IN THE COURT OF SH. BRIJESH KUMAR GARG: SPECIAL JUDGE(NDPS)/ADDL.SESSIONS JUDGE (NORTH EAST) : KARKARDOOMA COURTS, DELHI SC No. 09/2011 FIR No. 176/2010 PS Crime Branch Under Section 21 [ACT] Case ID 02402R0112042011 [ENTITY] Versus [ENTITY] S/o Late Gurdeep Singh, R/o A8, Gali no. 1, Jagatpuri, Delhi. Date of Institution 08.04.2011 Date of hearing Arguments 14.09.2012 Date of Judgment 24.09.2012 J U D G M E N T
1. In the present case, the accused is facing trial for the offence punishable U/[SECTION] of the [ACT], on the allegations that on 22.12.2010, at about 1.20 a.m., in front of Gagan Cinema, Opposite Carriage Way, Delhi, within the jurisdiction of P.S.Crime Branch, he was found in possession of 420 grams of '[ENTITY]', containing 0.58% diacetylmorphine, a contraband, without any license or permit.
2. In order to prove the charges against the accused, the prosecution has examined a total of eleven witnesses, who are all police officials, except PW8, [ENTITY], MLO from Transport Authority, Suraj Mal Vihar, who has produced the registration record of the motorcycle No. DL 13S 0188.
3. After completion of prosecution evidence, the statement of the accused was recorded U/[SECTION] [ACT], on 24.08.2012, wherein, the accused has denied all the incriminating evidence against him and has deposed that he is innocent and has been falsely implicated in this case. He has further stated that he was lifted from his house and the contraband was planted upon him. He has further stated that all the writing work was done in the police station and his signatures were obtained on some blank papers, written documents and printed proformas. The accused has not led any defence evidence, despite opportunity.
4. After completion of trial, final arguments were addressed by Sh. [ENTITY], Ld. Additional PP for the [ENTITY] and Sh. [ENTITY], Advocate, for the accused. The Ld. Addl. PP for the [ENTITY] has argued that all the mandatory provisions of the [ACT] have been duly followed by the investigating officers and the prosecution witnesses have duly proved the recovery of 420 grams of '[ENTITY]', containing 0.58% diacetylmorphine, from the possession of the accused and therefore, the accused should be convicted for the offence punishable U/[SECTION] of the [ACT].
5. On the other hand, the Ld. Defence Counsel, Sh. [ENTITY], Advocate, has argued that the accused has been falsely implicated in this case and no recovery was effected from his possession. He has also argued that the provisions of [SECTION] of The [ACT] have not been complied by the police officials properly and no efforts were made by the police officials to join any public person or Gazetted Officer, as a witness, during the entire proceedings. He has also argued that the accused was never told about his legal rights.
6. He has further argued that there are several contradictions, in the depositions of the witnesses. He has argued that the alleged recovery was affected on 22.12.2010 and the sample was sent to FSL on 06.01.2011, and therefore, there is a delay of about 15 days in sending the samples to FSL and the same violates the guidelines issued by the NCB.
7. He has further argued that the IO SI [ENTITY] was knowing the accused even prior to the alleged incident, as he was also the IO of case FIR No. 104/07, which was previously instituted against the accused. He has also argued that in the said case also, Constable [ENTITY] was a member of the raiding party and SI [ENTITY] is the second Investigating Officer and therefore, there was no requirement or necessity for the secret informer accompanying the police party and to identify the accused at the spot. Even the motorcycle of the accused bearing registration No. DL13S 0188 was seized and allegedly involved in case FIR No. 104/07. He has further argued that even the accused was knowing the IO and the other police officials, who were the members of the raiding party in the present case, prior to the alleged incident of the present case and therefore, the entire prosecution story has been concocted and fabricated by the police officials and the accused has been falsely implicated in this case.
