IN THE COURT OF SH [ENTITY] ADDL SESSIONS JUDGE/SPECIAL JUDGE (NDPS) DELHI SC No 95/07 The State Versus [ENTITY] S/o Sh [ENTITY], R/o Vill & P.O. Gadbahaduri, P.S. Palanova, Distt. Motihari, Bihar. FIR No 185/07 P.S. Kashmere Gate U/[SECTION] [ACT]. Arguments heard on 08.07.2008 Judgment pronounced on 15.07.2008 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 12.4.07 [ENTITY] of PP ISBT, PS Kashmere Gate was on duty at Link Hall, DFMD, ISBT, Kashmere Gate from
8. a.m. to 8 p.m. He is alleged to have been checking the passengers coming from outside towards bus stand. At about 5.20 p.m. accused was allegedly noticed coming inside towards DFMD having a bag on which word sport was written on his shoulder. On seeing the police, accused is alleged to have turned back, therefore, on suspicion, he was apprehended by [ENTITY] after a chase. On inquiry, accused is alleged to have told that he had charas in his bag. [ENTITY] is alleged to have given information to PP ISBT and at about 5.40 p.m. ASI [ENTITY] reached the spot. ASI [ENTITY] is alleged to have asked 4/5 passers by to join the raid but none agreed. He is alleged to have given notice U/[SECTION] of the Act to the accused and apprised him of his legal right that since he is suspected of having charas in his bag and some more contraband could also be recovered from his possession, 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 bag of accused was allegedly opened, 7 packets of battinuma substance ( pencil type) wrapped in yellow pinni from underneath a lungi were recovered. On being weighed, charas came to 7 Kg out of which 500 gram was taken out as sample and converted into a [ENTITY]. Remaining [ENTITY] was kept in the same polythene and then polythene and lungi were also kept in the same bag and converted into a [ENTITY]. Form FSL was allegedly filled in. Both the [ENTITY]s and form FSL were allegedly sealed with the seal of [ENTITY]. Case property was seized vide a seizure memo. ASI [ENTITY] is alleged to have recorded statement of [ENTITY], made endorsement thereon and prepared a [ENTITY]. [ENTITY] was allegedly sent to PS with [ENTITY] and both the [ENTITY]s, and form FSL with directions to hand over the [ENTITY] to duty officer and case property along with form FSL to SHO. After registration of the case, [ENTITY] allegedly reached the spot. He is alleged to have arrested the accused and recorded his disclosure statement. Personal search of the accused was allegedly carried out. He is alleged to have prepared site plan at the instance of [ENTITY]. Accused was allegedly got medically examined. He is alleged to have sent information u/[SECTION] the Act to Senior Officer of the Police. He is alleged to have recorded statement of the witnesses. He is deposed to have got sample of the case sent to FSL for chemical analysis. On receipt of report of FSL, same was filed. 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 seven witnesses out of which PW-7 ASI [ENTITY] and PW- 4 [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-4 [ENTITY] is deposed to have apprehended the accused. In his testimony, he has deposed that on 12.4.07 he was on duty at Link Hall, DFMD, ISBT, Kashmere Gate from 8. a.m. to 8 p.m. He is deposed to have been checking the passengers coming from outside towards bus stand. At about 5.20 p.m. accused is deposed to have been noticed coming inside towards DFMD having a bag on his shoulder on which word sport was written. On seeing the police, accused is deposed to have turned back, therefore, on suspicion, he was apprehended by him after a chase. On inquiry, accused is deposed to have told that he had charas in his bag. He is deposed to have given information to PP ISBT and at about 5.40 p.m. ASI [ENTITY] reached the spot.
