/2004 PAGE 28 OF PAGE 29 PS DEFENCE COLONY the varacity of prosecution case the benefit whereof must go to the accused.
35. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and they both are given the benefit of doubt and therefore accused Kamal and Sanjay are acquitted for the offence punishable U/s. 21 of NDPS Act for which they both stand charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 09.10.2013 Metropolitan Magistrate
South East/New Delhi
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PS DEFENCE COLONY
FIR No. 215/2004
PS Defence Colony
u/s 21 NDPS Act
09.10.2013
Present: Ld. APP for the State.
Both accused are on bail with counsel.
NBWs of accused stand cancelled on their application. Final arguments heard.
Vide my separate judgment dictated and announced in the open court, accused Sanjay and Kamal are acquitted for the offence punishable U/s 21 of NDPS Act for which they both stand charged.
Both the accused persons are released on bail on furnishing personal bonds in the sum of Rs.15,000/each with one surety each in the like amount. Bail bonds furnished. Same are accepted. As per section 437 A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal as well as surety for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/09.10.2013
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PS DEFENCE COLONY