Delhi District Court
Fir No. 09/2006 State vs . Mohd. Yunus Etc Page No.1 Of 30 on 18 January, 2019
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE02 (EAST) SPL. JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
S.C. No.1417/16
FIR No.09/2006
U/s 21 NDPS Act
PS New Ashok Nagar
State
Versus
(1) Mohd. Yunus s/o Sh. Shahbuddin
Village Chakmar Kachi PS Shiv Nagar
District Madaripur
(Bangladesh)
Also at:
E82/1/93 Shanti Kusht Ashram
Sunder Nagri, Delhi1410014
(2) Mohd. Kalu s/o Mohd.Salam (SINCE ABSCONDING)
Wagmara, PS Shiv Nagar
District Madaripur
Bengladesh
........... Accused
Date of Institution: 03.03.2006
Reserved for Judgment on : 16.01.2019
Judgment pronounced on: 18.01.2019
JUDGMENT
The prosecution case in brief is that on 07.01.2006 SI Rajesh Dangwal alongwith HC Charan Das, Ct. Om Kumar, Ct.
FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.1 of 30 Satya Prakash were checking vehicles in front of St. Marry School. At about 3.30 p.m, a secret informer came and gave information to SI Rajesh Dangwal that two young boys who are permanent resident of Bengladesh would come from the side of Khora on a two wheeler scooter bearing no .DL 7SF 3969 and would go towards Noida through New Kondli and that they are in possession of illegal smack and if caught, smack can be recovered. All the staff members were informed about the secret information. 4/5 passersby were requested to join the raiding party but none agreed and left without telling their names addresses. Checking of vehicle was started. At about 3.50 p.m, one two wheeler bearing no. DL 7SF 3969 of salety colour on which two persons were riding, seen coming from Khoda side who were stopped by giving signal. The said scooter was being driven by accused Yunus and accused Mohd. Kalu (Since PO) was sitting at the rear seat. Both the accused were told about the information that they were having smack and that their search is to be taken and they were also given an option to search the raiding team members but both the accused refused. SI Rajesh Dangwal prepared a notice u/s 50 NDPS Act and informed that they can give their search in the presence of any Gazetted Officer/Magistrate and that arrangement for the same can be made but they refused. Investigating Officer sent the information to PS through duty officer and that SHO may be sent to the spot. Search of accused Yunus was conducted and from his right side pocket of pant one transparent polythene containing smack was recovered and on FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.2 of 30 search of accused Mohd.Kalu, a transparent polythene containing smack was recovered from his left pocket of pant. SHO also reached at the spot. The recovered smack was weighed on electronic weighing scale and the weight of smack recovered from accused Mohd. Yunus came to be 14 grams and weight of smack recovered to accused Mohd. Kalu came to be known as 12 grams. ACP also reached the spot. It is further the case of the prosecution that 22 grams smack was drawn as sample from the recovered smack and converted into cloth pullandas, the smack recovered from accused Mohd. Yunus was given serial no.1 &2 and smack recovered from accused Mohd. Kalu was given sr. no. 3 and 4. All the pullandas were sealed with the seal of CDS and were seized. Seal after use was handed over to Ct. Om Kumar. Scooter was also seized. SHO had also seized all the four pullandas with the seal of GS. Form FSL was filled and all the pullandas were handed over to SHO. Rukka was prepared and it was sent to PS for the registration of FIR through Ct. Satyaprakash. Case was registered and further investigation was entrusted to ASI Mohinder who reached at the spot and prepared the site plan. He arrested the accused persons, conducted their personal search and recorded their disclosure statements. He prepared the report u/s 57 NDPS Act and sent the same to ACP. He sent the exhibits to FSL. After completion of the investigation, chargesheet was prepared against the accused persons u/s 21 NDPS Act and they were sent to Court for trial.
FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.3 of 30
2. After compliance of section 207 Cr.P.C., charge u/s 21(a) of NDPS Act was framed against both the accused and subsequently, accused Mohd. Yunus was also charged u/s 14 Foreigners Act to which he pleaded not guilty.
