Delhi District Court
Leela Ram vs State Of Haryana, Air 1999 Sc 3717, on 8 March, 2010
1
IN THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS)
DISTRICT NORTH, DELHI
SC NO. 56/08
CBI
versus
1. HAZI GUL KHAN
S/o Sh. Buzrang Khan
r/o Village Ashkhel,Shinwari,
PS &Tehsil Landi Kotal
Khyber Agency,
NWFP, Pakistan.
Present Address:
Seema Lodge,
Choori Walan, Delhi
2. ABDULLAH
S/o Sh. Lal Mohd. @ Agha Sahib
R/o Karta Parvan,
Kabul, Afghanistan
Present Address:
D-3, Kailash Colony,
New Delhi
RC No. :SIB 2000 E 0001-SIU(XI)/CBI/ND
Offence Under Section :8 r/w 20/21/25/29 NDPS Act
SC NO. 56/08 Page 1 of 101 pages
2
Date of institution: 22.05.00
Date of taking up the matter for the first time: 31.07.09
Date of conclusion of arguments: 30.01.10
Date of judgment: 08.03.10
Counsel for CBI: Sh. Rajan Dhaiya, Special Prosecutor for CBI
Counsel for Accused Hazi Gul Khan : Sh. Javed Akhtar, Advocate
Counsel for Accused Abdullah : Sh. Jitender Sethi, Advocate
JUDGMENT
1. Prosecution case as described in the chargesheet is as follows. SIU XI Branch of CBI received a source information that Hazi Gul Khan, a Pakistan national aged about 55 years residing in Churiwalan and Abdullah, residing in Kailash Colony who are indulged in illicit trafficking would receive huge quantity of heroin packed in huge cooking vessels from some unknown persons opposite Filmistan Cinema at about 3:00pm on 24.02.2000. The information was reduced into writing and after registration marked to Sh. MC Sahani, Deputy SP for verification and necessary action.
2. Sh. M.C. Sahni, DSP CBI sent a requisition to AGM of Canara Bank who deputed Sh. P.K. Batra and Sh. Shyam Lal, officers of regional inspectorate, Canara Bank, Defence SC NO. 56/08 Page 2 of 101 pages 3 Colony to witness the CBI operation on 24.02.2000 and accordingly both the said witnesses reported before Sh. Sahni the Incharge of the raiding team at about 11:30am on 24.02.2000 in CBI office.
3. Sh. M.C. Sahni, DSP CBI constituted a raiding team consisting of himself, Inspectors Shekhar Bajaj, VK Shukla, AK Bassi, Jagdish Prasad, Khalil Sarvar and SI Ram Kanwar besides constabulary staff. After the raiding party was briefed by Sh. Sahni, Incharge of the raiding team about the information, they left CBI office at about 2:00pm for Filmistan spot. Before proceeding to the spot, all the members of the raiding team as well as the vehicles were subjected to search by the public witnesses, who found nothing incriminating.
4. At about 2:45pm the raiding party reached the DVB transformer opposite Filmistan Cinema and Incharge of the raiding team Sh. Sahni detailed the team members at strategic points. Inspector Jagdish Prasad and SI Ram Kanwar took position near Filmistan Cinema, Inspector SC NO. 56/08 Page 3 of 101 pages 4 Khalil Sarvar, A.K. Bassi and P. K. Batra took position near the Nand Sweet Shop and Sh. M. C. Sahni alongwith Sh. Shyam Lal, Inspector Shekhar Bajaj and Inspector V. K. Shukla took position near the DVB Transformer.
5. At about 02:50pm, Sh. Sahni, the Incharge of the raiding team at Filmistan spot was contacted by the source, who pointed out a person standing near the DVB Transformer and stated that the said person would be delivering huge quantity of heroin to Hazi Gul Khan and Abdullah at 3:00pm and thereafter the source slipped away from the spot.
6. The Incharge of the raiding team at Filmistan spot briefed Sh. Shyam Lal about the person expected to make delivery as pointed out by the source and both of them saw four degchis (cooking vessels) kept near the wall adjacent to the DVB Transformer.
7. At about 03:05pm accused Hazi Gul Khan and Adbullah came in a white Ambassador car bearing No. DL 9CA 4079 and stopped near the DVB Transformer. Both the SC NO. 56/08 Page 4 of 101 pages 5 accused persons came out of the car and met the person who had been pointed out by the source as supplier and they proceeded towards the degchis lying near the wall. Accused persons picked up one of the four degchis and started loading it in the dicky of the car, which was opened by the driver Uttam Chand on their direction.
8. At that stage, Sh. Sahni, the Incharge of the raiding team at Filmistan spot, Sh. Shyam Lal, Inspector V K Shukla and Shekhar Bajaj ran to apprehend the accused persons and supplier; on seeing them running other team members also joined them. Both the accused persons were apprehended but the person who had delivered the consignment, managed to run away from the spot taking advantage of the crowd. Efforts made to apprehend the supplier proved futile.
9. The Incharge of the raiding team at Filmistan spot introduced himself and other members of the CBI team to both the accused persons and asked about their identity and the purpose of loading the degchis in the car. Both the SC NO. 56/08 Page 5 of 101 pages 6 accused persons disclosed their identity to the Incharge of the raiding team and explained that the degchis were meant for preparation of food items, but the accused persons kept quiet about the identity of the supplier of the consignment.
10. The Incharge of the raiding team at Filmistan spot gave option to both the accused persons of being searched in presence of any other gazetted officer or magistrate and notices as required under Section 50 NDPS Act were served on both of them. But both the accused persons refused to get themselves searched in presence of any other gazetted officer or magistrate.
11. Thereafter, one degchi was unloaded from the dicky of the car and the same was visually inspected alongwith the other three degchis lying near the wall adjacent to the DVB Transformer. All the four degchis were found to have a welded patch at the bottom and on knocking, it gave different sounds, which gave suspicion that the degchis had false cavity containing the contraband. All the four degchis were weighed at the weighing scale in the shop SC NO. 56/08 Page 6 of 101 pages 7 of Aggarwal Agency adjacent to the DVB Transformer. The gross weight of all the four degchis were recorded as I) 25.900 kg., II) 25.00 kg., III) 22.600 kg. and IV) 24.500 kg. These degchis were marked I, II, III & IV and later on A, B, C & D identification purpose.
12. Thereafter, the welded patches were removed one by one from each degchi with the help of hammer and chisel. Upon removal of welded patches, the degchis were found to contain pieces of white cloth which had marks of crescent and star and writing in Urdu. On removal of the cloth pieces, white powder was collected on newspapers from degchis A, B & C and brown powder was collected from degchi D. The powder was kept in 4 separate envelopes and it was weighed on the weighing scale in the shop of Aggarwal Agency. The net weight of powder from degchis was recorded as I) 5.800 kg., II) 5.400 kg., III) 6.000 kg. and IV) 5.500 kg. Small quantity of powder from each envelop was taken out and tested with the help of Field Testing Kit, which indicated the presence of diacetylmorphine.
SC NO. 56/08 Page 7 of 101 pages 8
13. Out of each envelop, two samples were drawn and kept in envelopes separately and sealed with the seal of MCS/CBI/01 and marked as A-I, A-II, B-I, B-II, C-I, C-II and D-I, D-II. The packets of remnant powder were kept and sealed separately with the seal impression of MCS/CBI/01. Similarly, the welded patches and pieces of cloth recovered from each degchi were also kept in separate envelopes and sealed with the seal impression of MCS/CBI/01 and marked as I-A, II-B, III-C, IV-D. Test Memo in triplicate was prepared at the spot, on which accused Abdullah affixed his signatures and accused Hazi Gul Khan affixed his thumb mark, besides Sh. Sahni, Incharge of the raiding team at Filmistan spot, Sh. P.K. Batra and Sh. Shyam Lal also appended their signatures on the same. The rough site plan was also prepared which was signed by all the team members besides independent witnesses and the same was also signed by accused Abdullah and accused Hazi Gul Khan affixed his thumb impression on the same. The seal after use was handed over to Sh. Shyam Lal for its safe custody under proper receipt.
SC NO. 56/08 Page 8 of 101 pages 9
14. Both the accused persons were arrested for illegal possession of heroin and intimation of their arrest was sent to Mir Mohd. Bassir, brother of Abdullah residing at H.No. D- 3, Kailash Colony, New Delhi; personal search cum arrest memos of both the accused persons were also prepared at the spot.
15. The Incharge of the raiding team at Filmistan spot authorized CBI Inspector Neelam Singh to conduct a house search of accused Abdullah at H.No. D-3, Kailash Colony, New Delhi and also authorized Inspector Vijay Kumar to conduct search in the room in Seema Lodge, Choori Walan, Chawari Bazar, Delhi.
16. Inspector Neelam Singh conducted search of the residence of accused Abdullah at D-3, Kailash colony, New Delhi in presence of an independent witness Sh. T.D. Dogra after observing all the legal formalities. During the house search at D-3, Kailash Colony, New Delhi, one degchi similar to the degchis recovered from the possession of the accused persons opposite Filmistan Cinema was recovered. The said SC NO. 56/08 Page 9 of 101 pages 10 degchi recovered from rear portion of D-3, Kailash Colony also had false cavity containing white powder, which upon testing was found to be diacetylmorphine. Further, at D-3, Kailash Colony, 575 gms. charas also was recovered from the wooden almirah fixed in the wall of the bedroom of accused Abdullah.
17. As per prosecution case, accused Hazi Gul Khan used to visit D-3, Kailash colony, New Delhi and on 24.02.2000 he came to Filmistan Cinema alongwith accused Abdullah from house No.D-3, Kailash Colony, New Delhi. As per prosecution, the accused persons had received one degchi in the month of December, 1999 and sold the heroin contained therein to one Shahwali, whose identity could not be established; and the said degchi was recovered from the house of Abdullah, D-3, Kailash Colony, New Delhi during the house search. Accused Abdullah was living in the rented accommodation at H.No.D-3, Kailash Colony, New Delhi in the name of Amin Said Agha son of Mir Suleman Agha and this house is in the name of Late Smt. Ishar Devi, whose son SC NO. 56/08 Page 10 of 101 pages 11 Vishwanath Dewan is the present owner of the house.
18. During the investigation the sealed samples were sent to CRCL, New Delhi for expert opinion and the CRCL result confirmed presence of diacetylemorphine in heroin and of THC in charas, illegal possession of which constitute offence under NDPS Act.
19. As per prosecution accused Abdullah had hired a taxi car bearing No. DL 9CA 4079 from Grewal Taxi Stand, Greater Kailash-I, New Delhi on 24.01.2000 and the vehicle was driven by driver Uttam Chand. Accused Abdullah earlier also hired the Taxi from Grewal Taxi Service as per the duty slips maintained at the Grewal Taxi Stand. This car was seized and later on was released on superdaari to the owner Sh. Jatinder Singh as per the order of the Hon'ble High Court.
20. Further, as per prosecution accused Abdullah had purchased a Mobile Telephone number 9812022530 from which he had made calls to Pakistan, on telephone number 009291815757 to one Sh. Farooq who gave instructions about the delivery of one degchi in December, 1999 and 4 degchis SC NO. 56/08 Page 11 of 101 pages 12 on 24th February, 2000 to Abdullah and Hazi Gul Khan. Part of the investigation as per CBI has been referred by CBI to the Interpol, Pakistan to ascertain the identity of Farooq, subscriber of telephone number 929187815757 so that efforts could be made to apprehend the person who made the delivery of the four degchis to both the accused persons. CBI submitted that supplementary chargesheet under Section 173 (8) CrPC would be filed on the receipt of information.
