Delhi District Court
State vs . Satish on 12 May, 2010
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.: 85N/08
STATE VS. SATISH
S/o Kamal Singh,
R/o Khadda Colony, J Block,
Gali No. 2, Kushak Road No. 2,
Swaroop Nagar, S.P. Badli, Delhi.
FIR No.: 161/07
PS Sultan Puri
u/Sec. 20 of NDPS Act
Date of Institution: 15.03.2007
Date of conclusion of Arguments: 12.05.2010
Date of pronouncement of Judgment: 12.05.2010
J U D G M E N T
1 Accused Satish has been chargesheeted by PS Sultan Puri for commission of offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act') 2 Case of the prosecution, briefly stated, is to the effect that on 31.01.07, SI Puran Pant, Ct. Surender and Ct. Narender were on routine patrolling duty and when they were present at Mubarkpur Dabas, a secret informer met them and told them that one person would come via kirari crossing and would go towards Prem NagarI State Vs. Satish o1o and he would be carrying illicit ganja. SHO was immediately telephonically intimated about the information who directed SI Puran Pant to be in touch with Addl. SHO Mir Singh. Accordingly, Inspector Mir Singh was apprised about the information and was requested to reach at the spot. Aforesaid police officials alongwith secret informer reached at Kirari Crossing and started waiting for the accused. At 8:40 pm, accused was found coming and he was carrying one green colored bag in his right hand. Informer identified him. Accused was overpowered. He was apprised about information and was served with notice u/s 50 NDPS Act. He, however, refused to avail his legal rights. Addl. SHO Mir Singh also reached at the spot in the meanwhile and he also apprised accused about his legal rights. The bag which the accused was carrying, was searched and it was found containing one more bag of red color and such red color bag was found containing ganja. Total weight of ganja was found to be 4.5 Kgs. 200 grams of ganja was separated for analysis purpose. Separate pullandas were prepared. Requisite documentation was done at the spot. Since the possession of ganja was illegal and unlawful. It is in these circumstances that the accused has been State Vs. Satish o2o arrested and chargesheeted.
3 Chargesheet was filed in the court on 15.03.07. Accused was charged under section 20 of NDPS Act vide order dated 08.05.07. He pleaded not guilty and claimed trial. 4 Prosecution was directed to adduce evidence and has examined seven witnesses viz. PW1 HC Faujdar Singh (Reader to ACP), PW2 SI Puran Pant (First IO) , PW3 HC Bhagwan Singh (Duty Officer), PW4 Inspector Mir Singh (Addl. SHO), PW5 Inspector Mohd. Iqbal (the then SHO, PS Sultan Puri), PW6 ASI Rajender Singh (Second IO) and PW7 Ct. Narender (recovery witness) 5 Statement of accused under Section 313 Cr.P.C. was recorded. Accused pleaded innocence and claimed that he had been falsely implicated. However, accused did not choose to lead any evidence in defence.
6 I have heard Ms. Purnima Gupta, Ld. Addl. P.P. for the State
State Vs. Satish o3o
and Sh. Suresh Tomar, Ld. defence counsel for accused and carefully gone through the entire material available on record. 7 Ms. Purnima Gupta, Ld. Addl. P.P. has contended that prosecution has been able to prove its case to the hilt. She has argued that material witnesses have entered into witness box and they have fully supported the case of prosecution and corroborated one another on each and every aspect of the case. She has also argued that link evidence is also found to be in existence and all the relevant documents have been duly proved.
8 According to Ld. defence counsel, accused has been falsely implicated. It has been argued that accused was already detained at PS three dates prior to the alleged date of arrest and contraband was planted upon him. He has also argued that even the link evidence is missing and there are material contradictions appearing on record which clearly indicate that nothing had actually happened at the spot. He has also contended that even the report of FSL does not clearly indicate the contraband in question to be ganja.
