IN THE COURT OF MS. [ENTITY] ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI Unique ID No. 02402R0006492003 Sessions Case No. 47A/13 Date of Institution: 24.02.03 Date of transfer to this court: 25.07.2013 Date on which reserved for orders: 17.02.14 Date of delivery of order: 25.02.14 [ENTITY] Vs. (1) [ENTITY] S/o. Bharat Ram R/o. H.No.19/20, Kasturba Nagar, Delhi. FIR No.377/02 PS [ENTITY] U/[SECTION] of [ACT] JUDGMENT
1. A secret information was received at the office of special staff on 17/12/02 at 10.[SECTION] am by SI [ENTITY] regarding involvement of one [ENTITY] alongwith his sister in the sale of Smack. It was informed that said [ENTITY] was selling Smack at Katurba Gandhi Chowk, wearing blue colour jeans (denim) cloths. The secret informer stated that said [ENTITY] was selling Smack with his sister [ENTITY], and if raided immediately, could be apprehended with Smack. SI [ENTITY] on being satisfied about the information, informed the ACP/[ENTITY] [ENTITY] about the secret information, who ordered an immediate raid. Thereafter, DD no. 12A was registered in Roznamcha register at 10:55 hours by SI [ENTITY].
FIR No. 377/02, PS. [ENTITY] Page 1 of 29 St. Vs. [ENTITY]
2. A raiding team comprising of the SI [ENTITY], ASI [ENTITY], HC [ENTITY], Ct. [ENTITY] and Ct.[ENTITY] immediately left for the spot in a private vehicle. ACP [ENTITY] also went to the spot in the Government vehicle no DL 1V 3654. The [ENTITY] was parked near Sukhdev College of Business Studies. The accused [ENTITY] was found standing in blue cloths near Kasturba Chowk at 11:25 AM and was apprehended. Thereafter, a notice under [SECTION] of [ACT] was given to the accused and he was informed about the secret information against him Accused refused to avail the offer of search in presence of a Gazetted Officer or Magistrate. The notice was about Gazetted Officer of Police. He was also offered to take search of the police raiding party, which was also not availed by him. The accused having refused the offer under [SECTION] of the Act was searched by SI [ENTITY] on directions of ACP [ENTITY], who was also present at the spot. On the cursory search of the accused two packets containg brown powder were recovered from the two pockets of the wearing pant of the accused, which on testing and weighing were found to be 300 g of Heroin (Smack). One sample of 5 gm was taken out from the recovered smack. The sample was sealed separately in a parcel which was given serial no.S1 and the remaining case property was sealed in a parcel no. S. Form FSL was filled up. Thereafter, case property was taken into possession vide memo and after getting the case registered, the accused was arrested. The FSL result was received that the sample sent to the FSL contained diacetylmorphine. On completion of investigation, charge sheet was filed.
FIR No. 377/02, PS. [ENTITY] Page 2 of 29 St. Vs. [ENTITY]
3. The accused was charged for offence U/[SECTION] of [ACT], to which he pleaded not guilty and claimed trial.
4. To prove its case, prosecution examined 11 witnesses.
5. PW3 [ENTITY], the duty officer proved registration of FIR, deposing that ASI [ENTITY] had brought the rukka sent by SI [ENTITY]. The FIR is Ex.PW3/A. He deposed that further investigation was marked to SI [ENTITY] on the directions of the SHO, who was informed regarding the same. Though in his cross examination, he admitted that the investigation was marked to SI [ENTITY] as per the direction of SI [ENTITY], in the rukka itself and that the SHO was not present in the PS at the time of registration of FIR. The witness also proved the DD no. 12 A dated 17/12/2002, which was also tendered in evidence of PW2 and was exhibited as Ex.PW2/A.
6. PW9 Retired ACP [ENTITY] deposed that on 17/12/2002 he was posted as SHO PS [ENTITY]. He deposed that on the said date he was on field duty; had come to the police station for some time and had again left; he was informed about the registration of the FIR in the case by Duty Officer [ENTITY]. ASI [ENTITY] had produced two sealed parcels mark S & S1 containing Smack and its sample; he also produced copy of FSL form sealed with the seal of [ENTITY]. He put the FIR no on the articles, whereafter they were deposited in the Mlkhana. In his cross examination the FIR No. 377/02, PS. [ENTITY] Page 3 of 29 St. Vs. [ENTITY] witness deposed that he had not seen the rukka and the FIR.
