Delhi District Court
State vs Mubarak Ali Shah on 7 February, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Mubarak Ali Shah
S/o Sh Sarkar Ali Shah
R/o Dhuna Bawali Gate
Basti Hazrat Nizamuddin
New Delhi
SC No. : 06A/09
FIR No. : 456/08
U/S : 20 NDPS Act
PS : Amar Colony
Date of institution : 17.01.2009
Date of reserving judgment : 29.01.2011
Date of pronouncement : 07.02.2011
J U D G M E N T
The accused has been sent to face trial by SHO PS Amar Colony on allegations that on 20.11.08 at about 4.50 PM he was apprehended from near Dargah Panchtan Takia Nala (drain), at Capitan Gaur Marg, Sri Niwas Puri, New Delhi, withing the jurisdiction of PS Amar Colony, when he was found to be in possession of 14 KG of Ganja, in contravention of the provisions of the NDPS Act.
2. The prosecution story, in brief, is that on 20.11.08 at about 4.50 PM the Operations Cell Staff SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 2 consisting of ASI Shahbuddin, Ct. Mohd. Yasin and Ct. Mohd. Muslim was present at Kalkaji Turn when at about 4.15 PM when a secret informer had informed ASI Shahbuddin that one person under the disguise of a Baba will shortly arrive on foot on the Dargah near the main road opposite Village Garhi with Ganja. The above secret information was conveyed by ASI Shahbuddin to the ACP Operations telephonically and he had directed the above ASI to take appropriate action. The above ASI had then constituted a raiding team consisting of the above police officials and had requested few passersby to join the raiding party, but none had agreed and had left without disclosing their names and other particulars.
3. The above officials had reached at the bus stop on the Captain Gaur Marg opposite Village Garhi at about 4.40 PM and then at about 4.50 PM the secret informer had pointed out a person coming on the roadside patri towards the Dargah and from the Okhla Mandi side. That person was carrying one white colour plastic ' b ora ' (bag) on his right shoulder and he was apprehended by the above officials and on enquiry his name was disclosed to be the accused Mubarak Ali Shah S/o Sarkar Ali, presently residing at Dhoona Bawli Gate Basti, Hazrat Nizamuddin, New Delhi. He was asked about the contents of the above bora but he became nervous and on sustained enquiry he had disclosed that the same was containing Ganja. Suspecting the recovery of some further contraband substance from the above accused, a notice U/S 50 NDPS Act was served upon the accused informing him of his SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 3 legal right to be searched in the presence of a Magistrate or a Gazetted Officer and the search of the police party was also offered to him before taking his search, but the accused had replied in negative and nothing incriminating could be recovered further from him. However, on checking the above plastic bag carried by the accused was found to contain one orange colour plastic panni/ polythene which further contained Ganja. The total weight of the above Ganja recovered from the accused was found to be 14.800 KG and the net weight of the Ganja was found to be 14 KG. 1 KG of Ganja was taken out by ASI Shahbuddin as sample and the same was kept in a separate transparent polythene and the remaining case property was kept in the same polythene and plastic bag and separate pullandas thereof were prepared by him and were sealed with the seal of SD, Form FSL was also filled up by ASI Shahbuddin and the above seal of SD was affixed thereon and then the pullandas as well as the FSL Form were seized vide a seizure memo. Seal after use was handed over to Ct. Mohd. Muslim and a rukka was prepared by the above ASI and sent to the PS through Ct. Mohd. Yasin for registration of a case U/S 20 of the NDPS Act and the above pullandas, FSL Form and a copy of the seizure memo was also handed over by ASI Shahbuddin to him for taking the same to the PS and entrusting the same to the SHO PS Amar Colony. It is also alleged that further investigation in the case was assigned to SI Shiv Raj Singh Bisht by the order of the ACP Operations Cell and he had had reached at the spot, prepared the site plan, arrested the accused and had also SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 4 subsequently sent the report U/S 57 NDPS Act to his superior officers, got the sample examined from the FSL and had subsequently prepared the chargesheet after completing the other formalities of investigation and recording of the statements of witnesses.
