Delhi District Court
State vs . 1. Gurcharan Singh @ Babbu on 30 October, 2017
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE
(NDPS), NORTH DISTRICT, ROHINI COURTS, DELHI.
SC No.57995/16
FIR No.82/11
U/s. 20, 25, 29,61, 85 NDPS Act
P.S. Crime Branch
State Vs. 1. Gurcharan Singh @ Babbu
S/o Late Sh. Darshan Singh
R/o E1/A, Ranjeet Vihar,
Nilothi Extension, Delhi41.
2.Lakhwinder Singh @ Kaka
S/o Late Sh. Dharam Singh
R/o E1/A, Ranjeet Vihar,
Nilothi Extension, Delhi41.
3. Pardeep Singh @ Rinku
S/o Late Sh. Jaspal Singh
R/o A106, Himgiri Enclave,
Nilothi Extension, Chander Vihar,
Delhi41.
4. Kuldeep Singh @Rinku
S/o Sh. Kishan Singh
R/o C16, Himgiri Enclave,
Chander Vihar, Delhi.
5. Gurmeet Singh
S/o Late Gurdeep Singh
R/o A60, Chander Vihar,
Nilothi Extn., Delhi. .........Accused persons
Date of institution : .01.09.2011
Date of arguments : .27.09.2017
Date of judgment : .30.10.2017
State vs. Gurcharan Singh @ Babbu and others Page 1 of 20
(FIR No.82/2011 PS Crime Branch)
JUDGMENT :
1.Accused Gurcharan (hereinafter referred to as 'A1'), accused Lakhvinder (hereinafter referred to as 'A2'), accused Pradeep (hereinafter referred to as 'A3'), accused Kuldeep (hereinafter referred to as 'A4') and accused Gurmeet (hereinafter referred to as 'A5') were arrested by the Police of Police Station Crime Branch, Delhi and were challaned to the court for trial for commission of the offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act').
2. The case of the prosecution, in brief, is that on 29.03.2011 a secret information was received by SI Sharat Kohli that two persons namely Gurmeet Singh & Raj Kumar were smuggling ganja in Delhi. It was further informed that their associates would be bringing Ganja from Odisha in Hyundai Accent Car No. DL 3CY 3251 and DL 2CW3821 and would pass through the Mukarba Chowk on outer ring road Delhi between 2.00 PM to 4.00 PM and would go via Madhuban Chowk to Nilothi Chander Vihar to deliver the contraband. SI Sharat Kohli after satisfying himself produced the informer before Additional/DCP/SIT who ordered for necessary action to be taken as per law.
3. It is further the case of the prosecution that the said information was recorded in Daily Diary vide DD No.13 dated 29.03.2011. A raiding party was constituted and it was divided into three groupsTeamA, TeamB & TeamC. TeamA comprised of SI State vs. Gurcharan Singh @ Babbu and others Page 2 of 20 (FIR No.82/2011 PS Crime Branch) Sharat Kohli, HC Amit Tomar, HC Rajinder Kumar and Ct. Dabbu. TeamB comprised of HC Shyam Lal, HC Bahadur Sharma, Ct. Manjeet and HC Rajinder Malik while TeamC comprised of ASI Suresh, Ct. Narender, Ct. Vikas, Ct. Sunny and Ct. Deepak. All the aforesaid teams alongwith the informer left the office of SIT Crime Branch at 1.00 PM in three private vehicles.
