IN THE COURT OF MS. [ENTITY] METROPOLITAN MAGISTRATE-01, SHAHDRA DISTRICT, KARKARDOOMA COURTS, DELHI State Vs. [ENTITY] FIR No. 107/07 PS: Narcotics Branch U/[SECTION] [ACT] a. Comp. ID No. of the case : 33/2016 b. Date of commission of offence : 24.10.2007 c. Date of institution of the case : 12.12.2007 d. Name of complainant : SI [ENTITY] e. Name of accused : [ENTITY], S/o Sh. [ENTITY] R/o Ward no. 7, Sirauli, P.S. Sirauli, Distt. Bareilly, U.P. f. Offence complained of : U/[SECTION] [ACT] g. Plea of accused : Pleaded not guilty h. Arguments heard on : 17.09.2019 i. Final order : Acquitted. j. Date of judgment : 17.09.2019 JUDGMENT
FACTS IN BRIEF :
1. Briefly stating, the case as per prosecution is that on 24.10.2007 at about 07.00 to 08.00 p.m. at 66ft. Road, Idgah Welcome T-point Jafrabad, Delhi within the jurisdiction of PS Seelampur, accused was found in possession of 100 gm of Heroine and thus he committed offence punishable U/[SECTION] [ACT].
2. After completion of investigation, charge-sheet was filed. Upon taking cognizance of the offence, accused were summoned and FIR No. 107/07 PS Narcotics Branch State V. [ENTITY] (17.09.2019) Pg No. 1 of 10 supplied with copy of charge-sheet in compliance of [SECTION] of [ACT] u/[SECTION] [ACT] was framed on 16.03.2011. Accused pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution examined several witness i.e. [ENTITY] as PW-1, Ct. [ENTITY] as PW-2, [ENTITY] as PW-3, Ct[ENTITY] as PW-4, [ENTITY] as PW- 5, ASI [ENTITY] as PW-6, Inspector [ENTITY] as PW-7, Retd. Inspector [ENTITY] as PW-8, ASI [ENTITY] as PW-9 and thereafter vide order dt. 28.06.2018 PE was closed.
4. Statement of accused u/[SECTION] [ACT] was recorded on 20.08.2018 wherein accused set up the defence that he is innocent and was doing graduation at that time and he had come to his mama namely [ENTITY]'s place at Bhajanpura and when he left his mama's house then the police, who was in civil dress, arrested him and nothing was recovered from his possession or his instance. Accused further stated that except the present case, there is no other criminal antecedent of him. Accused opted to lead DE and examined himself as DW-1 and thereafter, DE was closed on 06.09.2018.
5. I have heard the arguments of Ld. APP for the State as well as of ld. Counsel for accused, perused the record and have gone through the relevant provisions of the law.
6. The contention of the counsel for the accused that since all the witnesses of the prosecution are police witnesses so they cannot be relied is without any merits as it is well settled that Statements of official witnesses have to be considered like the statements of other witnesses. But where the case is based on the testimony of the official witnesses only, it is the duty of the court to scrutinize their evidence with care and caution. Testimony of official witnesses cannot be FIR No. 107/07 PS Narcotics Branch State V. [ENTITY] (17.09.2019) Pg No. 2 of 10 discarded only because of their official status.
