Delhi District Court
State vs . : Meenu on 5 March, 2014
[Pg. 1 of 24]
In the Court of Dig Vinay Singh : Additional Sessions Judge
Spl. Judge : NDPS (NW) : District Courts : Rohini : Delhi
In the matter of :
SC No. : 25/12
State Vs. : Meenu
FIR No. : 49/11
PS : Bharat Nagar
U/s : 21/61/85 NDPS Act
State
Versus
Meenu
W/o Sh. Ajay
R/o B-52, J.J.Colony,
Wazirpur, Delhi
Date of receipt : 21.04.2012
Date of arguments : 05.03.2014
Date of announcement : 05.03.2014
JUDGMENT
1. The sole above named accused was sent for trial with the case of prosecution that on 6.3.2011 at about 1.50 PM, based on prior secret information she was apprehended at A-Block, J.J.Colony, Wazirpur near Tapakna Pul, within the jurisdiction of police station Bharat Nagar, and after compliance of Sec. 50 NDPS Act when her search was conducted, she was found in possession of 20 grams of Smack, which she was carrying inside one polythene under her brazier. Out of the recovered contraband, samples were drawn. One of the samples SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 2 of 24] was sent to the FSL, Rohini, which also confirmed the substance to be smack.
2. Accordingly, the accused was charged for offence U/s 21 of NDPS Act, to which the accused pleaded not guilty and claimed trial.
3. In support of its case, prosecution cited and examined 9 witnesses.
4. Out of the nine witnesses examined by the prosecution, PW2 SI Satish, PW3 HC Mukesh, PW8 Inspector Lalit Joshi and PW9 Ct. Sunita are the recovery witnesses. PW5 SI Deepak was the subsequent investigating officer. From amongst recovery witnesses, Inspector Lalit was the SHO of the police station concerned at the relevant time and SI Satish was the initial investigating officer who had received the secret information.
5. Rest of the witnesses are more or less formal in nature viz., PW1 HC Sukhbir, who took sample parcel with FSL form from the malkhana of the police station to the lab on 23.03.2011; PW4 HC Sanjay, who was the malkhana moharrar of the police station; PW6 Ct. Mahender from the Office of ACP concerned where report U/s 42 & 57 of NDPS were received and; PW7 ASI Shadi Lal the duty officer, who proved FIR and endorsement on rukka.
6. The recovery witnesses PW2 SI Satish, PW3 HC Mukesh, PW8 Inspector Lalit Joshi & PW9 Ct. Sunita deposed that on 6.03.2011 at about 12.30 PM one secret informer came and informed PW2 that the accused would come at the spot with smack. The informer was SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 3 of 24] produced by PW2 before the SHO (PW8) and thereafter the information was reduced to writing vide DD no. 12, true copy of which is proved as Ex.PW6/C. Thereafter, the raiding team along with the informer left for the spot vide DD no. 13 at 12.50 PM in the government gypsy of the SHO. The gypsy was parked some distance away from the spot. PW2 and the secret informer took position at the spot on the west side of the bridge, whereas PW3, 8 & 9 took position towards the other side. At 1.50 PM, the secret informer pointed out towards the accused who was crossing the bridge at that time. Thereafter, PW2 called the accused by her name and then reached up to her. Other members of the raiding team also reached up to the accused. Thereafter the accused was apprised of her rights U/s 50 NDPS Act and written notice Ex.PW2/A was served upon her by delivering a copy of the notice to her. The accused refused to exercise her rights and her refusal Ex.PW2/C was noted down on the carbon copy of the notice Ex.PW2/B. Thereafter, the accused was got searched through Ct.Sunita (PW9) who took and searched the accused inside gypsy and from her bra, one polythene containing smack was recovered. The substance was checked and tested on the field testing kit and was found to be smack. It was measured on the weighing machine and was found to be 20 grams, out of which two samples of 5-5 grams were drawn and were sealed inside parcels Mark S-1 & S-2. The remaining smack was also sealed inside third parcel. Investigating officer PW2 and SHO (PW8) both applied their seals of SK and LJ on all the three parcels and FSL form was also filled up upon which same specimen seals were applied. Thereafter, SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 4 of 24] case property was taken into possession vide Seizure memo Ex.PW2/D. The SHO thereafter left the spot with the parcels, the FSL form and carbon copy of seizure memo for the police station. Subsequently, rukka Ex.PW2/E was prepared and was handed over to HC Mukesh, who took it to the police station for registration of FIR. Meanwhile, PW5 SI came to the spot as he was appointed as further investigating officer. Subsequently, HC Mukesh also returned to the spot with original rukka and copy of FIR. Thereafter the accused was arrested and her personal search was conducted. The case property is proved in the court as Ex.P1 to P3.
