Delhi District Court
State vs . 1) Pankaj Nagia, on 23 March, 2018
IN THE COURT OF AJAY GOEL
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440837/2016
In the matter of:
State Vs. 1) Pankaj Nagia,
S/o Sh. Balkeshwar Nagia,
R/o RZ-243/L-6, Raj Nagar, Part-II,
Palam Colony, New Delhi.
2) Mohd. Siraj Ahmad Ansari
S/o Sh. Mohd. Raju Ansari
R/o B-257, Naraina Industrial Area,
Phase-I, New Delhi.
Permanent Address:
Village Govind Pur Khera,
District-Chhapra, Bihar.
3) Dharambir Singh
(Already discharged vide order
dated 26.07.2017).
FIR No. : 360/15
Police : Palam Village
Station
Under : 20 (b) (ii) (C) & 29 of NDPS Act
Sections
Date of Institution of case : 22.12.2015
Date of Assignment to this Court : 20.05.2017
Date of arguments : 20.03.2018
Date on which judgment was pronounced : 23.03.2018
SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 1/45
JUDGMENT:
Case of Prosecution:
1. The case of the prosecution is that on receipt of DD No. 7A ASI Birender Singh, PS-Palam Village with Ct. Mahesh reached at DDA Park, Road Shiv Mandir Railway Road where Ct. Jhabarmal was already present detaining a tempo make Champion owned by accused Siraj Ahmad Ansari bearing registration No. DL 1 LN 0639 containing 10 number of gunny bas and on checking, all the bags were found to be full of Ganza. Ct. Jhabarmal produced one driving licence in the name of Siraj Ahmad Ansari and one motor Cycle No. DL 9SAC 6745 owned by accused Pankaj Nagia that were taken in police custody by ASI Birender Singh and it was informed that accused Pankaj Nagia had already been taken to DDU Hospital.
Thereafter, ASI Birender Singh shifted the recovered articles to police station and he emptied the gunny bags. 18 packets made of paper and polybags containing Ganja SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 2/45 found in each 10 gunny bags and ASI Birender tested the recovered substance with drug detection kit and found the same positive for Ganja. He took out two samples from each gunny bags and sealed and seized the same. During proceedings, ASI Birender Singh recorded statement of Ct. Jhabarmal who in his statement stated that he was on patrolling duty with Ct. Yograj from 11 pm to 5 am on Govt. motorcycle and were checking the vehicles in the area. At about 2.35 am on 04.07.2015, they reached near DDA Park Road, Shiv Mandir Near Railway Road, during patrolling and saw that one tempo bearing No. DL 1LN 0639 make Mahindra was found parked there. Ct. Jhabarmal further stated that they saw that two persons were pulling down one sack (bora) of white colour from said tempo and on seeing us (police officials), they had pushed the bora inside the tempo. They asked the names of said two persons and one of them had told his name as Pankaj Nagia and the other told his name as Siraj Ansari. It was stated that there was some foul smell from the tempo and on suspicion, they SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 3/45 checked the tempo and found that there was ganja in boras. It was averred that one motorcycle was also parked near the tempo and the said accused persons tried to run away from the spot on motorcycle but they were chased by Ct. Yograj on govt. motorcycle and Ct. Jhabarmal remained standing near the tempo. Both the accused persons on seeing police picket had fallen from the motorcycle due to slip. Accused Siraj Ansari had managed to escape and accused Pankaj Nagia was apprehended and was taken to hospital. ASI Birender Singh prepared the rukka for registration of case. Accused Pankaj Nagia was interrogated who disclosed that the supply of ganja was arranged by his known Dharambir Singh and was transported by Mohd. Siraj Ahmad Ansari in his tempo. Accused Mohd. Siraj Ahmad Ansari was arrested from Naraina. Accused Dharambir did not join investigation and he remained absconding. After completion of investigation, the charge sheet was filed by IO in the court.
SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 4/45 Charge against the accused:
2. Vide order dated 26.07.2017, the charge for the offences under Sections 20 (b) (ii) (C) read with section 29 of the NDPS Act was framed against the accused persons to which they pleaded not guilty and claimed trial.
