IN THE COURT OF SH [ENTITY] ADDL SESSIONS JUDGE/SPECIAL JUDGE (NDPS)DELHI SC No 143/07 The State Versus [ENTITY] S/o Sh [ENTITY], R/o Vill. Chingra PO Kharad Police Wtation Kurali, District Ropar, Punjab. FIR No 437/07 P.S. Kashmere Gate U/[SECTION] [ACT]. Arguments heard on 11.12.07 Judgment pronounced on 12.12.07 JUDGMENT
1. Prosecution has filed the present challan against accused [ENTITY] U/[SECTION] of [ACT] ( hereinafter referred to as the Act). Case of the prosecution, in brief, is that on 30.3.07 at about 9.50 p.m. [ENTITY] was on checking duty at in Gate ISBT when accused was seen coming out having two bags with him. On seeing the police, accused is alleged to have taken turn. On suspicion, [ENTITY] checked both the bags and they were found to contain posht powder. This fact was also allegedly confirmed by the accused. In the meantime, SI [ENTITY] is alleged to have also reached there. He is alleged to have given notice U/[SECTION] of the Act to the accused and apprised him of his legal right that since posht powder had been recovered from his possession and he could be in possession of more contraband, therefore, his search was required to be taken and if he so desired, his search could be taken in the presence of a Gazetted Officer or a Magistrate. But he is alleged to have declined this offer. Thereafter chura posht was weighed and it came to 23 Kg ( 12 Kg kept in one bag and 11 Kg in another bag) out of which 1 Kg was taken as sample and was kept in a small polythene. Two pulandas, one containing sample chura posht and another containing remaining [ENTITY] posht were allegedly prepared. Form FSL is alleged to have been filled in. Thereafter both the pulandas and form FSL are alleged to have been sealed with the seal of [ENTITY]. Case property is alleged to have been seized. Thereafter, rukka was allegedly prepared and case was got registered by sending [ENTITY] to the PS with rukka and case property with directions to hand over the rukka to duty officer and case property along with form FSL to SHO. After registration of the case, SI [ENTITY] is alleged to have prepared site plan, arrested accused, conducted his personal search, recorded statement of the witnesses, sent information U/[SECTION] of the Act to Superior Officers of the Police, got the sample sent to FSL. He allegedly obtained report of FSL. After completion of the investigation, he filed the chargesheet in the court.
2. On appearance, accused was supplied with copies of the challan and documents filed therewith as required under [SECTION] [ACT]
3. Charge U/[SECTION] of the Act was framed against the accused [ENTITY] to which he pleaded not guilty and claimed a trial.
4. In order to bring home guilt of the accused, prosecution in all has examined as many as eight witnesses out of which PW-8 SI [ENTITY] and PW-3 [ENTITY] are witnesses of alleged recovery and rest of witnesses are witnesses of investigation.
5. The accused was examined under [SECTION] [ACT] His case is that he is innocent and has been falsely implicated in this case.
6. PW-8 SI [ENTITY] in his testimony has stated that on 30.3.07 at about 10.00 p.m. He was on patrolling duty and was present in the area of PP ISBT and when he reached at In-Gate, ISBT, [ENTITY] is deposed to have met him along with accused and two bags. [ENTITY] is deposed to have apprised him of recovery of [ENTITY] posht from the bags of accused. He is deposed to have also checked the bags. Thereafter, he is deposed to have recoded statement of [ENTITY] and asked few passengers to join the proceedings but none agreed and went away. Thereafter, he is deposed to have served notice U/[SECTION] of the Act Ex PW8/A on the accused. He is deposed to have also informed the SHO about recovery of [ENTITY] posht through telephone. Thereafter chura posht is deposed to have been weighed and it came to 23 Kg ( 12 Kg kept in one bag and 11 Kg in another bag) out of which 1 Kg was taken as sample and was kept in a small polythene. Two pulandas, one containing sample chura posht and another containing remaining [ENTITY] posht are deposed to have been prepared. Form FSL is deposed to have been filled in. Thereafter both the pulandas and form FSL are deposed to have been sealed with the seal of [ENTITY]. Both the sealed pulandas and form FSL are deposed to have been taken into possession vide seizure memo Ex PW3/A. Thereafter, he is deposed to have prepared rukka and got the case registered by sending [ENTITY] to the PS. He is deposed to have also handed over both the pulandas, form FSL and carbon copy of the seizure memo to [ENTITY] with directions to hand over the same to SHO It is deposed that at about 12.20 p.m. [ENTITY] returned back to the spot and handed over him copy of the FIR and tehrir. Thereafter, he is deposed to have prepared site plan Ex PW8/C at the instance of [ENTITY]. He is deposed to have arrested accused vide memo Ex PW8/D and conducted his personal search vide memo Ex PW8/E, got the accused medically examined, deposited persoal search items of accused in Malkhana. He has also deposed that due to language problem with accused, his name was firstly understood as [ENTITY] but it was subsequently confirmed that his name was [ENTITY]. Thereafter, he is deposed to have sent report u/[SECTION] of the Act Ex PW8/F to the Superior Officer of the Police. He is deposed to have sent the sample and form FSL to FSL, Rohini through [ENTITY]. He is deposed to have tendered in evidence report of FSL. He has identified two bags as Ex P-1 and Ex P-2, posht powder as Ex P-3 and remnant posht powder as Ex P-4.
