Delhi District Court
Of Union Of India vs . Bal Mukund &Ors., 2009 Crl. L. J. 2407. ... on 7 June, 2013
1
IN THE COURT OF DIG VINAY SINGH: ADDL. SESSION JUDGE
SPECIAL JUDGE: NDPS: ROHINI COURTS: DELHI
In the matter of:-
SC No. 103/11
FIR No. 146/11
PS Crime Branch
U/s 20/25/29/61/85 NDPS Act
State
Versus
1. Pramod Kumar Singh
S/o Sh. Lakhan Singh
R/o Village Jagdiya, P.S Birni,
District Girdih (Jharkhand).
2. Vakil Singh
S/o Sh. Badri Singh
R/o Village & PO Markacho, P.S Markacho
District Kodarma (Jharkhand).
3. Waseem @ Naseem @ Sonu
S/o Sh. Rahmat Khan @ Hazi Bashir
R/o Village Nizampur, P.S Tavru
District Nuh (Haryana).
4. Mohd. Shakir @ Sunil
S/o Mohd. Idris
R/o Chandu Ka Makan behind Sai Baba Mandir,
Nehar Par, Hari Nagar Colony,
Old Faridabad (HR).
Date of Receipt : 30.09.2011
Date of arguments: 01.06.2013
Date of Decision : 07.06.2013
JUDGMENT
1. The above named four accused were charge sheeted in the present case with the case of the prosecution that accused Pramod Kumar Singh was apprehended on 27.05.2011 SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 1 of 45 2 at about 3.30 PM from near a Mosque, G.T.K. Karnal Road, Lal Bagh, Delhi, based on a prior, by name and specific secret information against him, by SI Anuj Nautiyal, HC Rajbir, ASI Ravinder, HC Priyavrat, Ct. Sandeep and Ct. Sanjay. At that time, Pramod was driving one Vikram TSR no. DL 1F 0534 and from the back side of the three wheeler, two cartons containing 40 Kg of Ganja each, i.e. total 80 Kg of Ganja, was recovered.
1.1. Disclosure statement of Pramod was recorded after his arrest. Based on the disclosure statement of Pramod, accused Vakil Singh was apprehended from outside Quarter no. 37-ARP Quarters, Double Storey Motia Khan, Paharganj, Delhi. Vakil Singh disclosed that the contraband recovered from Pramod was supplied by his associate Piyush.
1.2. Vakil Singh was apprehended on 30.05.2011, and he disclosed that on that day also Ganja was being transported through Utkal Express trial, for one Munna, from Orissa which would be delivered at Hazrat Nizamuddin Railway Station.
1.3. A raid was conducted and from outside the Hazrat Nizamuddin Railway Station at Sarai Kale Khan parking side, other two accused Mohd. Shakir @ Sunil and accused Wasim @ Nasim @ Sonu were apprehended, when they were loading five cartons containing Ganja in a Tata Indigo Car, allegedly.
1.4. At the time of recovery of Ganja, samples were drawn which were sent to FSL. FSL result also confirmed that the material was indeed Ganja. On completion of investigation, charge sheet was filed against the four accused.
2. Accordingly, a charge U/s 29, 25 & 20 of NDPS Act was framed against Pramod;
accused Vakil Singh was charged for offences U/s 29 of NDPS Act ; accused Mohd. Shakir @ Sunil was charged for offences U/s 29, 25 & 20 of NDPS Act and; accused Wasim @ Sonu was charged for offence U/s 29 & 20 of NDPS Act. All the four accused SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 2 of 45 3 pleaded not guilty and claimed trial.
3. For the sake of convenience, accused Wasim @ Naseem @ Sonu is referred to as accused Sonu and accused Mohd. Shakir @ Sunil is referred to as Sunil and other two accused are addressed by their initial names i.e. Pramod and Vakil.
4. In support of its case, prosecution examined total 14 witnesses.
5. Out of those 14 witnesses, as regards the recovery dated 27.05.2011, PW-3 HC Rajbir, PW-4 SI Anuj and PW-13 Ct. Sandeep are the recovery witnesses.
5.1. PW-4 SI Anuj deposed that on 27.05.2011, a secret informer came to his office and informed that Pramod Kumar Singh who was resident of Ara Kasa, Paharganj, Delhi would come with Ganja after receiving it from Piyush and Pankaj and he would come to Azadpur from New Delhi Railway Station side, in a three wheeler Vikram bearing no. DL 1F 0534. PW-4 told about this information to the concerned ACP, and thereafter, reduced the secret information into writing vide DD no. 17 at 2.30 PM, and in compliance of Section 42 NDPS Act handed over its copy to Inspector Arvind (PW-14). Thereafter, he constituted a raiding party which included ASI Ravinder, Ct. Rajbir (PW-3), HC Priyavrat (PW-8), Ct. Sandeep (PW-13) and Ct. Sanjay.
5.2. PW-3 HC Rajbir, PW-4 SI Anuj and PW-13 Ct. Sandeep, deposed that the raiding party along with the secret informer left the Crime Branch office vide DD no. 18 in a government gypsy and reached near Lal Bagh, near a mosque, at G.T.K Karnal Road, where certain passersby were requested to become witness but none of them agreed. The raiding team took position and at 3.30 PM, one green colour Vikram three wheeler bearing the same number as was disclosed in secret information was noticed while coming from the side of Shakti Nagar. The secret informer pointed out towards the three wheeler and the three wheeler was intercepted. Accused Pramod was driving the said three wheeler. PW-4 introduced himself and other members of the raiding team to SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 3 of 45 4 accused Pramod and he was also told about the secret information against him. He was also told that his personal search was to be conducted besides the search of his three wheeler and, he was made aware of his legal rights U/s 50 NDPS Act, orally. He was also served with a notice under section 50 NDPS Act, in writing, Ex.PW-3/A. One copy of the notice was delivered to him. Accused refused to exercise his rights and his refusal was noted down on the notice, which was signed by him. Accused allegedly also refused to search the police team and their vehicle before his search was conducted. Thereafter, formal search of Pramod was conducted from which nothing was recovered. Accused was asked to open the lock of back side compartment of the vehicle. It was found to be carrying two cartons which on checking were found to be containing Ganja. Both the cartons were containing 40 Kg of Ganja each, out of which two-two samples of one Kg Ganja were separated as sample, from both the cartons. The samples were kept in separate cloth parcels which were given Serial no.S1 & S2 qua first carton and S3 & S4 qua the second carton. The main cartons were given Serial no. A1 & A2. All the six cartons were sealed with the seal of AN, belonging to PW-4. FSL form was filled up upon which also same specimen seal was affixed. The case property was taken into possession vide memo Ex.PW-3/B, and the three wheeler vide memo Ex.PW-3/C. Seal after use was handed over to PW-3. Thereafter, rukka Ex.PW-4/A was prepared, which was given to PW-13 along with all the six sealed parcels; the FSL form and; carbon copy of seizure memo to be taken to the police station. PW-13 Ct. Sandeep left the spot with those articles at 7.00 PM.
5.3. PW-13, deposed that he handed over the rukka to the duty officer for registration of FIR, after reaching the police station, and he handed over other articles to SHO PW-1 Inspector C.R.Meena in compliance of Section 55 of NDPS Act.
5.4. PW-13 Ct. Sandeep and PW-1 Inspector C.R.Meena both deposed that thereafter PW-1 affixed his own seal on all the six parcels of CRM and the FSL form and after SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 4 of 45 5 inquiring the FIR number, PW-1 noted down the same on the parcels and the documents. Thereafter, the case property was deposited in Malkhana vide entry in Register no. 19.
5.5. PW-13 thereafter collected the FIR's copy and the original rukka and took it to the spot.
Meanwhile, PW-5 ASI Jai Singh had already reached the spot.
5.6. It is deposed by PW-3, 4, & 5, that on arrival of PW-5 Jai Singh at the spot, custody of accused Pramod along with the documents were handed over to him, where after, ASI Jai Singh prepared the site plan Ex.PW-5/A. Subsequently, SI Anuj PW-4 left the spot.
5.7. It is deposed by PW-3, 13 & 5 that thereafter, the accused Pramod was arrested by PW-5 vide arrest memo Ex.PW-3/D and his personal search was conducted vide memo Ex.PW-3/E. In the personal search of Pramod, a copy of notice U/s 50 NDPS Act, one purse containing Rs.530/-, and a driving license was recovered. Subsequently, disclosure statement of accused was recorded Ex.PW-3/F. It is also deposed that the personal search articles and the Vikram TSR were deposited in the Malkhana by PW-5.
5.8. PW-4 SI Anuj also deposed that he prepared a report U/s 57 NDPS Act regarding seizure of contraband from Pramod, on 28.05.2011, Ex.PW-4/1, which he submitted to the senior police officers.
5.9. Similarly, PW-5 deposed that he also prepared a report U/s 57 of NDPS Act Ex.PW-5/B qua the arrest of accused Pramod which was submitted to ACP.
5.10.PW-3, 4, 5 & 13 identified accused Pramod in the court as the same person from whom Ganja was recovered on 27.05.2011, and the recovered Ganja and its samples were proved in the court as Ex.P1 to P5.
