Delhi District Court
Placed Upon The Case Of Union Of India vs . Bal Mukund &Ors., on 24 October, 2013
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In the Court of Dig Vinay Singh : Additional Sessions Judge
Spl. Judge: NDPS (NW): Rohini Courts: Delhi
In the matter of : SC No. 15/10
FIR No. 58/10
U/s 18/25/29 NDPS Act
PS Crime Branch
State
Versus
1. Kishan Chand
S/o Late Sh.Rattanchand
R/o Village Ghoshal PS Mandi,
Distt. Kullu, Himachal Pradesh.
2. Roop Lal Singh
S/o Sh.Kirpal Singh
R/o Village & Post Kander, PS Dhadla Ghat
Distt. Solan, Himachal Pradesh.
3. Beer Chand
S/o Late Sh.Rulda Ram
R/o Village & Post Bran,
Distt. Kullu, PS Manali,
Himachal Pradesh
Date of receipt : 05.08.2010
Date of arguments : 24.10.2013
Date of announcement : 24.10.2013
JUDGMENT
1. The above named three accused were sent up for trial with the case of prosecution that based on prior secret information a raid was conducted at Mukundpur Azadpur road, in front of Indian Oil Petrol Pump, on 28.04.2010, from where, at about 3 PM, accused SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 1 of 39 -2- Kishan Chand and accused Roop Lal were apprehended inside a Tata Indica Car no. HP 11A 0462 and, inside the vehicle, accused Kishan Chand was holding one plastic gunny bag which had a container, inside which 5Kg and 100 grams of „opium‟(Afeem) was recovered. From the recovered „opium‟, two samples of 50-50 grams each were separated. FSL form was filled up. The parcels containing sample „opium‟ and the recovered „opium‟, inside three different parcels mark A, B & C were sealed. Subsequently, the sample was sent to the laboratory for testing, which also confirmed it to be „opium‟. It is the case of prosecution that accused Kishan Chand made a disclosure statement that he had obtained 2 Kg „opium‟ from the third accused Beer Chand and that he had issued two cheques of Rs.25,000/- to Beer Chand as part payment of „opium‟. Based on the disclosure statement of the accused Kishan Chand, his police custody was obtained and he was taken to Manali in Himachal Pradesh. It is the case of the prosecution that on the pointing out of Kishan Chand, accused Beer Chand was apprehended on 2.5.2010 from Manali and at the time of apprehension of Beer Chand, the two cheques given to him by Kishan Chand were recovered from his possession which were bearing handwriting and signatures of Kishan Chand.
2. Accordingly, against Kishan Chand a charge U/s 18 of NDPS Act for possessing 5.1 Kg „opium‟ was framed and also a charge U/s 29 NDPS Act was framed for having entered into a conspiracy with his co-accused to transport „opium‟ to Delhi from Himachal Pradesh.
SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 2 of 39 -3-2.1. Against accused Roop Lal, case of prosecution was that he, in conspiracy with accused Kishan Chand and Beer Chand, transported „opium‟ in the car, which he drove to Delhi. Accordingly a charge U/s 29 NDPS Act was framed against him separately. In addition to charge U/s 29 NDPS Act against accused Roop Lal, a charge U/s 25 NDPS Act was also framed against him for having used the vehicle and for permitting use of the vehicle, which actually belonged to his brother, for transportation of „opium‟.
2.2. Against accused Beer Chand, a charge U/s 29 NDPS Act was only framed for having entered into conspiracy with other two accused to transport „opium‟ to Delhi.
2.3. All the three accused pleaded not guilty and claimed trial.
3. In support of its case, prosecution examined total 15 witnesses.
3.1. Out of the 15 witnesses examined by the prosecution, PW-3 HC Kanwar Pal, PW-11 ASI Harcharan, PW-12 Ct. Suresh and PW- 14 Inspector Rajesh are the recovery witnesses of contraband. From amongst the four recovery witnesses, ASI Harcharan was the initial investigating officer.
3.2. PW-15 SI Sharat Kohli was the subsequent investigating officer.
Remaining witnesses are more or less formal in nature.
3.3. The recovery witnesses of contraband deposed that on 28.04.2010 at about 1.30 PM, a secret informer came and told ASI SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 3 of 39 -4- Harcharan that Kishan Chand, a resident of Manali in Himachal Pradesh, was indulged in supply of „opium‟ in Delhi and Punjab and, that Kishan Chand would come between 2.30 to 3.30 PM in Tata Indica Car no. HP 11 A 0462 from Manali to Delhi and would supply „opium‟ to one Sukhdev of Azadpur Mandi, on that day also. It was also disclosed that „opium‟ would be supplied near Indian Oil Petrol Pump, on the road leading to Azadpur from Mukundpur near outer ring road. ASI Harcharan shared this secret information with Inspector Rajesh PW-14. The informer was also produced before the ACP. Thereafter, the secret information was reduced to writing vide DDno.14 Ex.PW-6/A (also Ex.PW-1/A). Thereafter, raiding team was constituted comprising of PW-3, 11, 12, 14 as well as Ct. Kaushal, Ct. Atul and Ct. Neeraj. The raiding team reached the spot at 2.30 PM and took position. At about 2.50 PM, the said indica car was noticed when it came from the side of Mukundpur red light on outer ring road and stopped at a distance of 50 mts ahead of the petrol pump towards Azadpur side. Accused Roop Lal was driving the said car. He came out of the car, cleaned the wind screen and, thereafter again sat in the car. At that time the raiding team surrounded the car. Accused Kishan Chand was found sitting on the front passenger seat of the car, while holding one white colour gunny bag between his legs. Both the accused were asked to come out of the car and thereafter provisions of Section 50 NDPS Act were complied with. Notices U/s 50 NDPS Act qua Kishan Chand and Roop Lal are proved as Ex.PW-3/A & B. Both the accused refused to exercise their legal rights U/s 50 NDPS Act, vide their respective refusals Ex.PW-3/C & D. Subsequently, the gunny bag was checked and it was found SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 4 of 39 -5- to be containing one transparent plastic jar which was containing 5 Kg & 100 grams of „opium‟. Small portion of „opium‟ was tested on Field Testing Kit which also revealed it to be „opium‟. Out of the recovered „opium‟, two samples of 50 grams each were taken out, which were kept inside two separate interlocking pouches and were sealed separately in two cloth parcels which were given Mark A & B. The remaining case property in the jar inside gunny bag was also sealed and was given Mark C. PW-11 applied his seal of HSS on the three parcels. He also prepared FSL form and applied same specimen seal on the FSL form. Seal after use was handed over to HC Kanwarpal. The case property was taken into possession vide seizure memo Ex.PW-3/E. In the formal search of accused Roop Lal, no contraband was recovered and regarding it one memo Ex.PW-11/A was prepared. Subsequently, rukka was prepared and was given to Ct. Suresh for registration of FIR. All the three sealed parcels, FSL form and copy of seizure memo of contraband was also given to Ct. Suresh to be taken to police station Crime Branch, which at that time was at Nehru Place, and to be handed over to SHO. Ct. Suresh left the spot with rukka and other articles.