21. Chargesheet against both the accused persons for offence under Section 8 read with 21 and 29 NDPS Act and against accused Abdullah for offence under Section 8 read with 20, 21, 25 & 29 NDPS Act, 1985. was filed by CBI.
22. On 28.02.01 my learned predecessor framed charge against both the accused persons for offence under Section 20,21, 25 and 29 NDPS Act, to which both the accused pleaded not guilty and claimed trial.
23. In support of its case, CBI examined 14 witnesses, whereafter the entire incriminating evidence was put to the accused persons in their statements under Section 313 CrPC.
SC NO. 56/08 Page 12 of 101 pages 13 Both the accused persons denied the correctness of prosecution evidence and although accused Abdullah expressed desire to lead defence evidence, no evidence was adduced by either of the accused.
24. At the stage of final arguments, by way of detailed order dated 19.08.2009 application dated 07.08.09 (wrongly dated as 07.09.09) of accused persons was allowed; fresh samples out of the heroine allegedly recovered from accused persons were drawn in court on 24.04.09 and the same were sent to CRCL for fresh forensic analysis. CRCL report dated 20.10.09 again confirmed the presence of diacetylmorphine in the contraband samples sent from court.
25. I have heard Sh. Rajan Dahia, Special Public Prosecutor for CBI and Sh. Jitender Sethi, counsel for accused Abdullah and Sh. Javed Akhtar, amicus curiae on behalf of accused Hazi Gul Khan. I have also perused the entire evidence on record in the light of case law cited at bar.
26. A brief description of the evidence led in this case is as follows.
SC NO. 56/08 Page 13 of 101 pages 14
27. PW1 Sh. RP Singh, Assistant Chemical Examiner CRCL proved the receipt of sample Ex. PW1/1 issued on 25.02.2000 and deposed that on 29.03.2000 all the four samples were taken out of strong room and were examined till 30.03.2000. PW1 also proved the report of chemical examiner grade-I as Ex. PW1/2.
28. PW2 Sh. Narender Kumar, Chemical Examiner Grade-I deposed about receipt of samples in CRCL on 25.02.2000 in intact condition and issuance of receipt by Sh. RP Singh and Sh. VB Chaurasiya, Assistant Chemical Examiners under his directions followed by keeping of the samples in strong room. PW2 also described about the tests conducted on the samples and proved the final test reports of CRCL as Ex. PW2/1&2 and delivery of the remnant samples with CRCL reports to the strong room from where the sample packets and reports were collected on 01.05.2000 and 15.05.2000 by a CBI Inspector. During his testimony before my learned predecessor, PW2 identified the remnant of sample A1 as Ex. P3, envelop A1 as Ex. P2, one big envelop SC NO. 56/08 Page 14 of 101 pages 15 containing four remnant samples as Ex. P1, envelop B1 as Ex. P4, remnant of sample B1 as Ex. P5, envelop C1 as Ex. P6, remnant of sample C1 as Ex. P7, envelop D1 as Ex. P8, remnant of sample D1 as Ex.P9, envelop containing the remnant charas samples as Ex. P10 and remnant charas samples Ex. P12 and Ex. P14 kept in envelopes Ex. P11 and Ex. P13.
29. PW3 Sh. V.B. Chaurasiya, Assistant Chemical Examiner proved the receipt of two samples issued by him as Ex. PW3/1 and stated that the said sealed sample packet were kept in the strong room to be taken out on 30.03.2000 with intact seals; that the analysis of these samples was completed on 06.04.2000 and he issued report Ex. PW3/2, whereafter the sample packet were kept in the strong room.
30. PW4 is the public witness Sh. Shyam Lal who was posted at the relevant time in Regional Inspectorate of Canara Bank near Mool Chand Hospital. As per PW4, on 24.02.2000 at about 10:30am he was called by the Assistant General Manager of the Branch alongwith the Manager Sh.
SC NO. 56/08 Page 15 of 101 pages 16 PK Batra; the AGM told both PW4 and Sh. Batra that they were being deputed to assist CBI at the request of the latter and they were directed vide letter Ex. PW4/1 to report to Sh. MC Sahani, DSP CBI; he and Sh. Batra reported before the Incharge of the raiding team Sh. M.C. Sahni at 11:30am on the same day, whereafter the Incharge of the raiding team introduced them with his team of Inspectors and shared the secret information as regards expected arrival of accused persons near Filmistan Cinema at about 3:00pm; he and Sh. Batra conducted personal search of the raiding team members and found that the Inspectors were armed with pistols and nothing else; he and Sh. Batra took search of a van and a gypsy also and in the gypsy a testing kit in a box and weighing scale were found and nothing else was there in the vehicles. PW4 further narrated the facts pertaining to raid, recovery and seizure of the contraband as described above and proved notice under Section 50 NDPS Act served on accused Hazi Gul Khan and accused Abdullah respectively as Ex. PW4/A and Ex. PW4/B. During his testimony recorded SC NO. 56/08 Page 16 of 101 pages 17 before my learned predecessor PW4 identified the articles Ex. P1 to Ex. P4 described above, the four degchies as Ex. P6 to Ex. P9, four pieces of white cloth parcels A-D as Ex. P10 to Ex. P13, envelopes AII to DII with sample powder prepared on the spot as Ex. P14 to Ex. P17, two metal patches of parcel IA and cloth pieces of Degchi A as Ex. P18 to Ex. P21, three cloth parcels of IB and two metal patches of Degchi B as Ex. P22 to Ex. P26, metal piece removed from Degchi C as Ex. P27, two metal patches removed from Degchi D as Ex. P28 and Ex. P29 and seal of CBI that had been handed over to him vide receipt Ex. PW4/C as Ex. P30. PW4 also proved the test memo as Ex. PW4/D, site plan as Ex. PW4/E, specimen impression of seal as Ex. PW4/F, original seal receipt as Ex. PW4/G, intimation of arrest of Hazi Gul Khan as Ex. PW4/H, arrest memo of accused Abdullah as Ex. PW4/J and recovery memo as Ex. PW4/K.
31. PW5 is Sh. TD Dogra, who was posted as executive officer with the National Open School at B-35, Kailash Colony, New Delhi at the relevant time. PW5 SC NO. 56/08 Page 17 of 101 pages 18 deposed that on 24.02.2000, at about 5:30pm under the directions of the Deputy Director, National Open School he met three CBI officers outside his office and accompanied them to D-3, Kailash Colony; that he went to D-3, Kailash Colony by foot while CBI officers were in their vehicle and all of them reached the said house at about 6:00pm; that outside the said house, under the directions of CBI officers he conducted their search and found nothing incriminating in their possession and thereafter all of them entered the said house; that inside the house cook Deen Mohd. and resident Bassir Mohd. met them; that CBI officers were not carrying any search warrants at that time; that during search of the house, from a wooden almirah fixed in wall of the room an envelop was found giving bad smell and on being opened it was found to contain a brown powder; that after testing the said powder with field testing kit, the CBI officers informed him that the said brown powder was charas; that one sample of about 10-20 grams was drawn from the said brown powder, placed in an envelop and thereafter the sample as SC NO. 56/08 Page 18 of 101 pages 19 well as the remnant powder envelops were sealed; that on further search, from store room cum kitchen of the said house one big patila with a hole at its bottom was recovered and on being shaken the patila produced sound as if something was inside it; that CBI officers inserted some knife inside the hole at the bottom of patila and some white powder came out which was tested with the kit and CBI officers told that it was heroin about 20 grams in weight; that the recovered powder was kept into separate envelopes marked B1 and B2 and the seal was handed over to him after use; that he signed 3-4 documents at the said house but he did not recollect the nature of the said documents; that the charas recovered from almirah weighed 575 grams. PW5 proved the recovery memo prepared at D-3 Kailash Colony as Ex. PW5/A, printed search list forms under Section 165 CrPC as Ex. PW5/B, rough site plan as Ex. PW5/C, NCB test memo as Ex. PW5/D and envelop containing black solid material that was recovered from almirah as Ex. PW5/E. The envelop Ex. PW5/E was opened before my learned predecessor and SC NO. 56/08 Page 19 of 101 pages 20 was found to contain black solid material in the form of batties (sticks) and after seeing the said material which was identified as Ex. P31, PW5 stated that from almirah it is this batties type material that was recovered and not the powder. PW5 also identified the black remnant sample Ex. P12 and brown remnant sample powder Ex. P14. PW5 identified the sample charas recovered from almirah of the house as Ex. P33 and its envelop as Ex. P32, second sample of brown powder recovered from patila as Ex. P35 and its envelop as Ex. P34. PW5 identified the patila recovered from D-3, Kailash Colony as Ex. P36 and produced in court the brass seal that had been handed over to him after use, which was identified as Ex. P37.
32. PW6 is Inspector Neelam Singh of CBI, who deposed that on 24.02.2000 she had been directed by DSP Sh Sahani to stand by in the office with other officials and about 5:15pm she received a phone call from Sh. Sahani that two persons namely Hazi Gul Khan and Abdullah had been apprehended with huge quantity of heroin and she was SC NO. 56/08 Page 20 of 101 pages 21 directed to proceed to the house of Abdullah at D-3, Kailash Colony for search; that at her request, the DSP Sh. KC Joshi constituted a team consisting of himself, DSP LM Majhi, Inspector Rajesh Chahal, ASI Naresh Chand and some constables besides PW6 and the team left their office at 5:30pm in CBI vehicles; that on way to the house of accused Abdullah, DSP Joshi arranged through requisition from National Open School one public witness namely Sh. TD Dogra with whom the raiding team reached D-3 Kailash Colony at 6:05pm; that at the gate of D-3, Kailash Colony, Ct. Raju Singh of CBI was present with a written permission to conduct search of the house, which was shown to the two occupants namely Deen Mohd. and Mohd. Bassir of the said house; that despite offer occupants of the house did not take search of members of the raiding team; that from room of Mohd. Bassir nothing incriminating was found, whereafter Mohd. Bassir informed the CBI team that the adjoining room was of accused Abdullah; that from under the clothes in almirah fixed in wall of Abdullah's room one polythene SC NO. 56/08 Page 21 of 101 pages 22 packet was recovered, which was found to contain black/dark brown material that gave positive test for charas and weighed 575grams, out of which two samples of 20 grams each were taken and converted into sealed packets A1 and A2 while the remnant charas in the polythene was converted into sealed packet A, regarding which recovery memo Ex. PW5/A was prepared; that on further search, from store room of the house one degchi with a hole of about 2 inch diameter on its bottom was recovered and from the hole white powder was coming out; that the powder contained in that degchi was taken out on a piece of paper and on being tested the same was found to be heroin weighing 10 grams, which was converted into two samples of 5 grams each and converted into sealed packets B1 and B2 and seized vide memo Ex. PW5/A; that NCB form Ex. PW5/D was filled in triplicate and was sealed with the same seal as used on the packets of recovered contraband, whereafter the seal was handed over to Sh. TD Dogra vide receipt Ex. PW6/A; that house search list Ex. PW5/B and site plan Ex. PW5/C were also prepared on the SC NO. 56/08 Page 22 of 101 pages 23 spot. As per PW6, the proceedings at D-3, Kailash Colony concluded at about 8:00pm whereafter Sh. Dogra was allowed to go while the CBI team returned to the office and deposited the case property in malkhana. PW6 identified the case property recovered from D-3 Kailash Colony, described above.