7. PW1, has proved the notice under [SECTION] [ACT] Ex PW1/A and that the accused refused to search the police officials and refused himself to be searched and also refused to search police team or government vehicle in the presence of the Magistrate despite opportunity having been given to him. The reply of the accused in this regard is Ex PW1/B. The other prosecution witnesses have corroborated this deposition of PW1. The contention of the counsel for the accused is that since provisions under [SECTION] of [ACT] have not been followed in letter and spirit by the Investigating agency so the recovery of the contraband goods itself is doubtful finds force in view of the decision in [ENTITY] @ Agha Khan vs The State Of Uttarakhand decided on 27 April, 2018 by Hon'ble Apex Court in [CASE NUMBER] and rightly so the search and recovery made from the accused [ENTITY] of the alleged contraband "heroine" does not satisfy the mandatory requirements of [SECTION] of [ACT]. In this regard relevant paragraph of decision of our Hon'ble High Court of Delhi in [PRECEDENT] decided on 06.06.2019 In [CASE NUMBER] And [CASE NUMBER] Is reproduced as under:
50. The principal contention advanced, by learned counsel appearing for [ENTITY] before the Supreme Court, was that there had been violation of [SECTION] of the [ACT], inasmuch as the search of [ENTITY] had not been conducted in accordance with the said provision. Reliance was placed, for the said purpose, on the judgment of the Supreme Court in [PRECEDENT]. It was contended that the search/recovery of the alleged contraband from [ENTITY] ought to have been made only in the presence of either a Magistrate or a Gazetted Officer. The response of the prosecution has been recorded, in para 26 of the judgment, in the following words:
"It is the case of the prosecution and which found acceptance by the two Courts below that since the appellant (accused) was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer but despite telling him about his legal right available to him under [SECTION] in relation to the search, the appellant (accused) gave his consent in writing to be searched by the police officials (raiding party), the two Courts below came to a conclusion that the requirements of [SECTION] stood fully fully complied with FIR No. 107/07 PS Narcotics Branch State V. [ENTITY] (17.09.2019) Pg No. 3 of 10 and hence the appellant was liable to be convicted for the offence punishable under the [ACT]."
(Italics and underlining supplied)
51. The Supreme Court proceeds, in paragraphs 27 to 30 of the judgment, to hold thus:
"27. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "Charas" does not satisfy the mandatory requirements of [SECTION] as held by this Court in the case of [PRECEDENT] (supra). This we say for the following reasons.
28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under [SECTION] of the [ACT] except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of [SECTION] of the [ACT]. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.
29. Though, the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer.
30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under [SECTION] of the [ACT]. Since the non-compliance of the mandatory procedure prescribed under [SECTION] of the [ACT] is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.
31. In the light of the foregoing discussion, the appeal succeeds and is allowed. Impugned judgment is set aside. As a consequence thereof, the appellants conviction is set aside and he is acquitted of the charges in question."
(Emphasis supplied)
52. Insofar as the facts, essential for determination of the controversy in issue are concerned, the present case cannot be distinguished, in any manner, from [ENTITY] (supra). The only difference, on facts - which makes no difference to the legal position
- is that, in [ENTITY] (supra), the appellant [ENTITY], on being queried, confessed to carrying charas, whereas the appellants, in the present case, did not do so. In the present case, too, the alleged contraband charas was recovered from the bags of the appellants. In the present case, too, the search of the bags, and the seizure of charas therefrom, was effected by the raiding team, in the absence of any Magistrate or a Gazetted Officer. The witnesses, in the present case, have deposed that FIR No. 107/07 PS Narcotics Branch State V. [ENTITY] (17.09.2019) Pg No. 4 of 10 the I/O was not a Gazetted Officer, and that no Magistrate or Gazetted Officer was contacted. The ratio decidendi of [ENTITY] (supra), as contained in para 28 of the said decision applies, therefore, to the present case on all fours. While it is true that [PRECEDENT] (supra) would seem to suggest that, once the accused was offered the option of having his search conducted in the presence of a Magistrate or a Gazetted Officer, and he declined the offer, [SECTION] stood complied with, [ENTITY] (supra), after noticing [PRECEDENT] (supra), as well as the law laid down therein, holds, nevertheless, that, even where the accused - as in that case, and as in the present case - declined the offer under [SECTION] of the [ACT], the raiding team was, nevertheless, required to have the search of the appellant conducted in the presence of a Gazetted Officer or Magistrate. The said enunciation of the law binds me, by virtue of [SECTION] of the [ACT].
53. Respectfully following the judgment of the Supreme Court in [ENTITY] (supra), therefore, I hold the objection, of Mr. [ENTITY], regarding non-compliance, with the provisions of [SECTION] of the [ACT], in the present case, as the appellants, and the bags carried by them, were searched by the raiding team, and not in the presence of any Gazetted Officer or Magistrate, to merit acceptance.
