Delhi District Court
Fir No. 629/07 State vs . Raju Page No. 1 Of 14 on 28 February, 2014
IN THE COURT OF Dr. JAGMINDER SINGH:
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW
DELHI
FIR NO: 629/2007
PS: Dabri
U/s 20 NDPS Act
State V. Raju
JUDGMENT
Date of institution of the case : 07/12/2007 Unique Identification Number : R1000732007 Date of commission of offence : 21.07.2007 Name of the Complainant : Ct. Mahavir No.1675/SW, PS:Dabri, New Delhi.
Name of accused and address : Raju
S/o Sh. Radhey Shyam
R/o RZA19, Sitapuri,
Part I, New Delhi.
Offence complained of : U/s 20 NDPS Act .
Plea of accused : Pleaded not guilty
Final order : Acquitted
Date on which Judgment was reserved: Not Reserved Date of such order : 28.02.2014 FIR no. 629/07 State Vs. Raju Page no. 1 of 14 BRIEF STATEMENT OF THE REASONS FOR THE DECISION :
1. The present case was registered against the accused Raju on the allegations that on 21.07.2007 at about 07:00 pm at Ganda Nala, Palam Dabri Road, near Sitapuri Bus Stand, New Delhi, accused was found in possession of 500 gms. of Ganja by the police party.
On these allegations the present case was registered against accused. Accused was charge sheeted accordingly U/s 20 NDPS Act.
2. Accused was summoned and charge was framed against accused Raju for the offence u/s 20 NDPS Act to which he pleaded not guilty and claimed trial.
3. Prosecution has filed list of eight witnesses and examined all the witnesses including two additional witness from FSL.
4. PW1 ASI Rajbir recorded the FIR of the present case, copy of which is Ex PW 1/A and his endorsement on the rukka in this regard is Ex PW 1/B.
5. PW2 HC Bala Ram is the MHC(M) concerned with whom the FIR no. 629/07 State Vs. Raju Page no. 2 of 14 case property were deposited at malkhana. He also produced the original register having relevant entry on it Ex.PW2/A through Const. Nagraj on 06.09.2007.
6. PW3 HC M. Nagraj stated that on 06.09.2007 he deposited one sealed Pulindah sealed with the seal of 'GS' at FSL Rohini vide RC no. 139/21.
7. PW4 HC Mahavir Singh stated that on 21.07.2007 he was patrolling with HC Dara Singh. At about 07:00 pm when they reached at the spot they saw accused coming carrying a thaila who on seeing them started moving fast and turned back. He was apprehended. Thaila was checked in which Ganja was found. The thaila was of white colour with Cow marked on it. Then he gave information to PS and SI Gyanender Rana came at the spot to whom he handed over accused and case property. IO recorded his statement Ex PW 4/A. Then IO served notice under Section 50 of NDPS Act to the accused to which accused replied that he did not want to give his search before any Magistrate or Gazetted Officer. IO searched the accused but did not recover any Narcotic FIR no. 629/07 State Vs. Raju Page no. 3 of 14 substance. IO measured the Ganja already recovered from the thaila and found 500 gms. 100 gms was taken as sample. Sample and residue were sealed with the seal of 'GS' and seized vide memo Ex PW 4/B. SHO Inder Singh also reached at the spot and put his own seal on the FSL Form and case property. Accused was arrested vide memo Ex PW 4/C and his personal search was conducted vide memo Ex PW 4/D.
8. PW5 Insp. Inder Singh (inadvertently mentioned as PW4) deposed that on 21.07.2007 he reached at the spot where SI Gyanender alongwith accused met him and IO handed over two sealed pulindahs with the seal of 'GS' alongwith FSL Form. He counter sealed them with the seal of 'IS'. He interrogated the accused who confessed his guilt. He deposited the case property at the Malkhana.
9. PW6 HC Dara Singh (inadvertently mentioned as PW5) also deposed the identical version as stated by PW4 HC Mahavir Singh.
10.PW7 Ms. Anita Chhari (inadvertently mentioned as PW6), FIR no. 629/07 State Vs. Raju Page no. 4 of 14 Senior Scientific Officer, FSL Rohini, Delhi proved her excise report Ex PW 6/A. She stated that through the required examination, the sample was found Dried Indian Hamph i.e. Ganja. She also proved the report of Dr. Madhulika Sharma i.e. Ex PW 6/B.
11. PW8 ASI Babu Lal (inadvertently mentioned as PW7) brought the original diary register of the year 2007 who proved the report produced before ACP concerned under Section 57 NDPS Act i.e. Ex PW 7/A and relevant portion of register is Ex PW 7/B.
12.PW9 Dr. Madhulika Sharma (inadvertently mentioned as PW8), Deputy Director, FSL, Rohini, Delhi also deposed regarding the report of FSL regarding the sample of the present case.