Witnesses examined :
3. The prosecution examined 10 witnesses in support of its case who are as follows:-
PW1 is HC Praveen Kumar. He has deposed that he was working as Duty Officer on 04.07.2015 and he recorded FIR No. 360/15 on the basis of rukka presented by ASI Birender Singh. The copy of FIR was proved as Ex. PW-1/A, his endorsement as Ex. PW-1/B, certificate regarding the computerized copy of FIR as Ex. PW-1/C. PW2 is Ct. Jhabarmal. He has deposed that on the night of 03/04.07.2017, he was on petrolling duty with Ct. Jograj on Govt. motorcycle in the area of beat No. 3 & 4 in Raj Nagar, Part-II, Palam and had deposed regarding standing of tempo, recovery of ganja from said tempo SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 5/45 and apprehending of accused Pankaj Nagia. The seizure memo of DL of Siraj Ansari was proved as Ex. PW-2/A, seizure memo of motorcycle as Ex. PW-2/B, statement of Ct. Jhabarmal as Ex. PW-2/C, the seizure memo of pulandas and tempo in question as PW-2/D, arrest memo of accused Pankaj Nagia as Ex. PW-2/E, his personal search as Ex. PW-2/F and his disclosure statement as Ex.
PW-2/G. This witness was cross-examined at length by counsels for both the accused respectively. PW3 is Ct. Yograj. He deposed that he was posted in PS-Palam Village in the month of July 2015 and was on patrolling duty with Ct. Jhabarmal. He has reiterated the testimony of Ct. Jhabarmal. He proved the arrest memo of accused Siraj Ansari as Ex. PW-3/A and his personal search as Ex. PW-3/B. This witness was also cross- examined at length by counsels for both the accused respectively.
PW4 is Dr. Adesh Kumar, Sr. Scientific Officer (Chemistry) FSL Rohini. This witness deposed that 20 sealed cloth parcels with FSL Form were received in the SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 6/45 office and marked to him for examination and after his examination, he prepared and proved the detailed report as Ex. PW-4/A. PW5 is Ct. Sanjay. He deposed that on 20.07.2015, he on the instructions of IO had taken 20 sealed cloths parcels and FSL form pertaining to this case to FSL Rohini vide RC No. 50/21/15 after receiving the same from MHC(M) and he deposited the said pulanda and FSL form in FSL Rohini and obtained receipt of FSL and handed over the same to MHC(M).
PW6 is ASI Birender Singh. He deposed that on 04.07.2015, on receipt of DD No. 7A at about 3 AM, he alongwith Ct. Mahesh reached the spot at Raj Nagar-II and met Ct. Jhabarmal at spot and he conducted further investigation in the matter on spot and thereafter he prepared the rukka which was proved as Ex. PW-6/A, the attested copy of DD No. 7A as Ex. PW-6/B. He was also cross-examined at length being material witness of the present case.
PW7 is Ct. Mahesh. He deposed that on receipt of DD SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 7/45 No. 7A on 04.07.2015, he alongwith ASI Birender reached at spot and met Ct. Jhabarmal and stated regarding further investigation done in the matter by ASI Birender in the present matter in his presence.
PW8 is ASI Pramod Kumar. He stated that on 04.07.2015, report U/s 57 NDPS Act as sent by Inspector B. S. Gulia of Palam Village was received in the office of ACP Dabri vide entry No. 4506 in dak register and proved the copy of said dak register as Ex. PW-8/A. He also brought the report U/s 57 of NDPS Act in original which was Ex. PW-8/B having signatures of Sh. M. Harshwardhan.
PW-9 is ASI Manoj Kumar. He deposed that on 04.07.2015, he was posted as MHC(M) at PS-Palam Village and on that day, case property of present case which was including sample pulanda and sacks, motorcycle, tempo and FSL Form was deposited by Inspector B. S. Gulia in Malkhana with him and he made entry in register No. 19 to this effect vide entry No. 1104 and copy of said entry was proved as Ex. PW-9/A. SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 8/45 Thereafter, he deposed that the 20 sealed pulandas were and sample seal were sent to FSL Rohini and copy of road certificate was Ex. PW-9/B and receipt given by FSL was Ex. PW-9/C. PW-10 is Inspector B. S. Gulia. He deposed that on 04.07.2015 he was posted at PS-Palam Village and was looking after the work of SHO as the then SHO was on leave. He deposed that DD No. 7A was entrusted to ASI Birender for necessary action. He stated that he affixed the seal of BSG on all the pulandas and FSL Form and investigation of case was taken up by him and he collected the relevant documents from ASI Birender and he prepared site plan Ex. PW-10/A at the instance of Ct. Jhabbar Mal, another site plan Ex. PW-10/B was prepared at the instance of Ct. Yograj, the documents of tempo were seized vide memo Ex. PW-10/C.
4. Thereafter, Prosecution Evidence was closed on the request of Ld. APP vide order dated 13.03.2018 by this Court and matter was posted for recording of statement SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 9/45 of accused U/s 313 Cr. P. C.
