Delhi District Court
State vs . Abhishek Singh And Anr. on 3 April, 2023
IN THE COURT OF SH. DEEPAK WASON:
SPL. JUDGE (NDPS): DWARKA COURTS: NEW DELHI
SC No. 22-2022
FIR No. 301-2021
U/s. 20 (b) (ii) (B) & 29 NDPS Act
PS: Dwarka Sector 23
State vs. Abhishek Singh and Anr.
Date of Institution of case:-06.01.2021
Date of arguments:-03.04.2023
Date on which Judgment pronounced:-03.04.2023
JUDGMENT
CNR No. :DLSW01-000067-2022
Date of commission of the offence :29.07.2021
Name of the complainant :ASI Kartar Singh Yadav
Name and address of accused :1. Abhishek Singh
S/o Sh. Sushil Kumar
R/o H. No. C-2/52, Gali No.2,
Brajpuri, New Usmanpur,
North-East Delhi
2. Ankit
S/o late Sh. Naresh Kumar
R/o H. No. A-95, Gali No.3,
Mahalaxmi Enclave,
Shiv Vihar, Karwal Nagar,
North-East Delhi
Offence complained of :20 (b) (ii) (B) & 29 NDPS Act
Plea of accused :Pleaded not guilty
Date of order :03.04.2023
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 29.07.2021, ASI Kartar Singh was posted as ASI at Narcotics Cell and on that day, he was present at his office, at about 12.30 pm, one secret informer came at his office and informed him that one person would come at Road no. 205, CNG Pump, Opposite side, Red Light, Sector - 20, Dwarka SC No. 222022 State Vs. Abhishek Singh and Anr. Page 1 of 28 for supply of Ganja and if raided then he can be apprehended and thereafter, secret informer was produced before the SI Subhash and after satisfaction, ASI Kartar Singh reduced into writing the secret information vide DD No.5 for compliance u/s 42 of NDPS Act and same was forwarded to ACP by SI Subhash. It is further the case of prosecution that thereafter, as per the direction of SI Subhash raiding team was constituted and they proceeded from the office of Narcotics Dwarka in two private cars with complete IO kit, laptop, UPS, printer cum photocopier, complete set of wiring, car charger and electronic weighing machine and field test kit and at about 01.20 pm, they started from the office of Narcotics after lodging DD No.8. It is further the case of prosecution that at about 1.25 pm they reached under Najafgarh Metro going towards Depot where they requested 04- 05 passerby to join the investigation, however, all refused the same and thereafter, at about 01.50 pm, they reached at the spot i.e. Road No.205, opposite CNG Pump, Sector 20 Dwarka, via NLU and Kargil Chowk.
2. It is further the case of prosecution that after reaching the spot, SI Subhash breifed them and all raiding team members took their position near the spot and ASI Kartar Singh alongwith secret informer took position near the wall. It is further the case of prosecution that at about 02.45 pm, one TSR Auto came at the spot and one person get down from the TSR who was carrying a cream colour plastic tape, heavy packet and after seeing the said person, secret informer pointed towards him and stated that he was the same person who used to involve in the supply of Ganja and thereafter, secret informer left the spot and in the meantime, TSR also left the spot. It is further the case of prosecution that after 05-07 minutes, SC No. 222022 State Vs. Abhishek Singh and Anr. Page 2 of 28 when the said person started to walk, he was apprehended by raiding team members at about 02.50 pm and ASI Kartar Singh enquired from the accused and the name of accused was revealed as Abhishek Singh and thereafter, ASI Kartar Singh shared the secret information with accused.
3. It is further the case of prosecution that ASI Kartar Singh prepared notice under Section 50 NDPS Act and the notice under Section 50 NDPS Act was given to the accused in original and after going through the contents of the same, he has given his reply, stating therein that he did not want himself to be searched in front Gazetted Officer and Magistrate and he was carrying Ganja in recovered packet. It is further the case of prosecution that at about 02.56 PM, SI Subhash informed ACP Sunil Kumar, Dwarka and also informed ACP Vijay Kumar, Oprations and at about 03.45 pm, ACP Sunil Kumar reached at the spot and he apprised the accused about his legal right and the accused was also apprised before his search, he can take search of police party and police vehicles. It is further the case of prosecution that thereafter, ASI Kartar Singh checked the recovered cream colour plastic tape pulanda on the direction of the ACP and the plastic pulanda was opened from the side which was containing leafy, grassy, moist, seedy substance, having foul substance which was physically appeared to be Ganja and thereafter, ASI Kartar Singh weighed the recovered Ganja with the help of electronic weighing machine and the weight of recovered Ganja was found to be 6.310 kg and thereafter, ASI Kartar Singh kept the recovered ganja in the same cream colour plastic packet and further kept in a white cloth and converted into pullanda, the said pulanda sealed with the seal of 'KS' and seized and thereafter, ACP left the spot at about 05.30 pm. It is further the case of SC No. 222022 State Vs. Abhishek Singh and Anr. Page 3 of 28 prosecution that after use, seal was handed over to Ct. Arjun and thereafter, ASI Kartar Singh prepared tehrir under Section 20 NDPS Act and handed over the same to Ct. Hetram along with carbon copy of seizure memo of case property and sealed case property for registration of FIR and proceedings under Section 55 NDPS Act and thereafter, Ct. Hetram went to police station and after reaching police station, Sector 23, Dwarka, tehrir was handed over to Duty Officer for registration of FIR. It is further the case of prosecution that thereafter, Ct. Hetram alongwith Duty Officer went to the office of SHO and produced sealed pulanda duly sealed with the seal of KS before the SHO and thereafter, SHO called the MHC(M) with register no.19 and SHO countersealed the pulanda with his seal 'RSS' and handed over to MHC(M) for depositing in malkhana.
