Delhi District Court
State vs Hukum Singh on 23 September, 2019
IN THE COURT OF SH. AJAY GUPTA, SPL. JUDGE (NDPS)/EAST
KARKARDOOMA COURTS, DELHI
SC No.2379/16
FIR No.173/16
U/s 20 NDPS Act
PS Crime Branch
State Versus Hukum Singh
S/o Late Sh. Banwari Lal
R/o H.No.B88, Gali No.9,
Vikas Nagar, Uttam Nagar, Delhi
Date of Institution 15.12.2016
Arguments heard 09.09.2019
Date of order 23.09.2019
JUDGMENT
1. The prosecution case, in brief, is that on 17.10.2016 at about 10.40 am, when SI Vinod was present in his office at Narcotics Cell, one secret informer came there and informed SI Vinod that one person namely Hukum Singh r/o Vikas Nagar, Uttam Nagar, who procures the heroine from Bareilly, UP and supplies the same in Delhi, would come today in the vehicle bearing registration No.DL9CY4089, Swift, White Colour, in between 12.30 pm to 1 pm near red light of Mayur Vihar PhaseI, near NH24, on the road leading to Sarai Kale Khan, to supply huge quantity of heroine to someone. If raided, the supplier and receiver can be apprehended. On being satisfied with the said information, SI Vinod produced the secret informer before Inspector Sunil Kumar, who after being satisfied with the secret information, shared the said information FIR No.173/16 State vs Hukum Singh 1 of 28 with Sh. Sanjeev Tyagi, ACP, Narcotics Cell, who directed to take necessary action. Thereafter, SI Vinod lodged the said information into writing vide DD No.6 at about 11 am and produced a copy of the said DD to Inspector Sunil Kumar in compliance of section 42 of NDPS Act. Thereafter, on the direction of Inspector Sunil Kumar, SI Vinod constituted a raiding party comprising himself, HC Satender and HC Mahesh after briefing them about the secret infrmation. SI Vinod took IO bag, field testing kit, electronic weighing machine and left for the spot at about 11.15 am in private vehicle bearing registration No. DL2CAP 3567, Maruti Ritz, Silver Colour after lodging DD No.7. The said vehicle was being driven by SI Vinod and secret informer was also accompanying the raiding team. The raiding ream reached near Red Light, Mayur Vihar PhaseII, NH24, Delhi. On the way to the spot, SI Vinod requested at Shanti Van red light as well as Bus Stand near foot over bridge, IP Depot, to five passersby to join the raiding team but none agreed. SI Vinod reached near the spot at about 12.20 pm and parked their vehicle near the poll of High Tension Wire which is situated 50 meters before the spot. At about 12.30 pm, one private vehicle bearing registration No. DL9C4089, Swift, White Colour came from Gazipur side and stopped 20 meters ahead after crossing the Mayur Vihar PhaseII Red Light and one person wearing yellow shirt and gray colour pant came out from the driver side of the said car. Secret informer pointed out towards that person and left spot. The said person waited for about 57 minutes for someone and thereafter started sitting back in his car upon which SI Vinod apprehended the said person with the help of raiding team member. On interrogation, his name came to FIR No.173/16 State vs Hukum Singh 2 of 28 be known as Hukum Singh. SI Vinod introduced themselves to that person and also asked 56 passersby who had gathered at the spot, to join the proceedings but none agreed. SI Vinod asked HC Satender to bring his private vehicle at the spot. Thereafter, SI Vinod informed the said person about the secret information and that he might be in possession of heroine and therefore, his search was required. SI Vinod also apprised that person about his legal right that his search can be conducted in the presence of Gazetted Officer or a Magistrate, if he so desired. That person was also offered the search of the raiding team members as well as private vehicle of raiding team members prior to his search as well as search of his vehilce but he refused. Then SI Vinod prepared a notice u/s 50 NDPS Act, gave it to him and also read over its contents to him. He was also explained about the meaning of Gazetted Officer and Magistrate but he refused to exercise his legal right and himself wrote his refusal reply on the carbon copy of the notice u/s 50 NDPS Act. Thereafter, SI Vinod took personal search of the said person in which one transparent weighty momi (plastic polythene) tied with rubber band was recovered from the right pocket of his pant. On checking, the said polythene was found containing mathmaila colour powder. Same was checked on field testing kit and it was found to be heroine. The recovered substance was weighed with polythene and its weight was found to be 105 grams out of which two samples of 5 grams each were drawn and same were kept in two separate transparent polythenes and same were converted into cloth pullandas and same were given Mark A and B. The remaining heroin was also converted into FIR No.173/16 State vs Hukum Singh 3 of 28 cloth pullanda and it was given Mark C. FSL form was filled in. All pullandas were sealed with the seal of 2A PS NB DELHI. FSL form was also affixed with the same seal. All pullandas and FSL form were seized. Thereafter, SI Vinod prepared a rukka and handed it over to HC Satendra Pal alongwith sealed pullandas, carbon copy of seizure memo and FSL form with the direction to hand over the rukka to DO for registration of the case and remaining articles to SHO for compliance of section 55 of NDPS Act. HC Satendra Pal stated to have left for PS Crime Branch at about 3.30 pm in aforesaid private vehicle. At about 5 pm, HC Satendra Pal reached the PS and handed over rukka to DO ASI Ram Avtar and remaining articles to Inspector Virender Singh, SHO PS Crime Branch. FIR was registered u/s 21/25 NDPS Act and case property was deposited in malkhana after necessary compliance by the SHO and in this regard DD No.17 was also lodged.