5. Separate statement of accused persons U/s 313 Cr. P. C. were recorded on 15.03.2018 whereby all the incriminating evidences were put to accused persons separately to which they denied all allegations and accused persons pleaded their innocence. Accused Pankaj Nagia stated that he was forced to sign some semi printed and blank papers at the police station which were later on converted into different documents to make out a false case against him. Accused Siraj Ansari stated that tempo in question was being driven by his driver Surender and on 05.07.2015, he was called by the police in the police station with documents of his tempo and accordingly, he had gone to police station with his uncle and handed over all his original documents of tempo including his DL and copy of DL of his driver to police and police kept him sitting in the police station and later on falsely arrested and implicated him in the present case. He further pleaded that he had nothing to do with the commission of offence and had no knowledge of any SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 10/45 contraband. During recording of statement, accused Siraj Ansari wished not to lead evidence in his defence, however accused Pankaj Nagia pleaded for leading defence evidence.
6. In defence evidence, accused Pankaj Nagia produced three Dws which are given below:
DW-1 is HC Anoop. He brought the rojnamcha of period from 03.07.2015 to 19.07.2015 containing DD No. 7A dated 04.07.2015 in original which was recorded at 03.15 am and said copy was proved as Ex. DW-1/A. DW-2 is ASI Ved Prakash who is posted as MHC(M) GP at PS Palam Village. He deposed that he never had any field testing kit in his GP Room and he does not have any register for the issuance of field testing kit. DW-3 is Smt. Megha. She deposed that she is residing in a shop with her husband and running a Paan - Cigarette shop for the last 17 years situated at RZ-243, L/6, Railway Line, Palam Colony, New Delhi. She further deposed that their shop usually remains open throughout the night as it is a busy road, where her shop is situated SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 11/45 and also there is a railway station near their shop, so customers keep on coming at their shop throughout the day and night. She stated that she usually wake up in the morning at about 4 am every day and she never seen any tempo laden with any contraband outside her shop or premises and she never saw police with any tempo in front of above mentioned premises at any point of time including on 04.07.2015. She proved copy of her Adhaar Card as Ex. DW-3/A. ARGUMENTS OF PROSECUTION:
7. The prosecution of the accused had been launched on the receipt of DD No. 7A. It is stated by Ld. APP for State that prosecution by producing several reliable witnesses in witness box has succeeded in proving the guilt of accused persons beyond reasonable doubt. ARGUMENTS OF DEFENCE:
8. On the other hand, Ld. Counsels for accused persons SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 12/45 vehemently argued that the accused persons are innocent. It is argued by him that the statement of prosecution witnesses is full of omissions and improvements and in view of improvements made by PWs, their evidence has lost the credibility and cannot be relied upon to give finding of guilt against the accused persons. It is also argued that the accused persons have been falsely implicated and that no recovery was effected from the accused persons and the contraband had been planted upon them. He has argued that non-joinder of public witnesses at the time of alleged recovery casts a serious doubt on the version of the prosecution. The counsels for accused person has further argued that there are material contradictions in the testimony of the witnesses which goes to the root of the case and falsify the case of the prosecution.
9. In rebuttal, the Ld. APP for the state submitted that the contradictions in the testimony of material witnesses are minor and natural and does not affect the SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 13/45 case of the prosecution. He further argued that nothing has come in the cross-examination of PWs to dis-credit them.
JUDGMENT RELIED UPON ON BEHALF OF STATE.
1) State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103.
2) Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58.
3) Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783.
4) Delias Christopher Vs. Customs 2004 (3) JCC 147.
5) Tahir Vs. State 1996 (3) SCC 338 decided by Hon'ble Supreme Court.
6) Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652.
JUDGMENT RELIED UPON ON BEHALF OF ACCUSED.
1) Visra Vs. State of Rajasthan having Criminal appeal No. 251/95 decided on 17.01.1996
2) Jarnail Singh Vs. State of Haryana 1997 (3) C. C. SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 14/45 Cases 494 (HC) passed by Hon'ble High Court of Punjab & Haryana at Chandigarh;
3) Dinesh Kumar Vs. State 1993 (1) C. C. Cases 267 (HC);
4) Mohd. Javed Vs. State decided by Hon'ble High Court of Delhi, 84 (2000) Delhi Law Times 244;
5) Ramesh & Anr. Vs. State of Haryana 1998 (1) C. C. Cases 17 (HC) decided by High Court of Punjab and Haryana at Chandigarh;
6) Joseph Vs. State of Kerala 2002 Crl. L. J. 3203 passed by Hon'ble Kerala High Court.
10. I have considered the submissions of counsels for accused as well as of Ld. APP for the state and gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence. FINDINGS:
SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 15/45
11. Records of present case reveal that the accused persons stand charged for the conscious possession of commercial quantity of contraband i.e. 406 KGs of Ganja. The stringent provisions are provided under law qua the punishment especially in the case where commercial quantity of contraband is involved. The scheme of NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguard ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, balance must be struck between the need of the law and the enforcement of such law on the one hand, the protection of citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband.