5.11.PW-3, 5, 8 & 13, are the recovery witnesses of the subsequent recovery dated 30.05.2011. They deposed that on 30.05.2011 when accused Pramod was in police SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 5 of 45 6 custody, the team comprising of themselves and Ct. Suraj and Ct. Sanjay, left the office along with accused Pramod at 9.15 AM, vide DD no. 5 Ex.PW-5/C and reached New Delhi Railway Station at 11.00 AM. They reached the Parcel Office of the station at 11.30 AM, but could not find any other accused. One secret informer met PW-5 ASI Jai Singh and told him that he will inform ASI Jai Singh whenever he gets any information against accused Piyush or Vakil. Subsequently, at the pointing out of accused Pramod, the police team reached near Quarter no. 37, Double Storey, Motia Khan, Paharganj, Delhi, at 12.15 PM where Pramod pointed out towards co-accused Vakil. Accused Vakil was apprehended there at 12.20 PM. He was interrogated and then arrested at 1.15 PM, vide arrest memo Ex.PW-3/G and his personal search was conducted, vide a personal search memo Ex.PW-3/H. From the personal search of Vakil, two mobiles were recovered which were taken into possession after sealing the same with the seal of PW-5 vide memo Ex.PW-3/Q. No contraband was recovered from Vakil. Accused Vakil made a disclosure that on that day also; some Ganja would be reaching Delhi from Cuttak in Orissa at Nizamudin Railway Station. He also disclosed that it was procured by Munna who belongs to Rajasthan. Disclosure statement of accused Vakil Singh, Ex.PW-3/J, was recorded and thereafter, the raiding team left the Motia Khan at 2.00 PM and reached Nizamuddin Railway Station at 3.00 PM. The team reached towards Sarai Kale Khan outside the Nizamuddin Railway Station. There, on the pointing out of accused Vakil Singh, at about 5.20 PM, other two accused namely Sunil and Sonu were apprehended when they came near an Indigo Car bearing no. HR 51 T 0239, and when they were loading certain cartons in the car. Prior to it, certain public persons were requested to become witness there also but none agreed. Sunil and Sonu were apprehended and again few public persons were requested to become witness but none agreed. Introduction of police team was given to accused Sonu and Sunil and they were also told that an information was available with police that they were carrying Ganja. They were also informed of their legal rights under section 50 NDPS Act and both were served with a notice U/s 50 NDPS Act, each, but both of them SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 6 of 45 7 refused to exercise their rights. Their notices are proved as Ex.PW-3/K & L. The refusal was noted down on their notices. Thereafter, the car was searched and three cartons kept on the back seat of the car and two cartons kept inside the dickey of the car were taken out and checked. All the cartons were packed in kattas and they were found to be containing Ganja. The cartons were given Serial no. 1 to 5 and they were weighed. Cartons bearing Serial no. 1 & 5 had 25 Kg Ganja each; cartons bearing Serial no.2 & 4 had 25 Kg Ganja and the carton no. 3 had 23 Kg Ganja. Thereby total 125 Kg Ganja was recovered in five cartons. Out of each carton, two samples of 500 gm each were taken out, which were given Serial no. 1 to Serial no. 10, and all the sample pullandas and the main cartons were duly sealed with the seal of PW-5. FSL form was also filled up on which also specimen seal was applied and the case property was taken into possession, vide memo Ex.PW-3/M. The car was taken into possession vide memo Ex.PW-3/N. Thereafter, formal search of accused Sonu was conducted and from his possession one copy of bilty and one original Gate Pass issued by Railway Authorities was recovered. It was taken into possession vide memo Ex.PW-3/P. The Gate Pass and bilty are proved in the court as Ex.PW3/P1 and P2, respectively. The case property along with the FSL form and carbon copy of seizure memo were given to PW-8 HC Priyavrat to be taken to the police station Crime Branch, Nehru Place and he accordingly took them to the PS. 5.12.PW-1 & 8 both deposed that in the police station, the case property was handed over by PW-8 to PW-1, who affixed his own seal on all the 15 pullandas and also affixed his seal on FSL form. Thereafter, the case property was deposited in the Malkhana vide entry in Register no.19.
5.13.It is also deposed by PW-3, 13 & 5 that accused Sonu and Sunil were arrested vide Arrest Memos Ex.PW-3/R & R1; their personal search was conducted vide memos Ex.PW-3/S & S1 and; their disclosure statement were recorded Ex.PW-5/D & E. It is SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 7 of 45 8 also deposed that information of arrest of accused Sonu was given vide memo Ex.PW-5/F. These witnesses also identified the case property recovered from Sunil and Sonu as Ex.P6 to P10 and identified them in the court. Even accused Vakil Singh was identified by the witnesses in the court.
5.14.The photographs of Indigo Car are proved as Ex.PW-3/1 to 3/6 with its negatives as Ex.PW-3/7. And the photographs of Vikram three wheeler are proved as Ex.PW-3/8 to 3/13 with its negatives Ex.PW-3/14 & Ex.PW-3/15.
5.15.PW-1 SHO Inspector C.R.Meena, is a formal witness who deposed that on 27.05.2013 and 30.05.2013, he affixed his seal of CRM on the pullandas as well as on the FSL form and that he deposited these properties in the Malkhana vide entries in Register no.19. PW-1 also deposed that he lodged DD no. 17 & DD no.20 regarding deposition of these properties on two different dates as Ex.PW-1/A & Ex.PW-1/B. 5.16.PW-2 HC Raj Kumar was the duty officer who proved registration of FIR Ex.PW-2/A;
endorsement on rukka Ex.PW-2/B and the DD no.16 & 18 as Ex.PW-2/C & D, respectively, regarding commencement and completion of FIR.
5.17.PW-6 HC Dalbir Singh is also a formal witness who proved DD no. 20 dated 30.05.2011 as Ex.PW-6/A. 5.18.PW-7 Ct. Pradeep is also a formal witness who proved DD no. 5 dated 30.05.2011 as Ex.PW-5/C and the fact that on 10.06.2011 he took the sample parcels from the Malkhana of police station Crime Branch to FSL lab, while they were duly sealed with the seal of Investigating Officers and the SHO, along with the FSL form, under RC no. 263/21/11, and that he deposited the pullandas in the lab, and so long as the case property remained in his possession, nobody tampered with it.
5.19.PW-9 HC Jag Narain was the Malkhana moharrar who proved deposition of case SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 8 of 45 9 property on 27.05.2011 and 30.05.2011 in the Malkhana vide entries in register no. 19 Ex.PW-9/A, B, C & D. He also proved deposition of personal search articles of the accused in the Malkhana along with the vehicles. The witness also proved the Road Certificate, Ex.PW-9/E, through which samples were taken by PW-7 on 10.06.2011 and endorsement to this effect in the Register no. 19 Ex.PW-9/E1. He also deposed that PW-7 deposited an acknowledgment of receipt of samples obtained from the lab as Ex.PW-9/F and endorsement of receipt of result of FSL on 05.08.2011 as Ex.PW-9/F1.
5.20.PW-10 HC Ravinder Singh is also a formal witness who proved DD no. 17, 18 & 28, dated 27.05.2011, as Ex.PW-10/A, B & C, in the handwriting of Woman ASI Radha, Woman ASI Radha and Ct. Rajesh, respectively.
5.21.PW-11 Vishal Gaurav was the Nodel Officer of Bharti Airtel Ltd. who proved the mobile call details of initial investigating officer PW-4 SI Anuj Nautiyal along with the Customer Application Form, ID number, call details and Certificate U/s 65 B of Indian Evidence Act as Ex.PW-11/A, B, C and C1, respectively. He also proved location of towers qua the calls made between 25.05.2011 to 30.05.2011 as Ex.PW-11/C2.
5.22.PW-12 Suresh Chand Meena is also a formal witness from Hazrat Nizamuddin Railway Station, Parcel Office and he deposed that on 30.05.2011 he was posted as Parcel Supervisor at the station and during his duty hours, one person came with the bilty in question and he prepared a gate pass and handed it over to that person. That person left his office after taking the gate pass but he had retained the bilty of the cartons. He proved the bilty Ex. PW-3/P1and the gate pass Ex. PW-3/P2. He also proved the register containing details regarding issuance of gate pass at Serial no. 207 reflecting the date of ticketing as 18.05.2011 as Ex.PW-12/A. 5.23.Lastly Inspector Arvind PW-14 deposed that on 27.05.2011 PW-4 produced a true copy of DD no. 17 in compliance of Section 42 of NDPS Act before him which he SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 9 of 45 10 signed and forwarded to the ACP on that very day. He also deposed that thereafter he was informed about recovery of Ganja from accused Pramod and he reached the spot where accused Pramod and TSR were present at the spot. He thereafter, interrogated the accused and appointed PW-5 ASI Jai Singh as further investigating officer of the case. Subsequently, a report U/s 57 NDPS Act Ex.PW-4/1 was furnished to him by PW-4 on 28.05.2011 which he signed and forwarded to the ACP. He also deposed that on that very day PW-5 ASI Jai Singh furnished a report U/s 57 of NDPS Act regarding arrest of accused Pramod Ex.PW-5/B to him on which he signed and forwarded to the ACP. The witness also deposed that on 30.05.2011, he was informed regarding recovery of Ganja from Sarai Kale Khan parking side of Hazrat Nizamuddin Railway Station from Sonu and Sunil at the pointing out of Vakil. He reached the spot and there interrogated the three accused Vakil, Sonu and Sunil. He also deposed that on the next day i.e. 31.05.2011 PW-5 ASI Jai Singh produced a report U/s 57 NDPS Act Ex.PW-14/A before him regarding seizure and arrest of accused which he signed and forwarded to the ACP.
