Delhi District Court
State vs 1.Raju Son Of Shamia on 26 August, 2010
IN THE COURT OF SH. SUDESH KUMAR: SPL. JUDGE NDPS
ADDL.SESSIONS JUDGE (NORTH-EAST) KARKARDOOMA COURTS,
DELHI
SC 140/2007
FIR 137/2005
PS Seemapuri
Under Section 20/61/85 NDPS Act
Case ID No 02402 RO 280392005
State Versus 1.Raju son of Shamia
resident of village Angalpalli PS Chitpala
Distt Warrnagal (Andhra Pradesh)
2.Ambala Kuwaraiya son of Lingaiya
resident of village Pangadpally
Distt Warrangal (Andhra Pradesh)
3.Madhav Reddy son of Ramchandra Reddy
resident of village Pangadpally
Distt Warrangal (Andhra Pradesh)
4.Kamruddin son of Ankush
resident of village Angalpalli PS Chitpala
Distt Warrnagal (Andhra Pradesh)
5.Surender @ Surya son of Surjamani
resident of jhuggi No.8,Vandemataram Samiti
Kori Colony, Nand Nagri, Delhi
Date of Institution : 1.6.2005
Date of hearing arguments : 26.8.2010
Date of decision : 26.8.2010
JUDGMENT
Brief facts of the case as borne out from the police report under section 173 Cr.P.C. and accompanying documents are that on 19.3.2005 while patrolling in the area, when ASI Shahid Khan accompanied by Ct.Rajeev Kumar, HC Yashvbir, Ct.Ram Charan & Ct.Rohtash, at about 1.05 pm, reached at 70 foota Road near DTC Depot, New Seemapuri a secret informer informed ASI Shahid Khan that 4-5 boys would go to Kori Colony, Nand Nagri having Ganja in plastic sacks. On this information, ASI Shahid Khan asked 4-5 passers by to join the FIR 137/2005 PS Seemapuri Page 1 raiding party but they all expressing their inability left without disclosing their names and addresses. Accordingly, without wasting further time, ASI constituted raiding party of the police officials and the secret informer and reached near Sulabh Shauchalaya, New Seempuri, and started waiting for the accused persons by hiding themselves. At about 1.20 pm, 5 boys came from the side of DTC bus Depot holding plastic sacks in their hands who were overpowered on the pointing out of the secret informer. On enquiries, the accused persons disclosed their names and addresses as mentioned in the heading. On checking the plastic sacks held by all the accused persons in their right hands, the same were found containing Ganja- like substance. On this, ASI telephonically informed the duty officer and asked him to send the SHO to the spot. At about 1.40 pm, SHO also reached the spot in the official vehicle, who too after checking the same confirmed the substance in the plastic sacks to be Ganja. Accordingly, ASI served notices under section 50 NDPS Act in writing upon all the accused persons, read over and explained the contents thereof to the accused persons qua the recovery effected and further informing them since there is possibility of recovery of further Ganja from their possession their search is to be conducted and as a matter of right, if they wanted their search could be conducted in the presence of a Magistrate or a Gazetted officer and further if they wanted they could take search of members of the police party prior to their own search but all the accused persons refused to exercise both the rights and their refusal were recorded on the notices under section 50 NDPS Act. However, further search of the accused persons could not yield further recovery of any contraband.
On weighing the contraband recovered from the plastic sack held by accused Raju, the same was found to be 15 kg out of which 1 kg was taken out as sample and the remaining 14 kg was kept back in the same plastic sack and opening thereof was tied with a jute cord and the sample of 1 kg was also converted into a parcel. Both of them were sealed with the seal of SK and SHO also affixed his seal of JK thereon and both the parcels were given Srl.No.1.
FIR 137/2005 PS Seemapuri Page 2 On weighing the contraband recovered from the plastic sack held by accused Kamruddin, the same was found to be 12 kg out of which 1 kg was taken out as sample and the remaining 11 kg was kept back in the same plastic sack and opening thereof was tied with a jute cord and the sample of 1 kg was also converted into a parcel. Both of them were sealed with the seal of SK and SHO also affixed his seal of JK thereon and both the parcels were given Srl.No.2.