33. PW7 is Sh. MC Sahni, DSP the Incharge of the raiding team at Filmistan spot of this case, who deposed that on 23.02.2000 the secret information described above was marked to him for verification and on the same day he was introduced with the source; that the next day on 24.02.2000 vide requisition letter Ex.PW7/1 he requested the Canara Bank for making available two witnesses and he constituted in the meanwhile a raiding team consisting of Inspectors VK Shukla, Shekhar Bajaj, Khalil Savar, AK Bassi, Jagdish Prasad, SI Ram Kanwar and some constabulary staff to assist him in the process of verification; that at 11:30am two public witnesses namely Sh. Shyam Lal and Sh. PK Batra from Canara Bank reported in his office and he introduced them SC NO. 56/08 Page 23 of 101 pages 24 with the members of the raiding team whereafter the secret information was shared with all of them. PW7 further narrated the facts pertaining to the conduct of raid followed by recovery of contraband, drawing of samples and seizure thereof, followed by arrest proceedings as described above. PW7 stated that while the proceedings were being conducted on the spot, he telephonically instructed Inspector Smt. Neelam Singh of the standby team to carry out search at the residence of accused Abdullah and in that regard he sent her an authorisation also; that Inspector Vijay Kumar also was instructed by him to carry out search at the room of Hazi Gul Khan at Seema Lodge, Chawri Bazar, Delhi; that after conclusion of proceedings, the CBI team alongwith both the accused persons left the spot at 06:00pm and reached CBI office at about 06:45pm, whereafter the case property was deposited in malkhana; that he seized the documents and keys of the car used by the accused persons; that at about 07:50pm he submitted a special report Ex.PW7/2 to the SP on the basis of which a case FIR Ex.PW7/3 was registered against SC NO. 56/08 Page 24 of 101 pages 25 both the accused persons and further investigation was handed over to Sh. HS Chopra, DSP; that later on Inspector Neelam Singh handed over to him the documents prepared by her as regards search of D-3, Kailash Colony and informed that case property had been deposited in malkhana; that Inspector Vijay Kumar also handed over the documents as regards search of room of Hazi Gul Khan where nothing incriminating had been found; that he sent intimation Ex.PW7/4 of arrest of accused persons to Mohd. Bassir at D-3, Kailash Colony, New Delhi. PW7 identified the case property as described above.
34. PW8 is Sh. YP Ahuja, Senior Clerk Steno posted with Sh. BK Sharma, SP, CBI, who brought the office record and proved the written instruction of the SP, CBI for registration of SIR as Ex.PW8/A and relevant entry of SIR register as Ex.PW8/B.
35. PW9 is Sh. Uttam Chand, driver of the taxi that was hired by the accused persons to go to the Filmistan spot. PW9 deposed that on 24.03.2000, Abdullah booked a taxi SC NO. 56/08 Page 25 of 101 pages 26 from owner of the taxi stand where he was employed as driver; that he took the taxi to D-3, Kailash Colony alone, from where he took accused Abdullah to Nizamuddin Dargah and returned to D-3, Kailash Colony; that thereafter accused Hazi Gul Khan also joined in the taxi and they reached Filmistan at about 03:00pm; that he stopped the taxi across the road near electricity office and kept sitting inside while both the accused persons got down; that on the directions of Abdullah he opened dicky of the car and when both the accused persons were in the process of loading a degchi in the dicky, they were apprehended by CBI team; that the CBI team made him sit inside the taxi and conducted remaining proceedings during which both the accused persons were handcuffed and were made to sit at a side; that news channel Aaj Tak correspondents also reached the spot but were not allowed by the DIG to take photographs of the taxi, though they took photographs of accused persons; that at about 06:00pm he alongwith rest of the persons went to CBI office from where he was let off in the morning. PW9 proved his SC NO. 56/08 Page 26 of 101 pages 27 duty voucher book as Ex.PW9/A, duty voucher qua accused persons as Ex.PW9/B and seizure memo thereof as Ex.PW9/C.
36. PW10 is Inspector Vijay Kumar, who deposed that on 24.02.2000 on telephonic instruction of Sh. MC Sahani, DSP he reached Seema Lodge for search and met Ct. Damodar who handed over the search authorisation letter; after showing the authorisation letter to Manager of the Lodge he conducted search of room no. 111 of Hazi Gul Khan and recovered a passport and some documents which were seized by him vide memo Ex. PW10/A and he handed over the same to Sh. Sahani; that subsequently on the basis of authority letter Ex. PW10/B he brought the remnant sample with forensic opinion from CRCL and deposited the remnant sample in malkhana vide entries Ex. PW10/C and handed over the opinion report to the Incharge of the raiding team at Filmistan spot.
37. PW11 is Inspector Ram Kanwar, who was posted as Assistant malkhana Incharge CBI and was a member of SC NO. 56/08 Page 27 of 101 pages 28 the raiding party at the relevant time. PW11 narrated the facts pertaining to sharing of secret information by Sh. MC Sahani DSP with the raiding team members and public witnesses, conduct of raid followed by recovery of contraband, drawing of samples and seizure thereof, followed by arrest proceedings as described above. PW11 deposed about deposit of case property in malkhana on 24.02.2000 by Sh. MC Sahani vide malkhana register entries Ex. PW11/A followed by delivery by him on 25.02.2000 of samples mark A1, B1, C1 and D1 to CRCL alongwith NCB form with forwarding letter Ex. PW11/B of Sh. BK Sharma, SP CBI as well as delivery of samples mark A1 and B1 recovered from D3 Kailash Colony with NCB form and forwarding letter Ex. PW11/C of Sh. BK Sharma, SP CBI, whereafter the receipts Ex. PW1/1 and Ex. PW3/1 issued by CRCL were handed over by him to the IO.
38. PW12 is Sh. KC Joshi, SP CBI who was posted as DSP CBI at the relevant time and was a member of the raiding team constituted by Inspector Neelam Singh for SC NO. 56/08 Page 28 of 101 pages 29 conducting house search at D-3, Kailash Colony, Delhi. PW12 narrated the facts pertaining to the search conducted at the residence of accused Abdullah as well as the recovery, drawing of samples and seizure of contraband from there, as described above.
39. PW13 Sh. R.K. Singh Nodal Officer of Bharti Airtel examined before my learned predecessor deposed that on 13.03.2000 he handed over print out of customer detail call report Ex. PW13/B of the mobile phone no. 9810222530 for the period from 29.01.2000 to 21.02.2000 to Sh. HC Chopra, DSP CBI vide memo Ex. PW13/A.
40. PW14 is Sh. HS Chopra who was posted as DSP CBI at the relevant time and was entrusted with investigation of this case upon registration of FIR. PW14 deposed about recording of statements of witnesses by him during investigation, letter sent by him to CRCL, seizure of duty slip of Uttam Chand vide memo Ex. PW14/A, seizure of call details of mobile phone, seizure of lease deed and copies of title deeds of D3 Kailash Colony by him vide memo Ex.
SC NO. 56/08 Page 29 of 101 pages 30 PW14/B and placed on record the lease deed of D-3 Kailash Colony as Ex. PW14/C. After completion of investigation, PW14 filed the chargesheet followed by supplementary chargesheet upon receipt of CRCL report.
41. No other evidence was brought by prosecution.
42. Both the accused persons in their statements under Section 313 CrPC denied the correctness of the prosecution case and pleaded innocence. Accused Abdullah in his statement explained that he was in India since the year 1999 and was residing in a guest house near Ballimaran for treatment of slip disc and it is from the guest house that he was lifted by CBI officers at behest of a fellow countryman inimical to him. Accused Hazi Gul Khan stated that he also was forcibly lifted by CBI officers from his hotel room, being a foreigner. As stated above, neither of the accused led any evidence in their defence.
43. During final arguments, learned prosecutor as well as learned defence counsel and learned amicus curiae took me through entire record and addressed at length.
SC NO. 56/08 Page 30 of 101 pages 31 Learned defence counsel also placed on record a brief synopsis of arguments and case law relied upon.
44. Learned prosecutor opened the arguments claiming that CBI has successfully proved beyond reasonable doubt recovery of four degchies containing heroin from accused persons at Filmistan coupled with recovery of 575 gram charas and 10 gram heroin in a degchi from house of accused Abdullah at D-3 Kailash Colony, New Delhi. It was argued that all the mandatory requirements stipulated under NDPS Act were duly complied with and at both the places of recovery, CBI team was accompanied with public witnesses, who fully supported case of prosecution during trial. It was argued that testimony of PW9 taxi driver Uttam Chand and recovery of one degchi from D-3, Kailash Colony, which is similar to the four degchies recovered from Filmistan connect both the accused persons with both the recoveries. With the help of judgment of Hon'ble Supreme Court in the case of LEELA RAM vs STATE OF HARYANA, AIR 1999 SC 3717, learned Special Prosecutor CBI argued that there are bound SC NO. 56/08 Page 31 of 101 pages 32 to be some discrepancy between the narrations of different witnesses and unless the contradictions are of a material dimension the same should not be used to discard the entire prosecution case. Official acts of police, as held in the case of STATE vs SUNIL, (2001) 1 SCC 652, should be presumed to be regularly performed, as argued by learned prosecutor. With the help of judgment in the case of STATE OF RAJASTHAN vs KISHORE, AIR 1996 SC 3035, learned prosecutor argued that mere irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case and trustworthy evidence cannot be cast aside to record acquittal.
45. On behalf of accused persons, it was argued that mandatory provisions of Section 41&42 NDPS Act have not been complied with, in so far as at D-3, Kailash Colony, Inspector Neelam Singh had neither any written information nor search warrant before conducting the house search, as such in view of law laid down in the case of ROY VD vs STATE KERALA, 2000 VIII AD (SC) 492, the entire search and seizure SC NO. 56/08 Page 32 of 101 pages 33 proceedings at D-3 Kailash Colony become illegal and cannot be relied upon. It was argued that no independent person from neighbourhood of D-3, Kailash Colony was joined during the house search, which is fatal to the prosecution. It was argued on behalf of accused that as reflected from evidence on record, D-3, Kailash Colony was not in exclusive possession of accused Abdullah and there is no evidence to connect accused Abdullah with the said house; since accused Abdullah was neither owner nor even tenant of the said house, alleged recovery of contraband from the said house cannot be imputed to accused Abdullah in view of law laid down in the case of OM PRAKASH @ BABA vs STATE OF RAJASTHAN, 2009 (2) DRUGS CASES (NARCOTICS) 9 (SC).
46. It was further argued on behalf of accused that arrest memos of accused persons do not reflect the time when even as per prosecution accused persons were apprehended and there being no distinction made in law between formal arrest and informal arrest, in view of law laid down in the case of SEHDEV vs STATE, 2009 (3) JCC SC NO. 56/08 Page 33 of 101 pages 34 (NARCOTICS)128, the arrest proceedings give rise to strong doubts about truthfulness of prosecution case.
47. It was also argued on behalf of accused that as reflected from testimony of PW14 he took out the degchies and the contraband from malkhana on 26.02.2000 without making any entry and this reflects that the tampering of case property cannot be ruled out. In this regard, defence placed reliance on the judgment of Hon'ble Supreme Court in the case of STATE OF RAJASTHAN vs DAULAT RAM, AIR 1980 SC 1341.
48. It was also argued by learned defence counsel that in order to ensure proper compliance with the provisions under Section 50 NDPS Act CBI ought to have joined some interpreter while explaining the rights to the accused and failure to do so is fatal.
49. Learned defence counsel also pointed out various contradictions, improbabilities and inconsistencies in statements of prosecution witnesses that create strong doubt about their truthfulness.
