Delhi District Court
State vs . Manoj on 29 March, 2008
IN THE COURT OF Ms. ANU MALHOTRA,ASJ / SPECIAL JUDGE (NDPS)
PATIALA HOUSE COURTS, NEW DELHI
Date of Institution: 06.02.2003
Judgment reserved on : 22.01.2008
Date of pronouncement : 29.03.2008
FIR 102/02
P.S. Narcotics Branch
U/s. 21 of the NDP.S. Act, 1985
State Vs. Manoj
S/o. Late Sh. Mahesh Chand
R/o. Bijoli P.S. and District Lakhimpur,
Dhiri, Uttar Pradesh and also at
137-A, Gautam Nagar, Delhi
JUDGMENT:-
This judgment shall dispose of the allegations levelled against the accused Manoj S/o. Late Sh. Mahesh Chand in the police report U/s. 173 of the Cr.P.C.,1973, filed by the State alleging therein that the said accused was found in possession of 1 Kg of herion powder containing 45 gms of diacetylmorphine, in contravention of section 8 of the NDPS Act, 1985 and that the accused thereby committed an offence punishable U/s. 21 (b) of the NDP.S. Act, 1985.
The police report U/s. 173 of the Cr.P.C., 1973, was instituted on 06.02.2003 wherein the prosecution version put forth was to the effect, that on 22.12.2002, a secret informer, around 1.00 p.m. came to the P.S., Narcotics Branch and gave secret information to SI Sunil Kumar, that a person who was a resident of Lakhimpur, Dhiri, Uttar Pradesh, named Manoj, and who at that time was residing somewhere at Gautam Nagar, Delhi and dealt in the trafficking of herion, would that day come on to the 1 Aurobindo Marg, in front of the AIIMS Hospital, New Delhi between 2.30 p.m. to 3.30 p.m., to supply herion to some person, and if that a raid was conducted, then that person could be apprehended with herion, whereupon, the Investigating Officer produced the secret informer before Inspector S.P. Kaushik, the then SHO P.S. Narcotics Branch and told him the secret information received and that, the SHO then made inquiries from the secret informer and satisfied himself about the secret information received and then telephonically informed the then ACP Sh. N & C.P., about the secret information received, who directed the conducting of an immediate raid whereupon DD No. 15 to that effect was recorded at 1.15 p.m. by SI Sunil Kumar in the rojnamcha and the copy of the same was sent by Inspector S.P. Kaushik, the then SHO P.S. Narcotics Branch vide No. 3442/SHO/NBR dated 22.12.2002 to the then ACP Sh. N & C.P., and thereafter, on the directions of the SHO, P.S. Narcotics Branch, the Investigating Officer formed the raiding party comprising of SI Sunil Kumar, HC Bijender Singh No. 86 Crime, HC Harcharan Singh No. 109 Crime. As per the prosecution version at about 1.30 p.m., along with the secret informer, the entire raiding party left in a Government Maruti car bearing No. DL 1CH 5839 driven by ASI Suresh Kumar and they then reached the spot via Connaught Place, Janpath, Prithvi Raj Road, Safdarjang Airport and Aurobindo Marg at 2.00 p.m. i.e. at the AIIMS Hospital and the Government vehicle was got parked in the AIIMS Hospital parking and the driver of the same was deputed on the same.
It has further been submitted in the police report that the Investigating Officer asked 6/7 passersby to join the raiding party, after apprising them of the information received, but they all declined to join the proceedings and then the Investigating Officer briefed the entire raiding party in detail and the raiding party was deputed within an area of 25 metres from the main gate of the AIIMS Hospital on Aurobindo Marg and SI Sunil Kumar along with the secret informer stood on the Eastern side of the IN gate and HC Bijender Singh and HC Harcharan Singh stood on the Western side of the OUT gate 2 and took their positions and started waiting for that person named Manoj.
It has further been alleged in the police report that at about 3.00 p.m., a person came from within the AIIMS Hospital and stood directly in front of the IN gate of the AIIMS Hospital and started waiting for someone, and that person, on the pointing out of the secret informer was apprehended by the entire raiding party and on inquiries from that person, his name was learnt to be Manoj S/o. Late Sh. Mahesh Chand R/o. Bijoli P.S. and Distt. Lakhimpur, Dhiri, Uttar Pradesh, then a resident of 137-A, Gautam Nagar, Delhi. It has further been averred in the police report that before starting the proceedings, the Investigating Officer asked four passersby to join the investigation after apprising them of the circumstances, but they all declined to join the proceedings and thereupon the Investigating Officer gave a written notice U/s. 50 of the NDP.S. Act, 1985 to the accused and gave his introduction and that of the police party to the accused and the contents of the notice were read over and explained to the accused who was apprised that the police party had information with them that the accused dealt in the trafficking of herion and that even at that time the accused had come to supply herion to someone and that even at that time there was a probability of herion being recovered from the accused, even at that time, for which his search had to be conducted and that it was his legal right, that if he wanted, the presence of a Gazetted Officer or a Magistrate could be arranged for such search to be conducted, and that it was also the right of the accused to conduct the search of the Investigating Officer and of the entire police party before his search was conducted.
It has further been submitted in the police report that the accused read the notice and wrote his refusal in his own handwriting on the original notice U/s. 50 of the NDP.S. Act, 1985 issued to him to avail of the legal rights of search and signed in English on his reply, whereupon the Investigating Officer conducted the search of the accused and then on getting the front chain of the chocolate coloured jacket worn by the accused opened and on checking, within which from the left dub of the pant worn by the accused, a 3 white coloured heavy folded polythene packet was found within which was found a transparent polythene packet, the mouth of which was tied with a rubber band which on opening, was found to contain a light brown coloured powder which on testing on the field testing kit was found to be herion which thereafter was weighed on the electronic weighing scale and was found to weigh 1 Kg and from the same, two samples of five gms each were drawn, and both the samples drawn, were put into two small polythene packets, the mouths of which were tied with rubber bands which were both put into light yellow paper envelopes, the mouths of which were pasted and the packets were given mark A and B and the remaining 990 gms of herion continued to remain in the same polythene packet in which it was recovered and the mouth of the same was tied with the rubber band and was put into another light yellow paper envelope, which was pasted with gum and the parcel was prepared which was given mark C and the three copies of the C.R.C.L. form were filled in and on the three parcels A, B and C, the Investigating Officer put three seals each of his official seal of 6A P.S. NB Delhi and put one such seal on each of the three copies of the C.R.C.L. form and the seal after use was handed over to HC Bijender Singh No. 86 Crime and all the three parcels A, B, C and the 3 copies of the C.R.C.L. form were seized vide a seizure memo and taken into police custody and the accused having been found to have committed an offence U/s. 21 of the NDP.S. Act, 1985, the rukka was sent by the Investigating Officer through HC Harcharan Singh along with three envelopes A, B, C and the three copies of the C.R.C.L. form bearing seals, along with the carbon copy of the Seizure Memo qua proceedings U/s. 55 of the NDP.S. Act, 1985, which were taken by HC Harcharan Singh in the Government vehicle driven by ASI Suresh Kumar who left the spot at 5.00 p.m. and it was also mentioned in the rukka that after registration of the FIR, the further investigation be entrusted to some other officer and that in the meantime, HC Bijender Singh, the accused and SI Sunil Kumar continued to remain at the spot. As per the prosecution version, the three parcels A, B, C, the three copies of the C.R.C.L. form and 4 the carbon copy of the seizure memo were handed over by HC Harcharan Singh to the SHO P.S. Narcotics Branch who counter sealed the three parcels and the C.R.C.L. form with his seal of 1 SHO NBR Delhi and deposited the same in the maalkhana qua which DD No. 21 was recorded at 5.55 p.m. in the rojnamcha and further investigation was entrusted to SI Kuldeep Singh who thereafter, at the spot, prepared the site plan at the pointing out of SI Sunil Kumar and recorded the statements of the witnesses U/s. 161 of the Cr.P.C., 1973, arrested the accused and conducted his personal search and recorded the disclosure statement of the accused and thereafter, produced the accused before the SHO P.S. Narcotics Branch who satisfied himself about the circumstances of the arrest of the accused and thereafter, SI Sunil Kumar and SI Kuldeep Singh submitted their respective reports U/s. 57 of the NDP.S. Act, 1985 qua seizure of herion and arrest of the accused. As per the prosecution version SI Kuldeep Singh thereafter, had sent the sample of the substance recovered to the C.R.C.L., Pusa Road, Delhi for chemical examination. After institution of the police report U/s. 173 of the Cr. P.C, 1973, the C.R.C.L. report was submitted which states that of the 4.9 gms of weight found of the sample in the laboratory, the same was found to contain 4.5 % of Diacetylmorphine.
