1 In the Court of [ENTITY] ASJ/Special Judge : [ACT] : Rohini Courts : Delhi In the matter of : SC No. 40/12 [ENTITY] Vs. [ENTITY] @ Sonu FIR no. 87/12 PS Crime Branch U/[SECTION] [ACT] [ENTITY] Versus [ENTITY] S/o Sh. Heera Lal R/o H.No. T-436, Gali no. 15, Neem Wala Chowk, Nabi Karim, Delhi. Date of receipt : 31.05.2012 Date of arguments : 14.03.2014 Date of announcement : 28.03.2014 JUDGMENT
1. The sole above named accused was sent for trial with the case of prosecution that on 04.04.2012 at 1.00 PM the accused was apprehended while in possession of 160 grams of Smack (Heroine) at ring road in front of [ENTITY] restaurant, Wazirpur, Delhi. The accused was apprehended based on prior secret information. The secret information was received at 11 AM and the accused was apprehended at 1 PM. It is claimed that prior to the search of accused, provisions of [SECTION] [ACT] were duly complied with. When the accused was searched, from front right side pocket of part of accused, one transparent polythene containing smack was recovered. From the recovered contraband, two samples were drawn out of which one of the samples was sent to the FSL. The FSL authorities also confirmed the substance to be smack. It is also claimed that [SECTION] & [SECTION] of [ACT] were duly complied with, within the stipulated period.
2. Accordingly, the accused was charged for offence U/[SECTION] of [ACT] for possessing intermediate quantity of smack. The accused pleaded not guilty to the charge and claimed trial.
3. In support of its case, prosecution examined total 10 witnesses, out of which PW1 [ENTITY], PW6 [ENTITY] and PW10 SI [ENTITY] are the witnesses of recovery.
3.1 [ENTITY] Jail was the initial investigating officer of the case who had received the secret information. The subsequent investigating officer was examined as PW8 namely Inspector [ENTITY]. Rest of the witnesses are more or less formal in nature.
3.2 It is deposed by PW1, PW6 and PW10 that on 04.04.2012 upon receipt of secret information, a raiding team was organized comprising of these witnesses as well as [ENTITY]. SI [ENTITY] deposed that on that day, at about 10.30 AM a secret informer came to his office in the Narcotics Cell and told him that the accused would come to supply Smack between 12.30 PM to 1.30 PM to one [ENTITY] at the spot. He produced the informer before Inspector [ENTITY] at about 10.45 AM and the ACP was also informed telephonically. Thereafter the secret information was reduced into writing vide DD no. 16 Ex.PW2/A at 11 AM. The true copy of the said DD was sent to the senior officers, in compliance of [SECTION] of [ACT], and it was thereafter that the raiding party was constituted. The raiding team along with the secret informer left the office in a government vehicle driven by Ct. [ENTITY] at 11.15 AM, vide DD no. 17 Ex. PW1/A. The raiding team took along the IO bag, field testing kit and the electronic weighing machine. On reaching the spot, the raiding team took position at about 12.15 PM. On the way to the spot, certain passersby public persons were requested to become witness but none of them agreed. At about 12.55 PM, the accused was noticed coming towards the raiding team members from the side of Adarsh Nagar and he was identified by the secret informer as the same person against whom information was delivered. The raiding team had taken position right in front of [ENTITY] restaurant. The accused came to the spot and stood at a distance of 2-3 mts away from the raiding team when he waited for someone for only 2-3 minutes. Thereafter, he started going back and was apprehended. It is deposed that the accused was made aware of his rights U/[SECTION] [ACT] and a written notice U/[SECTION] [ACT] Ex.PW1/B was prepared in Hindi, in duplicate, and a carbon copy of the said notice Ex.P4 was delivered to the accused. The accused refused to exercise his rights and gave his refusal Ex.PW1/C on the notice. Thereafter, his search was conducted, in which from his right side pocket of pant one transparent polythene containing Smack was recovered. On measurement, the weight of Smack came to be 160 grams out of which two samples of 5-5 grams each were taken out which were converted into pulindas Mark A & B. The remaining Smack was converted into parcel Mark C. Form FSL was filled up. All the three parcels Mark A, B & C and the FSL form were sealed with the seal of 3CPS NB Delhi and the same specimen seal was applied on the FSL form also. The case property was taken into possession vide memo Ex.PW1/D. Thereafter, rukka Ex. PW10/A was prepared and was handed over to Ct. [ENTITY] to be taken to the police station Crime Branch for registration of FIR. Besides the rukka, all the three sealed parcels, the FSL form and a copy of the seizure memo were also handed over to Ct. [ENTITY] to be taken and delivered to the SHO of the police station.