SC NO. 56/08 Page 34 of 101 pages 35
50. Learned amicus curiae appearing on behalf of accused Hazi Gul Khan argued that non examination of SP CBI who had allegedly received the secret information is fatal to the prosecution case in view of law laid down in the case of DIRECTORATE OF REVENUE vs MOHD. NISAR, 2008(1) JCC (NARCOTICS) 1 by Hon'ble Supreme Court of India.
51. Learned amicus curiae on the basis of extremely huge size of the recovered degchies argued that it is unbelievable that to bring such degchies a person would hire just a taxi since four degchies of this size cannot fit in a taxi.
52. Learned amicus curiae also pointed out various contradictions and improbabilities in the testimony of different witnesses including no action taken against the CBI team for slipping away of the supplier.
53. It was argued that so far as Hazi Gul Khan is concerned, the alleged recovery at D-3, Kailash Colony cannot be connected with him as even CBI case is that the said house was in occupation of accused Abdullah only and not both the accused.
SC NO. 56/08 Page 35 of 101 pages
36
54. Learned defence counsel also argued that
prosecution failed to prove that accused were in conscious possession of the degchies that allegedly contained heroin. Learned defence counsel also explained the contents of site plan Ex. PW4/E that reflect fabrication of the site plan and falsify the story of recovery of degchies.
55. With the help of testimony of prosecution witnesses including PW11 it was argued by the learned defence counsel that the entire exercise of weighing and sampling of the contraband was done in the absence of accused persons and as such the same cannot be used as a circumstance to bring conviction.
56. Per contra, learned Special Prosecutor CBI argued that absolute proof of any fact is never possible and court cannot ignore while appreciating evidence the time span between the occurrence and testimony in court that leads to fading memory, which in turn causes certain contradictions in the testimony of witnesses.
57. Learned Special Prosecutor, CBI placed reliance SC NO. 56/08 Page 36 of 101 pages 37 on notifications on record that empower officers of and above the rank of Inspector in SIU XI unit of CBI, the erstwhile CIU (Narcotics) of CBI and argued that there is no violation of Section 41/42 NDPS Act. Besides, the search at D- 3, Kailash Colony was conducted prior to sunset and in view of circumstances prevailing, it was not possible for Inspector Neelam Singh to run for search warrants. Even otherwise, search at D-3 Kailash Colony was conducted on directions of Sh. M.C. Sahni DSP, who himself was fully authorized to do so under order of the SP.
58. It was argued by learned prosecutor that public witness Sh. TD Dogra was requisitioned from the same locality of D-3 Kailash Colony and as such, it cannot be said that independent persons were not joined in the proceedings.
59. As regards provisions under Section 50 NDPS Act, it was argued by learned prosecutor that the said provisions are not even applicable since the search was not of person and as per CBI case also the recovery was from huge degchies, SC NO. 56/08 Page 37 of 101 pages 38 one of which was being loaded in the taxi while other three were lying on the ground.
60. Learned prosecutor argued that there is no apparent motive on the part of CBI to falsely implicate the accused persons and even otherwise in order to falsely implicate, CBI was not required to plant such a huge quantity of contraband. It was argued that as per evidence on record the seals after use were handed over to public witnesses, who filed the same during the course of their testimony in court, which absolutely rules out the scope for tampering.
61. As regards the plea of conscious possession learned prosecutor placed reliance on Section 54 NDPS Act that stipulates a presumption against the accused.
62. So far as the appreciation of evidence as regards irregularities or lapses during investigation is concerned, as rightly contended by learned prosecutor, the same per se cannot lead to acquittal. As observed in a plethora of judicial pronouncement, negligence or any lapse of investigating officer, which might be even deliberate and clandestine SC NO. 56/08 Page 38 of 101 pages 39 support of the investigating agency, cannot be allowed to be used by the accused to his advantage. But this principle is subject to exception, where the lapse in question is such that raises reasonable doubts as regards the very occurrence of the offence in question.
63. A distinction has to be kept in mind that unlike conventional offences enlisted under the Indian Penal Code, non conventional offences enlisted under special statutes like the present one wherein the trial mainly revolves around investigative procedures, stand on a different footing. The case law relied upon by prosecution in the cases of STATE vs SUNIL, (2001) 1 SCC 652; and STATE OF RAJASTHAN vs KISHORE, AIR 1996 SC 3035 are pertaining to conventional crimes of murder and rape, in which it was held by the Hon'ble Supreme Court that the lapses of investigation would not cast doubts on the trustworthy and reliable evidence that establishes the very commission of offence. But in cases of present nature, especially where the offence is in the form of possession of contraband, each lapse on the SC NO. 56/08 Page 39 of 101 pages 40 part of investigating machinery that would give rise to a doubt that the accused might not have been in possession of contraband would invite acquittal. Besides, NDPS Act is a penal statute that invades rights of an accused to a large extent as such, the protection granted by way of procedural safeguards under the Act have to be strictly adhered to.
64. As per case brought by CBI, on the basis of some source information, a raid was conducted opposite Filmistan Cinema in which the accused persons were apprehended while loading in a taxi a degchi containing heroin in false cavity with three more similar degchies lying near the wall; weight of each of the degchi was found to be approximately 25kg and total weight of heroin recovered from all the four degchies in that raid came out to be 22.700kg; the supplier of the contraband was able to escape; on the basis of telephonic instructions conveyed by the Incharge of the raiding team at Filmistan spot, another continuing raid was conducted by a standby team of CBI officials at D-3, Kailash Colony, residence of accused Abdullah, in which 575 grams of charas SC NO. 56/08 Page 40 of 101 pages 41 from an almirah and 10 grams of heroin from a degchi were recovered. As per CBI, recovery of contraband effected at both the places is a part of same occurrence and has to be read against both the accused persons. Witnesses pertaining to the first recovery at Filmistan spot are the public witness PW4 Sh. Shyam Lal, Incharge of the raiding team at Filmistan spot PW7 Sh. MC Sahani DSP CBI, taxi driver PW9 Sh. Uttam Chand and member of the raiding team PW11 Inspector Ram Kanwar. Witnesses pertaining to the second recovery are the public witness PW5 Sh. TD Dogra, Incharge of the raiding team at D-3, Kailash Colony PW6 Inspector Neelam Singh and member of the raiding team PW12 Sh. KC Joshi DSP CBI. PW1 to PW3 are chemical experts from CRCL, PW8 is a formal witness from office of SP CBI who proved the SIR Ex. PW8/A, PW10 is Inspector Vijay Kumar who conducted raid in the room of accused Hazi Gul Khan but found nothing incriminating and PW13 is a Nodal Officer of Bharti Airtel who brought on record customer call detail report. PW14 Sh. H. S. Chopra DSP CBI is the investigating officer.
SC NO. 56/08 Page 41 of 101 pages 42
65. What is to be seen is as to whether CBI has been able to establish beyond reasonable doubt the conduct of raid at both or either of the spots and recovery of contraband from possession of accused persons as well as compliance of all the mandatory provisions of the Act.
66. So far as the plea of conscious possession is concerned, learned defence counsel argued that prosecution failed to prove that accused persons apprehended at Filmistan spot were in conscious possession of the contraband. Learned counsel pointed out that as per testimony of witnesses of Filmistan spot, on being asked about the degchies, both the accused persons remained quiet which shows that they were not aware about contraband stored in the degchies. Relying upon judgments in the cases of STATE OF PUNJAB vs BALKAR SINGH, 2004 (2) JCC 724; BHAGWAN DAS vs STATE OF HIMACHAL PRADESH, 2002 (2) CLR 558; and ISMAIL KHAN vs STATE OF GUJARAT, 2000 SCC (Cri) 1241 learned defence counsel argued that prosecution failed to prove that possession of the contraband SC NO. 56/08 Page 42 of 101 pages 43 if any with the accused persons was a conscious possession. On this aspect, learned CBI prosecutor placed reliance on Section 54 NDPS Act and argued that there is a presumption of conscious possession against the accused persons.
67. In the case of BALKAR SINGH, accused were found simply sitting over the bags containing poppy husk in an open field; in the case of BHAGWAN DAS, the accused persons were sitting on a roadside with a bag found lying between them; and in the case of ISMAIL KHAN the accused was simply present in a room which was in possession of another person, not an accused in the case and from that room the contraband stored in gunny bag was recovered. In all these cases, Hon'ble Supreme Court and Hon'ble Himachal Pradesh High Court held that in order to establish conscious possession, prosecution was required to adduce some evidence to show that accused dealt with the material in any manner and mere presence of accused near the contraband does not mean that he was conscious of being in possession of the same.
SC NO. 56/08 Page 43 of 101 pages 44
68. But the present case stands on totally different footing. As per prosecution, accused were not merely present in the vicinity of degchies containing the contraband; the accused persons physically lifted one of the degchies and placed the same in the dicky of the taxi brought by them and in that process they were apprehended.
69. In the case of STATE OF HARYANA vs SANDEEP KUMAR, 2009 CrLJ 3507 the accused persons were found sitting on the gunny bags containing poppy husk that was being transported in a vehicle (in contrast with the case of BALKAR SINGH where the bags of poppy husk were lying in open field) and a division bench of Hon'ble Punjab and Haryana High Court held that once possession of the accused and their control over the contraband was proved by establishing that the same was being transported by the accused, the statutory presumption under Section 54&35 of the Act operated against them and it was for them to rebut the presumption by leading cogent and convincing evidence.
70. Once it is proved that accused persons in the SC NO. 56/08 Page 44 of 101 pages 45 present case were handling the contraband in degchies for being transported, as alleged by CBI, then statutory presumption would operate against them that they were in conscious possession of heroin. To put it differently, the issue of possession being conscious or otherwise would be preceded by proof that the accused persons were found handling the degchies containing contraband under circumstances as alleged by CBI. What is to be seen first is as to whether CBI has been able to prove that at the time of raid at Filmistan spot, the accused persons were found handling the contraband and thereby were in possession thereof.
71. As reflected from record, during final arguments, in order to appreciate the evidence which was recorded before my learned predecessor, I summoned and examined the said degchies in court on 11.12.09. The said degchies, each weighing approximately 25kg are huge in size and as rightly argued by learned defence counsel, it is not possible to fit in even two degchies in the dicky of an ambassador taxi. Since there were already four occupants of the taxi, being SC NO. 56/08 Page 45 of 101 pages 46 both the accused, the driver and the helper of taxi, it also cannot be said that the degchies would have been accommodated inside the taxi or even in the leg space in view of extremely huge size of the same. Size of each of these degchies was described by PW11 Inspector Ram Kanwar as approximately 2.5 to 3 feet in height with a diameter of 1.5 to 2 feet and each with a capacity to cook food for 70-80 people.
72. Even the Incharge of the raiding team at Filmistan spot PW7 specifically stated in his cross examination that he was doubtful if the four degchies could be accommodated in the dicky of the car; Inspector Ram Kanwar PW11, a member of the raiding team also stated that four such degchies cannot fit into dicky of the ambassador car.
73. It is also nobody's case that accused had arranged for some additional vehicle to transport the four degchies from Filmistan spot. Rather, as per CBI the accused persons had even started loading one degchi in dicky of the taxi when they were apprehended.
74. Argument of learned prosecutor that prosecution SC NO. 56/08 Page 46 of 101 pages 47 is not under a duty to explain the foolishness of accused persons in trying to transport such huge degchies in a single taxi fails to convince. For, such a foolishness and that too on the part of such accused persons who deal in such a huge quantity of contraband being implausible, casts doubts about the very occurrence itself. As rightly argued by the learned defence counsel, trial court cannot presume any explanation that would go against the accused and in the absence of any evidence, it cannot be assumed by this court that accused persons would have arranged for some additional transport.