7. PW-7 ASI [ENTITY] is deposed to have asked 4/5 passers by to join the raid but none agreed. He is deposed to have given notice U/[SECTION] of the Act Ex PW4/A to the accused and apprised of his legal right that since he is suspected of having charas in bag and some more contraband could also be recovered from his possession, 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 deposed to have declined this offer Ex PW7/A. It is deposed that bag of accused was opened and 7 packets of battinuma substance ( pencil type) wrapped in yellow pinni from underneath a lungi were recovered. On being weighed, charas came to 7 Kg out of which 500 gram was taken out as sample and converted into a [ENTITY]. Remaining [ENTITY] was kept in the same polythene and then polythene and lungi were also kept in the same bag and converted into a [ENTITY]. Form FSL is deposed to have been filled in. Both the [ENTITY]s and form FSL were allegedly sealed with the seal of [ENTITY]. Case property was seized vide a seizure memo Ex PW4/B. He is deposed to have recorded statement of [ENTITY] Ex PW4/C, made endorsement Ex PW7/B thereon and prepared a [ENTITY]. [ENTITY] is deposed to have been sent to PS with [ENTITY] and both the [ENTITY]s, and form FSL with directions to hand over the [ENTITY] to duty officer and case property along with form FSL to SHO. After registration of the case, [ENTITY] reached the spot. He is deposed to have arrested the accused vide memo Ex PW 4/E and his personal search Ex PW4/F was carried out. He is deposed to have recorded disclosure statement of the accused which is Ex PW7/C. He is deposed to have prepared site plan Ex PW4/D at the instance of [ENTITY]. Accused is deposed to have been got medically examined. He is deposed to have sent information u/[SECTION] the Act to Senior Officer of the Police. He is deposed to have recorded statement of the witnesses. He is deposed to have got sample of the case sent to FSL for chemical analysis. On receipt of report of FSL Ex PW7/D, same was filed. After completion of the investigation, he filed the chargesheet in the court.
8. Mutatis mutandis PW-4 [ENTITY] has also deposed to the same effect on all the material facts, therefore, his testimony is not being reproduced here for the sake of brevity.
9. PW-3 Inspector [ENTITY] was working as Addl SHO on 12.4.2007 and was looking after work of SHO, PS, Kashmere Gate when [ENTITY] came to him at about 7.20 p.m. and handed over two [ENTITY]s and form FSL duly sealed with the seal of [ENTITY]. He is deposed to have affixed his seal of [ENTITY] on both the [ENTITY]s and form FSL. He is deposed to have also mentioned FIR number thereon. He is deposed to have deposited the same in malkhana. He is deposed to have lodged DD No 25A Ex PW3/A in this regard.
10. PW-2 SI [ENTITY] was working as duty officer P.S. Kashmere Gate on 12.4.2007. He has deposed that on that day at about 7.20 p.m. on receipt of [ENTITY] from [ENTITY] sent by ASI [ENTITY], he recorded FIR of this case vide kayami entry No 23A. He has proved carbon copy of the FIR as Ex PW2/B and endorsement made by him on the [ENTITY] as Ex PW2/A. PW-1 Ct [ENTITY] has proved DD No 26 regarding receipt of information from [ENTITY] that he had apprehended accused with [ENTITY]. Copy of DD No 26 has been proved as Ex PW1/A.
11. PW-5 Hc [ENTITY] was working as MHCM at the relevant time. He has deposed that on 21.7.07 Ct [ENTITY] had brought result of FSL and sample parcel sealed with the seal of FSL. He is deposed to have deposited the same in the malkhana vide entry No 4098. He is deposed to have handed over result to ASI [ENTITY]. Copy of aforesaid entry has been proved as Ex PW5/A.
12. PW-6 [ENTITY] is deposed to have taken the sample to FSL. He has testified that on 1.6.07 he collected one sealed parcel from HC [ENTITY], MHCM sealed with the seal of [ENTITY] and [ENTITY] vide RC No 79/21 and deposited the same at FSL. In his cross examination by Addl PP he had affirmed that he had also taken from FSL sealed with the seal of [ENTITY] and [ENTITY].
13. It has been argued by ld APP that accused was apprehended by the police and from his possession 7 Kgs [ENTITY] had been recovered from the bag 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 [ENTITY], therefore, case against the accused U/[SECTION] [ACT] stands proved.
