Delhi District Court
Fir No. 28/2014 State vs . Sonu Etc Page No.1 Of 36 on 22 September, 2018
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE02 (EAST) SPL. JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
New Case No. 645/2016
FIR No.28/2014
U/s 15/25 NDPS Act
PS Preet Vihar
State
Versus
(1) Sonu s/o Sh. Ramji Sharma
r/o Jhuggi No. 8, Block No.8
Khichripur, Delhi
(2) Nemchand @ Raju
r/o Jhuggi no.8 Block
Khichripur, Delhi110091
Also at:
Village Kailai PS Data Ganj
District Budaun UP
........... Accused
Date of Institution: 12.03.2014
Reserved for Judgment on : 23.08.2018
Judgment pronounced on: 22.09.2018
JUDGMENT
The prosecution case in brief is that on 11.04.2014 at about 3.30 p.m, HC Sahansarvir alongwith Ct.Vikul and Ct.Krishanvir were on patrolling in the area and were present near FIR No. 28/2014 State Vs. Sonu etc Page No.1 of 36 Preet Vihar Metro Station, Jhankar Banquet Hall, Vikas Marg. HC Sahansarvir noticed that one person was standing with TSR no. DL 1 RN 2084 at bus stand near Preet Vihar Metro Station. On seeing the police party, the said person got perplexed and he tried to go away from there but due to heavy traffic, he could not move. Police team reached near him and two boras were found loaded in the TSR. The driver of the TSR was enquired as to what is there in the boras to which he replied that the boras contained dhaniya powder. The driver got perplexed. HC Sahansarvir took out some powder after inserting his finger at the corner of one bora and kept it on his palm and rubbed it. On smelling, it gave some strange smell. It was felt that the boras did not contain dhaniya powder but contained doda posht powder. He informed the duty officer in the PS at about 1600 hours. He also asked the duty officer to inform the senior officers and requested to send the IO. Duty officer recorded DD no. 25A which was handed over to SI Mohd. Rizwan who reached at the spot where HC Sahansarvir met him alongwith one person named Sonu s/o Ramji Sharma. He was told that the boras in TSR No.DL 1RN 2084 are emitting smell of doda posht. Statement of HC Sahansarvir was recorded. SI Mohd. Rizwan asked 45 passersby to join the investigation but they left away after telling their genuine grounds. TSR driver Sonu was informed about his legal rights and that it seems that his TSR is loaded with illegal doda posht and that the search of the same is to be conducted and that before taking the search of TSR, it was his legal right that he can get himself and his FIR No. 28/2014 State Vs. Sonu etc Page No.2 of 36 TSR searched before any Gazetted Officer/Magistrate and the arrangement for the same can be made at the spot. He was also explained that before search of TSR, he can take the search of police party. He was explained the meaning of Gazetted Officer and Magistrate. A notice u/s 50 NDPS Act was served upon the accused. Accused refused to get himself and his TSR searched before the Gazetted Officer/Magistrate. 1015 persons gathered at the spot who were requested to join the police party but they left away telling their personal reasons. Personal search of the accused was conducted but nothing incriminating was recovered. Both the boras were stitched and on one bora 'Chandna' and on another "Debendra Tea & Co Pvt. Ltd." were written. On opening, both the boras were found containing dhaniya powder like substance in big blue plastic. SI Rizwan kept some powder on his palm, rubbed it and smelt and some strange smell was found emitting and on the basis of physical appearance, it was found to be doda posht. Thereafter,the recovered boras alongwith TSR and accused were brought to the shop of Bikanerwala at Commercial Complex Preet Vihar where the said substance was weighed on electronic weighing machine and each bora was found to have contained 34 Kgs substance. Total 68 Kgs doda posht was recovered. Two samples of 250 grams each were drawn after mixing the substance. The same were converted into pullandas and given Mark A and B and remaining doda posht was also tied with sutli, converted into pullanda and given Mark C and D. Again they came at the spot FIR No. 28/2014 State Vs. Sonu etc Page No.3 of 36 where form FSL was filled. All the pullandas were sealed with the seal of PS Preet Vihar PV08 East Distt and same seal was affixed on the form FSL. Seal after use was handed over to Ct.Krishanvir. The case property was seized. On interrogation, accused disclosed that the doda posht was taken by him from one Raju whose mobile number is 9582078475 and that he used to take the doda posht through his TSR earlier also and that on 11.01.2014 Raju told him over phone that the said substance would be brought in bus no.1571 and that he should meet him at Preet Vihar Metro Station with the substance and that he was waiting for said Raju there. Rukka was prepared and it was handed over to HC Sahanservir alongwith form FSL, copy of seizure memo and TSR with direction to hand over the case property to SHO and rukka to duty officer. Duty officer recorded the present case FIR and SHO conducted the proceedings u/s 55 NDPS Act and affixed his seal on the pullandas. After registration of the case, further investigation was conducted by SI R.S Pandit, who reached at the spot. He arrested the accused and conducted his personal search. He deposited the TSR in malkhana. Accused Sonu made disclosure statement Ex.PW2/D2. On the basis of disclosure statement of accused Sonu, accused Nem Chand was arrested from his house. He was served with notice u/s 50 NDPS Act but no prohibited substance was recovered from him. Disclosure statement of accused Nem Chand was also recorded. Source of supply was searched but he could not he found. On 21.01.2014, exhibits were sent to FSL through Ct. Ghasi Ram. CDRs of mobile FIR No. 28/2014 State Vs. Sonu etc Page No.4 of 36 of accused were obtained. Pending receipt of FSL result, charge sheet was prepared against the accused persons u/s 15/25 NDPS Act and they were sent to court for trial.