4. It is further the case of the prosecution that at about 3.25 PM, at the instance of informer, two Accent cars were seen coming from Burari side. Both the aforesaid cars were intercepted with the combined efforts of TeamsA, B & C. Accused Gurcharan Singh & Lakhvinder Singh were apprehended from car No. DL 3CY3251 while accused Pradeep Singh & accused Kuldeep Singh were apprehended from the other car bearing registration No. DL 2CW 3821. All the four accused were served with notices U/s 50 NDPS Act. Hyundai Accent Car No. DL 3CY3251 was searched and a total of 110 plastic bundles containing ganja was recovered from it. All the 110 bundles were put into 11 plastic sacks and were marked A1 to A 11 and sample ganja was taken from all 11 plastic sacks and was put into one plastic sack which was markedA. The total weight of the plastic sacks A1 to A11 was found to be 110 Kg. while the weight of sample markedA was found to be I Kg. and 880 gms. Similarly, the other car No. DL 2CW3821 was searched and a total of 110 plastic bundles containing ganja was recovered. All 110 bundles were put into 11 plastic sacks and were marked B1 to B11. Sample ganja was taken from all the plastic sacks and was put into one plastic sack State vs. Gurcharan Singh @ Babbu and others Page 3 of 20 (FIR No.82/2011 PS Crime Branch) which was marked as B. The total weight of plastic sacks B1 to B11 was found to be 108 Kg. and the weight of sample MarkB was found to be 1 Kg. & 646 gms. Form FSL was filled up. All the sealed pullandas and FSL form were seized. The accused were arrested and their disclosure statements were recorded.
5. It is further the case of the prosecution that during investigation it was found that both the abovesaid cars belonged to accused Gurmeet Singh who was running a firm in the name of M/s Sai Kripa Travel in a rented shop at A1/150, Aman Vihar, Delhi. It was further found that all the four accused were working as drivers with accused Gurmeet Singh. During investigation FSL report confirmed the contraband to be ganja. On 01.09.2011, charge sheet was filed against A1 to A4. A5 could not be apprehended and was declared Proclaimed Offender vide order dated 22.12.2011. On 17.04.2014, A5 was arrested and his disclosure statement was recorded. After investigation, supplementary chargesheet was filed against A5, which was clubbed with the main chargesheet earlier filed against A1 to A4.
6. The copies of the documents to the accused U/s 207 Cr.P.C. were supplied.
7. Separate charge U/s 20(b)(ii)(C) and 29 of NDPS Act against A1 to A4 and charge U/s 25/27/29 NDPS Act against A5 were framed to which they pleaded not guilty and claimed trial. They were accordingly put to trial.
8. Trial proceeded and in the course of trial, prosecution in State vs. Gurcharan Singh @ Babbu and others Page 4 of 20 (FIR No.82/2011 PS Crime Branch) order to substantiate its case against the accused, examined twenty nine witnesses in all. PW1 is Inspector Kuldeep Singh who deposited the pullandas with MHC(M) HC Jag Narain. He has proved the DD No.18 as Ex. PW1/A. PW2 ASI Ashok Kumar has proved the FIR as Ex. PW2/A. PW3 HC Bahadur Sharma is a member of the raiding party who has narrated the incident. PW4 SI Sharat Kohli has corroborated the testimony of PW3. PW5 Ct. Sunny is a formal witness. PW6 S.K. Gupta has proved that vehicle No. DL 3CY3251 was registered in the name of A5. PW7 Vijender Kumar has proved that vehicle No. DL 2CW3821 was registered in the name of A5. PW8 HC Jag Narain is a formal witness. PW9 HC Sanjay Kumar has proved various DD entries vide Ex. PW9/A to Ex. PW9/D. PW 10 Ct. Kamal Singh collected the FSL result alongwith samples etc. and deposited the same with MHC(M). PW11 HC Narender is a formal witness. PW12 HC Shyam Lal is a member of the raiding party and has corroborated the testimonies of PW3 & PW4. PW13 Kuldeep Negi has proved the statement of account of the SB account of A5. PW14 Dr. Joy Tirkey has proved report U/s 57 NDPS Act as Ex. PW14/A. PW15 HC Rajender was a part of the raiding team and has corroborated the testimony of PW3. PW16 Inspector Aarti Sharma is the IO of the case. PW17 HC Dinesh Kumar has proved DD No.16 as Ex. PW17/A. PW18 HC Vijender Kumar has corroborated the testimony of PW17. PW19 SI Rajnish Sharma is a formal witness. PW20 HC Om Prakash has proved the disclosure statement of A5 as Ex. PW20/1. PW21 Shalabh Gupta, PW22 State vs. Gurcharan Singh @ Babbu and others Page 5 of 20 (FIR No.82/2011 PS Crime Branch) Manish, PW23 Rajeev Ranjan and PW24 Yogesh Tripathi are formal witnesses. PW25 SI Ramesh Chander has proved the report U/s 57 NDPS Act as Ex. PW25/1. PW26 has proved the details regarding the various mobile phones. PW27 has proved DD No.14 as Ex. PW27/A. PW28 Sanjeev Kumar, ACP has corroborated the testimony of PW25. PW29 SI Rishi Ram has deposed regarding the arrest of A5.