3.4. It is deposed that thereafter PW-15 SI Sharat Kohli the subsequent investigating officer also reached the spot. On reaching the spot, SI Sharat arrested both the accused Kishan Chand and Roop Lal vide Ex.PW-3/G & J and thereafter conducted personal search of the two accused vide memo Ex.PW-3/H & K. In the personal search of the two accused, besides other articles, the two notices U/s 50 NDPS Act which SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 5 of 39 -6- were delivered to the accused by ASI Harcharan were also recovered.
3.5. ASI Harcharan and SI Sharat proved their respective reports U/s 57 NDPS Act regarding seizure of contraband and arrest of the two accused as Ex.PW-1/D & 1/E, respectively.
3.6. Ct. Suresh PW-12 and Inspector Kuldip Singh PW-10 both deposed, that upon reaching the Police Station Crime Branch, Ct. Suresh handed over the sealed parcels, FSL form and the copy of seizure memo to the SHO who applied his seal of KSY on all the three parcels as well as the FSL form. Thereafter, he also noted down the FIR number on the pullandas and the documents and deposited the articles in the malkhana.
3.7. HC Kanwar Pal, ASI Harcharan, Ct. Suresh, Inspector Rajesh and SI Sharat Kohli also deposed that police custody of the accused was obtained and the team along with the accused went to Manali from Delhi. It is deposed that on 2.5.2010, at the pointing out of accused Kishan, the third accused Beer Chand was apprehended from the main road of village Baran, near Manali, Himachal Pradesh. A notice U/s 67 NDPS Act was given to accused Beer Chand Ex.PW-3/U (Carbon copy of this notice is proved as Ex.PW-3/O). From the possession of accused, two cheques Ex.P4 & P5, which were bearing no. 114932 & 114931, both dated 12.04.2010, for Rs.25,000/- each, drawn on Post Office Savings Bank Account, Kullu were recovered. It is the case of the prosecution that these two cheques were issued by accused Kishan Chand from his account in favour of accused SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 6 of 39 -7- Beer Chand and these two cheques bear handwriting and signatures of accused Kishan. It may be mentioned here that Cheque no. 114932 is in the name of Beer Chand and the second cheque is in the name of Beer Singh. Both the cheques were taken into possession vide seizure memo Ex.PW-3/P. Accused Beer Chand was arrested vide memo Ex.PW-3/J and, his personal search was conducted vide memo Ex.PW-3/K. From the personal search of accused Beer Chand, copy of notice U/s 67 NDPS Act was recovered which is proved as Ex.PW-3/O. 3.8. SI Sharat proved another report U/s 57 NDPS Act qua accused Beer Chand as Ex.PW-14/B. 3.9. Remaining witnesses are more or less formal in nature.
3.10. PW-1 ASI Ajmer Singh deposed that true copy of DD no.14 Ex.PW-1/A was received in the office of ACP, Crime Branch, Sector-18, Rohini on 28.04.2010 under entry no.494, Ex.PW-1/B. He also deposed that on 29.04.2010 the two reports U/s 57 NDPS Act Ex.PW-1/D & E, respectively, given by ASI Harcharan and SI Sharat Kohli regarding seizure of contraband and arrest of accused Kishan Chand and Roop Lal, respectively, were received in the office of ACP vide entries no. 497 & 498, Ex.PW-1/C. He also deposed that on 4.5.2010, one more report U/s 57 NDPS Act qua arrest of accused Beer Chand given by SI Sharat, Ex.PW- 1/G, was received in the office of ACP vide entry no. 517, Ex.PW- 1/F. He deposed that the reports were produced before ACP who saw and initialed them.
SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 7 of 39 -8-3.11. PW-2 Woman HC Suman was the duty officer who proved FIR Ex.PW-2/A and endorsement on rukka Ex.PW-2/B. 3.12. PW-4 Vijender Singh was the hand writing expert who proved his report Ex.PW-4/A to the effect that the questioned writings and signatures on the two cheques Ex.P4 & P5 are in the handwriting of accused Kishan Chand, as compared by him with the specimens of Kishan Chand S1 to S4 as Ex.PW-4/B, C & D. 3.13. PW-5 Lady Ct. Harsh Lata was Chittha Munshi from Police Station Manali in Himachal Pradesh and she proved the General Diary entry Ex.PW-5/A regarding arrival of the police team on 2.5.2010 in the police station Manali and also GD no. 40A of the same date, at 9 PM, as Ex.PW-5/B, regarding second visit of the police team in the police station, this time along with accused Beer Chand.
3.14. PW-6 HC Anil Kumar was the duty officer in Special Investigation team, Crime Branch, Sector-18, Rohini and he proved DD no. 14 as Ex.PW-6/A & A1; DD no. 15 as Ex.PW-6/B & B1; DD no. 19 at 5.55 PM regarding departure of SI Sharat as Ex.PW-6/C; DD no. 22 at 11.05 PM regarding arrival of SI Sharat and other team members with accused as Ex.PW-6/D and; two DD no. 6, `dated 1.5.2010 and 4.5.2010 regarding departure & arrival to and from Manali as Ex.PW-6/E & F. 3.15. PW-7 Raj Kumar deposed that his brother Roop Lal borrowed his Tata Indica car as he had to drop some passengers to Delhi from Himachal Pradesh.
SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 8 of 39 -9-3.16. PW-8 Navin Kumar proved registration certificate of the car in question as Ex.PW-8/A. Admittedly, the car was not registered in the name of PW-7 but was in the name of Ramji Verma, although PW-7 had purchased it.
3.17. PW-9 Prem Lal was the Post Master from Manali who proved that the account from which the two cheques in question were issued belonged to the account of accused Kishan Chand. He proved the Savings Bank Ledger as Ex.PW-9/A, pertaining to transactions between 9.3.2007 to 21.03.2007; computerized copy of transactions Ex.PW-9/A1; specimen signature card of accused Kishan Ex.PW-9/B; stock register of cheque book Ex.PW-9/C. He identified the two cheques Ex.P4 & P5 as issued from the account of Kishan Chand. He also proved two other cheques for Rs.700/- & Rs.1000/-, respectively, as Ex.PW-9/E & F which were purportedly encashed in favour of somebody named Raju and Surender Kumar.
