Mohd. Allaudin vs State Of G.N.C.T. Of Delhi
2010 Latest Caselaw 4430 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                    Judgment reserved on: July       05, 2010
                    Judgment delivered on: September 21, 2010

+      CRIMINAL APPEAL NO.623/2008

       MOHD. ALLAUDIN                       ....APPELLANT
               Through:      Mr. Rajesh Mahajan, Advocate with
                             Mr. Ajay Raghav, Advocate

                       Versus

       STATE OF G.N.C.T. OF DELHI       .....RESPONDENT
               Through: Mr.R.N.Vats, APP


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment dated

07.03.2008 and order on sentence dated 11.03.2008 in Sessions

Case No.137/2007 FIR No.477/2004 P.S. Samay Pur Badli in terms of

which the appellant has been convicted for the offence under

Section 20 of the Narcotics Drug and Psychotropic Substances Act

(for short `NDPS Act') and sentenced to undergo RI for the period of

10 years and also to pay a fine of `1 lakh , in default of payment of

which to undergo SI for further period of six months.

2. Briefly stated, case of the prosecution is that on the night

intervening 4th and 5th September, 2004, Constables Sudhir (PW2)

and Constable Jagbir (PW3) were on patrol duty at Bhalsawa Dairy

Pushta, Ganda Nala. At about 4:30 am, they noticed the appellant

coming from the side of G.T.K. Road, Pushta Ganda Nala. Appellant

was carrying a plastic "katta" (bag) on his head and a "jute thaila"

(bag) in his hand. On seeing the police officials, the appellant took

an about turn and started walking at a brisk pace. Constable Sudhir

and Constable Jagbir got suspicious and apprehended him. On

interrogation, the appellant disclosed his name as Allauddin S/o

Mohd. Rashid, R/0 A-3/12, J.J. Camp, Bhalsawa Dairy, Delhi. The

plastic "katta" and the "jute thaila" were checked and the "katta" as

well as the "thaila" were found to contain "ganja" wrapped in

newspapers and plastic "panni". Constables conveyed this

information to the Police Station on wireless which was recorded as

DD No.34A (Ex.PW5/A) at 5:05 am on 05.09.2004. SHO, P.S. Badli

was informed and copy of DD report was entrusted to SI Dhananjay

Gupta (PW6) for necessary action. SHO along with SI Dhananjay

Gupta along with other staff left the Police Station for the place of

recovery. On reaching there, 3/4 passersby were requested to join

the proceedings, but they declined to join as witnesses and left

without disclosing their names and addresses.

3. The "jute thaila" was found to contain "gudri" (piece of cloth)

wrapped in red colour plastic "panni" and the said "gudri" contained

6 kgs of "ganja", out of which, 1kg "ganja" was separated as a

sample and sealed in a parcel and remaining 5 kg "ganja" along

with "gudri" was kept in the plastic "panni" and converted into a

sealed packet.

4. "Katta" on checking was found to contain 21 kgs "ganja"

wrapped in plastic "panni" and newspaper. 1kg out of the same was

separated as a sample and sealed in a separate packet. Remaining

20 kgs of "ganja" was kept in the "katta" and was converted into a

sealed packet. All the four sealed packets were taken into

possession vide a recovery memo. Form CFSL was also filled and

thereafter the SHO left the spot for the Police Station along with the

recovered "ganja" as well as forms CFSL which he deposited in the

Malkhana.

5. SI Dhananjay Gupta recorded the statement Ex.PW2/B of

Constable Sudhir and sent it to the police station after appending his

endorsement Ex.PW6/A on it through Constable Jagbir Singh for the

registration of the case. During investigation, the samples seized at

the spot were sent to CFSL for chemical analysis and as per the

report of CFSL, both the samples tested positive for "ganja". After

completing the formalities of investigation, charge sheet was filed

against the appellant in the court.

6. The appellant was charged for the offence punishable under

Section 20 of the NDPS Act to which he pleaded not guilty and

claimed to be tried.