9. Statements of accused were recorded under Section 313 Cr.P.C when a chance was given to explain the incriminating evidence against them. A1 to A4 pleaded that they have been falsely implicated in this case by the police. A5 pleaded that the two cars registered in his name were purchased by his relative Rajesh @ Gattu. Those cars were in fact used by Rajesh @ Gattu who was plying the said cars for his business in the name of M/s Sai Kripa Travel Agency. It is further pleaded that even his ATM card was used by Rajesh @ Gattu for maintenance of vehicles and payment of installments. A5 has examined his real sister Sushma in his defence as DW1. DW1 has deposed that her husband Rajesh @ Gattu expired in 2013. He got financed two cars in the name of A5. The said cars were driven by her husband and also by his drivers. She has further deposed that her husband was running the firm M/s Sai Kripa Travels. He also used to obtain signatures of A5 as and when any transaction was required to be done in the name of the said firm.
10. I have heard Sh. J S Malik, Ld. APP for the State; Sh. Kundan Kumar, Ld. Counsel for the A1, A3 and A4; Sh. Deepak State vs. Gurcharan Singh @ Babbu and others Page 6 of 20 (FIR No.82/2011 PS Crime Branch) Sharma, Ld. Counsel for A2 and Sh. C M Sangwan, Ld. Counsel for A5. I have also perused the material on record.
11. Ld. Counsel for A1, A3 and A4 has contended that the second IO was appointed by the first IO. The first IO being the junior officer could not have ordered the appointment of senior officer to be the second IO of the case. Secondly, it is contended that midway to Nilothi village was decided to be the place of the apprehension of accused persons. The prosecution has not come up for the reason for this decision as to why the raid was not conducted at Nilothi village where there could have been chances of apprehension of the receiver also. Thirdly, it is contended that no efforts were made to associate by the IO to join independent public witnesses during the investigation. Fourthly, it is contended that link evidence is lacking in the present case. Fifthly, Ld. Counsel has contended that as faulty procedure of sampling entitles the accused persons for acquittal. Lastly, it is contended that there are contradictions and omissions in the testimonies of witnesses. In support of his contentions, Ld. Counsel has relied upon judgments - Vasant Rai vs. State, 2012 (3) JCC (Narcotics) 138; Joseph vs. State of Kerala, 2002 Crl. L J 3203; Nagu Singh vs. State of Rajasthan, SB Crl. Appeal No.931/2015, decided by High Court of Rajasthan on 10.05.2016.
12. Ld. Counsel for A2 has contended that ingredients of S.29 NDPS Act are not attracted against the accused. Secondly, it is contended that no conscious possession of ganja has been proved by the prosecution against the accused. In support of his contention, he State vs. Gurcharan Singh @ Babbu and others Page 7 of 20 (FIR No.82/2011 PS Crime Branch) has relied upon judgments - Eran Eliav vs. State, Crl. Rev. P. 395/2006, decided by High Court of Delhi on 26.4.2007 and Inder Dev Yadav vs. State, 2014 (3) JCC (Narcotics) 129.