On weighing the contraband recovered from the plastic sack held by accused Madhav Reddy, the same was found to be 11 kg out of which 1 kg was taken out as sample and the remaining 10 kg was kept back in the same plastic sack and opening thereof was tied with a jute cord and the sample of 1 kg was also converted into a parcel. Both of them were sealed with the seal of SK and SHO also affixed his seal of JK thereon and both the parcels were given Srl.No.3 On weighing the contraband recovered from the plastic sack held by accused Ambala, the same was found to be 10 kg out of which 1 kg was taken out as sample and the remaining 9 kg was kept back in the same plastic sack and opening thereof was tied with a jute cord and the sample of 1 kg was also converted into a parcel. Both of them were sealed with the seal of SK and SHO also affixed his seal of JK thereon and both the parcels were given Srl.No.4 On weighing the contraband recovered from the plastic sack held by accused Raju, the same was found to be 8 kg out of which 1 kg was taken out as sample and the remaining 7 kg was kept back in the same plastic sack and opening thereof was tied with a jute cord and the sample of 1 kg was also converted into a parcel. Both of them were sealed with the seal of SK and SHO also affixed his seal of JK thereon and both the parcels were given Srl.No.5.
Qua the recovery effected, form FSL were filled up whereupon also ASI Shahid Khan affixed his seal of SK and the SHO also affixed his seal of JK. Seal after use was handed over to HC Yashvir. All the five plastic sacks and sample parcels were taken into possession vide separate seizure memos. The SHO after taking all the parcels of the contraband, forms FSL, copies of the seizure FIR 137/2005 PS Seemapuri Page 3 memo, and after providing instructions to ASI Shahid Khan left the spot. Since accused persons named in the heading were prima facie found to have committed the offence under section 20/61/85 NDPS Act, ASI prepared rukka and sent the same to the police station through Ct.Ram Charan for registration of the case.
As further investigation was entrusted to SI Pritam Singh, he visited the spot, prepared site plan, recorded statements of the witnesses, arrested accused persons after conducting their personal search, informed the respective acquaintances of the accused persons regarding their arrest , produced the accused persons before the SHO who too satisfied himself with the arrest, got the articles of personal search of the accused deposited with the MHCM, After completing the investigation in all respects, mentioning that FSL report would be submitted upon receipt, the challan was prepared and presented in the Court for trial of the accused persons.
After supply of copy of the challan and accompanying documents to the accused, upon finding commission of an offence under section 20(b)(ii)(B) NDPS Act was framed against the accused persons by my learned predecessor, read over and explained to the accused persons to which the accused persons pleaded not guilty and claimed trial.
Prosecution in order to establish its case against the accused persons examined 8 prosecution witnesses and thereafter prosecution evidence was closed.
Statement of accused persons under section 313 Cr.PC recorded in which the accused persons have termed all the incriminating evidence on record against them as incorrect. Accused persons Kamruddin, Madhav Reddy, Raju and Ambala have stated that they have been falsely implicated in the present case. They were lifted from Nizamuddin Railway Station and brought to PS Seemapuri where the alleged contraband was implanted upon them. Similarly accused Surender has stated that he was lifted from Seemapuri and brought to the PS and falsely implicated in the present case.
Final arguments heard. File perused.
FIR 137/2005 PS Seemapuri Page 4 It has been submitted on behalf of the accused persons that accused persons are innocent and have been falsely implicated in the present case. There is no compliance of section 42 NDPS Act, Section 50 NDPS Act has not been strictly complied with as the notices were served upon the accused persons after the recovery as per prosecution case. Ld. Counsel for the accused persons has also pointed out certain discrepancies in the statement of witnesses and has submitted that prosecution case is unworthy of belief.