Vide order dated 04.07.2003, it was held that a prima facie was made out against the accused person qua the alleged commission of an offence punishable U/s. 21 (b) of the NDP.S. Act, 1985, qua which the charge of allegations was framed against the accused on 04.07.2003 to which the accused pleaded not guilty and claimed trial.
In support of the prosecution version set forth in the police report, the State has examined 10 witnesses i.e. PW 1 HC Harcharan Singh, PW 8 Bijender Singh, PW 10 SI Sunil Kumar as the recovery witnesses and PW 2 HC Omkar Singh, the Duty Officer, PW 4 Inspector S.P. Kaushik, the then SHO, P.S. Narcotics Branch and PW 3 HC Gyan Prakash, the MHC(M), P.S. Narcotics Branch on the date 22.12.2002 and PW 6 HC Bhagwat Dayal deputed as MHC(M) P.S. Narcotics Branch on 27.12.2002 in place of HC 5 Gyan Prakash during the period, he was on leave, PW 5 HC Ved Prakash posted as SO to the DCP N.N.C.P and PW 7 Ct. Vinod Kumar, the sample depositor on 23.12.2002 and PW 9 SI Kuldeep Singh, the 2nd Investigating Officer.
The accused in his statement U/s. 313 of the Cr.P.C., 1973 denied the incriminating evidence led against him and denied that there was any recovery effected of any substance from him and stated that he was innocent and that he had been falsely implicated in the case and that nothing had been recovered from him and that on 22.12.2002, he was picked up by the police at his residence at 137-A, Gautam Nagar, Delhi and several blank papers were got signed by him under coercion, forcibly and that the police had also made him write forcibly on a blank paper and further stated that all the witnesses were interested witnesses and had deposed to oblige their senior officers. No evidence in defence was led by the accused.
Arguments were addressed on behalf of the State by the Ld. Addl. PP Sh. M. Zafar Khan for the State and on behalf of the accused by Counsel Sh. V.S. Chauhan appointed as Amicus Curaie. A memorandum of written arguments U/s. 314 of the Cr.P.C., 1973 was also filed on behalf of the accused.
On behalf of the State, it was contended by the Ld. Addl. PP for the State that the prosecution version stood wholly proved through the testimonies of the prosecution witnesses produced. On behalf of the accused, however, it has been submitted, that the accused deserved to be acquitted, because there was no independent public witness joined in the proceedings, despite the factum that the accused as per the prosecution version was allegedly apprehended on the main gate of the AIIMS Hospital on the Aurobindo Marg, which is a very busy and crowded place where thousands of people come and go each day and that the raiding party did not make any effort to join any independent witness from the public, from the car parking attendants, from the hospital staff, from the traffic police, from the police 6 personnel from the police post inside the AIIMS Hospital which is very near and in front of the gate in broad day light at about 3.00 p.m. It has also been submitted on behalf of the accused that the prosecution had been unable to establish that despite best efforts made by them, no independent witness was ready to join the raiding party and it was further submitted that the safeguards of Section 50 (5) of the NDP.S. Act, 1985 read with Section 100 of the Cr.P.C., 1973 which intend to serve a dual purpose i.e. to protect a person against false accusation and frivolous charges and also to lend credibility to search and seizure conducted by an authorized officer - had been flouted. Inter alia, it has been submitted on behalf of the accused that Ex.PW1/B, the alleged denial of the accused to avail of his legal rights of search in reply to the notice U/s. 50 of the NDP.S. Act, 1985, bore on it a cutting, in which the sentence was changed to read that the accused did not want to take the search of the Investigating Officer and the police party and no signature of the accused was taken on the cutting, which indicated that the cutting on the denial was made subsequently, and that the accused was deprived of his most important safeguard against false accusation. Inter alia, on behalf of the accused, it has been submitted through the written memorandum of arguments submitted, that HC Harcharan Singh in his cross examination has testified to the effect "it is further incorrect to suggest that no notice U/s 50 of the NDP.S. Act was served upon the accused in the P.S." and that this meant that the entire writing work including the preparation of the notice was done at the P.S..
It has further been submitted on behalf of the accused, that at the time of the deposit of the alleged contraband in the maalkhana, PW 3 HC Gyan Prakash was the MHC(M) and Ex.PW3/A, the entry in the maalkhana was neither endorsed by HC Gyan Prakash, nor by the then SHO Inspector S.P. Kaushik PW 4, who deposited the case property in the maalkhana on 22.12.2002. Inter alia it has been submitted on behalf of the accused that the sample as per the prosecution version was taken out for sending to the Cr.CL on 27.12.2002 through Ct. Naresh No. 335/Cr. who returned without 7 depositing the sample and the sample was again sent through Ct. Vinod Kumar No. 257/DRP on 31.12.2002 who deposited the sample in the C.R.C.L. Pusa Road, Delhi and during this period from 27.12.2002 to 31.12.2002, PW 6 HC Bhagwat Dayal was the maalkhana Incharge, who testified in his examination in chief vide entries made in the maalkhana register Ex.PW3/A that the C.R.C.L. Pusa, Delhi returned the samples with objection that first the CFSL, Malviya Nagar should give in writing that the checking of herion purity percentage facility was not available there and that due to this reason, the sample could not be deposited in the C.R.C.L. Pusa, Delhi on 27.12.2002. It has thus been submitted on behalf of the accused that a careful examination of the statements U/s. 161 of the Cr.P.C., 1973, the examination in chief and cross examination of the witnesses made it clear that the sample was taken out from the maalkhana on 27.12.2002 and was deposited on 31.12.2002 and that the sample remained out of the maalkhana for five days and that the scope of tampering of the sample during this period could not be denied, especially as the test memorandum / forwarding letter NO. 1043/SO/DCP/N & C.P. dated 27.12.2002 No. 3470/SHO/NBR dated 27.12.2002 was issued on 27.12.2002 and not on 31.12.2002 according to Ex.PW6/B on which the sample was deposited in the C.R.C.L. Pusa, Delhi. It has also been submitted on behalf of the accused that Ct. Naresh, the previous carrier of the sample to the C.R.C.L. Pusa, Delhi on 27.12.2002 was not included in the list of witnesses, nor was his statement recorded U/s. 161 of the Cr.P.C., 1973, of his having returned the samples to the maalkhana and that the non-production of Ct. Naresh was sufficient to cast a serious doubt on the prosecution version. It has also been submitted on behalf of the accused that the objection raised by the C.R.C.L. Pusa, Delhi qua the deposit of the sample was also not produced on the judicial record as evidence in support of the statement of witness PW 6 HC Bhagwat Dayal, the MHC(M).
Inter alia it has been submitted on behalf of the accused, that it had not been made clear as to who had brought the letter stating that the purity percentage facility was not available in the CFSL Malviya Nagar, New Delhi 8 to remove the objection made by the C.R.C.L. Pusa, Delhi, nor how the sample was deposited again in the C.R.C.L. Pusa, Delhi on 31.12.2002, without removing the objection made by the C.R.C.L. Pusa, Delhi on the earlier occasion on 27.12.2002. It has also been submitted on behalf of the accused that the road certificate through which Ct. Naresh carried the sample on 27.12.2002 to the C.R.C.L. Pusa, Delhi had also not been produced on the judicial record in evidence and that the entire transactions were rectified by making entries in the maalkhana register Ex.PW6/A, as an after thought, and that the DD entries qua departure and arrival of Ct. Naresh were also not proved.
It has further been submitted on behalf of the accused that the statement of PW 6 HC Bhagwat Dayal, the MHC(M) on 27.12.2002, was not recorded on 27.12.2002 about the handing over of the sample to Ct. Naresh to be carried to the C.R.C.L. Pusa, Delhi, but the statement U/s. 161 of the Cr.P.C., 1973 was recorded on 01.01.2003, which lends credence to the fact that the taking of the sample by Ct. Naresh was rectified later through HC Bhagwat Dayal MHC(M) on 01.01.2003.