6. On conclusion of the prosecution evidence, all the incriminating evidence against the accused was put to the four accused, separately.
6.1. Accused Pramod in his statement claimed that he was not driving any such Vikram TSR on 27.05.2011 at the time and the place claimed by the prosecution witnesses and instead he was picked up by the police from outside New Delhi Railway Station on that very day at 5.30 PM. He claimed that his signatures were obtained on blank papers in the office of Crime Branch and he was told that he would be allowed to go on the next day but he must sign blank papers. He claimed that nothing was recovered from his possession and the Ganja has been planted upon him. He claimed that he was not even present at the spot. He also denied having made disclosure statement or having pointed out towards accused Vakil or anybody else. He denied that accused Vakil was SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 10 of 45 11 apprehended at his instance on 30.05.2011. Instead he claims that on 30.05.2011 he was kept in the office throughout and he was taken only for his medical examination to Baba Saheb Ambedkar Hospital at 8.30 PM when he was medically examined at 9.40 PM and he remained in the hospital till 10.30 PM. Accused Pramod claimed that on 27.05.2011, he was present outside New Delhi Railway Station when certain police officials came and enquired name of his employer and when he told the name of his employer as Suresh Kumar Singh, he was told that there was some warrant against Suresh Kumar Singh and that the accused should accompany the police officials. He was taken to Crime Branch and thereafter falsely implicated. He claims that he did not know other three co-accused before he was charge sheeted in the present case.
6.2. Accused Pramod opted to lead defence evidence in his favour as DW1 and proved his MLC as Ex.DW1/A pertaining to 30.05.2011 in which the time of his medical examination is mentioned as 9.40 PM and the MLC pertains to BSA hospital.
6.3. Accused Vakil Singh claimed that he was not apprehended on 30.05.2011 at the time and place claimed by the prosecution witnesses and he was not apprehended at the pointing out of accused Pramod. Rather he was picked up from the said place i.e. Quarter no. 37 by crime branch officials one day before i.e. on 29.05.2011 at about 12 in the noon and he was taken to Crime Branch Office. He claimed that he also did not know any of the other three co-accused prior to the charge sheet of the present case and that he did not have any Ganja in his possession at any point of time nor did he supply it to anybody. He also claimed that he did not make any disclosure statement to the police, instead his signatures were obtained on blank papers by crime branch officials and he never was taken to Railway Station Hazrat Nizamuddin or Sarai Kale Khan on 30.05.2011. He denies that any accused was apprehended at his instance on 30.05.2011 or that anything was recovered from anybody at his instance.
6.4. Accused Sunil took a stand that he was also not present at Sarai Kale parking side of SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 11 of 45 12 Hazrat Nizamuddin railway station on 30.05.2011 and he was not apprehended with Sonu. Instead he was picked up from his house on 29.05.2011 at 10.30 AM and he was taken to the crime branch office on 29.05.2011. He also claimed that he did not know any of the three accused prior to the time he was charge sheeted with them. He claimed that he had never seen them earlier and he had no dealings with them in any capacity. He claims that neither he was present at the spot nor anything was recovered from him and that his signatures were also obtained on blank papers. He claimed that he was not in possession of any car or any cartons containing Ganja. He claimed that he did not know even any person by the name of Munna.
6.5. Similarly, accused Sonu also claimed that even he was not present at Sarai Kale Khan parking side of Hazrat Nizamuddin Railway Station on 30.05.201, he was not with accused Sunil in any car and nothing was recovered from him. He claimed that neither has he seen the said car ever, nor he made or had any dealings with other three accused prior to the charge sheet of this case. He claimed to have been picked up on 29.05.2011, i.e. one day prior to the date of recovery, when he had a fight with a police official in a bus and thereafter, he was implicated. He also denied even knowing Munna. He claimed that even his signatures were obtained on blank papers and the contraband has been planted upon him. He also denied that any bilty or gate pass or any such document was recovered from his possession by the police on the date, time and place claimed by the police. He claimed that he did not receive any parcel containing Ganja from anywhere and he was picked up from bus stand of Sarai Kale Khan one day prior to the date of incident when he had inadvertently spitted on a person who happened to be a police official, who was not in his uniform, and thereafter a fight had ensued between them. He claimed that he had no dealings with other accused in any manner.
6.6. Besides accused Pramod Kumar Singh, other accused persons did not opt to lead any SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 12 of 45 13 defence evidence in their favour.
7. I have heard Ld. Prosecutor for the State and Ld. Counsels for the four accused.
8. Counsel for accused Pramod argues that the recovery of the said date is extremely doubtful, as the mobile phone location of the initial investigating officer, SI Anuj Nautiyal, reveals that he was not even present at the spot. It is also argued by him that no public witnesses have been joined at the time of recovery and there are serious contradictions in the testimony of recovery witnesses. Counsel for other three accused have also pointed out various contradictions in the testimony of recovery witnesses to claim that the case of prosecution is not believable.
9. On the other hand, Ld. Addl. PP for the State has supported the prosecution claiming that contradictions are trivial in nature and that joining independent witnesses is not mandatory and non joining is not fatal to the case of prosecution.
10. I shall first deal with the recovery dated 27.05.2011. The said recovery was allegedly affected from accused Pramod.
10.1.Perusal of the testimony of recovery witnesses, pertaining to recovery of 27.05.2011, would reveal that PW-3 HC Rajbir, PW-4 SI Anuj Nautiyal, PW-8 HC Priyavrat, and PW-13 Ct. Sandeep are the recovery witnesses. PW-5 ASI Jai Singh was the further investigating officer who reached at the spot after recovery, and PW-14 Inspector Arvind had also reached the spot when he was telephonically informed by SI Anuj.
10.2.Perusal of testimony of prosecution witnesses indeed reveals that there are serious contradictions in their testimony, on material aspects of the matter.
10.3.PW-8 HC Priyavrat was a part of the raiding team on 27.05.2011 also. It is so admitted by first investigating officer SI Anuj Nautiyal as well as PW-3 HC Rajbir. But when HC Priyavrat was examined as PW-8, he did not depose a single word about the recovery SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 13 of 45 14 of 27.05.2011. Instead, he claimed that "perhaps" he joined the raiding team on 27.05.2011. HC Priyavrat admitted that in his statement U/s 161 Cr. P. C. Ex.PW-8/D1, there is no mention of any recovery dated 27.05.2011. He admitted that besides this statement, no other statement of his was recorded by the investigating officer. PW-8 HC Priyavrat deposed that he did not even remember whether Pramod was apprehended in his presence or not on 27.05.11. Therefore, so far as HC Priyavrat is concerned, he does not support the testimony of other witnesses regarding recovery of contraband on 27.05.2011.
10.4.When PW-13 Ct. Sandeep was questioned, in his cross examination, about the presence of HC Priyavrat on 27.05.2011, at one place he claimed that HC Priyavrat was not even present with the raiding team on that day. Instead, he claimed that HC Priyavrat was present on 30.05.2011. This witness was thereafter specifically questioned by the court as to whether Priyavrat was present or not on 27.05.2011, as earlier this witness in his chief has had deposed that Priyavrat was present. To this specific question of the court, the witness replied that 'he did not remember'. Now, does it not create a strong suspicion whether PW-13 and HC Priyavrat were present at the time of raid, on 27-05-2013? If HC Priyavrat was present and PW-13 was also present, there is no question PW-13 denying at one place that Priyavrat was present on 27.05.2011 and claiming ignorance at other place. Interestingly, in the cross examination of PW-13, he said that when he took the pullandas from the spot to the police station on 27.05.2011, it was HC Priyavrat who was driving the gypsy and he took assistance of Priyavrat in loading and offloading the pullandas. Had this been true, there is no question for this witness to have stated at one place in the cross examination that HC Priyavrat was not present in the raiding team on 27.05.2011 and at second place claiming ignorance about his presence. These facts coupled with the fact that HC Priyavrat did not utter a single word about 27.05.2011 and absence of this fact of recovery in his statement Ex.PW-8/D1 casts a shadow of doubt as to the SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 14 of 45 15 recovery dated 27.05.2011.
10.5.The accused challenged presence of SI Anuj Nautiyal on the spot on 27.05.2011 by summoning his mobile phone details of that day. Mobile phone details of the date in question are proved by PW-11 Vishal Gaurav, the Nodel Officer from Airtel. Perusal of the call details, Ex.PW-11/C, along with location details of the Cell Tower within the range of which the mobile of SI Anuj was operating, as reflected in Ex.PW-11/C2, again creates a serious doubt as to the presence of SI Anuj at the spot between 3.00 PM till 7.30 PM.
10.6.As per the case of the prosecution, the secret information was received at 2.20 PM, by SI Anuj, and the raiding team including SI Anuj left the office for the spot at 2.40 PM. The team reached at the spot of G.T.K. Karnal Road near Lal Bagh at about 3.15 PM. SI Anuj Nautiyal claims that he was present at the spot till subsequent investigating officer ASI Jai Singh reached the spot. ASI Jai Singh reached the spot at 7.25 PM and sometime after 7.25 PM, SI Anuj Nautiyal claims to have left the spot. Thus, his mobile location should reveal that he was in office till 2.20 PM and then he was at the spot from 3.15 PM to 7.30 PM.
