Delhi District CourtState vs Rajinder Kumar on 25 January, 2011IN THE COURT OF SMT SARITA BIRBAL: ASJ:  
          Spl. JUDGE (NDPS ACT): KKD COURTS:  DELHI

S.C. No:  98/05

State        Versus                   Rajinder Kumar 
                                      @ Mangal
                                       @ Sanju       
                                       son of Kailash Chand
                                       r/o 32/206, Trilokpuri,                 
                                       Delhi.

                                    FIR No: 411/2005
                                    P.S.:      Mayur Vihar
                                    U/s.        21NDPS ActDate of submission of charge sheet                     24.12.2005.
Date on which the judgment was reserved          24.01.2011.
Date on which judgment has been delivered:      25.01.2011.

             JUDGMENT1.      The    case   of   the   prosecution     against       accused   -Rajinder Kumar @ Mangal @ Sanju is that on 13.11.2005 at about 4.30 

p.m. at Khatta 32 Block, Trilokopuri, Delhi, he was found in possession 

of 10 grams of Smack, a contraband without any licence and permit. It is 

also the case of prosecution that the specimen sample of the substance 

allegedly  recovered   from  the   possession   of  the  accused   was  sent   to 

FSL and as per report received, the sample was found to contain 1.54%S.C. No. 98/05                                                                          Page 1 of 11diacetylmorphine.In   view   of   law   laid   down   by   Hon'ble   High   Court   inAnsar  Ahmed  &  Ors.   V.   State  (Govt   of   NCT   of  Delhi(123   (2005) 

Delhi Law Times 563);NCT of Delhi V. Ashif Khan @ Kalu[2009 (2) 

RCR   (Crl.)267];  E.   Micheal   Raj   V   Intelligence   Officer,   Narcotic 

Control Bureau, 2008 (2) RCR (Criminal) 597 and Ouseph V. State 

of Kerala [2004 (4) SCC 446],   the total quantity of diacetylmorphine 

was 0.154 grams recovered from accused, which is a small  quantity, as 

perNarcotic Drugs and Psychotropic Substances Act(hereinafter calledNDPS Act).2. In brief, the facts of the prosecution case as revealed from 

report u/s 173 Cr. P.C. are as follows :­ 

              On   13.11.2005   while   SI   Omkar   Singh   was   present   in   the 

police station Mayur Vihar, secret informer came to him and informed 

him that a person is standing at 32 Block, near Khatta, Trilokpuri with 

smack on which DD No 19 A dated 13.11.2005 was lodged. Raiding 

party   consisting   of   SI   Omkar   Singh,   Head   Constable   Kripal   and 

Constable Subhash was organised and reached the spot. At about 4.45 

p.m. four five public persons were requested to join the proceedings but 

none of them agreed. Secret informer again informed at about 4.55 p.m. 

that   said   boy   is   standing   near  Khatta  and   then   accused   was 

apprehended   immediately.   Contents   of   the  secret   information   were 

conveyed to him. Notice undersection 50NDPS Act was served on theS.C. No. 98/05                                                                           Page 2 of 11accused   by   which   he   was   apprised   about   his   right   that   he   can   be 

searched   before   Gazetted   Officer   or   Magistrate.   Accused   was   also 

offered that he can take search of any member of the raiding party but 

accused did not avail this opportunity.  He also gave reply to the notice 

undersection 50NDPS Act.   On search of the accused from his right 

side pocket of the pants one polythene containing ten grams Smack, a 

contraband was recovered. From the left side of the pocket of the pants 

of   accused   carbon   copy   of   notice   undersection   50NDPS   Act   was 

recovered. Meanwhile SHO Inspt. Satish Kein reached the spot and he 

conveyed the facts to the ACP.  Two grams was taken out as a sample. 

Sample   and   the   remaining   contraband   were   separately   packed   and 

sealed with the seals of OS & SK. FSL Form was also filled in using the 

same seals. All these articles were seized vide a memo. Case property 

including sample and FSL Form were hadned handed over to the SHO 

for depositing  the same with the MHCM. Ruqqa was prepared and sent 

to  the   police  station  through   Constable  Subhash  for  getting  the  case 

registered. Accordingly, the case was registered undersection 21NDPS 

Act. Further investigation of this case was entrusted to SI Om Singh who 

also reached the spot.  Accused and the documents were handed over 

to him and then the accused was arrested. Sample recovered from the 

possession of accused was sent to FSL, Rohini for chemical analysis. 