2. FSL result was filed in the court which confirmed that samples contained poppy straw. After compliance of section 207 Cr.P.C., charge u/s 15/25 NDPS Act was framed against accused Sonu and both the accused Sonu and Nem Chand were also charged u/s 29 of NDPS Act to which both the accused pleaded not guilty.
3. In order to prove its case, prosecution examined 12 witnesses. PW1 is HC Ishwar Singh. He recorded the FIR no.28/14. The copy of FIR is Ex.PW1/A and endorsement on rukka is Ex.PW1/B.
4. PW2 is Ct. Kishan, PW4 is HC Sahansar Vir, PW7 is Ct.Vikul Kumar and PW8 is SI Mohd Rizwan. They are the members of raiding party and witnesses of arrest and recovery. Their testimonies are more or less the same as stated in para '1' of the Judgment and therefore, are not being repeated for the sake of brevity.
5. PW3 is Ct. Ghasi Ram. He took two pullandas to FSL with FSL form vide RC no.26/21/14 and deposited the same there. After deposit of the exhibits, he handed over the receipt Ex.PW3/A FIR No. 28/2014 State Vs. Sonu etc Page No.5 of 36 to MHCM.
6. PW5 is SI R.S.Pandit. He is the second IO. He deposed that on receipt of copy of FIR no. 28/14, he alongwith HC Sahanservir reached at the spot. He met with SI Rizwan and staff alongwith accused Sonu. TSR no. DL 1RN 2084 was also parked at the spot. Documents of the case alongwith accused and TSR were handed over to him. He served notice u/s 52 NDPS Act Ex.PW2/C upon accused. SI Rizwan also handed over the Micromax mobile phone to him. He prepared seizure memo Ex.PW2/B. He took personal search and recovered Rs.500/ and some visiting cards were recovered which were seized vide personal search memo Ex.PW2/D1. He arrested accused vide arrest memo Ex.PW2/D. He brought the accused to PS and TSR was deposited in malkhana. He made DD no.8B. He recorded disclosure statement Ex.PW2/D2 of the accused. He further deposed that he alongwith other officials went to H.No. G43, Bhagat Singh Colony, Libaspur from where on the pointing out of accused Sonu, coaccused Nem Chand was apprehended. Notice u/s 50 NDPS Act was served upon him. He was searched but no prohibited substance was recovered from him. Notice u/s 52 NDPS Act was served upon the accused which is Ex.PW2/F. Accused was arrested vide arrest memo Ex.PW2/E and his disclosure statement Ex.PW2/P2 was recorded. He obtained two days PC remained of accused Nem Chand who took the police party to Badaun UP for the search of accused Nazmun but he was not FIR No. 28/2014 State Vs. Sonu etc Page No.6 of 36 traceable. PW5 prepared the site plan Ex.PW5/A. On 21.01.2014, he sent the exhibits to FSL Rohini through Ct. Ghasi Ram. He sent request for obtaining the CDRs of mobile phone of Sonu and Nem Chand. He obtained the CDRs which showed that both the accused were in touch with each other on mobile phone. Micromax mobile is Ex.P5. In cross examination conducted by Ld. Addl.PP, he submitted that he prepared report u/s 57 NDPS Act on 12.01.2014 Ex.PW5/B. TSR is Ex.P6.
7. PW6 is Hare Ram Tiwari. He is the Security Guard at Bikaner shop. He deposed that on 11.01.2014 at about 4.00 p.m, SI Rizwan and one HC came at their shop and they had brought two plastic bags containing some powder type material in TSR. The said plastic bags were weighed on weighing scale belonging to the said shop and the weight of each bag was 34 Kgs. He also deposed that two samples of 250 grams each from the said two bags were drawn as sample by SI Rizwan and the bags and samples were taken away by them. He identified the sample Mark A as Ex.P1 and sample Mark B as Ex.P2. Parcels Mark C and D are Ex.P3 and Ex.P4. TSR is Ex.P6. He was also declared hostile by the prosecution and cross examined by Ld. Addl.PP. In such cross examination, he has admitted the suggestions put by Ld. Addl.PP that the said two bags were contained doda posht and the said bags were weighed on electronic weighing scale and the samples were given Mark A and B and the rest of the packets were kept in the same bags and given FIR No. 28/2014 State Vs. Sonu etc Page No.7 of 36 Mark C and D. He denied the suggestion that accused was also brought by HC Sahansarvir and SI Rizwan at the spot. He denied the suggestion that accused Sonu was brought by SI Mohd. Rizwan and HC Sahanservir on that day at the above mentioned shop and that in his presence the weight of the said two plastic bags were done on the electronic weighing scale and that the said samples were drawn in the presence of accused Sonu or that he is intentionally not identifying him. He does not remember the initials of seal. He does not know to whom the seal after use was handed over.
8. PW9 is Surender Kumar. He is Nodal officer from Bharti Airtel. He has produced the record of mobile no. 9971428714 which is in the name of Sonu Sharma, CAF is Ex.PW9/A. He produced the report Ex.PW9/B that record is preserved only for a period of one year and thereafter it gets deleted from the server automatically. His report is Ex.PW9/B.
9. PW10 is Insp. K.S.Rawat. He is the then SHO. He deposed that HC Sahansarvir came to his office and handed over parcels Mark A,B,C and D sealed with the seal of PS Preet Vihar PV08 EAST DISTT alongwith FSL form and carbon copy of seizure memo. He confirmed the FIR number and put the same on the parcels. He also sealed the same with his seal of PS Preet Vihar PV 07 EAST DISTT. He called the MHCM and deposited the parcels in the malkhana through MHCM who made relevant entries in register FIR No. 28/2014 State Vs. Sonu etc Page No.8 of 36 no.19.