3.18. PW-13 HC Chand Ram deposed that on 28.04.2010 Inspector Kuldip Singh deposited three parcels duly sealed with the seal of HSS and SKY in the malkhana along with the FSL form, regarding which he made entry Ex.PW-13/A. He also proved that on 13.05.2010 the sample parcel Mark A along with the FSL form were sent to the laboratory through Ct. Suresh vide road certificate Ex.PW-13/B. He also deposed that Ct. Suresh after depositing the parcels in the laboratory obtained one acknowledgment receipt and deposited it in the Malkhana, which acknowledgment receipt is proved as Ex.PW-13/C. SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 9 of 39
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4. On conclusion of the prosecution evidence, all the incriminating evidence was put to the three accused in their statements under section 313 Cr. P.C. 4.1. Accused Kishan Chand stated that he was not apprehended from the spot or from the car on the date and time as claimed by the prosecution witnesses, instead he was picked up by the police officials on 26.04.2010 at 6 PM from Budh Vihar, Delhi. He claimed that he left Manali on 25.04.2010 and reached Delhi on 26.04.2010 as he had to buy spare parts for his Ara machine (wood cutting machine). He claimed that Rooplal was not with him when he was picked up. He also claimed that no gunny bag or „opium‟ was recovered from him and that it was planted upon him. He claimed that when he was picked up on 26.04.2010, no notice U/s 50 NDPS was served upon him and instead his signatures were obtained on blank papers in the police station after he was beaten. He also claimed that his mobile was also taken by the police on 26.04.2010 which was kept by the police with them. Regarding Manali, he stated that although he was taken to Manali on 30.04.2010, while in police custody, but at that time one Rohit Rana was also with them, who was in illegal custody of police but was subsequently let off by the police on the way to Manali. He claimed that he was taken to his house from where his cheque book was taken by the police officials and he was forcibly made to write and sign the cheques Ex.P4 & P5 by the police. He admitted his specimen signatures and writings. He also admitted his account in the post office. He denied rest of the evidence against him. He did not opt to lead any defence SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 10 of 39
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evidence in his favour.
4.2. When entire incriminating evidence was put to accused Rooplal in his examination U/s 313 Cr.P.C, although he admitted that he had taken the car in question from his brother on 26.04.2010 but he claimed that he was not apprehended from the spot on 28.04.2010. He claimed that he was apprehended by the police with his car on 27.04.2010 from Majnu ka Tila. He claimed that Kishan Chand was not with him at the time of apprehension and no contraband was recovered from his car. He also claimed that even his signatures were obtained on the blank papers and at the time of his apprehension, no notice U/s 50 NDPS was given to him nor any such notice was recovered from his personal search. Regarding signing the blank papers, he claimed that the blank papers were got signed by him under duress.
4.3. In defence, accused Roop Lal examined Sh.R.K.Singh Nodal Officer from Bharti Airtel as DW-1 who proved the call details of mobile no. 9816282359 for the period 25.04.2010 to 5.5.2010 as Ex.DW1/A3. This mobile was in the name of one Nizamuddeen. This witness also proved call details of other mobile no. 9816355200 for the period 25.04.2010 to 2.5.2010 as Ex.DW1/B3 and this mobile was in the name of one Sarita Devi. So far as mobile no. 08894555115 is concerned, he deposed that this mobile was not in operation between 25.4.2010 to 5.5.2010. This witness proved the Cell ID Chart as Ex.DW1/E. He also proved the roaming details of mobile no. 9816282359 as Ex.DW1/A4 with Cell ID chart Ex.DW1/A5. Accused Roop Lal did not examine SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 11 of 39
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any other defence witness.
4.4. Similarly, when entire incriminating evidence was put to the accused Beer Chand, he claimed that he had no concern whatsoever with accused Kishan Chand or Roop Lal and he had no dealings with them on any account whatsoever. He claimed that he was picked up from his house on 1.5.2010 at about 9 PM and at that time accused Kishan Chand was not with the police team. He also claimed that no cheque was recovered from his possession, as he had no dealings with Kishan Chand and that his signatures were obtained on the blank papers by the police in Manali after he was picked up by the police from his house. He also claimed innocence and stated that there were 2-3 other persons in his village Baran in Himachal Pradesh by the name of Beer Singh.
4.5. Accused Beer Chand examined himself to prove death certificate of his father Ex.DW2/A to prove that his father died way back in October 1991 whereas the police claimed that after his arrest, his father was informed in May 2010 i.e. almost 20 years after death of his father. Though in the testimony of the witnesses it has come that father of accused Beer Chand was informed of his arrest, but no unnecessary weight can be given to such statement of the witnesses particularly when in the arrest memo Ex.PW3/Q, it is specifically mentioned that the person informed was father-in-law and not father. It appears to be a simple case of memory loss over a period of around two to three years from the date of arrest of Beer Chand and date of deposition by witnesses, which is quite SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 12 of 39
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natural.
5. None of the three accused came up with any explanation as to why they would be falsely implicated by the police in this case, as claimed by them. Yet, in a criminal trial the burden of proof is on the prosecution, which is quite heavy and it is the prosecution's case which has to be proved beyond reasonable doubt. Weakness in defence of an accused cannot be called in aid to claim that prosecution's case must be believed. The case of prosecution has to stand on its own legs.
6. I have heard learned prosecutor for the state and learned counsels for the three accused.
7. In a case under the NDPS Act, keeping the case property in absolutely safe condition is of utmost importance and no leniency can be shown to the prosecution's case on this aspect of the matter, particularly when the prosecution's case is based only on the testimonies of police officials and no independent witness is joined. I am conscious of the fact that even testimony of police official alone can be a basis for conviction but such testimony of police official must be inspiring and trustworthy before it can be acted upon. In the present case, despite the fact that secret information was received by the police well in advance, no independent public witness has been joined. The claim of prosecution witnesses that some public witnesses were requested but they refused is doubtful as even names and addresses of those persons who were so requested has not been recorded anywhere. Although, it is claimed that there was a petrol pump SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 13 of 39
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near the place of apprehension of accused Kishan Chand and Roop Lal, yet none of the employees, manager or owner of the petrol pump has been joined as a witness. The claim that employees of petrol pump were requested but they refused again cannot be accepted without a pinch of salt. Had they been actually requested and had they refused, it was not difficult for the investigating officer to find out their names and record their names so that this court could have verified the genuineness of the claim. No legal action has been taken against anybody who allegedly refused to become witness. Yet when the evidence of the present case is appreciated, it can be acted upon if the testimony is found trustworthy and safe to act upon. In a criminal case trial, initial burden of proof is always on the prosecution and the said burden is quite heavy. The prosecution has to prove its case independent to the defence of an accused and it is not for an accused to prove his defence. The case of prosecution must stand independently. Weaknesses in defence cannot be called in aid to claim that prosecution has succeeded in proving its case. Prosecution has to prove its case beyond reasonable doubt. In a case of NDPS Act, since punishments provided are very stringent and are one of the extreme punishments available in law, it becomes the duty of court to sift, examine and appreciate the evidence minutely. No relaxation can be given to the prosecution when crucial witnesses in a serious offence like NDPS case, falters. It is an accepted principle in law, that the severer the punishment is, stricter is the degree of proof required.