Accused was chargesheeted for the offence punishable under sectionsS.C. No. 98/05                                                                          Page 3 of 1121 of theNDPS Act.  On receipt of Result from FSL it was placed on the 

judicial  file.3.  Vide   orders   dated   20.02.2006   passed   by   my   ld 

predecessor   charge   was   framed   against   the   accused   for   the   offence 

punishableu/s. 21 (b)of the NDPS Act to which the accused pleaded 

not guilty and claimed trial.4.  Prosecution has examined eight witnesses in support of 

its case.5. PW 1­ SI Omkar Singh; PW 2 - Head Constable Kripal 

Singh; PW 6 ­ Constable Subhash and PW 8 - Inspt. Satish Kein are 

the material witnesses of recovery proceedings.6.  PW 1­ SI Omkar Singh; PW 2 - Head Constable Kripal 

Singh;   PW   6   ­   Constable   Subhash  deposed  that   on   13.11.2005   in 

pursuance to the secret information, at about 4.55 p.m. accused was 

apprehended from the spot. All these witnesses further stated that the 

contents of the secret information were conveyed to the accused and he 

was   apprised   about   his   legal   right   that   he   can   be   searched   before 

Gazetted Officer or Magistrate and he was also offered that he can take 

search of any member of the raiding party. All these witnesses further 

stated that notice undersection 50NDPS Act - Ex.PW1/B was served 

on the accused to which he replied as Ex.PW1/C.   On search of the 

accused from the right side pocket of his pants, a polythene containingS.C. No. 98/05                                                                          Page 4 of 11smack, a contraband was recovered. All these witnesses further stated 

that SHO also reached the spot.7.  All these witnesses including   PW 8 - Inspt. Satish Kein 

deposed that facts were conveyed to the ACP by the SHO from the spot 

and   said   contraband   was   weighed   and   it   came   to   10   grams.   These 

witnesses further stated that out of the said contraband 2 grams was 

taken   out   as   sample.     Sample   and   the   remaining   contraband   were 

separately  packed   and   sealed   with   the  seal   of  OS   and   SK  and   FSL 

Form was also filled in using the same seals. All these articles were 

seized vide memo Ex. PW 1/D and were handed over to Inspt. Satish 

Kain (PW 8)8.  All these witnesses also identified case property as Ex. 

P1 & Ex. P 2 as recovered from the possession of accused.9.  PW 1­ SI Omkar Singh; PW 2 - Head Constable Kripal 

Singh; PW 6 ­ Constable Subhash further deposed that ruqqa Ex.PW1/E 

was prepared and handed over to Const. Subash (PW 6) who took the 

same   to   police   station   for   registration   of   FIR   and   accordingly   the 

case was registered. All these witnesses are also witnesses to the arrest 

of accused by SI Om Singh (PW 3) who reached the spot as further 

investigations were entrusted to him.10.  PW   8­   Inspt.   Satish   Kein   further   deposed   that   after 

reaching   police   station,   he   deposited   the   case   property   with   MHCM.S.C. No. 98/05                                                                         Page 5 of 11This witness further deposed that SI Om Singh produced the accused 

before   him   and   he   directed   the   SI   to   produce   him   in   the   court   next 

morning.11. PW 4 - ASI Om Prakash, duty officer, recorded the FIR 

on receipt of ruqqa and proved the copy of the FIR as Ex. PW 4/A.12. PW 3 - SI Om Singh is the IO of the case who reached 

the spot after recovery. He arrested the accused and conducted further 

investigation of this case.13. PW 7 - Head Constable Banne Singh, MHC(M) proved 

the entries Ex. PW 7/A and Ex. PW 7/B  effected in register no. 19 at 

police station Mayur Vihar.14.  PW   5   -   Constable   Sant   Kumar   deposed   that   on 

19.12.2005   he   had   taken   the   sample   parcel   to   FSL,   Rohini   and 

deposited the same in intact condition.15.  In his statement recorded undersection 313Cr.P.C. the 

accused has denied the case of prosecution in toto by stating that no 

such crime was ever committed by him. Accused further stated that he 

was implicated in this case after lifting him from his house by the police .16.  Accused   did   not   opt   to   lead   evidence   in   her   defence 

evidence.17. I have heard Ld. Addl. P.P. for the State and Sh. S.N. 

Qureshi, Advocate for accused  and have perused the record.S.C. No. 98/05                                                                            Page 6 of 1118.   Ld. Addl. PP for the State submitted that prosecution 

has proved its case beyond doubts and  all the mandatory provisions of 

law have been complied with. It is also submitted by ld Addl PP that no 

motive   for   false   implication   of   accused   has   been   proved.   He   further 

submitted that prosecution case can not be rejected on the ground  that 

public witness has not been examined. Ld. Addl PP has also submitted 

that   since   all   the   prosecution   witnesses   have   supported   the   case   of 

prosecution without material contradiction, the accused is liable to be 

convicted for the charged offence.19.  During   arguments,   Ld   counsel   for   the   accused 

