Delhi District Court
Singh vs . State Of Haryana (2010) 3 Scc 746. on 4 July, 2013
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.57/12
FIR No.219/12
PS Pahar Ganj
In the matter of:
State
Versus
Mahender
S/o Sh. Satya Naryan
R/o Village Hasanpur Keshar,
Thana Sultanpur Ghos, Distt. Fathapur,
U.P. .......Accused
Date of institution : 22.12.2012
Date of Judgment : 04.07.2013
J U D G M E N T
This is a case alleging commission of offence U/s. 21 (b) of Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').
2. Accusation levelled against accused Mahender is that he was apprehended on 01.11.2012, at about 5 pm, near Pul Paharganj, 1 within the jurisdiction of PS Paharganj, by SI Yashpal Singh on the basis of secret information. The secret information was that a person would come from the side of Ajmere Gate and descend the stairs of Pul paharganj and that he would be carrying smack. The SI apprehended the accused at the instance of secret informer, in presence of HC Arvind and Ct. Shambhu Dayal, who were subsequently joined on the way.
After service of notice under Section 50 of the Act by SI Yashpal Singh on the accused, and his refusal to exercise this legal right, search of right side pocket of pant of the accused led to recovery of 45 grams of heroin wrapped in a piece of newspaper.
From the recovered quantity, one sample of two grams was drawn and turned into a parcel. Remaining quantity was also turned into a parcel, alongwith newspaper and the transparent polythene. Both these parcels were sealed by the SI with his seal bearing impression YS.
SI Yashpal Singh had initially informed the SHO about the secret information and as per his directions proceeded further. SHO Inspector Suresh Kaushik reached the spot and affixed his 2 seal bearing impression SK on both the parcels.
Case of prosecution is that SI Yashpal affixed impression of his seal on FSL form. On arrival at the spot, Inspector Suresh Kaushik also affixed impression of his seal on the parcels and the FSL form. The then Inspector took along case property and deposited the same with MHC(M).
Case was got registered on the basis of rukka sent from the spot by SI Yashpal through Ct. Shambhu Dayal. Investigation was assigned to SI Raj Kumar. After completion of investigation at the spot SI Raj Kumar returned to the police station and deposited with the MHC(M), items recovered from the personal search of the accused.
On 29.11.2012 sealed parcels and FSL form were despatched to FSL, Rohini by Ct. Rambir. Contents of the sample were analyzed in the laboratory.
Report u/s 57 of the Act submitted by SI Raj Kumar to Inspector Suresh Kaushik was forwarded to the office of ACP.
3. On completion of investigation, challan was put in court. Copies of documents relied upon by the prosecution were supplied to the accused free of costs.
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Charge
4. Prima facie case having been made out, charge for an offence U/s. 21 of Narcotics Drugs and Psychotropic Substances Act was framed against the accused on 14.02.2013, to which he pleaded "not guilty" and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case prosecution examined, following witnesses: PW1 HC Dayanand, Duty To prove recording of FIR Ex PW1/A Officer and other DD entry.
PW2 Ct. Rambir Who collected sealed parcel and FSL form from MHC(M) and deposited the same at FSL on 29.11.2011 for analysis.
PW3 HC Akhilesh To prove as to how he dealt with the case property.
PW4 HC Latoor Singh, from the To prove receipt of report under office of ACP Pahar Ganj Section 57 of the Act. PW5 Rajiv Sharda Nodal Officer from Reliance Communication ltd. to prove CDR in respect of mobile phone no.
9312223966 i.e. of SI Yashpal.
PW6 SI Yashpal Who arrested the accused and made recovery of contraband from him.
PW7 HC Arvind Witness to arrest and recovery from the accused.
4 PW8 ASI Heera Lal Who prepared report under Section 173 CrPC and presented it in Court.
PW9 HC Shambu Dayal Witness to arrest and recovery from the accused.
PW10 SI Raj Kumar Who took over investigation after registration of the accused.
PW11 WCt. Bhanwari To prove DD entries recorded by her. PW12 Inspector Suresh Concerned SHO who received Kaushik information and reached the spot, participated in the proceedings and on return to police station deposited the case property with MHC(M) Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused denied all the incriminating circumstances regarding recovery as appearing in evidence against him and claimed false implication. Plea of the accused reads as under: "I was not stopped or apprehended by the police near pul Paharganj. During those days, I used to serve as waiter in railway club in the area New Delhi Railway Station. One day, in the evening at about 6.00/7.00 p.m., three police officials picked me up from Railway Club, where I was present. I was taken from there to police post Sangtarashan and detained there for two days. I was assured that I would be released on arrival of the SHO but I was not released. I have been falsely implicated in this case." Despite opportunity, accused opted not to lead any evidence in defence.
7. Arguments heard. File perused.
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Learned Addl. P.P. has contended that from the statements of the prosecution witness, it stands established that accused was apprehended near Pul Paharganj, on the basis of secret information and at the pointing out of secret informer and his personal search conducted after compliance with provisions U/s 50 of the Act led to recovery of 45 gms of heroin.
Learned Addl. P.P. has also submitted that all efforts were made to rule out possibility of tampering with the case property and that the contents of the sample when analyzed at FSL were found to contain 13.6% of diacetylmorphine besides other substances as per report Ex.PX. Therefore, contention is that case is liable to be held guilty of the offence U/s 21 of the Act.
On the other hand, learned counsel for accused contended that prosecution has failed to prove due compliance with provisions of Sec.50 of the Act or to rule out possibility of tampering with case property.