7. PW4 ACP [ENTITY] deposed that on 17/12/2002 at about 10:[SECTION] AM, he was present in his office when SI [ENTITY] of Spl Branch came and told him that a secret information was received about a person named [ENTITY], who was selling Smack at Kastoora Gandhi Chowk along with his sister [ENTITY]. He ordered SI [ENTITY] to conduct the raid. After about five minutes SI [ENTITY] produced DD no 12 A Ex 2/A (also Ex PW4/A). He organized a raiding team of five officers named in the evidence, who left in a private vehicle. He also left for the spot in his Government Vehicle; [ENTITY] bearing registration no DL 1 V 3654 being driven by Ct. [ENTITY]. He deposed that he reached near Sukhdev Singh College about 11:05 AM.SI [ENTITY] asked 45 passersby to join the investigation but none agreed. At the spot SI [ENTITY] briefed the raiding team members; and on the pointing out of the secret informer, who was with them accused, whose name later on disclosed as [ENTITY], was arrested. The witness also deposed that a notice under [SECTION] [ACT] (Ex PW4/B, as also Ex PW2/B) bearing his signature at point A was given to the accused. He deposed that the accused was apprised of all his legal rights including his right to get searched in the presence of a Gazetted officer or a magistrate and the right to search the raiding party members and the Government vehicle before his search. As per the witness the accused did not avail the opportunities and wrote his refusal in his own handwriting in Hindi on the notice; which refusal has been proved as Ex.PW4/C. He further deposed that on his instructions SI [ENTITY] searched the accused and from both pockets of his worn jeans one packet FIR No. 377/02, PS. [ENTITY] Page 4 of 29 St. Vs. [ENTITY] each was recovered. Both the packets were found containing Smack, which in total weighed 300 gms. A sample was taken from the entire Smack leaving behind 295 gms Smack. The two parts were sealed and marked S1 & S respectively. They were sealed with the seal of [ENTITY]. PW4 signed both the pullandas. In his crossexamination the witness admitted that it was not mentioned in notice u/[SECTION] [ACT] that the search of accused could be conducted in presence of gazetted officer and that accused could take search of Govt. Vehicle. He admitted that no Govt. employee from Sukhdev College or the office of Delhi Jal Board, situated near the spot was requested to join the proceedings before or after the arrest.
8. PW2 [ENTITY] was the Malkhana Incharge. He deposed that on 17/12/2002 at 3:05 PM, SHO Inspector [ENTITY] came to malkhana and produced two sealed pullandas bearing marks S & S1 sealed with the seal of [ENTITY] and RNV, one FSL Form bearing aforesaid seals and copy of seizure memo. The relevant entry was made at no 2402 on the register no 19. He also deposed that on that very day, SI [ENTITY] PW8 deposited articles recovered from personal search of accused [ENTITY] including copy of notice U/[SECTION] of [ACT], entry regarding which was also made in Register no. 19. The entries running in three pages were proved as Ex PW2/A. The witness also deposed that on 28.1.2003, under instructions of the IO, PW5 Ct.[ENTITY] was given one sealed sample pullanda Mark S1 with FSL Form, vide R/C No. 22/21, Ex.PW2/B for depositing the same at FSL, Rohini. After depositing the sample, acknowledgment Ex.PW2/C was deposited at Malkhana by PW5 [ENTITY].