On the other hand, Ld. Addl. PP for the State has argued that prosecution witnesses have fully supported the case of the prosecution as such the prosecution has succeeded in establishing its case against the accused persons. Submissions considered. File perused.
PW1 is HC Yashvir member of the raiding party and recovery witness.
PW2 is retired SI Pritam Singh the 2nd IO of the case.
PW3 is Ct. Rohtash member of the raiding party and recovery witness.
PW4 is Lady HC Neelam Duty Officer.
PW5 is Inspector Jai Kishan the then SHO PS Seemapuri, PW6 is HC Rajeev Kumar member of the raiding party and recovery witness.
PW7 is Ct. Ram Kishan member of the raiding party and recovery witness.
PW8 is ASI Shahid Khan 1st IO of the case and recovery witness. PW1 HC Yashvir during his cross examination by the ld. Counsel for the accused Ambala has deposed that the information which was received by the IO was not reduced into writing and same was not sent to ACP or SHO before conducting the raid. Similarly PW3 HC Rohtash Kumar during his cross examination by the ld. Counsel for the accused Ambala has deposed that no DD entry was made regarding receipt of secret information. Further PW6 HC Rajeev FIR 137/2005 PS Seemapuri Page 5 Kumar during his cross examination by the counsel for the accused persons except accused Ambala has deposed that secret information was not reduced into writing by ASI Shahid Khan in his presence. Even 1st IO of the case ASI Shahid Khan during his cross examination by the Ld counsel for the accused persons except accused Ambala has admitted that he did not reduced the secret information into writing. This clearly suggest that the secret information was not reduced into writing by the 1st IO of the case ASI Shahid Khan and as such the same was not sent to the SHO & ACP or the higher Officials. This is clear cut violation of section 42 NDPS Act which is fatal to the case of the prosecution.
Further in the present case there is no compliance of section 57 NDPS Act. Ld. Addl. PP for the State has submitted that compliance of section 57 NDPS Act is not mandatory. I agree to this contention of the Ld. Addl. PP for the State but I am of the considered opinion that though the compliance of section 57 NDPS Act is not mandatory but still the non compliance of section 57 NDPS Act without any explanation is fatal to the case of the prosecution. The purpose of section 57 NDPS Act is that the superior officers should know that what their subordinate staff is doing and no innocent person is implicated for the offence under NDPS Act. ASI Shahid Khan 1st IO of the case during his cross examination by the Ld. Counsel for the accused persons has deposed that he did not prepare any report under section 57 NDPS Act. Similarly 2nd IO of the case PW2 SI Pritam Singh during his cross examination by the Ld. Counsel for the accused Ambala has admitted it as correct that he had not sent report under section 57 NDPS Act to the ACP or DCP. This clearly suggest that there is no compliance of section 57 NDPS Act 1985 in the present case and there is no reasonable explanation for non compliance of section 57 NDPS Act 1985. Non compliance of section 57 NDPS Act without any reasonable explanation is fatal to the case of the prosecution.
Further PW7 Ct. Ram Charan during his cross examination by the ld. Counsel for the accused Ambala has stated that notices under section 50 NDPS Act were served upon the accused persons after recovery of the contraband from FIR 137/2005 PS Seemapuri Page 6 the accused persons. PW8 ASI Shahid Khan during his examination has deposed that on 19.3.2005 he was posted at PS Seemapuri. On that day he along with HC Yashvir, Ct. Rajeev Kumar, Ct. Rohtash and Ct. Ram Charan was patrolling in the area of PS Seemapuri. When at about 1.05 pm they reached 70 foota road opposite DTC bus depot he received a secret information that five persons having Ganja would come from the side of Seemapuri and would go towards Koddi Colony. After receiving this information he asked 4-5 passersby to join the raiding party but none agreed and left without disclosing their names and addresses. Thereafter a raiding party was constituted only of the police officials besides the secret informer. Thereafter they laid a trap at 70 foota road near Sulabh Sochalaya. At about 1.20 pm accused persons came from the side of Seemapuri holding pastic sacks. They were apprehended at the instance of secret informer. The plastic sacks which they were holding were checked up and on checking the same found containing Ganja. Thereafter he passed on the information to the Duty Officer PS Seemapuri telephonically. At about 1.40 pm Inspector JK Gautam SHO PS Seemapuri reached at the spot. He also verified that the recovered substance was Ganja and thereafter he prepared notices under section 50 NDPS Act and served the same upon the accused persons. This clearly suggest that notices under section 50 NDPS Act were served after the recovery of Ganja. Had it been a case of chance recovery matter would have been different but here is a case where the accused persons were apprehended on the basis of the secret information. As such IO of the case should have served notice under section 50 NDPS Act upon the accused persons prior to checking the plastic sacks. As such the 1st IO of the case has not complied with the provision of section 50 NDPS Act strictly.