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8. In Mousam Singha Roy and Others v. State of West Bengal 2003 (3) JCC 1385 : [(2003) 12 SCC 377], Hon'ble Supreme Court held :
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since the higher degree of assurance is required to convict the accused."
9. With those basic principles of criminal jurisprudence in mind, let us appreciate and examine whether the present case of prosecution is believable and whether conviction can be safely based on it.
10. The first thing done by the investigating officer, after receiving the secret information and after the secret information was disclosed to senior officers, was recording of DD no. 14 which is proved as Ex.PW-1/A. Claim of prosecution is that this DD no.14 was recorded at 2.00 PM on the date of incident and the probable time of apprehension of the offender was between 2.30 PM to 3.30 PM. It is also the case of prosecution that the vehicle number in which the offenders were likely to come to the spot was specifically disclosed by the informer and was noted down in DD no. 14. The very registration of DD no. 14 is clouded with suspicion for the following reasons.
10.1. After alleged recovery and apprehension of accused Kishan Chand and Roop Lal, the initial investigating officer ASI Harcharan Singh gave a report U/s 57 NDPS Act qua seizure of contraband. That report is proved as Ex.PW-1/D. This report is a computer SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 15 of 39
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typed report. In this report, the number '14', pertaining to DD under which secret information was reduced to writing, was subsequently added with pen. It is apparent at point X on Ex.PW- 1/D. This Ex.PW-1/D is the original report U/s 57 NDPS Act signed by ASI Harcharan Singh; signed and forwarded by Inspector Rajesh Sharma and; received and signed by the concerned ACP of the special investigating team. This report was prepared on 29.04.2010 i.e. one day after the recovery of contraband and it was received on that very day in the office of ACP. One more copy of this very report has also been proved in the Court as Ex. PW-1/D. This subsequent Ex. PW-1/D is photocopy of the earlier report Ex. PW-1/D. It bears photocopy impression of dates and signatures of ASI Harcharan, Inspt. Rajesh as well as the ACP. This report has been filed by none other than the prosecution. Since, signatures and date of ASI Harcharan Singh, Inspt. Rajesh and the ACP appear on the photocopy along with the stamp of SIT, Crime Branch on the top of this document with the entry no.497, it is clear that this photocopy was obtained only after the ACP signed the original report Ex. PW-1/D. But surprisingly on the 7th line from top of this subsequent Ex. PW-1/D (photocopied one) the DD number is blank. Whereas on the original report Ex. PW-1/D the said DD number exists in handwriting of somebody. This fact suggests only one thing, i.e., when the ACP signed the report U/s.57 NDPS Act on 29.04.2010, DD number was not mentioned on the original report Ex. PW-1/D. The very fact that in the subsequent Ex. PW- 1/D which is a photocopy of original Ex. PW-1/D, signature of ACP with date and endorsement exists under photocopy impression SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 16 of 39
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proves beyond doubt that when the photocopy was obtained, the signatures and endorsement of ACP had already been appended. In that eventuality of the matter had the DD No.14 been already written on the original report, the said number would have appeared under the photocopy impression also. Absence of the DD number creates strong doubt as to whether this DD was in existence at the time when photocopy of report U/s.57 NDPS Act was obtained on 29.04.2010 or thereafter. This fact clearly shows that after the report was signed by the ACP, the DD number was inserted later on by someone on the original report Ex.PW1/D. It has not been explained as to who, when and where inserted that DD number in the report U/s 50 NDPS Act. The existence of number 14 qua the DD number on Ex.PW1/D which was prepared on the next day of the incident, in somebody‟s handwriting whereas, the document Ex.PW1/D is a computer printout itself reveals that the DD number was added subsequently.
10.2. Secondly, the notices U/s.50 NDPS Act Ex. PW-3/A & B, which allegedly were prepared at the spot before search of the bag and search of the two accused, does not bear any DD No.14. Had the DD been entered by the Investigating Officer before preparation of these two documents, the DD number should have been mentioned on these two notices. Not only the DD number is missing on these two notices, but also no such DD number is mentioned on the seizure memo Ex. PW-3/E which also was allegedly prepared long after alleged registration of DD No.14. The fact of missing of DD no. on these three documents Ex. PW- 3/A, 3/B & 3/E further enforces the view that the DD No.14 was SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 17 of 39
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not in existence at the time of preparation of seizure memo.
11. The fact that there is something seriously amiss in the version of prosecution is also writ large from the following facts about the vehicle number. It is the case of prosecution that the informer had allegedly informed the exact vehicle number in which the offenders were likely to come to the spot much before the raiding team had left the office for the spot. The vehicle number presented to the Court by the prosecution is HP-11A-0462. As per the case of prosecution, this very vehicle came to the spot in which accused Kishan Chand and Roop Lal were allegedly carrying Ganja and were allegedly apprehended. With these facts in mind, that the exact vehicle number was in the knowledge of raiding team before going to the spot, let us examine the report U/s.42 of NDPS Act; the two notices U/s.50 NDPS Act; the seizure memo and; the rukka.
11.1. In the report U/s.42 of NDPS Act Ex. PW-1/A, there is an overwriting in the number of vehicle. To be precise, the No. „6‟, out of „0462‟ has been over written and changed from some other number to No. „6‟. One may ignore this overwriting calling it as an inadvertent error which can happen with anybody. But isn't it strange that in the notice U/s.50 NDPS Act of accused Roop Lal which was prepared at the spot after apprehension of the two accused Kishan Chand and Roop Lal, the same numerical „6‟ has been over written and corrected from some other numerical to numerical „6‟. When this document was prepared at the spot, the car had already arrived at the spot, as per prosecution. The car SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 18 of 39
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was also noticed by everybody in the raiding team. This document was prepared after substantial moments of apprehension of the two accused and after substantial moments of arrival of the car. Even if one is to argue that the car number might have been inadvertently wrongly recorded in the written secret information Ex.PW-1/A, and even if this argument is taken further that the informer might have given a wrong number, the fact that the same numerical no. „6‟ finds overwritten on the notice U/s 50 NDPS Act creates a strong suspicion as to whether actually DD no. 14 was entered at the time claimed by the prosecution. It may be reminded that this notice was prepared after the car had arrived at the spot.
11.2. Not only the notice U/s 50 NDPS Act, but also the seizure memo Ex.PW-3/E bears the same correction in the number of vehicle from some numerical to numerical „6‟. This seizure memo was admittedly prepared at the spot long after the car arrived and after the contraband was checked, tested, sealed etc. Even if one is to assume that in the earlier two documents clerical error took place in noting down the number, it bothers one‟s mind as to why this very error occurs in the seizure memo.