8. He has further argued that the material contradictions in the deposition of the witnesses and the discrepancies on record, as disclosed above, make the entire prosecution case doubtful and therefore, the accused be acquitted of the offence punishable U/[SECTION]
(c) of the [ACT].
9. I have carefully gone through the case file & I have given my considered thoughts to the arguments addressed by the Ld. Defence Counsel and the Ld. Addl. PP for the [ENTITY]. Perusal of the record shows that on 22.12.2010 a secret information was received by SI [ENTITY] (PW11) at about 11.00 p.m. and he informed about the secret information to Inspector [ENTITY] (PW7) Incharge, Narcotics Cell, and he passed the information to ACP (N&CP) Sh. [ENTITY], who directed Inspector [ENTITY] to take immediate action. Thereafter, the secret information was reduced into writing vide DD no. 24 at 11.20 p.m. and a copy of the same was produced before Inspector [ENTITY]. Thereafter, on the directions of Inspector [ENTITY], a raiding party was constituted by IO SI [ENTITY] and a raid was conducted. The secret informer allegedly accompanied the raiding team and at about 1.20 a.m. the accused was seen coming to the spot on his motorcycle No. DL 13S 0188 and on the identification of the secret informer, he was stopped by the raiding team. Thereafter, SI [ENTITY] informed him about the identity of the police officials and about the secret information to him. Thereafter, offer was allegedly given to the accused to get himself personally searched in the presence of a Gazetted Officer or a Magistrate and an offer was also given to him to search the official vehicle and to search the members of the raiding party and on alleged refusal of the accused, the IO severed the notice U/[SECTION] [ACT], Ex.PW10/C and recorded his refusal Ex.PW1/A1. Thereafter, the personal search of the accused was conducted by SI [ENTITY], wherein 420 grams of '[ENTITY]', was recovered from left side inner pocket of wearing leather jacket of the accused.
10. During the course of arguments the Ld. APP for the [ENTITY] has admitted that the accused was previously involved in case FIR No. 104/07 U/[SECTION] [ACT] of PS Crime Branch and the same is also pending trial in this Court and is listed for disposal on 28.09.2012. Perusal of the said case file also indicate that in the said case also, SI [ENTITY] is the complainant, Constable [ENTITY] is also a member of the raiding police party and SI [ENTITY] is again the second Investigating Officer. Even in that case, the accused was apprehended by the police party headed by SI [ENTITY], while he was allegedly going to supply [ENTITY] to some customer on his motorcycle No. DL 13S 0188.
11. Perusal of the record of the present case indicates that SI [ENTITY] had allegedly received the secret information about the accused and his motorcycle number was also disclosed by the secret informer, but still, SI [ENTITY] failed to recognize the accused and he constituted the raiding team and took the secret informer with him to the spot. Even on the spot, the accused was stopped only on the identification of the secret informer. When the IO SI [ENTITY] was already personally acquainted with the accused, where was the need for him to take the secret informer to the spot, with the police party? Where was the need for the secret informer to identify the accused? The IO SI [ENTITY] and Constable [ENTITY] would have easily identified the accused themselves, as both of them were knowing the accused even prior to the present incident. This fact has been admitted by SI [ENTITY] in his examination in chief in the Court.
12. Furthermore, SI [ENTITY] allegedly gave information about the secret informer and identity of the police officials to the accused and also offered him to get his personal search conducted in the presence of a Gazetted Officer or a Magistrate, but, none of the police officials have disclosed in their statements recorded in the Court that the accused was explained about his legal rights and he was categorically told that he was having a legal right to get his personal search conducted in the presence of a Gazetted Officer or a Magistrate. SI [ENTITY] has not made any effort or an endeavour to produce the accused before a Gazetted Officer or a Magistrate, prior to conducting his personal search. It has been held by the Hon'ble Appex Court in case titled as [ENTITY] Vs. [ENTITY] of Gujarat, reported as AIR 2011, SC 77, as under:
"22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under [SECTION] of the [ACT], by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under [SECTION] of the [ACT] is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Therefore, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed In Re: [PRECEDENT], it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of [SECTION] of the [ACT] introducted and read into the mandate of the said Section in [ENTITY] (supra) and [ENTITY] (supra) is neither borne out from the language of [SECTION] nor it is in consonance with the dictum laid down in [ENTITY]'s case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of [SECTION] had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though [SECTION] gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings. It may verily strengthen the prosecution as well".
