Delhi District Court
State vs . Mehraj Patlu Sc No. 30/09 on 16 August, 2014
State vs. Mehraj Patlu SC No. 30/09
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 30/09
ID No. 02403R0245622009
FIR No. 38/09
PS Special Cell
u/s 21 of NDPS Act
State Vs. Mehraj Patlu
S/o Late Sh. Ghulam Ahmad
R/o 15, 2nd floor, Church Road
Bhogal, New Delhi
Date of Institution : 19.09.2009
Judgment reserved on : 07.08.2014
Date of pronouncement : 16.08.2014
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused u/s 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act').
2. Briefly stated the allegations that can be culled out from the contents of the chargesheet and the documents filed with the same are as follows:
(a) On 17/7/2009 at about 06:00 PM, one secret informer came to the office of Inspector Satender Sangwan at PS Special Cell/SR New Friends Colony and informed him that one Mehraj Patlu aged 35/36 years would FIR No. 38/09 Page 1 of 32 State vs. Mehraj Patlu SC No. 30/09 be coming on 17/7/2009 between 10:0010:15 PM at Sunder Nagar, near DPS School, Mathura Road, New Delhi to supply cocaine to someone.
(b) The information was brought to the notice of ACP Sh. L.N. Rao, who gave directions for necessary action to be taken. DD entry no. 12 was also lodged in this regard and as per the directions of the ACP, a raiding team comprising of SI Satender Sangwan, Inspector Devender Singh, SI M.M. Khan, ASI Rakesh Kumar, HC Balraj Singh, HC Devender Kumar, HC Devender Singh, Ct. Rajesh Kumar, Ct. Yashpal and the secret informer left for Sunder Nagar vide DD no. 14 at about 8:10 PM.
(c) On the way to the spot near bus stop Ashram Chowk, IO requested 56 passersby to join the raiding team but none of them agreed to do so.
On reaching the spot at Sunder Nagar, near DPS Mathura Road, Delhi at about 09.00 PM, the members of the raiding team positioned themselves at strategic points and started waiting and at about 10.00 PM, a white Santo car bearing no. DL3CQ7570 was seen coming from Oberoi Hotel side, turning towards Sunder Nagar and stopping near corner of DPS Mathura Road. One person aged about 3536 years came out of the said car and started waiting for someone and was identified as Mehraj, the suspect by the secret informer. After waiting for 1520 minutes the said suspect opened the door of his car and just when hewas about to sit in the FIR No. 38/09 Page 2 of 32 State vs. Mehraj Patlu SC No. 30/09 car he was apprehended by the raiding party.
(d) The IO introduced himself and the members of the raiding team to the said person and apprised him about the information within his knowledge. On enquiry, the said person revealed his name as Mehraj Patlu. He was then issued a notice u/s 50 of NDPS Act and was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The accused refused to exercise the said right and wrote his refusal in his own handwriting.
(e) Thereafter, Inspector Satender Sangwan and Inspector Devender Singh conducted the search of the accused and from the right side pocket of jeans worn by him, one white polythene with a knot tied on it, was recovered. On opening, it was found containing white colour powder, which on smelling and testing with field testing kit, gave positive result for cocaine. The recovered cocaine alongwith the polythene was weighed and its total weight came out to be 30 gms. One sample of 3 gms, was taken out from the recovered cocaine and converted into pullanda which was then given Mark 'S1'. The remaining cocaine was also converted into a cloth pullanda and given Mark 'A'. Both the Pullandas were sealed by the IO with the seal of 'SS'. The impression of the seal was then affixed on the Form FSL, which was filled up by the IO. Seizure Memo was also prepared. Seal after use was handed over to Inspector Devender FIR No. 38/09 Page 3 of 32 State vs. Mehraj Patlu SC No. 30/09 Singh.
(f) The Rukka was prepared and the same alongwith the seizure memos and sealed property was handed over to ASI Rakesh Kumar, who thereafter went to PS Special Cell and produced the case property before SHO, PS Special Cell and handed over the rukka to Duty Officer for registration of FIR. SHO affixed his seal on all the pullandas and documents and also put the FIR number on the carbon copy of seizure memo, FSL form and all the pullandas with his signature and deposited the same with MHCM. Further investigation was handed over to SI Anand Swaroop who came to the spot and he was narrated the facts of the case by SI Satender Sangwan and the accused and the documents prepared were handed over to him. SI Anand Swaroop then inspected the site and prepared the siteplan. After interrogating the accused he was then arrested and after completion of proceedings at the spot, the raiding team alongwith the accused went to PS Special Cell, Lodhi Colony and accused was produced before Inspector Rajender Sehrawat. IO then also deposited the personal search articles of the accused in the Malkhana. Thereafter, the raiding team along with accused came back to the office of Special Cell, SR, New Friends Colony. Special Report u/s 57 of NDPS Act was prepared. On 4/8/2009, the sample Pullanda of this case was sent to FSL, Rohini and after receiving the report from FSL, the present FIR No. 38/09 Page 4 of 32 State vs. Mehraj Patlu SC No. 30/09 chargesheet was filed.