3.3 It is deposed by [ENTITY] that he took these documents and articles to the police station Crime Branch Malviya Nagar in the same government gypsy in which the raiding team had reached the spot. On reaching the police station, he handed over the rukka to PW5 [ENTITY], the duty officer.
3.4 It is deposed by PW5 [ENTITY] that he registered FIR Ex.
PW5/B and made endorsement on rukka Ex. PW5/C and also lodged DD no. 18 & 22 Ex.PW5/A & D, respectively.
3.5 It is deposed by PW7 Inspector [ENTITY] and PW1 [ENTITY] that when the sealed parcels were delivered to PW7 by PW1 he counter sealed the three parcels with the seal of CRM and also applied the specimen seal on the FSL form. Thereafter, he confirmed the FIR number from the duty officer and noted down the FIR number on the parcels and the two documents i.e. the FSL form and carbon copy of seizure memo. He also signed the three parcels and the two documents.
3.6 It is deposed by PW7 Inspector [ENTITY] and PW3 [ENTITY] that thereafter [ENTITY] was called by the SHO in his room with Register no. 19 and all the three sealed parcels and the two documents were deposited in the malkhana vide entry Ex.PW3/A. 3.7 The SHO also proved DD no. 21 lodged by him regarding deposition of case property in the malkhana as Ex.PW5/E. 3.8 After registration of case, [ENTITY] carried the copy of FIR and original rukka to the Narcotics Cell and handed them over to the investigating officer SI [ENTITY] PW8.
3.9 It is deposed by PW8 SI [ENTITY] that on receipt of copy of FIR and original rukka he left for the spot in the same government gypsy driven by Ct. [ENTITY] vide DD no. 29 Ex.PW8/A and he reached the spot at 8.30 PM.
3.10 It is deposed by PW6 [ENTITY], PW10 [ENTITY] and PW8 that when SI [ENTITY] reached the spot, he prepared site plan Ex.PW8/B; arrested the accused vide arrest memo Ex.PW6/A and; conducted personal search of accused vide memo Ex.PW6/B. It is also deposed that in the personal search of accused, carbon copy of notice U/[SECTION] [ACT] was recovered from the accused besides other articles. The disclosure statement of accused was also recorded at the spot itself. Thereafter, the raiding team along with the accused went to police station Crime Branch where personal search articles of the accused were deposited in the malkhana and then the accused was taken to the Narcotics Cell, where he was produced before Inspector [ENTITY] at 1.15 AM in night intervening 4.4.2012 and 5.4.2012. The arrival entry of the police team under DD no. 2 is proved as Ex.PW8/C. 3.11 [ENTITY] and Inspector [ENTITY] both also deposed that they prepared two separate reports U/[SECTION] [ACT] qua seizure of contraband and arrest of accused, respectively, which were furnished to the senior police officers within the stipulated period. 3.12 PW2 [ENTITY], from the office of ACP Narcotics Cell, proved that on 4.4.2012 one copy of DD no. 16, in compliance of [SECTION] [ACT], was received in the office of ACP which was seen & signed by the ACP. The report is proved as Ex.PW2/A. The witness also proved that the other two reports U/[SECTION] [ACT] Ex.PW2/B & 2/C were also received in the office of ACP on 5.4.2012 which were also seen & signed by the ACP.
3.13 PW3 [ENTITY] corroborated that on 4.4.2012 the case property and personal search articles of the accused were deposited in the malkhana vide Ex.PW3/A & B, respectively. He also deposed that on 11.04.2012 one of the sample parcel Mark A along with FSL form were sent to the FSL Rohini through Ct. [ENTITY] PW4 vide RC Ex.PW3/C for depositing it in the FSL, Rohini.
3.14 PW4 Ct. [ENTITY] also corroborated this fact and deposed that he deposited the sample parcel with the FSL form in the lab on 11.04.2012. He also deposed that he obtained acknowledgment receipt Ex. PW3/E from the FSL authorities and deposited it in the malkhana on that very day.