3. On 02.08.2006, both the accused did not put in their appearance before the Court and hence, NBWs were issued against them. Thereafter, proceedings u/s 82/83 Cr.P.C were initiated however, same could not be executed, thus on 20.09.2017, case was adjourned sinedie. On 26.04.2018, accused Mohd. Yunus was produced before the court after his arrested vide kalandra u/s 41.1(a) Cr.P.C.
4. In order to prove its case, prosecution examined 7 witnesses. PW1 is ASI Charan Singh, PW3 is ASI Satya Prakash, PW4 is Insp. Rajesh Dangwal. They are the witness of investigation. Thus, these are the witnesses of apprehension of accused and recovery of ganja effected in this case. All the witnesses have deposed more or less the same as stated in para '1' of the Judgment and therefore, the same is not being repeated for the sake of brevity.
5. PW2 is ASI Vijay Kumar. He is the then MHCM. He deposed that Insp. Gajender Singh had deposited four sealed pullandas in the malkhana vide seizure memo and he made relevant entry at sr.no. 1266 Ex.PW2/A. He sent the case property to FSL on FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.4 of 30 24.01.2006 through Ct. Meena Ram vide RC no. 19/21 Ex.PW2/B and acknowledgement is Ex.PW2/C.
6. PW5 is ASI Mange Ram. He is the then Reader to ACP. He produced copy of order no. 681920/HAR/East District dated 25.08.2017 passed by ACP vide which the record has been destroyed i.e.dairy and despatch register upto 30.04.2012, copy of order is Ex.PW5/A and copy of order which has been destroyed is Mark PW5/B. He further stated that the report u/s 57 NDPS Act pertaining to this case is not traceable in the office despite his best efforts and he has lodged NCR Ex.PW5/A in this respect. His request letter is Ex.PW5/B.
7. PW6 is Retired SI Mahender Singh. He is the IInd IO. He reached the spot where accused alongwith papers were handed over to him. He prepared the site plan Ex.PW4/D. He arrested the accused Yunus vide arrest memo Ex.PW1/G, conducted his personal search vide memo Ex.PW1/G1 and recorded his disclosure statement Ex.PW1/G2. He arrested accused Mohd. Kalu vide arrest memo Ex.PW1/H, conducted his personal search vide memo Ex.PW1/H1 and recorded his disclosure statement vide memo Ex.PW1/H2. He deposited the personal search articles and the scooter in malkhana through MHCM. He prepared report u/s 57 NDPS Act Ex.PW6/A and submitted the same to SHO who forwarded the same to ACP. On 24.01.2006, he directed Ct. Meena FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.5 of 30 Ram to deposit the samples to FSL for examination. He collected the FSL result Ex.PW6/B. Carbon copy of the notice recovered from accused Yunus is Ex.P5 and the carbon copy of notice recovered from accused Mohd. Kalu is Ex.P6.
8. PW7 is ASI Meena Ram. He had taken two sealed parcels alongwith FSL form and other necessary documents for depositing the same at FSL Rohini vide RC no.19/21/06 and deposited the same there.
9. Statement of accused u/s 313 Cr.P.C were recorded wherein accused has stated that he is innocent. He has been falsely implicated in this case. He is of Indian origin. His mother and father were Indian. He was born at Medinapur, West Bengal and after his birth, his parents shifted to New Seemapuri at ED Block Jhuggies in the year 1980. The said jhuggies at Seemapuri were burnt and thereafter, they shifted to Yamuna Khadar jhuggies near lohe wala pul, Shantivan, Delhi. The said jhuggies were also destroyed and thereafter, he shifted to the present address. Accused examined himself as DW1 u/s 315 Cr.P.C wherein he has taken the same plea about his being of Indian resident. He produced the copy of his Pan Card Ex.DW1/A, copy of Aadhar Card Ex.DW1/B, copy of D/L Ex.DW1/C, copy of Election Icard Ex.DW1/D, copy of passbook Ex.DW1/E) and GPA Ex.DW1/F. He stated that he was lifted by the police in this case from Seemapuri and taken to PS where he was FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.6 of 30 made to sign certain blank and semi written documents which were converted into the documents of the present case.
10. 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 examined by the prosecution have proved the recovery of 14 grams smack from accused Mohd. Yunus. All the relevant provisions of NDPS Act have been duly complied with. The witnesses have supported the prosecution case. FSL result confirms that the recovered substance was smack. It is therefore, argued that the prosecution has been able to prove its case against the accused.