3. On the basis of material placed on record, charges were framed against the accused vide order dated 27/10/2009 for the offence punishable u/s 21 (b) NDPS Act to which the accused pleaded not guilty and claimed trial.
4. In order to prove its case against the accused, the prosecution has examined 12 witnesses in all.
5. PW6 Inspector Devender Singh, PW9 ASI Ashok and PW10 SI Satender Sangwan, are members of the raiding team. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. The notice issued to the accused u/s 50 of the NDPS Act has been exhibited as Ex.PW6/A and the refusal written by the accused has been exhibited as Ex.PW6/B. The seizure memo prepared with respect to the recovery of the cocaine has been exhibited as Ex.PW6/C. The tehrir prepared at the spot has been exhibited as Ex.PW10/A.
6. PW1 Dr. Madhulika Sharma, Asst. Director, FSL, Rohini has proved the report prepared by her with respect to the analysis conducted by her of the sample sent to FSL. The said report has been exhibited as Ex. PW1/A and as per the said report, the sample Mark S1 was found to contain 30.7% cocaine.
FIR No. 38/09 Page 5 of 32
State vs. Mehraj Patlu SC No. 30/09
7. PW2 ASI M. Baxla Malkhana Incharge has inter alia deposed about the deposit of the case property/jamatalashi articles with the malkhana on various dates and has also proved the relevant entries thereof in the malkhana register.
8. PW3 SI Anand Swaroop is the second investigating officer of the present case who has deposed that on reaching the spot he had met SI Satender Sangwan and he had produced before him the accused and documents prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW3/A and had arrested accused Mehraj Patlu vide arrest memo, Ex.PW3/B. According to this witness he had recorded disclosure statement of accused vide Ex.PW2/D and conducted his personal search vide Ex.PW3/C. Seizure memo of Santro car bearing no. DL3CQ 7570 has been exhibited as Ex.PW2/E. This witness has also inter alia proved the report prepared by him u/s 57 NDPS Act as Ex.PW3/F.
9. PW4 Duty officer ASI Mahender Singh has interalia deposed that he was the duty officer on 18/7/2009 and that on this date he had received the rukka of the present case through ASI Rakesh and had registered the FIR, Ex.PW4/A and had made endorsement Ex.PW4/B.
10.PW5 SI Daler Singh, SO to ACP (SR) has interalia deposed that as per the record maintained by him, on 18/7/2007 report u/s 57 NDPS Act FIR No. 38/09 Page 6 of 32 State vs. Mehraj Patlu SC No. 30/09 prepared by SI Anand Swaroop was received in the office of ACP regarding seizure and arrest of accused and that the said report was put before ACP. The report and record produced by this witness have been duly exhibited during his testimony as Ex.PW5/A and Ex.PW5/B.
11.PW7 Inspector Rajender Sehrawat has inter alia deposed that on 1718 July, 2009 he was posted as SHO at PS Special Cell, Delhi and that on the said day, at about 1:55 AM, ASI Rakesh Kumar had produced before him, two pullandas, one FSL Form and one carbon copy of seizure memo. As per the deposition of this witness, he had put the FIR number, his initials and his seal 'RSS' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana by ASI M. Baxla MHC(M) and had lodged DD no. 12 in this regard.
12.PW8 Ct. Rajesh has interalia deposed that on 4/8/2009 on the directions of IO Anand Swaroop, he had taken pullanda mark S1 and FSL form from MHC(M) and had got the same deposited with FSL, Rohini and after deposition he had handed over copy of RC to MHC(M). He has also specifically deposed that so long as the case property remained with him, it was not tampered with.
13.PW11 Ct. Palvinder Singh has brought the rojnamcha of PS Special Cell, Lodhi Colony, New Delhi pertaining to year 2009 and as per the said record in the intervening night of 17/18 July, 2009 Inspector R.S. FIR No. 38/09 Page 7 of 32 State vs. Mehraj Patlu SC No. 30/09 Sehrawat had lodged DD no. 12A, Ex.PW11/A.
14.PW12 Ct. Satish Kumar has brought the rojnamcha of New Friends Colony, New Delhi pertaining to DD no. 14 lodged by PW10. Same has been exhibited as Ex.PW12/A.