FIR No. 377/02, PS. [ENTITY] Page 5 of 29 St. Vs. [ENTITY]
9. PW 6 [ENTITY], PW 7 Ct. [ENTITY], PW10 [ENTITY] and PW 11 SI [ENTITY] were the members of raiding team and witnesses of recovery. These witnesses deposed that on 17/12/2003, PW11 under supervision of ACP [ENTITY] constituted a raiding team comprising of aforesaid persons and HC [ENTITY]. The raiding team members were briefed about the secret information received against the accused. The information was reduced into writing vide DD 12 A. The raiding party left the special cell office at 10:55 AM in a private vehicle and was followed by ACP [ENTITY] in his official [ENTITY]. PW 11 carried his IO kit bag along with him. Raiding party reached near Sukh Dev Singh College Main road Bawana at about 11:05 AM. Four Five passersby were requested to join the investigation near the spot but none agreed. At the spot, on the pointing of secret informer , who was with the team the accused was apprehended and the secret informer left the spot. The name of the accused was disclosed [ENTITY] S/o. [ENTITY]. The raiding party members were introduced to the accused and the accused was also told about secret information about him. Accused was told that he has to be searched. He was also told that if he wanted his search could be conducted before any Police Gazetted Officer or Magistrate. ACP [ENTITY] gave his identity as the police Gazetted Officer. The accused was also offered the search of the police raiding team and the private vehicles as well as Govt. [ENTITY], before his search. Notice U/[SECTION] of [ACT] was served upon the accused by giving him a copy. Accused refused to avail any rights. His refusal was reduced into writing by PW11 SI [ENTITY]. The notice was proved as Ex.PW4/C and copy of the notice recovered from personal search of accused was proved as FIR No. 377/02, PS. [ENTITY] Page 6 of 29 St. Vs. [ENTITY] Ex.PW1/E. PW11 SI [ENTITY] searched the accused on instructions of ACP [ENTITY] PW4 and the accused was found to be carrying two polythene of Smack in two pockets of his wearing pant. PW11 SI [ENTITY] checked and found the two polythene to be containing brown colour powder which was tested on field testing kit and was found to be smack. On measurement, it was found to be 300 gms out of which one sample of 5 gms was taken out, which was kept in separate polythene and was converted into a pullanda. The sample pullanda was sealed with the seal of [ENTITY] and given Mark S1. Remaining smack was kept back in the same polythene and was sealed inside a cloth with the same seal. It was given mark S. Form FSL was filled up and specimen seal was applied on the form. Seal after use was handed over to HC [ENTITY]. The pullandas and the FSL form were seized vide Seizure memo Ex.PW2/C. Subsequently, rukka Ex.PW3/A was prepared which was handed over to PW10 SI [ENTITY] for registration of FIR. PW10 was also handed over the three sealed pulindas, form FSL and a copy of Seizure memo, which he carried to the police station from the spot. PW10 SI [ENTITY] took the rukka and delivered it to the duty officer and the pullandas, FSL Form and copy of seizure memo were handed over to the SHO PW9 Retired ACP [ENTITY].
10. PW8 SI [ENTITY] deposed that on 17/12/2002 at 3:30 PM, he was present in his office at Crime Branch, where PW10 ASI [ENTITY] handed over to him rukka and copy of FIR. He went to the spot, where SI [ENTITY] (PW 11) handed over all the documents along with the accused to him. Thereafter,he prepared site plan Ex.PW1/A and served a notice u/[SECTION] [ACT] upon the accused. The notice has been exhibited as FIR No. 377/02, PS. [ENTITY] Page 7 of 29 St. Vs. [ENTITY] Ex PW 1/D. The accused was arrested vide arrest memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW1/C. From the personal search of accused, Notice U/[SECTION] of [ACT] was recovered besides other items. The accused made a disclosure, Ex PW1/E. Thereafter, the accused was got medically examined. He also deposed that he prepared report U/[SECTION] of [ACT] regarding seizure of smack which was handed over to SHO [ENTITY] which was proved as Ex.PW1/E. The witnesses identified the accused in the court and also identified the case property i.e. the smack contained in two polythenes as Ex.P2 recovered from accused, and the sample as Ex.P2. The first IO also proved the FSL report Ex. PX 9 ( also Ex.PW1/H).
11. The entire incriminating evidence was put to the accused in her statement U/[SECTION] [ACT], the accused denied the evidence and claimed that he has been falsely implicated in this case.
12. I have heard the Ld. PP for the state and Ld. Counsel for the accused. Ld. PP for the [ENTITY] has argued that huge quantity of smack has been recovered from the possession of accused and that the prosecution witnesses have supported each other on material aspects. He argued that ACP himself was present at the time of recovery and as such there was no requirement of strict compliance of [SECTION] [ACT], since he himself is a gazetted officer. The accused was declared a PO and was arrested only after six years. He had eight cases pending against him. He has not answered in his statement as to why he FIR No. 377/02, PS. [ENTITY] Page 8 of 29 St. Vs. [ENTITY] alone was arrested.