54. In view of this position, it would neither be necessary, nor even appropriate, for this Court to venture into the allegations, or the findings, regarding the nature and identity of the substance found in the bags carried by the appellants, as the failure, on the part of the raiding team, to proceed in accordance with [SECTION] of the [ACT], vitiates the very search and seizure of the said material. All subsequent efforts at identifying the nature of the material, allegedly seized from the bags of the appellants, whether by using the Field Drug Testing Kit carried by the raiding team, or by way of the report of the FSL, would pale into insignificance.
55. In [PRECEDENT] (supra), the Supreme Court held that communication of the right, available under [SECTION] of the [ACT], to the person about to be searched, was not an empty formality, and had a purpose, as offences under the [ACT] carries stringent punishments and, therefore, the prescribed procedure was required to be meticulously followed. This procedure, it was further clarified, provided the "minimum safeguards available to an accused against the possibility of false involvement". Further, in [PRECEDENT], the Supreme Court held thus:
"The judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten that liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in a legal manner. "Unlawful possession" of the contraband is the sine qua non for conviction under the [ACT] and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in absence of proof of possession of the same, and accused cannot be held guilty under the [ACT]."
There can be no manner of doubt, therefore, that failure to comply with [SECTION] of the [ACT] is fatal to the case of the prosecution, which stands vitiated, in its entirety, thereby.
FIR No. 107/07 PS Narcotics Branch State V. [ENTITY] (17.09.2019) Pg No. 5 of 10
56. Notably, in [ENTITY] (supra) too, once the Supreme Court found the seizure of the alleged charas to have been effected in violation of [SECTION] of the [ACT], it did not proceed to discuss any other aspect of the matter, and acquitted the appellant/accused, in that case, on that sole ground.
57. An identical outcome must, of necessity, visit the present proceedings.
8. In the case at hand also notice under [SECTION] [ACT] Ex PW1/A and reply of accused Ex PW1/B are of no assistance to the prosecution as firstly, it is an admitted fact emerging from the record of the case that the accused was not produced before any Magistrate or Gazetted Officer; secondly, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "heroine" was not made from the accused in the presence of any Magistrate or Gazetted Officer; thirdly, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "heroine" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the accused of the contraband "heroine" as provided under [SECTION] of the [ACT] except in the presence of either a Magistrate or a Gazetted Officer; fourthly, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of [SECTION] of the [ACT]. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the accused in the presence of a Magistrate or a Gazetted Officer. Merely because accused wrote at Ex PW1/B that he did not want to be searched before a gazetted officer would not mean that procedure under [SECTION] [ACT] is to be done away with by the Investigating agency.
9. The contention of the counsel for the accused that since SI [ENTITY] had seized narcotics, therefore cannot be IO in the present case without any merits as he is not the complainant in the present case and obviously the seizure of narcotics is part of investigation which can be done only by an IO. The decision in Megha Singh Vs. FIR No. 107/07 PS Narcotics Branch State V. [ENTITY] (17.09.2019) Pg No. 6 of 10 State of Haryana, AIR 1995 SC 2339 relied upon by the counsel for the accused in this regard is without any merit.
10. The submission of the counsel for the accused that in the absence of any public witness, the testimonies of the police officials is unbelievable requires to be scrutinized in the facts of the present case. The absence of independent public witness is very crucial in such type of cases which is totally based on recovery of a banned drug. It is true that it is not always necessary to have a public witness during recovery. It has been held in [PRECEDENT] and [PRECEDENT], it has been held by the Supreme Court that the obligation to take public witnesses/independent witness is not absolute. If after making efforts which the court considers in the circumstances of the case reasonable the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer is believable after taking due care and caution in evaluating their evidence. Therefore, it was incumbent for the police team to conduct search before public witness as it was having prior information and sufficient time to involve public witness during search. But admittedly, no such effort was made by the police team and this further makes the whole search seriously suspicious.
11. Now, it is inexplicable as to why no notice was served upon the public persons who refused to assist the police officials. In [PRECEDENT], Hon'ble High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the FIR No. 107/07 PS Narcotics Branch State V. [ENTITY] (17.09.2019) Pg No. 7 of 10 appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the [ACT]".
12. In case of [PRECEDENT], the Hon'ble Punjab & Haryana High Court held as under:-
"3. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
13. In the present case as well, there is no public person joined by the IO for conducting the raid and there is no satisfactory explanation for the same, which creates a doubt in the case of the prosecution.