4. A chargesheet for the offence U/S 20 of the NDPS Act was filed against the accused on 17.01.09 and cognizance thereof was taken. A prima facie case for offence U/S 20 (b)
(ii)(B) of the NDPS Act was found to had been made out against the accused and hence a charge for the said offence was also framed against him by this court on 12.05.09, as the above quantity of Ganja possessed by the accused was a ' semi-commercial quantity' under the said Act.
5. The prosecution in support of its case has examined total 9 witnesses on record and their names and the purpose of examination etc. is being stated herein below :-
6. PW1 HC Dev Dutt Sharma was the MHC(M) of the PS on 20.11.08 when the two pullandas of this case sealed with seals of ' S PG ' & ' S D ' , alongwith FSL Form, were deposited in the police malkhana vide entry at serial no. 424 of his register No. 19 by Inspector S.P.Gupta and on the same day the personal search of the accused was also deposited with him by SI Shiv Raj Singh Bisht. On 30.12.08 the exhibits of this case were sent by him to FSL, Rohini through Ct. Mohd.
SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 5
Muslim vide RC No. 74/21, alongwith, the FSL Form and the receipt of deposit of the same was handed over back to him on the same day. On 08.04.09, the remnant of the above sample and the FSL result were received by him through Ct. Sukhram Pal and the remnant sample was deposited in the malkhana and the FSL result was handed over to above Constable for handing it over to the IO. The relevant entries of his register No. 19 have been proved on record by him as Ex. PW1/A.
7. PW2 ASI Dharamvir Singh is the duty officer of this case and he has proved on record the FIR of this case recorded by him as Ex. PW2/A. He has also stated that he had registered one corresponding DD No. 13A regarding the same and an endorsement in this regard was also made at point A on the original rukka.
8. PW3 HC Rang Lal was working as Reader to the ACP, Operations Cell on 20.11.08 and he has deposed regarding the receipt of the information U/S 57 NDPS Act Ex. PW3/A in their office on the above date and its diary at serial no. 11 of the diary register.
9. PW4 Ct. Mohd. Muslim is a witness of recovery of the above contraband substance from the accused and he has deposed in detail regarding the manner of apprehension of the accused with the above substance and the proceedings SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 6 conducted at the spot. He has also proved on record a carbon copy of the notice U/S 50 of the NDPS Act given to the accused as Ex. PW4/A, the seizure memo of the above pullandas and the FSL Form as Ex. PW4/B and the arrest and personal search memos of the accused Ex. PW4/C and Ex. PW4/D respectively as all the above documents were prepared at the spot in his presence and he is a signatory to all the above documents. He has also identified the remaining Ganja as Ex. P1, the polythene as Ex. P2 and the bag as Ex. P3 and the remnant of the sample as Ex. P4, besides identifying the accused.
10. PW5 ASI Shahbuddin is the person to whom the above secret information was conveyed by the secret informer and he was the in charge of the raiding team which had apprehended the accused with the above Ganja and in the manner stated above. Apart from proving the above documents Ex. PW4/A and PW4/B, which were prepared by him, he has also proved on record the reply of the accused given to his notice U/S 50 of the NDPS Act Ex. PW4/A as Ex. PW5/A, which was written by him on the request of the accused. He has also proved on record one memo Ex. PW5/B regarding the taking of his search by Ct. Mohd. Yasin before taking the search of the accused and also one other memo Ex. PW5/C prepared by him regarding the conduction of the formal search of the accused, subsequent to the service of the notice U/S 50 NDPS Act, in which nothing incriminating was SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 7 further recovered from the accused. He has further proved on record the rukka Ex. PW5/D sent by him to the PS for registration of the case through Ct. Mohd. Yasin and has also deposed regarding the preparation of the site plan of the spot by SI Shiv Raj Singh Bisht, to whom the investigation of this case was assigned after registration of the FIR, and had also identified the accused as well as the above polythene bag, the remaining Ganja and the remnant of the sample.
11. PW6 Inspector Satpal Gupta was posted as SHO of PS Amar Colony on 20.11.08 and on that day at around 7.15 PM he was handed over the above two sealed pullandas, a copy of the seizure memo and FSL Form having seals of SD by Ct. Mohd. Yasin and after putting his seals of SPG on all the two pullandas and FSL Form, he had deposited the same in the police malkhana and had also lodged on DD NO. 15 in this regard.