7. PW5 also proved that he submitted report U/s 57 of NDPS Ex.PW5/B which was forwarded to the senior officers
8. Upon completion of prosecution evidence, all the incriminating evidence was put to the accused in her statement in which the accused generally denied the evidence against her. The accused did not lead any defence evidence.
9. I have heard Ld. Counsel for the accused and Ld. Prosecutor for the State.
10. It is yet another case in which despite the fact that there was prior secret information available with the police, which was available around one and a half hours before actual apprehension of the accused, yet once again no independent witness has been joined. It is no doubt true that even in absence of independent witness, a case may result in conviction purely on the testimonies of police officials SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 5 of 24] only, but in such circumstances the evidence has to be appreciated and scrutinized minutely, more particularly when the case is of a serious nature as the present one under NDPS Act which involves one of the severest punishments available in law. Severer the punishment provided is, greater has to be the care and caution and greater has to be the degree of proof.
11. Appreciation of evidence of the present case would reveal that the claim of the police officials that attempt was made to join independent witnesses is nothing but patently false excuse offered in the court. It has come in the evidence of recovery witnesses that only 3-4 passersby were requested to become witness and no one from the nearby residential locality, which was located barely few meters away from the place of apprehension was even requested. In the evidence of recovery witnesses, a large number of material contradictions have come up which creates suspicion about the genuineness of the present case.
12. But prior to it, it may be mentioned that there are certain legal provisions which though were required to be complied with in the present matter, but have not been complied with.
13. The first & foremost amongst them is qua Sec. 42 of NDPS Act. PW2 SI Satish, who received the secret information and allegedly reduced the information into writing under DD no. 12, in his cross examination stated that he did not give or forward the copy of written secret information to any of his senior officers. The immediate senior officer SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 6 of 24] of SI Satish was the SHO of police station. The SHO Inspector Lalit (PW8) in his entire testimony has nowhere mentioned that he received true copy of DD no.12 or that he forwarded any such document to the ACP concerned. There is not even a word mentioned in the testimony of SHO about compliance of Sec. 42 of NDPS Act. Anyhow, PW6 deposed that in the office of ACP, on 07.03.2011, besides a report U/s 57 of NDPS Act submitted by SI Deepak, a true copy of DD no.12 was also received. It is anybody's guess, as to when SI Satish states that he did not give any such report to any of his senior officers and when Inspector Lalit is also absolutely silent about the said report, as to under what circumstances the copy of DD no. 12 reached the Office of ACP.
14. In the notice U/s 50 NDPS Act, there is no mention of DD no. 12 which creates suspicion as to whether actually DD no 12 was reduced to writing and whether actually Sec. 42 of NDPS Act was complied with. It is no more res integra that compliance of Sec. 42 NDPS Act is mandatory.
15. Even if it is taken that true copy of DD no. 12 was received in the office of ACP within the stipulated period, yet there are other legal provisions which have not been complied with.
16. PW3 HC Mukesh deposed that signature of accused were taken on the original notice U/s 50 NDPS Act, before it was handed over to the accused but the notice proved in the court Ex.PW2/A does not bear signatures of accused at any place creating a reasonable suspicion SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 7 of 24] whether it is the same notice which was served upon the accused and whether notice was actually served upon the accused or not?