11.3. Not only in the seizure memo of contraband, the same overwriting on numerical „6‟ appears in the rukka. In the rukka also, the vehicle number has been corrected from some other number to number „0462‟.
11.4. It cannot be a case of inadvertent error in all these documents.
Rather, existence of this overwriting of numerical „6‟ in the notice SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 19 of 39
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U/s 50 NDPS Act; in the seizure memo; in the rukka and; in the report U/s 42 NDPS Act clearly indicates that DD No.14 was not registered at the time claimed by the prosecution. The photocopy of DD no.14, from the DD register, proved in the court as Ex.PW- 6/A1 does not contain any correction on the numerical „6‟. Isn't it surprising, and doesn't that raise suspicion, that the original DD entry does not contain any correction on the numerical „6‟, whereas its true copy and other subsequent documents contain correction. This fact coupled with the fact that DD no.14 does not find mention in the photocopy of original report U/s 57 of NDPS Act Ex.PW-1/D, whereas, it finds mention in the original report in somebody's handwriting, particularly after signatures of the ACP on the original report, proves clearly that DD no. 14 was entered subsequently.
12. The original DD register was also called by this court to peruse the DD register and it was noticed that the substance of DD no. 14 was unnecessarily cramped to cover the contents of DD within the limited space available up to the bottom of the page on which DD no.14 is written. The said fact also is clear from Ex.PW-6/A-1 which is photocopy of the relevant page of DD register containing entries from DD no. 11 to DD no. 14. The contents of DD no. 11, 12 & 13 lodged above the DD no. 14 have been written with free hand and in sufficiently fair font, size and placement, whereas, this DD no. 14 is unduly small in font size and unduly cramped. This fact also suggests that there is something seriously amiss in the version of prosecution.
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13. The case property when produced in the court for the first time in the testimony of PW-3 HC Kanwarpal and exhibited in his testimony for the first time demolishes the case of prosecution. The main gunny bag inside which the „opium‟ remained after the samples were drawn was given Mark C at the spot by the investigating officer. It is the case of prosecution that this parcel was sealed with the seal of HSS at the spot along with the two sample parcels which were also sealed with the seal of HSS. From the spot, the three sealed parcels i.e. the parcel containing main contraband and its two samples were taken to police station Crime Branch Nehru Place by Ct. Suresh. It is the case of prosecution that in the police station SHO Inspt. Kuldeep Singh applied his seal of KSY on all the three parcels.
13.1. But when the parcel Mark C containing the main contraband was produced in the Court for the first time on 25.04.2011, it was having the seal of KSY only. It was not having any seal of HSS. It is clearly mentioned in the testimony of PW-3 HC Kanwarpal that the katta Mark C was duly sealed with the seal of KSY from the mouth when produced by the MHC(M). What happened to the seal of HSS? This fact would suggest that the case property was not even kept in absolutely safe condition till it was proved in the Court, and which was extremely important to do. This fact assumes importance particularly in view of the fact that the SHO Inspt. Kuldeep Singh did not hand over his seal to any independent person or even any other police official after sealing the pullandas on 28.04.2010, admittedly. This fact also assumes importance in view of the fact that signatures of accused were not SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 21 of 39
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taken on the pullandas at the spot at the time of sealing the pullandas, which though was not mandatory but directory under the guidelines issued by Narcotics Control Bureau. Had the said direction of obtaining signatures of accused on the pullandas at the spot been complied with in this case, the prosecution could have argued that there was no tampering done with the contents of the parcels. But for some odd reason, it was not done and signatures of accused were not obtained. When the SHO did not give his seal after use to anybody and when the parcel was not even bearing signature of accused, the prosecution fails in satisfying the condition that the case property was not tampered with. Benefit of it obviously has to be given to the accused.
13.2. The malkhana moharrar PW-13 HC Chand Ram did not depose that till the time case property remained in his possession in the malkhana, nobody tampered with it. Similarly, Ct. Suresh who took the case property from the spot to the police station Crime Branch and also from the malkhana of police station to the lab on 28.4.2010 and on 2.5.2010, respectively, did not depose that the case property remained in safe condition till the time it remained in his possession. In a case of NDPS Act, this statement is extremely important. In absence of such a statement by the witnesses, benefit has to go to the accused. Silence of PW-13 HC Chand Ram and PW-12 Ct. Suresh on this aspect of the matter becomes more significant in view of the fact that the seal of SHO was not even handed over to any independent person and also one of the seal was missing on parcel C when it was produced in the court for the first time.
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14. Everything is not as fair as claimed by the prosecution, is also proved from the page containing the DD No.19 Ex. PW-6/C proved by the prosecution itself. This DD no.19 was entered when SI Sharad Kohli left the office of SIT at 5.55 PM after he was appointed as further Investigating Officer of the case. One DD No.18, which was registered immediately prior to this DD No.19, clinches the issue as to the fairness of the prosecution. Though this DD No.18 has not been proved and this DD has not been exhibited separately but photocopy of this DD entry is contained on the same photocopied page in which DD No.19 and DD No.15 are proved by the prosecution as Ex. PW-6/C & 6/B1. Ex. PW- 6/B1 & Ex. PW-6/C are on the same page of the DD register and it is a photocopy of original DD register. In this very page, DD NO.18 is also written. In this DD No.18, it is mentioned that at 5.30 PM one telephonic information was received in the office of SIT from Inspt. Rajesh Sharma to the effect that „one person‟ has been apprehended by ASI Harcharan Singh at Mukundpur Chowk, near Petrol Pump with 5 kgs of Afeem and, therefore, SI Sharad Kohli be sent to the spot. The words 'Ek Vyakti' (one person) is clearly mentioned in DD No.18. If one person was apprehended with Afeem, the case of prosecution that accused Kishan and Roop Lal were apprehended at the spot falls flat. Had both accused Kishan Chand and Roop Lal been apprehended at the spot, there was no occasion for DD No.18 to contain that „one person‟ was apprehended with Afeem.
14.1. Not only this fact but also the fact that in this DD No.18, it is mentioned that 5 kgs of Afeem was recovered from that „one SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 23 of 39
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person‟ is also against the case of prosecution, according to which not 5 but 5 kgs and 100 grams of Afeem was recovered. The time of registration of this DD No.18 at 5.30 PM is important, since it rules out that this intimation for subsequent investigating officer was given by Inspt. Rajesh before measurement of Afeem. Rather Afeem had, admittedly, already been measured by that time and therefore, there should have been no occasion for this mistake of getting noted „one person‟ instead of two persons and getting noted the wrong quantity of Afeem. Even if one brushes aside the wrong quantity as a mistake of only 100 grams of afeem, one cannot lightly brush aside the fact that one person is claimed to be apprehended instead of two persons. It may be reminded here that apprehension of the two accused is claimed to be at 2.50 PM whereas this DD No.18 was written at 5.30 PM. Prosecution cannot deny this DD No.18 as the page on which this DD No.18 finds mentioned is proved by none other than prosecution. Even otherwise, to be on safer side, the original DD register was called by this Court and was seen in order to rule out any mistake.