12. In the present case, the accused persons were apprehended and were found unloading boras of ganja having huge quantity of ganja from tempo in question. SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 16/45
13. The counsels for accused has argued that there are some loop holes in the investigation with respect to the seizure of property, implication, involvement and connection of accused persons with present offence.
14. It is important to note there that no injuries were found on the persons of Siraj Ahmed Ansari, however, as per the story put forward by the prosecution, both the accused persons slipped from the motorcycle and ran way from the spot. So when there is no injury on the person of Accused Siraj Ahmed Ansari then onus is heavy on prosecution to show his presence on spot.
15. The counsel for accused persons has drawn the attention of Court to the deposition of Prosecution witnesses and argued that perusal of seizure memo of pulanda and tempo Ex. PW-2/D shows that from recovered 10 bags containing Ganja, two samples of 50 gms each were taken and kept in polythene and that polythene containing ganja sample was further kept in white cloth and converted into sample pulanda and in this way, 20 samples pulandas Mark A1-A2 to J1-J2 were SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 17/45 prepared but witnesses of recovery i.e. PW-2 and PW-3 during their respective cross-examination deposed that samples were kept directly into cloth and were converted into pulanda and it was nowhere narrated that sample was first kept in polythene and thereafter it was kept in cloth before preparing pulanda. After perusing the cross- examination of PW-2 Jhabarmal recorded on 11.01.2018 on page No. 6, this witness has admitted that "IO took out the sample from the bag from upper surface of contraband in the bag and put the ganja directly into a cloth piece to make out the sample pulanda and sealed the same with the seal". This witness further specifically deposed that "no other thing was used to make the sample pulanda except the cloth piece and sample was only kept in the cloth piece". PW-3 Ct. Yograj has also deposed in same fashion in the cross-examination recorded on 11.01.2018 on page No. 4 that "The samples were taken out by the IO and same wee put into a cloth and that cloth was converted into sample pulanda". On the other hand, SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 18/45 the perusal of Ex. PW-2/D i.e. seizure memo of pulanda and tempo shows that there is mention of use of polythene while drawing sample and making pulanda. So there is contradiction in the deposition of material recovery witnesses i.e. PW-2 and PW-3 with respect of use of polythene in making sample pulanda and the above witnesses have given different version from the documents prepared and placed on record. It casts doubt on their presence while taking sample. To this effect, attention of court is drawn to the judgment titled Visra Vs. State of Rajasthan having Criminal appeal No. 251/95 decided on 17.01.1996 [1997 Drugs case 517] wherein Hon'ble Court held that "Substance recovered from the possession of accused- appellant was put in a match box and sealed - substance received by the Forensic Science Laborataory was in a plastic box- not proved beyond reasonable doubt that the substance recovered was brown sugar - FSL report does not seem to be in respect of the substance recovered SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 19/45 from the possession of accused-appeal allowed on the doctrine of benefit of doubt".
16. It is pertinent to mention here that when case property was produced in the Court, most of the bags were having no particulars of the case and most of boras/sacks of contraband when produced in the court were having various holes out of which the case property can be taken out and replaced. In these circumstances, it becomes very tough to connect those bags with the present case as most of the bags were found torn and due to torn conditions of bags, it was very easy to take out and add ganja in those torn bag. However, prosecution has remained silent on this aspect without giving any explanation with respect to torn bags. Rather no DD entry regarding any damage to the case property was ever made and no steps were taken by IO or MHC(M) in the present case to preserve the case property and prosecution has miserably failed to prove that sample and the case property remain intact from the alleged recovery till sample reached at the FSL and case property SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 20/45 was produced in the Court.
17. In this regard, reliance is placed upon judgment passed by Hon'ble High Court of Punjab & Haryana at Chandigarh in case titled Jarnail Singh Vs. State of Haryana 1997 (3) C. C. Cases 494 (HC) wherein it was held that "Investigation agency cannot take advantage of its deliberate actions or its own neglect which certainly cast a lot of doubt on the identity of the case property". Thus in the present matter, when the case property was produced in the neglected form then benefit is to be given to accused.