It has further been submitted on behalf of the accused in the written memorandum of arguments submitted, that according to the High Court Rules and Order Chapter 18 (Part B) Clause 8 and 3 of the High Court of Delhi, in all cases of transmission of articles to the chemical examiner, a letter of invoice giving the full description of the articles sent, should be despatched. It has further been submitted on behalf of the accused that according to clause 11, proper custody of articles throughout the stages of the inquiry must be established and traced and the prosecution could have proved from the CFSL Form itself, and from the road certificate as to what articles were taken from the maalkhana, and once a doubt is created in the preservation of the sample, the benefit of the same should go to the accused.
It has further been submitted on behalf of the accused that the link evidence qua the handing over of the sample to Ct. Naresh and the redepositing of same by him in the maalkhana is missing and that it must 9 thus be concluded that the prosecution had miserably failed to prove that the sample remained intact right from inception of the proceedings until the same were deposited in the C.R.C.L. Pusa, Delhi.
It has thus been submitted on behalf of the accused that in the facts and circumstances of the instant case, the possibility of interference and tampering of the contraband could not be ruled out and that the prosecution has thus miserably failed to establish that the sample / parcel did not remain out of the maalkhana for 4 to 5 days and had not been tampered with by anyone, before it was sent to the C.R.C.L., Pusa, Delhi and that the benefit would thus have to go to the accused, who thus deserved to be acquited.
Reliance was placed on behalf of the accused on the verdict of the Hon'ble High Court of Delhi in the case Prithvi Pal Singh Vs. State, 2001 (1) JCC 274 to contend that where the safeguards for search and seizure had not been complied with, the non-joinder of an independent witness where such witnesses were available, fatally affected the prosecution version.
Reliance was also placed on behalf of the accused on the verdict of the Hon'ble Supreme Court in the case Sh. Mustaffa Abdul Rehman Noora Vs. State of Kerala, AIR 1995 SC 244 to contend that where the provisions of Section 50 of the NDP.S. Act, 1985 as amended, have not been complied with, the seizure and search made was illegal and that could not be used as evidence and any such recovery effected allegedly through such illegal search could not be used as unlawful possession of contraband.
10Reliance was also placed on behalf of the accused on the verdict of the Hon'ble High Court of Delhi in the case Safiullah Vs. State (Delhi Administration), 1993 (1) C.C. Cases 497 to contend that where the road certificate had not been produced and proved, and where it could not be established as to what articles were taken out from the office from the maalkhana and where there was no document describing what article was sent to the CFSL in accordance with the High Court rules and orders, the possibility of interference and tampering with the seals and contents could not be ruled out.
Reliance was also placed on behalf of the accused on the verdict of the Hon'ble High Court of Rajasthan in the case Saudan Vs. State of Rajasthan, 2003 (1) RCR (Criminal) 333 to contend inter alia, that where the prosecution had failed to prove that the sample remained intact, right from the inception of the proceedings under the NDPS Act, 1985 till the same was deposited in the Forensic Science Laboratory, the seizure of such contraband could not be held to be proved and that where the link evidence as to the handing over of the sample to the sample depositor who could not deposit the samples in the laboratory due to some objections, which objections also had not been brought forth as to what they were, coupled with the factum that redeposit of the samples by the said witness into the maalkhana was also not established, in such a situation the prosecution had failed to establish that there had been no tampering of the substance allegedly deposited subsequently in the Forensic Science Laboratory and that, thus the accused was entitled to the benefit of doubt and to be acquitted.
On behalf of the State it has been submitted whilst refuting the said argument addressed on behalf of the accused that the testimony of prosecution witnesses established the guilt of the accused beyond a reasonable doubt and that the testimonies of the two Investigating Officers of the case and the MHC(M) PW 3 HC Gyan Prakash, PW 6 HC Bhagwat Dayal who was deputed as the maalkhana moharrar in place of HC Gyan 11 Prakash and the testimony of Ct. Vinod Kumar examined as PW 7 and the result of the FSL Ex.PW9/P2 which bore on it the specimen of the seals received in the laboratory on 31.12.2002 established, that the seals of the pullanda marked A deposited on 31.12.2002 in the laboratory for chemical examination were intact and established thus, that the sample deposited had not been tampered and had remained intact and that thus the chemical examination report established that the accused had been found in possession of diacetylmorphine i.e. herion.
Inter alia it was submitted on behalf of the State that the non-joinder of public witnesses per se was not fatal, as the testimony of the prosecution witnesses established that attempts had been made by the Investigating Officer to join the members of the public who had declined to join the proceedings and that the testimony of the prosecution witnesses i.e. PW 1 HC Harcharan Singh, PW 8 HC Bijender Singh, PW 10 SI Sunil Kumar, the three recovery witnesses were consistent and were corroborated through the testimonies of PW 4 Inspector S.P. Kaushik, the then SHO PS Narcotics Branch and PW 9 SI Kuldeep Singh, the 2nd Investigating Officer of the case and through the testimony of PW 2 HC Omkar Singh, the Duty Officer and that the testimony of all the 10 prosecution witnesses established the guilt of the accused beyond a reasonable doubt.
The testimony of PW 10 SI Sunil Kumar, the initial Investigating Officer of this case is categorical to the effect that on 22.12.2002 he was posted as SI at the PS Narcotics Branch and he, on that day at about 1.00 pm received the secret information from the secret informer qua the accused as detailed in the police report and that he had passed on this information to the SHO Police Station Narcotics Branch and also produced the secret informer before him and that the SHO made inquiries from the secret informer and had then given the information to Sh. R.P. Sharma, ACP, Nr. Branch telephonically at his residence and that the ACP Nr. Branch directed the conducting of a raid immediately and that at 1.15 pm, he PW 10 recorded DD No. 15 regarding the secret information, the carbon copy of which is 12 Ex.PW2/F. PW 2 HC Omkar Singh in his testimony which has not been challenged by way of cross examination, despite the factum the accused was represented by a Counsel Ms. Kavita Singh appointed as Amicus Curaie also corroborates the testimony of SI Sunil Kumar qua recording of DD No. 15 by SI Sunil Kumar in his own handwriting, which handwriting was also identified by HC Omkar Singh.
PW 4 Inspector S.P. Kaushik, the then SHO PS Narcotics Branch also corroborated the testimony of SI Sunil Kumar and testified to the secret informer having been produced by SI Sunil Kumar at 1.05 pm in his office on 22.12.2002, and that he, PW 4, had satisfied himself of the information received which he had telephonically conveyed to the ACP, Narcotics Branch, Sh. R.P. Sharma who directed the SHO to conduct the raid and take appropriate action.
PW 10 SI Sunil Kumar has also testified to the effect that the copy of DD No. 15 regarding the secret information, carbon copy of which is Ex.PW2/F had been handed over by him to the SHO for further transmission of the same to the senior officers which factum is also corroborated through the testimony of PW 4 Inspector S.P. Kaushik, the then SHO, PS Narcotics Branch who testified to having forwarded DD entry No. 15 to the ACP Narcotics and testified to his signatures being there at point A on Ex.PW2/F, the carbon copy of the said DD entry, original of which was seen and returned.
PW 4 has further testified to the effect that he directed SI Sunil Kumar to take legal and appropriate action and SI Sunil Kumar has testified to the effect that he formed a raiding party including the informer, HC Bijender Singh and HC Harcharan Singh and around 1.30 p.m., the members of the raiding party along with the secret informer left the police station in an official vehicle i.e. a Maruti Car bearing No. DL 1 CH 5839 driven by ASI Suresh Kumar and around 2.00 p.m., the raiding party reached the AIIMS parking via Connaught Place, Janpath, Prithvi Raj Road, Safdarjung Enclave 13 Via Aurobindo Marg and the official vehicle was parked in the parking lot of the AIIMS Hospital and the driver ASI Suresh was deputed on it and that he, PW 10, had requested 6/7 passersby to join the raiding party after informing them of the secret information received, but none agreed and they all left without giving their names and addresses and that he, PW 10, deputed the members of the raiding party within a radius of 25 metres around the main gate of the AIIMS Hospital in the service lane and that he PW 10 took positions along with the informer in the Eastern direction of the IN gate whereas HC Bijender Singh and HC Harcharan Singh took positions towards the Western side of the IN gate of the hospital and they started waiting for Manoj.