7. In order to bring home the guilt of the appellant, the

prosecution has examined six witnesses, who are police officials. It

would be appropriate to have a look upon the testimony of some

material witnesses.

8. PW2 Constable Sudhir and PW3 Constable Jagbir Singh are

claimed to be the witnesses of recovery. PW2 Constable Sudhir has

deposed that on the intervening night of 4th and 5th September,

2004, he and Constable Jagbir were on patrol duty at Bhalsawa

Dairy. At about 4:30 am when they were at Pushta near Ganda

Nala, they noticed the appellant coming from the side of GTK Road.

He was carrying a plastic "katta" on his head and a "jute thaila" in

his hand. Witness claimed that on seeing the police party, the

appellant took an about-turn and started walking briskly. On

suspicion, they apprehended the appellant and both "katta" and

"thaila" were checked, which were found to contain a material

smelling like tobacco. On enquiry, the appellant told him that it was

"ganja". This information was given to the Police Station on wireless

at about 5:00 am. Pursuant to the information, SHO Shish Ram

(PW4) and SI Dhananjay Gupta (PW6) reached at the spot at about

5:20 am. The SHO checked the contents of "katta" and "thaila" and

it was found to be "ganja". "Ganja" found in "thaila" on weighing

was found to be 6 kg. Out of that, 1 kg was taken as a sample.

Thereafter "ganja" contained in "katta" was weighed and it was

found to be 21 kg, out of which 1 kg was separated as a sample and

rest was kept in "Katta". Both the samples were converted into

sealed packets with the seals of "DG" and "SR". Similarly, "katta"

with remaining "ganja" and "thaila" with remaining "ganja" were

also sealed with the seals of "DG" and "SR" and they were taken

into possession vide memo Ex.PW2/A. The witness claimed that SI

Dhananjay Gupta requested some passersby to join the proceedings

but none of them agreed. On completion of the proceedings,

"katta" and "thaila" containing "ganja" as well as samples and a

carbon copy of recovery memo were handed over by SI Dhananjay

Gupta, Investigating Officer to the SHO and both the seals were

handed over to Constable Jagbir Singh. The witness further stated

that SI Dhananjay Gupta thereafter recorded his statement

Ex.PW2/B and sent the rukka to the police station for registration of

case through Constable Jagbir and Constable Jagbir returned to the

spot along with the copy of FIR at 8:15 am. Thereafter, the

appellant was arrested vide arrest memo Ex.PW2/C. His personal

search was conducted vide memo Ex.PW2/D. PW2 Constable Sudhir

also identified "jute thaila" Ex.P1, red colour polythene Ex.P2, cloth

"gudri" Ex.P3, "ganja" containing therein Ex.P4. He also identified

"katta" Ex.P5 and "ganja" containing therein as Ex.P6 and plastic

"panni" and newspaper as Ex.P7 and Ex.P8 respectively. PW3

Constable Jagbir Singh, the other witness of the recovery has also

deposed to almost similar effect. In his cross-examination, he stated

that notice under Section 50 of the NDPS Act was not given to the

accused as he was caught suddenly.

9. PW4 Shish Ram is another important witness. He was SHO,

P.S. Badli at the relevant time. He has deposed that on 05.09.2004,

on the receipt of information that Constable Sudhir and Constable

Jagbir have apprehended the accused Mohd Allauddin carrying

"ganja", he along with SI Dhananjay Gupta reached at the spot. The

Constables produced before him plastic bag and a "thaila"

recovered from the possession of Mohd. Allauddin. On checking, the

plastic bag as well as "thaila" was found to contain "ganja". He

directed SI Dhananjay Gupta to investigate the matter. The "ganja"

contained in "thaila" was weighed and it was found to be 6 kgs.

1 kg out of the same was separated as a sample and the sample as

well as remaining "ganja" were sealed in separate packets.