75. It also appears unnatural that a drug peddler would carry the contraband in such huge vessels to be delivered and that too at such a crowded place where such big vessels could not miss to be noticed. Nothing prevented the supplier to deliver the contraband in small packets or to deliver the contraband at the residence of accused itself.
76. Another circumstance that raises many unanswered questions in prosecution case and appears quite SC NO. 56/08 Page 47 of 101 pages 48 unnatural is the escape of the alleged supplier and that too quite after his having been noticed by the raiding team at Filmistan spot prior to arrival of the accused persons.
77. As stated by PW7, the Incharge of the raiding team at Filmistan spot, members of the raiding party including Inspector Vijay Shukla who had taken position with him were instructed by him to catch the supplier, but despite the supplier having escaped, PW7 did not seek any written explanation in that regard from Inspector Vijay Shukla, nor did PW7 inform this fact to his senior officers in writing; admittedly no departmental action was taken against any member of the raiding team for allowing the alleged supplier slip away.
78. As per public witnessPW4, the alleged supplier wearing blue cap was standing hardly 5-7 feet away from him; contrary to the Incharge of the raiding team at Filmistan spot, this witness specifically stated having not heard the Incharge of the raiding team at Filmistan spot directing other members to keep a watch on the alleged supplier and SC NO. 56/08 Page 48 of 101 pages 49 instructing that the said person had to be arrested.
79. As stated by PW7, there was a time gap of more than 10 minutes between identification of the alleged supplier by the secret informer and apprehending the accused persons. As per PW4, there were eleven members of this raiding team and all of them kept standing near the DVB transformer where the Incharge PW7 was giving directions to the members of the team for positions to be taken by them. It appears quite unnatural that having noticed such a large group arrive at the spot and directions being given by one person, the supplier and that too of such a big level would not get suspicious or alert and abort the entire exercise by informing the accused persons who were on their way. Rather, as per PW4 the alleged supplier did not even try to run away and PW4 did not see anyone chasing the supplier; even the Incharge of the team PW7 stated in his cross examination having not seen the alleged supplier run away from spot.
80. Not just the arrival and presence of such a large SC NO. 56/08 Page 49 of 101 pages 50 group on the spot for more than 10 minutes, surprisingly even presence of police officials on the spot did not alert the alleged supplier and this also sounds quite improbable. As per PW4, the local police even enquired as to why so many people had gathered there; even then the alleged supplier would not get alert.
81. Not only this, the Incharge of the raiding team at Filmistan spot PW7 in his testimony tried to improve upon the prosecution case by inserting a statement that there was some marriage ceremony going on, taking advantage whereof the supplier slipped away. None of the other prosecution witnesses or documents including statement of PW7 under Section 161 CrPC even whispered about the alleged marriage. Any improvement, especially an improvement tried by the Incharge of the raiding team that too in such a case cannot be brushed aside lightly as a mere unintended lapse of the investigator.
82. As described above, in order to sanctify the raid and recovery of contraband, CBI also places reliance on the SC NO. 56/08 Page 50 of 101 pages 51 fact that two Canara Bank employees, who are independent public persons namely PW4 Sh. Shyam Lal and one Sh. P.K. Batra were joined in the proceedings at Filmistan spot. But PW11 Inspector Ram Kanwar, a member of the raiding team categorically stated in contradiction to the entire prosecution case that only one independent witness was present with them throughout the raid; either PW11 was actually not present on the spot or CBI coined a fictitious name PK Batra. Non production of any person named Sh. PK Batra into the box lends credence to the version of PW11 that there was only one independent witness during the proceedings. Of course, joining only one public witness in the proceedings does not vitiate the same as there is no legal requirement of minimum number of independent witnesses in such raids. But this vital contradiction between the testimony of PW11 Inspector Ram Kanwar coupled with non production of Sh. PK Batra in trial and the entire prosecution case does cast doubts as regards truthfulness of the CBI version of raid and recovery.
SC NO. 56/08 Page 51 of 101 pages 52
83. In the case of NOOR AGA vs STATE OF PUNJAB, VII (2008) SLT 390, Hon'ble Supreme Court observed thus:
"146. .............. whereas KK Gupta was examined as PW2, the said Mahender Singh and Yusuf were not examined by the prosecution. There is nothing on record to show why they could not be produced. Their status in life or location had also not been stated. It is also not known as to why only the said two witnesses were sent for. The fact remains that they had not been examined.
Although, examination of independent witnesses in all situations may not be imperative, if they were material, in terms of Section 114 (e) of the Evidence Act, an adverse inference could be drawn.
147. In a case of this nature, where there are large number of discrepancies, the appellant has been gravely prejudiced by their non examination. It is true that what matters is the quality of the evidence and not the quantity thereof but in a case of this nature where procedural safeguards were required to be strictly complied with, it is for the SC NO. 56/08 Page 52 of 101 pages 53 prosecution to explain why the material witnesses had not been examined. Matter might have been different if the evidence of the investigating officer who recovered the material objects was found to be convincing. The statement of the investigating officer is wholly unsubstantiated. There is nothing on record to show that the said witnesses had turned hostile. Examination of the independent witnesses was all the more necessary in as much as there exists a large number of discrepancies in the statements of official witnesses in regard to search and seizure..........." (emphasis supplied.)
84. Even the independent public witness Sh. Shyam Lal PW4 fails to inspire confidence, as his testimony suffers with various contradictions with the overall prosecution case.
85. As per PW4, a welded patch was visible at the bottom of all the four degchies while as per prosecution case, there was no welded patch on the degchi mark C. Not only this, on being shown the broken metal piece Ex. P27 of SC NO. 56/08 Page 53 of 101 pages 54 degchi Mark C, PW4 stated that the same was the metal patch removed from degchi Mark C, which is contrary to the recovery memo Ex. PW4/K that there was no patch in degchi Mark C. Not just this, in cross examination, when PW4 repeatedly stated that degchi mark C also had a welded patch, his attention was drawn to the seizure memo Ex. PW4/K where it is specifically written that on degchi Mark C the metal patch could not be located; despite having said that he had signed the seizure memo after reading the same, PW4 did not come up with any explanation for this contradiction.
86. Rather, PW4 came up with yet another vital contradiction by stating that Ex. P27 was cut out of degchi mark C with the help of a chisel and hammer that was already with the CBI team in a plastic bag seen by him in the gypsy though not checked, which is contrary to the testimony of the Incharge of the raiding team at Filmistan spot PW7 that the chisel and hammer for removing the metal patches was arranged on the spot itself. PW7 stated that the hammer and chisel were arranged from a scooter mechanic near the spot;
SC NO. 56/08 Page 54 of 101 pages 55 but the said mechanic was not examined at any stage in order to clarify as to whether PW4 or PW7 has given true version. Further, PW4 frankly stated in cross examination that since he did not open that plastic bag and since Mr. Sahani had not asked him to check the same, he could not say if the contraband was lying in that bag itself.
87. As per PW4 each degchi was weighed after collecting the weighing scale and weights from a nearby shop Aggarwal Agencies, while as per entire prosecution case the weighing scale was not collected from Aggarwal Agencies, rather the entire exercise of weighing itself was conducted in the shop of Aggarwal Agencies.
88. In his initial chief examination, PW4 stated that from degchies marked A,B and C white powder and from degchi mark D brown powder was recovered, while in his subsequent chief examination itself, contradicting himself PW4 stated that from degchies Mark A and B light brown powder, from degchi Mark C white powder and from degchi Mark D brown powder was recovered. In his cross SC NO. 56/08 Page 55 of 101 pages 56 examination, PW4 clearly stated that he can distinguish between white, light brown, brown, off white and cream colours.
89. In his cross examination PW4 stated that he did not know Sh. Sahani DSP CBI and found out his room in the CBI office after contacting the reception, while as per PW7, he had sent a CBI official to Canara Bank, who accompanied the public witnesses to his office.
90. In his cross examination, PW4 stated that Incharge of the raiding team at Filmistan spot Sh. Sahani was carrying his rubber stamp on the spot and used the same on a few documents, while Sh. Sahani PW7 in his cross examination denied having put his stamp on any paper prepared on the spot.
91. Contrary to the siteplan Ex. PW4/E which depicts the taxi of accused persons parked on the road, PW4 in his cross examination stated that the taxi was parked on the pavement.
92. In his cross examination, PW4 stated that he had SC NO. 56/08 Page 56 of 101 pages 57 signed his statement that was recorded by CBI in April 2000; but on being directed to produce the signed statement of this witness, learned prosecutor submitted that there is no such signed statement of PW4. On further cross examination, PW4 went on to state that even a copy of that signed statement had been given to him by the CBI and he produced that statement dated 11.04.2000 which was taken on record as Ex. PW4/DB. But in the same breath, after looking at that statement, PW4 admitted that the same does not bear his signatures. This flipflop conduct of PW4 in the light of numerous contradictions described above as well as hereafter, his testimony fails to inspire confidence.
93. Not only the contradictions in the testimony of public witness PW4 as described above, this witness also appears to be a tutored witness. In his cross examination PW4 admitted that normally CBI calls witnesses from his office, though in his bank duties his association in CBI raids is not included. PW4 admitted in his cross examination that he always read his statement Ex.PW4/DB that was recorded SC NO. 56/08 Page 57 of 101 pages 58 by CBI on 11.04.2000, prior to stepping into the box on the day of recording his statement. Not only reading the statement on every date prior to stepping into the box, which could be also explained as refreshing the memory, PW4 went a step further and even improvised his statement. PW4 stated that when they left for raid, the testing kit, besides weight and balances were lying in the gypsy, which facts are not mentioned in his statement Ex.PW4/DA under Section 161 CrPC with which he was confronted before my learned predecessor.
94. Further, PW4 was working at Canara Bank in the commercial complex near Mool Chand Hospital, Lajpat Nagar, New Delhi. On being called upon to explain as to why some official from number of government offices in CGO Complex near office of CBI were not called and instead, an official from a far away place Mool Chand Hospital area was preferred, the Incharge of the raiding team at Filmistan spot PW7 stated that there was no specific reason for this. PW7 admitted having not sent requisition request to any of the SC NO. 56/08 Page 58 of 101 pages 59 government offices in CGO Complex. PW7 further stated that he was not aware if in any other case Canara Bank had been requested to send some witness and that nobody had told him address of the AGM, Canara Bank. Question arises as to how PW7 was certain that his request for sending some witness would be acceded to by the bank. And the answer is in testimony of PW4 who admitted that normally CBI calls witnesses from his office.
95. It also remains unexplained as to why none of the police officials present on the spot were made or even requested to join the proceedings. The said police officials, one of whom was of the rank of Inspector would not have turned hostile to prosecution in court, which is generally the apprehension in the mind of investigators while looking for some independent witness. As reflected from testimony of PW7, on 23.02.2000, that is a day prior to the day of raid and recovery he visited the spot in the afternoon alongwith two- three officers as well as the secret informer and even planned strategic point of nakabandi. Despite so much of exercise, SC NO. 56/08 Page 59 of 101 pages 60 instead of trying to join some independent witness from some nearby government office, government official PW4 was preferred from a far away place and this unexplained preference in the light of above noted testimony of PW4 becomes significant in appreciating the evidence on record.