10. PW11 is the then MHCM. He was called by SHO who handed over him four parcels with seal of PS Preet Vihar PV08 and PS Preet Vihar PV08 East Distt alongwith copy of seizure memo and FSL form. He deposited the same in Malkhana vide entry no.1671/14, Ex.PW11/A. He also deposed that SI RS Pandit also deposited TSR no.DL 1RN 2084 in the malkhana. He made entry Ex.PW11/B. He further deposed that on 21.02.2014, he handed over sample Mark A and B to Ct. Ghasi Ram vide RC no.26/21 Ex.PW1/C for depositing the same in FSL and after deposit, he was handed over the receipt Ex.PW11/D.
11. PW12 is Israr Babu. He is Nodal Officer from Vodafone. He brought the record of Mobile no. 9582078475 in the name of Roop Kaur which was activated on 26.02.2011 and de activated on 24.05.2014. CAF is Ex.PW12/A. The call details record is Ex.PW12/B and certificate u/s 65B of Evidence Act is Ex.PW12/C.
12. Statements of accused persons u/s 313 Cr.P.C were recorded wherein both the accused have stated that they are innocent. They have been falsely implicated in this case. Accused Nem Chand has also stated that on 12.01.2014 at about 7.30 a.m, he left his home for his labour work. When he reached Swaroop Nagar FIR No. 28/2014 State Vs. Sonu etc Page No.9 of 36 Highway and waiting for the bus, one vehicle stopped near him. 34 persons enquired him about his name and address. When he was unable to give his ID, then they forcibly took him in that vehicle and brought to police station. There they asked mobile number of any known. Thereafter, he gave them number of one of his neighbours Sunil who also lived nearby his rented residence. Sunil reached at the PS alongwith his driving licence. Police officials sent him back after taking his driving licence by saying that he will be left after enquiry. Thereafter, they forced him to sign some blank papers. When he refused to do the same, then they gave him merciless beatings and forcibly took his signatures on blank papers. He kept on saying that he does not know that auto driver. Further, he does not have any concern with the alleged recovery. Even he did not make any disclosure statement to the police. At that time, he was not using any mobile phone. The police officials have falsely implicated him in this false case. Accused Nemchand opted to lead the defence evidence in his statement but later he did not lead any evidence and closed the D.E.
13. Arguments have been heard from the Ld. Addl. PP as also from the Ld.Counsel for accused. Ld. Addl.PP has argued that the recovery witnesses examined by the prosecution have proved the recovery of 68 Kgs of poppy straw from the possession of accused persons. All the relevant provisions of NDPS Act have been duly complied with. The witnesses have supported the prosecution case.
FIR No. 28/2014 State Vs. Sonu etc Page No.10 of 36 FSL result confirms that the recovered substance was poppy straw. It is therefore, argued that the prosecution has been able to prove its case against the accused.
14. Ld. Counsels for accused Nem Chand submits that no recovery has been effected from the accused and that he was also arrested on the disclosure statement of accused Sonu. There is no evidence against him. He prays that the accused may be acquitted.
15. Ld. Counsel for accused Sonu submitted that all the recovery witnesses are hostile and that they have simply admitted the suggestions put by the Ld. Add.PP. It is submitted that the statement of security guard available at Bikanerwala was recorded by the IO, however, no one was joined from inside the shop in the investigation. There may be a number of persons at the sweet shop. Owner of the shop has not been examined. Ld. Counsel submits that as per the case of the prosecution accused had also accompanied to the said shop however, as per the statement of security guard, accused did not come to the shop at the time of weighing of the contraband. He also submitted that SHO PW10 has stated that he did not receive any information about the case prior to coming of HC Sahanservir while the case of the prosecution is that all the facts were discussed before hand. He also submitted that PW3 has stated that the pullandas were sealed with the seal of SI Pandit while as per the case of the prosecution, different seal was affixed on the FIR No. 28/2014 State Vs. Sonu etc Page No.11 of 36 pullandas. As per statement of PW4 HC Shahanser Vir rukka and case property were taken to PS by him and rukkaa was handed over to Duty officer and TSR was handed over to MHCM and FSL form to SHO while SHO has stated that the same were given to him. Ld. Counsel argued that no one has been examined from the office of ACP to prove the report u/s 57 NDPS Act. Ld. Counsel has argued that even the provisions of section 50 NDPS Act as also 42 of NDPS Ct has not been complied with in this case. There is delay in sending the samples to FSL. It is requested that the accused persons may kindly be acquitted.