3.15 PW9 Inspector [ENTITY] also corroborated the testimony of PW10 [ENTITY] and PW8 Inspector [ENTITY].
4. On completion of prosecution evidence, all the incriminating evidence was put to the accused in his statement U/[SECTION] [ACT] The accused denied that he was apprehended at the spot on the date of incident or that any contraband was recovered from him. He claimed that instead one Ct. [ENTITY] had called him from his shop to Gol Market and he went to Gol Market from where he was picked up at about 2 PM and taken to the Narcotics Cell and implicated in this case. He claimed that no notice was served upon him U/[SECTION] [ACT] and that his thumb impressions were obtained on blank papers which were converted into documents of this case. The accused initially opted to lead defence in his favour, but despite opportunities he did not lead any evidence and the defence evidence was ultimately closed by the court on 13.12.2013.
5. I have heard Ld. Prosecutor for the [ENTITY] and Ld. Counsel for the accused.
6. It is yet another case in which despite availability of secret information around two hours prior to the apprehension of accused, no independent witness has been joined by the investigating agency. Admittedly, the raid was conducted right in front of [ENTITY] Restaurant on the ring road. Admittedly, the said restaurant was open at the time of incident. The raiding team reached the spot in front of the restaurant at about 12.30 PM and remained present at the spot for about ten hours up to 10.45 PM. Yet, admittedly, not even an attempt was made to call anybody from [ENTITY] Restaurant. This fact is admitted by the recovery witnesses that no attempt whatsoever was even made to call anybody from the restaurant. Besides the restaurants, there were other shops & establishments in the area but from there also no one was even requested. What is claimed is that on the way to the spot at, Majnu Ka Tilla and at Burari crossing, which are located many kilometers away from the spot, certain passersby were requested and that certain passersby were requested at the spot.
6.1. Requirement of [SECTION] of [ACT] is that two local respectable inhabitants of the locality have to be joined and not that any person from far off may be asked to join. The attempt of the investigating agency, to prove that they requested passersby, does not inspire confidence as the name and address of not even one person was recorded. It is claimed by the investigating officer [ENTITY] that those public persons left without telling their names and addresses and after offering reasonable excuses. But then those reasonable excuses were also not recorded anywhere; and no legal action was taken against the persons who refused. The said fact clearly indicates that there was no attempt whatsoever to join any independent witnesses and the story put forth regarding requesting public persons is nothing but false.
6.2. Once the court comes to a conclusion that public persons were deliberately not joined, the only inference which can be drawn is that there is something for the investigating agency to hide. When the investigating agency remained present at the spot for about ten hours, yet not even attempting to join anybody from nearby restaurants and establishments, raises eyebrows.
6.3. No doubt, in a given case even in absence of independent witness, conviction can be sustained, but then the testimony of the police witnesses has to be absolutely reliable and convincing.
7. It is now a settled principle of criminal jurisprudence that stricter the punishment is, higher has to be the degree of proof. The present case is one under [ACT], which invites one of the strictest punishment available in law. In order to rule out any ground of false implication, stringent provisions were introduced by the Legislature in the form of [SECTION], [SECTION] & [SECTION] of [ACT]. Introduction of those provisions in the [ACT] clearly indicates that even the Legislature wanted to rule out any false implication because the punishment provided is very severe. In such circumstances, the testimony of the police witnesses has to be scrutinized very minutely before any conviction can be founded against the accused. Following circumstances would reveal that it is not safe to base conviction in the present case.
8. Though, it is claimed that [SECTION] of [ACT] was complied with in the present matter, but the testimony of PW1, PW6 & PW10 does not convince the court. Admittedly, contraband was recovered from the person of accused and therefore strict & absolute compliance of [SECTION] [ACT] was mandatory. It is no more res integra that if [SECTION] of [ACT] is not complied with, absolutely and strictly, the prosecution cannot take shelter of substantial compliance and the entire recovery will be vitiated.