After registration of the case, further investigation was marked to SI Dinesh Kumar. Thereafter, HC Satendra Pal came to office of Narcotics Cell with copy of FIR and rukka and handed over the same to IO SI Dinesh Kumar. Thereafter, IO left for the spot in the said private car leaving HC Satendra Pal in the office, reached at the spot where SI Vinod, raiding team members and accused were found present. IO collected relevant documents from SI Vinod, prepared site plan at the instance of SI Vinod, recorded statement of witnesses and seized the vehicle of accused. Thereafter, IO interrogated accused, arrested him at about 11.20 pm in this case, conducted his personal search, seized the personal search articles and thereafter brought the accused to FIR No.173/16 State vs Hukum Singh 4 of 28 Crime Branch Malviya Nagar at about 12.45 am. Vehicle of accused was also brought by SI Vinod to Crime Branch office and same were deposited in Malkhana. Thereafter, at about 3 am, SI Dinesh Kumar brought the accused to the office of Narcotics Cell, produced him before Inspector Sunil Kumar, lodged DD No.3 and recorded statement of witnesses. Thereafter, reports u/s 57 NDPS Act were prepared by IOs and same were produced before Inspector Sunil Kumar who forwarded the same to Senior Officers. Thereafter, IO produced the accused before court concerned, obtained three days PC remand, constituted a raiding party and took accused to Bareilly, UP in search of suspects Jaffar and Dharmendra but in vain. Thereafter, on 19.10.2016, exhibits of the case were got deposited to FSL, collected its result and placed the same on record. During interrogation, the vehicle no. DL9C4089 were found registered in the name of accused. After completion of investigation, chargesheet was prepared against the accused u/s 21/25 NDPS Act and filed before the court.
2. After compliance of section 207 Cr.P.C., charge u/s 21(b) of NDPS Act was framed on 31.01.2017 against the accused to which he pleaded not guilty.
3. In order to prove its case, the prosecution examined eleven witnesses.
(3.1) PW1 is ACP Virender Singh (then SHO PS Crime Branch). This witness deposed that on 17.10.2016, at about 5.05 pm, HC Satender Pal came to his office and produced three sealed parcels ABC sealed with the seal of 2APSNBDELHI along with FSL form and carbon copy of FIR No.173/16 State vs Hukum Singh 5 of 28 seizure memo. Then he examined the same, inquired about the FIR number from Duty Officer, put the FIR number on the documents and the parcels, put his seal of VSS on the parcels and FSL form. Thereafter, he called MHC(M) HC Jag Narain along with register no.19 in my office and handed over the parcels along with FSL form and copy of the seizure memo to MHCM who made relevant entry in Register no.19 at sl. no.2645 in his presence and deposited the case property in malkhana. PW1 also initialed the said entry and lodged DD No.17 at about 5.45 pm in this regard which is Ex.PW1/A. The copy of the entry is mark A. (3.2) PW2 is ASI Jagnarain, the MHC(M) who deposed that on 17.10.2016, he was called by PW1 Inspector Virender Singh in his office along with Register no.19 and he reached there at about 5.35 pm. PW1 produced three parcels Mark A, B and C sealed with the seal of 2APSNBDELHI and VSS to him along with FSL form and carbon copy of seizure memo which were deposited by him in Malkhana and relevant entry in this regard was made in Register no.19 at sl. no.2645, copy of said relevant entry is Ex.PW2/A. PW2 further deposed that at about 1 am, IO SI Dinesh Kumar came to Malkhana and produced the Jamatalashi articles of accused alongwith one Swift vehicle bearing No. DL9CY 4089 which were deposited by him in the Malkhana and relevant entry at sl. no.2646 was made in this regard, copy of said entry is Ex.PW2/B. PW2 further deposed that on 19.10.2016, on the direction of SHO, he handed over one parcel Mark A sealed with the seal of 2APSNBDELHI and VSS along with FSL form and other relevant FIR No.173/16 State vs Hukum Singh 6 of 28 documents to HC Pawan vide RC No.371/21, who deposited the same to FSL Rohini and handed him over a receipt in this regard. Copy of RC no.371/21 is Ex.PW2/C (OSR) and copy of receipt is Ex.PW2/D (OSR).