13. Ld. counsel for the accused on the other hand argued that there was no compliance of provisions of [SECTION] of the [ACT]. The DD Ex. PW2/A does not bear the signature of the DCP. The date under the signatures of the SHO has been changed. PW2 has deposed that only one sealed pulanda was deposited in Malkhana; where did the other sealed pulanda go, as such the probability of tampering the sample can not be ruled out. The duty officer deposed that the further investigation was handed over to SI [ENTITY] on the instructions of SHO, when in fact the SHO was not present in the PS and the witness admitted in his cross examination that the investigation was handed over to SI [ENTITY] as per the recording in the rukka itself. It was argued that notice under [SECTION] [ACT] is defective since the option given to the accused was of search in presence of magistrate and Gazetted officer of police, which is against the provisions of law. There is a confusion on how PW10 ASI [ENTITY] had left the PS since he says that he went by rickshaw, while other witnesses have deposed that he went by a motor cycle. The parentage, residence and details of wherefrom the accused came and where he was going are not mentioned in the secret information.
14. First argument of Ld. defence counsel is that [SECTION] of the Act was not complied with. [SECTION] of the [ACT] says that secret information, if it is reduced into writing under subsection (1) of the section, the same has to be brought to the notice of immediate superior officer and latest within 72 hours, by sending a copy of the said FIR No. 377/02, PS. [ENTITY] Page 9 of 29 St. Vs. [ENTITY] written information to the immediate superior officer [subsection (2)].
15. In the present case, PW11 deposed that he recorded the secret information vide DD no.12 A Ex. PW2/A (also Ex PW4/A) after having shared the information with the ACP [ENTITY] (PW4) on 15.10.2011. The ACP himself joined the investigation alongwith PW 11 and has proved the DD entry having his signatures of the same day. No prescribed proforma or procedure has been specified under [SECTION] of the [ACT], for furnishing of report to the senior officers. The information having been recorded before leaving the police station and production of the same DD before the ACP, who signed the same is proper compliance of provisions of this section. The argument that the document does not have the signature of DCP does not vitiate the DD as it has been signed by the ACP, who was the superior of the IO.
16. It was argued that report [SECTION] [ACT] (Ex.PW1/A) does not bear the signature of ACP [ENTITY], which should have been there if he was with the raiding team and that there is correction in the date mentioned by the SHO indicating a tampering in the timing and date of departure.
[SECTION] [ACT] requires that whenever any accused is arrested under the provisions of the [ACT] and there is a seizure of contraband under the Act, the person arresting the accused or seizing the material shall make a report of all the particulars of such accused and seizure to his immediate superior officer. The report is required to be furnished by the arresting officer or the one who seized the contraband. Ex. PW1/A has FIR No. 377/02, PS. [ENTITY] Page 10 of 29 St. Vs. [ENTITY] been prepared by SI [ENTITY], who had arrested the accused. It contains all the circumstances of arrest and the seizure alongwith specific timings. It was received in the office of DCP on 18/2/02, well within 48 hours. The correction in date mentioned by SHO is in the month and not date, which correctly has been mentioned as 17th. ACP [ENTITY] though he was present at the spot was neither the arresting officer nor had he seized the contraband; he signed the documents as a witness. There was as such no requirement for him to have signed the report under [SECTION] [ACT], which does not contemplate signing of the report by the witness police officers. There seems no irregularity in the report under [SECTION] [ACT] (Ex PW1/A).
17. It was argued that PW2 [ENTITY] had mentioned one pullanda as deposited in malkhana in his statement under [SECTION] [ACT] but record says that two pulandas were deposited. The witness was not confronted with this part of his statement during evidence. Ld. Counsel also disputed the entry in the register no 19, stating that the same was a verbatim quoting of the contents of FIR. The entry in the register, which as also argued by Ld.Counsel is a copy of the entire report and as such it cannot be argued that only one pulanda was deposited with MHCM. The procedure of copying the contents of complaint and not mentioning the exact articles deposited may appear absurd but cannot be termed as in violation of any provision of law. There are, however, corrections in columns 2 & 3 of register, and the dates appear to have been corrected from 27 to 17 and 12 to 17. The witness, however, admitting in his evidence that there were corrections in the dates did not give any explanation for the same, which creates a doubt regarding the FIR No. 377/02, PS. [ENTITY] Page 11 of 29 St. Vs. [ENTITY] date of entries.