8.1. PW1 [ENTITY] deposed that the investigating officer informed the accused that the accused has a right to get himself searched in the presence of a Gazetted Officer or a Magistrate and they can be called at the spot. This witness did not depose that the accused was clearly and specifically informed that the accused had a legal right U/[SECTION] [ACT] to opt for the search in presence of those officers. U/[SECTION] [ACT], it is necessary that the accused must be informed about the existence of his legal rights and not only the rights. Accused was an illiterate person and therefore, it was all the more necessary for the investigating officer to have informed the accused that it was a right vested in him under law. The said word 'legal' is missing from the testimony of PW1.
8.2. Similarly, PW6 [ENTITY], though deposed that the accused was informed that he had a legal right to take search of police team and their vehicle, but he did not use the word 'legal' when the question of rights of accused U/[SECTION] [ACT] came. Rather, he deposed that accused was told that he had a 'right' to get himself searched in presence of Gazetted officer or a Magistrate.
8.3. The third and the last recovery witness, SI [ENTITY] deposed that he told the accused about his legal rights that if he wishes, then his search can be conducted in the presence of a Gazetted Officer or a Magistrate or they can be called at the spot. He also did not specifically depose that the accused was informed in categorical terms that it was a legal right under the law vested with the accused that he could offer his search in presence of Gazetted Officer or Magistrate. The said fact alone vitiates entire trial, particularly when the accused was an illiterate person. The investigating agency had to be extra cautious when such an accused under [ACT] is informed of his rights U/[SECTION] [ACT]. It is highly desirable in such cases to join independent witnesses before the accused is informed of his legal rights and before the accused either opts or refuses to get himself searched in presence of the officers mentioned in [SECTION] of [ACT].
8.4. Recently, in the case of Kishan Chand v. [ENTITY] of Haryana, (2013) 2 SCC [SECTION]2 , Supreme Court held as follows;
"19. The provisions like [SECTION] or [SECTION] of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in [PRECEDENT] carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds.
20. While dealing with the requirement of complying with the provisions of [SECTION] of the Act and keeping in mind its mandatory nature, a Bench of this Court held that there is need for exact compliance without any attribute to the element of prejudice where there is an admitted or apparent non-compliance. The Court in [ENTITY] of Delhi v.Ram Avtar [(2011) 12 SCC 207 : (2012) 1 SCC (Cri) 385] held as under: (SCC pp. 216-17, paras 26-27) "26. The High Court while relying upon the judgment of this Court in Baldev Singh [[ENTITY] of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and rejecting the theory of substantial compliance, which had been suggested inJoseph Fernandez [Joseph Fernandez v. [ENTITY] of Goa, (2000) 1 SCC 707 : 2000 SCC (Cri) 300] , found that the intimation did not satisfy the provisions of [SECTION] of the Act. The Court reasoned that the expression duly used in [SECTION] of the Act connotes not substantial but exact and definite compliance. Vide Ext. PW 6-A, the appellant was informed that a Gazetted officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched before the said authorities.
As the recovery itself was illegal, the conviction and sentence has to be set aside.
27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. [ENTITY] of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] , the theory of substantial compliance would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of [SECTION] of the Act. While discharging the onus of [SECTION] of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of [SECTION] of the Act. Non-compliance with the provisions of [SECTION] of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial."
8.5. Also recently, in the case of Ashok Kumar Sharma v. [ENTITY] of Rajasthan, (2013) 2 SCC 67, Supreme Court held as follows;
"7. We are in this case concerned only with the question whether PW 1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under [SECTION] of the [ACT]. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to a five-Judge Bench. This Court in [PRECEDENT] answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under [SECTION] of the [ACT], to be searched before a gazetted officer or a Magistrate. This Court also held that it is mandatory on the part of the authorised officer to make the accused aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance.
The above statement of PW 1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a gazetted officer if he so wished. The fact that the accused person has a right under [SECTION] of the [ACT] to be searched before a gazetted officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a gazetted officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person.
9. We are of the view that non-compliance with this mandatory procedure has vitiated the entire proceedings initiated against the appellant-accused. Consequently, the conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside "
9. Though PW6 [ENTITY] was a member of the raiding team and allegedly remained present at the spot for about ten hours, but few answers given by him in his cross examination creates a serious shadow of doubt as to his presence at the spot and as to the truthfulness of the version of the prosecution.