11. Ld. LAC for accused argued that the case of the prosecution is false and fabricated. Accused Mohd. Yunus was lifted from Seemapuri and falsely implicated in this case. There is no compliance of Section 42 and 50 of NDPS Act in this case. Seizure memo as also the notice u/s 50 NDPS Act bears the FIR number which suggest that documents were prepared after sitting in the PS. No public persons has been associated by the IO at the time of apprehension of accused persons and alleged recovery effected from him. Ld. Counsel has drawn the attention of the Court to the testimonies of all the police witnesses and stated that despite admission of the witnesses regarding availability of public witnesses at the spot, no effort was made to join them in the investigation. It FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.7 of 30 is requested that accused may kindly be acquitted.
12. PW3 HC Charan Singh, PW3 ASI Satyaprakash and PW4 Insp. Rajesh Dangwal are the witnesses of apprehension and recovery on which the prosecution case mainly rests. PW6 ASI Mahender Singh is IInd IO. PW4 Insp. Rajesh Dangwal, the then SI, who is the first Investigating Officer has deposed that on 07.01.2006, he alongwith Ct. Om Kumar, Ct. Satya Prakash and HC Charan Dass were on vehicle checking duty in front of St. Merry School, Mayur Vihar Ph.III and were checking the vehicles. At about 3.30 p.m., one secret informer came and informed him that two persons residents of Bangladesh would come on two wheeler scooter no. DL 7SF 3969 from Khoda Colony and would go towards Noida via Kondli and they would be having smack, if raided can be caught. He requested 45 persons to join the raiding team but they refused. He further deposed that at about 3.50 p.m., two wheeler scooter no.DL 7SF 3969 with two persons riding on it, came and driver was signaled to stop. Accused Mohd. Yunus was driving the scooter. It was stopped. Both the person were overpowered and on interrogation, their names came to be known as Mohd. Yunus and Kalu. They were informed about the secret information and they were also informed about their legal rights that they can be search in the presence of any gazetted officer/magistrate. But they refused vide refusal memo Ex.PW4/A and Ex.PW4/B. PW4 prepared notice u/s 50 NDPS Act which were served upon the accused. Notice FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.8 of 30 served upon accused Mohd. Yunus is Ex.PW1/A and on accused Kallu (since PO) is Ex.PW1/C. Refusal of Mohd. Yunus is Ex.PW1/B and of accused Kallu is Ex.PW1/D. PW4 sent information at the PS to send the SHO. Accused Yunus was searched and one plastic transparent polythene containing brown colour powder was recovered. Similarly, transparent polythene was recovered from accused Kalu. The brown powder recovered from accused Yunus was weighed on electronic weighing scale and it was found to be 14 grams and the brown colour powder recovered from accused Mohd. Kallu was found to be 12 grams. PW4 Insp. Rajesh Dangwal drawn one sample of two grams from transparent polythene containing smack recovered from the possession of the accused Yunus which was converted into cloth parcel and it was given sr.no.2 and remaining smack was also converted into parcel and was given sr.no.1. Similarly, sample was drawn from the recovered brown colour powder from accused Mohd. Kallu and the same was given sr.no.3 and remaining smack parcel was given sr.no.
4. Form FSL was filled at the spot. All the parcels were sealed with the seal of CDS. SHO also reached at the spot and he put his seal of GS on the parcels and FSL form. All the parcels were seized vide memo Ex.PW1/E. Scooter with RC were seized vide memo Ex.PW1/F. All the parcels were taken by SHO to PS and deposited in the malkhana. PW4 prepared tehrir Ex.PW4/C which was handed over to Ct. Satya Prakash who got the case registered. After registration of the case PW3 ASI Mahender reached at the spot, who FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.9 of 30 prepared site plan Ex.PW4/D. He arrested the accused, conducted their personal search and recorded their disclosure statements. Report u/s 57 NDPS Act was prepared and submitted to SHO. Case property was sent to FSL. Similar is the deposition of PW3 ASI Satya Prakash and PW1 HC Charan Singh.
