Delhi District Court
State vs Avijit Biswas on 5 September, 2014
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
State Versus Avijit Biswas
S/o Late Sh Sunil Biswas
R/o H. No. 109, Gali No. 13
Chhuria Mohalla, Near Masjid
Bengali Colony
Tuglakabad Village
Govind Puri, New Delhi
Permanent Address:
Village Horipur
P.O. Najirpur, PS Tacto
District Kishan Nagar
West Bengal
SC No.29A/12
FIR No. 510/11
U/S: 20 NDPS Act
PS:Govind Puri
Date of institution : 24.04.2012
Date of reserving judgment : 04.09.2014
Date of pronouncement : 05.09.2014
Decision : Acquitted
Computer ID : 02406R0095602012
J U D G M E N T
The accused has been sent to face trial by the SHO, PS Govind Puri, on allegations that on 21.12.2011 at about 5:30 PM, at Pocket A4, Near DDA Flats, Gate No. 1, adjacent to the wall of Satya Sai School, New Delhi, within the jurisdiction of PS Govind Puri, he was found to be in possession of 2 KG of ganja, which is an SC No. 29A/12 State Vs. Avijit Biswas 2 intermediate quantity of the said substance, without any permit or license and in contravention of the provisions of the NDPS Act.
2. The prosecution story, in brief, is that on the above day, the complainant/PW2 HC Subhash, PW4 Ct. Uday and PW8 Ct. Amit Kumar of the above PS were on patrolling duties on foot in the area of the PS and after crossing the above gate of the DDA Flats, they had just turned towards Navjeevan Camp, Govind Puri, when they had noticed a person coming by the side of the wall of Satya Sai School towards Pocket-8 of the above flats and the said person was holding one white colour polythene in his right hand. On seeing the police party, he had suddenly turned back and started walking with fast steps and on suspicion, he was stopped and apprehended by the complainant/PW2 at a distance of about 20-25 steps. On enquiry, his identity was revealed as the accused Avijit Biswas of this case.
3. The complainant/PW2 had checked the above polythene bag being carried by the accused and smell of ganja was found coming out of the said polythene and the contents of the said polythene also appeared like ganja. The complainant/PW2 had telephonically conveyed the above information in the PS and it was recorded in the PS vide DD No. 7A Ex. PW10/A, which was assigned to the IO/PW10 SI Shrikrishna Singh for appropriate action. The IO/PW10 had reached at the spot, alongwith his IO kit and a SC No. 29A/12 State Vs. Avijit Biswas 3 weighing scale and weights etc, and made some enquiries from the complainant/PW2, the accused and also recorded the statement Ex. PW2/A of the complainant/PW2.
4. Thereafter, the IO had requested 5 passersby to join the proceedings, after disclosing the entire facts to them, but none of them agreed to join and they all left without telling their names and addresses. The IO/PW10 had then explained to the accused that he (IO/PW10) had an information regarding the accused being in possession of some ganja and for that his search was required to be conducted and it was his legal right to get himself searched before a Gazetted Officer or a Magistrate and arrangements can be made for the above officers. The accused was also told that if desired, he could also take the search of the police officials before giving his search. One written notice U/S 50 of the NDPS Act Ex. PW2/B was also served upon the accused regarding his above rights (carbon copy thereof Ex. P4 was handed over to the accused), but vide his reply Ex. PW2/C given on the above notice Ex. PW2/B, the accused had refused to get himself searched before the aforesaid officers and also to take the search of the police party.
5. It is alleged that in the meanwhile, some public persons had also gathered at the spot and the IO/PW10 had again requested 10-12 of such persons to join the proceedings, but none had agreed to join even this time. The IO/PW10 had then checked the contents of the SC No. 29A/12 State Vs. Avijit Biswas 4 above white colour polythene and the same was found to contain ganja and the weight of the ganja, alongwith the polythene, came to be 2 KG. The IO/PW10 had taken out two samples of 200 Grams each from the said ganja and these samples were kept by him in separate containers and separate cloth parcels thereof were prepared and given markings as S1 and S2. The remaining ganja was put back in the same polythene and a cloth parcel thereof was also prepared and given marking as A. All the above parcels were sealed with the seals of SKS, form FSL was filled up and the same seal affixed thereon and the above parcels and FSL form were then taken into possession vide seizure memo Ex. PW2/D and seal after use was handed over to PW8 Ct. Amit Kumar. The IO/PW10 had also conducted the search of the 'person' of the accused, but nothing incriminating was recovered in the said search.