13. Ld. Counsel for A5 has contended that no contraband was recovered from the possession of A5 and his name was falsely added at a subsequent stage to extort money from him. Secondly, it is contended that the five mobile phones allegedly recovered from A5 do not belong to him. Thirdly, it is contended that the prosecution has failed to collect the CDRs to show that A5 was ever in touch with other accused persons. Fourthly, it is contended that there is no evidence on record that A5 was dealing with Munmum and Majumdar and Tanakdhar Behra from Odisha allegedly involved in drug racket. Fifthly, it is contended that from the testimony of DW1, it has been established that two Hyundai cars were being used by her husband and not by A5. Lastly, it is contended that it has not been proved as to who was running the firm M/s Sai Kripa Travels.
14. On the other hand, Ld. APP for State has contended that there is not an iota of doubt in coming to the conclusion that the accused have committed the offence, and, hence, they are liable to be convicted in this case.
15. The material witnesses in this case are PW3, PW4, PW12, PW15, PW16 and PW29.
16. PW3 HC Bahadur Sharma has deposed that on 29.03.2011 at about 11.30 a.m a secret informer gave an information to SI Sharat Kohli to the effect that two persons namely Gurmeet State vs. Gurcharan Singh @ Babbu and others Page 8 of 20 (FIR No.82/2011 PS Crime Branch) Singh and Raj Kumar indulged in drug trafficking had gone to Odisha in their Accent Car bearing registration no. DL3CY3251 and DL2CW3821 for bringing ganja and they would be coming that day between 2 p.m to 4 p.m via Mukaraba chowk and would go to Nihal Vihar, Nilothi Extension for delivery of ganja. The secret informer was produced before Additional DCP Dr. Joy Tirkey who ordered for necessary action to be taken as per law. The said information was recorded vide DD No.13 dated 29.03.2011 and the copy of said DD was sent to Addl. DCP. He has further deposed that three raiding parties were constituted. Raiding team 'A' comprised of SI Sharat Kohli, HC Amit Tomar, HC Rajender Kumar, Ct. Dabbu and the informer. Raiding team 'B' comprised of himself, HC Shyam Lal, Ct. Manjeet and HC Rajender Malik while raiding team 'C' comprised of ASI Suresh, Ct. Narender, Ct. Vikas, Ct. Sunny and Ct. Deepak. All the aforesaid teams along with informer left the office of Crime Branch Narcotics at 1.00 p.m in three private vehicles. He has proved DD No.14 in this regard as Ex.PW3/A. He has further deposed that about 3.25 p.m abovesaid two cars were stopped. A1 and A2 were apprehended from car No. DL3CY3251 while A3 and A4 were apprehended from the other car no. DL2CW3821. All the accused were served with notices u/s 50 NDPS Act. He has proved the said notices as Ex.PW3/B to Ex.PW3/E and the replies as Ex.PW3/B1 to Ex.PW3/E1. He has further deposed that Hyundai Accent car No.DL3CY3251 was searched and a total 110 plastic bundles containing ganja were recovered from it. All the 110 plastic bundles State vs. Gurcharan Singh @ Babbu and others Page 9 of 20 (FIR No.82/2011 PS Crime Branch) were put into 11 plastic sacks and were marked to A1 to A11. The sample ganja was taken from all the 11 sacks and were put into one plastic sack which was marked A. The total weight of plastic sacks A 1 to A11 was found to be 110 Kgs while weight of sample mark A was found to be 1.880 grams. Similarly, the other car no. DL2CW 3821 was searched and a total of 110 plastic bundles containing ganja were recovered. All 110 plastic bundles were put into 11 plastic sacks and were marked to B1 to B11. The sample ganja was taken from all the 11 sacks and were put into 1 plastic sack which was marked B. The total weight of plastic sacks B1 to B11 was found to be 108 Kgs while weight of sample mark A was found to be 1.646 grams. All the empty polythene material bundles were kept in a separate sack and was marked as mark C. All the 25 plastic sacks were sealed with the seal of SK, form FSL was filled up and the seal of SK was affixed on the same. He has proved the seizure memo in this regard as Ex.PW3/F.