15.The entire aforementioned evidence was put to the accused and his statement was recorded u/s 313 Cr.PC and in the said statement, the accused has inter alia stated before this court that he has been falsely implicated in this case only because he had refused to give a discount on Kashmiri shawls which one of the investigating official namely Satender Sangwan had wanted to purchase from his shop. According to the accused he owns a shop in Phaharganj and is in the business of selling handicrafts and jewellery and in the month of March or April 2009 three persons had come to his shop and had wanted to purchase some shawls and that they had selected some pieces and were demanding for a discount of more than 10% on the said shawls. He has further stated that though on the said day, the said persons left the shop when he refused to acede to their request after a week thereof the said persons came back again and told him that they were police officials and that "Saheb" who had selected the shawls last week wanted to buy the same and that he should give them more discount and that he again told them that he cannot give them more than 10% discount. The accused has also narrated FIR No. 38/09 Page 8 of 32 State vs. Mehraj Patlu SC No. 30/09 that thereafter on 17/7/2009 at about 8:00 PM some 78 persons came to his residence and took him alongwith his employee Mehraj Bhatt and one of his acquaintances, Ghalib who had come from Jaipur to sell stones to him, away to PS New Friends Colony and that at the said PS he was given many beatings by the police officials and was made to sign many blank and written documents. According to the accused it was at the PS that he noticed that one of police officials who had apprehended him was the same who had come to his shop in MarchApril, 2009 and his name was later on revealed as Satender Sangwan. In support of the aforementioned evidence, the accused has produced his employee Mehraj Bhatt and his friend Ghalib Khan in the witness box.
16.DW1 Ghalib Khan has inter alia deposed that he is in the business of semi precious stones and that he is a native of Rajasthan and that he frequently comes to Delhi to sell precious stones and is known to the accused for the last 10 years. As per the deposition of this witness, on 17.07.2009 at about 07.00 PM, he was at the house of the accused as he had come to sell some stones to him when 56 persons in plain clothes came in the house of the accused and started slapping him, the accused and his servant Mehraj. As per the deposition of this witness, without even informing them as to who they were, all of them were taken to some PS and were kept in the said PS for the entire night. He has also deposed FIR No. 38/09 Page 9 of 32 State vs. Mehraj Patlu SC No. 30/09 that though on the next morning he and the employee of the accused were allowed to go, the accused was detained in the PS only.
17.The employee of accused, DW2 Mehraj Bhatt has also similarly deposed that on 17.07.2009 at about 07.00 PM 45 persons in plain clothes had forcibly entered the house of the accused and had picked him, the accused and Ghalib Khan on the pretext that they were terrorists and taken them to an office where they were kept the entire night and that he and Ghalib Khan were left off the next morning.
18.After the prosecution and the defence evidence was concluded, Ld. APP Sh. Rajiv Mohan and the Ld. Defence counsel Sh. S.S. Das have advanced final arguments. Written submissions have also been filed on record by Ld. Defence counsel.
19.On behalf of the State, Ld. APP has submitted that the deposition of the prosecution witnesses and the documentary evidence proved on record sufficiently prove that the accused was apprehended and Cocaine was recovered in the manner as alleged by the prosecution.
20.On the other hand, Ld. Defence counsel has submitted that the accused has been falsely implicated in this case only because he had refused to oblige SI Satender Sangwan and had refused to give him a discount on some shawls that the said police official had wanted to purchase from the shop of the accused. It has been pointed out by Ld. Defence counsel that FIR No. 38/09 Page 10 of 32 State vs. Mehraj Patlu SC No. 30/09 accused his statement u/s 313 Cr.PC has explained that he runs a shop of handicrafts, shawls, etc in Pahargunj and that he had refused to give a discount of more than 10% on some shawls that SI Satender Sangwan had come to purchase in his shop and that is the reason he has been falsely implicated in this case. Ld. Defence counsel has also submitted that the accused has produced two witnesses in his defence and both of them have described in detail that how both of them and the accused were forcibly picked up from the house of the accused. Ld. Defence counsel has also pointed out that on the other hand none of the members of the raiding team have been able to depose consistent facts about the alleged proceedings conducted at the spot and this itself proves that the version put forward by the prosecution is completely untrue. Ld. Defence counsel has pointed out to various discrepancies in the deposition given by the prosecution witness (the said discrepancies will be dealt with later in this judgment) in support of his contention. Ld. Defence counsel has also submitted that the signatures of the accused were forcibly taken from him by the IO on the Section 50NDPS prepared by the IO at the PS itself and on this ground itself the accused is liable to be acquitted in view of the law laid down by the Hon'ble Supreme Court in its various judgments. It has also been pointed out by Ld. Defence counsel that the failure of the prosecution to join public witnesses is also fatal to its case FIR No. 38/09 Page 11 of 32 State vs. Mehraj Patlu SC No. 30/09 in the facts and circumstances of the present case. Ld. Defence counsel Sh. Das has also contended that there has been no compliance of section 52 and 55 of the NDPS Act in the present case for the MHCM register produced during trial clearly shows that the case property at the time of being deposited in the malkhana did not have the seal of the SHO at all and that therefore the only inference that can be drawn is that the case property was never produced before the SHO and that the SHO has falsely deposed in this regard. It has also been pointed out on behalf of the defence that there has been an unexplained delay in sending the sample for testing to FSL and the said fact alongwith the admitted situation that the seal of the IO remained with him before the samples were sent to FSL clearly shows that the prosecution has failed to prove that there was no possibility for the tampering of the case property before its samples were sent to the FSL. In support of his contentions Ld. Defence counsel has relied upon the following judgments:
● Dudh Nath Pandey Vs. State of U.P. AIR 1981 Supreme Court 911. ● State of Karnataka Vs. Dondusa Namasa Baddi Criminal Appeal No. 123 of 1997 dated 05.08.2010.