PW 4 corroborated the testimony of PW 10 to the effect that SI Sunil Kumar along with HC Harcharan Singh and HC Bijender Singh and the informer left in the Government vehicle bearing No. DL 1 CH 5839 driven by ASI Suresh Chand. PW 1 HC Harcharan Singh in his examination in chief corroborated the testimony of the IO PW 10 to the effect of the raiding party having been informed by the Investigating Officer on receipt of secret information and testified to having gone along with SI Sunil Kumar, HC Bijender Singh and the secret informer to the AIIMS Hospital parking in the Government vehicle NO. DL 1 CH 5839 and also to the effect that 6/7 passersby were asked there by the Investigating Officer to join the raiding party but they all left without giving their names and addresses and declined to join the raiding party and then the members of the raiding party were deputed in an area of 25 metres in front of the AIIMS Hospital. PW 8 HC Bijender Singh too has corroborated the testimony of PW 1 HC Harcharan Singh qua the Investigating Officer having apprised him and the other members of the raiding party of the secret information received and the IO having formed the raiding party and that the raiding party reached the spot in the Government vehicle i.e. a Maruti Car bearing No. DL 1 CH 5839 driven by ASI Suresh Kumar, whereafter the said car was parked in the 14 parking of the AIIMS Hospital and the driver remained in the car. This witness too testified to 6/7 passersby having been asked by the IO to join the raiding party who left without disclosing their names and addresses. This witness has further stated that thereafter SI Sunil Kumar briefed them again in detail and that he and HC Harcharan Singh were deployed at the OUT gate of the Hospital and SI Sunil Kumar and the secret informer took position near the IN gate and started waiting for the accused.
PW 10 SI Sunil Kumar, PW 1 HC Harcharan Singh, PW 8 HC Bijender Singh all corroborated the prosecution version that at about 3.00 p.m. a person was coming out from the AIIMS Hospital from the in gate was apprehended on the pointing out of the secret informer as being the Manoj who dealt in the trafficking of herion. As per the testimony of SI Sunil Kumar, the secret informer had immediately left the spot after pointing out towards the accused Manoj. The IO, PW 10, has testified to the effect that before proceeding further he again requested four passersby to join the raiding party but none agreed and left, and that he had given his introduction and that of the other members of the raiding party to the accused and also told him about the secret information received against him, (i.e. the accused) as received by the police and that the IO served a written notice U/s. 50 of the NDPS Act, 1985 i.e. PW1/B to the accused and that he also told him about his legal right that his search had to be taken and that if he so desired his search may be conducted before a Gazetted Officer or a Magistrate and that he, SI Sunil Kumar had also told the accused of his legal right that he could take the search of the police officials before his giving his search to them, and that the accused, refused to avail of both the said offers and made his endorsement Ex.PW1/A in Hindi in his own handwriting on the notice Ex.PW1/B and he signed the same in English at point C. PW 1 HC Harcharan Singh corroborated the aspect of issuance of the notice U/s. 50 of the NDPS Act, 1985 by the Investigating Officer and of the Investigating 15 Officer having introduced himself and the members of the raiding party to the accused and having apprised him of the secret information received that he was in possession of herion for which he had to be searched and that the accused refused to avail of such legal rights and wrote his refusal in his own handwriting. PW 1 further stated that, at this stage, the IO again requested passersby to join the raiding party but they refused and left. To the same effect is the testimony of PW 8 HC Bijender Singh.
The testimony of PW 10 SI Sunil Kumar further states that he conducted the formal search of the accused and the accused was wearing a cloth jacket of chocolate colour, that the zip of the said jacket was open and from the left dub of his pant, a white coloured folded bulky polythene was recovered which was found to contain a transparent polythene packet and the same was found to contain a light bhura coloured powder which on checking with the help of a field testing kit was found to be herion and the said powder was weighed on the electronic weighing scales and was found to weigh 1 Kg, from which two samples of 5 gms each were separated from the recovered herion and the same were put into two small polythene packets and these were converted into two yellow colour paper parcels which were pasted with gum and were given mark A and B. The remaining 990 gms of herion was again wrapped in the same packing material in which it was initially recovered and then it was converted into a paper envelope parcel which was given mark C. PW 10 has further testified to the effect that he filled the C.R.C.L. form in triplicate and affixed his official seal of 6A PS Delhi on each of the three parcels mark A, B, C and one such seal on all the copies of the C.R.C.L. form and that seal after use was handed over to HC Bijender Singh and the parcels mark A, B, C and all the three C.R.C.L. forms were seized vide a seizure memo Ex.PW1/C and the rukka Ex.PW10/A was prepared and the rukka and the parcels mark A, B, C and all the C.R.C.L. Forms along with carbon copy of the Seizure Memo were given to HC Harcharan for taking the same to the PS with instructions to produce the 16 rukka before the Duty Officer for registration of the FIR and other articles before the SHO for necessary proceedings, and that HC Harcharan Singh left the spot in the official vehicle at around 5.00 pm for the Police Station.
PW 1 HC Harcharan Singh though his examination in chief testified to the effect that SI Sunil Kumar conducted the search of the accused and recovered a white polythene packet inside the chocolate coloured jacket of the accused kept under the left side belt of his trousers and the polythene was checked and was found to contain another transparent polythene and the same on checking was found to contain another transparent packet containing a brown coloured powder which was found to be herion on the field testing kit and was found to weigh 1 Kg from which two samples of five gms each were drawn, which was sealed with the seal of 6A PS NB Delhi and the remaining herion was also sealed with the same seal and the seal after use was handed over to HC Bijender Singh. This witness has further testified to the effect that three copies of the C.R.C.L. form were prepared and sealed with the same seal and the Investigating Officer prepared the rukka and directed him to take the same along with the three sealed pullandas and the 3 C.R.C.L. forms and the carbon copy of the Seizure Memo which he took with ASI Suresh for the lodging of the FIR and handed over the rukka to the Duty Officer, HC Omkar Singh, and the case property and the C.R.C.L. forms and the recovery memos to the SHO, who also affixed his seal and put the particulars of the FIR and gave the same to the MHC(M) to be deposited in the maalkhana. PW 8 HC Bijender Singh, testified to the effect that after the accused wrote his reply to the notice U/s 50 of the NDPS Act, 1985 i.e. Ex.PW1/A, notice Ex.PW1/B, declining to avail of the offer of his search to be made in the presence of a Gazetted Officer or a Magistrate, or to conduct the search of any member of the police party before his own search, the Investigating Officer again asked 4/5 public persons to join the raiding party for conducting the proceedings, but none of them joined, and then SI Sunil Kumar conducted the formal search of the accused and a white coloured polythene packet from the left dub of his pant 17 after opening the chocolate coloured cloth jacket and that white polythene packet, on checking was found to contain a transparent polythene packet containing within it a brown coloured substance, the mouth of which polythene packet was tied with a rubber band and the brown powder substance was tested with the help of a field testing kit and was found to be herion, and on weighment on an electronic weighing machine along with the transparent polythene packet was found to be 1 Kg from which two samples of five gms each were drawn and kept in two small polythene pouches and kept in yellow paper envelopes which were given mark A and B and the remaining 990 gms was retained in the transparent polythene packet and tied with the same rubber band and placed in the white polythene and then kept in the yellow paper envelope, which was given mark C and thereafter the C.R.C.L. form in triplicate was also filled up and all the three paper envelopes were sealed with the three seals of the Investigating Officer bearing the facsimile 6A PS NB Delhi and one such seal was affixed on the C.R.C.L. forms as well, and the seal after use was handed over to the said witness. Inter alia, PW 8 stated that all the three seals and all the C.R.C.L. forms were seized vide a seizure memo Ex.PW1/C, on which he signed and further testified to the effect that SI Sunil Kumar prepared the rukka which he handed over to HC Harcharan Singh along the with three pullandas marked A to C along with the C.R.C.L. forms and the carbon copy of the Seizure Memo which was sent to the police station with directions to hand over the case property to the SHO and the rukka to the Duty Officer for registration of the case and that HC Harcharan Singh left the spot at 5.00 p.m. in the Government vehicle i.e. a maruti car and that they remained at the spot.