10.7.Ex.PW-11/C would reveal that on 27.05.2011, when the secret information is claimed to have been received, at 2.20 PM, the mobile phone of SI Anuj was within the range of Cell Tower at Vishaka Enclave, Pitampura. Upto the time of 13:46:52 the mobile location of SI Anuj is at Prashant Vihar, but thereafter SI Anuj was present somewhere in Pitampura from 2.04 PM till 2.29 PM. Thereafter, location of his mobile, at 2.43 PM, is reflected at Pocket C-9, Sector-8, Rohini. Thereafter, location of his mobile phone at 3.25 PM is that of Naharpur, Sector-7, Rohini. His location at 4.31 PM his location is of Paschim Vihar. From 5.14 to 6.30 PM his location is reflected as that of Prashant Vihar; at 6.31 PM his location is of Pitam Pura; at 8.08 PM to 8.11 PM his location is of Sector-15, Rohini.
SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 15 of 45 16 10.8.When PW-4 SI Anuj Nautiyal was cross examined, he was questioned as to it. He took up a plea that Ct. Rajesh, his colleague, by mistake took his phone since his mobile and mobile of Ct. Rajesh were similar looking. It appears that this plea has been taken up only when SI Anuj Nautiyal came to know that the accused has requested the court to preserve and summon the call details of his mobile and, when he was aware that call details would not show his presence at the spot, he concocted a story that somebody else took his phone on the date of incident.
10.9.The call details would reveal that between 2.00 PM till 8.20 PM, the mobile phone of SI Anuj Nautiyal was not switched off by Ct. Rajesh, if he by mistake took it with him. Instead calls were made and received on the phone. If a person by mistake takes somebody else's phone, normally it is either switched off or calls are not responded until absolutely necessary. It is not expected in such a situation to receive or make frequent calls and receive and make SMSs from the phone of somebody else.
10.10.Assuming that such a person attends the incoming calls on somebody else's phone, that person would at the most inform the caller about mistakenly taking the phone and not chat for long. At 2.04 PM, there was an incoming call on the phone of Anuj from a no. 01127550261 which lasted for 48 seconds; at 2.09 PM an incoming call from no. 9810964960 lasted for 68 seconds. No satisfactory explanation has been offered for it. At 2.43 PM there was an outgoing call made from the mobile of Anuj which lasted for 158 seconds. This outgoing call was made on number 9811090728.
10.11. At 3.25 PM, there is an outgoing SMS from this number to 9868025035. When SI Anuj was questioned as to whom this number belonged, he admitted that this number belonged to one HC Vijay who was posted at New Delhi Railway Station and that he was also earlier posted at New Delhi Railway Station in November 2010. He admitted that Ct. Rajesh was never posted at New Delhi Railway Station, therefore it is nobody's case that Ct. Rajesh knew HC Vijay or that he made this outgoing SMS on the mobile SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 16 of 45 17 of HC Vijay.
10.12.At 5.14 PM, there is an outgoing call which lasted for 58 seconds made from the mobile of SI Anuj.
10.13.From the mobile phone of SI Anuj at 6.30 and 6.31, there are two outgoing SMSs made to mobile no. 8447223845. SI Anuj admitted that this number belonged to one Lady constable Anita.
10.14.Similarly, there is an outgoing call made from his mobile at 8.08 PM for 39 seconds to a number 9810964960, which is of one Inspector Purnima who was also known to SI Anuj.
10.15.Now, does this fact not reflect that when the mobile phone was used on 27.05.2011, during the relevant time, outgoing calls and SMSs were made by someone who knew those persons to whom those SMSs and calls were made? SI Anuj admitted having knowing them.
10.16.Also, had Ct. Rajesh mistakenly taken the phone of SI Anuj, there is no reason as to why he would have one incoming call lasting 9 seconds at 18.19.06 hours, and again an incoming call which lasted for as many as 181 seconds at 18.19.29 hours from a number 27872481 which was admittedly landline number of residence of SI Anuj. Had Ct. Rajesh by mistake picked up the phone of SI Anuj Nautiyal, he would have told the person on the other side at the residence of SI Anuj that he took mobile of SI Anuj by mistake at the very first call made at 18.19.06 hours and there was no occasion for the subsequent call which was for a longer duration. During this time the cell tower location reveals that mobile phone of SI Anuj was located at within the range of Vardhman Highway Shop Plaza, Prashant Vihar, and not at the spot.
10.17.Similarly, at 16.31.54 hours, there is an incoming call which lasted for 223 seconds SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 17 of 45 18 from Inspector Purnima. During this time the cell tower location reveals that mobile phone of SI Anuj was located at within the range of Avtar Enclave Prashant Vihar, and not at the spot.
10.18.These facts indeed reveal that the claim of SI Anuj that his mobile was taken by someone else is patently false. Once the explanation of SI Anuj that his phone was taken by somebody else is found to be not believable or correct, only one inference, that he was not present at the spot between 3.00 PM to 7.30 PM, can be deduced.
10.19.Now, SI Anuj is the main investigating officer, who as per the case of prosecution received the secret information; told the senior police officers about it; reduced the secret information into writing; organised the raiding team; supervised the raiding team at the spot; apprehended the accused; gave notice U/s 50 NDPS Act and; conducted recovery proceedings. When his presence itself becomes suspicious at the spot, the entire recovery from accused Pramod has to be disbelieved. It rather supports the version of Pramod that he was not picked up from the spot.
10.20.The secret information which has been reduced to writing and proved as Ex.PW-10/A, under DD no.17, would reveal that it is mentioned therein that accused Pramod a resident of Arakasa Road would take Ganja from New Delhi Railway Station and would go towards Azadpur in his Vikram TSR, number of which was also mentioned in the secret information. It is not mentioned in the secret information as to which route will be followed. From New Delhi Railway Station, there are more than one ways to reach Azadpur. It includes G.T.K. Road where the alleged recovery was made. One can also reach Azadpur from New Delhi Railway Station through inner ring road or outer ring road. It is anybody's guess as to how and why the raiding team was so certain that the TSR Vikram of this accused would come only on G.T.K.Road. Admittedly, no interception was even planned at other two roads. Does it not create a strong suspicion as to how the investigating team knew that the accused would follow only SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 18 of 45 19 that particular route and not the other two available routes to reach Azadpur? In my considered view, even this fact creates a reasonable doubt about the case of prosecution.
10.21.Allegedly, a government gypsy was used by the raiding team on the said date but log book entries of the said government vehicle has not been produced or proved by the prosecution.
10.22.Allegedly, accused Pramod was served with a written notice U/s 50 NDPS Act. This document does not bear DD no.17 or DD no. 18, despite the fact that prosecution claims to have already registered those DDs. Absence of these DD numbers on the notice also creates doubt whether this notice was prepared at the time and at the spot as claimed.
10.23.PW-13 Ct. Sandeep deposed that at the time when notice U/s 50 NDPS Act was prepared and given to accused Pramod, signatures of Pramod Kumar Singh were obtained on the original notice and at that time carbon copy was still there, thereby meaning that the original notice U/s 50 NDPs Act as well as the carbon copy both should have signatures of accused before his refusal was recorded. But the carbon copy of the said notice, even though was claimed to have been recovered in personal search of Pramod, has not been proved on record.
10.24.The alleged refusal of accused Pramod noted down on the original notice U/s 50 NDPS Act is not witnessed by anybody. When HC Rajbir and Ct. Sandeep who witnessed the notice U/s 50 NDPS Act were present at the spot, nothing prevented SI Anuj Nautiyal to obtain witnesses of HC Rajbir and Ct. Sandeep after refusal of accused was noted down.
10.25.The above mentioned facts indeed creates strong suspicion as to the version of the prosecution qua recovery dated 27.05.2011.
SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 19 of 45 20 10.26.Besides it, there are other serious and material contradictions in the testimony of witnesses which create serious doubt.
10.27.It is claimed by PW-3 HC Rajbir that after alleged service of notice U/s 50 NDPS Act, personal search of accused Pramod was conducted from which nothing was recovered. But it is the case of prosecution that when ASI Jai Singh reached the spot and arrested the accused, from the possession of accused Pramod some cash amount and a driving licence were also recovered vide personal search memo Ex.PW-3/E. 10.28.Even PW-13 claimed that personal search of accused Pramod was conducted by SI Anuj but no objectionable article was found in his personal search. PW-13 claimed that Pramod was searched before search of his auto but no memo was prepared in this regard.
10.29.PW-3 claimed that first accused was searched and thereafter auto was searched, whereas, SI Anuj claimed that first TSR was searched and thereafter accused was searched, but no document was prepared regarding search of accused.
10.30.PW-3 was not even shown the case property of 27.05.2011, when he was examined in the court. Similarly, in the testimony of the PW-5 ASI Jai Singh also, the case property was not shown to him qua 27.05.2011.
10.31.PW-3 claimed that at the spot accused Pramod was not asked to take the raiding team to the place of delivery of Ganja even though SI Anuj had asked him about the place of delivery of Ganja. PW-4 claimed that accused did not tell anything about the destination of Ganja except that he brought it from New Delhi Railway Station. Admittedly, Pramod was not taken to New Delhi Railway Station. ASI Jai Singh did not verify from New Delhi Railway Station as to picking up of the parcels by Pramod or somebody else.
SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 20 of 45 21 10.32.PW-3 remained silent that Inspector Arvind came to the spot whereas Inspector Arvind claimed that he went to the spot. PW-4 Anuj claimed that he informed Inspector Arvind on his mobile at 4.00 PM, whereas Inspector Arvind claimed that he received the information at 6.50 PM when he was told that Ganja has been recovered at the spot. It was thereafter, he appointed ASI Jai Singh as subsequent investigating officer and he also proceeded to the spot. It is admitted by PW-3 that information from the spot was given by SI Anuj only once and not more than once. In none of the documents prepared on 27.05.2011, signatures of Inspector Arvind were obtained. PW-13 also claimed that SI Anuj Nautiyal informed Inspector Arvind at 4.00 PM after recovery of Ganja.
10.33.PW-13 specifically deposed that Inspector Arvind did not join the raiding team on 27.05.2011 or on 30.05.2011 and he was not present at the spot on either of the two dates and therefore his signatures should not appear on any documents prepared in this case. He claimed that till the time he carried rukka from the spot on 27.05.2011, he was continuously present at the spot and on 30.05.2011 he continuously remained present throughout the proceedings. The testimony of this witness again casts shadow of serious doubt whether Inspector Arvind came to the spot on either of the two days of recovery. PW-14 Inspector Arvind claimed that he went to the spot on 27.05.2011 as also on 30.05.2011 and he was informed by SI Anuj on 27.05.2011 at 6.45 PM only about the apprehension of Pramod and recovery of contraband.
10.34.PW-5 ASI Jai Singh claims that Inspector Arvind reached spot after he reached the spot at 7.25 PM, whereas, SI Anuj claimed that he had informed Inspector Arvind at 4.00 PM from the spot. DD no. 28 proved as Ex.PW-10/C reveals that it was at 6.50 PM when it is mentioned that SI Anuj informed about the apprehension of Pramod Kumar Singh.
10.35.Had SI Anuj been at the spot and had he prepared the documents at the spot, he SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 21 of 45 22 should have been very sure as to who prepared which document. But in the cross examination, he deposed that he cannot tell who prepared which of the documents, be it notice U/s 50 NDPS Act, the FSL form, the seizure memo or tehrir.
10.36.No independent witness has been joined despite the fact that PW-3 admitted that shops; factories and houses were located within 30-35 yards. Admittedly no one was even asked to become witness from those shops, factories and houses.
10.37.SI Anuj claimed that one police official was sent to nearby located mosque for bringing independent witnesses but no one was present in the mosque. Whereas other witnesses claimed that no one was even attempted to be joined from Mosque. PW-13 specifically deposed that nobody was called from nearby located mosque by SI Anuj.
10.38.SI Anuj claimed that the Ganja was recovered directly in the cartons and it was not kept inside any polythene inside the cartons. He also claimed that the cartons were sealed with the help of transparent cello tape of small size but when the cartons were sealed, they were not covered with anything. PW-13 claimed that both the cartons with remaining Ganja were first affixed with tape and then both the cartons were kept inside two separate kattas and the mouth of kattas was sealed with the seal of SI Anuj. It was done after drawing of samples from the recovered Ganja. When the cartons were proved in the testimony of PW-6 as Ex.P1 to P5, the cartons Ex.P4 and P5 were in fact cloth parcels and also cartons Ex.P1 was a cloth parcel.
10.39.PW-13, quite contrary to the claim of SI Anuj deposed that the Ganja was inside the polythene and polythene was inside carton whereas SI Anuj deposed that there was no polythene in the carton. PW-13 however could not depose whether there was one polythene inside the carton or more than one and as to whether they were small or big or transparent or not. In the next breath, he claimed that the polythene was big inside the two cartons.
SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 22 of 45 23 10.40.SI Anuj claimed that nothing was found written on the cartons when they were recovered, whereas, the case of the prosecution was that the cartons were brought by Pramod from New Delhi Railway Station and it was brought from there.
10.41.SI Anuj claimed that the weighing machine was electronic. PW-13 claimed that the balance with which the Ganja was weighed was a spring balance which had a hook on the top and bottom of the balance, whereas, ASI Anuj claimed that it was an electronic weighing machine.
10.42.SI Anuj claimed that signatures of witnesses and accused were not obtained on the pullandas.
10.43.SI Anuj claimed that accused did not tell about the owner of TSR and the registration of certificate of TSR was not recovered. PW-5 ASI Jai Singh did not enquire as to who was owner of Vikram TSR. Owner has not been examined to prove that Pramod was in custody of TSR on the date in question.
10.44.PW-5 claimed that he recorded disclosure statement of Pramod only once on 27.05.2011 whereas the disclosure statement proved on record is of 28.05.2011 and not of 27.05.2011. Some of the prosecution witnesses claimed that disclosure of Pramod was recorded at the spot thereby meaning that it should have been of 27.05.2011 and not of 28.05.2011.
10.45.Interestingly, PW-5 ASI Jai Singh deposed that he did not even remember that as to what documents were prepared at the spot on 27.05.2011 and what was the sequence of preparation of those documents i.e. as to which document was prepared first and which document was prepared second, third and thereafter.
10.46.At one place, ASI Jai Singh went to the extent of claiming that SI Anuj handed over two big parcels of the goods to him whereas case of the prosecution is that before Jai SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 23 of 45 24 Singh reached the spot, the case property had already been sent to police station through PW-13 Ct. Sandeep.
10.47.PW-13 also deposed that accused Pramod and his Vikram TSR were searched within 5-7 or 10 minutes of apprehension and within 5 minutes of search, Ganja was noticed. Now, this time of ten minutes was insufficient for orally explaining the rights U/s 50 NDPS Act to accused Pramod by SI Anuj and for preparing a written notice, delivering of notice and noting down refusal etc., as claimed by the prosecution witnesses, before search of Ganja.
10.48.All the above mentioned facts create a serious doubt as to the case of prosecution as to recovery of contraband from Pramod on 27.05.2011.
11. Turning to the recovery dated 30.05.2011; again there are serious and material contradictions in the testimony of witnesses which create serious doubt.
11.1.PW-8 HC Priyavrat deposed that on 30.05.2011 the police team did not go to New Delhi Railway Station along with accused Pramod and the police team straightaway went to Ara Kasa Road where the investigating officer met one secret informer and the secret informer spoke to the investigating officer. He specifically deposed that from Ara Kasa Road the team went to Motia Khan and the team did not go to any other place before going to Motia Khan. Other witnesses deposed that the team went to New Delhi Railway Station at 11 A.M and from New Delhi Railway Station they went to Motia Khan. PW-3, PW-5 and PW-13 specifically deposed that the team went to New Delhi Railway Station at 11 A.M and reached the Parcel go down at 11.30 A.M, whereas, PW-8 specifically denied that the team went to New Delhi Railway Station or the Parcel go down. This fact creates a reasonable doubt as to whether the version of the prosecution as to the sequence of events on 30.05.11 is correct or not.
11.2.PW-8 Priyavrat also deposed that before going to Motia Khan the team did not have SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 24 of 45 25 any information that accused Vakil can be found in Motia Khan and it was the investigating officer who decided to go there. He however deposed that address of Vakil Singh was available when accused Pramod was arrested.
11.3.It is the case of prosecution witnesses that accused Vakil was arrested at Motia Khan at 1.15 P.M and thereafter the police team left Motia Khan at 2 P.M and reached Nizamuddin station Sarai Kale Khan parking side at 3 P.M. This version of the prosecution witnesses does not find support from the arrest memo of accused Vakil Singh Ex. PW-3/G. In this arrest memo the place of arrest of accused Vakil Singh is mentioned as in front of I.S.B.T Sarai Kale Khan at 1.15 PM. This fact again creates doubt as to the genuineness of the case of the prosecution qua the circumstances dated 30.05.11.
11.4.Perusal of arrest memo of accused Vakil Singh also reveals that there is difference of ink used in filling up relevant column of this memo. The ink used in filling up column no. 6 & 8 clearly differs from the ink used in rest of this document. The difference of ink at column no. 6 & 8 is as to the date and time of arrest of accused as also the name of person who arrested accused Vakil. This fact again creates a suspicion as to whether the facts deposed in the court by the witnesses are correct or not.
11.5.Coming to the fact of recovery of contraband from accused Sunil and Sonu at Sarai Kale Khan parking on that date, is again clouded with serious doubts. The recovery witnesses have contradicted themselves on material particulars as to the fact of recovery of contraband and other proceedings done at the spot.
11.6.PW-13 Constable Sandeep deposed that inspector Arvind was not present at the spot on 30.05.11 and he did not come to the spot at all. He was very categorical in stating that inspector Arvind neither came to the spot on 30.05.11 nor did he come on 27.05.11. He was also very categorical in stating that he continuously remained SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 25 of 45 26 present at the spot on 30.05.11. As against this claim PW-3, PW-5, PW-8 and PW-14 claimed that inspector Arvind PW-14 came to the spot, and remained at the spot for quite some time. Is it not a serious contradiction which creates doubt about the truthfulness of version dated 30.05.11? In my, view it indeed is.
11.7.PW-3 deposed that on 30.05.11 the police team finally left the spot at 10.45 P.M along with all the four accused and thereafter they went to police station crime branch from where they finally reached the office at 11.40 P.M. PW-3 specifically deposed that he drove the car of accused from the spot to police station crime branch. PW-8 HC Priyavrat also deposed that all of them finally left the spot at 10.45 P.M. Thereby meaning that the police team along with the four accused including accused Pramod left Sarai Kale Khan parking at about 10.45 P.M and from there all of them went to police station crime branch and from there all came to Office.