7. Mutatis mutandis PW-3 [ENTITY] has also deposed to the same effect on all the material facts. He has also testified that on 30.7.07 while he was on duty at in Gate at about 9.50 p.m. accused was seen coming with two bags and on seeeing him, he took a turn. On suspicion, he is deposed to have checked two bags of accused which were found to contain posht powder and this fact was also confirmed by accused himself. In the meantime, SI [ENTITY] is deposed to have reached the spot and he handed over the accused and bags to him.
8. PW-5 is Inspector [ENTITY] ( Inspector Investigation) on 30.7.07 was looking after work of SHO, PS, Kashmere Gate when [ENTITY] handed over to him one plastic katta, one sample pulanda, FSL form duly sealed with seal of [ENTITY] along with copy of seizure memo at 11.59 p.m. He is deposed to have put his seal of MSP on plastic katta, sample pulanda and form FSL and also put FIR number on the same and deposited them in the malkhana. He has also testified that SI [ENTITY] is deposed to have produced accused [ENTITY] before him at 2.20 a.m.
9. PW-1 ASI [ENTITY] was working as duty officer P.S. Kashmere Gate on 30.7.07. He has deposed that on that day at about 10.50 p.m. on receipt of rukka from [ENTITY] sent by SI [ENTITY], he recorded FIR of this case vide kayami entry No 32A. He has proved carbon copy of the FIR as Ex PW1/B and endorsement made by him on the rukka as Ex PW1/A.
10. PW-6 [ENTITY] was working as DD writer at PP ISBT. She has proved copy of DD No 43 and 41 as Ex PW6/A and Exx PW6/B.
11. PW-2 Hc [ENTITY] was working as MHCM at the relevant time. He has deposed that on 30.7.07 Inspector [ENTITY] had deposited two pulandas, form FSL duly sealed with the seal of [ENTITY] and MSP and he deposited the same in malkhana vide entry No 4418 in register No 19. On 27.8.07 he is deposed to have got sent the sample pulanda and form FSL to FSL Rohini. On 17.10.07 result of FSL is deposed to have been received and he handed over the result to IO and deposited the remnants of parcel in the malkhana and made relevant entry in the register No 19. He has proved copy of extract of register No 19 as Ex PW2/A, copy of RC as Ex PW2/B and photocopy of receipt as Ex PW2/C.
12. PW-4 Hc [ENTITY] from the office of ACP, Sadar Bazar has proved receipt of information U/[SECTION] of the Act Ex PW4/A in his office on 1.8.07 and he entered the same in register maintained in the office of ACP copy of which has been proved as Ex PW4/B.
13. PW-7 Ct [ENTITY] is deposed to have taken the sample to FSL and deposited it there on 27.8.07. According to him, he had taken sample of thecase and form FSL duly sealed with the seal of [ENTITY] and MSP on 27.8.07 and deposited the same in the office of FSL.
14. It has been argued by ld APP that accused was apprehended by the police and from his possession 23 Kgs of [ENTITY] posht had been recovered from two bags which he was carrying with him. It has been argued that as per report of FSL, contents of the sample taken from the stuff recovered from the accused have been opined to be poppy straw, therefore, case against the accused U/[SECTION] [ACT] stands proved.