(3.3) PW3 is ASI Dinesh Kumar, the then Reader to ACP. This witness deposed that on 17.10.2016, DD No.6 was also received through daak which was diaried at sl. no.2555 and was produced before ACP who had seen and signed the same. The copy of the relevant entry is Ex.PW3/A1. PW3 further deposed that on 18.10.2016 report u/s 57 NDPS Act prepared by SI Vinod Kumar regarding seizure of 105 grams heroin and report u/s 57 NDPS Act prepared by SI Dinesh Kumar regarding arrest of accused were received in the office through daak which were diaried in register concerned at sl. no.2564 and 2565 respectively and produced before the ACP who had seen and signed the same. The copy of relevant entry is Ex.PW3/B1 and E.PW3/C1.
(3.4) PW4 is ASI Ramotar who lodged the present FIR, copy of which is Ex.PW4/A. (3.5) PW5 ASI Mahesh Kumar (then HC) and PW8 HC Satender Kumar are the members of raiding team as well as recovery witnesses and they have deposed more or less on the lines of para no.1 of the order.
(3.6) PW6 is ASI Pawan who deposited the sample parcel Mark A with FSL Rohini.
FIR No.173/16 State vs Hukum Singh 7 of 28 (3.7) PW7 is SI Vinod Kumar, the 1st IO who was heading the raiding team. This witness has deposed more or less on the same lines as discussed in para no.1. Though, PW7 has missed some facts due to which he was crossexamined by Ld. Addl. PP where he has admitted the suggestions put by Ld. Addl. PP for the State.
(3.8) PW9 is ACP Sanjeev Tyagi who deposed that on 17.10.2016, PW11 Inspector Sunil Kumar informed him in his office regarding an information that accused was bringing heroin at about 12.30 to 1 pm at Mayur Vihar PhaseII Red Light. Then he directed PW11 to conduct a raid in this regard. PW9 further deposed that his reader ASI Dinesh Kumar produced before him DD no.6 Ex.PW3/A and after being satisfied, he signed the same at point A. PW9 further deposed that on 18.10.2016, his reader ASI Dinesh Kumar produced before him reports u/s 57 NDPS Act Ex.PW3/B and Ex.PW3/C regarding seizure of 105 grams heroin and arrest of accused respectively which were seen and signed by him at point A. (3.9) PW10 is SI Dinesh Kumar, the 2nd IO of the case, who, after assignment of further investigation of the case, reached the spot, conducted further investigation of the case arrested the accused, prepared necessary documents, collected FSL result Ex.PW10/D and filed the chargesheet after completion of investigation.
(3.10) PW11 is Inspector Sunil Kumar who deposed that on 17.10.2016, at about 10.50 a.m., he was informed about the receipt of secret information that accused would come in his car no. DL 9CY 4089 FIR No.173/16 State vs Hukum Singh 8 of 28 Swift White Colour with contraband after procuring the same from UP in between 12.30 p.m to 1.00 p.m. near red light Mayur Vihar Ph.II on the road at NH24 leading towards Sarai Kale Khan and he would supply the same to someone. Secret informer was also produced before him and on being satisfied, PW11 informed about the said information to ACP Narcotic Cell at his office personally, who directed to conduct raid immediately. Thereafter, PW11 directed PW7 SI Vinod to take necessary action and then PW7 lodged DD No.6 Ex.PW7/D and produced the same before PW11 who forwarded the same to ACP concerned. PW11 further deposed that on 18.10.2016, at about 3.00 a.m., PW3 SI Dinesh came to his office, produced the accused, briefed him about recovery of contraband and arrest of accused and also produced report u/s 57 NDPS Act Ex.PW3/C which was forwarded by him to ACP concerned. PW11 also deposed that PW7 SI Vinod Kumar also produced a report u/s 57 NDPS Act Ex.PW3/B which was also forwarded by him to ACP concerned.
4. Statement of accused u/s 313 Cr.P.C was recorded wherein he pleaded his innocence and stated that he is innocent and has been falsely implicated in this case. He was lifted from his house by the police and his car was also taken by the police. No recovery was effected from him. Whatever recovery has been shown, the same has been plated upon him by the police.
5. Arguments have been heard from the Ld. Addl. PP as also from the Ld. Counsel for accused. Ld. Addl. PP has argued that the recovery witnesses PW5 ASI Mahesh Kumar and PW8 HC Satender Kumar FIR No.173/16 State vs Hukum Singh 9 of 28 examined by the prosecution have proved the recovery of 105 grams heroine from the possession of accused. All the relevant provisions of NDPS Act have been duly complied with. The witnesses have supported the prosecution case. It is also submitted that though PW7 SI Vinod Kumar turned hostile on some aspects yet his testimony is material and same cannot be discarded merely on the ground that he has turned hostile on some material aspects. FSL result confirms that the recovered substance was heroin. Thus, it is argued that the prosecution has been able to prove its case against the accused and therefore, he may be convicted for the offence, he is charged with.