4. It is further the case of prosecution that after registration of FIR, SHO lodged DD entry with regard to compliance u/s 55 NDPS Act and after registration of FIR, Duty Officer handed over to Ct. Hetram, copy of FIR and original tehrir and thereafter Ct. Hetram alongwith SI Roshan Lal reached at the spot. It is further the case of prosecution that after registration of FIR, SI Roshan Lal reached at the spot and ASI Kartar Singh handed over the custody of accused and all documents to SI Roshan Lal and thereafter, SI Roshan Lal prepared site plan at the instance of ASI Kartar Singh and thereafter, ASI Kartar Singh left the spot. It is further the case of prosecution that on 30.07.2021, ASI Kartar Singh sent intimation u/s 57 NDPS Act regarding recovery of Ganja to ACP and the same was forwarded by Inspector AATS. It is further the case of prosecution that SI Roshan Lal interrogated the accused Abhishek and after interrogation, he was arrested and personal search of accused carried out. It is further the SC No. 222022 State Vs. Abhishek Singh and Anr. Page 4 of 28 case of prosecution that during personal search, cash Rs.120/- and original notice u/s 50 NDPS Act were recovered and SI Roshan Lal recorded disclosure statement of accused Abhishek. It is further the case of prosecution that one mobile phone make samsung (damage condition) also recovered from accused Abhishek and SI Roshan Lal put FIR No on seizure memo, case property, arrest memo and notice u/s 50 NDPS Act and thereafter, they took the accused before SHO and case property was deposited in the malkhana. It is further the case of prosecution that SI Roshan Lal recorded the statement of SHO, ACP and MHC (M) and Ct. Arjun, Ct. Sandeep and Ct. Hetram took the accused for medical examination at DDU Hospital and after medical examination, they returned to AATS office and custody of accused was handed over to SI Roshan Lal. It is further the case of prosecution that on 30.07.2021, SI Roshan Lal alongwith Ct. Hetram, Ct. Arjun, ASI Vinod and accused Abhishek reached at Dwarka Court from where SI Roshan Lal obtained 02 days PC remand and he also moved an application u/s 52 A NDPS Act which was fixed for 31.07.2021 and thereafter, they took the accused at H. No. A-95, Gali No.3, Mahalaxmi Enclave, Shiv Vihar, Krawal Nagar at the instance of co-accused Abhishek and at that time, SI Subhash also accompanied them. It is further the case of prosecution that at about 08.10 pm, when they were present near Khajoori Road, Near Prachin Durga Mandir, Krawal Nagar Bus Stand, at that time, at the instance of accused Abhishek they apprehended a person whose name revealed as Ankit.
5. It is further the case of prosecution that SI Roshan Lal prepared notice under Section 50 NDPS Act and the notice under Section 50 NDPS Act was given to the accused Ankit in original and SC No. 222022 State Vs. Abhishek Singh and Anr. Page 5 of 28 after going through the contents of the same, he has given his reply, stating therein that he did not want himself to be searched in front Gazetted Officer and Magistrate and he was not having Ganja. It is further the case of prosecution that thereafter, SI Roshan Lal interrogated the accused Ankit and after interrogation, he was arrested and during personal search, cash Rs.140/- and original notice u/s 50 NDPS Act were recovered and SI Roshan Lal recorded disclosure statement of accused Ankit and thereafter, they took both accused persons for medical examination and after, medical examination, both accused were sent to JC. It is further the case of prosecution that SI Roshan Lal sent intimation u/s 57 NDPS Act with regard to arrest of accused Abhishek on 30.07.2021 duly forwarded by Inspr. AATS to ACP and on 31.07.2021, SI Roshan Lal sent intimation u/s 57 NDPS Act in regard to the arrest of accused Ankit to ACP, duly forwarded by Inspr. AATS. It is further the case of prosecution that on the same day, SI Roshan Lal got conducted proceedings u/s 52 A NDPS Act before Ld. Duty MM at Dwarka Court and on the direction of SI Roshan Lal, Ct Mukesh brought the sealed property i.e. one sealed pullanda before Ms. Richa Manchanda, Ld MM. Proceedings u/s 52 A NDPS and thereafter, Ct. Mukesh took three sealed pullandas duly sealed with AKM and deposited at Malkhana and HC Surajbhan clicked the photograph of proceedings u/s 52 A NDPS. It is further the case of prosecution that on 02.08.2021 sealed case property i.e. Sample mark A was sent to CFSL Rohini through Ct. Sandeep vide RC no.80/21/21 and after depositing the same Ct. Sandeep handed over the acknowledgement to MHC (M). It is further the case of prosecution that SI Roshan Lal sent notice u/s 92 Cr.PC to the nodal officer of Jio for production of CAF and CDR with location chart of mobile number 9582711736 between 01.07.2021 to 29.07.2021 and he also sent notice SC No. 222022 State Vs. Abhishek Singh and Anr. Page 6 of 28 u/s 92 Cr.PC to the nodal officer of Jio for production of CAF and CDR with location chart of mobile number 8527058728 between 01.07.2021 to 29.07.2021 and thereafter, SI Roshan Lal was transferred from AATS to security.
6. It is further the case of prosecution that on 24.10.2021, ASI Vinod Kumar was posted at Anti-Narcotics, Dwarka as ASI and on that day, investigation of the present case was marked to him as SI Roshan Lal was transferred and thereafter, ASI Vinod Kumar verified the address of accused persons. It is further the case of prosecution that thereafter, on receiving of FSL result, ASI Vinod Kumar prepared charge-sheet and sent to court.
7. Vide order dated 26.07.2022, the charge for the offences punishable under Section 20 (b) (ii) (B) & 29 of the NDPS Act was framed against the accused persons on the allegations that both accused persons had entered into a criminal conspiracy and in furtherance of criminal consipiracy, accused Abhishek was found in possession of 6 kg 310 grams of Ganja to which they pleaded not guilty and claimed trial. It is a matter of record that nothing was recovered from accused Ankit.