17. As per the version of SHO, the accused was merely informed that if she wishes, she could take search of the lady constable and the police gypsy and the search of investigating officer and thereafter notice U/s 50 NDPS Act was served upon her. Thus, as per the senior most officer of police, present at the spot, the accused was not categorically and specifically informed that she had a legal right U/s 50 NDPS Act to offer her search in presence of a Gazzetted Officer or a Magistrate. It is an admitted case of prosecution that contraband was recovered from the person of accused and therefore compliance of Sec. 50 of NDPS Act in its true sense was mandatory. As per version of the SHO himself, the accused was not informed of her legal rights. It was only in the leading question asked by Ld. Prosecutor that the SHO admitted that the accused was informed of her legal rights.
18. As per the case of prosecution, one copy of notice was delivered to the accused which was subsequently recovered in the personal search of accused. Personal search memo of accused was proved as Ex.PW5/A. This document would reveal that initially, it was written in the document that one carbon copy of the notice U/s 50 NDPS Act was recovered in the personal search of accused. When the police later on realized that what was served upon the accused, as per their case, was not a carbon copy but the original notice, the said line was struck off and a new line was added mentioning that copy of notice SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 8 of 24] was recovered from the personal search of accused. The said fact is mentioned with a different pen and ink, which is visible to naked eyes, on this personal search memo. This fact would reveal the extent of manipulation the policemen do qua compliance of Sec. 50 NDPS Act. This fact would reveal that actually no notice was served upon the accused and no notice was recovered from her personal search rendering the entire search and seizure as illegal. It vitiates entire trial.
18.1. It is no more res integra that compliance U/s 50 NDPS Act has to be absolute and strict and there cannot be any question of substantial compliance.
18.2. Recently, in the case of Kishan Chand v. State of Haryana, (2013) 2 SCC 502, Hon'ble Supreme Court held as follows;
"19. 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. The Constitution Bench in Karnail Singh [(2009) 8 SCC 539 : (2009) 3 SCC (Cri) 887] carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds.
20. While dealing with the requirement of complying with the provisions of Section 50 of the Act and keeping in mind its mandatory nature, a Bench of this Court held that there is need for exact compliance without any attribute to the element of prejudice where there is an admitted or apparent non-compliance. The Court SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 9 of 24] in State of Delhi v.Ram Avtar [(2011) 12 SCC 207 : (2012) 1 SCC (Cri) 385] held as under: (SCC pp. 216-17, paras 26-27) "26. The High Court while relying upon the judgment of this Court in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 :
1999 SCC (Cri) 1080] and rejecting the theory of substantial compliance, which had been suggested inJoseph Fernandez [Joseph Fernandez v. State of Goa, (2000) 1 SCC 707 : 2000 SCC (Cri) 300] , found that the intimation did not satisfy the provisions of Section 50 of the Act. The Court reasoned that the expression „duly‟ used in Section 50 of the Act connotes not „substantial‟ but „exact and definite compliance‟. Vide Ext. PW 6-A, the appellant was informed that a Gazetted officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside.
27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] , the theory of „substantial compliance‟ would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 10 of 24] the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act.
Non-compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial."
18.3. Also recently, in the case of Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 SCC 67, Supreme Court held as follows;
"7. We are in this case concerned only with the question whether PW 1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under Section 50 of the NDPS Act. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to a five- Judge Bench. This Court in Vijaysinh Chandubha Jadeja [(2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a gazetted officer or a Magistrate. This Court also held that it is mandatory on the part of the authorised officer to make the accused aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. .............................
SC No.25/12 State Vs. Meenu Dtd. 05.03.2014
[Pg. 11 of 24]
The above statement of PW 1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a gazetted officer if he so wished. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a gazetted officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a gazetted officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person.
9. We are of the view that non-compliance with this mandatory procedure has vitiated the entire proceedings initiated against the appellant-accused. ...................... Consequently, the conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside.................."