6. Ld. Defence Counsel, on the other hand, argued that the case of the prosecution is false and fabricated. There are material contradictions in the testimony of prosecution witnesses. There are three material witnesses including PW7 SI Vinod Kumar, the 1st IO, out of which PW7 have not supported the prosecution case on some material aspects and turned hostile. Nothing was recovered from the possession of the accused and he has been falsely implicated in this case. It is also argued that the spot is a public place and admittedly public persons were passing through the spot but no public person has been associated by the IO at the time of apprehension of accused and alleged recovery. Ld. Defence Counsel also drew the attention of the Court to the testimonies of all the police witnesses and stated that despite ample opportunity, no effort was made to join public witness in the investigation. It is also argued that as per first IO, he had noted down the secret information on a rough paper, however, that has not FIR No.173/16 State vs Hukum Singh 10 of 28 been made a part of the record and same was also not sent to the senior officers. It further argued that compliance of section 42 of NDPS Act has not been made as the secret information was not sent to the senior police officers in the proper manner. It is also submitted that compliance of Section 50 of NDPS Act has not been made. No Magistrate or gazetted officer was called at the spot. Accused was also not produced before any Gazetted Officer/Magistrate for conducting his search. Ld. Counsel has relied upon the Judgments reported as Arif Khan @ Agha Khan Vs. State of Uttranchal, IV(2018) SLT 32 SC, Dharambir Vs. State Crl. Appeal no.658/2017 and Gurtej Singh Batth vs State, Crl. Appeal 39/2015, in support of his contention and requested that accused may be acquitted.
7. PW5 ASI Mukesh (then HC) and PW8 HC Satender Kumar are the witnesses of recovery on which the prosecution case mainly rests. PW7 SI Vinod Kumar is also the recovery witness as well as the 1 st IO of the case. PW10 SI Sachin Tomar is the 2 nd IO to whom the further investigation was entrusted. PW7 supported the prosecution case to some extent on the point of recovery of alleged contraband from the possession of accused but he has turned hostile on some material aspects. Though, in the crossexamination done by Ld. Addl. PP for the state, PW7 has supported the suggestions put to him yet his testimony cannot be given much weightage because he has turned hostile on the material aspects like joining of secret informer in the raid and pointing out of accused by secret informer, disclosure of name by accused on his interrogation, recovery of notice u/s 50 NDPS Act and personal FIR No.173/16 State vs Hukum Singh 11 of 28 search articles from the possession of accused and preparation of notice u/s 57 NDPS Act regarding recovery of contraband from the possession of accused etc. It is not the case of the prosecution that the witness was examined after a long time after recovery of alleged contraband due to which he might have forgotten some facts. As per prosecution case, accused was apprehended on 17.10.2016 with alleged contraband and PW7 was examined on 02.11.2018 and thus, it cannot be assumed that PW7 who was also heading the raiding team, would forget material aspects in such a short span of time. This fact shows that either PW7 was not heading the raiding team or accused was not apprehended with the alleged contraband in his presence. Furthermore, there are several contradictions in his crossexamination which also creates doubt. In his crossexamination, PW7 stated that he noted down the secret information on a separate rough paper but the same has not been produced by him on record but he has also not explained as to what had happened to that rough note. It is also not the fact that the said rough note has been destroyed. Further, PW7 deposed that he had got issued field testing kit and electronic weighing scale from MHC(M)/PW2 ASI Jagnarain and entry regarding the same was made and signed by him while PW2 is silent on this point. PW2 has no where deposed in his statement that he issued field testing kit and electronic weighing scale to PW7. Conversely, PW8, in his cross examination, ironically stated that IO already had with him, the field testing kit, electronic weighing scale and IO bag prior to going to the spot and it was not got issued by him from malkhana. In view of aforesaid discussions, it is held that the testimony of PW7 is not FIR No.173/16 State vs Hukum Singh 12 of 28 reliable.
8. PW5 ASI Mahesh Kumar and PW8 HC Satender Kumar are the recovery witnesses. Both witnesses reiterated the facts of the case and deposed that on 17.10.2016, at about 11.10 a.m., SI Vinod called him and HC Mahesh (PW5) in his office, informed them about the receipt of secret information that one person namely Hukum Singh i.e. accused, who is indulged in supplying heroine in Delhi after procuring the same from Bareilly UP, would come in his car no. DL 9CY 4089 Swift, white colour in between 12.30 p.m to 1.00 p.m near Mayur Vihar Phase.II red light NH24 on the road leading to Sarai Kale Khan for supplying the heroin to someone. The witnesses further deposed that PW7 SI Vinod constituted a raiding party comprising himself (PW7), PW5 and PW8, took field testing kit, electronic weighting scale, IO bag and left for the spot at about 11.15 am in private car no. DL 2CAP 3567, Ritz, silver colour, after lodging DD no.7. The said vehicle was being driven by SI Vinod and secret informer was also accompanying the raiding team. After leaving the office, the raiding team reached at the spot i.e. near pole, high tension wire at NH24 at about 12.20 p.m. The witnesses further deposed that the vehicle of raiding team was parked at a distance of about 50 meters from the spot towards the road to Sarai Kale Khan. The raiding team members were again briefed by the IO and they all took positions there and at about 12.30 p.m., one private car bearing no. DL9CY 4089, Swift, white colour came from the site of Gazipur and stopped after crossing red light of Mayur Vihar PhaseII, at the distance of about 20 meters and one person wearing yellow colour FIR No.173/16 State vs