PW 4 Inspector S.P. Kaushik, the then SHO, P.S., Narcotics Branch testified to the effect that HC Harcharan Singh reached at the police station at 5.35 pm and produced the carbon copy of the Seizure Memo along with the three parcels and the C.R.C.L. forms which bore on them the seal of 6A PS NB Delhi and that he, the SHO put the FIR No. 102/02 and his official seal 18 of 1 SHO NBR Delhi on all the three parcels and on the C.R.C.L. forms which were in triplicate and also called for the register No. 19 though HC Gyan Prakash in his office and deposited the case property in the maalkhana after getting the entry recorded in register No. 19 and testified to DD No. 21 being the entry qua the said proceedings, copy of which testified to be Ex.PW2/C. PW 2 HC Omkar Singh testified to the effect that DD No. 21 was recorded on 22.12.2002 by Inspector S.P. Kaushik, the then SHO P.S. Narcotics Branch and testified to Ex.PW2/C being the copy of the same and testified to the effect, that he identified the writing and signatures of Inspector S.P. Kaushik, the then SHO, PS, Narcotics Branch, as he had seen him writing and signing during the course of his official duties. Ex.PW2/D, the copy of DD No. 22 is to the effect, that at 6.30 p.m., after registration of the FIR, further investigation of FIR 102/02 PS Narcotics Branch on the directions of the SHO had been entrusted to SI Kuldeep Singh who left the police station in a Government vehicle driven by ASI Suresh Kumar along with HC Harcharan Singh No. 109 Crime to the spot. PW 9 SI Kuldeep Singh, the 2nd Investigating Officer testified to the effect that on receipt of the copy of the FIR No. 102/02 and of the rukka and the further investigation entrusted to him, on the directions of the SHO on 22.12.2002, he reached the spot at about 7.00 p.m. where SI Sunil Kumar handed over the original copies of the notice U/s 50 of the NDPS Act, 1985 and the seizure memos to him and produced the accused before him and that he, PW 9, prepared the site plan Ex.PW9/A at the instance of SI Sunil Kumar and recorded the statement of HC Harcharan Singh U/s. 161 of the Cr. P.C, 1973, and after conducing the formal interrogation of the accused, arrested him and prepared the arrest memo Ex.PW1/E and conducted his personal search vide memo Ex.PW1/D. Inter alia PW 9 SI Kuldeep Singh testified to the effect that he recorded the disclosure statement of the accused Ex.PW1/F and at about 9.00 p.m., he produced the accused before the SHO, Narcotics Branch and produced the personal search articles of the accused in the police station 19 maalkhana. It was also stated by SI Kuldeep Singh that he also recorded the statement of the witnesses U/s. 161 of the Cr. P.C, 1973 and also sent the report U/s 57 of the NDPS Act, 1985 Ex.PW5/A. PW 10, SI Sunil Kumar testified to the effect that around 7.00 p.m., (on 22.12.2002) PW 9 SI Kuldeep Singh along with HC Harcharan Singh reached the spot in the same Government vehicle driven by ASI Suresh Kumar about which he deposed earlier and that he, SI Sunil Kumar handed over the documents prepared by him and produced the accused before him and apprised him of the circumstances of the case, and that SI Kuldeep Singh prepared the site plan Ex.PW9/A at his instance with the correct marginal notes, and between 7.20 p.m. to 8.00 p.m., SI Kuldeep Singh recorded the statement of HC Harcharan Singh and also arrested the accused, conducted the personal search and memos to that effect were prepared, on which he signed. Inter alia PW 10 SI Sunil Kumar testified to the effect that on the personal search of the accused, a carbon copy of a notice U/s 50 of the NDPS Act, 1985 and a sum of Rs.100/- was recovered and that SI Kuldeep Singh recorded the disclosure statement of the accused ExPW1/F on which he also signed. Inter alia PW9, has testified to the effect that at about 9.00 p.m., they left the spot with the accused and reached the police station around 9.30 p.m., where SI Kuldeep Singh produced the accused before the SHO and it was stated further by PW 10 that SI Kuldeep Singh then recorded his statement U/s. 161 of the Cr. P.C, 1973 at around 10.20 p.m. and that on 23.12.2002, he PW 10, prepared the report U/s 57 of the NDPS Act, 1985, regarding recovery of herion from the accused and the same Ex.PW5/B was sent to the senior police officers through the SHO.
Inter alia, PW 9 testified to the effect that on 01.01.2003 SI Kuldeep Singh recorded his supplementary statement U/s. 161 of the Cr. P.C, 1973 regarding return of his seal by HC Bijender Singh to him.
PW 1 HC Harcharan Singh testified to the effect that he returned back to the spot around 6.30 p.m. on the day in question along with SI Kuldeep Singh who had taken over the investigation of the case from SI Sunil Kumar.
20Inter alia PW 1 testified to the effect that the personal search memo of the accused and the arrest information memo and the disclosure statement of the accused also bore his signatures. PW 8 HC Bijender Singh also corroborated the testimony of PW 10 SI Sunil Kumar and PW 9 SI Kuldeep Singh having reached the spot along with HC Harcharan Singh in the Government vehicle and of his conducting further investigation and having prepared the site plan and recorded the statement of PW 1 HC Harcharan Singh and interrogating the accused and who stated that SI Kuldeep Singh prepared the arrest memo and took the personal search of the accused and recorded his disclosure statement and also testified and stated that thereafter they left the spot at about 9.00 p.m. and reached the police station at about 9.30 p.m., where SI Kuldeep Singh produced the accused before the SHO.
This witness PW 8 HC Bijender Singh stated that on 10.01.2003, he had handed back the seal of SI Sunil Kumar to him at about 5.00 p.m. All the recovery witnesses PW 1 HC Harcharan Singh, PW 8 HC Bijender Singh and PW 10 SI Sunil Kumar identified the case property and the articles of the case property, the samples drawn from the same and the personal search articles and the carbon copy of the notice U/s 50 of the NDPS Act , 1985 recovered from the accused.
PW 9 SI Kuldeep Singh further testified to the effect that on 27.12.2002, the sample was sent to the C.R.C.L. Pusa, Delhi for chemical examination, vide road certificate No. 130/21 through Ct. Naresh Kumar, but the same was not received by the C.R.C.L. Pusa, Delhi due to some technical reasons and thereafter, on 31.12.2002, the sample was again sent to the C.R.C.L. Pusa, Delhi vide road certificate No. 135/21 through Ct. Vinod Kumar and the same was deposited and thereafter the receipt was obtained from the C.R.C.L. Pusa, Delhi i.e. Ex.PW9/B which has been placed on the record. Inter alia PW 9 testified to the effect that he recorded the statement of the constable who took the sample to the C.R.C.L. 21 Pusa, Delhi and on 10.01.2003, the official seal of SI Sunil Kumar was returned to him by HC Harcharan Singh and that he, PW 9 had recorded the statement of both the SI's i.e. of PW 10 SI Sunil Kumar and PW 9 SI Kuldeep Singh and after completion of the investigation, the challan was prepared and filed in Court.
This witness on being cross examined on behalf of the accused, testified to the effect that the samples were refused at the C.R.C.L. Pusa, Delhi at the first instance on the ground that the C.R.C.L. authority wanted the FSL authorities to give in writing that they did not have any facilities to determine the purity percentage test and that this objection was made by them orally and that he did not know if anybody had gone to the FSL, Malviya Nagar to remove the said objection as he was on leave during that period and that he was on leave from 28.12.2002 to 31.12.2002, and that it had come to his knowledge that the sample was got deposited in the C.R.C.L. Pusa, Delhi after removal of the objection. PW 9 stated, however, that he did not know whether the objection was removed or not and that he did not record the statement of Ct. Naresh Kumar who carried the sample on 27.12.2002 but stated that this fact has been mentioned in the statements of the MHC(M) HC Bhagwat Dayal and the Inspector S.P. Kaushik, the then SHO PS, Narcotics Branch. It has been stated by SI Kuldeep Singh, the 2nd Investigating Officer, that he did not record the separate statements of the SHO and the MHC(M) about the release of this sample and the deposit of the sample and that he did not know the date of the forwarding letter by the DCP Crime and Railways, PW 9 SI Kuldeep Singh, however, declined that the sample was taken out from the maalkhana on 27.12.2002 and was not deposited again in the maalkhana, and denied that the possibility of the tampering with the sample could not be ruled out.