96. Testimony of the other member of the raiding team namely Inspector Ram Kanwar PW11 also suffers certain vital contradictions with the overall prosecution case. As described above, PW11 Inspector Ram Kanwar who was a member of the raiding team categorically stated that throughout the raid only one independent witness was with them, contrary to the CBI claim of two independent witnesses. PW4 is the only independent witness brought before the court.
97. Contrary to the entire prosecution case, PW11 categorically stated that there were only two persons located at the spot as accused and there was no third person located on the spot who could be said to be involved in any unlawful activity.
SC NO. 56/08 Page 60 of 101 pages 61
98. Not just this, contrary to the entire prosecution case, PW11 stated that he did not see any degchi lying on the spot or nearby; PW11 went on to state that the degchies were brought by the accused persons. And there was no re- examination of PW11 by CBI.
99. Testimony of PW11 suffers with not just the vital contradictions described above, the overall testimony also shows that throughout cross examination, PW11 was totally evasive, expressing his inability to remember on so many vital aspects.
100. Testimony of even the Incharge of the raiding team at Filmistan spot PW7 Sh. MC Sahani, DSP CBI is riddled with inconsistencies and contradictions.
101. In his chief examination PW7 stated that after they had kept one degchi in dicky of the car when the accused persons were in the process of lifting the second degchi, he overpowered them, while as per recovery memo Ex. PW4/K and testimony of PW4, the accused persons were overpowered immediately after the first degchi was kept in SC NO. 56/08 Page 61 of 101 pages 62 the dicky. As per PW7 the accused persons were overpowered when they were lifting the second degchi from near wall of the DVB transformer opposite Filmistan cinema, while as per PW4 the accused persons were overpowered near the taxi after they had placed the first degchi in the dicky. Besides, as described above there are many more contradictions between the testimony of PW7 and PW4.
102. The Incharge of the raiding team at Filmistan spot PW7 specifically stated in his chief examination that he sent an authorisation through Ct. Raju from the spot to Inspector Neelam Singh for carrying out search at D-3 Kailash Colony. But no such authorisation or even a copy thereof was brought on record by prosecution. Rather, the public witness Sh. TD Dogra PW5 who allegedly witnessed the proceedings at D-3, Kailash Colony stated in his chief examination itself that the CBI officials were not carrying any search warrant. PW6 Inspector Neelam Singh stated that not only they had written search permission, the same was even shown to occupants of D-3, Kailash Colony. The said Ct. Raju through whom the SC NO. 56/08 Page 62 of 101 pages 63 written search authorization was allegedly sent to D-3, Kailash Colony was never produced in the box; rather the Incharge of the raiding team at Filmistan spot PW7 stated that he did not even know as to whether Ct. Raju is a witness in this case or not.
103. In his chief examination, the Incharge of the raiding team at Filmistan spot PW7 clearly stated that on 23.02.2000 he visited the spot informed alongwith 2-3 CBI officers and the secret informer and even planned the strategic points of nakabandi. But in cross examination, contradicting himself PW7 stated that on 23.02.2000 the informer did not accompany him to the spot and on 23.02.2000 he did not know the particular spot where the contraband was to be delivered.
104. As described above, escape of the alleged supplier from the spot in this case is a significant aspect in the sense that despite planning even nakabandi a day prior to the raid, nobody could apprehend the supplier. PW7 stated that he was at a distance of about 15-20 meters from the supplier and SC NO. 56/08 Page 63 of 101 pages 64 accused persons arrived at the spot after about 10 minutes. But despite having observed the alleged supplier for about 10 minutes, PW7 could not give any description of the supplier except that he was wearing a cap; rather PW7 stated that now it is very difficult for him to recognise the supplier and admitted having not given any description of the supplier in even the recovery memo.
105. PW7 in cross examination stated that in the information received by him on 23.02.2000 there was a mention of huge cooking vessels (degchies) but he did not take a big weighing machine to the spot since he had to weigh only the heroin and not the degchies. It remains unexplained as to what made the Incharge of the raiding team at Filmistan spot change his mind and get even the degchies weighed in the shop of M/s Aggarwal Agencies. Admittedly, nobody from Aggarwal Agencies was examined during trial or even investigation.
106. Even as regards weighing the heroin, PW7 stated that the weighing was done with the weighing scale and SC NO. 56/08 Page 64 of 101 pages 65 weights of Aggarwal Agencies, which is contrary to statement of PW4 that the raiding team took along a takri like weighing scale and 6-7 weights of 2kg, 1 kg and 500grams.
107. In his cross examination, PW7 stated that he did not put his stamp on any paper prepared on the spot including the notice under Section 50 NDPS Act and personal search cum arrest memo; but on being shown the documents recovery memo Ex. PW4/K, personal search cum arrest memos Ex. PW4/H&J and specimen impression of brass seal Ex. PW4/F, PW7 admitted that these documents bear his stamp. Despite having seen the documents, PW7 did not come up with any explanation as regards presence of his stamp on only some of the documents allegedly prepared on the spot. Either the notice under Section 50 NDPS Act which does not bear stamp of PW7 or the remaining documents described above which bear the stamp were fabricated in CBI office or the Incharge of the raiding team at Filmistan spot was not even aware about the proceedings being conducted on the spot.
SC NO. 56/08 Page 65 of 101 pages 66
108. Another prosecution witness related to the Filmistan spot is taxi driver Uttam Chand PW9, who also came up with entirely new facts as well as improvement in his statement. In his chief examination, PW9 stated that on 24.02.2000 accused Abdullah had come to Sh. Jitender Singh owner of the taxi stand to book a taxi; but on being confronted with his statement Ex. PW9/DA the same was not found recorded. Similarly, PW9 also improved upon his statement Ex. PW9/DA by adding that the said taxi was booked for 1:20pm.
109. PW9 came up with a totally new version in his chief examination that accused persons were handcuffed and that after some time correspondents from Aaj Tak News Channel reached the spot and took photographs of accused persons. But in his cross examination conducted after more than one year, PW9 stated that his earlier statement as regards arrival of Aaj Tak team and taking of photographs of accused was wrong. Admitting that he knew it to be an offence to depose falsely, PW9 denied the suggestion that his SC NO. 56/08 Page 66 of 101 pages 67 subsequent statement of cross examination in this regard was a lie spoken at behest of IO. I find substance in the argument of defence that had this chief examination statement not been retracted by PW9, defence side could have summoned a report from Aaj Tak channel to show that nothing took place on the spot in the manner as alleged by the prosecution and it also shows that PW9 was under
influence of CBI.
110. Further, PW9 stated that the original receipt (titled Duty Voucher) from the receipt book Ex. PW9/A was to be given to the passengers only in the end at the time of payment. But he admitted that all the original receipts in the receipt book Ex. PW9/A which are even prior to receipt Ex. PW9/B (concerning the accused persons) are intact in the receipt book itself. If the original duty voucher/receipts used to be handed over to customers upon payment, it remains unexplained as to how the original receipts/duty vouchers for customers prior to the accused persons remain in the original receipt/voucher book Ex. PW9/A. It shows that the duty SC NO. 56/08 Page 67 of 101 pages 68 voucher book Ex. PW9/A is a fabricated document.
111. Another new circumstance inserted by PW9 is that some police officials (members of the raiding team) took away the accused and the degchi but he did not know where the accused and degchi were taken and after 15 minutes when Mr. Sahani returned to the spot, accused were not with him. PW9 was not reexamined to clarify this new fact which does not fit in the overall factual matrix brought by CBI.
112. It also remains unexplained as to why the taxi driver Uttam Chand and/or his cleaner Ram Singh were not joined in the proceedings conducted on the spot; it is nobody's case that CBI suspected involvement of these two persons also with the accused persons.
113. Thence, there are so many improbabilities, inconsistencies and contradictions in the evidence as regards the proceedings conducted at Filmistan spot.
114. Coming to the second recovery at D-3 Kailash Colony, as described above case of CBI is that a written authorisation to search house no. D-3 Kailash Colony was SC NO. 56/08 Page 68 of 101 pages 69 sent by Sh. Sahani DSP CBI through Ct. Raju to Inspector Neelam Singh PW6, but neither the said authorisation has been brought on record nor Ct. Raju was examined at any stage. Rather, the public witness PW5 Sh. TD Dogra stated that the CBI officials were not carrying any search warrant.
115. There are certain other major contradictions in the testimony of different witnesses related to the proceedings at D-3, Kailash Colony also.
116. PW5 Sh. TD Dogra in his chief examination described the charas recovered from D-3 Kailash Colony as brown colour powder while on being opened during trial the charas was found to be black solid material in the form of bars (batties); after seeing the material in court, PW5 stated that what was recovered was black bars of charas and not powder, but PW5 failed to explain as to under what circumstances he had described the charas earlier as brown powder. Similarly, PW13 Sh. KC Joshi DSP CBI described the charas allegedly recovered from D-3 Kailash Colony as dark brown powder which is contrary to the actual form of charas SC NO. 56/08 Page 69 of 101 pages 70 produced in court as described above. PW6 Inspector Neelam Singh in her testimony described the charas as simply black/dark brown material.
117. As per PW5 Sh. TD Dogra the charas packet was recovered from middle portion of the almirah while as per PW6 Inspector Neelam Singh the charas packet was recovered from bottom portion of the almirah. As per PW12 Sh. KC Joshi DSP there were 4-5 partition slabs in the almirah and the contraband was recovered from second or third slab from bottom.
118. As regards the heroin allegedly recovered from D- 3, Kailash Colony also there are vital contradictions. As per PW5 Sh. TD Dogra, the heroin was recovered from a patila kept in kitchen; as per PW6 Inspector Neelam Singh, it was recovered from a store room; as per PW12 Sh. KC Joshi DSP, it was recovered from a room in the rear side of the house. PW5 Sh. TD Dogra even clarified in his cross examination that kitchen and store were two separate rooms in the said house. Admittedly, the exact room of D-3, Kailash Colony SC NO. 56/08 Page 70 of 101 pages 71 from where patila containing heroin was recovered has not been depicted in site plan Ex.PW5/C; rather the site plan Ex.PW5/C is totally devoid of any particulars.
119. As regards manner of recovery of heroin at D-3, Kailash Colony also there are major contradictions. As per PW5 Sh. TD Dogra, upon hearing some sound on shaking the patila CBI officials inserted a knife in the hole at bottom of patila and then the powder came out; as per PW6 Inspector Neelam Singh, the powder was already coming out of the hole of the degchi; and as per PW12 Sh. KC Joshi DSP the powder was already found available near the degchi.
120. PW5 stated in chief examination that the heroin recovered at D-3, Kailash Colony was 20grams white powder, but on being shown the brown powder Ex. P14&P35 PW5 stated that it is this brown powder that was recovered from patila; as per PW6 the said heroin was 10grams brown powder; PW12 did not disclose the form or weight of heroin in his chief examination but in his cross examination PW12 described weight of the said heroin as 100grams; the recovery SC NO. 56/08 Page 71 of 101 pages 72 memo Ex. PW5/A describes the heroin recovered from D-3 Kailash Colony as white powder. PW5 Sh. TD Dogra stated in cross examination that he can distinguish between white, brown and black as well as powder and semi solid forms. None of the witnesses were reexamined to clarify this difference as regards form and weight of heroin, allegedly recovered at D-3 Kailash Colony.
121. PW5 Sh. TD Dogra as well as PW12 Sh. KC Joshi DSP stated that the charas packet was found in an almirah of a room in D-3 Kailash Colony but PW6 Inspector Neelam Singh added that the charas packet was recovered lying under the clothes in the almirah. In cross examination PW6 categorically stated that in her statement under Section 161 CrPC she had mentioned about recovery of the charas packet from under the clothes in the almirah; but on being confronted with her statement Ex. PW6/DA it was found that there was no mention about recovery from under the clothes. This improvement, that too by PW6 who was leading the raiding team at D-3 Kailash Colony cannot be ignored.