8. The prosecution examined 11 witnesses in support of its case who are as follows:-
9. PW-1 is Inspector R Srinivasan. He has deposed that on 29.07.2021, he was posted as SHO Sector-23, Dwarka and on that day, he was present in the police station and at about 08.40 pm, Duty Officer ASI Hariram Meena and Ct. Hetram came to his office and SC No. 222022 State Vs. Abhishek Singh and Anr. Page 7 of 28 Duty Officer Hariram Meena informed him that Ct. Hetram has handed over one tehrir for registration of FIR and in this regard he made entry vide DD No.79A. He has further deposed that Ct. Hetram produced 1 sealed parcel/ pulanda duly sealed with the seal of 'KS' and computer copy of seizure memo before him and he checked the parcel / pulanda and documents and all the sealed parcels having specimen of seal of 'KS' and thereafter, he put up his counter seal of RSS on the sealed pullanda and put his initials. He has further deposed that thereafter, he enquired from Duty Officer regarding FIR number and mentioned FIR No.301/21 on the sealed parcel / pulanda and documents and thereafter, he called MHC(M) CP HC Raj Kumar to his office along with register No. 19. He has further deposed that he handed over the sealed parcel and computer copy of seizure memos to MHC(M) for depositing the same in Malkhana and MHC(M) made entry in register No. 19 regarding depositing of case property and same was signed by him, photocopy of relevant page is Ex.PW-1/A bearing his signature at point A and thereafter, he lodged DD No. 92A regarding depositing of case property under compliance of Section 55 NDPS Act. True copy of DD No. 92A dt. 29.07.2021 is Ex.PW-1/B bearing his signature at point A and on the same day, IO recorded his statement. This witness was cross-examined by the Ld. Defence Counsel.
10. PW-2 is ASI Raj Kumar. He had brought the summoned record i.e. register no.19 and register no.21 and as per record, on 29.07.2021, Inspector Srinivasan deposited sealed parcel and computer copy of seizure memo, duly sealed with the seal of 'KS and RSS' with him and he made entry in register no. 19 and the relevant entry in register No. 19 is at serial No. 2392/21 and the copy SC No. 222022 State Vs. Abhishek Singh and Anr. Page 8 of 28 of the same is Ex.PW-1/A. He has further deposed that on 31.07.2021, vide RC No.79/21/21 case property sent to Dwarka Court for withdrawal of samples and after withdrawal of samples SI Roshan Lal deposited two sample seals with pullanda duly sealed with the seal of 'RM' in the malkhana with this regard entry made in register no.19 and RC No.79/21/21 was taken on record same is Ex.PW-2/A. He has further deposed that on 02.08.2021, Ct. Sandeep took one sealed pulanda duly sealed with the seal of RM vide RC No.80/21/21 for depositing at FSL, Rohini and after depositing the pulandas at FSL, Rohini acknowledgement was handed over to him by Ct. Sandeep and RC No. 80/21/21 was Ex.PW-2/B and acknowledgement was Ex.PW- 2/C. He has further deposed that on 29.07.2021, personal search of accused Abhishek was deposited by ASI Karar, in this regard entry was made in register no.19, same is Ex.PW-4/D and on 30.07.2021, SI Roshan Lal has deposited the personal search of accused Ankit, in this regard he made entry in register no.19, same is Ex.PW-4/E. He has further deposed that on 30.07.2021, SI Roshan Lal also deposited one mobile phone samsung key pad brown golden colour, in this regard he made entry in register no.19, same is Ex.PW-4/F and on 29.07.2021, ASI Kartar Singh has deposited mobile phone of accused Abhishek Singh, in this regard he made entry in register no.19, same is Ex.PW-4/G. He has further deposed that on 31.07.2021, vide RC No.79/21/21, case property sent to Dwarka Court for withdrawal of sample and after withdrawal of sample, Ct. Mukesh deposited three sealed pulandas duly sealed with the seal of AKM in the malkhana with this regard, entry was made in register no.19, RC No.79/21/21 was Ex.PW-2/A. This witness was also cross-examined by the Ld. Defence Counsel.
SC No. 222022 State Vs. Abhishek Singh and Anr. Page 9 of 2811. PW-3 is ASI Vinod Kumar. He has deposed that on 24.10.2021, he was posted at Anti-Narcotics, Dwarka as ASI and on that day, investigation of the present case was marked to him as SI Roshan Lal was transferred and thereafter, he verified the address of accused persons and thereafter, on receiving of FSL result, he prepared charge-sheet and sent to court and also prepared True Copy of DD No.6 and 7 dated 29.07.2021 from the roznamcha, same was Ex.PW- 3/A and Ex.PW-3/B. This witness was also cross-examined by the Ld. Defence Counsel.
12. PW-4 is Insp. Kamlesh Kumar. He has deposed that on 30.07.2021, he was posted at AATS as Inspector and on that day, intimations u/s 57 NDPS Act were sent to ACP by ASI Kartar and SI Roshan Lal regarding recovery of 6.310 kg of Ganja and arrest of accused Abhishek, same were forwarded by him to ACP. Same were Ex.PW-4/A and Ex.PW-4/B both bearing his signature at point A. He has further deposed that on 31.07.2021, intimation u/s 57 NDPS Act with regard to arrest of accused Ankit sent by SI Roshan Lal to ACP, same was forwarded by him and intimation u/s 57 NDPS Act was Ex.PW-4/C bearing his signature at point A. He has further deposed that on 31.07.2021, he made inventory of Ganja of 6.310 kg which was recovered from the possession of accused Abhishek and sealed with the seal of 'KS' and 'RSS' and inventory was Ex.PW-4/D bearing his signature at point A. This witness was also cross- examined by the Ld. Defence Counsel.
