Central Administrative Tribunal - Delhi
Si Yash Pal Singh vs Commissioner Of Police on 7 September, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3779/2010
New Delhi this the 7th day of September, 2011.
Honble Mr. G. George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A)
SI Yash Pal Singh,
S/o late Sh. Balbir Singh,
R/o D-108, Mahendru Enclave,
New Delhi-9. . Applicant
(through Sh. Arun Bhardwaj, Advocate)
Versus
1. Commissioner of Police,
MSO Building,
PHQ, IP Estate,
New Delhi.
2. Dy. Commissioner of Police,
Crime & Railways,
MSO Building, PHQ,
IP Estate, New Delhi.
3. Asstt. Commissioner of Police,
D.E. Cell, MSO Building,
PHQ, I.P. Estate,
New Delhi. . Respondents
(through Mrs. Harvinder Oberoi, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant has challenged the order dated 20.02.2009 by which the Disciplinary Authority (DA) imposed the penalty of punishment of stoppage of increment for two years with cumulative effect and also the order dated 20.05.2010 of the Appellate Authority (AA) by which the order was modified to that of censure. His prayer is to set aside these two orders as well as the findings dated 14.07.2008 of the Enquiry Officer (EO) and for a direction for grant of consequential benefits and cost of the litigation.
2. Brief facts of the case are as follows:-
2.1 On source information, the applicant, who was SI (Exe) attached to the Police Station Narcotics Branch, Delhi apprehended on 03.05.2005 one Rakesh Sharma and seized 4Kg. of materials said to be Heroin from his possession in two parcels along with his Maruti Wagon-R Car. The applicant tested the Heroin recovered in both the parcels with the help of field-testing kit available to him and the result was positive for Heroin. The applicant took four samples from both the parcels and marked them as A-1, A-2 and B-1, B-2. The applicant prepared the two parcels for the balance material in cloth and sealed all the six parcels with his own seal YPS and sent a report for registration of a case and handed over the parcels to Constable Yogesh Kumar. On the basis of his rukka, an FIR No. 26/05 dated 03.05.2005 was registered under Section 21 of NDPS Act at the Police Station, Narcotics Branch, Delhi and the property was deposited in Malkhana by the then acting Station House Officer (SHO), SI Kuldeep Singh of that Police Station who further investigated the case. Samples A-1 and A-2 were sent to FSL Rohini and the results showed negative for presence of Diacetylmorphine and positive for Paracetamol. Sample B1 and B2 were sent to CFSL, Lodhi Road, but the results were negative for Heroin. Because of such negative test reports from the Forensic Laboratories, the accused in that case, who was a drug trafficker was discharged without any punishment. The applicant consequently was charged with malafide and doubtful integrity in a disciplinary proceeding. The chargesheet after discussing all the aforesaid facts comes to the following allegation:-
..This shows malafide and doubtful integrity of SI (Exe) Yashpal Singh No. D-4052.
The above acts on your part SI (Exe) Yashpal Singh, No. D-4052 amount to gross misconduct, malafide integrity and unbecoming of a police officer in the discharge of your official duties and responsibilities which renders you liable for punishment under the provision of Delhi Police (Punishment & Appeal) Rules, 1980. In other words, the charge of malafide acts arising out of doubtful integrity which again was described as gross misconduct and unbecoming of a police officer was brought against the applicant.
2.2 A formal departmental enquiry was taken up and the EO came to the following conclusions:-
..Subsequent testing of remaining samples also tested negative show the involvement of the defaulter who rendered untenable help to the accused person which led to his acquittal. PW-1 during his cross examination admitted that there were romour in police station that samples were changed. I find the defaulter SI Yash Pal Singh No. D/4052 guilty of malafide and doubtful integrity who investigated case FIR No. 26/05 PS Narcotics Branch, New Delhi which emended in acquittal due to unlawful help of the defaulter.
3. The DA while accepting the findings of the EO, makes the following remarks:-
..In his written and oral submissions, he has not been able to refute the fact that first samples A-1 and A-2 result received as negative from FSL, Rohini, Delhi. The I.O. got examined the second samples B-1 and B-2 from the CFSL, Lodhi Road, New Delhi and did not intimate on account of tampering of parcels etc. Again, the result was received as negative. The EO has concluded in his findings that the charge stands fully proved. and on that basis imposed the impugned penalty.