18. It was argued that the duty officer stated that he marked the further investigation of the matter to SI [ENTITY] on the instruction of the SHO [ENTITY] and that the SHO was informed regarding the same. In his cross examination, however he admitted that the SHO was not present in the police station at the time of registration of FIR and that the further investigation was marked to SI [ENTITY] as per the direction in the rukka written by SI [ENTITY]. There is a complete confusion regarding the presence of the SHO in the police station on the relevant date. The duty officer initially stated that he had handed over the investigation to SI [ENTITY] on the instructions of the SHO, only to correct himself in cross examination and admitting that the SHO was not present in the police station at that time. If the SHO was not present as stated by this witness, how the seized articles were produced before him. SHO (PW9) himself deposed that he was not in the police station at the time of registration of FIR, being on field duty; he came and received the seized articles and then again left. The registration of FIR took one hour and if SHO and DO are to be believed the SHO was not in the police station during this time. ASI [ENTITY] shortly left with SI [ENTITY], presumably the SHO had not arrived till then; since if he had arrived before ASI [ENTITY]'s leaving the PS, the fact would have been in the knowledge of DO, who would have taken his instructions regarding the handing over of investigation. If the SHO was not in the PS as it appears from the evidence, to whom the seized articles were handed over. The evidence of SHO is very vague on when he came and when he left, for how long he stayed FIR No. 377/02, PS. [ENTITY] Page 12 of 29 St. Vs. [ENTITY] and what all did he do during the stay. The case of the prosecution thus is completely lost on this aspect.
19. It was argued that the notice under [SECTION] [ACT] was faulty. Notice which is Ex. PW2/B (and also Ex PW4/B) says that the accused was informed that he had a legal right to get himself searched in presence of a gazetted officer of police or magistrate. [[ENTITY] adhikar hai ki yadi aap apni talashi kisi police ke raj patrit adhikari (gazetted officer of police) ya magistrate ke samne karana chahte hain to prabandh kia ja sakta hai]. [SECTION] of [ACT].
20. The Hon'ble Supreme Court in [ENTITY] v. [ENTITY] of Haryana, (2013) 2 SCC [SECTION]2, held as follows:
"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] 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 noncompliance. The Court in [ENTITY] of Delhi v.Ram Avtar [(2011) 12 SCC 207 : (2012) 1 SCC FIR No. 377/02, PS. [ENTITY] Page 13 of 29 St. Vs. [ENTITY] (Crl.) 385] held as under:
" The High Court while relying upon the judgment of this Court in [ENTITY] of Punjab vs. [ENTITY], (1999) 6 SCC 172 :1999 SCC (Cri) 1080] and rejecting the theory of substantial compliance, which had been suggested in 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'.
The Hon'ble Court further held that:
"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 v. [ENTITY] of Gujarat, (2011) 1 SCC 609 : (2011) 1SCC (Crl.) 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 FIR No. 377/02, PS. [ENTITY] Page 14 of 29 St. Vs. [ENTITY] 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. Noncompliance with the provisions of [SECTION] of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial."
The Hon'ble Supreme Court in the case of Ashok Kumar Sharma v. [ENTITY] of Rajasthan, (2013) 2 SCC 67, held as follows:
"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], PS. [ENTITY] Page 15 of 29 St. Vs. [ENTITY] (2011) 1 SCC609 :(2011) 1 SCC (Cri) 497 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 suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer is concerned, an obligation is cast on him under [SECTION] of the [ACT] to apprise the person of his right to be searched before a gazetted officer or a Magistrate. The question, as to whether this procedure has been complied with or not, in this case the deposition of PW 1 assumes importance, which reads as follows:
"He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any gazetted officer if he wished. He gave his consent in written and said that I have faith on you, you can search me. Fard regarding apprising and consent is Ext. P3 on which I put my signature from A to B and the accused put his signature from C to D. E to F FIR No. 377/02, PS. [ENTITY] Page 16 of 29 St. Vs. [ENTITY] is the endorsement of the consent of the accused and G to H is signature, which has been written by the accused."
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.
We may, in this connection, also examine the general maxim ignorantia juris non excusat and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in [SECTION] of the [ACT]. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Undisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to FIR No. 377/02, PS. [ENTITY] Page 17 of 29 St. Vs. [ENTITY] every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various laws laid down in this country, leave aside the [ACT]. We notice that this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorised officer acting under [SECTION] of the [ACT] to inform the suspect of his right under [SECTION] to be searched in the presence of a gazetted officer or a Magistrate warranting strict compliance with that procedure.
We are of the view that noncompliance with this mandatory procedure has vitiated the entire proceedings initiated against the appellantaccused. We are of the view that the Special Court as well as the High Court has committed an error in not properly appreciating the scope of [SECTION] of the [ACT] ".
