Delhi District Court
State vs . : Kamal on 15 November, 2011
IN THE COURT OF SH. CHANDER JIT SINGH : MM: ROHINI : DELHI
State Vs. : Kamal
FIR No. : 682/07
U/s : 20 NDPS Act
PS : S P Badli
JUDGEMENT
A. Sl. No. of the case 172/3
B. Offence complained of
or proved U/s 20 NDPS Act
C. Date of Offence 27.08.2007
D. Name of the complainant Sh. Raj Singh,
Deputy Superintendent,
District Jail, Rohini,
Delhi.
E. Name of the accused Kamal
S/o Sh. Devidas,
R/o B-776, Mangol Puri,
Delhi.
F. Plea of the accused Pleaded not guilty.
G. Final order Acquitted
H. Date of Order 15.11.2011
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Brief reasons for the decision:
1. Accused has been forwarded to face trial on the allegations that on 27.08.2007 Under Trial Prisoner Kamal was found in possession of a substance like charas on frisking when he returned from mulaqat. The said frisking was conducted by Duty Officer Balwan Singh. The mulaqat was registered vide entry No.9 on 27.08.2007. The complaint was filed by Deputy Superintendent, District Jail, Rohini. On receipt of information, which was entered vide DD No.33-B, SI Chander Prakash alongwith Ct. Ranjeet reached the Rohini Jail premises. Deputy Superintendent gave the abovesaid complaint. Accused was also produced. The charas like substance was weighed on a electronic machine and the total weight turned out to be 4.9 grams. Out of it, 2 gms were taken as sample and remaining was kept in another pullinda. Both the pullindas were sealed with the seal of 'CP'. FSL form was also filled and both the pullindas alongwith FSL form were sent through Ct.Ranjeet to SHO, PS Samay Pur Badli. Seizure memo was also sent. After that FIR was registered and the remaining investigation was conducted. During investigation, site plan was prepared. Statements of witnesses were recorded and accused was arrested. After completion of investigation, the present chargesheet was filed.
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2. After supplying accused the copies of chargesheet alongwith annexing documents, notice under Section 20 NDPS Act was served upon him to which he pleaded not guilty and claimed trial. Thus, the prosecution led evidence.
3. The prosecution has examined 5 witnesses to demonstrate the guilt of accused. HC Gyan Chand who recorded the FIR was examined as PW-1 as he proved copy of FIR as Ex.PW-1/A. He proved endorsement on rukka as Ex.PW-1/B. He was not cross examined despite opportunity. Ct. Virender was examined as PW-2. He proved that he brought the information under Section 57 NDPS in the office of ACP, Narela, Delhi and copy of same as Ex.PW-2/A. He was also not cross examined despite opportunity. Raj Singh Suhag was examined as PW-3. He proved his complaint as Ex.PW-3/A, pullindas marked as A1 and A2 as Ex.PW-3/B, arrest memo Ex.PW-3/D and personal search memo as Ex.PW-3/E. He proved the pullinda containing sample charas as Ex.P1 and the other pullinda as Ex.P2. He was duly cross examined. In his cross examination, he stated that charas was recovered from the vegetable given to accused by his relative but he has not seen the vegetables. He also stated that charas was recovered at mulaqat jungla where the Under Trial Prisoner take lunch after mulaqat. It is also stated that the photo of the person who comes to visit is also retained. Balwan Singh, Assistant Superintendent FIR No. 682/07 State Vs Kamal 3 of 7 was examined as PW-4. He stated that on checking the accused when he was returning from mulaqat, one charas like substance in the plastic punny was recovered from the vegetables kept in the plastic box. Information was given to Deputy Superintendent. He also identified the case property. He was duly cross examined. SI Chander Prakash was examined as PW-5. He re- iterated the proceedings carried out during investigation and proved site plan as Ex.PW-5/B and rukka as Ex.PW-5/A amongst other documents. He was also duly cross examined wherein he stated that he did not verify the Entry Register to see whether or not any person came to meet accused on that day. He also stated that plastic bowl was not seized by him. No other witness was examined.
4. After conclusion of evidence, statement of accused was recorded under Section 313 Cr. PC wherein accused pleaded innocence and stated that he has been falsely implicated in the case but chose not to lead any DE.
5. I have heard the rival contentions of both the parties and carefully perused the record. In the present case, PW-3 and PW-4 are the material witnesses. Nothing substantial has came out in their cross examination which can rebut their testimonies. The next question for consideration is the FIR No. 682/07 State Vs Kamal 4 of 7 probative value of the evidence lead by prosecution and its over all effectiveness for proving the guilt of the accused person. It was argued on behalf of accused that the procedure under Section 50 of NDPS regarding the search is not complied with. The perusal of record also shows that no such requisition was made by the accused but at the same time no where any record the said fact has been recorded by the IO that accused has not requisitioned his search by the gazetted officer. The omission on the part of IO to record any such non requisition raises doubt about version of prosecution. Allegations are that the charas like product has been supplied to the accused by the person who had come to meet the accused on that day. Regarding this aspect, no record has been placed on record only the verbal testimony of PW-3 and PW-4 is on record. PW-3 in his cross examination has stated that he can disclose the name of person who come to meet accused after going through the record but volunteered that a friend named Vijay came to meet and delivered the same. The absence of producing any record whereas claiming that even the photograph and address of the person is retained, there is doubt regarding this aspect. Even the IO has not taken the pains to collect the said record which is a very essential link in the present case. The said record would have helped in establishing the allegations whereas the absence there of coupled with the fact that even the alleged plastic bags in FIR No. 682/07 State Vs Kamal 5 of 7 which vegetables were kept alongwith charas like substance is not seized raised suspicion about the story of the prosecution.
It has been alleged that the substance recovered was seized and sealed but the fate of seal has not been disclosed. Neither there is a handing over memo of the seal with which the pullindas were sealed nor there is any evidence regarding the fact that the same was ever handed over to MHC(M). MHC(M) has also not been examined in this case which can certify to the fact that the case property remains in tact while in his possession or till the time the samples were sent to CFSL.
Though the CFSL report has been filed on the record but the same has not been tendered in the evidence which implies that the character of the substance recovered remained unproved. Though as per Section 292 Cr.PC, it is not required that the examiner himself must come to depose except that he is required for cross examination. But still the report is to be tendered and omission to doing the same seriously hampers the case of prosecution.
Further all the documents i.e seizure memo and disclosure statement of the case contain the FIR No. whereas it is stated in the charge sheet that they were prepared prior to registration of FIR. In such a situation, the act of putting the FIR No. in the said documents has not been explained.
FIR No. 682/07 State Vs Kamal 6 of 7 Further, the alleged recovery was made in the jail premises only and there is not even any averment that any person was ever tried to join the recovery proceedings.
In view of the abovesaid discussion and evaluating the overall evidence, there remains an element of doubt about involvement of accused. Hence, giving the benefit of doubt to accused, he is acquitted of the offence under Section 20 NDPS Act.
Announced in open Court (Chander Jit Singh)
on this day of 15th November, 2011 Metropolitan Magistrate
Rohini Courts, Delhi
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