Delhi District Court
State vs Renu on 9 October, 2019
IN THE COURT OF SH. AJAY GUPTA, SPL. JUDGE (NDPS)/EAST
KARKARDOOMA COURTS, DELHI
SC No.309/18
FIR No.471/17
U/s 21(b) NDPS Act
PS Mayur Vihar
State Versus Renu
W/o Late Rajender @ Mangal
R/o H.No.32/206, Trilokpuri,
Delhi110091
Date of Institution 12.02.2018
Arguments heard 18.09.2019
Date of order 09.10.2019
JUDGMENT
1. The prosecution case, in brief, is that on 27.12.2017, SI Vijay Kumar, HC Tej Singh, W/HC Raj Kumari and Ct. Arun Kumar were on patrolling duty and at about 9 am, when they reached at Madina Masjid, 32 Blocks, Trilokpuri, Delhi, one secret informer came there and informed SI Vijay Kumar that one lady namely Talla who used to sell smack and now wife of son of said lady is selling smack to passersby in the gali in front of her house and huge quantity of pudia of smack can be recovered. SI Vijay Kumar reduced the said information into writing in compliance of section 42.2 NDPS Act and told the SHO about the said information telephonically. After informing senior officer, SHO directed SI Vijay Kumar to take necessary action. Then SI Vijay Kumar FIR No.471/17 State vs Renu 1 of 26 requested 45 passersby to join the raiding party but none agreed. Thereafter, SI Vijay Kumar constituted a raiding party comprising members of patrolling team and secret informer was also associated in the raiding team and at about 9.35 am when they saw in the gali from the side of the wall, one lady was found sitting in front of house No.32/206. The secret informer pointed out towards that lady upon which SI Vijay Kumar apprehended the said lady with the help of W/HC Raj Kumar and on interrogation, the name of said lady came to know as Renu w/o late Sh. Rajender @ Mangal r/o 32/206, Trilokpuri, Delhi. SI Vijay Kumar informed Renu about secret information that she was selling smack to the passersby in front her house. Thereafter, SI Vijay Kumar prepared a notice u/s 50 NDPS Act, gave it to her and also informed that she might be in possession of huge quantity of smack. The said lady was also explained about her legal right that her search can be taken in the presence of Gazetted Officer or a Magistrate or that she can take search of the raiding team members prior to her search if she so desired but she refused. Since, she was less educated, her reply was written by W/HC Raj Kumari on her dictation on the carbon copy of the notice u/s 50 NDPS Act. Thereafter, W/HC Raj Kumari took personal search of the said lady by the side of the wall keeping in view the modesty of the said lady. The said lady was wearing suit at that time and in her personal search, two bundles of puria from bra under her wearing suit were recovered and both the bundles were tied with rubber band. On checking the one bundle, 20 purias and in another bundle 26 purias were found, out of which two purias were opened, checked and same were found containing brown colour powder. On smelling the said FIR No.471/17 State vs Renu 2 of 26 brown colour powder was found to be smack. Thereafter, all purias were checked and same were found containing same brown colour powder. Thereafter, electronic weighing scale was brought through HC Tej Singh, recovered contraband/smack was weighed and its weight was found to be 21 grams out of which 22 grams two samples were drawn and kept in two small transparent polythenes which were converted into cloth parcels and marked as S1 and S2. Remaining smack was kept in a transparent polythene which was converted into cloth parcel and it was marked as A1. The 46 papers used for making purias of smack were also converted into cloth parcel and it was marked as A2. All four pullandas were sealed with the seal of VK. FSL form was filled up at the spot. The accused was also having printed blueyellow cloth purse in her hand at that time and on checking the same, cash Rs.600/ (2x200+2x100) was recovered which was kept in the same purse and converted into cloth parcel which was marked as P1. The pullanda of purse was also sealed with the seal of VK thereafter, all pullandas were seized. Thereafter, SI Vijay Kumar got registered the present FIR u/s 21/61/85 of NDPS Act and further investigation of the case was entrusted to SI Sanjeev Kumar. After registration of the case, SI Sanjeev Kumar, the IO of the case, reached at the spot, prepared site plan at the instance of SI Vijay Kumar, interrogated accused, arrested her in the present case, recorded statement of witnesses and produced the accused before the court concerned from where she was sent to JC. Thereafter, exhibits were got deposited in FSL Rohini on 16.01.2018. Pending FSL result, chargesheet was prepared against the accused u/s 21/61/85 of NDPS Act and filed before the court.