13.PW10 SI Gyanander Rana (inadvertently mentioned as PW9) deposed that on 21.07.2007 on receipt of DD no. 65 B he went to the spot where Const. Mahavir and HC Dara Singh were present alongwith accused. They handed over to him accused and a recovered thaila containing Ganja. On the thaila words 'Gai Chap Masala' were written. He recorded the statement of Const. FIR no. 629/07 State Vs. Raju Page no. 5 of 14 Mahavir Ex PW 4/A. He served under Section 50 NDPS Act Ex PW 9/A. He carried out personal search of the accused but did not find any other narcotic substance from him. Then he weighed the Ganja and found it to be 500 gms. 100 gms was taken out as sample. Sample and remaining Ganja in the same thaila were sealed with the seal of 'GS'. Form FSL was filled. Seal after use handed over to Const. Mahavir. Case property was seized vide memo Ex PW 4/B. SHO Insp. Inder Singh also reached there and put his seal of 'IS'. Case property and file was handed over to SHO. He (IO) PW9 prepared the site plan Ex PW 9/B. Accused was given notice under Section 52 NDPS Act Ex PW 9/C. Accused was arrested vide memo Ex PW 4/C and his personal search was conducted vide memo Ex PW 4/D. He prepared report under Section 57 NDPS Act i.e. Ex PW 9/D and the same was submitted to ACP through SHO. He sent the sample to FSL. He received FSL report already Ex PW 6/A and Ex PW 6/B and he prepared the Challan.
14. No other witness was examined by the prosecution. Hence, PE FIR no. 629/07 State Vs. Raju Page no. 6 of 14 closed. Statement of accused recorded u/s 313 Cr.P.C in which he denied all the allegations made against him and further submitted that he does not want to lead defence evidence. Case was fixed for final arguments.
15.I have heard the arguments of both the parties. Ld. APP for the State has argued that as the accused was caught red handed while in possession of 500 gms Ganja and therefore he deserves maximum punishment. On the other hand Ld. Legal Aid Counsel for accused stated that he is falsely implicated in the present case and is liable to be acquitted. It is further stated that the alleged recovery is planted upon the accused. The statement of witnesses are contradictory. The alleged thaila which is stated by the witnesses in the FIR or in their statements allegedly recovered from the accused is different from the thaila produced before the court. Actually no such Ganja or thaila was recovered from him. I have gone through the oral and documentary evidence on record.
16.In the present case no public witness was joined in the investigation by the IO. However, it is admitted by the PWs that FIR no. 629/07 State Vs. Raju Page no. 7 of 14 public persons were available there. PWs even could not tell the names of public persons who were asked by the IO to join investigation but they refused as stated by the IO. No any notice admittedly given by the IO to them. The non joining of the public witness creates doubt on the story of the prosecution as held in PAWAN KUMAR Vs. DELHI ADMINISTRATION 1987 CC Cases 585 HC by Hon'ble High Court of Delhi.
17. The main defence of the accused raised by him through Ld. LAC is that the alleged case property is planted upon him and he based this defence on the fact that the thaila produced before the court allegedly recovered from the accused is different from the thaila as stated by the witnesses in their statements. Therefore it is a material contradiction through which identity of case property becomes doubtful which shows the fact that case of prosecution is false one.
18. As far as identity of case property is concerned, prosecution has to prove this fact beyond reasonable doubt that the case property produced before the court is the same one which was recovered FIR no. 629/07 State Vs. Raju Page no. 8 of 14 from the accused and there is no any tampering with it. As per the statement of IO and SHO, it is stated that firstly IO sealed the case property with the seal of 'GS' and thereafter Insp. Inder Singh (SHO) reached there and put his counter seal of 'IS' on it. Therefore the case property must be having two separate seals i.e. 'GS' and 'IS'. But during examination of PW4, the case property produced before the court in evidence first time i.e. Ex P1 which was sealed only with the seal of 'GS'. Therefore, counter sealing of case property by SHO is not corroborated.
19.IO stated that he handed over his seal after use to HC Mahavir Singh but it is neither clarified by IO or HC Mahavir Singh that when the seal was returned back to IO. It is also not stated by IO or Insp. Inder Singh (SHO) that whether after counter sealing the case property with the seal of 'IS', SHO handed over the seal to any other person or not. In the seizure memo no such fact is mentioned. No any separate seal handing over/ return memo is prepared.