17. He has further deposed that rukka was prepared by SI Sharat Kohli and a message was sent to SIT office at about 8.30 p.m for requisition of second IO Inspector Aarti Sharma. FIR was got registered, accused were arrested and two Accent Cars were taken into possession. A3 was searched and one ATM card of Axis Bank in the name of A5 was recovered from him. The said ATM card was taken into possession vide memo Ex.PW3/L. He has proved the ATM card as Ex.PW3/M. He has further deposed that from the search of A3, 4 cash memos and two toll tax receipts were recovered. He has proved State vs. Gurcharan Singh @ Babbu and others Page 10 of 20 (FIR No.82/2011 PS Crime Branch) the said cash memos and receipts as Ex.PW3/O to Ex.PW3/O6 which were seized vide memo Ex.PW3/N. He has proved the arrest memo, personal search memo and disclosure statements of accused persons as Ex.PW3/P to Ex.PW3/W and Ex.PW3/X, Ex.PW3/X1, Ex.PW3/X2 and Ex.PW3/X3. He has proved the sacks as Ex.P1 to Ex.P25 and notices served upon A1 to A4 as Ex.P26 to Ex.P29.
18. During his crossexamination on behalf of A1, A3 and A4, PW3 has deposed that at the time of secret information being conveyed to SI Sharat Kohli, Inspector Aarti Sharma was also present in the room but she was not informed about the secret information. He has admitted that there were many government offices near the office of SIT wherein Gazetted Officers were/are posted. As per PW3, government offices were at a distance of 30 paces across the road from their office. No Gazetted officer from those offices was asked to join the raiding party. He has deposed that they were driving their private vehicles i.e. two Santro cars and one Ritz car which were brought by HC Shyam Lal, HC Amit Tomar and SI Sharat Kohli. He could not tell the registration numbers of the said cars. He has deposed that the trap of accused persons was decided to be laid in the midway to Nihal Vihar, Nilothi Extn by SI Sharat Kohli but he did not share the reason for it. They straightaway reached the spot from their SIT office and did not stop in between. He has further deposed that writing work was done by him while sitting in the car of SI Sharat Kohli. He has further deposed that he was in the third vehicle of SI Sharat Kohli. All the three vehicles were parked side by side and vehicles of State vs. Gurcharan Singh @ Babbu and others Page 11 of 20 (FIR No.82/2011 PS Crime Branch) accused were at a distance of 3 to 5 feet from them. He has further deposed that they had refreshment at the site. The tea was brought from the dhaba near mall of Prashant Vihar. He has further deposed that registrar office was at a distance of 50 meters from the spot. He has further deposed that first of all they opened all 110 packets recovered from one vehicle and then contents of those packets were put into 11 sacks and, thereafter, samples were taken from 11 plastic sacks. He has admitted that samples were not taken when the contraband was in 110 packets. He has further deposed that ASI Suresh Kumar and IO put the contraband of 110 packets in 11 plastic sacks. The contraband was weighed by ASI Suresh and IO. He has further deposed that spot was 100 meters away from the Rohini Court Complex. He could not tell the time when the refusal replies of the accused were recorded. He has further deposed about the method of sampling at the time of recovery of contraband from A1 to A4.
19. PW4 SI Sharat Kohli has corroborated the testimony of PW3. During his crossexamination, he has deposed that Nihal Vihar was not decided as the place to intercept the vehicles as the accused would have got the information of the presence of police in the said area. He has deposed that it was his decision to apprehend the accused midway. He has admitted that none from local police or Rohini Court was called to join the investigation. He has admitted that no occupant of passing by vehicles was asked to join the investigation. He has admitted that no gazetted officer or Magistrate was requested to join the proceedings which were to commence on a definite information.