6. Thereafter, the IO/PW10 had endorsed the rukka Ex. PW10/B upon the statement Ex. PW2/A of the complainant and had entrusted the said rukka as well as all the above sealed parcels, FSL form and a carbon copy of the seizure memo to PW4 Ct. Uday with directions to go to the PS and to hand over the rukka to the DO and the parcels and other documents to the SHO of the PS. On the basis of the above rukka, the FIR Ex. PW1/A of this case was got recorded by the DO/PW1 ASI Yad Ram on computer and he had handed over a copy of the FIR and original rukka containing his endorsement Ex. PW1/B to PW4 for handing it back to the IO/PW10 at the spot. The above SC No. 29A/12 State Vs. Avijit Biswas 5 sealed parcels and FSL form etc were handed over by PW4 to the SHO/PW3 Inspector R. K. Khatana, who had deposited the same with PW6/MHC(M) HC Shiv Singh of the malkhana, after counter sealing the above parcels and FSL form with the seals of SK and had further recorded one DD No. 33A Ex. PW3/B regarding the deposit of the above articles. On arrival of PW4 Ct. Uday back at the spot, the IO/PW10 had then arrested the accused vide memo Ex. PW2/E, conducted his personal search vide memo Ex. PW2/F and recorded his disclosure statement Ex. PW2/G and further prepared the site plan Ex. PW2/H, on the pointing out of the complainant/PW2. In the personal search of the accused, the above carbon copy Ex. P4 of the said notice and some other articles were recovered. On the next day, the IO/PW10 had also sent one information U/S 57 of the NDPS Act Ex. PW7/A to the concerned ACP/PW9 Sh Data Ram, through the SHO of the PS. One of the above sealed sample parcel Mark S1 was also got deposited with the FSL, Rohini on 18.01.2012, through PW5 HC Neeraj, vide RC No. 04/21/12 Ex. PW5/A and against the acknowledgment Ex. PW5/B issued by the FSL authorities. After recording the statements of the witnesses, completing some other formalities and pending the receipt of the FSL result, a charge sheet for commission of the offence punishable U/S 20 of the NDPS Act was ultimately prepared by the IO/PW10 against the accused and filed in the court.
7. The charge sheet was filed in this court on 24.04.2012 and cognizance of the above offence was taken SC No. 29A/12 State Vs. Avijit Biswas 6 on the same day. Since the age of the accused was stated in his arrest documents to be 19 years and he was suspected to be juvenile in terms of the directions contained in the order dated 21.03.2012 of the Hon'ble High Court of Delhi in W. P. (Civil) No. 8889/2011 titled Court on its own Motion Vs. Department of Women & Child Development & Ors., an enquiry regarding his age was directed by this court and he was reported to be above 18 years of age in the said enquiry. A prime facie case for commission of the offence punishable U/S 20(b)(ii)(B) of the NDPS Act, which relates to the possession etc. of a medium or intermediate quantity of ganja, was also found to be made out against the accused vide order dated 27.07.2012 of this court and a charge for the above said offence was also framed against him on the same day.
8. The prosecution in support of its case has examined on record total 10 witnesses and their names and the purpose of examination is being stated herein below:-
9. PW1 ASI Yad Ram is the DO of this case and he has proved on record the FIR Ex. PW1/A and the endorsement Ex. PW1/B made by him on the rukka.
10. PW2 HC Subhash, PW4 Ct. Uday and PW8 Ct. Amit Kumar are all the members of the above patrolling team of police, which had apprehended the accused on suspicion with the above polythene bag suspected to be containing ganja. They all have broadly deposed on the above lines SC No. 29A/12 State Vs. Avijit Biswas 7 of the prosecution story regarding the interception of the accused, the conveying of the above information to the PS, the arrival of the IO/PW10 at the spot, the recording of the statement Ex. PW2/A of the complainant/ PW2 and the further investigation conducted by the IO/PW10 at the spot regarding the above recovered ganja. They all have also identified the case property of this case as well as the accused.