15. On the other hand, it has been argued on behalf of the accused that name of the accused in notice U/[SECTION] of the Act allegedly served on the accused has been mentioned as [ENTITY] whereas in the reply his name has been mentioned as [ENTITY]. It is argued that it is not known whether the person arrested was [ENTITY] or [ENTITY].
16. I do not find any force in this contention. From the side of the accused himself, a suggestion has been put to PW-3 [ENTITY] to the effect that accused has been substituted in place of some person who was left off by the police. Similar suggestion was put to PW-8 SI [ENTITY] that different person was arrested and accused has been substituted in his place. One thing is clear that it has not been disputed on behalf of the accused that he had been apprehended by [ENTITY] on the given date, time and place. In notice U/[SECTION] of the Act allegedly served on the accused, his address has been mentioned as village Chingara PO Kharad, PS Kurali District Ropar, Punjab. Same address has been mentioned in his personal search Ex PW8/A and Ex PW8/B which has been signed by the accused as [ENTITY]. Even notice U/[SECTION] of the Act has been signed by him as [ENTITY] but reply has been signed by him as [ENTITY]. PW-8 has specifically stated that first name of the accused was mentioned as [ENTITY] but later on it was changed into [ENTITY] when his correct name came to be known after registration of the case. According to him, the error has crept up because of language problem. It is, therefore, clear that initially name of the accused was written as [ENTITY] and later on it was changed to or corrected as [ENTITY]. It is not disputed by accused that his address in the notice is correct. Therefore, error in mentioning his name is hardly of any consequence particularly when it has not been disputed on behalf of accused that he was arrested on a given date, time and place. It is a different matter and requires investigation if accused had been substituted in place of a different person.
17. It has been argued on behalf of the accused that the provisions of [SECTION] [ACT] have not been complied with in the present case. It is argued that the police had prior information regarding possession of smack by the accused, but neither the information has been recorded in writing nor the same has been produced on record, nor it has been proved that it had been sent to any senior police officer, therefore, it does not stand proved on record that provision of [SECTION] of [ACT] were complied with therefore accused is entitled to acquittal. Ld. Counsel for the accused has relied upon an authority [PRECEDENT], where it has been held that if provision of [SECTION] [ACT] are not complied it would entail in acquittal of the accused. Similar view was taken in Bagru Ram vs. State of Delhi 2001, JCC Delhi
1. However, in [PRECEDENT] it has been held that provision of [SECTION] [ACT] are attracted only where search for narcotics is required to be conducted in any building, conveyance and enclosed place, between sun rise and sunset and not where drug is carried by a person. Similarly in [PRECEDENT] , it has been held that provision of [SECTION] [ACT] are not attracted where police officer has stopped the vehicle in public place and conducted search and seizure. In view of these authority I am of the view that since the recovery in the present case has not been effected from any house or enclosed place, provisions of [SECTION] of the Act were not attracted and non compliance thereof is hardly of any significance in this case.
18. It has also been argued that there were shops at ISBT, there were taxi stand and was a busy place, however, no efforts were made by the IO to join the independent witness. Under the law, the court has to presume that official acts are performed in due course of law. If this argument is accepted, then Court will have to adopt an approach of inbuilt suspicion in its mind as to the integrity of police officials which is not a correct approach. The testimony of police officials is to be appreciated like any other witness. But it is rule of caution that Court should scrutinise the testimony of police witnesses with utmost care and caution to assure itself of its credibility. The lack of cautious approach is likely to cause miscarriage of justice. While appreciating the genuine difficulties of the police officials in joining independent witnesses our own Hon'ble High Court in [PRECEDENT] had observed that public generally hesitate to associate with police therefore the police has to take help of person known to them or the complainant. Even otherwise, in [PRECEDENT] the Lordship of Hon'ble Supreme Court has held that evidence of police officials cannot be discredited in the absence of the hostility to the accused. In other authority reported as [PRECEDENT] it was held that evidence of police officials cannot be branded as highly interested only on the ground that they are interested in the success of their case. Even in [PRECEDENT], it has been held that civilised people are generally insensitive when a crime is committed in their presence. They keep themselves away from the court unless it is inevitable and they try to avoid to involve themselves. In view of these authorities, I am of the view that keeping in view general disinclination on the part of the people at large to join the police investigation, it cannot be said that there was any avoidance or evasion on the part of IO in joining independent witnesses. I am therefore of the view that non-joining of the independent in the factual matrix of the case was beyond the control of police and it is not a circumstance to raise suspicion about the motives of the police officials.