SC NO. 56/08 Page 72 of 101 pages 73
122. There is contradiction even as regards the NCB test memo form Ex. PW5/D. As per PW5 Sh. TD Dogra there was only one printed form while as per PW6 Inspector Neelam Singh, the NCB form was in triplicate.
123. Falling back to the proceedings at Filmistan spot, the alleged recovery of heroin being from the degchies and not from person of the accused, provisions under Section 50 NDPS Act are not attracted but the manner in which the compliance of Section 50 of the Act was done would be relevant to be looked into in order to arrive at the finding as regards truthfulness of the prosecution version of raid and recovery.
124. Admittedly, despite the fact that CBI had a specific source information that delivery of the contraband would be in huge cooking vessels and by the time notice under Section 50 NDPS Act was served on the accused persons, search of the degchies had not taken place. Rather, as per PW7 Sh. MC Sahani DSP even the degchi kept in the dicky of the taxi was unloaded subsequent to the service of SC NO. 56/08 Page 73 of 101 pages 74 notice under Section 50 NDPS Act and reply thereto. Despite that there is no mention of degchies in the notices Ex. PW4/A&B. It is also nobody's case that the notices Ex. PW4/A&B had been issued for personal search of accused persons and not for search of the degchies so there is no mention of degchies in the notices. Rather, personal search of accused persons was not even taken till their arrest. It remains unexplained as to why notices under Section 50 NDPS Act were served if only degchies (which do not find mention in the notices) had to be searched and person of accused (which finds mention in the notices) had not to be searched.
125. Further, not just notices Ex. PW4/A&B under Section 50 NDPS Act but even replies thereto submitted by both the accused persons are exactly same; both the replies start from top of the reverse side of notice and contents thereof are same verbatim "ab to pakde gaye hain. ab dusre adhikari ke pass kya jana hai. talashi aap he kar le". Even the first line of certification of witnesses under these replies is SC NO. 56/08 Page 74 of 101 pages 75 same to such an extent that the word "hum" in both the certifications was first written and then struck off. This kind of similarity also creates a doubt that both these notices and replies are fabricated documents. And the doubt becomes all the more strong in view of statement of PW7 Sh. MC Sahni in the cross examination that the two accused had given separate reply to the notice.
126. Further, the certification of witnesses on the notices reflect that notice was read over and explained to accused Abdullah while in the case of Hazi Gul Khan, the notice was explained to the accused by co-accused Abdullah. Accused Hazi Gul Khan being an Afghan national and not conversant with Hindi, admittedly no interpreter was called to explain the notice to him. Even as regards accused Abdullah, there is nothing on record to show that he was conversant with Afghani language.
127. Even the difficult Hindi expressions like "up police adhikshak" and "rajpatrit adhikari" used in the notices were not explained to either of the accused persons SC NO. 56/08 Page 75 of 101 pages 76 as reflected from the certification of witnesses on these notices under Section 50 NDPS Act.
128. In the case of SAID AGA vs CUSTOMS, Crl.A. 44/99 decided on 14.01.03 by Hon'ble Mr. Justice R.C. Chopra, the Delhi High Court referred to the significance of an interpreter for valid compliance of Section 50 of the Act, where the accused is a foreigner, holding the same to be a vital link.
129. Another unnatural conduct that cannot miss to be noticed is that while the recovery memo and other documents including receipt of seal, site plan, personal search cum arrest memo etc. allegedly prepared at the spot are in English but the notices Ex. PW4/A&B are the only documents allegedly prepared on the spot that are in Hindi. It remains unexplained as to under what conditions notices were prepared in Hindi while rest of the paper work was in English.
130. As described above, unlike the recovery memo Ex. PW4/K, personal search cum arrest memos Ex. PW4/H&J SC NO. 56/08 Page 76 of 101 pages 77 and specimen seal Ex. PW4/F, notices under Section 50 NDPS Act do not bear rubber stamp of PW7 Sh. MC Sahani, which would show that notices are fabricated documents.
131. As discussed above, in the present case it is not the technicality of compliance or otherwise of the mandatory provision under Section 50 NDPS Act that is relevant but circumstances pertaining to the said compliance are too significant giving rise to doubts of fabrication, which in turn would cast doubts as regards truthfulness of prosecution version.
132. Even the siteplan Ex. PW4/E of Filmistan spot is the significant document of CBI that would create strong doubts of fabrication. Like notices under Section 50 NDPS Act and unlike rest of the documents allegedly prepared on the spot, siteplan Ex. PW4/E also does not bear rubber stamp of Sh. MC Sahani, DSP. Not only this, a perusal of siteplan Ex. PW4/E would show that initially a siteplan was prepared describing various spots A to J as regards different positions, which were followed by signatures and description of Sh. MC SC NO. 56/08 Page 77 of 101 pages 78 Sahani; exactly under spot J comes the description of Sh. MC Sahani; but thereafter by the side of that description, position of degchies and supplier has been described. A bare perusal of siteplan Ex. PW4/E would show that positions of degchies and supplier were subsequently added, and most significantly instead of alphabetical order from A to J, positions of degchies and supplier were described as not K and L but Y and Z which also shows lack of continuity and is a pointer towards fabrication. Besides, the siteplan Ex. PW4/E shows all the four degchies lying near the wall of transformer while as per CBI case one degchi had been shifted to the dicky; and if the siteplan represents the stage when the degchi from dicky had been shifted to the place where other degchies were lying, then at that stage the supplier was not there so his presence is wrongly depicted.
133. PW11 Inspector Ram Kanwar, a member of the raiding team at Filmistan spot deposed in his cross examination that the contraband was taken by members of the team to the shop of Aggarwal Agency for weighing and SC NO. 56/08 Page 78 of 101 pages 79 drawing of samples while he stayed outside alongwith the accused persons. In the same breath PW11 stated that samples were taken outside the shop and inside the shop of Aggarwal Agency only weighing was done. There is no re- examination on this aspect. The weighing done in the absence of accused persons cannot be read as a circumstance to bring conviction on them.
134. Another vital feature is the circumstances related to arrest of the accused persons. As per overall case of CBI, it is at about 03:10pm that accused persons were apprehended at Filmistan spot. But the arrest memos Ex.PW4/H&J reflect time of arrest of accused persons as 05:00pm. In the case of SEHDEV vs STATE, 2009 (3) JCC (NARCOTICS) 128 Hon'ble Delhi High Court, observing that the concept of informal arrest as contrasted with formal arrest is not envisaged under the CrPC or the NDPS Act, held that such an arrest memo indicating time of arrest different from time of apprehending the accused, creates considerable doubt as regards time of arrest.
SC NO. 56/08 Page 79 of 101 pages 80
135. Ex.PW7/4 is the intimation about arrest, bearing some initials by the side of name Mohd. Basir written by Sh. MC Sahni. It is stated in this document that the accused persons would be taken to CBI office, which means the document was apparently prepared at Filmistan spot; admittedly Mohd. Basir was not present on the spot. There is no evidence as to how this intimation of arrest was delivered to Mohd. Basir. Statement of Mohd. Basir even under Section 161 CrPC was not recorded in this regard. As per PW7, this intimation was delivered by Ct. Raju but neither Ct. Raju was examined at any stage nor even Ex.PW7/4 bears signatures of Ct. Raju as admitted by PW7 in his cross examination.
136. Further, PW7 Sh. MC Sahni DSP stated in his cross examination that in the arrest memo height of accused persons was recorded on the basis of his visual assessment and admitted that normally the height is assessed in feet and inches. But the arrest memos Ex.PW4/H&J describe height of accused persons in centimeters and that too not in round figures, in the sense that height of Hazi Gul Khan is recorded SC NO. 56/08 Page 80 of 101 pages 81 in his arrest memo as 180cm while that of Abdullah is recorded in his arrest memo as 176cm. This lends credence to the defence argument, which was even suggested in cross examination of PW7, that arrest memos were prepared after taking physical measurements of accused persons in CBI office.
137. I do not agree with argument of learned prosecutor that the discrepancies of arrest do not hit at roots of the case. In my considered view, if the evidence on record creates doubts as regards the manner of arrest, it is significant pointer to false involvement, that too in case of the present nature.
138. Falling back to the proceedings conducted at D-3, Kailash Colony, as described above one of the major contentions of defence is infringement of the provisions under Section 41&42 of the Act, which would make the entire proceedings of house search followed by alleged recovery illegal. It was argued by learned defence counsel that no search authorisation was obtained by Inspector Neelam SC NO. 56/08 Page 81 of 101 pages 82 Singh prior to conducting search of D-3, Kailash Colony. Per contra learned CBI prosecutor argued that search warrant or authorization was not required in the present case since there is no evidence that search at D-3, Kailash Colony was done after sunset. It was also argued that under notification dated 25.09.86 SP CBI is authorized and he in turn authorized Sh. Sahani DSP by making endorsement on secret information Ex. PW8/A and since house search of D-3, Kailash Colony was a continuing search, no fresh authorization was required as at each stage it is not possible for the investigator to run back for authorization. Besides, there is another notification dated 25.09.86 whereby an inspector of CBI is authorized to conduct house search.
139. But none of the notifications relied upon by learned prosecutor was proved in court at any stage. Nor even any reference of the alleged notifications is made by any of the prosecution witnesses including Inspector Neelam Singh and DSPs. It is also not the case of CBI that for house search at D-3, Kailash Colony, no authorisation was required.
SC NO. 56/08 Page 82 of 101 pages 83 Rather, case of CBI is that a search authorization was issued by DSP Sh. Sahani PW7 which was sent to Inspector Neelam Singh PW6 through Ct. Raju. As per PW6 Inspector Neelam Singh the said search authorization was even shown by her to the occupants of the house. But as described above, no such search authorization has been proved or even filed by CBI; even Ct. Raju was not examined at any stage.
140. In the case of DIRECTORATE OF REVENUE vs MOHD. NISAR HOLIA, 2008 (1) JCC (Narcotics) 1 Hon'ble Supreme Court held thus:
"16. It is not in dispute that the said Act prescribes stringent punishment. A balance, thus, must be struck in regard to the mode and manner in which the statutory requirements are to be complied with vis-a-vis the place of search and seizure.
17. This court times without number has laid great emphasis on recording of reasons before search is conducted on the premise that the same would be the earliest version which would be SC NO. 56/08 Page 83 of 101 pages 84 available to a court of law and the accused while defending his prosecution. The provisions contained in Chapter-IV of the Act are a group of sections providing for certain checks on exercise of the powers of the concerned authority which otherwise would have been arbitrarily or indiscriminately exercised. The statute mandates that the prosecution must prove compliance of the said provisions. If no evidence is led by the prosecution, the court will be entitled to draw the presumption that the procedure had not been complied with. For the said purpose, we are of the opinion that there may not be any distinction between a person's place of ordinary residence and a room of a hotel.
................
22. In Abdul Rashid Ibrahim Mansuri vs State of Gujrat 2000 (1) JCC 287 this court stated:
"18.... if the officer has reason to believe from personal knowledge or prior information SC NO. 56/08 Page 84 of 101 pages 85 received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised it on the strength of such unrecorded information, would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused". (emphasis supplied)
141. As described above, there was no written intimation or written authorization preceding the house search at D-3, Kailash Colony. Inspector Neelam Singh also did not reduce the information in writing upon receiving the same from Sh. Sahni, as alleged.