16. PW2 Ct Kishan, PW4 HC Sahanser Vir, PW7 Ct. Vikul and PW8 SI Mohd. Rizwan are the four witnesses of recovery on which the prosecution case mainly rests. PW2 Ct. Kishan PW4 HC Sahanser Vir and PW7 Ct. Vikul were on patrolling in the area and they saw the TSR bearing no. DL 1 RN 2084 near Jhankar Banquet Hall loaded with two boras. The witnesses have stated that driver of the TSR became suspicious and tried to go away with TSR but due to traffic, he could not move away. He was asked about the contents of the boras and he stated that it was dhaniya powder contained in the said boras. PW4 took out some powder with his finger and after rubbing the same on palm, it was smelling something strange and the smell was resembling like doda posht powder. He called up the PS and inform about the same and thereafter, PW8 SI Mohd. Rizwan came at the spot and conducted further proceedings. On FIR No. 28/2014 State Vs. Sonu etc Page No.12 of 36 perusal of the testimonies of PW2 Ct. Kishan, PW4 HC Sahanserveer, PW7 HC Vikul Kumar, it is revealed that these three police officials were on patrolling initially and PW8 joined them later after receipt of information at the PS and when DD concerning the same was marked to him. On perusal of the statements of initial witnesses, it is revealed that none of them have supported the case of prosecution. They have turned hostile and cross examined by the Ld. Addl.PP. In cross examination, all these three witnesses have admitted the suggestions put in affirmative by the Ld. Addl.PP. None of the witness could depose the complete facts of the case. Even PW7 could not identify accused Sonu in the court. PW2 has stated that SI Mohd. Rizwan came at the spot and took accused Sonu with TSR having plastic sacks to the PS while the case of the prosecution is that firstly the case property was taken for weighing purpose at the shop of Bikanerwala shop. PW2 has stated in cross examination that SI Rijwan had prepared notice u/s 50 NDPS Act and rukka at the spot prior to leaving for Bikaner Shop. This version of PW2 demolishes the case of the prosecution because rukka could not have been prepared before weighing of case property and even otherwise the case of the prosecution is that SI Rizwan came at the spot from the Bikanerwala shop and then he prepared the rukka. From the testimonies of these three witnesses, it can be in inferred that they were not present at the spot and thus, they could not depose the facts as per the case of the prosecution and that they have only gave affirmative replies to the suggestions put by the Ld. Addl.PP. FIR No. 28/2014 State Vs. Sonu etc Page No.13 of 36
17. Ld. Counsel for the accused stated that the IO of this case has not associated any public witness in this case. However, Ld. Addl.PP stated that PW7 Hare Ram Tiwari is the public witness and that his testimony is straight forward regarding the incident. Accused was apprehended while the police officials were on patrolling. Admittedly, there is no public witness of recovery effected at the spot and and all the recovery witnesses are police officials. The place of apprehension as per site plan Ex.PW5/A is Vikas Marg, near Preet Vihar Metro Station, Near Jhankar Banquet Hall. The time of apprehension of accused is about 3.30 p.m. PW8 SI Mohd. Rizwan has stated that he requested the public persons gathered at the spot to join the investigation but they refused. PW8 has not stated more than this regarding joining of any public witness in this case at Vikas Marg. However, PW5 SI R.S.Pandit, 2 nd IO has admitted in cross examination that the spot is situated in a crowded place. He requested passersby to join the investigation but they refused. He did not request the staff of Jhankar Banquet, any shopkeeper or the staff to join the investigation. From the testimony of PW5, it is crystal clear that the spot is a busy place. Many public persons used to pass through the same. There is even a banquet hall and metro station near the spot. PW4 Shahanservir has deposed in cross examination that IO requested the officials of Jhankar banquet to join the proceedings but none agreed. The pan shop owner Panna Lal was also requested but he did not agree. He admitted that spot is FIR No. 28/2014 State Vs. Sonu etc Page No.14 of 36 a thickly populated and residential area. PW8 has not served any notice to the persons who refused to join the investigation. The place of apprehension is also a residential colony. Be that as it may, statement of IO SI Rizwan as also other witnesses revealed that public persons were present at the spot. Even the shopkeepers were also present. But the IO did not ask any person from the residential area to join the investigation. Accused was apprehended at about 3.30 p.m. There was enough time and opportunity to join the public persons in the raiding team. No notice was served to the public persons nor any action taken against them on their refusal to join the investigation. Police officials remained at the spot till about 9.00 p.m. Thus, the police team remained at the spot for more than five hours. During this long time, no one from the public was joined though place of apprehension is a residential area and even shops were situated there. There is also a metro station near the spot. Thus, it appears that no genuine effort was made to join the public persons in the raiding team. Ld. Addl.PP has referred to the decision of Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 arguing that failure to associate independent witnesses is not fatal to the prosecution case as long as it is shown that efforts were made and none was willing. However, it is seen that in the said decision, Hon'ble Supreme Court emphasized that it has to be shown that after making efforts which the court considers in the circumstances of the case reasonable, the police official was not able to get the public FIR No. 28/2014 State Vs. Sonu etc Page No.15 of 36 witness associated in either raid or the arrest of the culprit. In other words, in every case, it will have to be examined whether serious efforts were made by the police to associate public witnesses.
18. The Hon'ble Supreme Court in Ritesh Chakraborty Vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150 deprecated the practice of Investigating Officer in not noting down the names of the public persons, who fail to join the investigation.
19. In Anup Joshi Vs. State, 1999 (2) CC Cases 314, and Roop Chand Vs. State of Haryana, 1999 (1) CLR 69; the failure to proceed against the public persons, who refused to join the investigation was considered as suggestive of the fact that the explanation for nonjoining of witnesses is an afterthought and is not worthy of credence.
20. In the case of Mohd. Masoom Vs. State of NCT of Delhi, Criminal Appeal 1404/11, decided by Delhi High Court on 09.04.2015, the Hon'ble High Court in Para No. 10 held as under: "10. "Appellants" conviction is primarily based upon the testimonies of the police officers/officials only. Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no FIR No. 28/2014 State Vs. Sonu etc Page No.16 of 36 rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of the police officials. Sometimes, it becomes highly difficult for the police officials to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of independent public witnesses is not a mere formality.
Simply saying by the police witnesses that public witnesses were not available without any evidence to that effect would not suffice. The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits."
21. Hon'ble High Court in para '21' of the aforesaid Judgment held that it has become almost routine practice for the police to say that passersby were requested to join and they declined and went away without disclosing their names and therefore, the FIR No. 28/2014 State Vs. Sonu etc Page No.17 of 36 Court should be wary of routinely accepting such explanation.
22. In the latest case of Om Prakash Vs. State III (2014) CCR 1 (Del.), it is held that 'in absence of clear evidence to show that sincere effort was made, Court should not simply accept proposition that generally in such cases no member of public comes forward to help prosecution'. Reliance also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.
23. In the present case, public persons were not made to join the proceedings at the time of recovery at the spot and there seems to be no genuine efforts to join them. Ld. Addl.PP submits that PW6 was joined in the investigation. However, it is revealed that the PW6 was working as Security Guard at the shop of Bikanerwala and he was associated only at the time of weighing the boras at the shop. He is not the witness at the time of recovery of doda posht. His testimony can be considered qua weighing of the contraband. However, during cross examination by Ld. Addl.PP he has denied the suggestion that accused Sonu was also present at the time of weighing of boras. Hence, nonjoining of public witnesses at the time of recovery creates doubt regarding the entire proceedings being genuine.