18. It is important to note here that as per the case of prosecution and documents prepared and proved by prosecution i.e. Ex. PW-2/C and Ex. PW-2/D, each bora was containing 18 packets each of ganja and those 18 packets were made of polythene and newspaper and sutli were opened and ganja was poured in the same bag from which these 18 packets were recovered and thereafter a separate bag was prepared containing polythene newspaper and sutli of all 180 packets allegedly SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 21/45 recovered from 10 bags. However, material recovery witnesses of the prosecution i.e. PW-2 Ct. Jhabarmal, PW- 3 Ct. Yograj and PW6 ASI Birender Singh have not stated anywhere that those allegedly recovered 10 bags were containing 18 packets each of Ganja and whole evidence all the abovesaid three material witnesses is silent about the recovery of allegedly recovered ganja in the form of 18 packets from each bag and these witnesses have given contradictory statement than the document available on record i.e. Ex. PW-2/D i.e. seizure memo. Thus above contradiction emerges from testimony of above witnesses.
19. Furthermore in continuation, it is to be seen that as per case of prosecution specifically Ex. PW-2/D wherein it is mentioned that each bora was containing 18 packets each of ganja and those 18 packets were made of polythene and newspaper and sutli were opened and ganja was poured in the same bag from which these 18 packets were recovered and thereafter a separate bag was prepared containing polythene newspaper and sutli SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 22/45 of all 180 packets allegedly recovered from 10 bags. So the 180 packets of samples should have been taken. But as per deposition of witnesses qua sampling, it is observed that 50 gm of ganja was taken from each bag/sack for sampling by ASI Birender, however, it has not come on record that sample from each 18 packets placed in 10 boras were drawn, thus it cannot be established that all the recovered 18 packets placed in each boras/sack was having ganja. Rather, none of the witnesses had talked about 18 packets recovered from each boras.
20. The counsel for defence has placed reliance upon judgment titled Joseph Vs. State of Kerala 2002 Crl. L. J. 3203 passed by Hon'ble Kerala High Court wherein it was held that "Narcotic Drugs and Psychotropic Substance Act (61 of 1985) S. 52-A, Search and seizure of the contraband-preparation of the samples- packets seized from two accused- contents of all the packets mixed up by ASI and them samples taken which was to be Ganja- No SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 23/45 exclusive sample collected and contraband weighed from packets in possession of each of accused - Thus, preparation of the samples and weighment of Ganja done is an improper and illegal manner - Proceedings vitiated".
21. Further, heed of the court is drawn to the cross-
examination of IO/ASI Birender who in his cross- examination recorded on 20.02.2018 deposed that "He used field testing kit for 10 times only, one time for each bora", so if version of IO/ASI Birender is believed that he used field testing kit 10 times only, then it means that alleged recovery was not in the form of packets because in those circumstances, he would have used the field testing kit 180 times to ascertain whether each packet contained Ganja or not.
22. It is observed that FSL report find mentions that each sample pulanda was having one seal of BS and one seal of BSG but PW-3 Ct. Yograj during his cross- examination dated 11.01.2018 deposed that ASI Birender Kumar performed the sealing process in his presence and SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 24/45 affixed 4 to 5 seal of BS on each sample that is from A-1, A-2 to J-1, J-2 and also on bags having Mark A to J. Thus two different seals of BS and BSG were used but why it was so has not been explained.
23. It is observed that sample pulandas A-1, A-2 to J-1 J-2 and case property pulandas A to J do not bear the signature of accused, IO ASI Birender and SHO B S Gulia. PW-4 Dr. Adesh Kumar has also talked about in this respect during his cross-examination recorded on 20.02.2018 stating that "When he received the samples for chemical examination in the laboratory, two objections were raised by Case Assistant. These objections were that the samples seals were not attested and second was signature of IO were not mentioned on parcels". It shows that recovery and seizure in the present case has not been made in accordance with the standing instructions issued by Narcotics Control Bureau, New Delhi from time to time.
24. Further register No. 19 is totally silent about the deposition of FSL form alongwith the case property on SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 25/45 04.07.2015 as in column No. 4 of register No. 19, it is nowhere mentioned that FSL form was also deposited with the sample property and sample pulandas and merely contents of seizure memo in column No. 4 were noted down.
25. The other arguments addressed by counsel for accused persons is that there is delay of 14 days in sending the sample to FSL which prosecution agency has failed to explained. It is argued that as per the case of prosecution, the alleged recovery took place on 04.07.2015 but sample were send to FSL on 20.07.2015 and there is unexplained delay of 14 days.
26. There is different version of witnesses regarding use and availability of field test kit in the police station as PW-6 during his cross-examination dated 20.02.2018 has deposed that he put the ganja leaves on the plate of machine and bulb lit up and in this way he got positive test for ganja, but he failed to give company name and colour of machine and he could not tell as to whether lightening of bulb took place after 5 or 30 minutes of SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 26/45 placing of ganja on plate of machine.