14. 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. However, PW-4 [ENTITY] who was checking the passengers at ISBT and had apprehended the accused with [ENTITY]. In his cross examination, he has specifically stated that there were 4-5 persons in the queue when he was checking the passengers and that persons were coming out from the said gate where he was checking. He has also admitted that at the time of search of the accused, 4-5 public persons were present there but he did not ask any of them to join the proceedings. He is also specific that IO had not asked any person from the office, book stall or Dhaba to witness the proceedings in the present case. He has also stated that IO had weighed the charas with the help of balance arranged from the stall vendor at basement who sells sweet. This sweet vendor has also not been joined in the proceedings of the present case. Even first IO PW-7 ASI [ENTITY] in his cross examination has admitted that in the radius of 50-100 meters, there were shops and stalls near the place of incident, however, he did not ask any stall owner or shopkeeper to join the proceedings. In the face of this piece of evidence, it can be safely inferred that ASI [ENTITY] intentionally and deliberately evaded and avoided to join independent witness in the present case due to reasons known to him. Therefore, this conduct of IO raises doubt about genuineness of recovery of contraband from the possession of the accused as alleged by the prosecution.
15. There is another procedural error committed in the investigation of this case which should be taken into consideration. Copy of the FIR has been proved as Ex PW2/B in which it has been mentioned that information was received at P.S. at 7.20 p.m. and recorded in general diary as DD No 23A which shows that DD was recorded first and then FIR was recorded. First of all, FIR has to be recorded and only then it is to be followed by a DD in the daily diary register. But practice of the police in recording DD first and then recording FIR is contrary to the provisions of law as contained in [SECTION] of [ACT]. This practice has been deprecated by Hon'ble Supreme Court in [PRECEDENT] where it has been held that when any information has been received by the PS, if it discloses commission of a cognizable offence, FIR has to be straightway recorded. It was further held that practice of the police official governed by [ACT] to enter the information into daily diary of PS first and then record the FIR is contrary to provisions of [ACT] inasmuch as provisions of [ACT] do not override the provisions of [ACT]. By this method police can easily overcome the difficulty of anti dating and anti timing of the FIR. After FIR has been recorded, DD to this effect is required to be made in daily diary. Purpose of such entry in daily diary is to ensure that FIR had actually been recorded at the time given in the DD entry. Therefore, in the present case, no reliance can be placed on the assertion of the prosecution that FIR was recorded on 12.4.07 at 7.20 p.m. inasmuch as distance between place of incident and PS is 1 K.M. as mentioned in the FIR, [ENTITY] was sent at 7.05 p.m., [ENTITY] might have taken time to reach PS, DD No 23A was recorded first and then FIR was recorded. It does not appeal to the reasons that all these proceedings could have been completed within 15 minutes. Therefore, possibility of whole of the proceedings having been conducted in the PS can not be ruled out. These are some of the infirmities which cast doubt on the veracity of the prosecution case and it will be most unsafe to convict the accused on the basis of evidence adduced by the prosecution.
16. It is further argued by ld counsel for the accused that prosecution has not ruled out the possibility of sample being changed or tampered with , therefore, accused is entitled to be acquitted. On the other hand, ld Addl PP has argued that prosecution has examined all the witnesses who might have handled the sample, therefore, possibility of sample being changed or tampered with stands ruled out.
17. From perusal of the record, I find that PW-7 ASI [ENTITY] in his testimony has stated that after recovery of [ENTITY] from accused, [ENTITY] is deposed to have been prepared and sealed with the seal of [ENTITY]. Samples are deposed to have also been converted into parcel and sealed with the seal of [ENTITY]. Form FSL is deposed to have also been filled in at the spot. This witness does not state if seal of [ENTITY] was also affixed on form FSL. He is deposed to have prepared [ENTITY] and sent [ENTITY] along with two sealed parcels , FSL form, original [ENTITY] and directed him to hand over [ENTITY] to the duty officer and produce the case property along with FSL form before SHO. Therefore, as per testimony of PW-7 ASI [ENTITY], when case property along with FSL form was sent to PS, there was no seal present on FSL form. PW-4 [ENTITY] in his testimony has stated that he had taken both the parcels, form FSL and copy of seizure memo to PS. PW-3 Inspector [ENTITY] in his testimony has stated that on 12.4.07 he was posted at PS Kashmere Gate as Addl SHO and was looking after work of SHO on that day. At about 7.20 p.m. [ENTITY] is deposed to have come to his office and produced two [ENTITY]s and form FSL sealed with the seal of [ENTITY] and a copy of seizure memo. He is deposed to have put his seal of [ENTITY] on both the [ENTITY]s and form FSL, put FIR number and his signatures on both the [ENTITY]s and form FSL and deposited the same in the malkhana by handing over the same to MHCM who made entry in register No 19. He is deposed to have made DD entry Ex PW3/A in this regard. PW-8 Hc [ENTITY] was working as MHCM on 12.4.07. According to him on that day Addl SHO Inspector [ENTITY] handed over to him two [ENTITY]s and form FSL sealed with the seal of [ENTITY] and [ENTITY] along with copy of seizure memo. He is deposed to have deposited the same in the malkhana vide entry No 4098 copy of which has been proved as Ex PW8/A. In Ex PW8/A, it is only mentioned that two [ENTITY]s and one form FSL sealed with the seal of [ENTITY] were deposited. There is no mention of second seal of [ENTITY] either on the [ENTITY]s or on form FSL in Ex PW8/A.