● NCB Vs. Sukh Dev Raj Sodhi (2011) 6 Supreme Court Cases 392. ● Sarju @ Ramu Vs. State of U.P. Criminal Appeal No. 1446 of 2009. ● DRI Vs. Raj Kumar Mehta & Ors. 2011(3) JCC (Narcotics) 156. ● State of Delhi Vs. Ram Avtar @ Rama 2011(3) C.C. Cases (SC) 172. ● Rupinder Singh Vs. State of Punjab 2012(3) JCC (Narcotics) 145. FIR No. 38/09 Page 12 of 32
State vs. Mehraj Patlu SC No. 30/09 ● Peeraswami Vs. State of NCT of Delhi 2007(2) JCC (Narcotic) 80. ● Vijay Sinh Chanduba Jadeja Vs. State of Gujarat reported in (2011) 1SCC 609
21.In rebuttal, Ld. APP for State Sh. Rajiv Mohan has submitted that the absence of public witnesses in the raiding team is not a ground to doubt the prosecution's case when the testimony of the prosecution witnesses is otherwise credible. According to Ld. APP, the contradictions pointed out by Ld. Defence counsel in the depositions of prosecution witnesses are too minor to be given any importance and that even otherwise the police officials cannot be expected to have a photographic recollection of all details. He has also contended that the lacunae pointed out by the Ld. Defence Counsels in the link evidence produced by the prosecution is not sufficient to draw an inference that the case property has been tampered with. According to Ld. APP, mere delay in sending samples for analysis cannot be stated to have caused any prejudice to the accused persons as the seals on the sample tested by the FSL were found tallying with the seals found on the FSL form. As regards the non compliance of section 50 NDPS Act, the submission is that merely because the accused has taken up a defence that he was forced to sign the said notice, cannot be a ground to brush aside the detailed deposition of the investigating officer about the serving of the said notice upon the accused and the refusal of FIR No. 38/09 Page 13 of 32 State vs. Mehraj Patlu SC No. 30/09 the accused to exercise rights available to him. As regards the allegation of the accused that he has been falsely implicated, Ld. APP has pointed out that neither the accused nor his employee nor the friend of the accused had ever filed a complaint against the alleged erring officials and this itself shows that the defence put forward by the accused is an afterthought only to save himself from punishment in this case. In support of his contentions Ld. APP has relied upon the following judgments:
● Ram Swaroop Vs. State 2013 Crl. L.J. 2997 ● Kashmiri Lal Vs. State of Haryana 2013 Crl.L.J. 3036 ● Mohd. Anwar @ Annu Vs. State Crl. Appeal 2011 Crl. L.J. 2386 ● Ram Singh Vs. Central Bureau of Narcotics 2011 Crl. L.J. 3579 ● State of Haryana Vs. Sandeep Kumar 2009 Crl. L. J. 3507 ● Jarnail Singh Vs. State of Punjab 2011 Crl. L. J. 1738 ● Jamesh Albert Vs. State of H.P. 2011 Crl. L.J. 4654 ● Bilal Ahmed Vs. State Crl. Appeal No. 80/2001
22.I have carefully considered the submissions made by both the Ld. Counsels and have gone through the record carefully. As narrated hereinabove, the defence of the accused is that he was forcibly picked up from his residence alongwith his servant/employee Mehraj Bhatt and a business associate Ghalib Khan. As narrated hereinabove both the said persons have also stepped into the witness box and have supported the defence taken by the accused. As per the statement tendered by the FIR No. 38/09 Page 14 of 32 State vs. Mehraj Patlu SC No. 30/09 accused U/s.313Cr.P.C and the deposition of there defence witnesses (as narrated hereinabove in detail in paras 15, 16 and 17) the accused was forcibly picked up at the instance of police officer Satender Sangwan to whom he had refused to give a discount of more than 10% on some Kashmiri Shawls that this police official had wanted to purchase from his shop.
23.Now, as regards the said defence put forward by the accused the contention of the Ld. APP is that the same is concocted and an afterthought and that there is absolutely no reason for this court to believe the same and disbelieve the version given by the police officials.
On the other hand, it is the contention of the Ld. Defence counsel that it is in the context of the defence raised by the accused that this court must examine the case put forward by the prosecution and not accept it blindly.