State Vs. Satish o4o
9 I have given my thoughtful consideration to the rival
contentions and carefully perused the entire material available on record.
10 Admittedly, its a case based on the testimony of police officials only but that is understandable. If prosecution case is to be believed then police team was on patrolling when secret informer met them. Informer met them at 8:15 pm and accused was apprehended at 8:40 pm and, therefore, the police was having only 25 odd minutes within which the public persons could have been persuaded to join the investigation. Within the aforesaid period, even the concerned SHO and Addl. SHO were informed. PW2 SI Puran Pant is the First Investigating Officer of the case and he has deposed that he had requested 4/5 passersby to join the investigation but they all declined and went away without telling their names and addresses and thereafter, without wasting any further time, he constituted raiding party of police officials and reached at the spot along with informer. Defence counsel has contended that no sincere efforts were made by the investigating agency. He has State Vs. Satish o5o argued that neither the names and addresses of such persons were recorded nor any action was taken against them. Admittedly, it would have been much better had their names and addresses been recorded but such fact by itself cannot be said to be ample enough to scrap the entire prosecution case. I cannot lose sight of the fact that people are generally reluctant to join such type of investigation. In Akmal Ahmed v. State of Delhi, 1999(2) RCR(Criminal) 265, it is observed that it is now wellsettled that the evidence of search or seizure, made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi v. Sunil, 2001(1) RCR(Criminal) 56:(2000)1 SCC 748, it was held as under : "It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature."
11 In Appa Bai and another v. State of Gujarat, AIR 1988 SC State Vs. Satish o6o
696, it is held that the prosecution story cannot be thrown out on the ground that an independent witness had not been examined by the prosecution. It is further observed that the civilized people are generally insensitive when a crime is committed even in their presence and they withdraw from the victim's side and from the side of the vigilante. They keep themselves away from the Courts unless it is inevitable.
12 Undeniably, search before an independent witness imparts much more realism and credit worthiness to the search and seizure proceedings. But at the same time, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. Police can only appeal and, to some extent, persuade them to join raid.
13 PW2 SI Puran Pant, PW7 Ct. Narender and PW8 Ct. Surender are the members of the raiding party. PW4 Inspector Mir Singh had also reached at the spot. Recovery took place in his presence and, therefore, it becomes important to evaluate their evidence.
State Vs. Satish o7o
14 As per PW2 SI Puran Pant, on receiving secret information,
he intimated SHO and who directed him to inform Additional SHO and, therefore, he informed Additional SHO and requested him to reach at the spot. He also deposed that at about 8:40 pm, accused was noticed by the informer and he was intercepted at the pointing out of informer at Kirari Railway Phatak, Near Mubarakpur Road. Accused was having a green color jute bag in his right hand and informer identified him and thereafter left the spot. He deposed that accused was apprised about the information and it was also told to him that if he desired, any Gazetted Officer or Magistrate could be called at the spot prior to his search or that he could be taken before such officers for the purposes of his search. I take a little pause here. Its a case where accused was allegedly carrying a bag and for the purposes of searching such bag, there was no requirement of serving the accused with notice u/s 50 NDPS Act. However despite that, investigating agency had chosen to serve the accused with notice. Testimony of PW2 SI Puran Pant, who had prepared the notice, indicates that accused was not made aware about his legal rights in appropriate manner. As per PW2 SI Puran Pant, he had State Vs. Satish o8o told the accused that if accused desired, such officer could be called at the spot. Accused was required to be made aware about his legal right and it was not the question of his choice or desire or liking. 15 PW2 SI Puran Pant has further proved the notice u/s 50 NDPS Act as Ex.PW2/A. Carbon copy of such notice was served upon accused and same has been proved as Ex.P7. He has also deposed that Inspector Mir Singh had also reached at the spot and as per the directions of Inspector Mir Singh, Ct. Surender had taken his search (search of PW2 SI Puran Pant) in which nothing was recovered. He has further deposed that thereafter accused was searched and green colored cloth bag was checked which was found containing one pitthu type bag of red color which was containing ganja.