State vs. Gurcharan Singh @ Babbu and others Page 12 of 20(FIR No.82/2011 PS Crime Branch)
20. PW11 HC Narender has deposed that on 29.3.2011, on the instructions of SI Sharat Kohli, he drove private vehicle containing case property from the spot to PS Crime Branch, Narcotics, Nehru Place, Delhi. The remaining case property was brought to PS Crime Branch in one gypsy and one private vehicle driven by HC Shyam Lal and Ct. Sunny respectively. All the 25 pullandas (case property) were handed over to HC Shyam Lal. During his crossexamination, he has categorically deposed that he had not joined any other proceedings of investigation in this case except deposed by him hereinabove.
21. PW12 Shyam Lal and PW15 HC Rajender Kumar have corroborated the testimony of PW3 and PW4. During their cross examinations, they have deposed about the method of sampling of the contraband.
22. PW16 Inspector Aarti Sharma is the IO of the case who filed the chargesheet in the court after completion of investigation. During her crossexamination, she has deposed that prior to receipt of DD no.15, SI Sharat Kohli did not communicate her regarding the present case. She has admitted that she was the immediate senior officer to SI Sharat Kohli.
23. PW29 SI Rishi Ram has deposed that on 21.04.2014 A5 was taken on two days police custody. On 22.04.2014 he visited Axis Bank, Meera Bagh, New Delhi for securing account details of accounts of A5, his wife and Munmun Majumdar and Tanakdhar Behra. He has deposed that during the period of one year a sum of Rs.13 lakhs were credited in the account of A5 and his wife. He has State vs. Gurcharan Singh @ Babbu and others Page 13 of 20 (FIR No.82/2011 PS Crime Branch) proved a copy of notice as Ex.PW29/1 and copy of slips vide which A5 deposited money in his account as Ex.PW13/X (1 to 17). During his crossexamination, he has admitted that he never visited Odisha in connection with the investigation of this case.
24. I have gone through the file. The sampling in the present case was done after transferring the contents of 110 plastic bundles recovered from car No.DL3CY3251 in 11 sacks and, thereafter, a small quantity of samples from each 11 sacks was taken out, gathered and sealed as a sample which was marked as Mark A. The same procedure was adopted for the other 110 plastic bundles recovered from other car No.DL2CW3821.
25. In judgment - V asant Ra i (supra), sample from each of the 8 packets was not sent for chemical examination and in those circumstances it was held that the entire seized substance weighing 3.5 kilograms could not held to be charas. The relevant para of the judgment is reproduced herein below :
"21. Moreover, learned TrialJudge has wrongly convicted the appellant without going through the evidence in favour of appellant and has not even applied its mind to the extent that the green coloured polythene bag was carrying eight smaller packets which contained contraband. Two samples of 25 grams each after breaking and mixing charas from each of the packets were prepared. Therefore, this was wrong process of taking samples. The police should have been taken the samples from each packet instead of mixing all samples into two representative samples. If the process of mixing and taking sample was defective, then ultimately, the result thereof is also defective. Therefore, cannot be relied upon such a report."
26. Similar is the ratio of the judgments - Joseph (supra) and State vs. Gurcharan Singh @ Babbu and others Page 14 of 20 (FIR No.82/2011 PS Crime Branch) Nagu Singh (supra).
27. The law is well settled if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets/bundles recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted. For taking this view I am supported with the judgment - Vasant Ra i (supra).
28. Seen in the light of ratio of judgments - V asant Ra i (supra), Joseph (supra) and Nagu Singh (supra) and keeping in view flaws in the prosecution evidence regarding the manner of preparing the samples, this Court is of the opinion that the prosecution has miserably failed to prove that the appropriate sampling procedure was adopted by the investigating officer while conducting the seizure of contraband in the present case. Thus, the FSL report cannot be read in evidence against the accused.