Hukum Singh 13 of 28 shirt and gray colour pant, came out from the driver seat. The secret informer left the spot after pointing out towards the accused. The witnesses further deposed that the accused waited for someone for about 57 minutes and thereafter, he started sitting in his car, then he was apprehended. On interrogation, his name was known as Hukum Singh. The witnesses further deposed that the IO/PW7 introduced himself and the raiding team members to the accused and also told that he (PW7) had information about him that he might be in possession of heroine and he had come there to supply the same to someone and that in this regard his search was to be conducted. The accused was also apprised that it was his legal right that he can take search of any of the raiding team members and of private car also and that it was also his legal right that his search can be taken in the presence of Gazetted officer or Magistrate, if he so desire and that the arrangement for the same can also be done, if he so requires but accused refused for the same. Thereafter, IO/PW7 prepared a notice u/s 50 NDPS Act and original notice was given to the accused and accused himself wrote his reply Ex.PW5/B in Hindi on the carbon copy of notice u/s 50 NDPS Act Ex.PW5/A. Thereafter, IO/PW7 searched the accused and one transparent polythene containing mathmaila colour powder tied with rubber band was recovered from the right side pocket of pant of accused. IO removed the rubber band from the transparent polythene, took out some powder from it, checked the same on field testing kit and it was found to be heroine. Thereafter, the recovered heroine was weighed and its weight was found to be 105 grams out of which two samples of 5 grams each were drawn from the recovered heroine and FIR No.173/16 State vs Hukum Singh 14 of 28 the same were kept into two separate transparent small polythenes, tied with the rubber band and were given Mark A and B. Remaining heroine was kept in the said transparent polythene, tied with rubber band and it was given Mark C. Thereafter, all three parcels were sealed with the seal of 2 APS NB Delhi. FSL form was filled up and it was also affixed with same seal. Thereafter, all three parcels and FSL form were taken into possession vide seizure memo Ex.PW5/C and seal after use was handed over to PW5 HC Mahesh Kumar. Thereafter, IO/PW7 prepared a rukka and handed over the same to HC Satender Kumar (PW8) alongwith all the three parcels, carbon copy of seizure memo, FSL form with the direction to hand over the rukka to Duty Officer and remaining articles to SHO for further necessary action. Thereafter, PW8 left the spot in the said private car, reached PS Crime Branch, Malviya Nagar, New Delhi, handed over the rukka to DO (PW4) and the said parcels along with carbon copy of seizure memo and FSL form to Inspector Virender Singh (PW1). Then PW4 inquired the FIR number from DO, wrote FIR number on the documents, called the MHCM ASI Jagnarain (PW2) alongwith register no.19 in his office. The witnesses further deposed that PW1 also put his seal of VS on the parcels and on FSL form and case property was deposited in Malkhana through MHCM who made relevant entry in register no.19. PW5 ASI Mahesh Kumar (then HC) also deposed that after registration of FIR, SI Dinesh Kumar, the second IO (PW10) came to spot and SI Vinod Kumar briefed him and also produced the accused. Thereafter, the 2nd IO prepared site plan at the instance of PW7 SI Vinod Kumar, seized the vehicle of accused vide seizure memo Ex.PW5/D, interrogated the accused, conducted his FIR No.173/16 State vs Hukum Singh 15 of 28 personal search in which original notice u/s 50 NDPS Act (Ex.P4), one black colour purse containing Rs.1610/ and copy of DL and key of the said car were recovered. The IO seized these articles vide seizure memo Ex.PW5/F and recorded disclosure statement of accused vide Ex.PW5/G.
9. PW10 is IO SI Dinesh Kumar, the second IO of the case. This witness deposed that on 17.10.2016, at about 7.50 pm, HC Satender came to his office and handed him over copy of FIR and original tehrir as further investigation of the case was marked to him. Thereafter, he left for the spot after lodging DD no.23, copy of which is Ex.PW10/A and reached the spot i.e. near red light, NH24, Mayur Vihar PhaseII, Delhi where SI Vinod Kumar, HC Mahesh and accused whose name was known as Hukum Singh, were found present. The witness further deposed that SI Vinod Kumar (PW7) handed him over all the documents prepared by him and also produced the accused. Thereafter, he seized the vehicle of accused vide seizure memo Ex.PW5/B, prepared site plan Ex.PW7/B at the instance of SI Vinod Kumar, interrogated accused, arrested him at about 11.20 pm vide arrest memo Ex.PW5/E and conducted his personal search vide memo Ex.PW5/F in which one original notice u/s 50 NDPS Act Ex.P4, one black purse containing cash Rs.1610, photo copy of DL of accused, two photos and one key of the vehicle of accused were recovered. PW10 also recorded disclosure statement of the accused and thereafter he alongwith accused and HC Mahesh came to PS Crime Branch in his car while SI Vinod brought the car of accused in PS Crime Branch. The case property and jamatalashi FIR No.173/16 State vs Hukum Singh 16 of 28 articles were deposited in Malkhana through MHCM and statement of MHCM and SHO was recorded. Thereafter, the 2nd IO left for his office and reached there at about 3 am along with accused, produced the accused before inspector Sunil Kumar and also lodged DD No.3 Ex.PW10/B regarding his arrival. Thereafter, PW10 prepared report u/s 57 NDPS Act Ex.PW10/C, submitted it to Inspector Sunil Kumar who had forwarded the same to ACP concerned. PW10 further deposed that he produced the accused before court concerned, took three days police remand of the accused and went to Bareilly alongwith accused and staff to trace out the source of supply namely Zaffar but despite efforts, he could not be traced. Thereafter, on 19.10.2016, PW10 got deposited the exhibits at FSL Rohini through HC Pawan and after completion of investigation, he prepared chargesheet and filed the same before the court. Later on FSL result Ex.PW10/D was obtained and same was filed on record.