13. In the present case, PW1, PW3 and PW4 were checking the vehicles in front of St. Merry School. They received the secret information at about 3.30 p.m that two persons resident of Bengladesh would come on two wheeler scooter from Khoda Colony and would go towards Noida via Kondli and they would be having smack, if raided can be caught. At 3.50 p.m the said scooter was seen coming, on which two persons were riding and PW4 Insp. Rajesh Dangwal informed the Duty Officer at about 4.05 p.m telephonically to send the SHO and inform the senior police officers in this regard. Ld. Defence Counsel has submitted that there is violation of Section 42 of NDPS Act in as much as PW4 Insp. Rajesh Dangwal did not record "Grounds of Belief" and send to senior officials. Ld. Addl.PP, on the other hand has submitted that there is no violation of Section 42 NDPS Act because PW4 has received the secret information and passed on the same to Duty Officer for information to senior officers.
14. The mandatory nature of the above requirement of law regarding recording of "Grounds of Belief" was explained in FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.10 of 30 Karnail Singh Vs. State of Haryana VI (2009) 8 SCC 539 which is as under: "In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature referred to in Subsection (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.11 of 30 situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total noncompliance of requirements of Subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.12 of 30 the information received, before initiating action, or nonsending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
15. In the present case, secret information was received by PW4 Insp. Rajesh Dangwal and as per his statement, he received the information at about 3.30 p.m and accused came on scooter at about 3.45 p.m. He did not send the information in between the said period. Further, as per statement the accused was apprehended at FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.13 of 30 about 3.45 p.m. Even thereafter, PW4 did not send the information to PS about the apprehension of the accused. PW4 served the notice u/s 50 NDPS Act and after taking their replies on the notices, he informed Duty Officer at about 4.05 p.m telephonically to send the SHO and also to inform the senior officers. PW4 has admitted in cross examination that he did not inform PS or any Sr.Police Officer just after receiving the secret information. He had not noted down the secret information on any paper at the spot. In the present case, though the police officials were checking the vehicles but at the same time they received the secret information about coming of the accused persons. Compliance of section 42 NDPS Act is not required in chance apprehension. But in the present case, since the secret information was received, it was incumbent upon PW4 to record the grounds of belief and send the information to senior officers. There is only verbal evidence in this case that the information was sent to Duty Officer for sending to senior officers. But the prosecution has failed to examine the duty officer who recorded the said information. The prosecution has failed to prove any DD or writing on record which suggest that the secret information was recorded in the PS or copy thereof was sent to any of the senior officer. As per evidence, SHO had come to the spot. But there is no evidence he had received any DD regarding the information. Further, the said SHO has also not been examined by the prosecution. The prosecution has also examined PW5 ASI Mange Ram from the office of ACP but he has also not stated FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.14 of 30 anything about receipt of any DD regarding secret information in the office which was put up before the concerned ACP. In view of the evidence available on record, this Court finds that the provision of Section 42 of NDPS Act have not been complied with in this case.
16. Ld.LAC further argued that there is no compliance of section 50 NDPS Act in this case. Admittedly, an offence committed under NDPS Act is a grave one. Procedural safeguards provided to the accused under a statute require strict compliance. Section 50 NDPS Act provides an extremely valuable right to the concerned person/suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguards contained in Sec. 50 is intended to protect a person against false accusation and frivolous charges, as also to lend creditability to the search and seizure conducted by the empowered officer. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit worthiness to the search and seizure proceeding and it would also strengthen the prosecution case. It is the duty of the empowered officer to inform the concerned person/suspect of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. The prosecution must at the trial establish that the empowered officer had conveyed the information to the concerned person of his/her right of being searched in the presence of a Magistrate or a Gazetted FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.15 of 30 Officer, at the time of the intended search. It is held by the Hon'ble Apex Court in the case of State of Punjab Vs Baldev Singh reported in JT 1999(4) SC 595 that courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Sec. 50 NDPS Act, that no presumption U/s 54 NDPS Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court that the requirements of Sec. 50 were duly complied with. It is held that the safeguard or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Sec. 50 to ensure that persons are only searched with a view to maintain veracity of evidence derived from such search. Severe punishments have been provided under the Act for mere possession of illicit drugs and Narcotics substances. Personal search, more particularly for offences under the NDPS Act are crucial means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Sec. 50 of the Act are observed scrupulously. It was further held that provisions of subsection (1) of Section 50 makes it imperative for the empowered officer to "inform the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a Gazetted officer or a Magistrate and failure to "inform"the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a Gazetted FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.16 of 30 officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a Gazetted officer or a Magistrate, if so required by him.