12. PW7 SI Shiv Raj Singh Bisht is the second IO of this case and he was assigned with the investigation of the case after the registration of the FIR. He had reached at the spot alongwith Ct. Mohd. Yasin and on being handed over the custody of the accused and the relevant documents he had prepared the site plan Ex. PW7/A of the spot on the pointing out of ASI Shahbuddin, recorded his statement, arrested the accused vide arrest memo Ex. PW4/C and conducted his SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 8 personal search vide memo Ex. PW4/D, in which one notice U/S 50 NDPS Act, some currency notes and papers were recovered. He has also proved on record the disclosure statement of the accused Ex. PW7/B recorded by him and had also subsequently sent the information U/S 57 of the NDPS Act Ex. PW3/A to ACP, Operations Cell. Later on 30.12.08 he had sent the exhibits to FSL, Rohini through Ct. Mohd. Muslim and had tendered on record the FSL reports as Ex. PW7/C and Ex. PW7/D. He has also recorded the statements of the witnesses and had then prepared the chargesheet. The above original notice U/S 50 NDPS Act was identified by him in the court as Ex. PW7/E besides the accused.
13. PW8 Ct. Mohd. Yasin is also a witness of recovery of above Ganja from the accused and broadly he has deposed like PW4 Ct. Mohd. Muslim regarding the recovery of the Ganja from the accused, the proceedings of sealing and seizure conducted at the spot and also about the arrest etc. of the accused subsequently by SI Shiv Raj Singh Bisht. He is the person who had taken the rukka and the above pullandas and the documents to the PS. He has specifically deposed regarding the preparation of the above documents Ex. PW4/A, PW4/B, PW4/C, PW4/D, PW5/A, PW5/D, PW7/A, PW7/B and PW7/E and has also identified the accused as well as the above exhibits P1 to P3.
14. PW9 Sh Rajeshwar Kumar Juneja was posted as ACP, SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 9 Operation Cell on 20.11.2008 and on that day at about 4.15 or 4.30 PM he had received a telephonic information from ASI Shahabuddin regarding the above secret information and had directed ASI Shahabuddin to take action as per law. At around 10.30 PM on the same day, he had also received the information U/S 57 NDPS Act Ex. PW3/A sent by SI Shiv Raj Singh Bisht and had perused the same and made endorsement at point A thereon.
15. After the conclusion of the prosecution evidence the entire incriminating evidence brought by the prosecution on record was put to the accused and the same was denied by him to be incorrect. He has claimed himself to have been falsely implicated in this case at the instance of two bad elements of the area namely Shah Alam and Hafiz, who were engaged in selling Ganja and against whom he had already filed many complaints. He has also chosen to lead defence evidence.
16. The accused in his defence has examined only one witness namely Sh Sudesh Kumar Shah as DW1 and he has claimed that he was a regular visitor at the Dargah ' Sajjada Nashin ' in C Block, Captain Gaur Marg, East of Kailash and on the day of incident also he had visited the Dargah to offer prayers at about 4 PM and when he was standing outside the Dargah after offering prayers and was thinking to have tea, he had seen 2-3 persons coming in a vehicle and they had gone inside the Dargah. After sometime SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 10 they had also taken the accused living in the above Dargah alongwith them and subsequently he had come to know that the accused had been falsely implicated in a case of Ganja at the instance of Shah Alam and Noor Alam, who were residing near the Dargah and were dealing in Ganja.
17. I have heard the arguments advanced by Sh S.K. Raghuwanshi, Ld Additional PP for the State and Sh M. Nabi, Ld. defence counsel for the accused and have also appreciated the evidence led on record and the other record of the case.
18. There are various loopholes, lacunae, discrepancies and contradictions in the evidence led by the prosecution on record and the same not only make the evidence regarding the apprehension of the accused and the recovery of the above contraband substance from him to be doubtful but also create serious doubts as to whether the sample, which was allegedly taken out from the above contraband substance recovered from the accused, was in fact a sample drawn from such substance.