142. In the case of ROY VD vs STATE OF KERALA, 2000 VIII AD (SC) 492 Hon'ble Supreme Court held thus:
"15. It is thus seen that for exercising powers SC NO. 56/08 Page 85 of 101 pages 86 enumerated under sub section (1) of Section 42 at any time whether by day or by night warrant of arrest or search issued by a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class who has been specially empowered by the State government in that behalf or an authorization under sub Section (2) of Section 41 by an empowered officer is necessary. Without such a warrant or an authorization, an empowered officer can exercise those powers only between sunrise and sunset. However, the proviso permits such an empowered or authorised officer to exercise the said powers at any time between sunset and sunrise if he has reason to believe that such a search power or authorisation cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of an offender and he records the grounds of his belief.
16. It is plain that no officer other than an empowered officer can resort to Section 41 (2) or exercise powers under Section 42 (1) of SC NO. 56/08 Page 86 of 101 pages 87 the NDPS Act or to make a complaint under clause (d) of sub section (1) of Section 36A of the NDPS Act. It follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41 (2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial.
17. To the same effect is the view expressed by this court in State of Punjab vs Balbir Singh, 1994 (3) SCC 299. In para 13 Jayachandra Reddy J. speaking for the court observed thus:
"Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other magistrate or is made by any officer not empowered or authorised, it would per se be illegal and would affect the prosecution case and vitiate the trial." (emphasis supplied) SC NO. 56/08 Page 87 of 101 pages 88
143. In the case of KARNAIL SINGH vs STATE OF HARYANA, III (2009) DLT (Crl) 816 SC, Hon'ble Supreme Court held thus:
"17. .............the effect of the two decisions was as follows:
(a) The officer on receiving the information of the nature referred to in sub-section 1 of Section 42 from any person has to record it in writing in the concerned register and forthwith sent a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone or other means and the information calls for immediate action and any delay SC NO. 56/08 Page 88 of 101 pages 89 would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses
(a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Section 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officials, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy SC NO. 56/08 Page 89 of 101 pages 90 thereof to the officials superior may get postponed by a reasonable period, that is after the search entry and seizure. The question is one of urgency and expendiency.
(d) While total non compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of 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 above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
144. As described above, there is no reliable evidence to establish that any search authorisation was issued to PW6 Inspector Neelam Singh. Even the endorsement made on the SC NO. 56/08 Page 90 of 101 pages 91 reverse side of secret information Ex. PW8/A on which reliance was placed by the learned CBI prosecutor to argue that the same is search authorisation to Sh. Sahani DSP and authorisation to Inspector Neelam Singh for search of D-3, Kailash Colony as well, does not amount to search authorisation at all . The endorsement is only to the effect "please verify and report for necessary action". This endorsement on the reverse side of secret information Ex.
PW8/A is dated 23.02.2000 and was aimed at simply verification of facts and for the same Sh. Sahani even visited the filmistan spot on 23.02.2000 as described above. Besides, the endorsement pertained only to the Filmistan spot with no reference of D-3, Kailash Colony. Further, even this endorsement document remained with Sh. Sahani at Filmistan spot only and was never delivered to Inspector Neelam Singh.
145. CBI argument that there was no time for Inspector Neelam Singh to run for search authorisation fails to convince. As per legal position described above, even if the SC NO. 56/08 Page 91 of 101 pages 92 situation was of such a haste, Inspector Neelam Singh was under a duty to record grounds of her belief that search authorisation could not be obtained without affording opportunity for the concealment of evidence.
146. Thence, I have no hesitation to hold that provisions under Section 41&42 of the Act were not complied with as regards proceedings at D-3, Kailash Colony.
147. There is another aspect as regards the proceedings conducted at D-3, Kailash Colony. As per case of CBI, charas packet was recovered from an almirah in the room of accused Abdullah and degchi containing heroin was recovered from another room of the same house. Irrespective of the vital contradictions described above as regards proceedings conducted at D-3, Kailash Colony, prosecution has failed to prove that both or either of the contraband recover from D-3, Kailash Colony was in exclusive possession of either of the accused.
148. In the case of OM PRAKASH @ BABA vs STATE OF RAJASTHAN, 2009(2) DRUGS CASES (NARCOTICS) 9 Hon'ble SC NO. 56/08 Page 92 of 101 pages 93 Supreme Court held thus:
"7. A bare perusal of the evidence aforementioned would reveal that the ownership and possession of the house and the place of recovery is uncertain. As a matter of fact PW3 has categorically stated that the house from where the recovery had been made belonged to one Durga Bhanji and not the appellant. Even assuming for a moment that the house did belong to the appellant and was in his possession the prosecution was further required to show the appellant had exclusively possession of the contraband as a very large number of persons including the appellant and five of his brothers, their children and their parents were living there. Admittedly, there is no evidence as to the appellant's exclusive possession. In this situation we find that the judgment cited by the learned counsel that is Mohd. A Khan's case fully supports the plea on behalf of the appellant, we observe that in addition to the ocular evidence, the prosecution had also put on record a document pertaining to the ownership of SC NO. 56/08 Page 93 of 101 pages 94 the house, but despite this, the court held as under:
"The prosecution did not bother to produce any independent evidence to establish that the appellant was the owner of the flat in question by producing documents from concerned Registrar's Office or by examining the neighbours. No statement has been made by the prosecution that inspite of the efforts taken by them, they could not prove the documents or examined the neighbour to prove the ownership of the appellant relating to the flat in question. It is relevant to note here that two independent witnesses attested the punchnama. Only one of them was examined as PW5 who did not support the prosecution version and therefore was treated as hostile. In this case except the retracted statements of the appellant to connect the appellant with the house in question, no other independent evidence is available to sustain the finding of the learned Special Judge extracted in the beginning and confirmed by the High Court."
8. To our mind the aforequoted observations clearly support Mr. Bhatti's SC NO. 56/08 Page 94 of 101 pages 95 argument. We find that there is no evidence on record to prove the appellant's ownership and possession of the premises and the contraband in question.
9. The appeal is accordingly allowed."
149. As stated by PW6 Inspector Neelam Singh in her testimony, there were 3-4 rooms in D-3, Kailash Colony; room of accused Abdullah and even the almirah from which charas was recovered was not locked; from the same almirah 5-6 passports were recovered which are in the names of Abdullah, Fauzia and Mobin but no enquiry as regards Fauzia and Mobin was conducted.
150. Similarly, even the room from where the degchi containing heroin was allegedly recovered was not lying locked as deposed by PW5 Sh. TD Dogra.
151. Prosecution did not even investigate the connection between accused persons and D-3, Kailash Colony. The only piece of evidence in this regard is the alleged recovery of passport of accused Abdullah and SC NO. 56/08 Page 95 of 101 pages 96 testimony of PW9 taxi driver Uttam Chand. As described above, Uttam Chand does not appear to be reliable witness. And passport of Abdullah that was allegedly recovered from D-3, Kailash Colony was not produced in court.
152. Even if it is assumed that accused Abdullah was somehow connected with house no. D-3, Kailash Colony, there is no evidence at all to show his status in the said house in order to connect him with the contraband allegedly recovered.
153. As described above, passports of Mobin and Fauzia also were recovered from the same almirah, two persons namely Mohd. Bassir and Deen Mohd. were found in occupation of the said house and as per even CBI case the said house was on rent with one Amin, owner of the house being one Sh. Bishambar Nath. Bishambar Nath having died, as stated by learned prosecutor, CBI ought to have led some additional evidence to connect accused Abdullah with the house, instead of relying upon merely testimony of taxi driver that he took Abdullah from D-3, Kailash Colony.
SC NO. 56/08 Page 96 of 101 pages 97
154. Argument of learned prosecutor that statement of Bassir was recorded under Section 161 CrPC but he was not examined in court as he would not have supported prosecution, in my view is not sound as mere apprehension that a witness would not support prosecution cannot be a ground to keep such a witness away from box and much less a ground to absolve the prosecution of their duty to prove the case beyond reasonable doubt.
155. House no. D-3, Kailash Colony being in occupation of as many as five others in addition to accused Abdullah, going even by CBI case and all the rooms of the house being accessible to all, it cannot be said that accused Abdullah was in exclusive possession of the contraband.
156. The most significant question is as to how did the CBI get to know the address of D-3, Kailash Colony and under what circumstances it was decided to raid the said house. As per CBI, it is accused Abdullah who gave his address. But the next question that arises is as to where is that statement of accused Abdullah.
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157. In view of above circumstances, the proceedings conducted at D-3, Kailash Colony fail to inspire confidence to bring conviction on the accused persons.
158. Even as regards safe custody of the contraband allegedly recovered from the accused persons, the evidence on record reflects that possibility of tampering of case property cannot be ruled out. In his testimony, PW14 the investigating officer Sh. HS Chopra, DSP CBI stated that upon taking over investigation of this case, he took over the case property from malkhana and after inspection of the same retained a part thereof with him till completion of investigation; PW14 explained that that part of case property was retained by him to confront the witnesses and clarified that by expression case property, he meant only the documents as degchi and heroin were kept in malkhana by him but he did not remember as to whether the degchi and heroin were deposited by him in malkhana on 26.02.2000 or 27.02.2000. PW14 stated that he did not make any endorsement or entry as regards having deposited back the SC NO. 56/08 Page 98 of 101 pages 99 case property in malkhana. This statement of PW14, reflecting that case property was taken out of malkhana, inspected and redeposited in malkhana without making any entry in malkhana register shows an ample scope left open for tampering the same.
159. I fail to convince myself with the argument of learned prosecutor that the contradictions described above should be ignored since the witnesses were examined and cross examined after a gap of long period. It is not believable that memory of witnesses would not be refreshed by the pairokars of CBI prior to bringing a witness to the box, that too such senior officers of CBI. As described above, one of the prosecution witnesses PW4 categorically admitted that CBI had given him a copy of his statement dated 11.04.2000 and he always read his statement prior to entering the box on the day of his testimony. Even otherwise, looking into the enormity of punishment and stringency of legal provisions, prosecution cannot be allowed to wriggle out of their duty to prove their case beyond reasonable doubt against the SC NO. 56/08 Page 99 of 101 pages 100 accused persons who are at the receiving end.
160. Another very wide argument of CBI is that it is not possible practically to plant such a huge recovery of contraband. But at the same time, it is also not impossible to let the actual culprit slip away and trap innocent persons in order to explain the huge recovery, as claimed by accused persons in the present case.
161. Thence, the evidence on record is riddled with numerous inconsistencies, improbabilities and glaring contradictions which strike at the very root of the matter and create strong doubt as regards truthfulness of prosecution case. Conduct of raid and recovery of contraband from either of the spots that is Filmistan Cinema and D-3, Kailash Colony as well as arrest of accused persons does not appear to have taken place in the manner alleged by the prosecution. Besides, there are also infringement of statutory safeguards provided under the Act.
162. Prosecution has failed to prove its case beyond reasonable doubt. As such the accused persons are held not SC NO. 56/08 Page 100 of 101 pages 101 guilty of charges framed against them. Consequently both the accused are acquitted. Both the accused are in judicial custody and are foreigners. If not required in any other case, accused persons be released in accordance with law applicable to them as foreigners as regards the legality of their stay in this country. File be consigned to records. ANNOUNCED IN THE OPEN COURT ON 8th MARCH 2010 (GIRISH KATHPALIA) SPECIAL JUDGE, NDPS(NORTH), DELHI SC NO. 56/08 Page 101 of 101 pages