24.This court does agree with the Ld. Defence counsel that the case put forward by the prosecution is not to be viewed in isolation but is to be examined in the background of the defence raised. No doubt as pointed out by the Ld. APP, the witnesses DW1 and DW2, before their depositions in the court did not file any complaint against their forcible picking from the house of the accused, however in the considered opinion of this Court the said fact alone cannot be taken to be sufficient FIR No. 38/09 Page 15 of 32 State vs. Mehraj Patlu SC No. 30/09 to discard their testimonies altogether. It is quite natural that an ordinary citizen who himself has been detained in the police station for a whole night would not want to have any further to do with the police officials. Further the contention of the Ld. APP that the defence counsel did not put any suggestions with respect to the forcible picking of the accused from his house, to the second investigating officer Anand Swaroop has hardly any merit for such suggestions were admittedly made to the main investigating officer Satendra Sangwan and the other members of the raiding team. In a case titled as Dudhnath Pandey Vs. State of UP, AIR 1981 SC 911, Hon'ble Supreme Court has held that the defence witnesses are entitled to equal treatment with those of the prosecution and the courts ought to overcome their traditional, instinctive disbelief in the defence witnesses. Keeping the said judicial dicta in mind, this court after carefully considering the depositions of DW1 and DW2, is of the considered opinion that their depositions have a ring of truth about them.
25.On the other hand, the testimony of the main investigating official Satender Sangwan does not appear to be absolutely credible or trustworthy. The foremost circumstance in this regard to be taken note of is that it is apparent that no genuine efforts were made by the said investigating official to join independent witnesses in the recovery proceedings assertedly conducted at the spot. Admittedly as per the FIR No. 38/09 Page 16 of 32 State vs. Mehraj Patlu SC No. 30/09 version put forward by the prosecution witnesses, the accused had been apprehended from outside the DPS School, Mathura Road, Sundar Nagar and the main investigating official and the other members of the raiding team have admitted in their crossexamination that there were many permanent establishments/shops/ residential accommodation near the said spot but that no efforts were made to call any person from the said premises. IO PW10 Inspector Satender Sangwan has categorically admitted in his cross examination that though the accused came to the spot after one hour of the arrival of the raiding team at the spot and that there was sufficient time with the members of the raiding team, no person from any nearby establishments were asked to join the raiding team. He has however not bothered to give the reasons as to why he did not make any such effort. It is indeed very strange that though the said investigating official thought it necessary to ask passersby near Ashram Chowk bus stop and at the spot to join the raiding team, he did not think it necessary to ask any of the occupants of the permanent establishments near the spot to join the proceedings. This court is constrained to observe that it has become a regular practice for the police officials of the Special Cell to depose in court casually that though they had made efforts to join passersby in the raiding team, none of the passersby agreed to join the proceedings and left the spot without disclosing their name and FIR No. 38/09 Page 17 of 32 State vs. Mehraj Patlu SC No. 30/09 addresses. Despite a specific query by this court to the Ld. APP as to why the investigating agency only asks passersby to join the proceedings and does not make an effort to join in the proceedings, the occupants of residential premises or office premises near the spot of apprehension so, that at least both the investigating agency and the court are aware of the addresses of the persons who refused to accede to the request of a government public official, there is no explanation in this regard forthcoming from the prosecution. No doubt, one cannot argue with the contention of Ld. APP that public persons are hesitant to join police proceedings and as pointed out by Ld. APP, the Hon'ble Supreme Court in two of its recent judgments pronounced in NDPS cases and relied upon by Ld. APP, has observed that ordinarily the public at large show their disinclination to come forward to become witnesses but the least that is expected is that the investigating agency must be able to satisfy the court that genuine and sincere efforts were made by the investigating officer to make public persons join the proceedings. It has been repeatedly held by the higher courts that in such cases as the present one, the investigating agency must show that sincere efforts were made to join independent witnesses and that the investigating agency cannot merely take a stand that public witnesses refused to join the investigation. In this regard particular reference is made to the judgments reported as Ritesh FIR No. 38/09 Page 18 of 32 State vs. Mehraj Patlu SC No. 30/09 Chakravarty Vs. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150, Anup Joshi Vs. State 1999(2) C.C. Cases 314, Roop Chand Vs. State of Haryana 1999(1) C.L.R 69. In Ritesh's case (supra), the Hon'ble Supreme Court has depreciated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on request of the police officials. In the other two judgments, it has been observed by the Hon'ble High Courts that the failure to proceed against the public persons who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an afterthought and is not worthy of credence.