14.2. When as per DD No.18 one person was apprehended with Afeem, the story of prosecution that Kishan Chand and Roop Lal both were apprehended at the spot becomes unworthy of belief. In DD No.18, the name of said one person is not mentioned and therefore, it is not clear as to which of the two accused was apprehended at the spot with Afeem. The moment this Court gets a reasonable doubt as to the version of the prosecution and when a lot of suspicion creeps in because of the above mentioned facts, SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 24 of 39
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I pose a question to myself as to whether it would be safe to base conviction on the basis of testimony of such witnesses?
15. There is one more report U/s 57 of NDPS Act proved on record as Ex.PW-14/D-1, besides the two reports Ex.PW-1/D. This report was admitted by PW-14 Inspector Rajesh Sharma in his examination, as bearing his carbon impression forwarding note and signatures dated 29.04.2010. In this report Ex.PW-14/D-1, which is also given by ASI Harcharan Singh on 29.04.2010, it is mentioned that after satisfaction, Inspector Rajesh Sharma further informed ACP/SIT on telephone about the secret information and the ACP directed that necessary action be taken.
15.1. Contrary to this, the other report Ex.PW-1/D which is again U/s 57 of NDPS Act and which was also given by none other than ASI Harcharan Singh, it is mentioned that after satisfaction, Inspector Rajesh Sharma produced the secret informer before ACP/SIT in office and the ACP directed that action be taken. Thus, there are two self-contradictory reports U/s 57 of NDPS Act, both given by ASI Harcharan Singh on 29.04.2010 and both contains different version as to whether the informer was produced before ACP or the ACP was informed, telephonically. This fact would also suggest that the prosecution, as per its convenience has been replacing documents of the case to suit its requirement. Ex.PW- 14/D-1 which mentions that ACP was telephonically informed contains signatures of ASI Harcharan Singh as well as Inspector Rajesh Sharma with the date of 29.04.2010, under carbon impression. It means that not only this report was prepared and SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 25 of 39
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signed by ASI Harcharan Singh but it was also forwarded by Inspector Rajesh. Original of this document has not seen light of day. What happened to this original report has been concealed, which apparently is a deliberate attempt. Instead of this report, Ex.PW-14/D-1, another report Ex.PW-1/D was proved on record by the prosecution and Ex.PW-1/D again bears signatures of ASI Harcharan Singh and Inspector Rajesh of the same date 29.04.2010. It may be mentioned that Ex.PW-14/D-1 was put to the witness during cross examination by the accused and the witnesses of prosecution had attempted to conceal this document. One thing may also be noticed that even in Ex.PW-14/D-1, the DD no.14 is missing which further enforces the view that the DD was not in existence till the time Ex.PW-1/D, second document Ex.PW- 1/D and Ex.PW-14/D-1 were prepared.
16. Timely existence of DD no.14 is also doubtful from the fact that PW-6 HC Anil Kumar deposed that DDno.14 was in the handwriting of SI Sharat Kohli. At the time when DD no.14 is shown to have been registered at 2 PM, SI Sharat Kohli was not even in picture and SI Sharat Kohli got information of this case, as per the prosecution's own version, at 5.30 PM under DD no. 18 on that day. This fact again creates suspicion as to whether prosecution has come up with true story before this court and as to whether DD no.14 was noted down at the time claimed.
17. This Court cannot be oblivious of the fact that under the NDPS Act 1985, the punishment provided is one of the severest punishments available in law. It has been an accepted principle of SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 26 of 39
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criminal law that severer the punishment is, the stricter has to be the degree of proof and evidence has to be evaluated carefully. No relaxation can be given to prosecution when the witnesses falter in such cases and when the documents indicate something amiss in such stringent cases of NDPS. It is so particularly in view of the fact that independent witnesses were not joined.
18. In the FIR for some odd reason, fluid has been applied on the name, rank as well as the number of the official working as Duty Officer and it appears that the name, rank and number of somebody else was typed, upon which correction fluid was applied and the name was changed to Suman with the designation and number from someone else's name, designation and number. There are two copies of FIR exhibited in this case. One is Ex. PW-2/A and another is Ex.PW-2/D1. Though the name, rank and number of Suman is written by hand on the copy of FIR Ex. PW-2/A, her name and number finds duly printed in the second copy of FIR.
19. Though in the facts and circumstances in the present case, there was no requirement of notice U/s.50 NDPS Act as the gunny bag containing Afeem was recovered from the car which bag allegedly accused Kishan Chand was holding, yet notices were delivered to Kishan Chand and Roop Lal by the investigating officer and rightly so as by that time the investigating officer was not aware as to whether any contraband would be recovered from the person of the two accused or not. But these two notices also indicate that fairness is lacking. Allegedly the two accused Kishan Chand and SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 27 of 39
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Roop Lal gave their refusal in their own respective handwriting on the original notices and those refusals have been proved as Ex. PW-3/D & 3/B qua accused Kishan Chand and Roop Lal respectively. The two refusal of these two accused are verbatim same, accept one addition line in the refusal of Kishan. This fact suggests that the refusal was not written by the two accused out of their own free will, and either they were copied from each other or they were dictated verbatim by someone and that someone cannot be either of the two accused. This fact takes away the element of free and fair refusal offered by the accused. This fact also suggests lack of fairness in the case of prosecution.
20. Though accused Kishan Chand and Roop Lal claim that they were not apprehended together on the date, time and place as claimed by the prosecution witnesses and that they were apprehended from some other spot at different times and though during arguments they claimed that they were strangers to each other till they were implicated in this case but I am not prepared to buy that argument for the reason that the mobile call details of accused Kishan Chand proved in defence evidence through DW1 Sh. R.K. Singh, the Nodal Officer from Bharti Airtel clearly indicates that accused Kishan Chand was talking to accused Roop Lal through mobile even prior to the date of incident.