PW 3 HC Gyan Prakash, inter alia testified to the effect that on 22.12.2002 at about 9.30 p.m. SI Kuldeep Singh had deposited the jamatalashi of the accused containing Rs.100/- and copy of the notice U/s 50 of the NDPS Act which he deposited in the maalkhana and made the 22 relevant entries in register No. 19 at serial No. 319. This witness further stated that he, PW 3, was on leave on 27.12.2002 and HC Bhagwat Dayal was looking after his work who sent the sample mark A to the C.R.C.L., Pusa, Delhi for chemical analysis and had made the entry in the register No. 19 at serial No. 319 and that he, PW 3, identified the handwriting of HC Bhagwat Dayal as he had seen him writing and signing during the course of his official duties. PW 3 also testified to the effect that Ex.PW3/A was the copy of the relevant entries in register No. 19 at serial No. 319. The original register No. 19 was also produced during the testimony of this witness. PW 3 further stated that so long as the case property remained in his custody it remained intact and was not tampered with. This witness on being cross examined on behalf of the accused stated that he was posted as the MHC(M), Nr. Branch permanently and that he did not remember the dates on which he was on leave in the month of December, 2002 but that he used to give his charge to HC Bhagwat Dayal whenever he was on leave, and that he did not remember when he came from his leave and took charge from HC Bhagwat Dayal as the MHC(M). PW 3 further stated that the C.R.C.L. forms were in an open condition and stated that the Investigating Officer and the SHO signed the C.R.C.L. form in triplicate and that his statement was recorded in the police station at about 10.00 p.m. on 22.12.2002 and that he remained on duty for 24 hours at the police station and used to go home on the directions of the SHO. Inter alia, PW 3 testified to the effect, that he did not recall the time when he had gone home on 22.12.2002 and denied that he had testified falsely. PW 4 Inspector S.P. Kaushik, the then SHO PS Narcotics Branch testified to the effect that on 22.12.2002 at about 9.30 p.m., SI Kuldeep Singh had come to the police station and produced the accused before him and that he PW 4 had personally verified the facts of the case by talking to the accused and stated that, that day itself, a report U/s 57 of the NDPS Act, 1985 regarding arrest of the accused was put up by SI Kuldeep Singh before him which he signed and which he forwarded to the ACP Narcotics and stated further that on 23.12.2002, another report U/s 57 of the NDPS Act, 23 1985 regarding the seizure of herion was produced before him, which he also signed and forwarded by him to the ACP Narcotics and testified to the carbon copy thereof as bearing his signatures.
Inter alia PW 4 testified to the effect that on 27.12.2002 on his directions, Ct. Naresh Kumar had taken the parcel mark A to the C.R.C.L. Pusa, Delhi, but the same could not be deposited that day and that thereafter, on 31.12.2002, the sample mark A and the C.R.C.L. form in triplicate were sent to the C.R.C.L. through Ct. Vinod Kumar who deposited the same there for chemical analysis and stated further that on that day HC Bhagwat Dayal was working as the MHC(M). It was further testified by PW4, that after completion of the investigation, he had filed the challan against the accused and stated further that so long as the case property remained in his custody, it remained intact and was not tampered with. On being cross examined on behalf of the accused, it was stated by this witness that there was no forwarding letter issued by him to the C.R.C.L., Pusa, Delhi on 27.12.2002 and this witness further stated and testified likewise, qua the date 31.12.2002 and stated that the forwarding letter was issued by the DCP was sent with the C.R.C.L. forms on both the occasions, and stated that it was the same letter which had been sent again on 31.12.2002 and stated that the sample was sent to the C.R.C.L. on 27.12.2002, because the facilities for determining the purity percentage test were not available at the FSL, Malviya Nagar. PW 4 has further testified to the effect that the C.R.C.L. Pusa, Delhi did not accept the sample because no such endorsement was made by the FSL, Malviya Nagar on the forwarding letter and stated that the sample were redeposited on 31.02.2002 (appears to be a typographical error in place of 31.12.2002) after getting the said endorsement from FSL, Malviya Nagar. It was also testified by PW 4 that the samples are generally sent to the FSL by the police station and that in the present case, the sample was sent to the C.R.C.L. at the first instance because the quantity of the recovered contraband was quite high and the prevalent law at that time required determination of purity percentage, which facility was not available at the FSL Malviya Nagar. PW 24 4, also testified to the effect that there was no written objection by the C.R.C.L. but they were only verbally told to get an endorsement from the FSL, Malviya Nagar and stated that the objection removed by making an endorsement by the FSL, Malviya Nagar was not on the judicial record as the said letter was retained by the C.R.C.L. authorities. PW 4 further testified to the effect that he did not make any entry in the test memos as regards sending that sample again on 27.12.2002 and 31.12.2002 and that the entry regarding deposit of the case property was made by the MHC(M) on both the days. Inter alia PW 4 denied that the case property, taken out from the maalkhana on 27.12.2002 was not redeposited on the same day and denied that it remained outside the maalkhana till 31.12.2002. PW 4 further denied that the case property was tampered with and denied that as the endorsement was not on the judicial record, there was no endorsement in fact got made from the FSL, Malviya Nagar. PW 6 HC Bhagwat Dayal, testified to the effect that on 27.12.2002 whilst he was posted as the Maalkhana moharrar he had sent the pullanda marked A, sealed with 3 seals of 6A PS NB Delhi and one seal of 1 SHO NBR Delhi and the triplicate C.R.C.L. form to the C.R.C.L. Pusa New Delhi vide road certificate NO. 130/21 through Ct. Naresh Kumar, but this sample was returned and could not be deposited without a report from the FSL, Malviya Nagar and that he, PW 6, again deposited the same in the maalkhana with all the above mentioned articles. PW 6 further testified to the effect that on 31.12.2002 he again sent the said sample along with the above said articles vide road certificate No. 135/21 through Ct. Vinod Kumar and on that day, the said pullanda was deposited by the official of the C.R.C.L. Pusa, New Delhi and that he received the copy of the road certificate along with the receipt from the C.R.C.L. Pusa and made the necessary entry in register No. 19 at serial No. 319 and testified to Ex.PW3/A being the copy of the entry at Sr. No. 319 and testified to Ex.PW6/A as being the copy of the road certificate No. 135/21 and Ex.PW6/B as being the photocopy of the receipt from the C.R.C.L.. PW 6 further produced the original registers in Court which were seen and returned 25 and testified also that so long as the case property remained with him, it remained intact, and was not tampered with.
This witness on being cross examined on behalf of the accused testified to the effect that he was working as the MHC(M) from 24.12.2002 to. 01.01.2003 as the MHC(M) HC Gyan Prakash had gone on leave and he, PW 6, had taken the charge during that period. This witness further testified to the effect that his statement U/s. 161 of the Cr.P.C. was not recorded on 27.12.2002 and stated that he had sent the sample to the C.R.C.L. twice and on the first occasion the same had been returned and was redeposited by him on the same day. This witness further stated that there were two road certificates issued i.e. road certificate No. 130/21 and 135/21 on two different dates and stated that the first road certificate dated 27.12.2002 returned by the C.R.C.L. did not have any endorsement from the C.R.C.L. and stated that the constable had verbally told him that the same had been returned because they refused to accept the sample without the report from the FSL, Malviya Nagar that the purity percentage report could not be given by the C.R.C.L.. This witness also denied that the sample was taken out for the purposes of tampering only and was never sent to the C.R.C.L. Pusa on 27.12.2002 and stated that when the samples were received back, the seals were intact. The witness also stated that there was no other police personnel working as the MHC(M) other than him, from 24.12.2002 till 01.01.2003. The witness also denied that his statement U/s. 161 of the Cr.P.C., 1973, was not recorded by the Investigating Officer because he was not present at that day. This witness also denied that he had testified falsely.