19. There is non-compliance of Section 57 of NDPS Act also. SI Satish was the person who received the information and apprehended the accused. Recovery of contraband was affected in presence of PW9 Ct. Sunita, SI Satish, HC Mukesh and the Inspector SHO Lalit. None of these witnesses gave report U/s 57 NDPS Act qua recovery of contraband. The only report U/s 57 NDPS Act submitted in the present case is by SI Deepak PW5, who admittedly was not even present when contraband was recovered. SI Deepak had no firsthand information regarding recovery of contraband. Therefore, his report U/s 57 NDPS Act, if at all, can be taken to be a report qua arrest of accused and not seizure of contraband. Thus, there is non- compliance of Sec. 57 NDPS Act also qua seizure of contraband.
SC No.25/12 State Vs. Meenu Dtd. 05.03.2014
[Pg. 12 of 24]
20. There are material contradictions in the testimony of the recovery witnesses on various crucial points which would be clear from the following discussion.
21. PW2 SI Satish deposed that the writing work at the spot was done towards A- Block after getting down from the bridge as well as banks of the canal and it was done while sitting inside the gypsy till the time SHO was there. When the SHO left the spot, writing work was done on a bench which was brought by HC Mukesh after borrowing it from someone and it was a wooden bench long enough that 4-5 persons could sit on it simultaneously, but he alone sat and did the writing work on the bench and all others were standing at that time. He deposed that at the time of measurement, the contraband was taken out of the polythene in which it was recovered and it was kept on the weighing machine in open condition i.e. directly on the weighing machine. In the next breath, he said that the powder was kept on a piece of paper on the weighing machine, but nonetheless it was taken out of the polythene at the time of measurement. PW2 also deposed that the SHO left the spot with all the three sealed parcels, the FSL form and carbon copy of seizure memo for the police station through patrolling and it was thereafter that the rukka was prepared and given to HC Mukesh to be taken to Police Station for registration of FIR. According to PW2, the residential houses were located 50-60 meters from the spot but after apprehension of accused and before her search no public person was requested to become witness. According to PW2, SHO left the spot at 4.00 PM, SI Deepak came to SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 13 of 24] the spot at 5 PM and he himself left the spot at 5.30 PM. According to him, contraband was measured on electronic weighing machine which was available with him in his IO bag. On being questioned about the description of the weighing machine, he could not recollect the make of the weighing machine, from where he had procured it, whether he had purchased it or borrowed it. According to him, the machine was of stainless steel from the top and the base of machine was of white colour. During cross examination, PW2 deposed that seizure memo was the last document prepared by him at the spot. If seizure memo was the last document prepared by SI Satish at the spot, who prepared the FSL form and rukka is anybody's guess. Anyhow, this witness claimed that the paper on which the powder was measured was destroyed and, measurement was done inside the gypsy on the backseat and at that time, SHO only was present in the gypsy and all other persons were outside. PW2 also in his examination in chief deposed that it was when the secret informer pointed out towards the accused and he called the accused by her name that the accused was apprehended. However, in the cross examination, it came to be revealed that SI Satish knew accused Meenu even from prior to the date of her apprehension as he himself was an investigating officer against this very accused in a case of Punjab Excise Act. Thus, the claim of investigating officer that after the informer pointed out towards Meenu and then she was called by her name and apprehended, creates a lot of suspicion.
SC No.25/12 State Vs. Meenu Dtd. 05.03.2014
[Pg. 14 of 24]
22. Similarly, PW3 HC Mukesh also deposed that on the pointing out of the secret informer SI Satish called the accused by her name and then apprehended her. When the accused was already known to the investigating officer, the story put forth in this case about her pointing out by the secret informer is not true. HC Mukesh even went to the extent that SI Satish enquired from the accused and then her name was revealed as Meenu.
23. HC Mukesh deposed that he signed the notice U/s 50 NDPS Act twice, whereas, the notice U/s 50 NDPS Act Ex.PW2/A bears only one signature of this witness and not two. According to HC Mukesh, residential houses were located nearly 60-100 steps from the place of apprehension. He deposed that the writing work was done by keeping the documents on the bonnet of the gypsy and not inside the gypsy and at that time the raiding team members were standing outside the gypsy. He even claimed that the disclosure statement of the accused was recorded at the spot while standing. He claimed that he went to the police station from the spot with rukka in the gypsy along with the SHO whereas others deposed that the SHO and HC Mukesh went separately. HC Mukesh also claimed that after registration of FIR, he went to the spot on motorcycle of a constable whose name he could not remember and at that time, he was alone. According to him, even the notice U/s 50 NDPS Act was prepared while standing.