14. The case of the prosecution is that seal of BS was put on sealed pulanda containing 90 gms and pulanda containing two samples of contraband heroine of 5 gms each with seal of PW8 BS but neither PW8 deposed as to what he did with the seal BS after sealing the pul- landa and whether it was handed over to some other participant of the raiding team or someone else to avoid tampering of sealed pulanda. But, the handing over of the seal has also not been proved in accor- dance with law. There is no evidence that the seal after its use was handed over to an independent person as per law and thus, possibility of case property being planted upon the accused cannot be ruled out.
FIR No. 107/07 PS Narcotics Branch State V. [ENTITY] (17.09.2019) Pg No. 8 of 10 In this regard, our Delhi High Court held as under in Datu Ram v. State (Delhi) : 1996(1) Crimes 604 : 1996(36) DRJ 527 : 1997(1) CCR 18
1. In the State of Rajasthan v. [ENTITY], 1980, C.C. Cases 83 (S.C), the Supreme Court observed that the prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the Public Analyst so that the court could conclude that the seals remained intact throughout. Unfortunately, this warning seems to have fallen on deaf ears at least as far as this case is concerned.
3. Does the evidence) as noticed above satisfy the require ment highlighted by the Supreme Court in [ENTITY]'s case? The answer, to my mind, has necessarily to be in the negative.
4. The parcels were allegedly sealed at the spot by the Investi gating Officer and if the [ENTITY] is to be believed the same were deposited with him by the said officer. However, the Investigating Officer no where says so. In any case, even if it be taken that the parcels were actually deposited by him, was it not for him to assure the Court that so long as they had remained in his possession they had not been tampered with? This, however, is riot the end of the mat ter. The Investigating Officer nowhere says that he had filled the C.F.S.L. form nor is there anything, either in his statement or in the statement of the [ENTITY] or even in the entry made in the Register, that any such form was ever deposited. The Constable who took the sample parcel also no where speaks of his having deposited any such form with the C.F.S.L. There are judgments of this court in which it has been held that absence of such evidence would be fatal to the prosecution. Reference, in this connection may be made to [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
5. Last, but not the least, the report of the C.F.S.L. itself, the relevant portion of which has already been reproduced above, cannot be considered to be such as to inspire the confidence of the Court with regard to the seals on the sample parcel. As would be apparent though it does show that the parcel received was having "the seal im pression as per specimen enclosed intact" we are not told as to what was the "specimen enclosed". This further takes away the sting from the prosecution version.
15. Similarly, in Chandra Wati v. State (Delhi) : 1991(44) DLT 31 :
1991 JCC 508 it was held by our Delhi High court that the prosecution has to bring on record the link evidence to show that the sample of the recovery alleged to have been made by the police witness from the ac- cused was analysed in the CFSL without it being tempered with by any one, failure of which is a ground for acquittal of the accused.
FIR No. 107/07 PS Narcotics Branch State V. [ENTITY] (17.09.2019) Pg No. 9 of 10
16. In view of the foregoing discussion due to failure of the prosecution to prove all the links starting from the seizure of the samples till the same reached the hands of the Public Analyst so that the court could conclude that the seals remained intact throughout, gives benefit of doubt in favour of the accused. In the facts and circumstances of the case, it is held that prosecution has not been able to establish its case beyond reasonable doubt.
17. It has been consistently held by the Hon'ble Supreme Court Court, the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. [vide judgement of the Hon'ble Supreme Court in [[PRECEDENT]]. The prosecution has to prove its case beyond reasonable doubts.
18. In view of the foregoing discussion, it is held that prosecution has not been able to establish its case beyond reasonable doubt. Thus, defence of the accused is not required to be discussed herein. Accordingly, accused [ENTITY] stands acquitted of the offences punishable under [SECTION] of the [ACT]. Digitally signed by [ENTITY] Date:
2019.09.17 Announced in the open ([ENTITY]) 17:44:50 Court on 17.09.2019 Metropolitan Magistrate-01 +0530 Shahdara District, Karkardooma Courts, Delhi Judge Code: 0530 FIR No. 107/07 PS Narcotics Branch State V. [ENTITY] (17.09.2019) Pg No. 10 of 10