13. PW-5 is ASI Kartar Singh. He is the first IO of the case and he has deposed that on 29.07.2021, he was posted as ASI at Narcotics Cell and on that day, he was present at his office, at about SC No. 222022 State Vs. Abhishek Singh and Anr. Page 10 of 28 12.30 pm, one secret informer came at his office and informed me that one person would come at Road no. 205, CNG Pump, Opposite side, Red Light, Sector - 20, Dwarka for supply of Ganja and if raided then he can be apprehended. He has further deposed that thereafter, secret informer was produced before the SI Subhash and after satisfaction, he reduced into writing the secret information vide DD No.5 for compliance u/s 42 of NDPS Act and same was forwarded to ACP by SI Subhash and written secret information was Ex.PW-5/A bearing his signature at point A. He has further deposed that thereafter, as per the direction of SI Subhash raiding team was constituted and they proceeded from the office of Narcotics Dwarka in two private cars and in his car, he alongwith Ct. Arjun, HC Ramrai and secret informer were proceeded with complete IO kit, laptop, UPS, printer cum photocopier, complete set of wiring, car charger and electronic weighing machine and field test kit and in the car of SI Subhas, he alongwith ASI Vinod and Ct. Hetram were proceeded and at about 01.20 pm, they started from the office of Narcotics after lodging DD No.8, same was Ex.PW-5/B. He has further deposed that at about 1.25 pm they reached at under Najafgarh Metro going towards Depot where they requested 04-05 passerby to join the investigation, however, all refused the same and thereafter, at about 01.50 pm, they reached at the spot i.e. Road No.205, opposite CNG Pump, Sector 20 Dwarka, via NLU and Kargil Chowk. He has further deposed that after reaching the spot, SI Subhash briefed them and all raiding team members took their position near the spot and he alongwith secret informer took position near the wall and at about 02.45 pm, one TSR Auto came at the spot and one person got down from the TSR who was carrying a cream colour plastic tape, heavy packet and after seeing the said person, secret informer pointed towards him and stated SC No. 222022 State Vs. Abhishek Singh and Anr. Page 11 of 28 that he was the same person who used to involve in the supply of Ganja. He has further deposed that thereafter, secret informer left the spot and in the meantime, TSR also left the spot and after 05-07 minutes, when the said person started to walk, he was apprehended by raiding team members at about 02.50 pm. He has further deposed that he enquired from the accused and the name of accused was revealed as Abhishek Singh and thereafter, he shared the secret information with accused. He has further deposed that he prepared notice under Section 50 NDPS Act and the notice under Section 50 NDPS Act was given to the accused in original and after going through the contents of the same, he has given his reply, stating therein that he did not want himself to be searched in front Gazetted Officer and Magistrate and he had Ganja in recovered packet and the carbon copy of notice under Section 50 NDPS Act was Ex.PW5/C bearing his signature at point A and the reply of the accused was Ex.PW5/D which bears the signature of the accused at point X bearing his signature at point A. He has further deposed that at about 02.56 PM, SI Subhash informed ACP Sunil Kumar, Dwarka and also informed ACP Vijay Kumar, Oprations and at about 03.45 pm, ACP Sunil Kumar reached at the spot and ACP Sunil Kumar apprised the accused about his legal right and the accused was also apprised before his search, he can take search of police party and police vehicles. He has further deposed that thereafter, he checked the recovered cream colour plastic tape pulanda on the direction of the ACP and the plastic pulanda was opened from the side which was containing leafy, grassy, moist, seedy substance, having foul substance which was physically appeared to be Ganja and thereafter, he weighed the recovered Ganja with the help of electronic weighing machine and the weight of recovered Ganja was found to be 6.310 kg. He has further deposed that thereafter, he kept the recovered SC No. 222022 State Vs. Abhishek Singh and Anr. Page 12 of 28 ganja in the same cream colour plastic packet and further kept in a white cloth and converted into pullanda, the said pulanda sealed with the seal of 'KS' and seized vide memo Ex.PW-5/E bearing his signature at point A and thereafter, ACP left the spot at about 05.30 pm. He has further deposed that after use, seal was handed over to Ct. Arjun and thereafter, he prepared tehrir under Section 20 NDPS Act, same was Ex.PW-5/F bearing his signature at point A and handed over the same to Ct. Hetram along with carbon copy of seizure memo of case property and sealed case property for registration of FIR and proceedings under Section 55 NDPS Act and thereafter, Ct. Hetram went to police station. He has further deposed that after registration of FIR, SI Roshan Lal reached at the spot and he handed over the custody of accused and all documents to SI Roshan Lal and thereafter, SI Roshan Lal prepared site plan at his instance, same was Ex.PW- 5/G bearing his signature at point A and thereafter, IO recorded his statement and he left the spot. He has further deposed that on 30.07.2021, he sent intimation u/s 57 NDPS Act regarding recovery of Ganja to ACP, same was forwarded by Inspector AATS and intimation u/s 57 NDPS Act was Ex.PW-4/A bearing his signature at point B. He has correctly identified the accused before the court. He has also correctly identified the case property which is from Ex.P-1 (colly). He has further deposed that he can identified the mobile phone recovered from accused Abhishek i.e. Ex.P-X. This witness was cross-examined by the Ld. Defence Counsel.
14. PW-6 is Ct. Hetram. He was also one of the members of the raiding team and has deposed on the lines of PW-5 ASI Kartar Singh. This witness was also cross-examined by the Ld. Defence Counsel.
SC No. 222022 State Vs. Abhishek Singh and Anr. Page 13 of 2815. PW-7 is ASI Hariman. He has deposed that on 29.07.2021, he was posted as Duty Officer at PS Dwarka Sector-23 and on that day, his duty hours were from 04:00 pm to 12:00 mid night. He has further deposed that on that day, he recorded FIR No. 301/2021 at about 8:30 pm on the basis of the rukka sent by ASI Kartar Singh through Ct. Het Ram and the copy of the FIR was Ex.PW-7/A. He has further deposed that after recording the FIR, he made his endorsement on the rukka, same was Ex.PW-7/B bearing his signature at point A and handed over the copy of FIR and rukka to Ct. Het Ram for further handing over to SI Roshan Lal and he issued a certificate U/Sec.65 B of Indian Evidence Act regarding the computerized copy of FIR, same was Ex.PW-7/C bearing his signature at point A. This witness was also cross-examined by Ld. Defence Counsel.