FIR No.471/17 State vs Renu 3 of 26
2. On 21.07.2018, FSL result was filed on record. As per FSL result, exhibits A2, S1 and S2 were found to contain 'Diacetylmorphine', '6 monoacetylmrphine', 'caffeine' and 'acetylcodeine'.
3. After compliance of section 207 Cr.P.C., a charge u/s 21(b) of NDPS Act was framed on 31.01.2019 against the accused to which she pleaded not guilty.
4. In order to prove its case, the prosecution examined ten witnesses.
(4.1) PW1 Ct. Arun Kumar, PW3 W/HC Raj Kumari and PW5 HC Tej Singh are recovery witnesses. PW3 and PW5 deposed more or less on the similar lines of 1st par of the order. PW1 Ct. Arun Kumar supported the prosecution case to some extent and turned hostile on some material aspects.
(4.2) PW2 is HC Ajay Kumar(No.849/East), the MHC(M) who deposed that on 27.12.2017, SHO called him in his office alongwith register no.19 and produced him four sealed parcels sealed with the seal of VK and MKS alongwilth FSL form, carbon copy of seizure memo. Thereafter, he deposited the aforesaid articles in Malkhana and made relevant entry at sr. no.2771 in this regard and said entry was also initialed by the SHO. Copy of the entry is Ex.PW2/A (colly.). PW2 further deposed that on the same day, SI Sanjeev deposited the personal search articles of accused i.e. notice u/s 50 NDPS Act in the Malkhana against above mentioned serial number. PW2 also deposed that on 16.01.2018, on the directions of IO, he handed over three sealed parcels sealed with the seal of VK and MKS to Ct. Surender FIR No.471/17 State vs Renu 4 of 26 alongwith forwarding letter and FSL form for depositing the same at FSL Rohini, who deposited the same in FSL vide copy of RC Ex.PW2/B and copy of acknowledgement Ex.PW2/C. (4.3) PW4 HC Ajay is the Duty Officer, who lodged the present FIR, copy of which is Ex.PW4/A. (4.4) PW6 is Ct. Surender Kumar who deposited the sample parcel Mark A with FSL Rohini.
(4.5) PW7 is Inspector Manoj Kumar Sharma. This witness deposed that on 27.12.2017, PW8 SI Vijay Kumar had informed that he had received information that accused was selling smack to public persons in the gali at 32 Block, Trilokpuri, Delhi and he directed him to take necessary action. PW7 further deposed that at about 11.40 am, PW1 Ct. Arun came to office and handed him over five sealed parcels, sealed with the seal of VK along with copy of seizure memo, FSL form and notice u/s 42.2 NDPS Act Mark X and he forwarded the said notice to ACP concerned. He also checked the parcels, put his seal of MKS on the said parcels and FSL form, inquired about the FIR Number from DO and put the same on parcels and documents. Thereafter, he called the MHCM/PW2 HC Ajay and handed over all the parcels and documents to PW for depositing the same in Malkhana through MHCM who made relevant entries in this regard. PW7 further deposed that on 28.12.2017, PW8 SI Sanjeev Kumar produced report u/s 57 NDPS Act Mark X1 before him and he forwarded the same to forwarded the same to ACP concerned.
FIR No.471/17 State vs Renu 5 of 26 (4.6) PW8 is SI Vijay Kumar, the 1st IO who was heading the raiding team. This witness has deposed more or less on the same lines of the facts discussed in para no.1.
