Mohd. Ibrahim vs State Of Nct Of Delhi
2012 Latest Caselaw 6761 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CRL.A. 426/2010

%                          Judgment reserved on 22nd November, 2012
                          Judgement delivered on 27th November, 2012

        MOHD. IBRAHIM                                    ..... Appellant

                                   Through:   Mr. Aditya Wadhwa, Adv.

                          versus

        STATE OF NCT OF DELHI                            ..... Respondent

                                   Through:   Ms. Fizani Hussain, APP

                                       AND

        CRL.A. 847/2010

        MODU                                             ..... Appellant

                                   Through:   Mr. Deepak Vohra, Adv.

                          Versus

        STATE OF NCT OF DELHI                            ..... Respondent

                                   Through:   Ms. Fizani Hussain, APP

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.

1. Appellants have been convicted under Section 20 (b) (ii) (c)

of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short hereinafter referred to as "the Act") by the trial court;

sentenced to undergo rigorous imprisonment for ten years each

with fine of `1 lac each and in default of payment of fine to

undergo simple imprisonment for six months. Benefit of Section

428 Cr.P.C. has also been extended to them.

2. Aggrieved by their conviction as also the sentences as

handed down to them by the trial court, appellants have preferred

the above noted appeals, which arise from the same incident, FIR

and judgment; thus, are disposed of together.

3. Prosecution case as set out in the charge-sheet is that PW2

ASI Yeshpal Singh was present in the Police Station Tilak Marg,

New Delhi on 25th July, 2005 at about 3 PM when a secret

informer contacted him and informed that two young boys, who

were Bangladeshi nationals, used to sell „ganja‟ and they would

de-board a train at Tilak Bridge Railway Station between 4 to 5

p.m. with large quantity of „ganja‟ and would go to Gokulpuri, in

an auto rickshaw. Information was recorded in daily diary. PW2

ASI Yeshpal Singh also informed this fact to PW6 Station House

Officer Inspector Satya Pal Singh, who in turn passed on this

information to Assistant Commissioner of Police Niranjan Singh,

who directed for conducting of a raid to apprehend the culprits.

Accordingly, PW2 ASI Yeshpal Singh formed a raiding party

comprising of PW3 Constable Rakesh Kumar and PW4 Constable

Satish Kumar. Thereafter, raiding party reached near the staircase

of Tilak Bridge Railway Station at about 3:30 PM. Five-six

passersby were requested to join the raiding party but they showed

their inability to join the proceedings. Raiding party took position

near the staircase.

4. At about 4 PM two boys were seen coming down from the

staircase. Mohd. Ibrahim (whose name was disclosed after his

apprehension) was carrying two brown coloured rexine bags on his

shoulders and one blue coloured suitcase in his right hand. Modu

(whose name was also disclosed after his apprehension) was

carrying a black coloured rexine bag. Both of them were

intercepted. Notice under Section 50 of the Act was served on the

appellants and they were asked, whether they wanted to be

searched in presence of a Magistrate or Gazetted Officer at which

they stated that they were not willing to be searched before a

Magistrate or Gazetted Officer. Raiding party searched the bags

and suitcase, which Ibrahim was carrying and green coloured

leaves were recovered. Similarly, from the bag of Modu similar

kind of leaves were recovered. It was found to be „ganja‟. The

total quantity of ganja recovered from Mohd. Ibrahim was 51 kg;

whereas the total quantity of ganja recovered from Modu was 29

kg. Sample of 1 kg each was separately taken from each

bag/suitcase and sealed in four separate pullandas with the seal of

YPS. FSL forms were also prepared at the spot. Seal was affixed

on FSL form as well. The seal of YPS was handed over by ASI

Yeshpal Singh (PW2) to Constable Rakesh Kumar (PW3). In the

meanwhile, Inspector Satya Pal Singh (PW6) along with his staff

arrived there. He was informed about the seizure. He also affixed

the seal of SPS on the pullandas and FSL forms. He took pullands,

FSL forms along with carbon copy thereof in his possession and

later deposited the same in the malkhana on the same day.

5. Rukka Ex. PW2/A was prepared by PW2 ASI Yesh Pal

Singh wherein above facts were mentioned and the same was sent

to police station per hand PW1 Constable Satish Kumar for

registration of FIR and pursuant thereof FIR No. 301/2005 under

Sections 20/61/85 of the Act Ex. PW4/A was registered.

6. After registration of FIR, investigation was handed over to

SI Sanjay Singh (PW7), who reached the spot, took personal search

of appellants, arrested them and sent the report under Section 57 of

the Act detailing above facts to Additional Commissioner of Police

through the Reader of Station House Officer. Later, he collected

pullandas from malkhana and deposited the same at FSL, Rohini.