17. In Vijaysinh Chandubha Jadeja Vs State of Gujarat, 2010(4) LRC 225 (SC) it is observed that the provisions of Sec. 50 NDPS Act are mandatory and noncompliance renders the recovery of illicit article suspect. Thus the non compliance of these provisions is viewed seriously and adverse inference is drawn against the prosecution, particularly, when the accused has denied that he was served any such notice and it has created doubt with regard to the truthfulness of the prosecution witness.
18. It is held by the Hon'ble Apex Court in the judgment of "Vijaysinh Chandubha Jadeja Vs State of Gujarat (supra) as follows: FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.17 of 30 "We are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz., to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.'' It is further held that :
"Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person ( suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.18 of 30 may verify strengthen the prosecution as well. ''
19. Reverting back to the present case in hand, PW4 has deposed that he served notice u/s 50 NDPS Act Ex.PW1/A upon accused Yunus. The said notice reads as under:
"Shrimanji, aap Yunus s/o Shahbuddin r/o Gaon Charkmaar Kanghi, Post Nilusi, thana Shivchar, Jila Madaripur (Bengladesh) aapko suchit kiya jata hai ki aapko aaj St. Merry School ke samne, Mayur Vihar PH.III roka gaya hai, jo aapke pass najayaj smack hone ki itlah hai. Aap mauka per kisi bhi Magistrate athwa Rajpatrit Adhikari ko bulva sakte hai".
20. The above notice does not find mention that any secret information was received or that the accused was given an option to be search in the presence of any Gazetted Officer or Magistrate. The language used in the notice suggest that accused was asked to call the Gazetted Officer or Magistrate. Admittedly, the accused is an illiterate person. The notice u/s 50 NDPS Act does not find mention that accused has been explained the meaning the Gazetted Officer/Magistrate. He has also not been given an option to be taken to Gazetted Officer/Magistrate. In my view, the notice served upon accused does not contain the sufficient information for the accused. The said notice has also not been read over to the accused persons.
FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.19 of 30 Most importantly, the notice u/s 50 NDPS Act has not been witnessed by any witness of the raiding team. It was prepared by SI Rajesh Dangwal and served upon the accused. Since the same has not been witnessed by any member of the team, it seems that no such team was present at the spot and that the notice was not served at the spot and that no other person was available at the time of service of said notice. The notice ExPW1/A allegedly served upon accused bears the FIR number of the present case. The FIR was recorded after service of said notice. There is no explanation as to how the FIR number appears on the said notice Ex.PW1/A. Thus, it seems that the notice was prepared and served after recording of the present case FIR. The evidence is therefore, contradictory and it creates doubt about service of notice at the spot, upon accused in this case.
21. In the present case, prosecution has examined PW5 ASI Mange Ram from the office of ACP to prove report u/s 57 NDPS Act. Perusal of his statement revealed that the diary register vide which the report has been received in the office of ACP has been destroyed. He also could not produce the copy of said report u/s 57 NDPS Act from the office of ACP. However, he produced the copy of NCR Ex.PW5/A which finds mention that the said report has gone missing. Perusal of said NCR Ex.PW5/A reveals that it was lodged on 18.12.2018 i.e. one day prior to the date of recording the evidence of PW5 ASI Mange Ram. PW6 SI Mahender Singh though FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.20 of 30 has stated that he sent report Ex.PW6/A to SHO who forwarded the same to ACP but the copy of the report received in the office of ACP could not be produced and proved by the prosecution in this case. SHO has not been examined. Thus, the link evidence with regard to submission of report u/s 57 NDPS Act is missing and the said report could not be duly proved by the prosecution.