Thereafter, the "ganja" contained in the "katta" (plastic bag) was

weighed and it was found to be 21 kgs. 1 kg out of the same was

separated as a sample and the sample as well as remaining "ganja"

found in "katta" were sealed in separate packets and all the four

packets were seized vide memo Ex.PW2/A. FSL form was filled by SI

Dhananjay Gupta and the seals used for sealing of the packets with

the inscriptions "DG" and "SR" were handed over to Constable

Jagbir. Witness claims that thereafter he left the spot along with the

seized pullandas and FSL forms and deposited the same with

Moharrir Malkhana of the Police Station. This witness has identified

the exhibits as P-1 to P-8. In his cross-examination, the witness

deposed that he and SI Dhananjay Gupta requested four or five

persons to join the proceedings, but none agreed. He also stated

that Investigating Officer had carried the scale and weights from the

Police Station. He denied the suggestion that he did not visit the

spot of recovery and all the proceedings have been done at the

Police Station.

10. PW6 SI Dhananjay Gupta is the Investigating Officer. He has

also deposed in almost similar fashion. He further stated that he

recorded the statement of Constable Sudhir and sent it to the Police

Station for the registration of the case. He also proved the rough

site plan prepared by him as Ex.PW6/B and the arrest memo

Ex.PW2/C besides personal search memo Ex.PW2/D. He further

stated that he prepared the report Ex.PW6/C under Section 57 of the

NDPS Act and gave it to the Reader to the SHO to be forwarded to

the ACP. He arranged for sending the samples and FSL form to FSL

Rohini and obtained the result of chemical analysis. In the cross-

examination, he denied the suggestion that he did not visit the spot

along with the SHO or that the case property has been planted upon

the accused.

11. The appellant, when examined under Section 313 Cr.P.C.,

denied the prosecution story. He claimed that he was picked up

from his residence at night and falsely implicated in this case. No

witness has been examined in defence.

12. The learned Additional Sessions Judge on the strength of the

above referred evidence of the prosecution concluded that the

prosecution has been able to establish that the appellant was found

in possession of 27 kgs of "ganja" on 05.09.2004 and convicted and

sentenced him for the offence punishable under Section 20 of the

NDPS Act.

13. Learned Shri Rajesh Mahajan, Advocate appearing for the

appellant has submitted that the impugned judgment is based upon

the wrong appreciation of facts. He submits that the appellant is

innocent, and he was picked up from his residence and falsely

implicated in this case. In support of this contention, he has drawn

my attention to the testimonies of PW2 Constable Sudhir, PW3 Jagbir

Singh, PW4 Inspector Shish Ram and PW6 S.I. Dhananjay Gupta, the

Investigating Officer, who have stated that the post raid proceedings

regarding weighing of the recovered "ganja", separating of samples,

seizure of case property and filling of FSL form were conducted

before sending rukka to the police station for the registration of the

case. According to PW4 Inspector Shish Ram, after the post raid

proceedings, he left the spot along with the case property and the

FSL form filled at the spot and deposited the same in malkhana P.S.

Samay Pur Badli on his arrival there. Learned counsel submits that

if the aforesaid version is true, then the FIR number written at the

top of the recovery memo Ex.PW2/A should not have been there. He

argued that mention of FIR No.477/2004 under Section 20/61/85

NDPS Act on the top of recovery memo Ex.PW2/A belies the entire

story of recovery and raises a strong suspicion that all proceedings

pertaining to this case have been conducted while sitting at the

police station and this circumstance by itself is sufficient to extend

the benefit of doubt to the appellant.

14. Learned APP, on the other hand, has drawn my attention to DD

No.4A dated 05.09.2004 P.S. Samay Pur Badli wherein arrival of

Inspector Shish Ram at the police station at 7.35 A.M. is recorded

and it is also recorded that on arrival at the police station, Inspector

Shish Ram was told by the Duty Officer that the case in respect of

the recovery of aforesaid "ganja" had already been registered as FIR

No.477/2004 under Section 27/61/85 NDPS Act and on this, he

appended the FIR number on the sealed packets as well as Form FSL

and deposited the same at the malkhana. Learned APP submits that

from this it is properly explained as to how the FIR number has

surfaced on the pullandas of the case property, the recovery memo-

cum- seizure memo Ex.PW2/A.