11. PW5 HC Neeraj had taken the above sealed sample parcels of this case to FSL, Rohini on 18.01.2012 vide RC Ex. PW5/A and deposited it there vide acknowledgment Ex. PW5/B.
12. PW6 HC Shiv Singh is the MHC(M) of the PS at the relevant time and he has deposed about the deposit of the case property and personal search articles etc of the accused and has proved the relevant entry of register no. 19 as Ex. PW3/A and the above RC Ex. PW5/A issued by him and the FSL receipt Ex. PW5/B received by him for deposit of the sample.
13. PW7 SI Chandra Dev and PW9 ACP Sh Data Ram have both deposed regarding the receiving of the above information U/S 57 of the NDPS Act Ex. PW7/A in their office and the perusal thereof by the ACP/PW9. PW7 has also proved on record the entry Ex. PW7/B of the diary register, which was made by him about the receipt of the above information at serial number 5475 of the dak SC No. 29A/12 State Vs. Avijit Biswas 8 register of their office.
14. PW10 SI Shrikrishna Singh is the IO of this case and he has also deposed broadly on the above lines of the prosecution story about his arrival at the spot, on being assigned the above DD No. 7A Ex. PW10/A, and also the enquiry and investigation conducted by him at the spot, as discussed above. He has further identified the accused as well as the case property.
15. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record was put to the accused in his statement recorded U/S 313 Cr.P.C. and the same was denied by him to be incorrect. He has claimed himself to be innocent and to have been falsely implicated in this case while saying that he was residing as a tenant in the house of one lady named Rupa Paddha, who might have been involved in the drug dealings, and he was doing the work of shutter repairing. He claims that on the alleged day, he had just returned to his house from work when some police officials had visited the house of his land lady and enquired about her. The land lady was not present in the house at that time, but her son Hemant was present and one polythene containing some substance was also found in possession of Hemant and the police officials had taken Hemant to the PS, alongwith the above polythene and being their tenant, the accused was also taken to the PS. However, in the night, Hemant was SC No. 29A/12 State Vs. Avijit Biswas 9 released by the police officials when somebody had visited the PS and given some money to them, but he was detained and falsely implicated in this case subsequently. He has denied his apprehension from the above place or the recovery of the above ganja from his possession. He has also claimed that in the PS, the police officials had obtained his signatures on various blank papers with an assurance to let him of, but instead he was involved in this case.
16. The accused has also examined his elder sister Ms. Seema Sarkar in his defence as DW1 and she claims that about 2½ years back when she had reached at the house of his brother, i.e. the accused, she had seen that his brother was being taken away by three police officials accompanied by one Aman and she also followed them to PS Govind Puri. She was subsequently told by the police officials that ganja was recovered from the possession of her brother, but she had confronted them by saying that her brother was picked up in her presence and no ganja was recovered from him, but still her brother was falsely implicated in this case while the above Aman was let of by them.
17. I have heard the arguments advanced by Sh F. M. Ansari, Ld Addl PP for the State and Sh Mohinder Singh, Ld counsel for the accused. I have also gone through the evidence led by the prosecution and the other case record.
SC No. 29A/12 State Vs. Avijit Biswas
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18. There are some inherent contradictions and
inconsistencies in the story of the prosecution and the evidence led on record and in view of the above, and also some other discrepancies observed in the case of the prosecution, the evidence led on record against the accused cannot be said to be sufficient to convict him for a serious offence punishable U/S 20(b)(ii)(B) of the NDPS Act, which carries the punishment of rigorous imprisonment for a term extending up-to 10 years and a fine extending up-to Rs. 1 lac.
19. The first document of the prosecution case which was prepared at the spot, as per the record, is the statement Ex. PW2/A of the complainant/PW2 recorded by the IO/PW10 SI Shrikrishna Singh as according to the rukka Ex. PW10/B, the above statement was recorded immediately after the IO/PW10 had reached at the spot at around 5:00 PM, alongwith his IO bag and weighing scale etc. The rukka also suggests that requests to the passersby were made and the provisions of Section 50 of the NDPS Act complied with only after recording of the above statement. However, the oral evidence led on record in the form of the statements of two out of three members of the above patrolling team, i.e. the complainant/PW2 and PW4, and also of the IO/PW10 himself suggests as if the notice U/S 50 of the NDPS Act was given to the accused, the above ganja recovered and the entire seizure and sealing work done prior to the recording of the above statement of the complainant/PW2.