22. Ld. Counsel for the accused stated that the IO of this case has not associated any public witness in this case. However, Ld. Addl.PP stated that there is no need to associate any public witness as the testimonies of police officials are straight forward regarding recovery of smack from the accused. He submitted that testimonies of police officials cannot be disbelieved. Accused was apprehended on the basis of secret information. Admittedly, there is no public witness of recovery effected from the accused and all the recovery witnesses are police officials. The place of apprehension as per site plan Ex.PW4/d is near St. Merry School, Mayur Vihar Ph.III, Delhi. The time of apprehension of accused is 3.50 p.m. PW4 Insp. Rajesh Dangwal deposed that he requested 45 passersby/public persons to join the raiding team after briefing them about the secret information but none agreed and left the place without giving their names and addresses. In cross examination, he has stated that St. Merry School is situated across the road from the spot. The DDA Park is on the Northern side from the spot at the distance of 50 meters and SFS flats are in the Southern side at the FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.21 of 30 distance of about 100 meters from the spot. The spot is a public place. He did not call any public person from the St. Merry School, DDA Park and SFS flats to join the proceedings. PW3 has stated in cross examination that no notice was given to the persons who had refused to join the proceedings as they did not disclose their names and addresses. He admitted that the spot is a public place and public persons were passing through it. He admitted that there are residential houses and flats near the spot. Nobody was called from the residential houses and flats by the IO to join the proceedings. Similar is the deposition of PW1 in cross examination regarding joining of public witnesses. Testimonies of all the police officials shows that the spot is a busy place. It was about 4.00/4.30 p.m when the accused was apprehended. Many public persons used to pass through the spot and admittedly the spot is situated near the school and residential flats. No public witness has been asked to join the proceedings from the residential area. IO even did not serve any notice to any of the residents/passersby. PW3 has clearly stated that nobody was called from the residential houses and flats by the IO to join the proceedings. Accused persons were apprehended at about 4/4.30 p.m. There was enough time and opportunity to join the public persons during recovery of smack. No notice was served to the passersby who refused to join nor any action taken against them on their refusal to join the investigation. Police officials reached at the place of recovery at about 3.30 pm and PW4 stated that he left the said place at about 7.30 p.m. Thus, the police team remained at FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.22 of 30 the spot for about four hours. During this long time, no one from the public was joined though place of apprehension is a residential area. Thus, it appears that no genuine effort was made to join the public persons in the raiding team. 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, it is seen that in the said decision, 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 in either 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.
23. 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 public persons, who fail to join the investigation.
24. 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.
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25. 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 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."
26. Hon'ble High Court in para '21' of the aforesaid Judgment held that it has become almost routine practice for the FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.24 of 30 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.
27. 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 also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.
28. 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 efforts to join them. Hence, nonjoining of public witnesses at the time of recovery creates doubt regarding the entire proceedings being genuine.
29. I have perused the seizure memo Ex.PW1/E. It was prepared by PW4 Insp. Rajesh Dangwal after recovery of alleged smack. The FIR of the present case was registered after recovery and preparation of seizure memo by PW4. However, perusal of seizure memo Ex.PW1/E reveals that it bears the FIR Number with same pen and same handwriting. Seizure memo was prepared by Insp. Rajesh Dangwal before registration of FIR. When the FIR was FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.25 of 30 registered after preparation of seizure memo, it is not understood as to how FIR number bears on the seizure memo. There is no explanation from the prosecution side in this respect. Bearing FIR number on the seizure memo of smack creates doubt about some manipulation in this case.
30. The prosecution has seized scooter no. DL 7SF 3969 in this case alongwith RC of the scooter. RC was seized vide seizure memo Ex.PW1/F. The said RC is on record. Perusal of the same revealed that the said scooter was in the name of some Kishan Anand. Thus, the said scooter does not belong to accused Yunus or his associate Mohd. Kallu (since PO). No witness has been examined by the prosecution to prove the ownership of the scooter. It has also not been brought on record as to whether the said scooter was stolen one or otherwise. The scooter has also not been produced before the Court. Perusal of the record reveals that it has yet not been released to its rightful owner on superdari. Thus, the apprehension of accused while traveling on the said scooter is doubtful.