27. PW-10 Inspector B. S. Gulia in his deposition stated that "Drug detection was already available in the police station and till date it is available in the police station. I had several times used that drug detection kit in drug cases. I do not remember whether there is any drug detection kit in my police station in which bulb lit up when contraband is checked by that kit".
28. PW-6 ASI Birender Singh during his cross-
examination recorded on 20.02.2018 on page No. 6 admitted that "I was having field testing kit in my IO kit. The said testing kit was issued to me by the department. I do not remember the date of its issuance. I used it first time in this case. I got issued the same from MHC(M). The entry was made by the MHC(M) regarding the issuance of field testing kit to me".
29. To contradict the testimonies of PW-6 and PW-10 regarding availability of field testing kit in police station, SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 27/45 Ld. Defence Counsel produced DW-2 ASI Vaid Prakash in witness box who deposed that "I never had field testing kit in my GP room. I do not have any register for the issuance of field testing kit". Thus this witness has falsified the claim of prosecution witnesses to the issuance of field testing kit.
30. It is important to note here that no public witness joined by prosecution agency despite the fact that incident took place in residential area and no effort was made by the PW-6 or PW-10 to contact anyone from the residential area to join the investigation. Non-joinder of public witnesses at the time of alleged recovery casts a serious doubt on the version of the prosecution.
31. It has come on record in the evidence of PW-7 that somebody told the IO that the motor cycle of other accused person was lying on road. PW-7 stated that he does not know whether IO recorded his statement or not and ASI Birender came to know about this fact from somebody when they reached at the spot where the tempo was standing. It shows that somebody met with SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 28/45 ASI Birender but it is not made out as to why he was not made witness in the present case.
32. It is observed that none of the witness in whose presence weighing took place gave the satisfactory reply regarding the source from where the weight machine was procured, type of weighing machine, size of machine, whether it was electric or cell operated machine.
33. It is observed that PW-2 Jhabar Mal was having the mobile phone as well as wireless set with him but surprisingly he kept on standing like a mute spectator on the spot when accused persons allegedly tried to fled away from the spot on the motorcycle and Ct. Yograj PW- 3 started chasing them and PW-2 did not take any steps to get any assistance from the police station and to inform his seniors.
34. There is no connecting evidence in the present case to connect both the accused with commission of present offence. PW-10 Inspector B. S. Gulia during his cross-examination recorded on 13.03.2018 in para No. 22 admitted that "I did not find any evidence during my SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 29/45 investigation that accused Pankaj Nagia or Siraj Ansari were in contact with each other at any point of time. I came to know about the name of accused Pankaj Nagia first time only when ASI Birender produced rukka before me".
35. It is important to note here that most important aspect in the present case is that investigation is shown to be initiated on the basis of DD No. 7A dated 04.07.2015 and in that DD entry, it is mentioned that driver Siraj Ansari and owner of Ganja namely Pankaj Nagia absconded from spot and motorcycle of Pankaj Nagia got slipped and he got injured and said DD entry was recorded at 3 am, so it means that police personnels were aware about the name of accused Pankaj Nagia at 3 am on 04.7.2015 and they were even aware that Pankaj Nagia was the alleged owner of Ganja and Siraj Ansari was the driver but surprisingly when a specific question was put to PW-6, 7 and 10 that as to when they first time came to know the name of accused Pankaj Nagia then PW-6 to whom DD No. 7A was handed over to proceed to SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 30/45 spot with Ct. Mahesh to investigate the matter replied that "The name of other accused person Pankaj Nagia came in my knowledge only, I came at police station and met with Ct. Yograj". This deposition clearly shows that before meeting with Ct. Yograj at police station, he was not aware about the name of Siraj Ansari. It means DD No. 7A that contains name of accused Pankaj Nagia might have been prepared later on to make out a false case against the accused Pankaj Nagia to implicate him in this case because during the cross-examination, PW-6 also admitted that "Rukka is in my handwriting. The cutting in second like of the rukka at point X is in my handwriting". He further deposed that he received the information of DD No. 7 A on telephone and he never received DD No. 8A. He further stated that he does not know about the content of DD No. 8A. He admitted that correction at point X on rukka Ex. PW-6/A was made by him to convert the number of DD No. from 8 to 7. DD No. 8A was called in defence and in that DD, name of accused is not given SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 31/45 and same is entered on the basis of information given by PCR and ASI Birender also received the same as same was also marked to him and he initiated the investigation on the basis of DD no. 8A and that is why in the rukka, initially DD No. 8A was mentioned but same was later on change to DD No. 7A after fabricating the same to implicate the accused Pankaj Nagia. PW-7 also stated that he came to know about the name of accused Pankaj Nagia after arriving at PS from Ct. Yograj when he brought acused Pankaj at PS after his medical examination. PW- 10 has also deposed that first time he came to know about the name of accused Pankaj only when ASI Birender produced rukka before him. It is very interesting that prosecution has shown alleged recovery of 406 kg of ganja in instant case and despite such a huge recovery, PW-10 who was acting as SHO at that time came to know about the name of accused Pankaj Nagia only at 9 AM when ASI Birender produced rukka before him. During cross-examination PW-10 has admitted that he was present in the police station in the intervening night of SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 32/45 03/04.07.2015 and inference may be taken that DD No. 7 A was not depicting clear picture and same was prepared