SC No. 29A/12 State Vs. Avijit Biswas
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Again, according to the prosecution case, when the
accused was apprehended by the above police party on the basis of suspicion and the enquiry regarding his name etc was complete, the white colour polythene being carried by the accused in his right hand was checked as the smell of ganja was emanating therefrom and some ganja like substance was also observed in the said polythene and intimation in this regard was conveyed to the PS. However, the rukka Ex. PW10/B prepared by the IO/PW10 subsequently, on the basis of the statement Ex. PW2/A of the complainant/PW2, suggests as if the IO/PW10 was having some information regarding the accused being in possession of ganja, which was not the case as the accused was only suspected to be in possession of the above contraband substance, in view of the fact that the substance which appeared to be there in the polythene being carried by him looked like ganja and also his conduct in turning back and walking fastly on seeing the police team.
20. Further, it is also observed from the record that all the material witnesses of the prosecution, i.e. PW2, PW4 and PW8 as well as the IO/PW10, have deposed on record specifically that the accused was told by the IO/PW10 that he had been found in possession of ganja and there were apprehensions that he may be in possession of some more ganja or contraband substance, for which his search was required to be conducted. The above depositions made by these witnesses suggest as if SC No. 29A/12 State Vs. Avijit Biswas 12 it had already been ascertained or proved that the substance which was seen by the complainant/PW2 in the above polythene was ganja, whereas according to the above statement Ex. PW2/A of the complainant/PW2, the same was only suspected to be ganja and that is why a notice U/S 50 of the NDPS Act was served upon the accused for the possible recovery of the above contraband substance from his possession.
21. There are also found to be some contradictions in the statements of the above members of the police team as to who had actually apprehended and overpowered the accused. The complainant/PW2 in his chief examination states that the accused was overpowered by him with the available staff and even in his cross he states that they all had collectively overpowered him. PW8, on the other hand, states that the accused was apprehended by him first from his left hand. PW8 has stated that the accused was first seen by the complainant/PW2 HC Subhash, but PW4 was not able to tell as to by whom the accused was seen first. According to the complainant/PW2, the accused was seen by him when he was at a distance of about 30-40 steps only, whereas according to PW8 the accused was seen from a distance of about 50 meters and PW4 states this distance to be 20-25 meters only. None of them was able to tell the colour of the cloths which the accused was wearing at the relevant time of his apprehension.
SC No. 29A/12 State Vs. Avijit Biswas 13
22. It is further observed on appreciation of the evidence that the complainant/PW2 has initially stated in his examination in chief that after the accused was apprehended by them, he had taken the polythene bag being carried by the accused form him, but he was not able to remember whether the same was retained by him till the arrival of the IO/PW10 or if it was returned back to the accused. However, he again stated that the above polythene bag remained in his possession and was handed over to the IO/PW10 by him only. On this aspect, PW4 states that HC Subhash/PW2 had taken the above bag from the hand of the accused and kept it with him (PW2) and had not returned it to the accused and even even PW8 has made similar depositions on record. However, contrary to the above, the IO/PW10 has gone to say on record that when he reached at the spot, he found that the above polythene bag containing ganja was in the hands of the accused Avijit Biswas and if his above depositions are believed, which are contrary to the depositions made by the other three witnesses of recovery examined on record, it is not understood as to why and for which purpose the said bag was returned back by the complainant/PW2 to the accused, after the same was suspected to or appeared to be containing ganja.
23. Further, there are also found to be contradictions in the statements of the above three members of the patrolling team as to whether the accused had attempted to run away or not, when he was tried to SC No. 29A/12 State Vs. Avijit Biswas 14 be apprehended by them, as PW2 and PW4 have both stated that the accused had only moved fastly and did not try to run, whereas PW4 in his examination in chief itself has stated that the accused was apprehended after running for about 10-20 steps and even in his cross examination, he (PW4) has stated that the accused tried to run away when they tried to apprehend him and he (accused) was apprehended after a short chase.