24. In the present case, allegedly poppy straw was FIR No. 28/2014 State Vs. Sonu etc Page No.18 of 36 recovered. PW4 HC Sahansar Vir stated that he took out some powder with his finger, after rubbing the same on palm, it was smelling something strange and the smell was resembling like doda posht powder. In cross examination, he has stated that he had not joined investigation of any case pertaining to NDPS Act prior to the present one. Even PW8 SI Mohd. Rizwan has admitted in cross examination that the material contained in the said packets/boras was not tested on any field testing kit and the same was checked by him by smelling and on his personal experience. The police officials accompanying PW4 Sahanser Vir had never joined in the investigation of NDPS Act case. PW8 has not stated that he ever took any training to identify the contraband by its smell. Admittedly, the doda posht was not tested on any instrument. Thus, it is not understood as to how PW4 or PW8 could identify that the boras loaded in the auto was containing doda posht.
25. I have perused the seizure memo Ex.PW2/A. It was prepared by PW8 SI Rizwan Mohammad after recovery of alleged doda posht. The FIR of the present case was registered after recovery and preparation of seizure memo by PW8. However, perusal of seizure memo Ex.PW2/A reveals that it bears the FIR Number with same pen and same handwriting. When the FIR was registered after preparation of seizure memo, it is not understood as to how FIR number bear on the seizure memo. There is no explanation from the prosecution side in this respect. Bearing FIR FIR No. 28/2014 State Vs. Sonu etc Page No.19 of 36 number on the seizure memo creates doubt about some manipulation in this case.
26. PW8 SI Mohd. Rizwan has not stated anything about preparation of report u/s 57 NDPS Act and sending copy of the same to SHO concerned. However, PW5 SI R.S.Pandit, 2 nd IO has stated after he was declared hostile that he prepared report u/s 57 NDPS Act on 12.01.2014 Ex.PW5/B. He has no where stated that the said report was sent by him to the then SHO for forwarding the same to ACP concerned. PW10 Insp.KS Rawat, the then SHO has also not stated that he ever received the report u/s 57 NDPS Act. Perusal of report reveals that it has not even signed by the SHO concerned. Thus, it is clear that the said report has never been placed before the SHO. No witness has been examined by the prosecution from the office of ACP concerned to prove that the said report was received in the office of ACP. Thus, there is no compliance of Section 57 of NDPS Act in this case. It seems that the copy of report u/s 57 NDPS Act has been simply placed on record while there is no proper and adequate compliance of section 57 of NDPS Act.
27. PW10 Insp. K.S.Rawat, the then SHO has stated in cross examination that HC Sahansar Vir had briefed him that doda posht was recovered from an auto rickshaw from two accused near Preet Vihar Metro Station. He also disclosed the name and addresses of two accused persons but he does not remember the same now. In FIR No. 28/2014 State Vs. Sonu etc Page No.20 of 36 the present case, only one accused was apprehended at the spot with auto rickshaw loaded with two boras allegedly containing doda posht. However, SHO has deposed contrary to the prosecution case about the apprehension of two accused.
28. PW8 has stated that after leaving two constables at the spot, he took both the recovered bags in the same TSR driven by HC Sahanser Vir alongwith accused Sonu to the shop of Bikanerwala at Preet Vihar Complex and on weighing, both the bags on an electronic weighing machine, it was found that the weight of each bag was 34 Kgs. As per statement of PW8, accused Sonu accompanied PW8 to the shop of Bikanerwala where the poppy straw was weighed. PW4 Sahansar Vir after declaring him hostile has stated that accused was taken to the shop of Bikanerwala. I have also perused the statement of PW6 Hare Ram Tiwari who is the witness from Bikaner shop as he was working as Security Guard there. He stated that SI Rizwan and one HC came to the shop with two plastic bags containing some powder type material in TSR which were weighed and found to be 34 Kgs each. He was declared hostile by the Ld. Addl.PP and cross examined wherein he denied the suggestion put to him that accused Sonu was also brought by HC Sahanservir and SI Mohd. Rizwan to the said shop. PW2 Ct. Kishan Vir has not stated that accused Sonu was also taken to the shop for weighing of the doda posht. Infact, he himself did not go to the shop. No suggestion has been put to this witness during cross FIR No. 28/2014 State Vs. Sonu etc Page No.21 of 36 examination by Ld. Addl.PP that accused Sonu was also taken to the shop of Bikanerwala. PW4 HC Sahanser Vir has stated that IO took the recovered material and TSR to the Commercial Complex, Preet Vihar where articles were weighed. In cross examination conducted by Ld. Addl.PP he admitted that accused Sonu was taken in TSR to the said shop. He also stated that at the time of weighing Ct. Vipul and Ct. Kishan Vir remained at the spot. PW7 also no where stated that accused Sonu was taken to the said shop for the purpose of weighing the doda posht. Only PW8 has stated that accused Sonu was taken to the said shop. PW6 security guard posted at the shop has specifically stated that accused did not accompany to the police officials and other police officials also did not state that accused Sonu accompanied to the said shop. It is admitted fact that Ct. Kishan Vir and Ct. Vikul remained at the spot. Had the TSR as also the accused been taken to the shop at Bikanerwala, there was no question of leaving the said two police officials at the spot. Leaving them behind at the spot creates suspicion that they might have been left with custody of accused. Thus, as per statements of witnesses and specifically the statement of PW6 as also the evidence on record, it is clear that accused Sonu has not accompanied to Bikanerwala shop for the purpose of weighing the poppy straw. Thus, since the weighing process of poppy straw at the shop of Bikanerwala was not conducted in the presence of accused, the case of the prosecution seems to be manipulated.