to implicate the accused. DD No. 7 A further mentions that driver had run away and owner Pankaj Nagia was injured but PW -2 during his cross-examination dated 11.01.2018 stated that before the accused person fled away from the spot, they wrote down their name, address and parentage on a paper and same were noted down by him in the presence of Ct. Yograj. Ct. Yograj during his cross-examination dated 11.01.2018 stated that he came to know only about the name of accused persons and he did not note down their name of any paper. Even on enquiry, he came to know only about their name and was not aware about their parentage and address. He further deposed that he came to know about the parentage and address of both accused later on after reaching PS at about 8AM. Both PW-2 and PW-3 are giving contradictory version. It is observed that if one go by the case of prosecution, it was Ct. Yograj who took accused Pankaj Nagia for medical examination then how he was not SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 33/45 aware about the parentage and address of accused Pankaj Nagia till 5 AM when PW-6, 7 and 10 also came to know about the name of accused Pankaj Nagia only after 5 Am when he came at the police station with Ct. yograj after his medical examination. It is also observed from record that accused Pankaj Nagia was never taken for medical examination from spot to hospital because in the MLC of accused Pankaj Nagia name of Ct. Yograj is not mentioned as a person who brought the Pankaj Nagia for medical examination. On the other hand, it is mentioned that accused Pankaj Nagia was brought by HC Ram Niwas by PCR police officials and hence in DD No. 8A, it is mentioned that a person has fallen on railway road from a motorcycle near Bagdola and information was given from phone No. 8587856504 and that is whey when same mobile number was put to PW-3 Ct. Yograj whether it belongs to him then he intentionally gave evasive reply to cover up the loophole of prosecution story that he does not remember whether this mobile number belongs to him or not. There is no explanation as to why PW-6 and SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 34/45 PW-10 did not bother to examine anyone to ascertain the real facts from picket of PS-South Dwarka where accident of accused Pankaj Nagia took place and it creates doubt about the prosecution case and make it untrustworthy.
36. Reliance is placed upon judgment titled Dinesh Kumar Vs. State 1993 (1) C. C. Cases 267 (HC) wherein it was held that "Police officials contradicting among themselves on material particulars - Held - Conviction of the appellant on the basis of evidence on record is wrong - Mere recovery of 2 kgs. Charas should not be ground to come to the conclusion that whatever police officials stated was gospel truth".
37. The Ld. APP for the State argued that witnesses produced by prosecution are wholly reliable and trustworthy and nothing could be brought out in their cross-examination to discredit them. Secondly, it has been argued by Ld. APP that the present case is a case of recovery of huge quantity of ganja. It is not possible to plant such a huge quantity upon the accused person. SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 35/45 Moreover, there is no reason to falsely implicate the accused. In the case of State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, it was held that:
"The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. State of H. P. 2005 (1) Crimes 358 (H. P.) it was observed: it is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person ......... police had no axe to grind in implicating the accused."
38. It is not so that this Court is not taking into consideration the above argument. Law is well settled on these submissions. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 36/45 accused persons-falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
39. Even otherwise, it has been held in case of Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783 that merely if the prosecution witnesses are police officers that is not sufficient to discard their evidence in the absence of evidence of their hostility to the accused. This was also reiterated in the case of Delias Christopher Vs. Customs 2004 (3) JCC 147. But balance has to be maintained if some doubt is created regarding the involvement of accused as happened in present case qua some lacunas then the situation warrants that public witnesses should have been involved in the present matter. Though it is not always true that statement of prosecution witness has to be thrown away but when shadow of doubt is created from circumstances then joining of independent witness is relevant. Though in SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 37/45 the present case, it has been tried to be brought on record from the testimony of prosecution witnesses that sincere efforts were made to join the public witnesses but none of them inclined to join. It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic police and court proceedings. The non joining of public witnesses is not fatal to the case as otherwise the case is proved by way of consistent and cogent evidence. This is also fortified by the judgment of Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338. Para 6 of this judgment reads as under:-
"6....... No infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 38/45 a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
40. It is settled law as laid down in Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 that "conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution" but in the present case due to reasons mentioned above, the necessity of joining of public witnesses is paramount. The long distance from office to the location of commission of SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 39/45 crime have been covered by the IO but surprisingly enough they could not find any witness. Though it is correct that such a large quantity cannot be implanted as observed in the judgment of Balwant Rai Supra but simultaneously, if on other grounds, the accused persons are entitled to the benefit then ground itself cannot be sufficient to convict them. The facts of the present case as observed above warrant involvement of public witnesses. Reliance can be placed upon Mohd. Javed Vs. State decided by Hon'ble High Court of Delhi, 84 (2000) Delhi Law Times 244 and Ramesh & Anr. Vs. State of Haryana 1998 (1) C. C. Cases 17 (HC) decided by High Court of Punjab and Haryana at Chandigarh. This is case where requirement of public witness was necessary.