29. Admittedly, no independent public witness was associated at any stage of the investigation while apprehending accused. It is no rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of police officials. Sometimes it becomes difficult for police officials to associate independent public witnesses for various reasons. However, joining of independent public witnesses is not a mere formality. No effort was made by the IO to contact any government official though they were available in the government offices and near the office of SIT, as has been admitted by PW3.
30. Though not referred to or relied upon, the High Court of State vs. Gurcharan Singh @ Babbu and others Page 15 of 20 (FIR No.82/2011 PS Crime Branch) Delhi in judgment - Ram Prakash vs. State, 2014 (146) DRJ 629, in similar circumstances, has observed as under:
"16. Mr. Gaur pointed out that while the Appellant was apprehended around 3.30 pm, the formal arrest was recorded at 11 pm i.e after eight hours. Throughout this period the police remained present at the spot and yet they could not get a single public witness to be associated.
17. This is perhaps the weakest link in the entire case of the prosecution. In his evidence PW9 stated that "he requested 56 public persons to join the proceedings but they did not join the investigation." It is not clear who those public persons were. Their names were not noted. In his crossexamination PW9 stated: "People who were managing the parking were present in the parking. I did not call any person from the parking, any employee of the Railway and the police officials deployed there to join the proceedings."
18. It seems extraordinary that although PW9 and the entire raiding party remaining at the spot i.e the parking lot of Old Delhi railway Station, well beyond 11.15 pm, i.e., nearly eight hours (they ultimately left the spot at 11.45 pm to reach the Crime Branch at 12.30 am) they were unable to locate a single public witness including any railway official or any personnel of any other security force to be associated in the proceedings.
19. The trial Court has referred to the decision in Ajmer Singh v. State of Haryana 2010 (2) RCR (Crl) 132 to hold that the failure to associate independent witness is not fatal to the prosecution case, as long as it is shown that efforts were made and none was willing. However, it is seen that in the said decision the Supreme Court emphasised that it had to be shown that after making efforts, which the Court considers in the circumstances of the case reasonable, the police officer was not able to get public witnesses to associate with either the raid or the arrest of the culprit. In other words in every case it will have to be examined whether serious efforts made by the police to associate public witnesses. In Ram Swaroop v. State (Govt. NCT of Delhi) MANU/SC/0551/2013: (2013 14 SCC 235 the Supreme Court found the evidence of the police witnesses "absolutely unimpeachable" and therefore held that the failure to associate independent witnesses did not affect the prosecution case. However, as will be seen hereafter, that cannot be said of the prosecution witnesses in the present case.
20. In the present case as already noticed the entire raiding State vs. Gurcharan Singh @ Babbu and others Page 16 of 20 (FIR No.82/2011 PS Crime Branch) party remained at the Old Delhi Railway parking lot which is an extraordinarily busy area from around 3.30 pm till midnight. This is a place where apart from security personnel, there are bound to be parking attendants and railway employees as well. The IO in his crossexamination has admitted that he did not make any effort to associate any such member of the security forces (including the railway forces, parking attendants or railway employee). In other words no sincere effort was made.
21. It has almost become a routine practice for the police to state that passerby were asked to join and they declined and went away without disclosing their names. The Court should be wary of readily accepting such explanations. In a case where a raid takes place in broad daylight in a busy area, a more convincing explanation has to be offered why despite remaining at the spot for about eight hours the police did not find a single public witness to join the proceedings."
31. Though not referred to or relied upon, in judgment Mohd.Mas oo m vs. State , 219 (2015) DLT 271, our High Court of Delhi has observed as under :
"13....In corruption cases while conducting raid CBI or Anti Corruption Bureau generally ensure to join independent witnesses. Testimonies of such Panch witnesses are given due weightage. It is unclear as to why the said procedure is not replicated in such cases. At least, in those cases where the investigating Agencies has plenty of time, they can requisition the services of independent public witnesses/public servants."
32. In the present case, there was ample opportunity/time for the investigating agency to associate independent public witnesses.