(4.7) PW9 is SI Sanjeev Kumar, the 2nd IO of the case, who, after assignment of further investigation of the case, reached the spot, prepared site plan Ex.PW9/A, conducted further investigation of the case arrested the accused, prepared necessary documents filed the chargesheet after completion of investigation and later on he collected FSL result Ex.PX and filed the same on record.
(4.8) PW10 is HC Ram Karan Tiwari, the then Reader to ACP. This witness deposed that on 27.12.2017, DD No.9B prepared by SI Vijay Kumar and forwarded by Inspector Manou, was also received through daak which was diaried at sl. no.5568 and was produced before ACP who had seen and signed the same. The copy of the said DD is Ex.PW10/A and copy of relevant entry is Ex.PW10/B. PW10 further deposed that on 28.12.2017, report u/s 57 NDPS Act regarding seizure of 21 grams smack prepared by SI Sanjeev was received in the office through Dak which was diaried in register concerned at sl. no.5604 and was produced before the ACP who had seen and signed the same. The copy of relevant entry is Ex.PW10/C and said report is Ex.PW10/D.
5. Statement of accused u/s 313 Cr.P.C was recorded wherein she pleaded her innocence and stated that she is innocent and has been falsely implicated in this case after lifting her from her house. No recovery has been effected from him and whatever has been shown, FIR No.471/17 State vs Renu 6 of 26 the same has been planted upon her by the police.
6. 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 PW1 Ct. Arun Kumar, P W3 W/HC Raj Kumari and PW5 HC Tej Singh examined by the prosecution have proved the recovery of 21 grams smack 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 one of the recovery witness i.e. PW1 Ct. Arun 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 smack. 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.
7. 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 four material witnesses including PW8 SI Vijay Kumar, the 1 st IO, out of which PW1 has not supported the prosecution case on some material aspects and turned hostile. Nothing was recovered from the possession of the accused and she has been falsely implicated in this case after lifting her from her house. 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 FIR No.471/17 State vs Renu 7 of 26 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 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.
8. PW1 Ct. Arun Kumar, PW3 W/HC Raj Kumari and PW5 HC Tej Singh are the witnesses of recovery on which the prosecution case mainly rests. PW8 SI Vijay Kumar is also the recovery witness as well as the 1st IO of the case. PW8 SI Sanjeev Kumar is the 2 nd IO to whom the further investigation was entrusted. PW1 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 his crossexamination done by Ld. Addl. PP for the state, PW1 has supported the suggestions put to him yet his testimony cannot be given much weightage because he has turned hostile on the material aspects i.e. apprising the accused by SI Vijay Kumar regarding receipt of secret information, preparation of notice u/s 50 NDPS Act and its signing by accused, serial number given to pullanda of remaining FIR No.471/17 State vs Renu 8 of 26 smack and pullanda of empty papers of purias, recovery of cloth purse containing cash Rs.600/ from possession of accused, handing over of notice u/s 42.2 NDPS Act to him as well as recovery of original notice u/s 50 NDPS Act by W/HC Raj Kumari from the personal search of accused. 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 27.12.2017 with alleged contraband and PW1 was examined on 07.03.2019 and thus, it cannot be assumed from PW1 who was member of patrolling team/recovery witness would forget material aspects in such a short span of time. This fact shows that either PW1 was not on patrolling duty 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, PW1 stated that they had started from PS for patrolling at about 6.15 am on foot and they were in civil dress while in her crossexamination, PW3 categorically stated that she along with other members of patrolling team had departed from the PS on that day at about 8 am. PW3 further deposed that they all were in uniform. In his crossexamination, PW9 also deposed that when he reached at the spot, police officials who were already present at the spot, were in civil clothes. Conversely, PW4 testified that PW1 Ct. Arun was in uniform when he received the rukka from him. PW3 also deposed that she was on govt. motorcycle being driven by Ct. Arun Kumar and the other police officials were on one motorcycle. In view of aforesaid discussions, it is held that the testimony of PW1 is not FIR No.471/17 State vs Renu 9 of 26 reliable.