16 Testimony of his other accompanying constables is also to the similar effect but they have come up with material contradictions which, in fact, create strong doubt in the veracity of the case of prosecution. According to PW2 SI Puran Pant, they all were State Vs. Satish o9o patrolling on motorcycles and there were two motorcycles in all. No one was having any car with them at that time. PW7 Ct. Surender has contradicted him as according to him, all the police officials were patrolling on foot. Things do not stop here as PW8 Ct. Narender has come with yet another version. According to him, he himself was patrolling on private motorcycle but PW2 SI Puran Pant and Ct. Narender were patrolling in a private car. All the three members of the raiding party were allegedly patrolling together and they all have come up with incongruous version which makes the story of the prosecution unbelievable or atleast highly doubtful. There is nothing on record which may explain the aforesaid material contradiction. Ganja was weighed with the help of a weighing machine. Again all the spot witnesses are coming up with contradictory versions. PW2 SI Puran Pant has claimed that he was having IO Kit with him and weighing machine was there in such IO Kit. However, PW7 Ct. Narender has something else to offer. According to him, weighing machine was brought by Ct. Surender from a nearby fruit seller. Things become complicated and confused if I switch over to version of Ct. Surender who does not say that he had gone anywhere to State Vs. Satish o10o bring weighing machine and according to him, the machine was already there in the IO Bag. Thus, it is not at all clear whether PW2 SI Puran Pant was carrying the weighing machine with him or whether it was brought later on at the spot by anyone. 17 Writing work was done at the spot and as per the case of prosecution, police booth was situated at the spot. All the members of the raiding party have come up with different versions and it is not clear whether such police booth was opened or closed or locked. According to PW2 SI Puran Pant, such booth was lying locked at the relevant time. According to PW7 Ct. Narender, such police booth was open at that time and, therefore, it becomes apparent that material spot witnesses are not supporting each other and are coming up with contradictory versions.
18 Ganja, allegedly recovered from accused was weighed but the manner of weighing also leaves much to be desired. According to PW2 SI Puran Pant, it was the red color bag which was weighed . Ganja was contained in the bag and it would have been appropriate State Vs. Satish o11o had the ganja been weighed separately. Total weight of ganja inclusive of and red color bag was found to be 4.5 Kgs but nobody can say with certainty as to what was the actual weight of contraband. Naturally, the weight of bag has also been included in the total weight which is not appropriate from any angle whatsoever. After the sample was separated, sample pullanda was prepared and remaining ganja was also put back in the same bag and was separately packed and seals were affixed on the pullandas as well as on the FSL Form and Inspector Mir Singh had taken the case property to malkhanna, PS Sultan Puri. I have seen the testimony of PW4 Inspector Mir Singh and he has deposed that he had personally went to the malkhanna and deposited the case property with MHC(M).
19 In such type of matters, it is the core duty of prosecution to prove the existence of all the links. Malkhanna Incharge remained the custodian of case property upto 29.03.07 as sample pullanda was sent to FSL on 29.03.07 through Ct. Satender. I could gather such fact when I had called register no. 19 and 21. PW6 ASI State Vs. Satish o12o Rajender Singh happens to be the Second Investigating Officer but he has not uttered even a single word as to who had taken the sample to FSL. There is nothing in the judicial file or in the police file which might have hinted in this regard. Reason is apparent. Chargesheet was filed in the court on 15.03.2007 and by that time, the investigating agency did not even think it appropriate to dispatch the sample to FSL. Sample was sent on 29.03.2007 and there is unexplained delay of approximately two months in sending the sample to FSL. Sample was required to be sent without any delay. It was obligatory in order to avoid allegation of any false implication. In the case of MATLOOB VS. STATE OF DELHI ADMN. 67 (1997) DLT 372, it has been observed that sample should be dispatched to CFSL with least possible delay. Reference in this regard is also made to one judgment of Jarnail Singh Vs. State of Punjab 2008 (4) JCC (Narcotics) 204 Punjab & Haryana High Court. In that case there was delay of 13 days and such delay was held to be fatal. In that case, there were several other factors which swayed the Court. In that case, Hon'ble High Court had extracted standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotic Control State Vs. Satish o13o Bureau. Such instruction reads as under:
"1.13 Mode and Time limit for dispatch of sample to Laboratory.