10.The present case is based on secret information. However, compliance of section 42 NDPS Act and receipt of secret information appear to be doubtful on two counts. Firstly, as per prosecution case, on 17.10.2016 at about 10.40 am, one secret informer came to the office of Narcotic Cell and informed PW7 SI Vinod Kumar that accused who is involved in supply of heroine in Delhi after procuring the same from Bareilly, UP, would come in a white colour Swift Car bearing registration No. DL 9CY4089 in between 12.30 pm to 1 pm near red light of Mayur Vihar PhaseI near NH24 on the road leading to Sarai Kale Khan, to supply huge quantity of heroine to someone. Thereafter, the PW7 produced the FIR No.173/16 State vs Hukum Singh 17 of 28 secret informer before Inspector Sunil Kumar and informed about the said information. Inspector Sunil Kumar, on being satisfied, shared the said information with ACP concerned, who directed to take necessary action. PW7 also stated that all the offices of ACP, Inspector and another staff are situated in the same building and ACP was present in his office at that time. PW7 further stated that Inspector Sunil had alone gone to the office of ACP and informed him about the information while in his statement PW11 Inspector Sunil Kumar testified that he interrogated the secret informer and on being satisfied from the secret information, he informed the ACP Narcotic Cell in office. PW11 further testified that he had gone to the office of ACP and SI Vinod and secret informer had also followed him and ACP had also talked to the secret informer while PW9 Sanjeev Tyagi (then ACP) stated that in his cross examination that Inspector Sunil Kumar informed him in his office regarding the said information just prior to 11 am. He was alone at that time. Thus, it is clear that compliance of section 42 NDPS Act has not been made properly as the secret information was not sent to the senior police officers in the proper manner. All these facts indicate that either PW7 or PW11 have deposed falsely or no secret information was received by PW7. Secondly, on the direction of PW11, PW7 formed a raiding party comprising PW5 and PW8 and also included secret informer in the raid. The raiding party reached the spot via Rajghat, ITO, Shanti Van red light, Pragati Maidan, Noida Mod, Common Wealth Village and then reached near the spot i.e. Mayur Vihar PhaseII red light. Thus, it is clear that the raiding team had sufficient opportunity to make effort to join public person in raiding team on the way or at the FIR No.173/16 State vs Hukum Singh 18 of 28 spot but PW7 failed to join any public witness either on the way or near the spot. Though, in his statement PW7 stated that on the way he requested five passersby at each place to join the raid but none agreed, however, this statement of PW7 does not inspire any confidence because PW7 supported the prosecution case to some extent and turned hostile on some material aspects.
11.Ld. Addl. PP submitted that there is no need to associate any public witness as the testimonies of police officials are straight forward regarding recovery of heroine from the accused. However, the seizure of the contraband at the spot from the possession of the accused as well as apprehension of accused at the spot appears to be doubtful because there are major contradictions in the testimony of recovery witnesses and specially for the reasons that no public witness was joined despite opportunity. As per prosecution case, on 17.10.2016, at about 12.30 pm, accused was apprehended with 105 grams heroine near red light, Mayur Vihar PhaseII, NH24, near High Tension Wire Pole, Delhi which is a public place. From the site plan Ex.PW7/B, it is clear that the place point B where the accused was allegedly apprehended, is on the service road which lead to Sarai Kale Khan and said service road is a thoroughfare and passersby as well as traffic always use to ply on the said road. However, no public witness was joined in the investigation by the IO either before conducting raid or at the time of recovery of alleged contraband. Though, from the evidence of recovery witnesses it is clear that public persons were available but PW7 did not make any effort to join the public person. Rather in his FIR No.173/16 State vs Hukum Singh 19 of 28 crossexamination, PW7 stated that from nearby residential flats/house or petrol pump, no public persons were requested to join the proceedings. It is clear that place of apprehension of accused is adjacent to highway and near to the spot there is a petrol pump and residential houses are also situated there but during stay of around 12 hours at the spot, no public witness was joined by either of the IOs which shows that no real effort was made to join any public person in the proceedings. All these facts create doubt over the prosecution case.