4. The AA, however, did not agree to the aforesaid conclusion of the DA and makes the following observations:-
From the overall circumstances, as emerge from the entire D.E. proceedings, the order of the disciplinary authority, the appeal given by the appellant and the contentions put forth by him during personal hearing, it is felt that the punishment imposed on the appellant is based on the presumption that thee was malafide on the part of the appellant in the entire episode. The contentions of the appellant, however give rise to a feeling that there may not have been any such malafide and the quantum of guilt would be more in the realm of negligence in following up the matter appropriately after the seizure. Considering all the facts, therefore, keeping in view the norms of natural justice, I accept his appeal and modify the punishment of stoppage of future increments for a period of two years with non-cumulative effect to that of censure. Since the AA accepted the appeal of the applicant and set aside the findings of the DA that there was malafide on the part of the applicant and confined his guilt only to that of negligence, we may restrict our examination to this conclusion of the AA.
5. Learned counsel for the applicant submits that the chargesheet no where mentions anything about negligence nor about tampering by the applicant. It has narrated the facts that the samples drawn by the applicant tested negative in the two Forensic Laboratories and on that basis concluded that act of the applicant was malafide and of doubtful integrity. There is no whisper of any negligence on his part.
5.1 Learned counsel took us through the statements made by SI Kuldeep Singh, PW-4 in his cross examination where he states that the result made by the testing kit is not 100% accurate: it is inadmissible in a Court of Law and that in respect of cases registered under FIR No. 88/03 41/04 and 1/05, the results from the FSL were negative although the field testing kit indicated the samples to be positive. He has also stated that he has come across many cases where variation in the test results had been noticed. It is contended that because of such difference in results, it could not be held that the applicant was negligent in any manner. The testimony of PW-1 narrates the whole sequence of events: how the samples were sealed; how the case property was taken to police custody; how the seal YSP was handed over by the applicant to the Head Constable Ajaybir Singh; how the Constable carried all the case property alongwith samples to the Police Station Narcotics Branch the same day and handed over those items to SHO Kuldeep Singh who checked the items, put in his own seal and handed over them to Malkhana correctly and a daily diary entry was made and FIR No. 26/05 was also registered. The detailed discussion of the events does not indicate negligence on the part of the applicant at any stage. On the other hand, there was negligence on the part of SHO in sending promptly the samples from Malkhana to the Forensic Laboratory. SHO Kuldeep Singh had taken over custody of the sample and seized materials on the same day, but sent the samples after a delay of 17 days. If there was any negligence, it was that of SI Kuldeep Singh, not of the applicant.
6. Learned counsel for the respondents submits that the accused Rakesh Kumar was intercepted along with contraband materials on source information. This Rakesh Kumar was earlier convicted in a case where he was accused of carrying small quantity of heroine and was convicted, whereas in the present case where he was accused of carrying 4 kg., the drug samples turned out negative and the accused had to be discharged. This indicates collusion and negligence in investigation on the part of the applicant, which resulted in such a fauxpas for the police.
7. Suffice it to say that there is no allegation of collusion between the applicant and the accused Rakesh Kumar in the chargesheet. Even if the charge of malafie is stressed, the applicant has been cleared of that charge by the AA. Therefore, we do not have to look into this aspect again. Similarly conviction of the accused Rakesh Kumar in a previous case is an extraneous matter; this fact even does not find place in the summary of allegations. The argument that there should be a presumption that an accused person must be carrying contraband materials every time he is intercepted simply because he was convicted earlier of such an offence is based on faulty syllogism.
8. From the foregoing discussions, we find that there was no evidence on the basis of which the AA could come to a conclusion that the applicant was guilty of negligence in the context of the allegations which were brought against him in the chargesheet. In the circumstances, the order dated 20.05.2010 passed by the Appellate Authority is set aside. Needless to say that the order of the DA having been merged in the order of the AA, does not exist any more. The O.A. is accordingly allowed. No costs.
(Dr. A.K. Mishra) (G. George Paracken) Member (A) Member (J) /vinita/