16. PW-8 is HC Arjun. He was also one of the members of the raiding team and has deposed on the lines of PW-5 ASI Kartar Singh and SI Roshan Lal. This witness was also cross-examined by the Ld. Defence Counsel.
17. PW-9 is SI Roshan Lal. He is the second IO and he has deposed that on 29.07.2021, he was posted as SI at AATS, Dwarka and on that day, after registration of FIR, investigation of the present case was marked to him and thereafter, he reached at the spot i.e. Road no.2, Opposite CNG Petrol, Sector-2, Dwarka, IO ASI Kartar Singh along with accused Abhishek, ASI Vinod, HC Ram Mehar and Ct. Arjun found present. He has further deposed that Ct. Hetram handed over to him copy of FIR and Tehrir and ASI Kartar handed over the SC No. 222022 State Vs. Abhishek Singh and Anr. Page 14 of 28 custody of accused and all documents to him and thereafter, he prepared site plan at the instance of ASI Kartar, same was already Ex.PW-5/G bearing his signature at point B. He has further deposed that he recorded the statement of ASI Kartar and thereafter, ASI Kartar left the spot. He has further deposed that he interrogated the accused Abhishek and after interrogation, he was arrested vide already arrest memo Ex.PW-6/A bearing his signature at point C, personal search of accused carried out vide memo already Ex.PW-6/B bearing his signature at point C. He has further deposed that during personal search, cash Rs.120/- and original notice u/s 50 NDPS Act were recovered and he recorded disclosure statement of accused Abhishek, same was already Ex.PW-6/C bearing his signature at point C. He has further deposed that one mobile phone make samsung (damage condition) also recovered from accused Abhishek, same was seized vide memo already Ex.PW-6/D bearing his signature at point C. He has further deposed that he put FIR No on seizure memo, case property, arrest memo and notice u/s 50 NDPS Act and thereafter, they took the accused before SHO and case property was deposited in the malkhana. He has further deposed that he recorded the statement of SHO, ACP and MHC (M) and thereafter, Ct. Arjun, Ct. Sandeep and Ct. Hetram took the accused for medical examination at DDU Hospital and after medical examination, they returned to AATS office and custody of accused was handed over to him. He has further deposed that he recorded the statement of Ct. Arjun and Ct. Hetram and on 30.07.2021, he alongwith Ct. Hetram, Ct. Arjun, ASI Vinod and accused Abhishek reached at Dwarka Court from where he obtained 02 days PC remand and also moved an application u/s 52 A NDPS Act and same is Ex. PW9/A bearing his signature at point A which was fixed for 31.07.2021 and thereafter, they took the accused SC No. 222022 State Vs. Abhishek Singh and Anr. Page 15 of 28 at H. No. A-95, Gali No.3, Mahalaxmi Enclave, Shiv Vihar, Krawal Nagar at the instance of co-accused Abhishek. He has further deposed that at that time, SI Subhash also accompanied them and at about 08.10 pm, when they were present near Khajoori Road, Near Prachin Durga Mandir, Krawal Nagar Bus Stand, at that time, at the instance of accused Abhishek they apprehended a person whose name revealed as Ankit. He has further deposed that he prepared notice under Section 50 NDPS Act and the notice under Section 50 NDPS Act was given to the accused Ankit in original and after going through the contents of the same, he has given his reply, stating therein that he did not want himself to be searched in front Gazetted Officer and Magistrate and he was not having Ganja and the carbon copy of notice under Section 50 NDPS Act is already Ex.PW6/E bearing his signature at point C and the reply of the accused is already Ex.PW-6/F which bears the signature of the accused at point X and bears his signature at point C. He has further deposed that thereafter, he interrogated the accused Ankit and after interrogation, he was arrested vide arrest memo already Ex.PW-6/G bearing his signature at point C, personal search of accused carried out vide memo already Ex.PW-6/H bearing his signature at point C. He has further deposed that during personal search, cash Rs.140/- and original notice u/s 50 NDPS Act was recovered and recorded disclosure statement of accused Ankit, same is already Ex.PW-6/I bearing his signature at point C and one mobile phone make samsung key pad also recovered from accused Ankit, same was seized vide memo already Ex.PW-6/J bearing his signature at point C and thereafter, they took both accused persons for medical examination and after, medical examination, both accused were sent to JC. He has further deposed that he sent intimation u/s 57 NDPS Act with regard to arrest of accused Abhishek on 30.07.2021 SC No. 222022 State Vs. Abhishek Singh and Anr. Page 16 of 28 duly forwarded by Inspr. AATS to ACP, same is already Ex. PW4/B bearing his signature at point B and on 31.07.2021, he sent intimation u/s 57 NDPS Act in regard to the arrest of accused Ankit to ACP, duly forwarded by Inspr. AATS, same is already Ex. PW4/B bearing his signature at point B. He has further deposed that on the same day, he got conducted proceedings u/s 52A NDPS Act before Ld. Duty MM at Dwarka Court and on his direction Ct Mukesh brought the sealed property i.e. one sealed pullanda before Ms. Richa Manchanda, Ld MM. Proceedings u/s 52 A NDPS is Ex. PW9/B and thereafter, Ct. Mukesh took three sealed pullandas duly sealed with AKM and deposited at Malkhana and HC Surajbhan clicked the photograph of proceedings u/s 52 A NDPS and same is Ex. PW9/C (colly 36 photographs). He has further deposed that on 02.08.2021 sealed case property i.e. Sample mark A was sent to CFSL Rohini through Ct. Sandeep vide RC no.80/21/21 and same was already Ex. PW4/B and after depositing the same Ct. Sandeep handed over the acknowledgement to MHC (M). He has further deposed that he sent notice u/s 92 Cr.PC to the nodal officer of Jio for production of CAF and CDR with location chart of mobile number 9582711736 between 01.07.2021 to 29.07.2021, same was Ex. PW9/D and he also sent notice u/s 92 Cr.PC to the nodal officer of Jio for production of CAF and CDR with location chart of mobile number 8527058728 between 01.07.2021 to 29.07.2021, same was Ex. PW9/E. He has further deposed that thereafter, he was transferred from AATS to security. He has correctly identified the accused Ankit before the court. He has further deposed that he can also identified the mobile phone recovered from accused persons i.e. Ex.P-X and Ex.P-X1. This witness was cross-examined by the Ld. Defence Counsel.