24. According to HC Mukesh, contraband was measured in the gypsy at the backseat and the weighing machine was an electronic machine of white colour. He has a different size of the weighing machine to tell.
SC No.25/12 State Vs. Meenu Dtd. 05.03.2014
[Pg. 15 of 24]
The size of the weighing machine deposed by SI Satish is different. According to HC Mukesh, machine was kept on the seat of the gypsy at the time of measurement and nothing was kept beneath the powder at the time of measurement of the powder on the machine. He deposed that he does not know as to how the two samples were taken out from the main contraband and whether they were taken out with the help of any spoon or fingers or anything else. According to him, testing was conducted on the backseat of the gypsy. But he could not tell whether the testing machine was of plastic, steel, brass or copper. According to him, weighing machine was of white colour but he could not tell whether it was of plastic, steel, brass or copper. He was very specific in deposing that the writing work was not done on any bench and it was not done while sitting, rather it was done at the spot while standing. He deposed that the SHO left the spot at 4.35 PM along with him and he reached the spot again after FIR at 5.50 PM. PW5 SI Deepak deposed that he reached the spot at 4 PM and when he reached the spot, SI Satish was recording documents on a bench while sitting. As per version of other witnesses, SI Satish had already prepared the notice, the FSL form, the recovery memo and the rukka and thereafter, there was no document which SI Satish could have been preparing at the time when SI Deepak reached the spot.
25. According to SI Deepak, he only recorded the statement of SI Satish while sitting on the bench at the spot, while the remaining proceedings were conducted in the police chowki. Besides SI SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 16 of 24] Deepak, no other witness claims that any proceeding was done in the police chowki. Rather according to other witnesses, proceedings were done at the spot. SI Deepak claimed that they reached the police station at about 7 or 7.30 PM and that he did not deposit the personal search articles of the accused in the malkhana. Contrary to deposition of SI Deepak MHCM PW4 deposed that personal search articles of the accused were deposited in the malkhana.
26. The SHO Inspector Lalit PW8 also deposed that the accused was apprehended on the pointing out of the secret informer whereas facts have emerged in the present case that accused was already known not only to PW2 but also to PW3.
27. According to the SHO, residential houses were located at around 100-150 meters from the place of apprehension of the accused and the investigating officer had not enquired the names and addresses of those passersby who refused to join the proceedings, whereas, the investigating officer claimed that names and addresses of those persons were enquired but they did not tell. As per SHO after the notice U/s 50 NDPS Act was prepared, the second document prepared at the spot was search memo of the vehicle and police officials. No such document has been proved in the evidence of the present case, creating a reasonable suspicion whether SHO was actually present at the spot or not. On being questioned, the SHO replied that he cannot tell the sequence of the documents prepared at the spot. As per SHO, the weighing machine was of white colour but he could not tell whether it was battery operated machine or manual SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 17 of 24] weighing scale. According to SHO, the weighing process was done while sitting inside the gypsy by keeping the machine on the floor of the gypsy whereas writing work was done while standing outside the gypsy. According to SHO, it was SI Satish who recorded disclosure statement of accused whereas version of other witnesses is that SI Deepak recorded the disclosure statement of accused. SHO claimed that HC Mukesh took the rukka to the police station in his presence thereby meaning that the SHO left the spot after HC Mukesh went with the rukka whereas other witnesses claimed that HC Mukesh was sent to the police station after the SHO left the spot. On the other hand, HC Mukesh claimed that he left the spot with the SHO. The SHO also deposed that he took the original seizure memo from the spot with the original FSL form whereas the case of prosecution is that only carbon copy of seizure memo was taken by him and not the original rukka.