20.In the initial complaint of Const. Mahavir Ex PW 4/A on the basis FIR no. 629/07 State Vs. Raju Page no. 9 of 14 of which the case was registered, it is mentioned that the thaila recovered from accused was having a writing of 'Gaye Chhap Masale' on it. The same fact is also mentioned in seizure memo Ex PW 4/B. IO in his statement before the court also admitted this fact. PW4 HC Mahavir Singh also stated this fact before the court and stated that the thaila was with a Cow mark on it. During cross examination it is admitted by the IO that the pulindah produced before the court did not bear any mark like Gaye Chhap Masala. PW5 HC Dara Singh who is recovery witness stated in his cross examination that the colour of thaila was brown and the Ganja was directly kept in the thaila. In his further cross examination, it is clarified that the case property produced before the court in a pure white colour bag. Therefore there is no clarification on behalf of prosecution that what happened with the alleged thaila having Cow mark and writing 'Gaaye Chhap Masale'. Therefore reasonable doubt is created that whether the bag produced before the court is the same bag which was recovered from the possession of accused because it is the case of FIR no. 629/07 State Vs. Raju Page no. 10 of 14 prosecution itself that the bag recovered from the accused was having Cow Mark and with writing 'Gaaye Chhap Masale'.
21. The role of IO also becomes doubtful through some other facts and circumstances came out through analyzing of his evidence. PW5 HC Dara Singh stated that the Ganja was weighed with the help of weighing scale which IO was carrying but when IO was asked on this point, he could not state the clear facts. IO first stated that he took the weighing machine on the way and then stated that the weighing machine was brought through one Const. but he could not tell the name of the said Constable. He further stated that after the weighing work he handed over the machine to the same Constable through whom it was brought. Therefore, why IO not joined the said Constable into investigation is also creates suspicion. Further IO stated that he gave notice under Section 50 NDPS Act on which accused replied that he did not want to be searched before any Magistrate or Gazetted Officer. When IO was asked regarding this in his cross examination, he admitted the fact that the alleged reply given by accused is not FIR no. 629/07 State Vs. Raju Page no. 11 of 14 having any particulars of the case or even date. The reply is written on another side of notice Ex PW 9/A. It is further admitted that the notice Ex PW 9/A and the reply are having the same handwriting which was of one Constable who was present at the spot but IO could not tell the name of that Constable. As per the prosecution story only HC Dara Singh and Const. Mahavir Singh were present at the spot during investigation but no any other Constable is joined into investigation by the IO in whose handwriting notice and reply was written as stated by the IO, is again doubtful.
22.IO stated that after giving notice Ex PW 9/A he took personal search of the accused but PW5 HC Dara Singh stated in his cross examination that IO/ SI Gyanander did not take any search of the accused. IO further stated that he prepared site plan at the instance of Const. Mahavir but perusal of site plan Ex PW 9/B reveals that there is no name or signature of Const. Mahavir showing his presence at the time of preparation of site plan as a witness.
FIR no. 629/07 State Vs. Raju Page no. 12 of 14
23.It is held by Hon'ble Delhi High Court in Sikandar Kumar Vs. State 1998 (3)Crimes 69 that material contradictions in the statements of witnesses creates doubt in the prosecution version and it would be unsafe to place total reliance on their testimony. In the present case also court finds that the various contradictions appeared in the statements of witnesses are of material nature in the light of facts and circumstances of the present case.
24.It is also held by Hon'ble High Court of Delhi in State Vs. Dharmender Singh Mehta and anr. 2012 V AD (Delhi) 108 that "it is now very well established that in all criminal cases, the prosecution has to establish the guilt of the accused beyond reasonable doubt through unimpeachable evidence".
25.Hence, in view of above discussion, story of the prosecution becomes doubtful. The alleged offence against the accused is not established beyond reasonable doubt, benefit of which goes to accused as per Principles of Criminal Law. Therefore, accused Raju S/o Sh. Radhey Shyam is acquitted in case FIR No:629/2007 P.S: Dabri. Bail bonds of the accused shall remain in force for the FIR no. 629/07 State Vs. Raju Page no. 13 of 14 period of six month starting from today in accordance with section 437A Cr.P.C as no fresh bail bond furnished by the accused. File be consigned to record room after due compliance. Announced in the open court on this 28th day of February 2014 (Dr. JAGMINDER SINGH) This judgment contains 14 pages METROPOLITAN MAGISTRATE which bears my signatures at DWARKA COURTS/DELHI each page.
FIR no. 629/07 State Vs. Raju Page no. 14 of 14 FIR NO: 629/2007 PS: Dabri U/s 20 NDPS Act State V. Raju 28.02.2014 Present: Ld. APP for the State.
Accused produced from JC (however, he is on bail in this case.) Sh. Pramod Kumar, Ld. LAC for accused.
Statement of accused under Section 313 Cr PC recorded. Accused not opted for DE.
Final arguments heard.
Vide separate judgment announced in open court accused Raju stands acquitted.
File be consigned to record room.
Dr. Jagminder Singh Metropolitan Magistrate Dwarka Courts: New Delhi 28.02.2014 FIR no. 629/07 State Vs. Raju Page no. 15 of 14