19. Though the prosecution witnesses of recovery have claimed that they had left the PS on the day of incident after having recorded their departure vide a DD, but PW4/Ct. Mohd. Muslim has stated that he does not remember the number of the DD and PW5/IO/ASI Shahabuddin has flatly stated that he cannot tell the number of the same. No such SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 11 DD of their departure from the PS to justify their presence at the place of receiving of the alleged secret information has been brought or proved on record. According to rukka Ex. PW5/D the secret information was shared by the IO/PW5 with PW4 and PW8 and the same was also communicated to the ACP Operations Cell at the spot of its receiving itself, i.e Kalkaji Turn, and the raiding team was constituted then and there, but PW4 during his depositions made in this court has claimed that the IO/PW5 did not disclose the secret information to them at the Kalkaji Turn. Again according to the contents of above rukka Ex. PW5/D and the depositions of the IO/PW5 and PW8 the passersby were requested at that place itself for joining the raiding team and when they had not agreed, the raiding team consisting of the above police official was constituted. However, the depositions made by PW4 in this court suggest as if the request to passersby to join the proceedings was made after they had already reached at the place of apprehension of the accused, i.e the bus stop, Captain Gaur Marg near Okhla Mandi, and the accused had already been apprehended by them. According to the prosecution case the secret information was received at about 4.15 PM at the Kalkaji Turn and such depositions have also been made by PW4, PW5/IO and PW8 during their chief examination, but strangely enough PW4 in his cross examination states that they had started from Kalkaji Turn for the spot at 4 PM and this is when his cross examination was recorded on the day of recording of his chief examination in the court itself.
SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 12
IO/PW5 claims to had reached at the place of apprehension of the accused at 4.40 PM when the distance between place of receiving of the information and that of apprehension of the accused has been stated to be only around 200-300 meters by PW4 and half kilometre by the IO/PW5. On the other hand PW8 in his statement tells the time of reaching the Kalkaji Turn as 4.30 PM, which is again contrary to the claims of other two witnesses of recovery and even the contents of rukka Ex. PW5/D, which is the basis of the case.
20. On further appreciation of the prosecution evidence it is found that PW5/IO in his statement has claimed that the secret information was conveyed to the ACP Operations Cell just after one minute of receiving of the above information, but on the contrary PW4 in his cross examination tells the time of conveying of the information to the ACP to be 5 PM and during his chief examination he was even silent if the above information was conveyed to the ACP or not. Though PW5/IO and PW8 in their statements have both deposed that the accused had given his reply Ex. PW5/A to the notice U/S 50 NDPS Act given by PW5/IO to him and the above reply was recorded by the PW5/IO himself, but PW4 in his examination has though deposed about the service of the above notice but has not made any depositions about the giving of any reply to the same in writing by the accused or the recording thereof by the IO at the request of the accused. Again according to PW5/IO he had also SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 13 given his search to PW8 Ct. Mohd. Yasin vide memo Ex. PW5/B before taking the search of the accused at the spot and even PW8 has deposed regarding the same, but here again PW4 Ct. Mohd. Muslim is found to be silent with regard to the above or the preparation of any such document or memo. One other memo has also been brought on record during the statement of IO/PW5 as Ex. PW5/C and it is with regard to the fact that nothing incriminating was found in the search of the accused conducted by him subsequent to the service of the notice U/S 50 NDPS Act, but both PW4 and PW8 are silent with regard to this document. It is also claimed by the IO/PW5 that even after the apprehension of the accused he had requested three passersby to join the proceedings and they had refused to join the same, but the other two witnesses of the recovery has not made any such claim.
21. Further, there are also some other contradictions in the depositions of the above material witnesses of the prosecution story regarding the timings connected with the investigation of the case as PW4 states that the rukka was taken by PW8 Ct. Mohd. Yasin at 6 PM and IO/PW5 has told the time of taking the rukka to be 7 PM and PW8 himself has claimed to had taken the rukka at 7.15 PM. PW4 states that PW8 had gone to the PS to bring the scale at about 5.30PM and returned back after about 20 minutes, but PW8 himself tells this time to be 5 PM. PW7 SI Shiv Raj Singh Bisht is the second IO of this case and he has stated that in the personal search of the accused conducted by him one mobile SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 14 phone, some currency notes and the notice U/S 50 NDPS Act were recovered, but even in this regard PW4 has not made any depositions though he was also present at the spot when the personal search of the accused was conducted and he is also a witness of his personal search memo Ex. PW5/C.