PW 7 put forth in the witness box by the State was Ct. Vinod Kumar who testified to the effect that on 27.12.2002 he was posted at the Police Station Narcotics Branch and on that day on the directions of the SHO, he had taken the pullanda marked A from the MHCM Bhagwat Dayal and the pullanda had 3 seals of 6A Police Station NB Delhi and one seal of 1 SHO NBR Delhi and that he, PW 7, also took the C.R.C.L. form in triplicate which also had one seal each qua depositing the same at the C.R.C.L. Pusa 26 vide road certificate No. 135/21 and stated that the same was deposited with the C.R.C.L. officials and stated that DD No. 5 for his departure from the Narcotics Branch and for depositing the samples was recorded and that he brought the receipt from the C.R.C.L. and the copy of the road certificate was handed over to the MHC(M) Bhagwat Dayal at about 3.45 p.m. on reaching the PS. Inter alia, PW7 that stated that so long as the case property remained in his custody, it remained intact and was not tampered with. On being cross examined on behalf of the accused, PW 7 stated when he took the sample along with the C.R.C.L. forms, the said C.R.C.L. forms were in an open condition and were not in any envelope and thus he could ascertain the seals of 6A PS NB Delhi and 1 SHO NBR Delhi on each of the three forms. Inter alia PW7 testified to the effect that he was deputed to go to C.R.C.L. Pusa vide an order in writing by the SHO, but then went on to state that these were only oral directions of the SHO. PW7 further denied that he did not carry the samples on 31.12.2002 and denied that the same had been tampered with. PW 7 further stated that his statement was recorded by the IO on 01.01.2003.
PW5, HC Ved Prakash, in his unchallenged testimony has testified to the effect that on 23.12.2002, he was posted as the SO to the DCP N & CP and that on that day two reports U/s. 57 of the NDPS Act regarding arrest and seizure of 1 Kg of herion from the accused Manoj forwarded by the SHO P.S. Nr. Branch and the ACP Narcotics Branch were received and were put up before the DCP, Narcotics, who after perusing the same signed on both the reports i.e. PW5/A and PW5/B at point B thereon and PW 5 further testified to the effect that he recognized the signature of the DCP Narcotics Branch on both the three reports, as he had seen him writing and signing during the course of his official duties.
27On consideration of the entire available record, and the rival pleas addressed on behalf of either side it is apparently brought forth that the discrepancies and lacunae in the prosecution version in the instant case, are fatal, entitling the accused to the benefit of a reasonable doubt.
The detailed reasons for this conclusion are as follows:
I. The non-attempt at joinder of independent public witnesses in broad day light from 2.00 pm to 3.00 pm, at the AIIMS hospital, in as much as, the testimony of PW 1, HC Harcharan Singh, admits during the cross examination that the Investigating Officer did not request any person amongst the staff of the AIIMS hospital nor any shopkeeper nor any parking attendant to join the proceedings.
Likewise, PW 8, HC Bijender Singh, during cross examination admits that the Investigating Officer did not ask any vendor, nor any parking attendant nor any hospital staff (i.e of the AIIMS) to become a witness. (The factum that the staff personnel of the AIIMS were available and not attempted to be joined by the Investigating Officer cannot be overlooked, for the likelihood of such persons refusing to join the proceedings in accordance with law in comparison to the general public, would have been lesser).
The initial Investigating Officer PW 10, SI Sunil Kumar, also himself admitted during cross examination that no employee of the AIIMS was requested to join raiding party, nor was any parking attendant at the place where the government vehicle was parked, asked to join the raiding party.28
Undoubtedly, it is settled law that prosecution witnesses are not to be disbelieved merely because they are official witnesses if their testimonies inspire evidence. In the instant case, however the testimonies of the prosecution witnesses are glaringly discrepant, as set forth herein below, and in these circumstances reliance placed on behalf of the accused on the verdict of the Hon'ble High court of Delhi in the case Prithvi Pal Singh @ Munna Vs State 2000 (1) JCC (Delhi) 274 wherein the Hon'ble High court of Delhi has observed to the effect "Section 43 of the Act read along with sub-section (4) of Section 100 Cr.P.C, contemplates that search should, as far as practicable, be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to establish that the association of such witnesses was not possible on the facts and circumstances of a particular case. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Thus, the statutory desirability in the matter of search and seizure is that there should be two or more independent and respectable witnesses. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against authorized officers. In other words, the Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping in view the severe punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure as envisaged by the statute scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of statutory safeguards committed by the authorized officer during search 29 and seizure operations and may also undermine respect of law. That cannot be permitted." and "It is significant to mention that the appellant was apprehended in a busy market. There is inconsistency between the statements of prosecution witnesses regarding presence of public witnesses at the time of the alleged search and seizure. Constable Raj Kumar (PW 3) and ACP Manaktala (PW 8) have admitted in their cross examination that some people had collected at the spot to witness the alleged search and seizure, whereas the remaining witnesses, namely S.I. Risal Singh (PW 4), S.I. Panna Lal (PW
5) and ACP J.S. Rana (PW 11) have contradicted the said statements of Constable Raj Kumar (PW 3) and ACP Manaktala (PW 8) having regard to the time and place of the alleged search and seizure, the statements of Constable Raj Kumar (PW 3) and ACP Manaktala (PW 8) appear to be true. However, the aforesaid prosecution witnesses have stated in one voice that no shopkeeper or anybody from the public was asked to witness the alleged search and seizure. In that view of the matter, it may safely be inferred that although public witnesses were available but no attempt was made by the authorized officer to associate them before searching the appellant. I am unable to find any reason as to why the authorized officer did not even make any attempt to associate any independent witness or witnesses during the course of search and seizure operation. As already observed the compliance with the procedural safeguards contained in the Code of Criminal Procedure and the Act are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the authorized officer. It has to borne in mind that where the error, irregularity or illegality touching the procedure committed by the authorized officer is so patent and loudly obtrusive that it leaves on his 30 evidence an indelible stamp of infirmity or vice which cannot be obliterated or cured, then it would be hazardous to place implicit reliance on it. The aforesaid circumstances make the Court to be circumspect and look for corroboration of the testimony of the said police officials from an independent source. No such corroboration is forthcoming in this case" as observed - is wholly apt II.
As per the prosecution version set forth in the police report, the raiding party positioned itself in the following manner - i,e. SI Sunil Kumar and the secret informer on the Eastern side of IN gate of the AIIMS hospital and HC Bijender Singh and the HC Harcharan Singh on the Western side of the OUT gate of the AIIMS hospital.
Though this version, is corroborated partially, through the testimony PW 8 HC Bijender Singh, the testimony of PW 1 HC Harcharan singh is briefer, when it states that the raiding party was deputed in an area of 25 metres in front of the AIIMS hospital, but the testimony of the Investigating officer, PW 10, SI Sunil Kumar, sets the prosecution version at naught, when it states, that he, along with the informer took position in the Eastern direction of the IN gate and HC Bijender Singh and HC Haracharan Singh took position towards the West side of the IN gate of the hospital. This variation in the positioning of the raiding party becomes all the more material in view of Ex PW 9/A, the site plan on the record.
III.
As per the prosecution version and the testimonies of PW 10, SI Sunil Kumar, and PW 8 HC Bijender Singh - 4 and 4 /5 passersby 31 respectively, were asked to join the proceedings after apprehension of the accused, before commencement of any proceedings. As per the testimony of PW 1 HC Harcharan Singh, however, passersby (number not specified) were asked to join the raiding party, after issuance of the notice U/s 50 of the NDPS Act, 1985 to the accused after the refusal by the accused to avail of any rights of the search U/s 50 of the NDPS Act, 1985.
IV.
As per the prosecution version set forth in the police report, after apprehension of the accused, on his search the front chain of the choclate coloured cloth jacket of the accused was got opened, and then, from within it, from the left dub of the pant worn by the accused, the alleged recovery was effected. The Investigating Officer SI Sunil Kumar, PW 10, qua this aspect states that "the zip of the said jacket was open and from the left dub of his pant...........". HC Bijender Singh PW 8, however, corroborates the prosecution version in toto as set forth in the police report. On the other hand PW 1 HC Harcharan singh, however states that the white polythene packet was recovered form inside the choclate coloured jacket of the accused kept under the left side belt of his trousers.