9. PW3 W/HC Raj Kumari, PW5 HC Tej Singh and PW8 SI Vijay Kumar are the recovery witnesses. PW8 was also heading the patrolling team. All these three witnesses reiterated the facts of the case. PW8 deposed that on 27.12.2017, he along with HC Tej Singh, W/HC Raj Kumari and Ct. Arun Kumar left PS for patrolling in the area of Trilokpuri at about 6.15 am vide DD no.9B Ex.PW8/A. At about 9.00 am, when they reached near Madina Masjid, 32 Block, Trilokpuri, one secret informer came and informed PW8 that accused was selling smack in front of her house no.32/206 in Trolokpuri, Delhi. PW8 deposed that he noted down the said information on a plain paper in compliance of section 42.2 NDPS Act (Ex.PW10/A) and informed about the same to SHO telephonically. PW8 further deposed that SHO Inspector Manoj Kumar Sharma directed him to take necessary action and thereafter, he requested 45 public persons/passersby to join the raiding team after informing them about the information but none agreed giving their respective reasons. PW8 further deposed that he prepared a raiding team including himself, aforesaid staffs along with secret informer and reached near house No.32/206 and they all hided themselves by the side of wall there. The witnesses further deposed that the secret informer pointed out towards a lady i.e. accused who was sitting in front of house no.32/206 and left the spot. Thereafter, they all reached the said house no.32/206 and PW3 W/HC Raj Kumari apprehended the accused PW8 interrogated the accused and her name was known as Renu. The witnesses further deposed that PW8 prepared a notice u/s FIR No.471/17 State vs Renu 10 of 26 50 NDPS Act and gave carbon copy of notice Ex.PW1/D to accused stating that her search was to be conducted and she was also apprised of her legal right that her search can be taken in the presence of Gazetted Officer or Magistrate if she desired and that she can also take search of the team members prior to her search but she refused for the same. The witnesses further deposed that accused had requested that she was less literate and she was unable to write her reply and then on the direction of PW8, PW3 wrote the reply of the accused Ex.PW1/E on the carbon copy of the notice, on the dictation of the accused. The witnesses further deposed that PW3 took the accused by the side of the wall and personally searched the accused who was wearing a suit salwar at that time and informed PW8 about recovery of two bundles of purias from under bra and suit of accused and both the bundles were tied with rubber band. PW3 also informed that accused was also having one purse (printed multicolour yellow, blue black) and on checking, it was found containing Rs.600/ which was stated to be sale proceeds of smack. The witness further deposed that purias were counted and from one of the bundles, 20 purias were found and from the second bundle, 26 purias were found. Thereafter, PW8 opened two purias which were found containing brown colour powder and on smelling, same was found to be smack. The witnesses further deposed that PW5 HC Tej Singh was directed to bring electronic weighing scale and he had brought the same from nearby market and thereafter, PW8 put the smack contained in the purias on a blank paper, weighed the same and its weight was found to be 21 grams out of which two samples of 2 grams each were drawn and the same were kept in two small FIR No.471/17 State vs Renu 11 of 26 transparent polythene which were converted into cloth parcels which were marked as S1 and S2. Remaining 17 grams smack was kept in a transparent polythene and it was also converted into cloth parcel and it was given Mark A1. The 46 papers used for making purias of smack were also converted into cloth parcel and it was also given Mark A2. FSL form was filled up at the spot. All the parcels and FSL form were sealed with the seal of VK. The purse containing Rs.600/ was also converted into a cloth parcel and it was also sealed with the seal of VK and it was given Mark P1. The witness further deposed that PW8 seized the said parcels and FSL form vide seizure memo Ex.PW1/A, prepared rukka Ex.PW8/B and handed over to PW1 Ct. Arun Kumar along with carbon copy of seizure memo, FSL form, notice u/s 42.2 NDSP Act and all the sealed parcels with the direction to hand over the rukka to DO and remaining articles to SHO for necessary action. After registration of the case, PW1 Ct. Arun along with PW9 SI Sanjeev Kumar to whom further investigation of the case was marked, came at the spot. The witnesses further deposed that PW8 briefed PW9 and handed over all the documents prepared along with accused. Thereafter, PW9 interrogated accused, prepared site plan Ex.PW9/A at the instance of PW8.