SC No. 222022 State Vs. Abhishek Singh and Anr. Page 17 of 2818. PW-10 is Insp. Subhash. He has deposed on the lines of PW-5 ASI Kartar. He has correctly identified the accused persons before the court. This witness was also cross-examined by the Ld. Defence Counsel.
19. PW-11 is Rtd. ACP Sunil Kumar. He has deposed that on 29.07.2021, he was posted as ACP Dwarka, and he has received telephonic information from SI Subhash and thereafter, he reached at the spot and he apprised the accused about his legal right and thereafter, on his direction ASI Kartar checked the plastic pulanda and ganja was recovered and same was found to be 6.310 Kg and it was seized vide seizure memo bearing his signature at point D and thereafter, he left the spot. He correctly identified the accused Abhishek before the court. This witness was also cross-examined by the Ld. Defence Counsel.
20. It is a matter of record that during the trial, joint statement of both accused persons under Section 294 Cr.P.C was recorded on 02.03.2023 wherein both accused persons have admitted the genuineness of certain documents i.e DD No.5 dated 29.07.2021, same is EX.P/D/1, DD No.6 dated 29.07.2021, same is EX.P/D/2, DD No.7 dated 29.07.2021, same is EX.P/D/3, DD No.15, dated 29.07.2021, same is EX.P/D/4, DD No.79A dated 29.07.2021, same is EX.P/D/5, FSL result dated 01.10.2021, same is EX.P/D/6, location chart of mobile no.8527058728, same is EX.P/D/7, location chart of mobile no.9582711736, same is EX.P/D/8, caf of mobile no. 9582711736 with agent digital KYC response, same is EX.P/D/9, SC No. 222022 State Vs. Abhishek Singh and Anr. Page 18 of 28 CDR of mobile no. 9582711736, same is EX.P/D/10, caf of mobile no. 8527058728, same is EX.P/D/11, CDR of mobile no. 8527058728, same is EX.P/D/12, subscriber detail report of mobile no. 8527058728, same is EX.P/D/13, proceedings u/s 52A NDPS Act dated 31.07.2021, same is EX.P/D/14. Thereafter, prosecution evidence was closed vide order dated 03.04.2023 and today i.e 03.04.2023, the statement of both accused persons under Section 313 Cr.P.C have been recorded whereby all the incriminating evidence was put to them to which they stated that they are innocent and have been falsely implicated in the present case. During the recording of the statement, both accused persons did not wish to lead defence evidence and final arguments were heard.
21. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
FINDINGS:
22. The record of the present case reveals that it is alleged against accused Abhishek that he had entered into criminal conspiracy with co-accused Ankit and in furtherance of criminal conspiracy, accused Abhishek was found was found in possession of an intermediate quantity of contraband i.e 6 Kg 310 grams of Ganja. The stringent provisions are provided under the law qua the punishment, especially in the NDPS cases. The scheme of the NDPS Act and its objects and reasons mandate that the prosecution must prove compliance with various safeguards ensured under the Act. The NDPS Act prescribes stringent punishment and therefore, the balance must be struck between the need for the law and the enforcement of such law on one hand and the protection of the citizen from oppression and SC No. 222022 State Vs. Abhishek Singh and Anr. Page 19 of 28 injustice on the other. The provisions are intended for providing certain checks on the exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband. In the present case, accused Abhishek was apprehended opposite CNG Pump, Sector-20, Dwarka, New Delhi, and was found in possession of an intermediate quantity of Ganja and at disclosure of accused Abhishek, other accused Ankit was arrested. It is a matter of record that no contraband was recovered from the possession of accused Ankit. Hence, it has to be proved that accused Abhishek was found in possession of the contraband i.e Ganja in furtherance of criminal conspiracy between him and accused Ankit. The record reveals that no independent public person was joined in the proceedings.
23. It is to be kept in mind that the non-joining of public witnesses itself cannot become a ground for acquittal if the case of the prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution cannot be held to be vulnerable to non-examination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution cannot be disbelieved. The proposition is not disputed but the balance has to be maintained if some doubt is created regarding the involvement of the accused persons. Each case has its facts and circumstances.
24. Accordingly, it is trite that mere failure to associate public SC No. 222022 State Vs. Abhishek Singh and Anr. Page 20 of 28 witnesses in search and seizure proceedings is not fatal to the case of the prosecution. However, in such a case, the burden lies heavily on the prosecution to prove two things. Firstly, a genuine and sincere effort was made by the investigating officer to join independent persons in the proceedings and secondly, the evidence of the official witnesses does not suffer from any infirmity.
25. In the present case, as per the story of the prosecution, on 29.07.2021 on the directions of SI Subhash, raiding teams was constituted and ASI Kartar alongwith raiding team reached at Road No.205, CNG Pump, Opposite side, Sector-20, Dwarka, Delhi and apprehended accused Abhishek with illegal contraband. Though in the present case, it has been tried to be brought on record from the testimony of prosecution witnesses that sincere efforts were made to join the public witnesses but none of them were inclined to join.