(emphasis supplied by me).
13. It has been further held by the Hon'ble Supreme Court in case titled as [PRECEDENT], as under: "5. The obligation of the authorities under [SECTION] of the [ACT] has come up for consideration before this Court in several cases and recently, the constitution Bench of this Court in the case of [ENTITY] v. [ENTITY] of Gujarat MANU/SC/0913/2012 : (2011) 1 SCC 609 has settled this controversy. The Constitution Bench has held that requirement of [SECTION] of the [ACT] is a mandatory requirement and the provision of [SECTION] must be very strictly construed.
6. From the perusal of the conclusion arrived at by this Court in [ENTITY]'s case, it appears that the requirement under [SECTION] of the [ACT] is not complied with by merely informing the accused of his option to be searched either in the presence of a gazette officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazette officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, as Endeavour should be made by the prosecution agency to produce the suspect before the nearest Magistrate.
(emphasis supplied by me).
14. From the above pronouncements, it is clear that the provisions of [SECTION] [ACT], are to be complied strictly. But, in the present case, the provisions of [SECTION] [ACT] have not been complied, strictly. The SI [ENTITY] was duty bound to produce the accused before a Gazetted Officer or a Magistrate, immediately, after his apprehension by the raiding party, prior to conducting his personal search. Furthermore, the refusal by the accused to get himself searched in the presence of a Gazetted Officer or a Magistrate does not appear to be voluntary. The accused had already been apprehended & was surrounded by the police party, consisting of SI [ENTITY], HC [ENTITY] and HC [ENTITY], when the notice U/[SECTION] [ACT] was allegedly served upon him. The refusal by the accused, to get himself personally searched in the presence of a Gazetted Officer or a Magistrate, can, by no stretch of imagination be held to be voluntary, when the accused was already in the custody of the police officials. Furthermore, perusal of original notice U/[SECTION] [ACT] Ex.PW1/A and its carbon copy Ex.PW10/C indicates that the carbon copy Ex.PW10/C does not bear the signatures of accused, whereas, the original notice Ex.PW1/A bears the signatures of the accused at point A. It indicates that even the notice U/[SECTION] [ACT] was not actually served upon the accused.
15. It is further observed that the secret information was received by SI [ENTITY] at the police station at about 11.00 p.m. and the raiding party reached the spot at about 12.30 a.m. and the accused was apprehended by the police party at about 1.20 a.m. and therefore, there was enough time for SI [ENTITY] to call the public witnesses to join the proceedings. It has been stated by the SI [ENTITY] and the other members of the raiding party that several public persons were asked to join the police party, but, nobody obliged and those persons had left the spot, without disclosing their names and addresses. SI [ENTITY] has failed to serve any written order or notice upon such public persons, for their willful non cooperation. It has been held by the Hon'ble High Court of Delhi in case titled as Mohd. Raffique Vs. [ENTITY], reported as 2000 II AD (Cr.) DHC 365, as under: "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 provisions 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 instance case, there is nothing to indicate that the authorised 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 Vs. [ENTITY], 1987 92) Crimes 29: " 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 cooperate. 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 cooperate without reasonable cause inspite of any 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 the same has been made in the case diary. Obviously, there is a deliberate attempt defeat the legislature 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."
(emphasis supplied by me).