24. Again, apart from all the above, there is no public witness joined by the IO/PW10 on record prior to the service of the above notice U/S 50 of the NDPS Act and taking his search for the possible seizure of the above ganja and though it has been deposed by all the above witnesses that the IO/PW10 requested 4-5 passersby to join the proceedings, on his arrival at the spot, and further he had also requested 10-12 other public persons, who had gathered at the spot in the meanwhile, to join the proceedings and none of them had agreed to join, but the above depositions are found to be made by these witnesses in a very vague and routine manner. None of them had requested any nearby resident or shopkeeper to join the proceedings and even no attempt was made to join any chowkidar or other official of the above Satya Sai School, by the side of wall of which the accused was apprehended. In the absence of their being any serious attempts made by the IO/PW10 and the other members of the above patrolling team to join the public or independent witnesses, their depositions regarding SC No. 29A/12 State Vs. Avijit Biswas 15 the making of such requests does not inspire confidence.
25. Though the joining of the public witnesses in such cases is always not mandatory and the prosecution can prove its case only through the depositions of the official or police witnesses, but the public witnesses, if joined, always strengthen the case of the prosecution and give credibility to the same and if the public witnesses cannot be joined in any such case, the evidence led on record should atleast reflect the sincere efforts on the part of the IO to join such witnesses and to show the fairness of the investigating agency. Moreover, the depositions of the official or police witnesses are also required to be viewed with grave suspicion and circumspection in case no public witness has been joined in any such case and it is desired to base the conviction of an accused on the basis of statements of such official witnesses. It is so as their credibility is to be tested on higher degrees of scales in such a case and the court has to ensure itself that such official or police witnesses are telling truth and truth only and only then the court can base a finding of conviction on the basis of their statements. However, the evidence led on record in the form of the testimonies of the above official witnesses lacks the above kind of quality and trustworthiness.
26. Though, the defence of the accused, as recorded in his statement U/S 313 Cr.P.C., is that he was picked SC No. 29A/12 State Vs. Avijit Biswas 16 up from his house, alongwith one Hemant, who is the son of his land lady, because of recovery of some suspected substance from the possession of the above Hemant, but it could not be substantiated on record from the depositions of his sister/DW1 Ms. Seema Sarkar as the same are not found to be convincing enough and further since the name of the above said person picked up alongwith the accused has been told by this witness to be Aman instead Hemant. However, still the evidence led on record is considered to be not sufficient enough to discharge the burden of proving of its case beyond reasonable doubts, which stands placed upon the prosecution. It is settled law that the prosecution has to stand on its own legs and cannot take the weakness of the defence of the accused. Moreover, in a serious case like the present one under the NDPS Act, this burden becomes more stringent and has to be discharged even despite the legal presumptions contained U/S 35 and 54 of the NDPS Act, which put the burden of proving of his innocence or being unconscious of the possession of contraband substance upon an accused in case he is found to be in possession of such a contraband substance. However, even the above legal presumptions can be said to have come in operation only after the prosecution discharges its initial burden of proving the possession of such contraband substance by an accused. Reference in this regard can be made to the judgment in case Noor Aga Vs State of Punjab & Anr. 2008(3) JCC (Narcotics)
135.
SC No. 29A/12 State Vs. Avijit Biswas 17 27. On the aspect of burden of proof in an enactment like the NDPS Act laying down severe
punishments, reference can also be made to the judgment in case of State of Punjab Vs Baldev Singh 1999 Drugs Cases 150 : (1999) 3 SCC 977, wherein it was held that:-
"It must be born in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed".
28. In case of Mausam Singh Roy Vs State of WB (2003) 12 SCC 377 also it was held that it is a settled principle of criminal jurisprudence that the more serious the offence is, the stricter is the degree of proof, since a higher degree of assurance is required to convict the accused.
29. In view of the above discussion, it is held that on the basis of the evidence led on record, the accused cannot be held guilty and convicted for the charged offence punishable U/S 20 (b)(ii)(B) of the NDPS Act, which is a very serious offence attracting very stringent punishment. He is, therefore, acquitted of the above charge giving benefit of doubt.
30. The case property be confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of the appeal to be filed against this judgment, SC No. 29A/12 State Vs. Avijit Biswas 18 if any, or the orders of the appellant court, as the case may be.
31. The bond U/S 437A Cr.P.C. is yet to be furnished by the accused. File will be consigned to record room only after furnishing of the above bond.
Announced in the open
court on 05.09.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No. 29A/12 State Vs. Avijit Biswas