10.PW9 is SI Sanjeev Kumar, the second IO of the case. This witness deposed that on 27.12.2017, after the investigation of the present case was marked to him, he along with PW1 Ct. Arun Kumar went to the spot where PW8 SI Vijay Kumar, PW3 WHC Raj Kumari and PW5 HC Tej Singh and accused were found there. PW9 further deposed that PW8 FIR No.471/17 State vs Renu 12 of 26 handed over the documents of the present case and narrated the facts of the case. Thereafter, PW9 prepared site plan at the instance of PW8, arrested the accused at about 12.50 pm vide arrest memo Ex.PW1/B, got conducted her personal search through PW3 vide memo Ex.PW3/F in which original notice u/s 50 NDPS Ex.P6 was recovered and he also recorded disclosure statement of accused Ex.PW1/C. Thereafter, accused was taken to LBS Hospital for her medical examination and after her medical examination, she was produced before the Ld. Duty MM from where she was sent to JC. On 28.12.2017, he prepared report u/s 57 NDPS Mark X1 and produced the same before the SHO. The witness further deposed that on 16.01.2018, exhibits of the present case were got deposited in the FSL Rohini through Ct. Surender. After completion of the investigation, he prepared chargesheet and filed before the court. Later on FSL result Ex.PW10/D was obtained and same was filed on record.
11.The present case is based on secret information. However, compliance of section 42 NDPS Act and receipt of secret information appear to be doubtful. As per prosecution case, 27.12.2017, PW1 Ct. Arun Kumar, PW3 W/HC Raj Kumari, PW5 HC Tej Singh and PW8 SI Vijay Kumar were on patrolling duty in the area of Trilokpuri and PW8 was heading the patrolling team. According to PW1, PW3, PW5 and PW8, at about 9 am when they reached near Madina Masjit, secret informer came and informed PW8 about the selling of smack by the accused in front of her house. However, there are major contradiction regarding receipt of secret information on 27.12.2017 by PW8. Though, the testimony of FIR No.471/17 State vs Renu 13 of 26 PW1, PW3, PW5 and PW8 qua receipt of secret information is in consonance with each other yet date and time of receipt of secret information is doubtful because in her crossexamination, PW3 has categorically stated that there was prior information that somebody was selling smack. Thus, receipt of secret information is very doubtful. Likewise, as per recovery witnesses, on 27.12.2017, they were on patrolling duty and they left the PS for patrolling and in this regard DD No.9B Ex.PW8/A was lodged in the PS. As per DD Ex.PW8/A, two patrolling teams were constituted and one team was consisting of SI Vijay Kumar, HC Tej Singh, W/HC Raj Kumar and Ct. Arun and surprisingly other team was consisting of SI Vijay Kumar, ASI Dinesh Tyagi, Ct. Kapil and W/Ct. Vinita. It is not clear whether same SI Vijay Kumar was heading both raiding team. It is also not clear whether there was another SI in the name of Vijay Kumar. PIS number of SI Vijay Kumar is also not mentioned which could clear that either there were two SI in the name of Vijay Kumar or there was only one SI namely Vijay Kumar who was heading both raiding team. Thus, either statements of recovery witnesses are incorrect or document Ex.PW8/A is false and fabricated document. Further, there are contradictions regarding departure of patrolling team from the PS as well as mode of vehicle and their uniforms. PW1, PW5 and PW8 deposed that they left the PS at about 6.15 am while PW3 categorically stated that patrolling team had left the PS at about 8 am. Similarly, as per PW3, she was on govt. motorcycle being driven by PW1 and other members were on private motorcycle and all the members were in uniform while other witnesses deposed that they were on foot and in civil cloths. All these FIR No.471/17 State vs Renu 14 of 26 facts indicate that the recovery witnesses were not on patrolling duty as stated by them or statement of PW3 or of other recovery witnesses is incorrect.