19. It has further been argued that FIR in this case has been recorded after completion of the investigation and investigation of this case was not marked to SI [ENTITY] which is infirmity in this case. It is argued that SI [ENTITY] is an eye witness and who has conducted the proceedings, therefore, some independent IO could have been deputed to conduct the investigation.
20. In his testimony PW-1 ASI [ENTITY] has testified that on receipt of original rukka from SI [ENTITY], he recorded FIR of this case Ex PW1/B. At the same time, he has stated that after recording the FIR, he had handed over tehrir and copy of FIR to [ENTITY] to deliver the same to SI [ENTITY]. If the original tehrir had been passed on to SI [ENTITY], certainly that would have been filed along with the challan. But with the challan only photocopy of rukka has been filed. The rukka purports to have been sent by SI [ENTITY] but the duty officer ASI [ENTITY] has not assigned any reason as to why he marked the investigation to SI [ENTITY] who himself was in the capacity of a witness in this case. Secondly no explanation is forthcoming as to how the original rukka remained with the duty officer when he had already sent the same to SI [ENTITY]. In [PRECEDENT], it has been held that if a police officer who had lodged the FIR as a complainant and same officer should conduct the investigation, it is bound to reflect on the credibility of the prosecution case. Though it is an infirmity but in itself is not sufficient to throw out the prosecution case. However, court may take this fact into consideration with other circumstances proved on record.
21. It has also been argued that PW-3 [ENTITY] is the only alleged witness who is alleged to have recovered the contraband from the accused and he himself is hostile. It is argued that another witness PW-8 SI [ENTITY] is only thewitness who had conducted the investigation and to his own admission does not have knowledge as to under what circumstances the contraband was recovered from the accused, therefore, evidence of PW-3 [ENTITY] is not sufficient to warrant a conviction.
22. The version of PW-3 is that accused was carrying two bags which contained 11 and 12 packets of posht powder respectively in each bag. According to him, 1 Kg was taken as sample and remaining 23 Kg was sealed in different pulanda with the seal of [ENTITY]. This witness was declared hostile by the prosecution and was cross examined by ld Addl PP. In response to the leading question put by ld Addl PP, he affirmed that name of SI was [ENTITY] and not [ENTITY]. He had also affirmed that form FSL was sealed with the seal of [ENTITY]. According to him, sealed pulanda and form FSL were delivered by him to the SHO.
23. In his cross examination, this witness has stated that IO did not have the test kit with him and that he relied upon the statement of the accused. But the case of PW-8 SI [ENTITY] is that he had tested the narcotics with test kit which was in IO's bag. However, according to him both the pulandas containing sample and remaining pulanda along with form FSL were sealed with seal of [ENTITY] and were sent to SHO through [ENTITY]. In the suggestion put to this witness, accused has not disputed that he was apprehended by [ENTITY] at the spot. His case is only that he was substituted and real culprit was let off by the police. PW-3 [ENTITY] is hostile only on the point of sealing of the FSL form with the seal of [ENTITY]. This fact has been mentioned by PW-8. Therefore, merely because PW-3 is partly hostile on certain facts is no ground to disbelieve him on other facts.
24. It is further argued on behalf of accused that prosecution has not ruled out the possibililty of sample being tampered with or changed. In his testimony PW-3 [ENTITY] has stated that one pulanda, one katta and form FSL sealed with the seal of [ENTITY] were taken by him from the spot and he had handed over the same to SHO PS Kashmere Gate. Same is the version of PW-8 SI [ENTITY]. According to him, two pulandas, one form FSL sealed with the seal of [ENTITY] were handed over to Ct [ENTITY] to hand over the same to SHO. PW-5 Inspector [ENTITY] has stated that [ENTITY] had delivered to him one plastic katta, one sample pulanda and form FSL duly sealed with the seal of [ENTITY] along with copy of seizure memo on 30.7.07 at about 11.59 p.m. According to him, he put his seal of MSP on the plastic katta, sample and form FSL and mentioned the FIR number thereon and deposited the same in malkhana with [ENTITY] who was MHCM. He is deposed to have made the entry in register No 19.