21. In the present case, none of the witnesses of the prosecution say that the accused was told that he could be taken to a gazetted officer. Apparently the gazetted officer of the police ACP [ENTITY] PW4 was present with the police team. He introduced himself to the accused as the gazetted officer of the police. Since he was present at the spot and was there with the police team working under him, the offer to get FIR No. 377/02, PS. [ENTITY] Page 18 of 29 St. Vs. [ENTITY] the accused searched in presence of Gazetted Officer of police shall be construed as a mere formality of provisions of [SECTION] [ACT]. The recovery has been effected from the wearing cloths of the accused and, therefore, the provisions required strict compliance.
The IO in this case did not give the notice under [SECTION] of [ACT] to the accused in the manner as contemplated in the Act. The notice given to the accused amounted to limited offer of search in presence of the Gazetted Officer of police and not a Gazetted Officer of any other department. The accused might have had his own apprehensions regarding the Gazetted Officer of Police. The partial compliance of the provisions of [SECTION] [ACT] thus cannot be considered 'exact and definite compliance' as laid down in [ENTITY] (supra) and [ENTITY] (supra).
"the Gazetted Officer belonging to the department which is effecting a seizure may have bias in favour of the Department, whereas no such bias can be attributed to a Magistrate or a Gazetted Officer belonging to the other department. Thus in the present case the offer given to the accused to be searched by a Magistrate or by a Gazetted officer of the custom was partial offer as the accused was not given an option for her baggage and personal search to be conducted in the presence of a Gazetted Officer belonging to the other department."
In similar circumstances the Hon'ble Delhi High Court in [PRECEDENT] held that FIR No. 377/02, PS. [ENTITY] Page 19 of 29 St. Vs. [ENTITY] "the Gazetted Officer belonging to the department which is effecting a seizure may have bias in favour of the Department, whereas no such bias can be attributed to a Magistrate or a Gazetted Officer belonging to the other department. Thus in the present case the offer given to the accused to be searched by a Magistrate or by a Gazetted officer of the custom was partial offer as the accused was not given an option for her baggage and personal search to be conducted in the presence of a Gazetted Officer belonging to the other department."
In view of the categoric judgment on the facts of the case and the judgments laying down the general principle to be followed visa vis the provisions of [SECTION] [ACT] (cited hereinabove), the provisions of the section were not complied with as per the mandate of law. Though the case of prosecution is liable to be dismissed on this basic ground; there are other flaws also, which are being enumerated hereunder.
22. The matter relates to the offence committed in 2003 prior to the Gazette notification of the Government doing away with the requirement of mentioning the percentage of the banned chemical in the sample. Prior to 2001, in cases pertaining to drug user, the Supreme Court took into account the actual drug content in calculating quantity of seized material [ Hussain versus [ENTITY] of Kerala (2000)8SCC139; Ouseph Vs [ENTITY] of Kerala (2004)4SCC446]. In 2001 amendment was brought into the Act FIR No. 377/02, PS. [ENTITY] Page 20 of 29 St. Vs. [ENTITY] specifying the quantities of contraband thus making out the difference in the consumer, pedestal, carrier and commercial involvement. After 2001 amendment penalties were determined by the quantity of drugs involved.
In Basheer versus [ENTITY] of Kerala 2004 CriLJ 1418, Hon'ble Supreme Court observed as under :
" As a consequence of the amending Act coming into force on 2/10/2001, the sentencing structure underwent a drastic change. The Act introduced the concept of 'commercial quantity' in relation to narcotic drugs or psychotropic substances by adding clause (viia) in [SECTION], which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further the expression small quantity is defined in [SECTION], [SECTION], as any quantity lesser than the quantity specified in the notification. Under the rationalised sentencing structure, the punishment would vary depending on whether the quantity of offending material was ' small quantity, ' commercial quantity' or something in between. This is the effect of the rationalization of sentencing structure carried out by the [ACT] in [SECTION]. A notification was issued on 09.10.01 specifying in respect of 239 Narcotics Drugs and Psychotropic substances, as to what would be small quantity and commercial quantity.
FIR No. 377/02, PS. [ENTITY] Page 21 of 29 St. Vs. [ENTITY]
23. In the instant matter the percentage of the chemical was required to be mentioned to conclude whether the quantity involved was small or commercial or intermediate.