10. He claimed that he does not know whether the investigating officer prepared any memo regarding handing over of the seal to him at the spot. He claimed to have returned the seal to the investigating officer after about one week but could not recollect the date or time despite the fact that exact date, time and second about the incident is deposed.
10.1. PW6 [ENTITY] in his cross examination stated that between the fact [ENTITY] took rukka and case property from the spot to the police station and when the subsequent investigating officer came to the spot, the time gap was four hours. When he was questioned as to what the raiding team members did during those four hours, he answered that during that period, sometime the raiding time members sat inside the 'gypsy' and sometimes they stood outside the gypsy. But then during the said period, no gypsy was available at the spot, as it has come in the evidence of other prosecution witnesses that [ENTITY] left the spot with rukka and case property for police station Crime Branch, Malviya Nagar in the same gypsy, and thereafter from the police station he went to Narcotics Cell in the same gypsy, and then from the Narcotics Cell SI [ENTITY] came to the spot in the same government gypsy. Admittedly, only one gypsy was used in the present case. Therefore, after [ENTITY] left the spot with the gypsy and till the time SI [ENTITY] came to the spot in the gypsy, there was no gypsy, or for that matter any other vehicle, available at the spot, which could have prompted [ENTITY] to give the above answer. This fact creates a serious dent in the case of prosecution.
10.2. When [ENTITY] was questioned as to the exact position of the raiding team members at the spot, before and at the time of apprehension of accused, the reply given by the witness was that he cannot tell. He could not tell it even after the site plan was shown to him and the site plan was explained to him. This fact also creates a serious doubt as to the presence of [ENTITY] at the spot.
10.3. When [ENTITY] was questioned as to what happened to the portion of substance tested on the field testing kit by the investigating officer, he replied that he does not remember as to what happened to the said material. The other two recovery witnesses [ENTITY] and SI [ENTITY] replied that the said material was thrown and not preserved. This answer given by [ENTITY] also creates suspicion as to his presence at the spot.
11. When [ENTITY] and [ENTITY] were questioned as to their sitting position in the government gypsy at the time when the raiding team went to the spot from the Narcotics Cell, both of them though replied that [ENTITY] was sitting on the front passenger seat in the gypsy and rest of the members were sitting on the back seat, but neither of these two witnesses could tell as to the sitting arrangement inside the gypsy. This reply is strange, particularly in view of the fact that these two witnesses otherwise remembered exact minutes and seconds of the procedure by the raiding team right from leaving the Narcotics Cell till finally reaching back.
12. For that matter, even the presence of PW1 [ENTITY] at the spot is not beyond doubt.
12.1. It is the case of recovery witnesses that after the notice was served upon the accused, 7-8 public passersby were again requested to become witness, who also allegedly did not agree. But when [ENTITY] was questioned in his cross examination about those public persons, [ENTITY] replied that he cannot tell even by approximation as to what could have been the age of those persons and he could not even tell whether they were old aged persons, young boys or middle aged persons. He could not even tell whether those persons came from one direction or from different directions or from front or back side. He could not even recollect whether those passersby were all non-Sikh persons or any of them was Sikh person. Astonishingly, he could not even tell whether all those persons requested were male or female or whether some of them were male and some of them female. These answers by [ENTITY] creates a serious doubt whether the version presented by the prosecution is true or not. Contrary to the answers of [ENTITY], [ENTITY] replied that those persons were standing near the raiding team at that time.
12.2. PW1 [ENTITY] replied that when the accused came to the spot, many public persons were also walking with him and he was not alone. Contrary to it, PW6 [ENTITY] claimed that when the accused came to the spot, he was all alone and no one else was coming besides him.
12.3. PW1 [ENTITY] stated that when the accused was apprehended, all the raiding team members physically apprehended him. Similarly, PW10 SI [ENTITY] deposed that accused was apprehended by all.
Contrary to it, [ENTITY] claimed that only [ENTITY] physically apprehended the accused and rest of the raiding team members did not physically touch the accused, although they had surrounded him.