Further, it has been contended that in absence of any corroboration from an independent source, no reliance should be placed on the statements of police officials who are highly interested in the success of their case. Therefore, learned counsel has urged that accused is entitled to acquittal. 6
Discussion
8. As noticed above, secret information was allegedly received by SI Yash Pal at about 4.12 p.m. and thereafter he joined HC Arvind and Ct. Shambhu Dayal.
According to PW6 SI Yash Pal, when he accompanied by Ct. Arvind, Ct. Shambhu Dayal and secret informer reached near Pul Paharganj, he tried to join 45 persons from the public, but no one came forward and as such all of them took positions near Pul Paharganj and apprehended the accused at about 5.03 p.m. at the pointing out of the secret informer. In the secret information, it was disclosed that the boy carrying smack would come towards Pul Paharganj in half an hour. As per prosecution version, even despite paucity of time, SI Yash Pal tried to join persons from the public but none came forward. But there is nothing on record to suggest that any effort was made after the accused was apprehended to join any person from the public. PW6 admitted in its cross examination that there were many shops and hotels near the spot. He further admitted that no employee was called from any shop or hotel which were lying open. Nonjoining of witness from the public despite availability puts the court on guard to 7 scrutinize statements of police officials as observed in Ajmer Singh vs. State of Haryana (2010) 3 SCC 746.
Service of notice U/s 50 of the Act
9. Case of prosecution is that before conducting personal search of the accused he was served with a notice U/s 50 of the Act. Copy of the notice is Ex.PW6/B. Had HC Arvind and Ct. Shambhu Dayal been present at the time of service of any such notice, SI Yash Pal must have got the same attested from them. However, a perusal of notice Ex.PW6/B would reveal that it does not bear attestation of HC Arvind or Ct. Shambhu Dayal. There is no explanation for want of attestation of this notice by any of the two police officials. Same creates doubt in the prosecution version regarding service of any such notice, particularly when no witness from the public was associated despite availability.
Possibility of tampering with case property not ruled out
10. As per prosecution version narrated by PW6 SI Yash Pal, PW7 HC Arvind and PW9 HC Shambhu, 45 gms of heroin wrapped in a piece of newspaper was recovered from the right side pocket of the pant which he was wearing. A sample of 2 gms was separated from the lot, turned into parcel and sealed with the seal bearing impression 'YS'. Remaining quantity of 43 gms was kept 8 in a piece of newspaper, turned into parcel and sealed with the aforesaid seal. FSL form was filled in and impression of the seal was affixed on it.
Further, it is case of prosecution is that Inspector Suresh Kaushik reached the spot enquired about the facts, collected both the parcels, form FSL and copy of seizure memo and left the spot. However, the version narrated by PW6, PW7 and PW9 in this regard is not in consonance with the version narrated by Inspector Suresh Kaushik as to the place where the parcels were sealed by the Inspector. While appearing in court as PW12 ACP Suresh Kaushik clearly stated to have put his seals on the parcels and FSL form and thereafter left the spot and on reaching the police station to have deposited all these items with MHC(M). So according to the Inspector, he affixed his seal on the parcels at the spot.
However, neither PW6 nor PW7 or PW9 stated anywhere that the Inspector had affixed his seal on the parcel or affixed it impression on the FSL form in their presence "at the spot". DD no.26A Ex.PW1/F was recorded by Inspector Suresh Kaushik himself at PS Paharganj at 10.00 p.m. In this DD entry, he clearly wrote as under : 9 "I put my seal of 'SK' on the parcels. Now I filled vacant portions of parcels and seizure memo by putting FIR number. I gave the note on the copy of seizure memo and I have signed both the parcels and deposited all the items in malkhana of the police station."
From the aforesaid contents of DD no.26A, it can safely be said that the Inspector mentioned to have put his seal on the parcels after having reached the spot. When he used words "now" in DD no.26A he clearly meant to say that he had recorded FIR number on the parcels and the seizure memo at the police station and given the note in this regard on the copy of the seizure memo.
The fact remains that the prosecution version narrated by PWs 6, 7 & 9 is in contradiction with the version narrated by PW12 Inspector Suresh Kaushik over the sealing of the case property by the later. This contradiction creates doubt as to the case property was actually sealed by the SHO i.e. whether at the spot or at the police station. Therefore, this court finds that prosecution has failed to rule out possibility by tampering with case property.
Furthermore, it has come in the statement of PW6 SI Yash Pal that the seal which he used was got prepared by him from market. Even PW12 Inspector Suresh Kaushik, the then SHO 10 also admitted in his cross examination that the seal which he used was got prepared from market. This goes to show that the two officials used seals which they got prepared from the market of their own and the seals were not issued to them officially. No sanctity can be attached to use of such a seal.
As per prosecution version, the sample parcel remained in the malkhana for about 28 days. It was sent to FSL Rohini on 29.11.2012. There is no explanation as to why the sample parcel was not got deposited at FSL Rohini soon after 01.11.2012. From this fact also possibility of tampering with case property in the malkhana cannot be ruled out.
Conclusion
11. In view of the above discussion, when no witness was joined from the public despite availability and there is no corroboration to the statements of police officials from any independent source, this is a case of noncompliance with mandatory provisions of Sec.50 of the Act and prosecution has failed to rule out possibility of tampering with the case property including the sample parcel sent to FSL, Rohini for analysis, this court comes to the conclusion that prosecution has failed to bring home charges against the accused beyond shadow of doubt. Extending benefit 11 of doubt, this court hereby orders for acquittal of accused.
Case property be disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 04.07.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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