26. The testimonies of the members of the raiding team suffer from contradictions and it is evident therefrom that the witnesses have remained evasive on material aspects. As far as the testimonies of witnesses about the joining of independent witnesses are concerned, PW-5 ASI Karar has deposed in his cross-examination that he asked manager and other staff members of CNG Pump to join the investigation but they refused and he cannot tell the names of the staff members and manager. PW-5 has further deposed that Abhishek de- boarded from one auto rickshaw but the said auto rickshaw wala was not joined the investigation. PW-5 has further deposed in his cross- examination that he requested 02-03 public persons to join the investigation but all of them refused. However, PW-6 Ct. Hetram has deposed in his cross-examination that PW-5 asked the public persons SC No. 222022 State Vs. Abhishek Singh and Anr. Page 21 of 28 from CNG pump to join the investigation but they refused, however, PW-5 ASI Kartar did not call any manager or any staff member of CNG Pump and ASI Kartar had not served any notice to them for not joining the investigation. PW-8 HC Arjun has also deposed in his cross-examination that ASI Kartar asked public persons to join the investigation and ASI Kartar did not call any manager or any staff member of CNG pump. PW-10 has also deposed in his cross- examination that PW-5 ASI Kartar did not call any manager or staff member from CNG pump station and rickshaw wala was also not joined in the investigation. Hence, from the examination of the above witnesses, it is evident that public persons were present at the spot but the perusal of the cross-examination of witnesses shows that neither any sincere efforts have been made by the IO to join any public person in the investigation nor served any notice to them for non-joining the investigation although remained at the spot for a considerable period.
27. Admittedly, the police officials remained on the spot for a considerable time and the IO had ample time to join the independent person in the proceedings. It is the case of the prosecution that public persons were requested to join the proceedings but they declined. It is a quite surprising fact that despite the availability of public witnesses, the investigating agency could not associate even a single public witness at any stage of the investigation. It has been stated casually and routinely that the public persons, who were asked to join the investigation, declined to do so and went away without disclosing their names and addresses. Sub-section (8) of Section 100 Cr.P.C clearly states that if a public witness refuses or neglects to attend a search without reasonable cause despite an order in writing, he shall be deemed to have committed an offence under Section 187 IPC.
SC No. 222022 State Vs. Abhishek Singh and Anr. Page 22 of 28There is nothing on record to indicate that the investigating officer had served or even attempted to serve any order in writing upon any public witness. So much so, neither the names nor the addresses of the persons who refused to join the proceedings have been given. All the above leads to the inevitable inference that the investigating agency was not interested to make any public witness a part of the raiding team and thus there has been a deliberate disregard of the statutory safeguards relating to search and seizure on its part which renders the recovery proceedings unworthy of credence. Hence, all these facts give some doubt to the story of the prosecution.
28. There are various other contradictions in the testimonies of the witnesses. As discussed above, except PW-5, no other witnesses have deposed that PW-5 called the manager or staff member of CNG pump station to join the proceedings. Further, PW-5 has deposed in his cross-examination that all the documents i.e. notice u/s 50 of NDPS Act, seizure memo and tehrir were prepared by SI Subhash through printer. However, as per cross-examination of PW-6 Ct. Hetram, the seizure memo was prepared by ASI Kartar. It is pertinent to mention here u/s 50 of NDPS Act which was given to accused Abhishek is hand written notice and not in a printed form as disclosed by PW-5 ASI Kartar in his cross-examination. It is a big dent in the story of the prosecution and the presence of the witnesses at the spot appears to be doubtful.
29. It is pertinent to mention here that the presence of PW-10 Insp. Subhash Chand i.e one of the recovery witness is also doubtful and his testimony does not appear to be trustworthy. This witness was posted as IC at Narcotics Cell and recovery was effected in his SC No. 222022 State Vs. Abhishek Singh and Anr. Page 23 of 28 presence. It is a very surprising fact that he remained at the spot for a considerable time and he did not sign a single document on the spot. This witness has admitted as correct in his cross-examination that he has not signed any document on the spot. As per cross-examination of PW-5, they conducted all the proceedings nearby CNG Pump station and at that time, accused was in a separate car and SI Subhash and ASI Kartar were in a Wagon R Car. However, as per cross-examination of PW-10 Insp. Subhash, while conducting the proceedings, accused was standing with him alongwith other staff members. At this stage, it is relevant to go through the testimony of PW-9 SI Roshan Lal and as per PW-9 SI Roshan Lal, SI Subhash (now Inspector) was not with him during the proceedings conducted by him and at that time, SI Subhash was in his office and SI Subhash did not visit the spot in his presence on 29.07.2021. However, as per cross-examination of PW- 10 Insp. Subhash Chand, SI Roshan Lal came at the spot before 07.00 pm and he prepared the site plan in the presence of Insp. Subhash and SI Roshan Lal also enquired from Insp. Subhash about the present case. PW-9 SI Roshan Lal has deposed in his cross-examination that on next day, they went to the house No. A-95 and SI Subhash was with them. However, testimony of PW-10 Insp. Subhash is silent on this aspect. This fact is neither stated in the statement of SI Subhash recorded u/s 161 Cr.P.C. nor he has deposed anything about this before this court during his examination as PW-10. Hence, it creates serious doubt about the presence of PW-10 Insp. Subhash at the spot or during the investigation of this case which casts serious doubt in the story of the prosecution.
30. Further, as per cross-examination of PW-6 Ct. Hetram and PW-8 HC Arjun, no family member of accused Abhishek was SC No. 222022 State Vs. Abhishek Singh and Anr. Page 24 of 28 called at the spot at the time of preparing of arrest memo and they had signed the arrest memo after going through from point A to B. However, as per arrest memo Ex.PW-6/A of accused Abhishek, at column no.8, one Neelam Singh i.e. mother of the accused has signed the arrest memo. It is surprising fact that PW-6 and PW-8 had signed the arrest memo at point A and B and they are not aware about the fact that family member of the accused had signed the arrest memo.