11.8.Accused Pramod, in his evidence, as DW-1, proved his M.L.C dated 30.05.13. This M.L.C is not denied by the prosecution. In fact it is the case of prosecution itself that the accused was got medically examined at Dr. Baba Sahib Hospital by the police. This M.L.C. issued from Dr. Baba Sahib Hospital reveals that accused Pramod was medically examined in the hospital at or about 9.40 P.M. The time mentioned on the M.L.C Ex. DW1/A as to the arrival of patient is very categorical and clear. He was taken in the hospital by Ct. Sanjay. It is nobody's case that the time on this document contains any error. No such plea has been taken before me. Even if we take it that accused Pramod was directly brought from Sarai Kale Khan parking to the hospital in Rohini, the distance between these two places is more than 25 km and giving maximum leverage to the prosecution, if we take it that half an hour was consumed in traveling between the two places, yet accused Pramod could not have been produced before the Doctor in the hospital prior to 11.15 P.M. This fact again raises a serious doubt as to the truthfulness of the version of prosecution witnesses. I may reiterate SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 26 of 45 27 here that accused Pramod took a plea in his statement that he was not taken to any place except the hospital on 30.05.11 and the above facts and circumstances indicate that his version may be correct.
11.9.Admittedly recovery of contraband of this case was not from the person of Sunil or Sonu, therefore, technically speaking notice U/s 50 of N.D.P.S Act was not required to be served upon them, yet the investigating officer served notice upon Sonu and Sunil. The version of prosecution witnesses as to the manner of service of notice and facts connected therewith would also show that there is something amiss in the version of prosecution witnesses.
11.10.As per case of prosecution the notices were served upon Sunil and Sonu by delivering a copy of the notice upon both of them, separately, which remained with them till there personal search was conducted by the investigating officer after their arrest and the copy of those notices were recovered in the personal search of the two accused.
11.11.PW-5 ASI Jai Singh who was the investigating officer in his cross examination claimed that the notices were taken back after 15 minutes of service upon the accused and thereafter, after about 5 minutes the packets were searched. In the cross examination he also claimed that the notices were served upon the accused after search of the cartons. It appears that these notices were delivered to the accused anticipating recovery of contraband in the personal search of the accused, but the fact that the notices were served after search of cartons and search was conducted after the notices were taken back creates serious doubt. Other witnesses claim that the notices were first served and then accused and cartons were searched, and thus contradict the investigating officer.
11.12.PW-13 Ct. Sandeep also deposed that the original as well as the carbon copies of SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 27 of 45 28 these notices were given to Sonu and Sunil, after which they singed the original notices and then the original notices were returned to the investigating officer after retaining carbon copies, thereby meaning that not only the original notices should bear the signatures of accused Sonu and Sunil, but also the carbon copy of these two notices must bear the carbon impression of signatures of Sonu and Sunil. Perusal of these carbon copies of notices Ex. PW-8/X2 and PW-8/X4 reveals that there are no signatures on the carbon copies, whereas, on the original notice of accused Sonu Ex. PW-3/K, his original signature appears at point D and also at point X1. Out of these two signatures, the signature at point D were appended by accused Sonu prior to delivery of carbon copy of this notice, as per PW-13, and therefore absence of carbon impression of his signature on the carbon copy indicates manipulation with document. There is no signature of accused Sunil in receipt of copy similar to the signature of accused Sonu obtained against receipt of copy. PW-13 claims both the accused had signed their respective notices. On Ex. PW-3/L there is only one signature of accused Sunil that too after he allegedly noted down his refusal. Now PW-13 says that signature of both the accused were obtained before the original notices were returned by accused to the investigating officer, but there are no signatures of Sunil. This fact also creates serious doubt.
11.13.Despite the fact that F.I.R had already been registered, as per the version of prosecution, on 27.05.11, still strangely none of the two notices Ex. PW-3/K or Ex. PW-3/L bears the F.I.R number and there is no satisfactory explanation as to why the F.I.R number is missing on these two important documents, if they were properly prepared at the spot.
11.14.PW-3 HC Rajbir deposed that accused Sonu and Sunil were searched immediately after their apprehension but nothing was recovered from their personal search and yet no document was prepared in this regard. The fact that accused Sonu and Sunil were SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 28 of 45 29 searched immediately after their apprehension indicates that no notice U/s 50 N.D.P.S act was served upon them before conducting their personal search and these documents were later on manipulated. Manipulation is also indicated from the fact that the investigating officer himself claimed that these notices were given after search of cartons and then they were taken back. This procedure was in fact in total violation of section 50 of N.D.P.S Act.
11.15.PW-3 also deposed that nothing was recovered in the initial personal search of accused Sonu and Sunil. PW-8 HC Priyavrat also deposed that nothing was recovered in the personal search of accused Sunil at the time of initial search. PW-13 Ct. Sandeep also deposed that in the personal search of accused Sonu and Sunil which was conducted before search of car nothing was recovered. Now is it not strange that subsequent to the search of car when again accused Sonu and Sunil were searched, from the search of accused Sonu a bilty and a gate pass Ex. PW-3/P1 and P2 are shown to have been recovered which were taken into possession vide memo Ex. PW-3/P. When in the initial search of the two accused nothing was recovered, and for which no document was prepared, then from where the bilty and the gate pass came in possession of Sonu and from where the other personal search articles shown to be recovered in their subsequent personal search came, is unexplained. It may be mentioned that from accused Sonu Rs.180/- and from accused Sunil one purse, some documents, RC of car, two mobiles etc. are shown to have been recovered in the personal search conducted after formal arrest of these two accused. Had these documents and articles been in possession of these two accused, they would have been recovered in the first search, but witnesses claimed that nothing was recovered. This fact also creates doubt about the truthfulness of the version of prosecution.
11.16.It is the case of prosecution that they had prior information about the fact that contraband was being brought through railways on 30.05.11. Yet the investigating SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 29 of 45 30 officer did not go to the parcel office of the railway station and did not talk to the railway officials about this fact either before recovery or after alleged recovery. It is the case of prosecution that the five cartons recovered from accused Sonu and Sunil were brought through railways and the bilty and gate pass Ex. PW-3/P1 and Ex. PW-3/P2 pertains to the cartons, yet the investigating officer did not go to the parcel office of the railway to verify the fact as to whether both or either of the two accused Sonu or Sunil received those parcels from parcel office on that day or as to whether they were the same parcels delivered by the railways.
11.17.Neither were the parcels taken to the parcel office to verify that they were the same parcels received or transported vide Ex. PW-3/P1 and Ex. PW-3/P2 nor the two accused were taken to verify whether the two accused or either of them obtained those parcels. The relevant register from parcel office was admittedly not seized to show that either of the two accused Sonu and Sunil signed the register while obtaining the parcels. Statement of railway officials to this effect was not obtained. The investigating agency even did not care to find out whether the parcel numbers on the five parcels were same as mentioned in Ex. PW-3/P1 and Ex. PW-3/P2.
11.18.Ex. PW-3/P1 and Ex. PW-3/P2 reveals that the total weight of the five cartons were 150 Kg. Whereas the quantity allegedly recovered from accused Sonu and Sunil on 30.05.11 was admittedly not more than 125 Kg. What happened to the remaining 25 Kg is not explained. It may be mentioned that all five cartons are shown to have been recovered from accused Sonu and Sunil and admittedly at the time of recovery these five cartons were properly packed. Therefore where did the 25 Kg of property vanish is not explained. It is nobody's case that after receiving these cartons from parcel office, and before the cartons were recovered, any parcel or any portion of its contents were delivered by accused Sonu and Sunil to anybody.
11.19.Ex. PW-3/P2 also reveals that the name of consignee mentioned on this document is SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 30 of 45 31 one Mr. D. Singh. Admittedly no identity proof in the name of D. Singh has been recovered from either Sonu or Sunil and it is nobody's case that either of them was known by the identity of Mr. D. Singh. Investigating officer did not try to ascertain as to how the cartons were delivered by the railway authorities to Sonu or Sunil without establishing the identity.
11.20.Testimony of PW-12 the parcel supervisor would reveal that the procedure is that the bilty is retained in the office and the in-charge issues a gate pass and thereafter hands over the parcel to that person after verifying identity of the person who comes with the receipt, from the receipt as well as other documents. The guard copy remains with the said in charge. Yet the Investigating officer did not try to establish the circumstance that accused Sonu or Sunil obtained the parcel on that day.
11.21.PW-12 also deposed that on the parcels the parcel number and name and address of sender and receiver are mentioned whenever any parcel is booked through railways. PW-13 Ct. Sandeep deposed that none of the parcel had any parcel number or any particulars or name and addresses when they were recovered, despite the fact that it is the case of prosecution that the parcel were transported through railways. PW-12 also deposed that whenever parcel is delivered the gate pass is retained by the gate keeper and the parcel is allowed to be taken out from the gate. Yet in this case gate pass is shown to have been recovered from accused.
11.22.PW-12, while deposing that one person had come with bilty and he prepared the gate pass and gave it to him, did not identify either accused Sonu or Sunil in the court as the same person who obtained the parcels on 30.05.11 vide Ex. PW-3/P1 and EX. PW-3/P2. This fact also goes in favour of the accused. If he saw the verification documents and identity proof of the receiver of the cartons, where did the identification documents vanish as no such identification document was recovered from accused Sonu and Sunil.
SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 31 of 45 32 11.23.PW-3 HC Rajbir deposed that on 30.05.11 investigating officer had gone to the parcel office of Hazarat Nizamuddin railway station after 4-5 hours of reaching at the spot whereas other witnesses claimed that investigating officer did not go to the parcel office at all on 30.05.11.
11.24.It is the case of prosecution that accused Sunil and Sonu were apprehended on the pointing out of accused Vakil Singh when they were loading contraband inside the car.
11.25.PW-3 HC Rajbir deposed that accused Sunil and Sonu were noticed at 5.20 P.M when they came. PW-3 deposed that accused Sunil and Sonu had started putting cartons in the car when they were pointed out by accused Vakil Singh. He specifically deposed in his cross examination that when accused Sunil and Sonu were apprehended they had already kept three cartons in the back seat of the car and one had already been kept in the dickey of the car whereas the last one was being kept in the dickey of the car. As per him none of the cartons were on the ground at the time when these two accused Sunil and Sonu were apprehended. As against the said fact PW-8 HC Priyavrat deposed that when accused Sonu and Sunil were apprehended two cartons were outside the car and rest of the three cartons were in the car. He also specifically deposed that after accused Sunil and Sonu were pointed out by accused Vakil Singh at the spot, for about 10 minutes an eye was kept on accused Sonu and Sunil before they were apprehended.
11.26.PW-13 deposed that at the time when the accused Sunil and Sonu were apprehended three cartons were already inside the car on the back seat and two cartons were inside the dickey of the car.
11.27.PW-13 specifically deposed that first the three cartons inside the car on the back seat were noticed and thereafter the dickey of the car was opened and two cartons were found inside it and thereafter those two cartons were checked.
SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 32 of 45 33 11.28.Now is it not strange that the police team had reached the spot more than one hour prior to the accused Sonu and Sunil were noticed, yet the claim of the prosecution witnesses is that when the two accused were apprehended, the cartons had already been kept in the car and they did not notice the accused coming along with the cartons from the railway station up to the car.
11.29.PW-13 also deposed that at the spot Sonu and Sunil were seen coming from the front side where the raiding team was standing and then they came near the car and stopped there. Yet none of the prosecution witnesses claimed that Sonu and Sunil were carrying cartons boxes with them when they were proceeding towards the car or that between the time they were noticed and they were apprehended, they had kept some or all of the cartons in the car.
11.30.PW-5 ASI Jain Singh the investigating officer specifically deposed that he did not see the accused putting the four cartons in the car and at the time of apprehension of accused Sonu and Sunil the door of the car was opened.
11.31.PW-5 and PW-8 deposed that the cartons were opened and checked simultaneously and thereafter further proceedings were conducted whereas PW-3 & PW-13 deposed that the cartons were checked one after another and not simultaneously. PW-8 HC Priyavrat claimed that within 15-20 minutes of apprehension the cartons were opened.
11.32.PW-5 ASI Jai Singh deposed that notices u/s 50 were served after recovery, but he was not able to recall as to which further documents were prepared after these notices at the spot, despite the fact that he was the investigating officer.
11.33.PW-3 deposed that in the disclosure statement of accused Pramod, address of accused Vakil was told by accused Pramod which was also noted down by investigating officer on 27.05.11 itself, but no such address of accused Vakil Singh exists in the disclosure statement of accused Pramod Ex. PW-3/F. Even otherwise also SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 33 of 45 34 PW-3/F is dated 28.05.11 and not 27.05.11. PW-5 A.S.I Jai Singh, the investigating officer, deposed that he noted down the name and address of accused Vakil Singh in the disclosure statement of accused Pramod on 27.05.11 in his own hand writing between 10 to 11 A.M and that address of accused Vakil was available with him.
11.34.Admittedly accused Pramod was in custody since 27.05.11, yet the raid at the house of accused Vakil is claimed to be of 30.05.11 only and not prior to it. It is not explained as to why accused Vakil was not apprehended for those two days despite availability of address.
11.35.As against this PW-8 HC Priyavrat deposed that he did not even remember whether Pramod was apprehended in his presence or not on 27.05.11 and he deposed that disclosure of accused Vakil was not within his hearing distance.
11.36.PW-13 Ct. Sandeep deposed that accused Pramod had not disclosed address of accused Vakil in his disclosure statement, but he told the address of accused Vakil on 30.05.11 at new Delhi railway station, still disclosure statement of accused Pramod was not recorded on 30-05-11.
11.37.PW-13 Ct. Sandeep deposed that in the disclosure of accused Vakil, it was not recorded that Ganja would be delivered or transported through Sarai Kale Khan side of Hazart Nizamuddin station and not from main side of the railway station.
11.38.PW-8 HC Priyavrat deposed that quarter no. 37 of accused Vakil Singh was searched but no document was prepared in this regard. Even PW-5 investigating officer claimed that he searched the office of accused Vakil Singh but no search warrant was obtained to search the house of Vakil Singh.
11.39.There is also discrepancy as to at what time accused Sonu and Sunil were apprehended on 30.05.11. PW-3 deposed that these two accused were noticed within SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 34 of 45 35 1 hour and 15 minutes of reaching the spot. PW-5 deposed that they were noticed within half hour of reaching the spot. PW-5 A.S.I Jain Singh also deposed that accused Sonu and Sunil were apprehended within 30 minutes of arrest of accused Vakil Singh. PW-13 claimed that the two accused were noticed at about 5 P.M. It is the case of prosecution that accused Vakil was arrested at 1.15 P.M.; the police team reached at Sarai Kale Khan parking at 3 P.M and; apprehended Sonu and Sunil at 5.30 pm. But going by version of these witnesses accused Sonu and Sunil were apprehended prior to 4.30 P.M. Whereas it is the case of prosecution that the two accused were arrested at about 5.30 P.M. Interestingly investigating officer claimed that these two accused were arrested within 30 minutes of arrest of accused Vakil Singh, i.e. as per investigating officer Sonu and Sunil were apprehended before 2 P.M. 11.40 Admittedly the parking attendant and local respectable inhabitants were not even attempted to be joined on 30.05.11.
11.41 PW-5 A.S.I Jai Singh the investigating officer deposed that on 28.05.11 or 29.05.11 raid was conducted but no D.D entry was recorded to this effect.
11.42 Investigating officer admitted that he did not give any written communication to senior officers on 30.05.11 as to the information of likelihood of recovery from accused Sonu and Sunil on 30.05.11, despite information received from accused Vakil Singh and despite noting down the disclosure statement of Vakil Singh. There is thus noncompliance of section 42 of N.D.P.S Act qua the recovery dated 30.05.11. When the Investigating officer had received information that there was likelihood of recovery of contraband on 30.05.11, which information was received from accused Vakil Singh, and which was reduced into writing in the form of disclosure statement of accused Vakil Singh Ex. PW-3/J, section 42 of N.D.P.S Act ought to have been complied with.
11.43 U /s 42 NDPS Act, secret information, reduced to writing, has to be supplied to superior SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 35 of 45 36 police officers within 72 hours. In this case, the prosecution did not prove that any such report within 72 hours was given to superior officers, qua recovery dated 30-05-2011. In this case, information was received by the police few hours prior to the time of apprehension of Sonu and Sunil and it is also admitted case of prosecution that the information was reduced to writing in the form of disclosure of Vakil Singh even before the raiding team left for the spot. Once the secret information was reduced to writing, it ought to have been furnished to the immediate senior officer within 72 hours, but it was not done. It is now well settled that non-compliance of Section 42 of NDPS Act vitiates the trial.
11.44 In the case of Kishan Chand v. State of Haryana, (2013) 2 SCC 502, it is held that the language of Section 42 does not admit of any ambiguity. These are penal provisions and prescribe very harsh punishments for the offender. The question of substantial compliance with these provisions would amount to misconstruction of these relevant provisions. It is a settled canon of interpretation that the penal provisions, particularly with harsher punishments and with clear intendment of the legislature for definite compliance, ought to be construed strictly. The doctrine of substantial compliance cannot be called in aid to answer such interpretations. The principle of substantial compliance would be applicable in the cases where the language of the provision strictly or by necessary implication admits of such compliance. The Court had held that compliance with Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate superior officer may cause prejudice to the accused. The compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 36 of 45 37 writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The provisions like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. When there is total and definite non-compliance with such statutory provisions, the question of prejudice loses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance with these provisions in their entirety, the court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevance. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance with the provision.
11.45 In the case of Sukhdev Singh v. State of Haryana, (2013) 2 SCC 212, it is held that the provisions of Section 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the investigating officer. He is obliged to furnish the information to his superior officer SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 37 of 45 38 forthwith. That obviously means without any delay. But there could be cases where the investigating officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers but could do it later and preferably prior to recovery. Compliance with Section 42 is mandatory and there cannot be an escape from its strict compliance. It was also held that there is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non- compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purposes of the provisions of Section 42 which can broadly be stated are that: (a) it is a mandatory provision which ought to be construed and complied with strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. The legislature in its wisdom had made the provisions of Section 42 of the NDPS Act mandatory and not optional.
11.46 Investigating officer claims that assistance of local police was obtained on 30.05.11 whereas other witnesses say that no such assistance was taken.
11.47 Investigating officer claims that recovery was affected within half hour of reaching the spot, which means by 3.30 P.M, whereas the case of prosecution was that recovery was affected after 5.30 P.M. 11.48 Investigating officer claims that the owner of Indigo car was enquired, but he did not remember the name of owner. No such owner has been examined in the court to show that accused Sonu and Sunil were in possession of car on the date of incident. Admittedly none of them was owner of the car.
SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 38 of 45 39 11.49 Admittedly there is no investigation as to the sender of the cartons.
11.50 Admittedly the contents inside the cartons were not visible and there was nothing which could have indicated accused Sonu and Sunil that the cartons were containing ganja. It is admitted by the prosecution witnesses that the cartons were properly packed and therefore without opening it, its contents were not visible and its contents could not be suspected to be ganja. Therefore, it cannot be ruled out that the cartons were carried by accused Sonu and Sunil for one Munna whose name cropped up in the investigation, without accused Sonu and Sunil knowing the contents of cartons. In this regard even PW-3 had admitted that it was in the knowledge of investigating agency prior to the recovery that the contraband belonged to one Munna.
11.51 PW-8 HC Priyavrat claimed that signature of only accused Sonu and Sunil were obtained on the seizure memo and signature of accused Vakil Singh was not obtained on the seizure memo. The seizure memo Ex. PW-3/M as also the seizure memo of car bears signature of accused Vakil Singh.
11.52 PW-8 also deposed that the F.S.L form was prepared at the spot after preparation of seizure memo. Whereas other witnesses claimed that F.S.L was prepared prior to preparation of seizure memo.
12 Owner of the T.S.R or the car has not been examined to prove that accused Pramod Kumar Singh was in possession of T.S.R on 27.05.11 or that accused Sonu and Sunil were in possession of the car on 30.05.11. Log book entry of the government Gypsy used in this case has not been proved.
13 Admittedly signatures of accused and witnesses were not obtained on the case property, sample properly or the F.S.L form.
13.40 Ld. counsel for the accused argued that the recovery and seizure has not been made SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 39 of 45 40 in accordance with the standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi and in this regard, placed reliance upon the case of Union of India Vs. Bal Mukund &Ors., 2009 Crl. L. J. 2407. Clause 1.9 & 1.10 of the Instructions reads as under :-
"1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples.
1.10 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret-Drug sample/Test Memo" to be sent to the chemical laboratory."
13.41 Though non-compliance of standing instructions by itself may not vitiate trial and it may be only an irregularity and not illegality, however, it assumes importance in the facts and circumstances of the present case discussed herein above.
14 The story put-forth by the prosecution that passersby were requested, who refused to join raid, does not inspire confidence for the reasons that not even the names or addresses of those persons were attempted to be found or noted down by the investigating officer. It is very easy to say that the persons left the spot even without telling their names and addresses. The requirement under sub sec. 4 of sec. 100 Cr. P. C. is that independent local respectable inhabitants have to be joined. Thus mere asking the passersby would not be compliance of those provisions. Of late a disturbing trend is noticed in criminal cases, particularly in NDPS cases, wherein in almost every case, Delhi Police makes a statement that passersby were requested, but they left the SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 40 of 45 41 spot without telling their names and addresses. I don't understand as to why the investigating agency does not even try to join independent witnesses from local inhabitants, and if they are not willing, from public sector undertakings, such as the CBI does, particularly when the police has prior secret information, like the present case, where the information was available with the police prior to raid.
14.1 In the case of Mohd. Raffique vs. State 2000 CRI. L. J. 2401, DELHI HIGH COURT , observed as follows;
"6. In State of Punjab v. Baldev Singh (1999) 4 JT (SC) 595 : (1999 Cri LJ 3672), it was held that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the Act also to the extent they are not inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Act, the safeguards provided under the Code of Criminal Procedure are also required to be followed. It is well settled that failure to comply with the provisions of the Code of Criminal Procedure in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 of the Code of Criminal Procedure per se does not vitiate the trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguards would be violative of the reasonable, fair and just procedure. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597), it was held that when a statute itself provides for a reasonable, fair and just procedure, it must be honoured. Thus, an accused has the right to a reasonable, fair and just procedure. The statutory provisions embodied in Sections 41 to 55 and Section 57 of the Act and Sections 100, 102, 103 and 165 of the Code of Criminal Procedure provide for a reasonable, fair and just procedure.
7. Section 50 of the Act read along with sub-section (4) of Section 100, Cr.P.C. contemplates that search should, as far as practicable be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so the onus would be on the prosecution to establish that the association of such witness was not possible on the facts and circumstances of a particular case. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Thus, the statutory desirability in the matter of search and seizure is that there should be two or more independent and respectable witnesses. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 41 of 45 42 against authorised officers. In other words, the Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping in view the severe punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure as envisaged by the statute scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of statutory safeguards committed by the authorized officer during search and seizure operations and may also undermine respect of law. That cannot be permitted.
8. It is undisputed that no public witness was associated during the course of search and seizure proceedings and the prosecution case hinges solely on the testimony of police officials. As per prosecution case the secret information was received at 9.35 a.m. and the appellant was apprehended at about 10 A.M. Thus, there was sufficient time to procure attendance of public witnesses to witness the search and seizure. This is not a case where due to urgency of the matter or for any other reason, it was not possible to comply with the provisions of sub-section (4) of Section 100 for associating public witness during the course of search and seizure. It is also undisputed that the appellant was apprehended in Gali Masjid Wali, which is a thickly populated area. Prosecution witnesses SHO P. L. Puri (P. W. 2) Constable Sukhram Pal (P.W. 3) Constable Jamil Ahmad (P. W./4) and SI Satpal (P.W. 6) want us to believe that at the relevant time public witnesses were approached but they declined to join the raiding party.
9. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may, in this context, be made to the provision of sub-section (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under Section 100 of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187, IPC. In the instant case,there is nothing to indicate that the authorized officer had served or even attempted to serve an order in writing upon any public witness as envisaged by sub-section (8) of Section 100, Cr.P.C. In this connection, I may usefully excerpt the following observations of Malik Sharief-u Din, J. in Rattan Lal v. State, (1987) 2 Crimes 29 (Delhi) :-
". . . . . . . .In the case in hand the seizure and the arrest have been made under Section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by sub-section (4) of Section 100, Cr.P.C. The explanation offered is that public witnesses were requested but they declined to co-operate. My experience is that this SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 42 of 45 43 explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to co-operate without reasonable cause in spite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187, I.P.C. and this has been clearly spelt out in sub-section (8) of Section 100, Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards."
10. It has come in the evidence of Sub-Inspector Satpal (P.W. 6), Constable Jamil Ahmad (P.W. 4) and Constable Sukhram Pal (P.W. 3) that Gali Masjid Wali is a thickly populated area. It seems inconceivable that no one from the public had come to the spot to witness the alleged search and seizure operation. Having regard to the area and the place of search and seizure, it appears that public witnesses were available but no serious attempt was made by Sub-Inspector Satpal (P.W. 6) to associate them before searching the appellant. I am unable to find any reason as to why he did not even make any attempt to associate any independent witness or witnesses during the course of search and seizure operation.
11. As stated earlier, the compliance with the procedural safeguards contained in the Code of Criminal Procedure and the Act are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the authorized officer. It has to borne in mind that where the error, irregularity or illegality touching the procedure committed by the authorized officer is so patent and loudly obtrusive that it leaves on his evidence an indelible stamp of infirmity or vice, which cannot be obliterated or cured, then it would be hazardous to place implicit reliance on it. The aforesaid circumstances make the court to be circumspect and look for corroboration of the testimony of the said police officials from independent sources. No such corroboration is coming forth in this case."
14.2 Learned prosecutor for the argued that non joining of independent witnesses cannot be fatal to the case of prosecution. Indeed it may not be in a given case. But then the testimony of police witnesses must be inspiring and believable. In a serious case of NDPS, inviting stringent punishment, the abovementioned serious discrepancies cannot SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 43 of 45 44 be ignored. An accused cannot be convicted on such tentative evidence. It is in the backdrop of these discrepancies that non joining of witnesses assumes significance.
14.3 In the present case admittedly no written notice was served upon public persons to become witness and no legal action was taken against those who refused to become witnesses. Admittedly public witnesses were available at the spot. There was sufficient time between receipt of secret information and the time of apprehension to join independent witnesses. Time of arrest was also not such that public witnesses were not available. Rather it was the time when the road remains the busiest in a day. Having regard to the area, the time and the place of search and seizure, it appears that public witnesses were available but no serious attempt was made by the investigating officer.
15 No relaxation can be given to the prosecution when crucial witnesses in a serious offence like NDPS case, falters. Punishment under NDPS Act is one of the severest punishment provided. The severer the punishment is, the stricter the rules of procedures and the appreciation of evidence have to be.
16 In Mousam Singha Roy and Others v. State of West Bengal 2003 (3) JCC 1385 :
[(2003) 12 SCC 377], Supreme Court held :
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since the higher degree of assurance is required to convict the accused."
17 It is settled law that burden to prove a criminal case lies upon the prosecution and quite heavy. It is for the prosecution to prove its case beyond reasonable doubt and it is not for an accused to prove defence.
18 All the facts discussed above, create more than reasonable doubt about the case of the prosecution, benefit of which goes to the accused and all the four accused are acquitted.
SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 44 of 45 45 Announced in the open court Dig Vinay Singh On 07th day of June, 2013. ASJ (NW)/Spl. Judge: NDPS Rohini/ Delhi SC no. 103/11 FIR no. 146/11 Dated 07.06.2013 Page 45 of 45