31. Another interesting point to be taken note of is that IO had seized the brown colour powder which was smack. In cross examination, PW1 ASI Charan Dass, in cross examination has stated that IO had not conducted the test at the spot to establish that the recovered contraband was smack. PW4 Insp.Rajesh Dangwal, FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.26 of 30 who is the IO of this case has himself stated in cross examination that he was not having field testing kit. When IO was not having field testing kit, it is not understandable as to how he came to know that the recovered contraband was smack. PW4 has not deposed that he had received any training to identity the contraband/smack on the basis of smell or regarding testing the smack. Thus, he assumed the substance to be smack without testing it with field testing kit at the spot. It is not understood how could he ascertained without testing that the recovered material was smack. The powder recovered at the spot was not tested with field testing kit. Ownership of scooter seized could not be established.
32. In the present case, PW3 has failed to associate any public witness during apprehension and recovery from the accused. There is no proper compliance of Section 42/50 and Section 57 NDPS Act. Seizure memo/Notice u/s 50 NDPS Act bears the FIR number while the FIR was recorded after preparation of the said seizure memo.
33. 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 FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.27 of 30 cautious and careful in adjudicating the cases pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of statutory safeguards available to the accused.
34. 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.
35. In the present case, charge u/s 14A of Foreigners Act has also been framed against the accused. Perusal of the charge sheet revealed that accused is Bengladesh National. This is the only evidence against the accused about his being Foreigner. The prosecution has failed to bring on record any document to show that the accused belongs to Bengladesh. PW1 in cross examination has stated that IO did not contact the officials of Embassy in his presence and PW4 who is the IO of this case has stated that he had not given any notice to the accused to produce the proof of his Indian residence. Thus, the prosecution has not made any effort to collect the residence proof of the accused to establish that he belong to Bangladesh. In the present case, NBWs as also proceedings u/s 82/83 Cr.P.C have been initiated against the accused several times at his alleged Bengladesh address through Ministry of External Affairs but the same have not been received back. In his statement u/s 313 FIR No. 09/2006 State Vs. Mohd. Yunus etc Page No.28 of 30 Cr.P.C, accused has stated that he is of Indian Origin. His mother and father were Indian. He was born in Medinapur, West Bengal and after birth, his parents shifted to New Seemapuri at ED Block jhuggies in the year 1980. The said jhuggies were burnt and thereafter, they shifted to Yamuna Khadar Jhuggies near lohe wala pul, Shantivan, Delhi. The said juggies were destroyed and thereafter, he shifted to his present address i.e. E82, Road No. 64, H.No.93 Shanti Kusht Ashram, Sunder Nagri, Delhi. Accused has also examined himself as DW1 u/s 315 Cr.P.C. As DW1, he brought on record, the copy of his PAN Card Ex.DW1/A, copy of Aadhar Card Ex.DW1/B, copy of driving licence Ex.DW1/C, copy of election Icard Ex.DW1/D, copy of his passbook Ex.DW1/E, copy of GPA in his favour Ex.PW1/F. Perusal of the said documents show that accused is the resident of Delhi. Accused though has admitted in his statement u/s 313 Cr.P.C that he was born in Medinapur, West Bengal but at the same time, he has stated that after his birth, his parents shifted to New Seemapuri, Delhi. The prosecution could not produce any document to show that accused belong to Bangladesh. However, accused has sufficiently proved by way of producing documents Ex.DW1/A to Ex.DW1/F that he is Indian resident. Thus, the prosecution has failed to prove that accused had contravened the provisions of Foreigners Act. In view of the above, prosecution has failed to prove the charge u/s 14A of the Foreigners Act against the accused.
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36. In view of the aforesaid discussions, it is held that the case of the prosecution is doubtful. It is well settled law that benefit of doubt is always given to the accused. Accused Mohd. Yunus is accordingly acquitted. However, he shall furnish personal bonds in the sum of Rs.20,000/ with a surety of the like amount u/s 437A Cr.P.C.
File be consigned to record room after the requisite bond is furnished with liberty to the prosecution to revive the same as and when coaccused Mohd.Kallu is rearrested or surrenders.
Digitally signed byAnnounced in the open AJAY AJAY GUPTA
Location: Karkardooma
Court
court on 18.01.2019.
GUPTA Date: 2019.01.18
16:22:03 +0530
(AJAY GUPTA)
Addl. Sessions Judge02(East)
Special Judge (NDPS)
KKD COURTS, DELHI.
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