12.From the statement of recovery witnesses as well as the 2 nd IO, it is clear that they did not make sincere efforts to join public person before or after recovery of the alleged contraband despite having ample opportunity to do so. Testimonies of all the raiding team members show that the spot is a busy place. Ld. Addl. PP has referred to the decision of Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 arguing that failure to associate independent witnesses is not fatal to the prosecution case as long as it is shown that efforts were made and none was willing. However, in the said case, Hon'ble Supreme Court emphasized that it has to be shown that after making efforts the police official was not able to get the public witness associated either in raid or the arrest of the culprit. In other words, in every case, it will have to be examined whether serious efforts were made by the police to associate public witnesses.
13.The Hon'ble Supreme Court in Ritesh Chakraborty Vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150 deprecated the practice of Investigating Officer in not noting down the names of the FIR No.173/16 State vs Hukum Singh 20 of 28 public persons, who fail to join the investigation.
14.In Anup Joshi Vs. State, 1999 (2) CC Cases 314, and Roop Chand Vs. State of Haryana, 1999 (1) CLR 69; the failure to proceed against the public persons, who refused to join the investigation was considered as suggestive of the fact that the explanation for nonjoining of witnesses is an afterthought and is not worthy of credence.
15. In the case of Mohd. Masoom Vs. State of NCT of Delhi, Criminal Appeal 1404/11, decided by Hon'ble Delhi High Court on 09.04.2015, the Hon'ble High Court in Para No. 10 held as under: "10. "Appellants" conviction is primarily based upon the testimonies of the police officers/officials only.
Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of the police officials. Sometimes, it becomes highly difficult for the police officials to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of independent public witnesses is not a mere formality. Simply saying by the police witnesses that public witnesses were not available without any evidence to that effect would not suffice. The Investigating Officer is required to make genuine FIR No.173/16 State vs Hukum Singh 21 of 28 efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits."
16.In the case of Ram Prakash Vs State, 2014 (146) DRJ 629, the Hon'ble High Court held that it has become almost routine practice for the police to say that passersby were requested to join and they declined and went away without disclosing their names and therefore, the Court should be wary of routinely accepting such explanation.
17.In the latest case of Om Prakash Vs. State III (2014) CCR 1 (Del.), it is held that 'in absence of clear evidence to show that sincere effort was made, Court should not simply accept proposition that generally in such cases no member of public comes forward to help prosecution'. Reliance is also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.
18.In the present case, public persons were not made to join the proceedings at the time of recovery at the spot and there seems to be no genuine effort to join them. Hence, nonjoining of public witnesses at the time of recovery creates doubt regarding the entire proceedings being genuine.
19. Further, as per PW10 SI Dinesh Kumar, he obtained three days police custody remand of the accused and thereafter he formed a raiding team FIR No.173/16 State vs Hukum Singh 22 of 28 and took the accused to Bareilly, UP to trace the source of supply namely Zaffar but he could not be traced. However, the visit of Bareilly, UP, by PW10 along with accused and other staff appears to be doubtful on several counts. Firstly, as per PW10 he went to Bareilly, UP to trace the source of supply after taking permission from Senior Officer, however, no document like permission letter/DD entry etc has been placed on record. Secondly, in his crossexamination, PW10 stated that help of local police was taken but no statement of any police official concerned was recorded there. He also stated that he had made arrival entry at local police. However, no DD regarding departure from Delhi or arrival in the local PS of Bareilly, UP, has been brought on record which could suggest that they had visited Bareilly to trace the source of supply. Rather in his crossexamination, PW10 had clearly stated that he had not recorded statement of any of PWs during investigation at Bareilly, UP. In view of Chapter 22 Rule 49 of Punjab Police Rules, 1934, necessary entry in regard to the hour of arrival and departure on duty or from police station must be made in the Rojnamcha Register No.II. In the present case prosecution has neither produced nor proved on record any DD entry or document showing departure of the aforesaid police personnels from Delhi Office and their arrival in local PS of Bareilly, UP. Further, PW10 had not disclosed the names of the staff who had accompanied him to Bareilly nor they have been examined. Moreover, no DD entry lodged in Bareilly has been brought on record by the IO in support of his version. In such circumstance, it cannot be assumed that PW10 along with accused and other staff had actually FIR No.173/16 State vs Hukum Singh 23 of 28 gone to Bareilly, UP to trace the source of supply as stated by him.