12. Ld. Defence counsel submitted that there are major contradictions in the testimony of prosecution witnesses and no public witness was joined in this case despite ample opportunity and therefore, testimony of prosecution witness is not reliable. On the other hand, 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 smack 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 contradiction in the testimony of recovery witnesses and specially for the reasons that no public witness was joined despite opportunity. As per prosecution case, on 27.12.2017 at about 9.35 pm, accused was apprehended in front of her house and two bundles, one containing 20 purias of smacks and another containing 26 purias of smacks were recovered. It is already discussed in preceding para that there are major contradictions in the testimony of recovery witnesses. In such circumstances, joining of public witness to the investigation either before recovery or after recovery of the contraband from the possession of the accused, became imperative, however, no public witness was joined by either of the IO. Admittedly the place of apprehension of accused, is surrounded by residential areas and public persons were passing through. In his crossexamination, PW1 clearly stated that 57 FIR No.471/17 State vs Renu 15 of 26 public persons had gathered at the spot at the time of apprehension of accused but he cannot tell if those persons were requested by the IO to join the proceedings. It is very surprising that PW1 was at the spot and accused was apprehended in his presence at the spot despite that he did not give specific answer which shows that either he was not present at the spot or accused was not apprehended in his presence. Though, PW3, PW5 and PW8 deposed that PW8 requested some 45 public persons to join the investigation but none agreed, however, this statement does not inspire any confidence. From the statement of witnesses, it appears that no sincere effort was made either by the 1 st IO or by the second IO. Admittedly, after recovery, all these witnesses remained at the spot for more than three hours and proceedings were conducted at the spot and thus, PW8 had ample opportunity to join public witness or resident of the locality to join the investigation.
13.From the statement of recovery witnesses as well as the 2 nd IO, it is clear that they did not make sincere effort 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 public place. 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, in the said case, Hon'ble Supreme Court emphasized that it has to be shown that after FIR No.471/17 State vs Renu 16 of 26 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.
14.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.
15.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.
16.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 FIR No.471/17 State vs Renu 17 of 26 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."
17.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.
18.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.
19.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.
20.There is contradiction regarding time when PW1 Ct. Arun left with rukka and came at the spot. As per PW4 HC Ajay (No.549/East), PW1 Ct. Arun came to him at about 11.25 am with rukka for registration of FIR while PW3 deposed that PW3 left the spot at about 11.30 am with rukka for registration of the case. Likewise, in his crossexamination, PW5 FIR No.471/17 State vs Renu 18 of 26 ironically stated that PW1 left the spot with rukka at about 11.15 am and returned to the spot after registration of the case at about 11.30 am while PW1 Ct. Arun Kumar who took rukka for registration of the case, deposed that he left the spot along with rukka at about 11.20 am and reached the spot within 20 minutes. Thus, it is clear that the testimony of recovery witness as leaving of PW1 from the spot with rukka is not in consonance with each other which again show that either the statement of recovery witnesses is incorrect or writing work was done in presence of recovery witnesses.
21.The search, seizure and weighing of contraband band allegedly recovered from the possession of the accused, are also doubtful. As per recovery witnesses, after recovery of contraband, PW5 HC Tej singh was directed to bring weighing scale. PW1, PW3 and PW8 deposed that they were not aware as to from where, PW5 brought the weighing scale. Surprisingly, the recovered contraband was weighed and samples were prepared in the presence of raiding team members but PW1 and PW3 deposed that they do not remember the colour, make and size of weighing scale. Even PW5 HC Tej Singh who brought the said weighing scale, deposed that he did not remember the colour, make and size of weighing scale. All these facts again show that either PW1, PW3 and PW5 were not present at the time of weighing and sealing of the contraband or that the weighing and sealing was done in PS because only PW8 deposed about the colour of weighing scale that it was of white and blue colour and he also failed to disclose the make, capacity and size of weighing scale.