21. The fact contained in DD no.18 to the effect that one person was caught with contraband by ASI Harcharan as per information telephonically delivered by Inspector Rajesh may be a true statement and it is so suggested by the fact that in the seizure SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 28 of 39
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memo of contraband Ex.PW-3/E, there is signature of only Kishan Chand and this seizure memo does not contain signature of Roop Lal, admittedly. Absence of signatures of Roop lal on the seizure memo coupled with the fact that there is same correction done on the number of vehicle in the seizure memo, the notice U/s 50 NDPS Act of Roop lal, the rukka and Ex.PW-1/A i.e. true copy of DD no. 14 indicates that initially car was not at the spot and initially there was only one person at the spot. Had both the accused Kishan Chand and Roop Lal been apprehended together, I do not find any reason as to why same mistake of number of vehicle must exist on the above mentioned documents, particularly when as per the case of the prosecution the car was physically available at the spot. It is nobody's case that the car was bearing defective or illegible number plate which could have triggered the above mentioned mistakes in noting down the number of car. In the notice U/s 50 NDPS Act of accused Kishan Chand, the vehicle number is not mentioned, though it is mentioned in the notice of Roop Lal whereas both the notices were prepared simultaneously, again creates suspicion.
22. Presence of Inspector Rajesh at the spot is also highly doubtful. It becomes doubtful on account of two major reasons.
22.1. First is, that DD no.18 lodged at 5.30 PM in SIT Crime Branch, Sector-18, Rohini, was admittedly lodged on the telephonic information of Inspector Rajesh. The contents of this DD would reveal that Inspector Rajesh Sharma telephonically informed the duty officer that one person "ek vyakti" has been apprehended by SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 29 of 39
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ASI Harcharan with „opium‟ at Mukundpur Chowk. Had Rajesh Sharma been at the spot, the obvious information would have been that the 'raiding team' or 'we' had apprehended one person with „opium‟. This statement indicates that perhaps Inspector Rajesh was not present at the spot as the words used were that ASI Harcharan has apprehended one person.
22.2. Secondly, in none of the documents prepared at the spot, there exists signatures of Inspector Rajesh. Had he been there at the spot, being senior most member, he would have signed at least one of the document. These two facts again creates a great suspicion as to the story of prosecution.
23. The version put forth in this court by the witnesses is not a correct version, is also clear from the fact that all the prosecution witnesses claimed that from the spot the two accused were taken to Ambedkar Hospital, after the spot was left between 10.15 to 10.30 PM. In the hospital, medical examination of the two accused was conducted and thereafter the police team along with the accused went to SIT, Crime Branch. In the SIT Crime Branch, Sector-18, Rohini, DD no. 22 Ex.PW-6/B was lodged at 11.05 PM. In this DD, it is specifically mentioned by SI Sharat Kohli that he had brought accused Kishan Chand and Roop Lal to the office after arresting them. It is also mentioned in this DD that the two accused were brought to SIT Office after their medical examination. Inspector Rajesh who was the senior most member of the team specifically deposed in the court that on 28.4.2010 the accused were kept in the office of SIT Crime Branch and they SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 30 of 39
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were not kept in any lockup of any police station. Other witnesses also took this stand. But this fact is belied from DD no.71, dated 28.4.2010, registered in police station Samai Pur Badli. This DD no.71 was concealed by the prosecution from this court, for reasons undisclosed by the prosecution but hereinafter enumerated. This DD was called by the court suo moto as recently in one more case of this very special investigation team, it was found that the case of prosecution was based on falsehood and the accused of that case were already in lockup of police station Samai Pur Badli, whereas, after their time of being locked up, various proceedings were claimed to have been done by the investigating agency of that case. In that case, it came to the notice of court that SIT Crime Branch does not have its own lockup and usually accused are kept in the lockup of police station Samai Pur Badli, being nearest to SIT Office. The experience of this very special investigating team in the earlier case before this court, made this court extra cautious. Quite surprisingly, DD no.71 of PS Samai Pur Badli reveals that accused Kishan Chand and Roop Lal were already put in the lock up at 10.55 PM, whereas, DD no.22 of SIT Crime Branch records that at 11.05 PM on that very day the two accused were taken to SIT Crime Branch from hospital. Thus, the deposition of prosecution witnesses to the effect that accused Kishan Chand and Roop Lal were kept in the SIT Office and were not kept in the lockup of police station, is false to the knowledge of the witnesses. These very witnesses who deposed falsely on this aspect of the matter also, expects the court to believe their version. This fact impeaches creditworthiness of the witnesses and the case.
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24. The recovery and seizure has not been made in accordance with the standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi and in this regard, reliance is placed upon the case of Union of India Vs. Bal Mukund &Ors., 2009 Crl. L. J. 2407. Clause 1.9 & 1.10 of the Instructions reads as under :-
"1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples.
1.10 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret- Drug sample/Test Memo" to be sent to the chemical laboratory."SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 32 of 39
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24.1. Though non-compliance of standing instructions by itself may not vitiate trial and it may be only an irregularity and not illegality, however, it assumes importance in the facts and circumstances of the present case.
25. The above mentioned various falsehood are writ large and in view of those falsehoods, more than reasonable doubt arises as to the true version of prosecution in this case. Because of the above mentioned facts, I am constrained to give benefit of doubt to accused Kishan Chand and Roop Lal.
26. Turning to the charge against accused Beer Chand, admittedly against him the case of prosecution is only to the extent that he was in conspiracy with other two accused particularly Kishan Chand in transportation / supply of Afeem. From his possession, when he was apprehended in Manali on 02.05.2013, two cheques Ex.P4 & P5 were allegedly recovered which bears handwriting and signature of Kishan Chand.
26.1. Ld. Counsel for accused Beer Chand has emphasized a lot on the issues as to when, who, how, in which vehicle, on which date and time, the police team went from Delhi to Manali and at what time they reached or where they stayed in Manali, etc. Though, Ld. Counsel for the accused Beer Chand laid a great stress on the point that the witnesses deposed that father of Beer Chand was informed of his arrest, whereas, his father had expired long ago, but I do not attach any importance to this stray statement of witnesses, for the reason already mentioned by me above that in the arrest memo, it is specifically recorded that the father-in-law SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 33 of 39
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was informed and not father and also since witnesses were examined in the court after a long time of the incident.
26.2. Though a large number of contradictions on some very important issues on those aspects of the matter have come up in the cross- examination of witnesses, but it is not denied by accused Beer Chand that he was apprehended from Manali. More than the date, time and place of apprehension of accused Beer Chand from Manali, the case of prosecution hinges on the fact to prove that he was found in possession of the two cheques. Accused Beer Chand, in his statement U/s.313 Cr.P.C., claimed that he was picked up from his house in Manali on 01.05.2010 at about 9 PM. He denied that any cheque was recovered from him. Kishan Chand also denied that he gave any cheque to Beer Chand. Kishan Chand rather claimed that in Manali, he was taken to his house from where the cheque book was taken and he was forcibly made to write those two cheques.
26.3. From the handwriting expert's report and admission of Kishan Chand about his writing and signature, it is proved that those two cheques bear handwriting and signature of Kishan Chand. However, until and unless prosecution witnesses prove that those two cheques were recovered from Beer Chand, charge against Beer Chand cannot sustain.