16. Perusal of the record further shows that the alleged sample of [ENTITY], 'MarkA', was sent to FSL Rohini through Constable [ENTITY] on 06.01.2011. The alleged recovery was effected from the possession of the accused on 22.12.2010. Therefore, there is a delay of about 15 days in depositing the samples at the FSL, Rohini. No explanation has been given by the IO, regarding the delay in submitting the samples to FSL Rohini, for chemical analysis.
17. It has been held by the Hon'ble High Court of Delhi in case titled as Matloob Vs. [ENTITY] (Delhi Administration), reported as 67 (1997) DLT 372, as under:
"11. My attention was drawn to Delhi High Court Rules and [SECTION], which interalia, provides that articles for the opinion of the chemical examination should be forwarded without the least possible delay. In considering all this, delay if any, can be explained by the prosecution. Samples to CFSL in this case were despatched about one month after the substance was seized and no explanation for so much time taken in despatching the samples is forthcoming on record. Thus the prescribed promptitude appears to be lacking in this case."
(emphasis supplied by me).
18. It has been further held by the Hon'ble High Court of Delhi in case titled as Rishidev @ Onkar Singh Vs. [ENTITY] (Delhi Administration), decided on 01.05.2008 in [CASE NUMBER], as under: "8. In a significant judgment in Parminder Singh v. [ENTITY] of Haryana 2007 (2) JCC (Narcotics) 71, the Punjab and Haryana High Court found that there was no explanation for the delay of 25 days in sending the samples for analysis. In para 13 of the judgment it was held as under: (JCC @ p.76)
13. No. explanation has come forward from the side of the prosecution as to why the samples were sent after a gap of 25 days for analysis. [ENTITY], Retired Senior Scientific Officer, FSL, Madhuban PW2 has stated that on 7.8.2001 five sealed parcels were received in the Laboratory, but the same were returned back due to the reason that the FIR in that case was registered on 12.7.2001, with the objection regarding the delayed deposit of sample parcels. As per this witness, according to the narcotic Control Bureau Instructions, the sealed parcels should be deposited within 72 hours with the Chemical Examiner. He has further stated that two samples were to be taken of the seized contraband as per instructions. The explanation given by DSP [ENTITY] PW6 to this witness was that samples could not be sent earlier due to VVIP duties. [ENTITY] MHC PW3 brought [ENTITY] from 12.7.2001 to 16.7.2001. During this period, it has been shown that the Police Force was not sent for VVIP duty at anytime. The crossexamination or [ENTITY] MHC PW3 was deferred by the trial court to enable the witness to produce the Roznamcha from 16.7.2001 to 13.8.2001. This witness was not brought into the witness box by the prosecution. We can safely infer that [ENTITY] PW3 was not brought again into the witnessbox, as the period from 16.7.2011 to 13.8.2001 did not show any VVIP duty. It is clear that the Investigation Officer [ENTITY] DSP PW6 has only made an excuse, which is not convincing, that the samples could not be sent because of VVIP duty."
The above passage shows that there is a time limit of 72 hours stipulated by the narcotics Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event."
(emphasis supplied by me)
19. In the present case, the prosecution has led the evidence regarding the deposition of the case property at the Malkhana on 22.12.2010 and sending of the sample to FSL on 06.01.2011, but, there is no evidence for explanation of delay of about 15 days in sending the samples to FSL for chemical examination and the same violates the guidelines of NCB.
20. In view of the above discrepancies in the prosecution case, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond a shadow of doubt, and therefore, the accused is hereby acquitted for the offence punishable U/[SECTION] of the [ACT]. The accused, who is in judicial custody, be released henceforth, if not wanted in any other case. The accused is directed to submit a bail bond in the sum of Rs.20,000/ with one surety of the like amount and the same shall remain in force for a period of six months from today, as per the provisions of [SECTION] of the [ACT]
21. The accused is further directed to appear before the appellate Court, as and when the notice is issued to him by the appellate Court, in any appeal, if preferred by the [ENTITY].
File be consigned to record room, after due compliance. Announced in the open Court on this 24th day of September, 2012. [ENTITY] Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.