FIR No. 28/2014 State Vs. Sonu etc Page No.22 of 36
29. Ld. Counsel argues that there is delay in sending the samples to the FSL. Recovery was allegedly effected from the possession of accused on 11.01.2014. PW2 Ct. Ghansi Ram had collected the exhibits on 21.02.2014 from MHCM and took the same to FSL vide RC no.58/21. There is delay of about 40 days in sending the samples to FSL. Hon'ble High Court in the case of Matlub Vs. State 67(1997) DLT 372 held that sample needs to be sent to FSL without delay and if samples are dispatched with delay and no explanation is given, tampering with the seal can be inferred.
30. It has been held by the Hon'ble High Court of Delhi in case titled as Rishidev @ Onkar Singh Vs. State (Delhi Administration), decided on 01.05.2008 in Crl. Appeal No. 757/2000, as under: "8. In a significant judgment in Parminder Singh Vs. State of Haryana 2007(2) JCC (Narcotics) 71, the Punjab and Haryana High Court found that there was no explanation for the delay of 25 days in sending the samples for analysis. In para 13 of the Judgment it was held as under: (JCC @ P.76) "13. No explanation has come forward from the side of the prosecution as to why the samples were sent after a gap of 25 days for analysis.
S.K.Nagpal, Retired Senior Scientific Officer, FSL, Madhuban PW2 has stated that on 07.08.2001 five sealed parcels were received in FIR No. 28/2014 State Vs. Sonu etc Page No.23 of 36 the Laboratory, but the same were returned back due to the reason that the FIR in that case was registered on 12.07.2001, with the objection regarding the delayed deposit of sample parcels. As per this witness, according to the Narcotic Control Bureau Instructions, the sealed parcels should be deposited within 72 hours with the Chemical Examiner. He has further stated that two samples were to be taken of the seized contraband as per instructions. The explanation given by DSP Chander Singh PW6 to this witness was that samples could not be sent earlier due to VVIP duties. Ram Kumar MHC PW3 brought Rapat Roznamcha from 12.07.2001 to 16.07.2001.
During this period, it has been shown that the Police Force was not sent for VVIP duty at anytime. The cross examination of Ram Kumar MHC PW3 was deferred by the trial court to enable the witness to produce the Roznamcha from 16.07.2001 to 13.08.2001. This witness was not brought into the witness box by the prosecution. We can safely infer that Ram Kumar PW3 was not brought again into the witness box, as the period from 16.07.2011 to 13.08.2011 did not show any VVIP duty. It is clear that the Investigation Officer Chander Singh DSP PW6 has only made an excuse, which is not convincing, that the samples could not be sent because of VVIP duty."
The above passage shows that there is a time limit of 72 hours stipulated by the Narcotic Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such FIR No. 28/2014 State Vs. Sonu etc Page No.24 of 36 as event".
31. PW5 SI R.S Pandit or any other witness of prosecution has not offered any explanation of delay of 40 days in sending the samples to FSL for chemical examination. However, in the case of Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, the Hon'ble Supreme Court upheld the order of Delhi High Court on the issue of ignoring the delay being of 15 days and holding that the statements of witnesses and the report of FSL show sample was received in a sealed cover and there was no tampering of the sample. In the cases of Ramesh Kumar Rajput @ Khan Vs. State of NCT of Delhi MANU/DE/0786/08 and Bilal Ahmad Vs. State 2011 III AD (Crl.) (DHC) 293, the delay of 13 days and 59 days respectively was ignored.
32. From the cited judgments, the ratio which can be drawn is that to safeguard the possible tampering, the sample should be sent to FSL at the earliest, preferably in 72 hours, however, if there is delay, there is onus on the prosecution to show that there was no tampering with the case property and the sample. If the prosecution satisfies that there was no tampering, the delay is to be ignored, however, in the event of doubt, benefit has to be given to the accused.
33. In the instant case, PW8 has drawn samples mark A and FIR No. 28/2014 State Vs. Sonu etc Page No.25 of 36 B at Bikanerwala shop and remaining case property was given C & D. In case case of Valasala Vs. State of Kerala, AIR 1994, Supreme Court 117 it has been held that NDPS, S.55, S.21 - Safe Custody of seized article - delay of more than three months in sending seized articles to Court - No evidence to show that article was sealed and kept in proper custody in police station - Sending of the very article seized to chemical examiner, highly doubtful - conviction cannot be sustained. In the present case, PW10 Insp. KS Rawat has staed that HC Sensar Vir came to his office and produced four sealed parcels Mark A, B, C and D sealed with the seal of PS Preet Vihar PV08 East Distt alongwith FSL from. However, PW4 HC Sahanservir has deposed differently as he has stated that IO prepared rukka which was handed over to him for the registration of the case and he alongwith case property and FSL from reached PS Preet Vihar and produced the rukka to duty officer and case was got registered and the case property was handed over to MHCM with FSL form. The seizure memo is Ex.PW2/A. PW4 was declared hostile and cross examined and even in cross examination he has admitted he handed over the four parcels to MHCM. However, no entry was made by him in any register in his presence regarding the said parcels. He also stated that TSR was also handed over to MHCM. Form FSL was handed over to SHO and he returned back to the spot. Thus, both the witnesses have give contradictory versions as PW9 stated that pullanda were handed over to him while FIR No. 28/2014 State Vs. Sonu etc Page No.26 of 36 PW4 stated that the same were handed over by him to MHCM. PW4 stated that TSR was handed over by him to MHCM, however, Ex.PW11/B show that the TSR was deposited by PW5 SI RS Pandit. On one hand, TSR was stated to have been deposited by R.S.Pandit and on the other hand PW4 has stated that the case property was brought to the PS in the said TSR. Further, the case property was admittedly seized and sealed by PW8 SI Rizwan. However, PW3 Ct. Ghasi Ram, who took the case property to FSL, stated in cross examination that the pullanda had the seal of SI Pandit. PW2 Ct. Kishan Vir to whom the seal after use was handed over, has stated in cross examination that he had given the same to SI R.S.Pandit on the same day at PS. However, PW8 SI Mohd. Rizwan who sealed the pullandas with the seal of PS PREET VIHAR PV08 EAST DISTT, has stated in cross examination that the seal was returned to him on the next day but no memo in this regard was prepared. When the seal was handed over by PW8 to PW3, there was no question of returning the seal to SI RS Pandit. However, PW3 has stated that pullandas bears the seal of SI RS Pandit. This version of PW3 is contrary to the case of the prosecution. Had the seal been returned to PW3 SI RS Pandit on the same day, there was no question of returning the same again to SI Rizwan (PW8) on the next day. Considering the above evidence, it can be easily inferred that there is some manipulation in this case regarding conducting of the proceedings. As per statement of PW4, samples were handed over to MHCM directly. Once the same were deposited directly, there is FIR No. 28/2014 State Vs. Sonu etc Page No.27 of 36 no question of affixation of another seal by the SHO. The seal of first IO was also handed over to him on the same day/next day. It can be said that SHO had affixed his seal in the Malkhana. If SHO can affix his seal after deposit of case property and second seal being returned to the IO on the same day/next day before sending the case property to FSL, tampering of the case property cannot be ruled out. Thus, the case property i.e. poppy straw seems not to have been kept in safe custody properly. There is also no explanation as to why the sample was sent to FSL after about 40 days. This castes doubt about the case of the prosecution.