22. Apart from all the above, there is also another serious flaw in the story of prosecution which adversely affects the credibility of the prosecution story and renders the same to be unworthy of acceptance. Ld. defence counsel has pointed out that though 1 KG of the Ganja was taken out by the IO/PW5 as sample at the spot and the same was sent to FSL, Rohini for analysis, but in the FSL reports tendered on record as Ex. PW7/C and Ex. PW7/D (PW7/C is the chemistry report and PW7/D is the biology report of the above sample and both are per-se admissible in evidence U/S 293 Cr.P.C) the weight of the above sample has been stated to be 955.0 Grams and 850 Grams respectively, with polythene, and in view of the above discrepancy it is even doubtful that the above sample was in fact drawn from the alleged contraband substance recovered from the accused. In this regard he has also relied upon a judgement of the Hon ' b le Supreme Court in case of Rajesh Jagdamba Avasthi Vs State of Goa 2005 I AD (Cr.) SC 1 and also one other judgement of our own High Court in a bail matter in case Mohd. Ramzan Vs State (NCT of Delhi) 2005 II AD (Cr.) DHC 638. In the case of Rajesh SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 15 Jagdamba Avasthi, Supra the recovery of Charas was effected from an accused and 100 Grams of Charas was recovered from his right shoe and one 115 Grams was recovered from his left shoe. The entire quantities of the above recovered substance were sealed in two separate envelopes ' A and B ' and were sent for chemical examination and the weight of the these quantities was subsequently found to be 98.16 Grams and 82.54 Grams respectively, i.e against and distinct from the recovered quantity of 100 Grams and 115 Grams respectively. The accused was convicted by the trial court and even his conviction was upheld by the Hon ' b le High Court concerned, but in the opinion of the Hon ' b le Supreme Court the above discrepancy was not minor or ignorable and the same was sufficient to make the recovery of entire contraband substance from the accused to be doubtful and also whether the sample sent for analysis was drawn from the same substance which was recovered from the accused. The following observations were made by their Lordships in the abovesaid case:-
" We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of Charas weighing 180.70 Grams The charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by Junior Scientific Officer, PW-1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 16 the difference in weight was significant.
Th High Court itself found that it could
not be described as a mere minor
discrepancy. Learned counsel rightly
submitted before us that the High Court
was not justified in upholding the
conviction of the appellant on the basis of what was recovered only from the envelope A ignoring the quantity of Charas found in envelope B. This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceedings is considerably eroded if it is found that the quantity actually found by PW-1 was less than the quantity sealed and sent to him. As he rightly emphasized, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW-1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful. "
23. In the other case of Mohd. Ramzan, Supra, though it was a stage of bail and question involved was whether the accused is entitled to bail in a case of commercial recovery of the ' Ganja ' in view of the provisions contained U/S 37 of the NDPS Act, but their Lordships had also discussed the effect of the discrepancies in the weights of the contraband substance sent to the FSL for analysis. In this case total three bags were recovered from SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 17 the possession of the accused and the same were found to contain Ganja weighing 7.5 KG, 7.5 KG and 7 KG respectively, i.e 22 KG in total which was a commercial quantity of Ganja under the NDPS Act as 20 KG of Ganja has been prescribed to be commercial quantity under the said Act. As per the prosecution story 600 Grams of Ganja was taken out as sample from each of the above three bags and the samples were marked as S12, S25 and S34. However, when these three samples were examined in the FSL, the FSL report had indicated their weights to be 630 Grams, 560 Grams and 750 Grams respectively. While referring to the facts of and while relying upon the prepositions of law as laid down by the Hon ' b le Supreme Court in the case of Rajesh Jagdamba Avasthi Supra, it was held by their Lordships of the Hon ' b le High Court:-
" From the above paragraph, what can be found is that the discrepancies did not so much relate to the quantum of seizure but to the seizure itself. It is not just that, as in the present case, instead of 1800 gms, 1940 gms were sent to the Forensic Science Laboratory. What is important is that such a discrepancy casts reasonable doubts on the credibility of the recovery itself and it is on the basis amongst other grounds, that the Supreme Court in the case of Rajesh Jagdamba Avasthi (supra) found it unsafe to sustain the conviction of the appellant therein. "
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While making the above observations, the Hon ' b le High Court had directed the release of the petitioner/ accused on bail despite the bars and the rigours contained U/S 37 of the NDPS Act.