26.4. It is highly doubtful that all the raiding team members namely ASI Harcharan Singh, Inspt. Rajesh, HC Kanwar Pal and Ct. Suresh and SI Sharad Kohli along with other police officials went to Manali. Those witnesses have contradicted themselves on some SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 34 of 39
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major points, such as whether both the accused Kishen Chand and Roop Lal were taken to Manali or only accused Kishan Chand was taken. HC Kanwar Pal, Ct. Suresh, Inspt. Rajesh and ASI Harcharan Singh claimed that both the accused were taken to Manali. Whereas the case of prosecution is that only accused Kishan Chand was taken to Manali. Witnesses have also contradicted themselves as to on which date and time, they left Delhi for Manali, creating a reasonable doubt as to whether they all actually went to Manali with SI Sharad Kohli or not.
26.5. Even if it is assumed that all of them went to Manali, and the arrest of accused Beer Chand from the place on the date and time is assumed to be correct, isn't it strange that despite the case of prosecution that Afeem was supplied by Beer Chand to Kishan Chand and against which two cheques were issued, still the investigating team did not visit the house of Beer Chand to search his house if there was any contraband available? It was so despite the fact that they went as near as 100 meters from the village where Beer Chand was residing. Despite apprehension of Beer Chand from a distance of 100 meters away from his village, nobody from the village was requested or joined as a witness. Instead the police team did not go to the village at all. From the local Police Station of Manali, ASI Daya Ram was allegedly joined and ASI Daya Ram was allegedly present when the two cheques were recovered. Yet Daya Ram neither signed the seizure memo of two cheques nor he has been cited as a witness and he has not been examined by the prosecution. The DD entry made in Manali police station at 9 PM under DD No.40A does not find mention SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 35 of 39
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that any cheques were recovered. These facts do create a doubt as to whether cheques were recovered from Beer Chand.
26.6. There is one more interesting thing in this case regarding the account from which these cheques were drawn. PW-9 Prem Lal, the concerned official from the post office where the account was held by Kishan Chand, deposed that no transaction was made from the account of Kishan Chand after 26.05.2007 i.e. about three years prior to the date of incident of this case. He also proved that the account was inoperative, except the fact that interest was being credited in the account. The statement of account of Kishan Chand reveals that at the relevant time, balance in the account was meager Rs.343/- as on 01.04.2010. Not only the amount was insufficient and the account was inoperative for the last few years, but also from the cheque book from which these two cheques Ex. P4 & P5 were issued, no other cheque was presented in anybody's favour in the account.
26.7. This fact coupled with the fact that the cheques were bearing date of 12.04.2010, yet they are claimed to have been recovered on 02.05.2010 from the pocket of Beer Chand creates suspicion as nobody would be roaming around with the cheques which were issued many days earlier without presenting those cheques in the account. Had Beer Chand presented those cheques in his account, things might have been different. It is highly unlikely that Beer Chand kept those cheques in his pocket all the time and was roaming around for many days after the cheques were allegedly given to him. After all why would he do so? The cheques were SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 36 of 39
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issued from an account from Manali. It was so simple for Beer Chand to present those cheques between 12.04.2010 to 02.05.2010. And if did not want to present those cheques for some reason, then he would not have kept them in his pocket, particularly at the time of evening when no bank or post office remains open. It must be borne in mind that he was apprehended at about 7.30 pm. To my mind, there is something seriously amiss in this story of prosecution also.
26.8. Assuming that two cheques were recovered from accused Beer Chand, yet that fact would have been insufficient for this Court to have assumed or inferred conspiracy. Prosecution did not prove any account of Beer Chand to prove that earlier also any transaction through cheques took place between Beer Chand and Kishan Chand. Even if the two cheques were recovered from Beer Chand, there is no material available on record to suggest that those two cheques were only and only against supply of Afeem and no other thing. In such circumstances, charge of conspiracy against accused Beer Chand also cannot survive.
26.9. There is one more fact which creates suspicion about the version of prosecution as to accused Beer Chand. The said fact is that in the call detail records of the mobile no. 9816282359, which mobile phone was recovered from the personal search of accused Kishan Chand, admittedly, reveals that on 30.4.2010 at 19.48.01 hrs, one call was made to the mobile phone no. 9816355200 belonging to accused Beer Chand as recovered from his possession at the time of his apprehension. This call was for a period of 240 seconds. Admittedly, on that day the said mobile phone of Kishan SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 37 of 39
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Chand was in possession of investigating officer. Not only on 30.4.2010, but also on 1.5.2010, there were telephonic conversation between the mobile phone of Beer Chand and the mobile phone of Kishan Chand. To be specific, on 1.5.2010 at 11.41.40 hours from mobile no. 9736054000 belonging to Beer Chand call was made to the mobile of Kishan Chand which lasted for 33 seconds. On that very day, from the mobile of Kishan Chand, there were three outgoing calls made on the mobile no. 9736054000 made at 12.37.14 hours, 12.42.43 hours and 12.52.34 hours which lasted for 36 seconds, 21 seconds and 10 seconds respectively. These last three mentioned calls were all outgoing calls made from the mobile of Kishan Chand to the mobile of Roop Chand. All these call details are clearly revealed in Ex.DW1/A3. It may be reminded that the prosecution witnesses deposed that accused Beer Chand was caught on 2.5.2010 in the evening. In such circumstances, who spoke to Beer Chand through the mobile phone of Kishan Chand which was in custody of investigating officer remains unexplained. Not only calls were made to the phone of Beer Chand, but Ex.DW1/A3 would reveal that several such outgoing calls were made from phone of Kishan Chand to various numbers also and various calls were received on the mobile phone of Kishan Chand on 30.4.2010, 1.5.2010, 2.5.2010 as well as 3.5.2010. All those calls and use of phone of Kishan Chand remained unexplained.
27. It is indeed true that mere non-joining of independent witnesses cannot be fatal. Indeed it may not be in a given case. But then the testimony of police witnesses must be inspiring and believable. In SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 38 of 39
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a serious case of NDPS Act, inviting stringent punishment, the abovementioned serious discrepancies cannot be ignored. An accused cannot be convicted on such tentative evidence. It is in these discrepancies that non-joining of witnesses assumes significance.
28. The version of prosecution against other two accused Kishen Chand and Roop Lal is also doubtful, for the reasons mentioned above. I do not find it safe to base conviction on such testimony. In the facts and circumstances benefit of doubt goes to the three accused and all three accused are acquitted of the charges. For the above mentioned reasons, I am constrained to give benefit of doubt to all the three accused and all the three accused are acquitted of the charges.
Announced in the open court on 24th October, 2013. Dig Vinay Singh Spl. Judge: NDPS/ASJ Rohini Courts/Delhi SC No. 15/10 FIR No. 58/10 Dated: 24.10.2013 Page 39 of 39