13. The story of the prosecution appears to be improbable from one more fact. It is claimed by the prosecution that the accused came to the spot and waited there for the person to whom contraband was to be delivered for 2-3 minutes only. It is the case of prosecution that the information was that the accused would deliver contraband to one [ENTITY] between 12.30 PM to 1.30 PM. Investigating officer claims to have apprehended the accused at 1.00 PM. Had the story of prosecution been true, there was no reason for the accused to have waited for the receiver only for 2-3 minutes and then start leaving the spot. It has been noticed by this court in almost every case of [ACT] that a stereo type story of prosecution is presented that the accused comes to the spot and waits for 2-3 minutes only. How does it happen in every case of [ACT] that the accused comes to the spot and waits only for 2-3 minutes for the receiver? How does it happen every time? Why does it happen in every such case that the receiver never comes to the spot? These facts suggests that the story of the prosecution is nothing but concocted. In the present case, during investigation the alleged receiver of contraband could not be traced, which happens in almost every case of [ACT]. The source from where contraband was taken by the accused is also not known to the investigating agency, which also happens in almost every case of [ACT]. There is something more to read in these stereotype versions put forth by the prosecution in every case. These facts also create a serious shadow of doubt about the genuineness of the case of prosecution.
14. [ENTITY] replied that before the samples of contraband were kept in the two polythenes, the two empty polythenes were weighed when they were empty and were without any contents and thereafter the samples were kept inside them. Contrary to it, [ENTITY] claimed that the empty sample pouches were not weighed.
15. [ENTITY] and [ENTITY] both deposed that the measurement, sealing, sampling and preparation of pulindas was done at the spot by SI [ENTITY] alone and nobody else from the raiding team helped SI [ENTITY]. Contrary to it, [ENTITY] deposed that all the raiding team members helped in this process.
16. The prosecution witnesses who are none other than police officials deposed that there was no DD entry made by them in the DD Register when they joined and left their duties. The said fact creates a strong suspicion about the case of prosecution. It is necessary that every time when a police official joins his duty on a particular day, entries have to be made in the DD register and similar entries have to be made when the police officials leave their office after duty hours. Those DD entries have not been proved on record of this case.
17. Nobody from the local police station was even informed/joined throughout the entire process and even the case property was not taken to the SHO of the local police station.
18. Though HC [ENTITY] and [ENTITY] were also present at the spot, but not even one document bears their signature and they have not been cited as a witness in the present case. SI [ENTITY] PW8 reached the spot with HC [ENTITY] but even HC [ENTITY] is not a witness to any document or a witness in this case.
19. The log book of the government vehicle used in the present matter has not been proved.
20. Similarly, the concerned malkhana register of Narcotics Cell from where the weighing scale was got issued by the investigating officer has not been proved.
21. Thumb impressions of accused were not obtained on the FSL form or the parcels prepared at the spot and there is non-compliance of the directions passed by NCB in this regard.
22. Admittedly, signatures of accused were not obtained on the parcels, and the NCB guidelines were not complied qua keeping the sample parcels and FSL form etc. in an envelope and sealing the envelope thereafter. The recovery and seizure has not been made in accordance with the standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi, and in this regard reliance is placed by the accused upon the case of [PRECEDENT].
Clause 1.9 & 1.10 of the Instructions reads as under:-
"1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, [ENTITY] witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples.
1.10 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret-Drug sample/Test Memo" to be sent to the chemical laboratory."
23. In the case of Mohd. Raffique vs. [ENTITY] 2000 CRI. L. J. 2401, Hon'ble Delhi High Court , observed as follows;
"6. In [ENTITY] of Punjab v. Baldev Singh (1999) 4 JT (SC) 595 :
(1999 Cri LJ 3672), it was held that the provisions of the [ACT] relating to search, seizure or arrest apply to search, seizure and arrest under the Act also to the extent they are not inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Act, the safeguards provided under the [ACT] are also required to be followed. It is well settled that failure to comply with the provisions of the [ACT] in respect of search and seizure and particularly those of [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] per se does not vitiate the trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguards would be violative of the reasonable, fair and just procedure. In [PRECEDENT], it was held that when a statute itself provides for a reasonable, fair and just procedure, it must be honoured. Thus, an accused has the right to a reasonable, fair and just procedure. The statutory provisions embodied in [SECTION] and [SECTION] of the Act and [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] provide for a reasonable, fair and just procedure.