25. PW2 Hc [ENTITY] was the MHCM.
According to him on 30.7.07 he was MHCM and Inspector [ENTITY] deposited in malkhana two pulandas, one form FSL sealed with the seal of [ENTITY] and MSP and made entry No 4418 in register No 19. Copy of the relevant entry has been proved as Ex PW2/A. If I peruse Ex PW2/A, I do not find any mention of two pulandas and form FSL having been sealed with the seal of MSP in it. It is only the reproduction of alleged recovery memo and states that two pulandas were sealed with the seal of [ENTITY] as also form FSL. It has been signed by Inspector [ENTITY] and it is presumed that he must have gone into the contents of Ex PW2/A. It is contrary to what has been deposed by PW-2 Hc [ENTITY] and PW-5 Inspector [ENTITY]. Ex PW2/A only shows that pulandas and form FSL were sealed with the seal of [ENTITY] only.
26. The sample in this case was sent to FSL on 27.8.07. According to PW-2 [ENTITY], the sample pulanda and form FSL were sealed with the seal of [ENTITY] and MSP. Copy of the RC has been proved as Ex PW2/B. Copy of entry in register No 19 has been proved as Ex PW2/A as already stated. There is an entry in column No 7 in Ex PW2/A that sample pulanda sealed with the seal of [ENTITY] and MSP along with form FSL were sent through [ENTITY] to FSL. There is no mention that form FSL was also sealed with the seal of [ENTITY] and MSP. It has not even been signed by [ENTITY]. [ENTITY] has been examined as PW-7. He has stated that on 27.8.07 when he had taken the sample to FSL, pulanda and form FSL were duly sealed with the seal of [ENTITY] and MSP. He had taken the sample through [CASE NUMBER]. The copy of the RC has been proved as Ex PW2/B. In Ex PW2/B, it has been mentioned that one sealed pulanda sealed with the seal of [ENTITY] and MSP was handed over to [ENTITY] to deposit the same in FSL. There is no mention of form FSL or the fact that it was sealed with the seal of [ENTITY] and MSP and was also taken by [ENTITY]. Ex PW2/B has been signed by [ENTITY]. Therefore, there is a variance in entry regarding dispatch of form FSL in Ex PW2/A and Ex PW2/B. These variances in the record are contrary to what has been deposed by prosecution witnesses. If the testimony of witnesses referred to above are relied upon, then entries in the register No 19 stand contradicted. If entries Ex PW2/A and 2/B are relied upon, then testimony of the witnesses referred to above stand contradicted. There is no explanation as to how the seal of MSP came on the pulandas when it has not been mentioned in Ex PW2/A that pulandas when deposited bore the seal of MSP. These are the circumstances which cast a doubt on the veracity of the prosecution case. In other words, prosecution has not been able to rule out the possibility of sample being tampered with or changed.
27. Even otherwise, there are contradictions in the testimony of PW-3 and PW-8. First of all, the contradiction is in respect of the testing kit used to test the contraband. According to PW-3 [ENTITY] IO was having testing kit with him ,however, in his cross examination, he has stated that IO was not having IO kit with him. PW-8 has stated that the had tested contraband with the help of test kit, he was having. Question arises as to how contraband was tested. There is another contradiction regarding weight and scale. According to PW-3 [ENTITY] weight and scale were brought from the PS. According to him scale was manual and there were weights of several gram. According to PW-8 IO bag was with him and testing kit and weighing instruments were in the IO bag. Still there is a contradiction as to who had gone to PS to bring weight and scale.
28. These are the infirmities which have reflection on the testimony of prosecution witnesses. In the face of serious infirmities in the testimony of prosecution witnesses, it will be most unsafe to rely upon their testimony. They are sufficient to raise reasonable doubt about veracity of the prosecution case. Secondly, prosecution has failed to rule out the possibility of sample being changed or tampered with and accused is entitled to the benefit of doubt. Accordingly I hold that prosecution has failed to prove its case against accused beyond reasonable doubt. After giving benefit of doubt, accused [ENTITY] is acquitted. He be set at lilberty forthwith, if not required in any other case.
Announced on the Open Court on 12.12.07 ([ENTITY]) ASJ/SPL. JUDGE( NDPS) DELHI