20. Ld. defence counsel argued that the sampling was not done properly and the sample heroine sent to FSL for expert opinion also appears to be doubt because one sample of five grams heroine was sent while as per FSL result, the weight of sample Mark A is 5.96 grams. As per prosecution case, 105 grams of heroine was recovered from the possession of accused out of which, PW7 drew two samples of 5 grams each, converted them into two separate pullandas and same were given Mark A and B and pullanda of remaining heroine was given Mark C meaning thereby both samples exclude the weight of polythene and rubber band. While PW5 ASI Mahesh Kumar in his crossexamination clearly stated that the sample were weighed along with the transparent polythenes. In such circumstances, statement of either PW5 or PW7 are is incorrect. As per FSL report Ex.PW10/D, the Exhibit A was containing brown coloured powdery material kept in a polythene pouch tied with rubber band and its weight was 5.96 grams approx with polythene and rubber band. Further, as per PW1, HC Satender Pal produced him three sealed parcels Mark A, B and C sealed with the seal of 2APSNBDELHI and he put his seal of VSS while PW6 ASI Pawan deposed that he took one sealed parcel Mark A sealed with the seal of 2APS NB DELHI and VS though the second seal was of VSS. In his crossexamination also, PW6 categorically stated that at the time of taking sample from MHCM, it was sealed with the seal of 2APS NB DELHI and VS. Further, PW6 deposed that his statement was recorded by SI Dinesh on 19.10.2016 in this case while his statement Ex.PW6/DA bears the date as FIR No.173/16 State vs Hukum Singh 24 of 28 20.10.2016 under the signature of 2nd IO. In such circumstances, it cannot be assumed that sampling was done properly and thus, the chances of tampering of seal cannot be ruled out.
21. There are further material contradictions in the testimony of prosecution witnesses regarding production of accused before SHO concerned. As per prosecution witnesses, after completion of proceedings at the spot, they finally left the spot at about 11.50 pm for PS Malviya Nagar. As per PW5 ASI Mahesh Kumar, they reached PS at about 1.45 am but no arrival entry was made by the IO at PS Crime Branch. PW5 further deposed that IO and SI Vinod had gone inside the PS and he along with HC Satender and accused remained in the car while PW7 SI Vinod stated that SI Dinesh along with one constable had gone inside the PS Crime Branch and remaining officials with him and accused were waiting outside the PS Crime Branch. However, this statement of PW7 appears to be doubtful as all members of the raiding team were above the rank of Head Constable. Further, recovery witnesses deposed that private car no. DL 2CAP 3567 belongs to SI Dinesh whereas PW10 SI Dinesh is silent on this point and he did depose that the said car belongs to him. Likewise, in his crossexamination, PW7 stated that he had driven the car from the office to the spot and one of the raiding team member was sitting by his side in the car and the other was at the rear seat but he does not remember who was at the rear seat and on the front seat while in his crossexamination, PW8 deposed that the secret informer was on the front seat of the said car by the side of SI Vinod and he along with HC Mahesh were on the rear seat.
FIR No.173/16 State vs Hukum Singh 25 of 28
22.Ld. Defence Counsel has cited the case laws reported as Arif Khan @ Agha Khan Vs. State of Uttranchal, IV(2018) SLT 32 SC and Dharmbir Vs. State Crl. Appeal no.658/2017 DHC, Gurtej Singh Batth vs State, Crl.
Appeal 39/2015 and submitted that in the present case compliance of section 50 NDPS Act has not been made as the search of the accused has not been conducted in the presence of a Gazetted Officer or a Magistrate. Ld. Defence counsel further submitted that since, the mandatory compliance has not been made thus, in view of the settled law the accused may be acquitted. Perusal of the record shows that in the present case also, search has not been carried out in presence of a Gazetted Officer/Magistrate. Preparation of notice u/s 50 NDPS Act Ex.PW5/A at the spot also appears to be doubtful. As per recovery witnesses, accused had allegedly come in vehicle No.DL9CY4089 while as per notice Ex.PW5/A, accused had been shown to have come in vehicle no.DL9CY4098. Thus, it appears that notice was notice Ex.PW5/A was not prepared at the spot as stated by the recovery witnesses. Thus, in view of settled law, it is held that the compliance of section 50 NDPS Act has not been made.
23. Serious punishments are prescribed under the NDPS Act and therefore stricter the punishment, stricter the mode of proof. In the case of Noor Agha Vs. State of Punjab & Anr. 2008 (3) JCC (Narcotics) 135, the Hon'ble Court held that in a case arising out of the provisions of NDPS Act the legislature has provided very stringent punishment. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act. There has to be a perfect balance and FIR No.173/16 State vs Hukum Singh 26 of 28 fine tuning between the interest of society and protection of statutory safeguards available to the accused.
24. In the State of Punjab Vs. Baldev Singh (1999) 3 SCC 977, the Hon'ble Supreme Court held that it must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguard provided in statute are scrupulously followed.
25. It is relevant to mention at this stage that it is necessary for the prosecution to prove its case beyond reasonable doubt as held by the Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103.
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
26. In view of the aforesaid discussions, the case of the prosecution is highly doubtful. It is well settled law that the benefit of doubt is always given to the accused. Accused is accordingly acquitted of charges leveled with. The accused is directed to furnish personal bond in the sum of Rs.10,000/ with a surety of the like amount u/s 437A Cr.P.C.
FIR No.173/16 State vs Hukum Singh 27 of 28 File be consigned to record room after the requisite bond is furnished.
Digitally signed by AJAY AJAY GUPTA
Location: Delhi
GUPTA Date: 2019.09.23
16:25:51 +0530
(Ajay Gupta)
Special Judge(NDPS)
KKD/East/Delhi
Announced in open
court on 23.09.2019
FIR No.173/16 State vs Hukum Singh 28 of 28