15. I have considered the rival contentions on this aspect of the

matter. At the outset, it may be pointed out that DD No.4A referred

to by the learned APP has not been proved on record. Otherwise

also, even if it is assumed that this DD report was actually recorded

at the police station, it does not help the prosecution for the reason

that as per the testimony of PW4 Inspector Shish Ram, he had left

the spot in the official vehicle after the seizure of the case property

and filling up of the FSL Form. It is also the case of the prosecution

that thereafter Inspector Dhananjay Gupta recorded the statement

of Constable Sudhir, appended his endorsement thereupon and sent

it to the police station through Constable Jagbir Singh for the

registration of the case. The said rukka sent by the Investigating

Officer is Ex.PW6/A and as per the endorsement on this rukka it was

sent to the police station at around 7.00 AM. One can safely assume

that Investigating Officer must have taken around 5-10 minutes in

recording the statement of Constable Sudhir and preparing rukka

Ex.PW6/A after the SHO had left the spot. In that eventuality,

Constable Jagbir Singh in all probabilities could not have reached the

police station before the arrival of the SHO Inspector Shish Ram at

the police station. Therefore, it is highly improbable that at the time

of arrival of Inspector Shish Ram at the police station the FIR was

already registered. This circumstance raises a strong doubt against

the correctness of prosecution story.

16. Another discrepancy pointed out by the learned counsel for the

appellant is that as per the evidence of prosecution witnesses, two

samples of 1 kilogram each were separated and sealed at the spot.

However, perusal of the FSL report dated 02.12.2004 reveals that

the samples which reached at the FSL respectively contained 860

gms and 892 gms of dried greenish, brownish, flowery vegetative

material described as "ganja". There is no explanation about the

discrepancy in the weight of the samples which were allegedly taken

at the spot and which reached at the FSL. Learned APP, to counter

this argument, has submitted that in the instant case the seizure

was affected on 06.09.2004 and the samples were sent to FSL

Rohini after about 2½ months on 21.11.2004. He submitted that a

possibility cannot be ruled out that during intervening 2½ months,

the samples lost moisture because of evaporation and heat which

resulted in the decrease in weight of the samples. I am not

convinced with the above argument of learned APP. The difference

in weight of the samples which were allegedly taken at the spot and

which reached at the FSL is substantial and it cannot be attributed

to loss of moisture due to heat and evaporation. It may further be

pointed out that as per the case of prosecution, the samples seized

were handed over at the spot to Constable Jagbir Singh. Constable

Jagbir Singh in his cross examination has stated that he returned the

seal to the Investigating Officer. PW6 S.I. Dhananjay Gupta in his

cross examination has stated that the seal was returned to him by

Constable Jagbir Singh after 2/4 days. S.I. Dhananjay Gupta has also

stated that he himself collected the samples from the malkhana and

took those samples along with FSL form to FSL, Rohini. Ex.PW1/B is

the road certificate vide which the samples and FSL form were sent

to FSL Rohini. This road certificate is dated 22.11.2004. This imply

that when S.I. Dhananjay Gupta collected the samples and FSL Form

from Moharrir Malkhana P.S. Samay Pur Badli, he was already in

possession of the seal used for sealing the samples. Therefore, a

possibility of tampering with the samples and the FSL form cannot

be ruled out.

17. Aforesaid discrepancy in the prosecution evidence, coupled

with the fact that there is no independent witness to the recovery,

raises a strong doubt against the correctness of the version of

prosecution witnesses, who fell within the category of interested

witnesses being the police officials involved with the investigation.

Thus, it is not safe to rely upon their testimony.

18. In view of the discussion above, I find it difficult to sustain the

conviction and sentence of the appellant, who at least is entitled to

the benefit of doubt. I, therefore, accept the appeal and set aside

the impugned judgment of conviction and order on sentence. The

appellant is acquitted of the charge, giving him benefit of doubt.

19. The appellant is in Jail. He be released forthwith, if not required

in any other case.

20. The appeal is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE SEPTEMBER 21, 2010 pst/ks