FIR No.471/17 State vs Renu 19 of 26
22. The production of case property and its deposit in malkhana also appear to be doubtful. As per PW7 Inspector Manoj Kumar Sharma, on 27.12.2017, at about 11.40 am, PW1 Ct. Arun produced five sealed parces sealed with the seal of VK along with copy of seizure memo, notice u/s 42.2 NDPS Act and FSL form then he checked the same and put his seal of MKS and particulars of the case and thereafter he got deposited the same in Malkhana through MHCM. Conversly, PW2/MHCM HC Ajay (No.849/East) deposed that on 27.12.2017, the SHO had handed him over four sealed parcels sealed with the same seal seal of VK and MKS along with FSL form, carbon copy of seizure memo which was deposited by him in Malkhana against entry no.2771. Thus, is major contradiction regarding number of pullandas deposited in Malkhana. Copy of the said entry is brought on record as Ex.PW2/A. Perusal of the said entry shows that this entry is merely a repetition of the contents of seizure memo and it doesn't mention about the deposit of any pullanda, FSL form and copy of seizure memo. There is no discussion that FSL form was deposited with the MHCM and same was sent to FSL for authentication of seal. There is no discussion about the number of pullandas deposited. It is also not mentioned that in fact pullands were also having seal of MKS. It is not mentioned either in the register no.19 or in the road certificate that FSL form was deposited and sent to FSL. Further from the document Ex.PW2/A, it appears that pullanda were deposited by PW8 because the column meant for date and name of depositor bears the name of PW8 SI Vijay Kumar and not of SHO concerned. Same is the situation qua deposit of personal search articles in Malkhana. As per MHCM/PW2, SI Sanjeev handed FIR No.471/17 State vs Renu 20 of 26 over him personal search articles of accused and he deposited the same in Malkhana and made relevant entry, however, from the document Ex.PW2/A, it is clear that personal search articles were deposited by SI Vijay and not by SI Sanjeev. As such, it is held that the compliance of section 55 of NDPS Act has not been done properly.
23.Further, there is contradiction regarding the same pullandas which were sent to FSL for expert opinion. As per PW2 HC Ajay, on 16.01.2018, on the direction of IO, he handed over three sealed parcels sealed with the seal of VK and MKS to Ct. Surender for depositing the same to FSL Rohin while PW6 Ct. Surender Kumar deposed that he collected three sealed pullandas Mark S1, S2 and S3 sealed with the seal of VK. Even Copy of RC Ex.PW2/B shows that three pullandas i.e. S1, S2 and S3 having seal of VK were sent to FSL, however, as per FSL result Ex.PX, three sealed parcels i.e. S1, S2 and A2 having seals of VK and one seal of MKS on each parcels were received. In such circumstances, it cannot be assumed that the sample pullandas sent to FSL are the same pullandas which were drawn from the contraband allegedly recovered from the possession of the accused. All these facts create doubt regarding deposit of case property in malkhana as well as with FSL. It is also clear from copy of RC Ex.PW2/B only pullandas were sent and FSL form was not sent to FSL for authentication of seal. It is well settled law that in case FSL form is not deposited in the Malkhana or with the FSL, the case of the prosecution will be highly doubtful. In the case of Radha Kishna Vs. State, 87(2000) DLT 106, High Court has explained the importance of ensuring that the FSL form is duly sent with sample FIR No.471/17 State vs Renu 21 of 26 for testing. In para '26' of the Judgment, it was explained : It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central Forensic Science Laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instance case, this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/police station".