33. The second IO was appointed by the first IO as the same is evident from the rukka itself wherein it is mentioned 'Jo Ayinda Taftish Inspector Aarti Sharma Sahiba Amal Mai Layengi". The first IO being the junior officer could not have ordered for the appointment of senior officer to be the second IO of the case. The place of State vs. Gurcharan Singh @ Babbu and others Page 17 of 20 (FIR No.82/2011 PS Crime Branch) apprehension of the accused was decided to be the midway to Nilothi village but the prosecution has not come up for a valid reason for this decision. Had the raid been conducted at Nilothi village, there could have been chances of apprehension of receiver also. PW5 Ct. Sunny, PW11 HC Narender and PW12 HC Shyam Lal took the case property to PS Crime Branch but they have not deposed before the Court that the case property was not tampered with while being in their custody. Thus, the link evidence is lacking in the present case. All these circumstances cast a doubt in the story of the prosecution.
34. There are contradictions and omissions in the testimonies of witnesses. PW12 HC Shyam Lal has deposed that Ct. Narender had also helped the IO in the process of sealing and sampling in relation to car No.DL3CY3251 whereas PW11 HC Narender has denied of his having participated in such proceedings. As per PW12, he returned to the office of SIT after depositing the case property whereas PW5 has deposed that PW12 returned to the spot. As per PW12, the documents were written by PW4 SI Sharad Kohli at the spot whereas PW4 has deposed that the documents were written in the handwriting of Bahadur Sharma. PW12 has deposed that the samples were collected from each 110 packets prior to the transfer of contents of 110 packets in 11 sacks whereas PW3 has deposed that sample was collected after transferring the contents of 110 packets into 11 sacks and the contents of each of 11 sacks was not mixed up by hand prior to taking out the samples. However, PW15 has deposed that contents of each of 11 sacks was mixed up by hand prior to lifting State vs. Gurcharan Singh @ Babbu and others Page 18 of 20 (FIR No.82/2011 PS Crime Branch) samples from them.
35. PW29 Rishi Ram has admitted during his cross examination that he had never visited Odisha for the purpose of investigation and they also did not obtain any bank statement regarding the alleged money transaction between Munmun Majumdar, Tanakdhar Behra and A5. DW1 has deposed that her husband used to obtain the signatures of A5 as and when any transaction was required to be done in A5's account. It has not been proved that the firm M/s Sai Kripa Travels was being run by A5.
36. In the light of above referred deficiencies, inconsistencies and discrepancies, statements of the official witnesses without corroboration from independent sources cannot be believed to base conviction for stringent provisions of the NDPS Act. The law on this aspect is that "stringent the punishment stricter the proof". In such like cases, the prosecution evidence has to be examined very zealously so as to exclude every chance of false implication. The prosecution has failed to establish the commission of offence by the accused beyond reasonable doubt. A5 has examined witness in his defence and from her testimony a doubt is cast in the story of the prosecution. All the accused deserve benefit of doubt.
37. Considering the facts and circumstances of this case, all the accused in the present case are hereby acquitted of the alleged offences. All the accused be released from jail, if not required in any other case. In terms of Section 437(A) Cr.P.C., all the accused are directed to furnish personal bonds in the sum of Rs.25,000/ each with State vs. Gurcharan Singh @ Babbu and others Page 19 of 20 (FIR No.82/2011 PS Crime Branch) one surety in the like amount for a period of six months for their appearance before the High Court of Delhi in the event the prosecution wishes to file an appeal challenging the present judgment. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to Record Room.
Announced in open Court (PRAVEEN KUMAR) today i.e. on 30.10.2017. Special Judge (NDPS)/North Rohini Courts, Delhi.
State vs. Gurcharan Singh @ Babbu and others Page 20 of 20(FIR No.82/2011 PS Crime Branch) State vs. Gurcharan Singh @ Babbu and others Page 21 of 20 (FIR No.82/2011 PS Crime Branch)