41. DW-3 Smt. Megha produced was produced in defence evidence who in her deposition clearly stated that she is residing in a shop with her husband and running a Paan - Cigarette shop for the last 17 years situated at RZ-243, L/6, Railway Line, Palam Colony, New SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 40/45 Delhi. She further deposed that their shop usually remains open throughout the night as it is a busy road, where her shop is situated and also there is a railway station near their shop, so customers keep on coming at their shop through the day and night. She stated that she usually wake up in the morning at about 4 am every day and she never seen any tempo laden with any contraband outside her shop or premises and she never saw police with any tempo in front of above mentioned premises at any point of time including on 04.07.2015. PW-10 Inspector B. S. Gulia had admitted in his cross- examination that he did not contact any of the resident of H. No. RZ-243, L/6, Railway Line Palam Colony, New Delhi as whenever he reached there, nobody was found there. When case diary was asked from PW-10 regarding his visit to above addressed, PW-10 stated that he has not mentioned about his visit to said address in case diary and he visited the premises only to verify the address of accused mentioned in his bail bond. So his testimony with regard to his visit at above property casts doubt on SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 41/45 his version.
42. It is also observed that call details of both the accused persons had not been investigated or placed on record to prove their location on the spot and to show their involvement in the present case. It is also observed that signature of independent witness was not obtained on the arrest memo of accused Siraj Ahmed Ansari because as per the case of prosecution, accused Siraj Ahmed Ansari was arrested from B-257, Naraina Industrial Area, New Delhi on his being called by his uncle and his uncle or any other independent public witness could have witnessed his arrest memo. But said lacuna casts doubt on the arrest of accused Siraj Ahmed Ansari from Naraina Industrial area because as per arguments addressed by his counsel, he was called by police officials at police station and in police station itself, he was arrested and to conceal said fact, name of his uncle has been mentioned in column N. 7 of arrest memo Ex. PW- 3/A.
43. It is pertinent to mention here that no evidence SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 42/45 regarding conspiracy in between the accused persons was collected by police and it has not come in the testimonies of the witnesses as to from where the huge quantity of ganja was obtained by accused persons and to whom it was to be supplied. No investigation was done by prosecution with respect to source and destination of huge quantity of ganja. From above mentioned all facts and circumstances and other discussions as detailed above, it becomes very clear that the present case is not such case where the complexity of accused has been proved beyond reasonable doubt. From the testimony of witnesses and above discussions, it is crystal clear that there is shadow of doubt upon accused persons regarding commission of offences framed against them. Thus accused persons are required to be acquitted in the present case.
44. In the light of above discussions and observation, there is no consistent and reliability in the testimony of prosecution witnesses and the defence taken by the accused is found to be probable.
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45. In the instant case, all the procedural safeguards provided under a statute have not been strictly complied with. The prosecution has not discharged its burden of proving its case against the accused persons beyond all reasonable doubt. This case is based on conjectures or surmises.
46. On examination the facts of the case as well as evidence of prosecution witnesses and the documents, it is held that there are several reasons to discredit the testimony of prosecution witnesses. Thus on all counts, guilt of accused persons has not been duly proved and they are given benefit of doubt. Both the accused i.e. Pankaj Nagia and Siraj Ansari are acquitted for commission of offence punishable U/s 20 (b) (ii) (c) read with Section 29 of NDPS Act.
47. Bail bonds u/s 437A Cr. P. C. in the sum of Rs.25,000/- each have been furnished on behalf of the accused persons which have been accepted and shall remain in force for a period of six months from the date of its acceptance. The case property is SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 44/45 confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. File be consigned to record room. Pronounced in the open court. (AJAY GOEL) Dated: 23.03.2018 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
Digitally signed
AJAY by AJAY GOEL Date: 2018.03.28 GOEL 13:26:49 +0530 SC No. 440837/16 State Vs Pankaj Nagia & Ors. Page No. 45/45