28. The star witness of the prosecution was lady Ct. Sunita (PW9). Even this witness deposed that investigating officer measured the smack while keeping it on a white piece of paper after taking it out from the polythene. The star witness of prosecution deposed that the residential locality was located at a distance of 1-2 Kms, whereas the case of other witnesses is that residential houses were located few meters or 100 meters away. According to Lady Ct. Sunita, the gypsy was parked half kilometers away from the spot, whereas case of other police officials is that it was parked nearby. This lady constable was the only lady police official available in the raiding team and therefore, SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 18 of 24] all the proceedings were done in presence of this witness and yet the witness deposed that she does not recall as to on which copy of the notice, refusal of accused was written by the investigating officer. She deposed that investigating officer prepared the seizure memo while keeping the papers on a table which he had borrowed from nearby and which was brought by HC Mukesh. It was on this table that the weighing work was done. She even claimed that the weighing machine was a hand held taraju with two paladas, whereas the case of other witness was that it was an electronic machine.
29. The fact that there is a serious contradiction in the testimony of witnesses whether the weighing machine was an electronic weighing machine or a hand held taraju creates a serious shadow of doubt about the case of prosecution. In any case, on a hand held taraju one cannot measure samples of as small quantity as of 5 Gm as claimed in the present matter.
30. PW9 Ct. Sunita also deposed that she cannot even say whether HC Mukesh left the spot with rukka at 2 PM or at 6 PM from the spot. Similarly, she could not tell as to when HC Mukesh returned to the spot. She also could not tell the time till which the SHO remained at the spot. According to her also, SHO left the spot with HC Mukesh. She also could not tell the time when SI Deepak reached the spot. According to her, SI Deepak came to the spot in his private car and he came between 2 PM to 4 PM. She even went to the extent of deposing that SI Deepak did not prepare any document in her presence and the police team finally left the spot at 5.30 PM. If SI SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 19 of 24] Deepak did not prepare any document in presence of this star witness, it is anybody's guess as to where and when the site plan Ex.PW2/F, disclosure statement of accused Ex. PW3/A, arrest memo Ex.PW3/B and the personal search memo Ex.PW5/A were prepared and as to where this witness signed these documents. These documents bear signatures of this witness Lady Ct. Sunita except the site plan. When she was questioned as to how the police team left the spot, she claimed that she cannot tell as to how all of them left the spot and she even could not tell what happened to the car which SI Deepak had brought to the spot.
31. The log book of the police gypsy used in the present case has not been proved. DD entries of arrival of the SHO in the police station with the case property is not proved. Signatures of accused and witnesses were not obtained on the parcels.
32. All the above mentioned facts create more than reasonable suspicion about the case of prosecution and the benefit of it has to be given to the accused, more particularly, when there is no independent witness and there is non-compliance of Sec. 100 of Cr.P.C.
33. In the case of Mohd. Raffique vs. State 2000 CRI. L. J. 2401, Hon'ble 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 SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 20 of 24] 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 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 SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 21 of 24] 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, SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 22 of 24] 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 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 SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 23 of 24] 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."
34. It is indeed true that mere non-joining of independent witnesses cannot be fatal. Indeed it may not be in a given case. But then the testimony of police witnesses has to be inspiring and believable. In a serious case of NDPS Act, inviting stringent punishment, the above mentioned serious discrepancies cannot be ignored. An accused cannot be convicted on such tentative evidence. It is in the light of these discrepancies that non-joining of independent witnesses assumes significance.
35. Admittedly, signatures of accused were not obtained on the parcels, and the NCB guidelines were not complied qua keeping the sample parcels and FSL form etc. in an envelope and sealing the envelope thereafter. The recovery and seizure has not been made in accordance with the standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi, and in this SC No.25/12 State Vs. Meenu Dtd. 05.03.2014 [Pg. 24 of 24] regard reliance is placed by the accused 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."
36. In the facts & circumstances of this case, benefit of doubt is given to the accused and accused is acquitted of the charges.
Announced in the open Court
on 5th Day of March, 2014. (Dig Vinay Singh)
ASJ/Spl.Judge : NDPS
Rohini Courts (N-W)/Delhi
SC No.25/12 State Vs. Meenu Dtd. 05.03.2014