26.In the present case also, this court finds the deposition of the investigating official that he had made genuine efforts to join public witnesses in the proceedings as not worthy of credence. Infact this investigating official has not even been able to satisfactorily answer many of the relevant questions put to him in the crossexamination. Though according to him two private vehicles a Maruti Zen, belonging to Inspector Devender Singh and a Maruti Wagon R, belonging to his own brother in law were used to travel to the spot he is unable to explain as to why the registration numbers and the makes of the said vehicles were not mentioned in any of the documents prepared with respect to the FIR No. 38/09 Page 19 of 32 State vs. Mehraj Patlu SC No. 30/09 present case. Further though he has taken a stand that the government/ official vehicles allotted to the Special Cell office for the purposes of raid were busy in some other cases, he has been unable to specify which the said cases were. The contention of Ld. APP Sh. Mohan that the said omission on the part of the IO is minor, for the departure entry made at the time of departing from the office of Special Cell, mentioning that private vehicles were taken to the spot alongwith the depositions of the members of the raiding team does make it clear which the said vehicles were, cannot be accepted when one takes into account that the other members of the raiding team PW6 Inspector Devender Singh and PW9 SI Rakesh Kumar have deposed in their crossexamination that the vehicles taken to the spot were Maruti Zen, belonging to Inspector Devender Singh and Maruti Swift (and not Wagon R) belonging to the IO Satender Sangwan. Both PW6 and PW9 are senior police officials and are expected to know the difference between a Wagon R and a Maruti Swift and this court therefore does not agree with the contention that the said police officials might have got confused with respect to the make of the car. This court also does not agree with Ld. APP that the said contradiction does not have any bearing on the case, for in the considered opinion of this court the prosecution is required to bring evidence before this court to support its version of the raiding team having gone to the FIR No. 38/09 Page 20 of 32 State vs. Mehraj Patlu SC No. 30/09 spot where assertedly the accused was apprehended and in the present case when no government vehicle was taken for the raid and when no contemporary document records the registration numbers and the makes of the vehicles that were assertedly taken to the spot by the investigating officials, the contradictions in the depositions of the three important members of the raiding team with respect to the make of the vehicle that was taken to the spot cannot be brushed aside. In the case titled as Peeraswami Vs. State of NCT (supra - a judgment relied upon by the Ld. Defence counsel), the Hon'ble Delhi High Court after taking note that the log book produced by the prosecution did not support the version put forward by the investigating agency, refused to uphold the conviction of the accused. In other words, the log book maintained with respect to the government vehicle was held by the Delhi High Court to be an important piece of evidence that the prosecution should have brought before the court to support its version of having gone to the spot of apprehension of the accused.
27.Now apart from the aforementioned discrepancy in the depositions of the members of the raiding team, there are three other material discrepancies in the said depositions which throw a grave doubt on the case put forward by the prosecution one is with regard to the section 50 NDPS Act notice issued to the accused and his reply thereto, the second is with FIR No. 38/09 Page 21 of 32 State vs. Mehraj Patlu SC No. 30/09 regard to the colour test conducted of the substance assertedly recovered from the accused at the spot, by using a Field Testing Kit and third is with respect to the noncompliance of Section 52 of the NDPS Act..
28.As regards the discrepancy that has come to the fore with respect to the notice issued to the accused U/s.50 NDPS, as per the version of the prosecution, before the search of the accused was conducted, he was issued the said notice and informed that he has a legal right to be searched before a Gazetted Officer or a Magistrate but that the accused wrote his refusal on the carbon copy of the said notice Ex.PW6/B, in his own handwriting in English language. On the other hand, as per the version put forward on behalf of the defence, the accused being a Kashmiri did not know how to write Hindi at all and that he was only conversant with the alphabets of the English language but could not write English fluently and that after he was forcibly taken to the office of Special Cell, he was forced to write his refusal on the section 50 notice, by copying the same from the words written on a separate sheet of paper by the police officials and since he was not fluent in writing the same, he had written the alphabets in capital letters. In the context of this defence, both the IO Satender Sangwan and PW9 SI Rakesh Kumar were cross examined and though the IO Satender Sangwan took a stand that the accused knew how to write both English and Hindi, PW9 SI Rakesh FIR No. 38/09 Page 22 of 32 State vs. Mehraj Patlu SC No. 30/09 Kumar categorically stated that the accused was knowing how to write Hindi and on being questioned as to how he could state the said fact, he replied that he could do so affirmatively because the accused had written his reply to the section 50 notice in Hindi. In other words, this witness was categorical in deposing that the accused had written his reply in Hindi on the section 50 notice and that is why he is sure that the accused knew how to write Hindi. Though a little later during his cross examination, this witness after going through the said notice Ex.PW6/B and realising that the reply given by the accused on the same was in English, deposed that he had not initially understood the questions that were put to him by the Ld. Defence counsel and that he had only wanted to say that the accused knew how to speak Hindi, it is clear that this somersault was taken by him only after he saw the section 50 notice Ex.PW6/B on the judicial record. In Vijay Sinh's case (supraa judgment relied upon by the Ld. Defence counsel), the Hon'ble Supreme Court after taking note that the punishment provided under the provisions of NDPS Act for mere possession of contraband is very severe and harsh, has held that it is mandatory for the investigating officials to strictly comply with the provisions of section 50 of the NDPS Act and that this duty cast upon the investigating officers is imperative and that any lapse in this regard will render the seizure of the contraband illegal and such a FIR No. 38/09 Page 23 of 32 State vs. Mehraj Patlu SC No. 30/09 seizure cannot be made a ground for a valid conviction under the NDPS Act. It has been further laid down by the Hon'ble Supreme Court in the said case that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial and that it would neither be possible nor feasible to lay down any absolute formula in that behalf. In the present case also in the considered opinion of this court the statement given by PW9 in his cross examination does make it apparent that the version of the prosecution that the mandatory provisions of section 50 NDPS Act cannot be blindly accepted.