18. Ld Addl P.P. for the State has argued that Addl SHO had made entry in rojnamcha which is Ex PW3/A regarding deposit of case property in malkhana and it corroborates his version. In Ex PW3/A, it is recorded that SHO had put his seal and signatures on both the [ENTITY]s and FSL form. However, there is no mention as to what were initials of his seal which he had put on them. There is no mention that initials of his seal were [ENTITY] . Therefore, Ex PW3/A also does not show that seal [ENTITY] was affixed on [ENTITY]s and form FSL. In view of this evidence, I come to the conclusion that prosecution has not ruled out the possibility of sample/ case property being changed or tampered with till it was deposited in the malkhana.
19. PW-8 Hc [ENTITY] has further stated that on 1.6.07, sample [ENTITY] and form FSL sealed with the seal of [ENTITY] and [ENTITY] were sent to FSL through [ENTITY] vide RC No 79/21 copy of which has been proved as Ex PW8/B. [ENTITY] has been examined as PW-6. He has stated that on 1.6.07 he had collected one sealed parcel sealed with the seal of [ENTITY] and [ENTITY] vide RC No 79/21 from MHCM and deposited the same at FSL Rohini. This witness did not state if form FSL had also been taken with the sample parcel. This witness was cross examined by Addl PP and it was only in his cross examination that this witness had admitted that he had also taken form FSL sealed with the seal of [ENTITY] and [ENTITY] with sample [ENTITY]. I have perused endorsement marked 'C' regarding sending of sample to FSL. In this endorsement, it is only mentioned that one sample [ENTITY] sealed with the seal of [ENTITY] and [ENTITY] was sent to FSL through [ENTITY]. There is no mention of form FSL in this endorsement. There is also no mention of form FSL in copy of RC Ex PW8/B. It is clear that form FSL was not sent along with sample. In view of these facts, it is difficult to say that prosecution has ruled out the possibility of sample being changed or tampered with even in transit to the FSL.
20. In [PRECEDENT], it was held that it was the duty of the prosecution to prove that while in their custody, the sample was not tampered with before reaching the public analyst. In [PRECEDENT], it was held by their lordships that prosecution is under an obligation to prove that the sample delivered to CFSL was in the same condition and there was no possibility of tampering with it. In [PRECEDENT] and [PRECEDENT], it has been held that prosecution is bound to produce even link evidence that sealed [ENTITY]s of case property from the time they were taken till they were deposited in the malkhana and till they were deposited in the FSL, the seal thereon was not tampered with by examining all the witnesses who had handed the sample. It was also held that if any link is missing, then it can not be said that prosecution has ruled out the possibility of sample being tampered with or changed and accused would be entitled for acquittal. In view of these authorities and above discussion, I am of the view that on this very count, accused is entitled for benefit of doubt.
21. In view of reasons given above, I am of the view that first of all there serious procedural infirmities in procedure of investigation adopted by the police. Secondly, there are infirmities in the testimony of witnesses which cast doubt about veracity of the prosecution story. Thirdly prosecution has not ruled out the possibility of sample being changed or tampered with. Therefore, after giving benefit of doubt, accused [ENTITY] is acquitted. He be set at liberty forthwith, if not required in any other case. File be consigned to record room.
Announced on the Open Court on 15.07.08 ([ENTITY]) ASJ/SPL. JUDGE( NDPS) DELHI