The samples should be sent either by insured post or through special messenger duly authorized for the purpose. Dispatch of samples by registered post or ordinary mail should not be resorted to. Samples must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal objection."
20 Moreover, the link evidence is found to be missing. Neither the concerned MHC(M) nor Ct. Satender have entered into witness box. In the case of 1991 CRI. L. J. 2524 MOHD. ASIF V. STATE (DELHI ADMN), it has been observed that there can possibly be no dispute with regard to the proposition that in cases where link evidence is missing to prove that the sealed parcels were not tampered with the, Court has to give benefit of doubt to an accused. In STATE OF RAJASTHAN VS DAULAT RAM AIR 1980 SC 1314 , it has been held that it is the duty of the prosecution to prove that while in their custody, the sample was not tampered with before reaching the public analyst. In SUBHASH CHAND MISHRA VS STATE 2002(2) JCC1379 , it was observed that prosecution is under State Vs. Satish o14o an obligation to prove that the sample delivered to CFSL was in the same condition and there was no possibility of being tampered with. In MOHD HASIM VS STATE ( DELHI) 1999 ( 3) C.C. CASES DHC 149 and EZE VAL OKELE @ VAL EZE VS NARCOTIC CONTROL BUREAU 2005 1 AD ( CR.) DHC 185 , it has been held that prosecution is bound to produce every link evidence that sealed pullandas of case property from the time they were taken till they were deposited in the malkhana and till they were deposited in the FSL, the seals thereon were not tampered with, by examining all the witnesses who had handled the sample. It was also held that if any link was missing, then it could not be said that prosecution had ruled out the possibility of sample being tampered with or changed and accused would be entitled for acquittal. 21 I have seen the FSL Report very carefully. As per the report, Tetrahydrocannabinol (THC) was found which is the main constituent of Cannabis Plant. Report of the Biology Division describes the contraband as Dried Vegetative Material.
State Vs. Satish o15o
22 Section 2(iii) of NDPS Act defines cannabis (hemp) thus:
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparations and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any natural material, of any of the above forms of cannabis or any drink prepared therefrom;
23 Ganja, as per the aforesaid definition, means flowering or fruiting tops of cannabis plant. Seeds and leaves, all by themselves do not constitute Ganja. However, when such flowering or fruiting tops are accompanied by seeds and leaves then the entire vegetative material falls within the definition of ganja. In such an eventuality, it is incumbent upon forensic expert to categorically and specifically mention that on requisite biological examination, State Vs. Satish o16o flowering or fruiting tops were noticed. It is all the more important because if such vegetative material includes seeds and leaves only then such material does not fall within the definition of ganja and is not punishable u/s 20 of NDPS Act. In the instant case, there is nothing to indicate that flowering tops were also found. 24 In view of my aforesaid discussion, I find it to be a fit case where accused should be granted benefit of doubt. Accused Satish is accordingly granted benefit of doubt and is acquitted of offence under Section 20 of NDPS Act.
25 Case property stands confiscated and be destroyed as per rules after expiry of the period of appeal or after awaiting the outcome of appeal, as the case may be.
26 File be consigned to Record Room.
Announced in the open court on this 12th day of May, 2010.
(MANOJ JAIN)
ASJ/Special Judge (NDPS)
Outer District:Rohini Courts:Delhi
State Vs. Satish o17o
State Vs. Satish o18o