29.The second circumstance which does not inspire any confidence in regard to the case put forward by the prosecution is with respect to the depositions of the members of the raiding team that the substance recovered from the accused was tested at the spot by the IO SI Satender Sangwan using a Field Testing Kit. Though the said IO in his examination in chief has deposed that he had checked the substance recovered from the accused by using the Field Testing Kit and that the substance had tested positive for cocaine, in his crossexamination when he is questioned about the exact procedure followed by him while using the Field Testing Kit, he very callously has deposed that he does not remember the colour or the name of the chemicals that he had used and FIR No. 38/09 Page 24 of 32 State vs. Mehraj Patlu SC No. 30/09 further the colour that the substance had changed into, on being tested. Such kind of deposition by the main investigating official can hardly inspire any confidence in his testimony. Further the other senior most official of the raiding team namely PW6 Inspector Devender Singh also appears to have deposed falsely in this regard. On being questioned in this regard though this witness has specifically deposed that two liquid chemicals were poured on the substance that was recovered from the accused and the colour of the recovered substance had turned violet, it is to be taken note of that as per the Field Testing Kit chart (placed on record by the prosecution on the directions of this court) it is heroin and not cocaine which changes to the colour violet on being tested with the chemicals that are a part of the Field Testing Kit. Thus the aforementioned depositions of the two main investigating officers with respect to the test of the substance conducted at the spot can hardly be believed. The contention of the Ld. APP that the chart filed on record shows that cocaine on being tested with the chemicals in the field testing kit changes its colour to blue and that since the raid was conducted during night hours, Inspector Devender would have got confused between the colours violet and blue, cannot be accepted at all, for firstly Inspector Devender has himself not stated that due to insufficiency of light he had not noticed the colour properly and secondly the main FIR No. 38/09 Page 25 of 32 State vs. Mehraj Patlu SC No. 30/09 investigating officer Satendra Sangwan in his crossexamination has categorically stated that there was sufficient light at the spot.
30.The third circumstance which has come to the fore during trial is the failure of the prosecution in proving that the provisions of section 52 of the NDPS Act were complied with. As per the provisions of the said section, inter alia every person arrested for having committed an offence under the NDPS Act has to be produced without unnecessary delay before the officer incharge of the nearest police station or the officer empowered u/s 53 of the NDPS Act. Now in the present case admittedly it is the SHO PS Special Cell, Inspector Rajendra Sehrawat who is the officer incharge before whom the second IO Anand Swaroop should have produced the accused. Though this IO PW3 in his examination in chief has deposed that he alongwith the accused had reached the Special Cell, Lodhi Colony around 0404.30 AM and he had produced the accused before Inspector Rajendra Singh Sehrawat, the deposition of the said SHO makes it clear that Anand Swaroop has deposed falsely in this regard. The said Inspector Sehrawat PW7 in his examination in chief has deposed that it was only the pullandas and the documents that were produced before him by ASI Rakesh and has not uttered a word about the production of the accused before him. The submission of the Ld. APP that the said witness may have inadvertently forgotten to mention the FIR No. 38/09 Page 26 of 32 State vs. Mehraj Patlu SC No. 30/09 said fact cannot be accepted at all because in his crossexamination he has categorically deposed that he had left the police station on the night of the incident at about 03.30 AM and therefore there would have been no possibility of the accused been produced before him, in view of the deposition of the IO Anand Swaroop and the documents prepared at the spot that the raiding team had left the spot and reached PS Special Cell only after 0404.30 AM. No doubt as contended by Ld. APP Sh. Rajiv Mohan that the provisions of section 52 NDPS Act are only directory, in a case titled as Gurbaksh Singh vs. State of Haryana 2001(3) SCC 28, the Hon'ble Supreme Court has held that though the provisions of section 52 and 55 are directory and the violation of these provisions do not ifso facto violate the trial or conviction, the investigating agency cannot totally ignore these provisions and such failure will have a bearing on the appreciation of the evidence regarding arrest of accused and seizure of article.
31.In addition to the above three circumstances, there are two other facts that have been pointed out by Ld. Defence counsel, on the judicial record which need to be mentioned - firstly, that the prosecution has not tendered any explanation with respect to a copy of the FSL form placed on record alongwith the chargesheet and secondly it has also not given any details as to what investigation was carried out by the investigating FIR No. 38/09 Page 27 of 32 State vs. Mehraj Patlu SC No. 30/09 agency in pursuance of the asserted disclosure given by the accused naming therein the person from whom he had acquired the recovered cocaine.