V. As per the testimony of SI Sunil Kumar, the initial Investigating officer, the seal that he had handed over to HC Bijender Singh after use at the time of the alleged recovery was returned to him by HC Bijender Singh on 1.1.2003. The case property in the instant was deposited in the CRCL as per the prosecution version on 31.12.2002. Thus, the return of the seal on 1.1.2003 to the Investigating officer would be normal in accordance with the prosecution version attempted to be set forth. PW 9, SI Kuldeep Singh and PW 8, HC Bijender Singh, however, states that 32 the seal was returned by HC Bijender Singh to SI Sunil Kumar on 10.1.2003, qua which statements of witnesses U/s 161 of the Cr.P.C, 1973 of HC Bijender Singh and SI Sunil Kumar, were recorded by SI Kuldeep Singh. SI Sunil Kumar, however specifically states that his statement was recorded by the 2nd Investigating officer, SI Kuldeep Singh qua return of the seal to him by HC Bijender Singh on 1.1.2003.
VI.
As per the prosecution version the accused declined to avail of his legal rights of search in the presence of a Gazetted Officer or a Magistrate and also declined to conduct the search of the raiding party before his search was conducted, and that the accused wrote his refusal in his own handwriting. the accused has submitted in his statement U/s 313 of the Cr. P.C, 1973, that he was made to forcibly write on papers and was also made to forcibly sign on blank papers. Reliance was placed on behalf of the accused on EX PW 1/A, the alleged reply of the accused to the notice U/s 50 of the NDPS Act, 1985. The accused has written the said stated reply in Hindi and a word MAGISTRATE in English and has signed in English and thus apparently appears to be educated. The testimony of SI Sunil Kumar, PW 10 indicates that the accused had informed the police personnel that he was a graduate. Significantly this Investigating Officer states that he only told the accused about his legal rights that he could get his search before a Gazetted officer or a Magistrate, but did not tell him its consequences, because the accused was a graduate. This IO had further stated that it was not mentioned on the records that the accused was a graduate, as it was not necessary. In view thereof, the words " aur nahin apki ya police party ki talashi lena chahta hun" in Hindi where there is a cutting on the word 'nahin' 33 which has not been countersigned by the accused and qua which it has been submitted on behalf of the accused that the words "main, ie. I in Hindi had been changed to read as nahin, especially in view of the cross examination of PW 1, HC Harcharan Singh who states, " I do not remember if the accused made any cuttings or overwriting on the said notice or not" makes the alleged compliance of section 50 of the NDPS Act, 1985 by the investigating agency wholly circumspect, though the investigating officer on being cross examined has denied that the accused opted to take the search of the police officials but was not allowed to do so and denied that the accused wrote this fact during his endorsement on the notice. In view thereof, the words in Ex PW 1/A, the reply of the accused which read to the effect "aur nahin apki ya police party ki talashi lena chahta hun" qua which it is submitted on behalf of the accused that the said sentence was in fact "aur main apki ya police party ki talashi lena chahta hu" becomes wholly circumspect.
VII.
34As per the testimony of HC Harcharan Singh PW 1, at the time of apprehension of the accused, the field testing kit, the electronic weighing scales and the IO bag were with the investigating officer and the driver of the vehicle was called, but the driver did not bring any thing with him. PW 8 HC Bijender Singh too in his cross examination stated that the testing kit and the weighing machine were with the investigating officer at the time of recovery. SI Sunil Kumar the Investigating Officer, however stated during cross examination that the articles, i.e. the IO bag, field testing kit and electronic weighing scales, which he took with him from the Police Station remained in his custody when he reached the spot, but then went on to state that till the arrival of the accused, they were kept in the official vehicle which he called to the spot by giving a signal.
These discrepancies in the prosecution version individually per se due to the lapse of time may have been ignored, but the factum that the sample mark A in the instant case was allegedly taken to the CRCL on 27.12.2002 by one Constable Naresh, who could not deposit the same allegedly at the CRCL, due to the CRCL having allegedly objected to the same being deposited on the ground that the FSL Malviya Nagar, had not made an endorsement, that it did not have the facility to conduct the purity percentage test and who i.e. Ct. Naresh is stated to have redeposited the sample mark A in the maalkhana of PS Narcotics Branch on 27.12.2002 has neither been cited as a witness nor examined during the course of the investigation, as admitted by PW 9 SI Kuldeep Singh the 2nd Investigating Officer of the case, who during cross examination states " I had not recorded the statement of Ct. Nareh Kumar who carried the sample on 27.12.2002 to the CRCL.........". Significantly the 2nd Investigating officer 35 PW 9, SI Kuldeep Singh though he stated that this fact had been mentioned in the statements of the MHC(M) HC Bhagwat Dayal and Sh. S. P. Kaushik, the SHO, has categorically stated that he did not record the separate statement of the SHO and the MHCM about the release of the sample and the deposit of the sample. Significant further, is the factum that PW 9 the 2nd investigating officer states in his examination in chief merely to the effect that the sample was not received by the CRCL officials on 27.12.2002 due to some technical reasons, without specifying what those technical reasons were and on cross examination states that the sample was refused at the CRCL on the first instance on the account that the CRCL wanted the FSL authorities to give in writing that they did not have any facility to determine the percentage of purity. Equally significant is the factum that PW 9 states that this objection was made by the CRCL orally. Even more significant is the factum that PW 9 further stated during cross examination that he did not know, if any one had gone to the FSL Malviya Nagar to remove the said objection as he was on leave during the period 28.12.2002 to 31.12.2002 and that it came to his knowledge that the sample was got deposited in the CRCL after the removal of the objection. Even more significant is the factum that PW 9 SI Kuldeep Singh states that he does not know whether the objection was removed or not. It is in these circumstances, that the non production of Ct. Naresh Kumar, who allegedly took the sample mark A to the CRCL on 27.12.2002 and is stated to have redeposited the same on 27.12.2002 as a witness by the State becomes fatal to the prosecution version, as the link evidence as to the handing over and taking over of the sample mark A in an intact condition by the said unknown Ct. Naresh Kumar and taking the same to the CRCL, in an intact condition on 27.12.2002 and redepositing the same in the maalkhana in an intact condition on 27.12.2002 is missing. The factum that the alleged non deposit of the sample in the CRCL was due to an 36 objection raised by the CRCL which was not given in writing as stated by SI Kuldeep Singh, qua the non availability of facilities with the FSL for conducting the percentage purity test could have been deposed on oath only by Ct. Naresh Kumar, who was not even chosen to be joined in the investigation by the Investigating Officer, who did not even attempt to ascertain whether the objection of the CRCL had been removed, before redeposit of the sample at the CRCL.
Equally significant is the factum that the road certificate no. 130/21 vide which Ct. Naresh Kumar is alleged to have taken the sample mark A to the CRCL has not been produced by the State.
It is even more significant that the DD entries qua departure and arrival of Ct. Naresh Kumar for taking the sample allegedly and redepositing the sample, have not been chosen to be produced by the State.
Even more significant is the factum that there is an overwriting on Ex. PW 6/A on the copy of the road certificate no. 135/21 in the no. of the road certificate.
Another factum which casts a doubt on the veracity of the prosecution version is that Ex PW 3/A the copy of serial entry no. 319 of register no. 19 qua deposit of the case property in the maalkhana on 22.12.2002 by Inspector S.P. Kaushik, the SHO PS Narcotics Branch on receipt of the same allegedly as brought by HC Harcharan Singh has not been countersigned by the said SHO, PS Narcotics Branch and thus, the mere recording of DD No. 21 to this effect, copy of which is Ex PW 2/C does not suffice to dislodge this doubt in view of the verdict of the Hon'ble High Court of Delhi in the case Safiullah Vs State (Delhi Administration) 1993 (1) CC cases 497.
37The accused Manoj, S/o Late Sh. Mahesh Chand, is thus entitled to the benefit of a reasonable doubt, as the State has been unable to prove the allegation levelled against the accused of the commission of an offence punishable U/s 21 (b) of the NDPS Act, 1985.
The said accused Manoj is thus hereby acquitted qua the allegations levelled against him in FIR 102/02, PS Narcotics Branch qua the alleged commission of an offence punishable U/s 21 (b) of the NDPS Act, 1985 as amended, and the said accused is directed to be released by the Superintendent Jail, Delhi in this case. Release warrants be issued to the Superintendent Jail, Delhi forthwith to this effect. The file be consigned to the Record Room.
Announced in the Open Court (ANU MALHOTRA)
today the 29th day of March, 2008 ASJ/Special Judge (NDPS)
NEW DELHI
29.03.2008
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