31. There are other contradictions in the present case. As per cross-examination of PW-6 Ct. Hetram, he went to the police station for registration of FIR by foot and the distance between spot and police station is around 1 Km. However, as per cross-examination of PW-5 Ct. Hetram went to the police station on his motorcycle. As per cross-examination of PW-8, the distance between spot and police station is around 03-04 Km and as per cross-examination of PW-9 SI Roshan Lal the distance between police station and spot is around 07- 08 km. Further, as per cross-examination of PW-11 ACP Rtd. Sunil Kumar, SI Subhash signed the seizure memo. As per testimonies of other witnesses, SI Subhash did not sign any documents. There is also contradiction with regard to the proceedings conducted at the spot. As per PW-5, all the proceedings were conducted while sitting in Wagon R car and as per PW-6 Ct. Hetram, all the proceedings were conducted while sitting at footpath. Further, as per PW-10 Insp. Subhash Chand, he left the spot at about 07.00 pm and SI Roshan Lal came before 07.00 pm and SI Roshan Lal prepared site plan in his presence. However, as per PW-9 SI Roshan Lal, he reached at the spot at around 08.00 pm. Hence, above-said contradictions give serious doubt in the story of the prosecution.
SC No. 222022 State Vs. Abhishek Singh and Anr. Page 25 of 2832. The counsel for the accused persons has argued regarding tampering of case property till the same remained in the custody of officials. It is a settled law that to safeguard the possible tampering, the samples should be sent to the laboratory at the earliest, preferably within 72 hours, and in case of delay, the onus is on the prosecution to show that there was no tampering with the case property and samples. In the event of doubt, the benefit has to be given to the accused, however, if the prosecution satisfies that there was no tampering, the delay is to be ignored.
33. The perusal of the record shows that illegal contraband was recovered and seized from the accused during the raid conducted by the raiding team on 29.07.2021 but samples of ganja were sent to FSL on 02.08.2021 and there is an unexplained delay in sending the samples to the FSL as same were required to be sent to the FSL preferably within 72 hours of its seizure. Thus, when there is a delay in sending the samples, it casts doubt on whether it is the same case property that was recovered from the accused and sent to FSL or it was the case property of some other case.
34. To this effect, reliance is placed upon judgment titled as Ramesh & Anr. Vs. State of Haryana 1998 (1) C. C. Cases 17 (HC), passed by Hon'ble High Court of Punjab and Haryana at Chandigarh, wherein it was held as under:
"15. There is another important factor that is taken into consideration is that the alleged sample was taken on 26.07.1992 and was sent to the Chemical Examiner on 12.08.1992. There is no explanation furnished by the prosecution for the delay in sending the sample to the FSL so late. This lapse of the prosecution that the delayed sending of samples to FSL has not been taken happily by the courts. In Narain Vs. State of Haryana 1997 (1) RCR 414 even the delay of 10 days for sending the samples of the contraband to SC No. 222022 State Vs. Abhishek Singh and Anr. Page 26 of 28 the FSL was taken to be such a delay which caused a dent in the prosecution story".
35. Apart from this, PW-11 Rtd. ACP Sunil Kumar has deposed in his cross-examination that he reached the spot in his government Gypsy. However, as per other witnesses, ACP came in Govt. Ertiga. The prosecution has also failed to produce either the log book of the official vehicle used by the ACP at the relevant time. Since the log books are maintained for recording the movement of the official vehicles, there should have been no difficulty at all in producing such evidence if indeed the ACP had moved to the spot from their office in a government vehicle. Even, PW-11 has admitted as correct that whenever the government vehicle is used, logbooks are being maintained. He also admitted as correct that on the same day, the logbook was also maintained, however he did not remember whether IO collected the logbook with regard to the present case. However, IO had not collected any logbook with regard to the present case and nothing has been filed on record in this regard. Hence, it creates a grave suspicion regarding the truthfulness of the case of the prosecution.
36. Hence, from the above discussion, it is observed that there are major contradictions in the deposition of the prosecution witnesses, the statement of official witnesses without corroboration from independent sources cannot be believed to base conviction on stringent provisions of the NDPS Act. From above mentioned all the facts and circumstances and other discussions detailed above, it becomes very clear that the present case is not such a case where the complexity of the accused persons have been proved beyond a reasonable doubt. From the testimony of the witnesses and the above SC No. 222022 State Vs. Abhishek Singh and Anr. Page 27 of 28 discussions, it is crystal clear that there is a shadow of doubt upon the accused persons regarding the commission of charged offence framed against them. Hence, in view of the submissions made above, when the recovery in the present case has not been proved to be effected from accused Abhishek, then accused Ankit cannot be convicted for any of the offences for which he has been charged with. Thus, both accused persons are required to be acquitted in the present case by giving them the benefit of doubt. Thus on all counts, the guilt of both accused persons has not been duly proved.
37. Hence, considering the overall facts and circumstances of the present and given the above observations, both accused persons namely Abhishek and Ankit are acquitted of the offences punishable under Section 20 (b) (ii) (B) & 29 of the NDPS Act by giving them the benefit of doubt.
38. At the request of the accused persons, their previous bail bonds are extended in terms of Section 437A Cr.P.C and shall remain in force for six months from today.
39. Case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of, as per rules. File be consigned to Record Room, after due compliance.
DEEPAK Digitally signed by
DEEPAK WASON
WASON 16:45:55 +0530
Date: 2023.04.03
Pronounced in the open court (Deepak Wason)
today i.e 03rd April 2023 Special Judge (NDPS): SW District
Dwarka Courts: New Delhi
SC No. 222022 State Vs. Abhishek Singh and Anr. Page 28 of 28