32.In this regard it is to be noted that as per the depositions of all the members of the raiding team and the contemporary documents prepared at the spot, after the recovery of the contraband from the accused the IO had prepared the FSL form which he had handed over to PW9 alongwith the copy of the seizure memo, the pullandas and thereafter the said form and the articles were produced before the SHO PW7 Inspector Rajender Sehrawat, who had then handed over the same to the MHCM. The IO Satender Sangwan, PW9, PW7 the SHO, PW2 the MHCM have all deposed about one FSL form that had been prepared by the IO at the spot, handed over to PW9, produced before the SHO and got deposited in the MHCM and thereafter sent alongwith the sample pullanda to the FSL Rohini. As per the deposition of PW7 the SHO, the FSL form produced before him was having one seal of SS affixed on it and that he thereafter had put his seal of RSS on the same and then hand handed over the said form to the MHCM. As per the deposition of MHCM the same form was sent to FSL Rohini alongwith the sample and as per the deposition of the FSL expert PW1 Dr. Madhulika Sharma, the said FSL form was received alongwith the sample parcel and the seals were tallied. In other words in FIR No. 38/09 Page 28 of 32 State vs. Mehraj Patlu SC No. 30/09 the entire case put forward by the prosecution there is no mention about the preparation of FSL form in duplicate or the retaining of the same by the first IO, the second IO, the SHO or the MHCM but yet there is a carbon copy of an incomplete FSL form which has been filed alongwith the chargesheet and the only explanation been given with respect to the same by the Ld. APP is that the FSL form might have been prepared by Inspector Satender Sangwan in duplicate by using a carbon and that he may have inadvertently forgotten to depose about the same or to mention about it in any of the documents prepared and that even otherwise the preparation of a form in duplicate can hardly stated to have caused any prejudice to the accused. I am afraid that the said contention of Ld. APP cannot be accepted for if this was the case then nothing stopped the prosecution from examining SI Satendra Sangwan in this respect and further though the availability of a FSL form in duplicate may not have caused any prejudice to the accused, but the same supports the contention of the defence that the documents were not prepared in the manner deposed by the prosecution witnesses.
33.The second fact pointed out by the Ld. Defence counsel is that the prosecution has not given any explanation with respect to the investigation carried out after the accused purportedly disclosed the name of the person from whom he had acquired the cocaine recovered from FIR No. 38/09 Page 29 of 32 State vs. Mehraj Patlu SC No. 30/09 him. As per the deposition of the second Investigating Officer Anand Swaroop, after reaching the spot he had interrogated the accused and had recorded his disclosure. Now a perusal of the asserted disclosure statement given by the accused shows that the accused had inter alia informed SI Anand Swaroop that the cocaine recovered from him had been procured by him from one person namely Haji who operates a mobile no. 9999750932. However despite the fact that the investigating officer was purportedly informed of the mobile number of the said supplier by the accused, apparently no efforts whatsoever were made by this IO Anand Swaroop with respect to the said mobile number. Neither is there a whisper in the chargesheet about the investigation done by this IO with respect to the said number nor has he bothered to depose a word about the same in his evidence.
34.To sum up now therefore, the inconsistencies and contradictions, discussed herein above, if considered conjunctively and cumulatively, are sufficient, in the considered opinion of this court to hold that the prosecution has not been able to prove its case against the accused beyond all reasonable doubt. This court does not agree at all with the prosecution that the aforesaid contradictions are not relevant and are not fatal to the case of the prosecution. In a criminal case, in the absence of any independent public witnesses, an accused has no other way to show FIR No. 38/09 Page 30 of 32 State vs. Mehraj Patlu SC No. 30/09 that a false case has been foisted on him except to show that the police officials examined by the prosecution are not telling the truth when they are making discrepant statements on material aspects of the case. Another aspect which cannot be ignored in the present case is that the FSL report proved on record shows that the sample drawn from the 30 gm of the substance allegedly recovered from the accused was found to contain only 30.7% of cocaine i.e. in other words, only 9 gm of heroin was allegedly recovered from the accused. No doubt, in view of the notification dated 18.11.2009, issued by the Central Government, this court is not to consider the pure drug content of the heroin alone in the mixture of 30 gm, but the very small percentage of heroin found to be present in the substance allegedly recovered from the accused is a fact which is being rightly relied upon by the accused in the present case to support his contention that he has been falsely implicated and the contraband has been planted upon him. The Apex Court in the case of State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 has held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed". In Noor Aga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135 it was held that in cases arising out of the provisions of FIR No. 38/09 Page 31 of 32 State vs. Mehraj Patlu SC No. 30/09 NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused. It has also been observed by the Hon'ble Supreme Court in the said case that though the standard of proof required to prove the guilt of the accused on the prosecution is 'beyond all reasonable doubt' but the standard of proving required for the accused to prove his or her innocence is 'preponderance of probability'. In the present case it is clear that the evidence produced by the prosecution is not sufficiently credible to hold that the version put forward by the investigating agency is true or that it has followed the provisions of section 50 and 52 of the NDPS Act. On the other hand, the accused has been able to show his defence as probable. In view thereof, it is hereby held that the prosecution has failed to prove its case against the accused beyond reasonable doubt and the accused therefore stands acquitted of the charges framed against him.
Announced in open Court
on this 16th day of August, 2014 (Anu Grover Baliga)
Special Judge NDPS : New Delhi
Patiala House : New Delhi
FIR No. 38/09 Page 32 of 32