Thereafter the Hon'ble Supreme Court of India in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau in 2008 (2) ACR 2204 (SC), AIR 2008 SC 1720, 2008 Cri LJ 22[SECTION],LR 2008 (2) Kerala 153, 2008 (4) SCALE 592, (2008) 5SCC161 laid down the procedure for determining the quantity of drug in the mixed contraband. It was held as under :
"It appears from the statement of Objects and Reasons of the [ACT] that the intention of the legislature was to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 2[SECTION] gm, an d contains 0.2% of heroin or more would be punishable under [SECTION] of the [ACT], because the intention of the legislature as it appears to us is to levy FIR No. 377/02, PS. [ENTITY] Page 22 of 29 St. Vs. [ENTITY] punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gms of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. Is mixed with [SECTION] kgs of the powered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance /s is not to be taken into consideration while determining the small quantity or commercial quantity of a Narcotic drug or psychotropic substance. It is the only actual content by weight of the Narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appear to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment .
The Hon'ble Court held that :
"We are of the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substances, for the purpose of imposition of punishment it is the content of the FIR No. 377/02, PS. [ENTITY] Page 23 of 29 St. Vs. [ENTITY] narcotic drug or psychotropic substance which shall be taken into consideration."
The aforesaid judgment in [PRECEDENT] was followed by the Hon'ble Supreme Court in [ENTITY] of NCT of Delhi Vs Ashif Khan @ Kalu 2009 (1)ACR 990 (SC), AIR 2009 SC 1977, JT 2009 (3) SC 275, 2009 (3) SCALE 429 and several other cases to conclude that the quantity of the narcotic substance shall be decided on the basis of percentage of the contraband found in the sample.
Hon'ble Delhi High Court in Ansar Ahmed Vs. [ENTITY] ( Govt. of NCT of Delhi) 123 (2005) DLT 563 relying upon [ENTITY] (Supra) held : "I, reiterate that in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substance is not to be taken while considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered . Only the actual content by weight of the narcotic drug of the psychotropic substance ( as the case may be) is relevant for determining whether it would constitute a 'small quantity' or a ' commercial quantity' "
Thereafter the government brought into a notification, which was brought in 2009. The S.O. No 2941 (E) dated 18/11/2009 in its clause 4 stated :
FIR No. 377/02, PS. [ENTITY] Page 24 of 29 St. Vs. [ENTITY] " 4. The quantities shown in Column 5 & Column 6 of table relating to respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drug or psychotropic substance of that particular drug in dosage form or isomer, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers wherever existence of such substance is possible and not just its pure content"
Thus, prior to the coming into force of Gazette Notification no 2941 (E)/ 18 Nov. 2009, the law of the land as decided by various judgments of Hon'ble Supreme Court and Hon'ble High Court was that the actual quantity of the drug was to be computed on the basis of percentage of offending material found in the sample of the whole recovered contraband. This case is of 2003 i.e. after the [ACT] and prior to the date of latter notification (of 2009) and shall be decided on the basis of the law as it was prior to coming into force of the notification. Thus in view of the several judgments cited hereinabove the quantity of the recovered contraband was to be decided on the basis of the percentage of diacetylmorphine present in the sample sent to the FSL for examination. The accused as per the law of land on the date on which the offence was committed cannot be convicted for the entire recovered quantity of 300g heroin, in absence of the mention of percentage as stated hereinabove. The percentage of the di acetylmorphine having not been mentioned in the FSL report in this matter, the accused cannot be considered to have been found in possession of commercial quantity of Heroin. FIR No. 377/02, PS. [ENTITY] Page 25 of 29 St. Vs. [ENTITY] Though if the prosecution case was otherwise proved, the sample from the present heroin could be sent for reassessment, however, since neither any request in this regard was made by either the accused or the prosecution, nor the case is otherwise proved the issue is decided as only one of the grounds of acquittal.