7. [SECTION] of the Act read along with [SECTION], [ACT] contemplates that search should, as far as practicable be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so the onus would be on the prosecution to establish that the association of such witness was not possible on the facts and circumstances of a particular case. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Thus, the statutory desirability in the matter of search and seizure is that there should be two or more independent and respectable witnesses. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against authorised officers. In other words, the Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping in view the severe punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure as envisaged by the statute scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of statutory safeguards committed by the authorized officer during search and seizure operations and may also undermine respect of law. That cannot be permitted.
8. It is undisputed that no public witness was associated during the course of search and seizure proceedings and the prosecution case hinges solely on the testimony of police officials. As per prosecution case the secret information was received at 9.35 a.m. and the appellant was apprehended at about 10 A.M. Thus, there was sufficient time to procure attendance of public witnesses to witness the search and seizure. This is not a case where due to urgency of the matter or for any other reason, it was not possible to comply with the provisions of [SECTION] for associating public witness during the course of search and seizure. It is also undisputed that the appellant was apprehended in Gali Masjid Wali, which is a thickly populated area. Prosecution witnesses SHO [ENTITY] (P. W.
2) Constable [ENTITY] (P.W. 3) Constable [ENTITY] (P. W./4) and SI [ENTITY] (P.W. 6) want us to believe that at the relevant time public witnesses were approached but they declined to join the raiding party.
9. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons, who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may, in this context, be made to the provision of [SECTION] [ACT], which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under [SECTION] of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under [SECTION], [ACT]. In the instant case, there is nothing to indicate that the authorized officer had served or even attempted to serve an order in writing upon any public witness as envisaged by [SECTION], [ACT] In this connection, I may usefully excerpt the following observations of [ENTITY], J. in Rattan Lal v. [ENTITY], (1987) 2 Crimes 29 (Delhi) :-
". . . . . . . .In the case in hand the seizure and the arrest have been made under [SECTION] of [ACT]. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by [SECTION], [ACT] The explanation offered is that public witnesses were requested but they declined to co-operate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to co-operate without reasonable cause in spite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under [SECTION], [ACT] and this has been clearly spelt out in [SECTION], [ACT] In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards."
10. It has come in the evidence of Sub-Inspector [ENTITY] (P.W. 6), Constable [ENTITY] (P.W. 4) and Constable [ENTITY] (P.W. 3) that Gali Masjid Wali is a thickly populated area. It seems inconceivable that no one from the public had come to the spot to witness the alleged search and seizure operation. Having regard to the area and the place of search and seizure, it appears that public witnesses were available but no serious attempt was made by Sub-Inspector [ENTITY] (P.W. 6) to associate them before searching the appellant. I am unable to find any reason as to why he did not even make any attempt to associate any independent witness or witnesses during the course of search and seizure operation.
11. As stated earlier, the compliance with the procedural safeguards contained in the [ACT] and the Act are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the authorized officer. It has to borne in mind that where the error, irregularity or illegality touching the procedure committed by the authorized officer is so patent and loudly obtrusive that it leaves on his evidence an indelible stamp of infirmity or vice, which cannot be obliterated or cured, then it would be hazardous to place implicit reliance on it. The aforesaid circumstances make the court to be circumspect and look for corroboration of the testimony of the said police officials from independent sources. No such corroboration is coming forth in this case."
24. It is indeed true that mere non-joining of independent witnesses cannot be fatal. Indeed it may not be in a given case. But then the testimony of police witnesses must be inspiring and believable. In a serious case of [ACT], inviting stringent punishment, the above mentioned serious discrepancies cannot be ignored. An accused cannot be convicted on such tentative evidence. It is in the light of these discrepancies that non-joining of witnesses assumes significance.
25. In Mousam Singha Roy and Others v. [ENTITY] of West Bengal 2003 (3) JCC 1385 : [(2003) 12 SCC 377], Hon'ble Supreme Court held :
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since the higher degree of assurance is required to convict the accused."
26. All the above mentioned facts suggests that the testimony of the police officials is not worthy of credence and it would be unsafe to base conviction on their testimony. The testimony of police officials of this case does not pass the test of strict scrutiny in the present serious matter.
27. Benefit of doubt is given to the accused. Accordingly, accused is acquitted of the charges.
Announced in the open court on 28th day of March, 2014. [ENTITY] ASJ/Spl.Judge : [ACT] Rohini Courts (N-W)/Delhi