Further, PW7 Ct. Ram Charan during his cross examination by the ld. Counsel for accused Ambala has admitted it as correct that on carbon copies of the notices under section 50 NDPS Act Ex.PW7/A to Ex.PW7/E FIR number has been mentioned. The carbon copies of the notices under section 50 NDPS Act FIR 137/2005 PS Seemapuri Page 7 Ex.PW7/A to Ex.PW7/E are the copies which were served upon the accused and later on recovered from the personal search of the accused persons. The same contain FIR number, this suggest that either the FIR number was known to the IO prior to the service of notices under section 50 NDPS Act upon the accused persons or the notices were served upon the accused persons after registration of the case. Under both the situation accused persons becomes entitled to benefit of doubt on this account also.
Further, PW8 ASI Shahid Khan during his cross examination by the Ld. Counsel for the accused persons has deposed that first of all he got prepared notices under section 50 NDPS Act from Ct. Ram Charan but PW1 HC Yashvir during his cross examination by the ld. Counsel for accused Ambala has deposed that the notices and their replies were written by the Investigation Officer in his own hand writing. This is major discrepancy which render the whole investigation doubtful.
Further, PW1 HC Yashvir during his cross examination by the ld. Counsel for the accused Ambala has deposed that the digital scale and weights were brought by the Kabadi at the spot but he was not asked by the IO to become a witness. But PW7 HC Ram Charan during his cross examination by the ld. Counsel for the accused persons except accused Ambala has deposed that the contraband was weighed with the help of manual Taraju which was brought by him. Now as per PW1 HC Yashvir the weighing scale was brought at the spot by a Kabadi but as per PW7 HC Ram Charan he brought the weighing scale at the spot. This is again a major discrepancy which goes to the root of the matter and the accused persons become entitled to benefit of doubt on this account also.
Further, if the version of PW1 HC Yashvir is believed that the digital scale and weights were brought by the Kabadi at the spot but he was not asked by the IO to become a witness. Had the IO asked the said Kabadi to become witness to the proceedings the matter would have been different but in the present case IO has not asked the said Kabadi to become witness. This clearly suggest that there FIR 137/2005 PS Seemapuri Page 8 was opportunity for the IO to join the public witness in the proceedings but the IO has not done so for the reason best known to the IO. Further, in the present case, MHCM has not been examined, as such, the link evidence regarding deposit of the case property and personal search articles of the accused persons with the MHCM and their safe custody in the Malkhana is missing.
Keeping in view the above discussion, I am of the considered opinion that the prosecution has failed to establish its case against the accused persons beyond reasonable doubts as such the accused persons are acquitted of the offence Under Section 20(b)(ii)(B) of the NDPS Act 1985 with which they were charged. Bail bond of the accused persons shall remain in force for the period of six months from today. Case property stands confiscated to the state.
File be consigned to the record room.
Announced in the open court on this 26th day of August 2010 (Sudesh Kumar) Special Judge NDPS (North-East) Addl. Sessions Judge:KKD Courts, Delhi FIR 137/2005 PS Seemapuri Page 9