contended that no recovery of any contraband was effected from the 

possession of the accused and he has been implicated falsely in this 

case.  It is also contended on behalf of accused that admittedly spot was 

a public place and despite the availability of public persons, none was 

joined as witness during the alleged search and seizure of contraband 

from   the   possession   of   the   accused   which   creates   doubt   about   the 

prosecution   case.   It   is   further   contended   by   the   ld   counsel   for   the 

accused that the statements of prosecution witnesses are full of material 

contradictions which create serious doubt about the prosecution case. It 

is also contended that legal provisions ofsec. 57NDPS Act have not 

been complied with.20.  I have given my consideration to the contentions of ld.S.C. No. 98/05                                                                           Page 7 of 11Addl PP for the State and ld counsel for the accused.21.    In   this   case,   the   prosecution   has   not   examined   any 

independent witness to the search and seizure of contraband from the 

possession of accused.  PW - 1 SI Omkar Singh, PW 2 HC Kripal Singh 

and PW­6 HC Subhash who  were not the members of the raiding party 

have stated that 4­5 passers­by were requested to join the raiding party 

but they were agreed and left without telling their names and addresses. 

HC Subhash(PW 6) stated that there is thickly residential area around 

the spot.   HC Kripal Singh(PW 2) during the cross examination stated 

that   no   resident   from   the   residential   area   was   called   after   the 

apprehension of accused. IO/SI Om Singh   (PW 3) stated during his 

cross examination that road adjacent to the spot is a public road and he 

did not make any request to any public person to join the proceedings. 

The   evidence   on   record   would   show   that   the   independent   public 

persons   were   easily   available   at   the   spot   at   the   time   of   search   and 

seizure of contraband.22.  It is well settled that the case of prosecution can not be
rejected on the ground that independent witnesses have not been
examined and mere absence of independent witnesses at the time of
search and seizure will not render the case of prosecution unreliable.
However, the court has to scrutinize their statements very closely in
order to form an opinion whether they are liable and trustworthy. The
prosecution has also to show in the evidence of prosecution witnessesS.C. No. 98/05                                                                            Page 8 of 11that an attempt was made to join public persons at the time of search
and seizure but none was available. [SeeAjmer Singh Vs. State of
Haryana(2010) 3 SCC 746;Dharampal Singh Vs. State of Punjab(2010) 9 SCC 608].23.  The   statement   of   recovery   witnesses   that   the   public 

persons had refused to join the proceedings is not believable as they 

have  even not disclosed  about age, physical description  etc of those 

public persons. Nature of personal difficulties of public persons have not 

been   disclosed   in   the   statements   of   prosecution   witnesses.   The 

evidence on record shows that despite availability of public witnesses at 

the spot, no sincere efforts were made to join them as witness during 

the   alleged  recovery  of  smack  from  the   possession  of  accused.  In a
case underNDPS Act, where serious allegations are made against the
police officials, recovery of contraband in presence of the independent
witness assumes significance. [SeeRitesh Chakarvati V. State of
Madhya Pradesh[2006 (4) RCR Criminal Supreme Court 480]; andSarju @ Ramu V. State of UP[2009 (4) C.C. Cases (SC) 204]. Thus,
non joining of public witnesses despite availability creates doubt against
the case of prosecution.24.   The perusal on evidence on record would also show 

that there are material contradictions in the statements of prosecution 

witnesses regarding the proceedings conducted in this case which are 

as follows :(i)          PW 1 SI Omkar Singh stated that the recovered contrabandS.C. No. 98/05                                                                        Page 9 of 11was   weighed   and   sealed   in   the   presence   of   the   SHO   at   the   spot 

whereas SHO Inspt. Satish Kein (PW 8) deposed that when he reached 

the   spot,   SI  Omkar  Singh   handed   over  him  two   pullandas  of  smack, 

form FSL and copy of seizure memo and the pullandas were sealed with 

the seal of OS.(ii)         PW 1 SI Onkar Singh stated that the recovered contraband 

was weighed with an iron manual scale at the spot and he was having 

the weights of 5, 10, 50 grams.  As per the evidence of recovery witness 

including   PW­1,   the   sample   of   2   grams   was   taken   from   the   alleged 

recovered smack.   It is not clarified as to how SI Onkar Singh (PW­1) 

had drawn the sample of 2 grams from the alleged recovered smack in 

the absence of weight of two grams.(iii)        PW 8 Inspt. Satish Kein stated that after coming back to the 

police station from the spot, he had deposited the case property in the 

malkhana   but   his   testimony   is   not   corroborated   with   the   malkhana 

record   of   the   police   station   concerned   as   according   to   that   record 