34. PW10 deposed that the sealed parcels alongwith FSL form and carbon copy of seizure memo were handed over to him. He confirmed the FIR number and put the same on the parcels. He also put the seal on the FSL form. PW11 ASI Abdul Khalid, the then MHCM has stated that parcels were deposited duly sealed alongwith FSL form and copy of seizure memo. I have perused the entry no.1671/14 made by PW11. The said entry reveals that it is a ditto copy of seizure memo. It does not finds mentioned as to seal of which nomenclature was affixed by SHO on the pullandas. It also does not finds mention about deposit of FSL form in the Malkhana. The entry dated 21.02.2014 shows that the pullandas A and B sent to FSL were having only seal of 08 PS Preet Vihar/ East Distt. Another seal impression is not mentioned. RC Ex.PW11/C also finds mentioned that pullandas A and B had seal of PS Preet Vihar PV 08 FIR No. 28/2014 State Vs. Sonu etc Page No.28 of 36 East Distt. It also does not show that FSL form was sent to FSL alongwith the parcels. Similar is the situation of receipt Ex.PW1/D( also Ex.PW3/A) . Thus, it is clear that pullandas sent to FSL had only one seal and that FSL form was not sent alongwith the case property to FSL. In the case of Radha Kishna Vs. State, 87(2000) DLT 106, High Court has explained the importance of ensuring that the FSL form is duly sent with sample for testing. In para '26' of the Judgment, it was explained :
26. It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central Forensic Science Laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instant case, this was not done.
Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for FIR No. 28/2014 State Vs. Sonu etc Page No.29 of 36 examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/police station".
10. In Radha Kishan, after referring to Delhi High Court Rules, Part III Chapter 18B, regarding proper proof of custody of articles, it was held by this Court that the evidence of preparation and dispatch of the FSL form was critical for ensuring that the sealed sample was kept intact in the police malkhana. An adverse inference would be drawn against the prosecution in the event the FSL form was not proved to have been prepared and dispatched. To the same effect are the judgments in Moolchand and Phool Kumar. Further, it has been held in Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT 577, that oral evidence which is contrary to the documentary evidence ought not to be relied upon. In the instant case, despite the prosecution witnesses asserting that the FSL form was prepared, not only is the FSL form unavailable on the record but the photocopies of the store room register and road certificate throw considerable doubts whether the FSL form was in fact prepared and dispatched. These documents are unreliable. For the above reasons, it is held that in the instant case the noncompliance with the mandatory requirement of preparation and dispatch of the FSL form with the sample sent for testing is fatal to the case of the prosecution.
35. In the case of Rajesh Jagdambha Avasthi Vs. State of Goa (2005) 9 SCC 773 in para 15 it was observed : "we find from the evidence of PW4 that he had taken the seal from PSI Thorat and after preparing the seizure report, panchnama etc. he FIR No. 28/2014 State Vs. Sonu etc Page No.30 of 36 carried both the packets to the police station and handed over the packets as well as the seal to Inspector Yadav. According to him on the next day, he took back the packets from the police station and sent them to PW3 Manohar Joshi, Scientific Assistant in the Crime Branch, who forwarded the same to PW1 for Chemical analysis. In these circumstances there is justification for the argument that since the seal as well as the packets were in the custody of the same person, there were every possibility of the seized substance being tampered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case." Para 13 of the Judgment deals with the issue of the sample being sent late for deciding to FSL and reads as under:
13. The next submission concerned the delay of over a month and a half in sending the seized sample for testing to the FSL. The seizure was made on 22nd July 2002 and the sample was sent for testing on 13th September 2002. The Supreme Court has in Valsala Vs. State of Kerala, 1993(2) Crimes 267 (SC) and later in State of Gujarat Vs. Ismail U Haji Patel (2003) 12 SCC 29 held that the delay per se would not be material. What had to be established was that the seized articles were in proper custody and in the proper form and that the sample sent to the Chemical Analyst for testing was the same that was seized.
FIR No. 28/2014 State Vs. Sonu etc Page No.31 of 36 In para 29 of this Judgment, it was observed that: 'in a large number of NDPS cases the prosecution has to establish that the "CFSL form" should be deposited in malkhana and thereafter be sent to the CFSL alongwith the seized sample; otherwise there is a strong possibility of tampering with the seals of sample sent to CFSL.