24. Pointing towards the smaller issues It was argued on behalf of the state that minor omissions, contradictions and improvements in the testimonies of prosecution witnesses, particularly when they were examined and cross examined twice at length ( one prior to the arrest of accused, who had absconded and then again after arrest) over a period of about ten years, should not be given undue weightage and in this regard, reliance was placed upon the case of Jaishri Yadav Vs. [ENTITY] of UP, 2004 (3) JCC 1226. There is no dispute that the contradictions of minor nature have time and again been held as the hallmark of truthfulness of the witnesses but the infirmities in the investigation and consequences thereof will have to be appreciated in the background of ground realities. The fact whether infirmities are substantial or not in a given case, would in fact depend upon the facts and circumstances of each case and it has been so held authoritatively in several cases. In the present case, where PW10 ASI, [ENTITY] the recovery witness of prosecution,on whom was the responsibility to take the seized articles to the police station and hand them over to the SHO, has given a statement in contradiction to the other witnesses. While PW 4 & 11 stated that he went to the police station by a motorcycle, the witness himself deposed that he went to the Police Station by a rickshaw. The statement could be ignored but for the other contradictions that have FIR No. 377/02, PS. [ENTITY] Page 26 of 29 St. Vs. [ENTITY] come on record. This witness says that he had handed over the recovered contraband, sample and FSL form to the SHO. He had taken along with him the rukka for registration of FIR. The DO says that the SHO was not in police station at the time of recording of FIR. ASI [ENTITY] says that he left after the registration of FIR and handing over of rukka. There is a complete confusion on whether or not the SHO was in police station at the relevant time or not. SHO Inspector [ENTITY] himself deposed that he was not in PS, he came in between and went again, without mentioning when he came and when he went. The combined reading of the evidence of the witnesses suggests that either ASI [ENTITY] did not go to the PS and everything was got at the PS after the entire proceedings at the spot as has been suggested by the Ld defence counsel, in arguments as also suggested to the witnesses in evidence or he did not come back at all and remained in the PS. How he went, if at all, is also disputed. The presence of the SHO in the PS is doubtful in view of the evidence of the three witnesses . His presence as mentioned by himself has been shown only to prove the compliance of the provision related to handing over of the case property etc to him. The duty officer procedurally records and maintains all the entries including the arrival departure entries. If the duty officer says that the SHO was not present in the Police Station at relevant time, it is to be presumed that he was not there.
25. In my opinion, none of the infirmities in the testimony of prosecution witnesses discussed above, can be termed as so trivial in nature or inconsequential or because of natural loss of memory due to lapse of time, so as to ignore them. Rather those FIR No. 377/02, PS. [ENTITY] Page 27 of 29 St. Vs. [ENTITY] contradictions which have come up in the evidence of witnesses go to the root of matter and demolishes the case of prosecution.
Besides this, admittedly, no serious efforts seems to have been made to join the independent witnesses throughout the proceedings.
The story putforth by the prosecution is that four passersby were requested by SI [ENTITY], who refused to join raid, does not inspire confidence for the reasons that not even the names or addresses of those persons were attempted to be found or noted down by the investigating officer. As per [SECTION] [ACT] independent local respectable inhabitants are to be joined and mere asking of passersby would not be termed as compliance of [SECTION] of [ACT]. PW4 ACP [ENTITY] himself admitted that no Govt. officer from the Sukhdev Singh College or from the office of Delhi Jal Board, which is situated nearby was asked to join the investigation before or after the arrest of the accused. His statement clearly shows that there was no serious effort made by the investigating officer or his senior to join an independent witness to the recovery proceedings or to the arrest.
26. There is thus noncompliance of [SECTION] [ACT] by the investigating team by not apprising the accused of existence of her legal rights to be searched in the presence of a Gazetted Officer or a Magistrate and thus [SECTION] is not complied with. Notice u/[SECTION] [ACT] given to the accused speaks of his search to be conducted in presence of police Gazetted officer as against the mandate of the law i.e. of search to be conducted in presence of Gazetted officer. The notice, thus gave a restricted option to the FIR No. 377/02, PS. [ENTITY] Page 28 of 29 St. Vs. [ENTITY] accused. It is not strict compliance of provisions of [SECTION] [ACT]. Also because of other grounds/flaws in the investigation discussed hereinabove, the prosecution has failed to prove its case.
27. Additionally, the sample sent for FSL was determined by the FSL to be containing diacetylmorphin not mentioning the percentage thereof. The matter pertains to the 2002 when as per the judgments of Hon'ble Supreme Court and Hon'ble High Court cited hereinabove, the percentage was to be necessarily determined to conclude as to whether the quantity was small, intermediate or commercial. In absence of clear evidence on the issue the accused cannot be convicted for carrying commercial quantity of Smack at all.
28. In view of above, accused is acquitted of the charge framed against him. File be consigned to record room.
Announced in the open court on 25.02.14 ([ENTITY]) ASJ02, (EAST) KKD COURTS/DELHI/25.02.14 FIR No. 377/02, PS. [ENTITY] Page 29 of 29 St. Vs. [ENTITY]