Ex.PW7/A, SI Omkar Singh (PW­1) had deposited the sealed pullandas 

in the malkhana.(iv)         The recovery witnesses including PW 8 Inspt. Satish Kein 

stated that he (SHO)had also affixed his seal of "SK" on the sample as 

well as on the remaining case property.  However, the seizure memo of 

smack Ex.PW1/D does not record that the pullandas were also sealedS.C. No. 98/05                                                                        Page 10 of 11with the seal of SHO.   The malkhana record Ex.PW7/A is also silent 

about affixing of seal of "SK" by the SHO on the sealed pullandas i.e. 

sample and remaining contraband.(v)          SI Onkar Singh (PW1) deposed that he had mentioned FIR 

number, relevant section and police stations on the pullandas. Whereas 

as   per   the   SHO   (PW8)   he   had   deposited   the   case   property   in   the 

malkhana after reaching to the police station from the spot. If the case 

property and sample have already been deposited by the SHO with the 

Malkhana Moharrar police station, it is not clarified as to how SI Omkar 

Singh could have written particulars of the case on those pullandas.(vi)         As per the statement of SI Omkar Singh (PW1), PW2 HC 

Kripal   Singh,   PW   8   Inspt.   Satish   Kein   the   secret   information   was 

received by SI Omkar Singh in he police station that one person having 

smack is standing at the spot whereas HC Subhash(PW6) during his 

cross examination stated that no such secret information was received 

in the police station and the same was received at the spot only.25.  All the above mentioned inconsistency in statements of 

prosecution witnesses are material in nature and create serious doubt 

about the case of prosecution.26.  The contentions of ld. counsel for the accused that the 

prosecution has not complied with the provision ofSec. 57NDPS Act 

has   also   merit.   IO   SI   Om   Singh(PW­3)   admitted   during   his   crossS.C. No. 98/05                                                                        Page 11 of 11examination that reportu/s 57NDPS Act was never prepared by him in 

this   case.     SI   Onkar   Singh   (PW1)   has   also   nowhere   stated   in   his 

evidence   that   he   ever   prepared   report   u/s   57NDPS   Actregarding 

search and seizure of contraband from the accused.  TheSec. 57NDPS 

Act reads as follows : ­ 

             "57. Report of arrest and seizure :  Whenever   any  
             person makes any arrest or seizure under this Act,  
             he   shall,   within   forth­eight   hours   next   after   such  
             arrest   or   seizure,   make   a   full   report   of   all   the  
             particulars   of   such   arrest   or   seizure   to   his  
             immediate superior official."27.  The purpose behindsection 57NDPS Act is to ensure 

that   there   is   no   misuse   of   powers   conferred   to   the   authorities   underNDPS   Actand   senior   officers   are   kept   informed   about   jurisdiction 

exercised   by   their   subordinate   police   officials   regarding   search   and 

seizure of contraband and arrest of any person.   In the present case 

admittedly no such report undersection 57NDPS Act regarding search 

and   seizure   of   contraband   from   the   accused   was   sent   to   the   senior 

officers.  There is no evidence on record to show that copy of FIR and 

other records regarding the arrest of accused and seizure of contraband 

articles  were   sent   by  the   police   official  to   their   superior  officers   after 

registration   of   this   case  (See  Sajjan   Abraham   V   State   of   Kerala  

[(2001)   6   SCC   692].    This   omission   on   the   part   of   prosecution   alsoS.C. No. 98/05                                                                           Page 12 of 11creates doubt about the case of prosecution.28.  The   contention   of   ld.   defence   counsel   that   there   is 

unexplained delay of more than 1 month in sending the sample to FSL 

authorities for its chemical examination has also some force. As per the 

case of prosecution, this alleged recovery was effected on 13.11.2005 

and sample was sent to FSL authorities on 19.12.2005.  No reason has 

been   shown   for   this   delay   in   sending   the   sample   parcel   to   FSL 

authorities. During that period the seals remained with the police officials 

and possibility of tempering with the sample and case property cannot 

be ruled out.29.  In   view   of   the   above   discussion   and   considering   the 

evidence on record, I am of the view that prosecution has not been able 

to prove its case beyond reasonable doubts against the accused. It is 

not   proved   beyond   doubt   that   accused   was   found   in   possession   of 

contraband   (smack)   as   alleged   by   the   prosecution.   The   accused   is 

hereby acquitted of the offence alleged against him by giving him benefit 

of doubt.30.    Case property be confiscated to State, after expiry of 

period of appeal/revision, if any.File be consigned to Record Room.Announced in the open court
on 25.01.2011                                       (Sarita Birbal)S.C. No. 98/05                                                                       Page 13 of 11ASJ:Spl. Judge(NDPS Act),
                                                                 KKD Courts: Delhi.S.C. No. 98/05                                                                            Page 14 of 11