36. In the present case, PW11 ASI Abdul Khalid stated that he handed over the samples Mark A and B to Ct. Ghasi Ram for depositing the same at FSL. The seal affixed by first IO was returned on the same day/next day. There is material contradiction regarding the affixing and handing over of seal as discussed in preceding para of the Judgment. The recovery was effected on 11.01.2014 and samples were sent on 21.02.2014. There are contradictions regarding deposit of case property in the malkhana as discussed above. The entry made by MHCM does not find mention about deposit of FSL form in the Malkhana. The second seal impression on the pullandas is also not mentioned on RC/Receipt/Malkhana register. On perusal of FSL result Ex.PW9/E, it is further found that there is no mention of receipt of FSL form in the FSL. There is also some difference in weight of sample drawn and the one reached at FSL. No entry with regard to deposit of FSL form has been found in any of the document. Thus, a vital link in the chain of the prosecution case is missing and it creates a doubt that the samples which were deposited in the FSL were the true FIR No. 28/2014 State Vs. Sonu etc Page No.32 of 36 representative of the recovered substance and there was no tampering. In the matter of State of Rajasthan Vs. Daulat Ram report in AIR 1980 SC page 1314: 1980 CC Cases SC (69), Hon'ble Apex Court held that it was the duty of the prosecution to prove that while in their custody the sample was not tampered with before reaching the public analyst. In the instant case, FSL form was not sent with he samples to FSL. There is also difference in weight of samples drawn and received at FSL. Thus, there is improper handling of the case property even before the samples were sent to public analyst. This can be inferred by the statement of PWs as discussed above. Thus, the possibility of tampering the sample cannot be ruled out.
37. As far as charge u/s 29 NDPS Act is concerned, it is an admitted fact that no recovery of any contraband has been effected from accused Nem Chand. Accused Nem Chand was arrested on the basis of disclosure statement of accused Sonu. PW5 SI RS Pandit stated that he alongwith Sonu, HC Sahanser Vir, Ct. Vikul, Ct. Kishanvir went to H.No.G43 Bhagat Singh Colony, Libaspur in a government Gypsy and accused Sonu pointed out the house of Nem Chand. On the identification of accused Sonu, accused Nem Chand was arrested. He also stated that he obtained the CDRs which shows that both the accused were in touch. In cross examination, PW5 has admitted that no mobile or SIM was recovered from accused Nem Chand. PW9 Surender Kumar has failed to produce the CDRs of FIR No. 28/2014 State Vs. Sonu etc Page No.33 of 36 mobile no. 9971428714 as he has stated that the same have been destroyed. However, PW12 Israr Babu produced the CDRs of mobile no.9582078475. The said phone is in the name of one Roop Kaur. The CDRs of the mobile phone of accused could not be placed on record since destroyed. No location chart is placed on filed. Even otherwise, from the CDRs, conspiracy cannot be established. Admittedly, no mobile phone was recovered from accused Nem Chand. Arrest memo Ex.PW2/E of accused Nem Chand revealed that it was filled with two different pens and it is thus, clear that it was prepared by some manipulation. It is difficult to establish conspiracy by direct evidence. It is true that it is difficult to support the charge of conspiracy with direct evidence in every case. Considering the facts of the case, it is clear that the prosecution has failed to bring any evidence on record to prove that there was some meeting of mind between the accused persons.
38. Accused Sonu has also been charged u/s 25 NDPS Act. Section 25 NDPS Act contemplates Punishment for allowing premises, etc to be used for commission of an offence - whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance knowingly permits it to be used for the commission of by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence. In the present case, prosecution has failed to bring any evidence on FIR No. 28/2014 State Vs. Sonu etc Page No.34 of 36 record to show as to whom the TSR in question belongs. The ownership of the vehicle could not be proved. It is also not in evidence that accused Sonu is/is not the owner of the vehicle in question. Thus, the prosecution has failed to prove the charge u/s 25 NDPS Act against accused Sonu.
39. Serious punishments are prescribed under the NDPS Act and therefore stricter the punishment, stricter the mode of proof. In the case of Noor Agha Vs. State of Punjab & Anr. 2008 (3) JCC (Narcotics) 135, the Hon'ble Court held that in a case arising out of the provisions of NDPS Act the legislature has provided very stringent punishment. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of statutory safeguards available to the accused.
40. In the State of Punjab Vs. Baldev Singh (1999) 3 SCC 977, the Hon'ble Supreme Court held that it must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguard provided in statute are scrupulously followed.
41. In view of my aforesaid discussions, I find that the case of the prosecution is doubtful. There is doubt regarding recovery as no efforts to join the public witnesses was made. There is also no FIR No. 28/2014 State Vs. Sonu etc Page No.35 of 36 compliance of Section 55 and Section 57 of NDPS Act. There are contradictions regarding seals on the samples. No FSL form was sent to the FSL alongwith case property. Case property seems to have been sealed by SHO after deposit in the Malkhana. Seizure memo of poppy straw bears the FIR number. The recovery proceedings therefore, stand vitiated and benefit of doubt goes to the accused persons. Both the accused persons are accordingly acquitted. However, they shall furnish a personal bond in the sum of Rs.25,000/ each with a surety of the like amount u/s 437A Cr.P.C.
File be consigned to record room after the requisite bonds are furnished.
Digitally signed byAnnounced in the open AJAY AJAY GUPTA
Location:
Karkardooma Court
court on 22.09.2018 GUPTA Date: 2018.09.22
16:42:28 +0530
(AJAY GUPTA)
Addl. Sessions Judge02(East)
Special Judge (NDPS)
KKD COURTS, DELHI.
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