In Radha Kishan, after referring to Delhi High Court Rules, Part III Chapter 18B, regarding proper proof of custody of articles, it was held by this Court that the evidence of preparation and dispatch of the FSL form was critical for ensuring that the sealed sample was kept intact in the police malkhana. An adverse inference would be drawn against the prosecution in the event the FSL form was not proved to have been prepared and dispatched. To the same effect are the judgments in Moolchand and Phool Kumar. Further, it has been held in Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT 577, that oral evidence which is contrary to the documentary evidence ought not to be relied upon. In the instant case, despite the prosecution witnesses asserting that the FSL form was prepared, not only is the FSL form unavailable on the record but the photocopies of the store room register and road certificate throw considerable doubts whether the FSL form was in fact prepared and dispatched. These documents are unreliable. For the above reasons, it is held that in the instant case the noncompliance with the mandatory requirement of preparation and dispatch of the FSL FIR No.471/17 State vs Renu 22 of 26 form with the sample sent for testing is fatal to the case of the prosecution.
24. Further, there is delay in sending the exhibits to FSL for expert opinion. In the present case, recovery was effected on 27.12.2017, however, samples were sent to FSL through PW6 Ct. Surender on 16.01.2018. The samples were sent to FSL after about 21 days. Hon'ble High Court in the case of Matlub Vs. State 67(1997) DLT 372 held that sample needs to be sent to FSL without delay and if samples are dispatched with delay and no explanation is given, tampering with the seal can be inferred. IO has not explained the reason of delay in sending the exhibits to FSL. Furthermore, it is already held that there is major contradiction qua seal impression affixed on the samples which were sent to FSL. As per PW6 and copy of RC Ex.PW2/B, the samples which were sent to FSL were having seal of VK while as per FSL result, the samples were having seal of VK and MKS. In these circumstances, the delay in sending the case property to FSL without any valid reason, creates doubt over the handling of samples and chances of tampering of the sample parcels cannot be ruled out.
25. Arrest as well as arrest memo Ex.PW1/B also appears to be doubtful as arrest memo Ex.PW1/B appears to have been prepared without following the relevant guidelines in regard thereto. As per prosecution witnesses, accused was apprehended in front of her house and at that time, some public persons had gathered there but none of the witnesses deposed as to whom information of arrest was given. In his crossexamination, PW9 SI Sanjeev who caused arrest of the accused, FIR No.471/17 State vs Renu 23 of 26 has clearly stated that he does not remember who was informed regarding arrest of the accused. Same is the reply of PW1, PW3 and PW5. Thus, it is clear that information of arrest was not given to family members of the accused in compliance of necessary guidelines. There is further contradiction in the testimony of prosecution witnesses. As per prosecution witnesses, accused was apprehended in front of her house and stayed there for about three hours during writing work but none of the witnesses disclosed the colour of house of accused and they simply deposed that they do not remember the colour of the house. Similarly, in his crossexamination, PW8 deposed that written work was done while sitting on pavement while PW3 and PW5 stated that writing work was done while sitting on stone. All these facts again create doubt apprehension of accused at the spot as well as arrest proceedings allegedly conducted there.
26.Ld. Defence Counsel has cited the case laws reported as Arif Khan @ Agha Khan Vs. State of Uttranchal, IV(2018) SLT 32 SC and Dharambir 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. Thus, in view of settled law, FIR No.471/17 State vs Renu 24 of 26 it is held that the compliance of section 50 NDPS Act has not been made.
27. 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 fine tuning between the interest of society and protection of statutory safeguards available to the accused.
28. 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.
29. 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."
FIR No.471/17 State vs Renu 25 of 26
30.In view of the aforesaid discussions, the case of the prosecution is highly doubtful. It is well settled law that benefit of doubt is always given to the accused. Accused is accordingly acquitted of charges leveled with. The accused shall furnish a personal bond in the sum of Rs.10,000/ with one surety of the like amount u/s 437A Cr.P.C. File be consigned to record room after the requisite bond is furnished.
AJAY Digitally signed by AJAY
GUPTA
Location: Delhi
GUPTA Date: 2019.10.09
16:26:04 +0530
(Ajay Gupta)
Special Judge(NDPS)
KKD/East/Delhi
Announced in open
court on 09.10.2019
FIR No.471/17 State vs Renu 26 of 26