24. In the instant case also though 1 KG of Ganja was taken out by the IO/PW5 as sample and the same was kept in a separate polythene and it was sealed at the spot itself with the seal of SD, but at the time when the above sample pullanda was first opened in the Chemistry Division of the FSL on 31.03.09, its weight was found to be 955 Grams instead of 1000 Grams (1 KG) vide report Ex. PW7/C. At the time of its biological examination on the same day vide report Ex. PW7/D the weight was found to be 850 Grams approximately and though the weight of 850 Grams in Ex. PW7/D can be understood that some contents of the sample might have been consumed in its chemistry examination vide report Ex. PW7/C, but the difference of 45 Grams of Ganja in report Ex. PW7/C, as against and distinct from the weight of 1 KG of Ganja sealed at the spot, is considered to be material and this discrepancy seriously affects the credibility of the prosecution story. Though the Ld. APP for the State has argued that the seals of the sample were found intact at the time of FSL examination vide report Ex. PW7/C and this fact is specifically mentioned in the said report and hence no tempering with the sample pullanda can be presumed, but the above argument of Ld. APP is not of any help to the case of the prosecution because even in the SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 19 case of Mohd.. Ramzan, Supra the seals of the sample pullandas were stated to be intact in the FSL report and in my view the above fact rather goes against the prosecution itself because even though the sample Ganja was put in a transparent polythene and was duly sealed at the spot and was also allegedly kept in the safe custody of the malkhana, but no satisfactory explanation could be furnished by Ld. APP as to how there is a difference of 45 Grams in the sample Ganja examined in FSL and that sealed at the spot. Even in the above said two cases being relied upon by Ld. Defence Counsel on this aspect no tempering in the seals was found to be there, though some discrepancies in the inscription of the seal affixed on the sample pullanda was observed in the evidence of the prosecution in the case of Rajesh Jagdamba Avasthi, Supra. In the case in hand, apart from the above difference in the weight, there is also another lacuna because according to the claims of PW4 as well of the IO/PW5 the seal after use was given to PW4 Ct. Mohd. Muslim but there is no evidence on record to show as to how, when and to whom he had returned the above seal. The recovery of the contraband substance was effected in this case on 20.11.08 and the pullandas were also allegedly deposited in the malkhana on the same day, but the sample pullanda has been sent to the FSL, Rohini only on 30.12.08, i.e. after a delay of about 40 days from the date of taking of the sample. In the absence of there being any explanation or depositions from the IO/PW5 or PW4 SC No. 06A/09 State Vs Mubarak Ali Shah FIR No. 456/08 PS Amar Colony 20 regarding the return of the seal, the possibility of tempering with the sample pullanda cannot be ruled out. Hence, in view of the prepositions of law as laid down in the above said cases and on the basis of the evidence led by the prosecution on record it is very difficult to hold that any contraband substance was in fact recovered from the accused or that the sample of the Ganja which was examined in the FSL vide reports Ex. PW7/C & PW7/D was in fact drawn from the alleged contraband substance recovered from the accused.
25. Therefore, in view of the above discussion, I hold that though the defence evidence lead by the accused on record is not inspiring confidence, but even then the evidence brought on record by the prosecution is found to be not sufficient to bring home the guilt of the accused. The accused, is therefore acquitted of the charge U/S 20
(b)(ii)(B) of the NDPS Act. His bail bond is cancelled and surety discharged. However, it is found that accused has yet not furnished the bond U/S 437A Cr.P.C. and hence the file be consigned to record room only after the above bond is furnished by the accused.
Announced in the open
court on 07.02.2011 (M.K.NAGPAL)
ASJ/Spl Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 06A/09 State Vs Mubarak Ali Shah
FIR No. 456/08
PS Amar Colony