As per the chemical examination report, sample was found

containing „Tetrahydrocannabinol‟, which was the main constituent

of Cannabis plant. As per the biological examination report,

sample was found to be „female flowering portions of Indian

Hemp‟, that is „ganja‟.

7. PW1 Constable Satish Kumar, PW2 ASI Yeshpal Singh, and

PW3 Constable Rakesh Kumar are members of the raiding party.

It is the PW2, who had received secret information and informed

the same to PW6 Inspector Satya Pal Singh, who was the Station

House Officer of Police Station Tilak Marg. Raiding party was

constituted on the direction of ACP Niranjan Singh who was

informed about the secret information. Members of raiding party

intercepted and seized the „ganja‟ from the appellants in the

manner as described hereinabove. Samples were taken and sealed

by PW2 with his seal YPS. FSL forms were prepared. PW6

Inspector Satya Pal Singh, who had also reached the spot, affixed

his seal „SPS‟ on the pullandas and FSL forms. PW7 SI Sanjay

Singh is the Investigating Officer and had conducted the

investigation after the registration of FIR. Only testimonies of

police officials are available as no independent witness is stated to

have joined the raid proceedings, despite efforts made by the PW2.

PW1 to PW3 and PW6 have corroborated each other with regard to

the receipt of secret information, forming of raiding party,

apprehension of the appellants along with the ganja, its sealing and

preparation of FSL forms. PW6 has categorically deposed that

when he reached the spot samples had already been sealed with the

seal of YPS, inasmuch as, FSL forms were also prepared. He has

deposed that sealed packets of samples along with FSL forms were

handed over to him by PW3. Thereafter, he also affixed the seal of

SPS on the sealed pullandas as also on FSL forms. He has also

deposed about depositing of the case property in the malkhana.

PW7 SI Sanjay Singh has stepped in the investigation after

registration of FIR. He has deposed about arrest of appellants and

his carrying the case property from malkhana to FSL, Rohini along

with FSL forms on 18th August, 2005. Though in his examination-

in-chief he did not depose about the FSL forms, but in his cross-

examination conducted by the Additional Public Prosecutor he has

clarified that he had also taken FSL forms along with the case

property on 18th August, 2005. No witness from FSL has been

produced, however, counsel for the appellants have contended that

the same can be read under Section 293 of the Cr.P.C. Malkhana

Moharrar {MHC(M)} ASI Bijender Singh has been examined as

PW5. He has proved the relevant entries in the stock room register

as Ex. PW5/A.

8. PW1 to PW3 have also deposed about the service of notice

under Section 50 of the Act on the appellants before their search.

PW7 has deposed about forwarding of report under Section 57 of

the Act to ACP Niranjan Singh. On the basis of the above

evidence, trial court has concluded that the prosecution had

succeeded in proving its case beyond reasonable doubt against the

appellants that they were in conscious possession of contraband.

By placing reliance on State of Punjab vs. Balwant Rai 2005 (1)

JCC (Narcotics) 103 and Sanjiv Kumar vs. State of H.P. 2005 (1)

Crimes 358 (H.P.), trial court has held that huge quantity of ganja

recovered from the appellants ruled out the possibility of

implication as it was improbable to say that the police would

implicate innocent persons in such a serious case by planting huge

quantity of ganja on their person.

9. I have heard learned counsel for the appellants, learned APP

for the State and perused the trial court record carefully. I am of

the opinion that the trial court has ignored the crucial point of non-

compliance of mandatory provisions by the prosecuting agency

giving rise to the suspicion regarding tampering of the case

property. In this case, documentary evidence is not in line with the

ocular versions given by the witnesses, with regard to handing over

of the seals of YPS and SPS by the concerned officers to some

third persons which indicate that the sample seals affixed on the

pullandas remained in their possession only till the time case

property was sent to FSL. That apart there is no cogent evidence

there to prove that the CFSL forms, were prepared at the spot and

sent to FSL. PW2 ASI Yeshpal Singh has deposed that after

affixing the seal of YPS on the sample pullandas he had handed

over the same to PW3 Constable Rakesh Kumar. Though PW3

Constable Rakesh Kumar has corroborated this fact but the same is

not corroborated from the documentary evidence. As per PW3

Constable Rakesh Kumar, he had deposited the seal in the

Malkhana. However, a perusal of the entries in the stock room

register Ex. PW5/A believes this statement. There is no entry in

the stock room register in this regard. PW6 Inspector Satya Pal

Singh has not even deposed that he had handed over the seal to

some other officials, meaning thereby, seal remained with him.

Since seal remained with the concerned officer to which the same

belonged possibility of tampering cannot be ruled out. In Andrea

Siddi vs. State of Goa, Crl. A. No. 42 of 1997 dated 18th December,

1997 (Bom), it has been held thus, "it was pointed out that it is of

utmost importance that there must be very cogent and trustworthy

evidence on the part of the prosecution that the contraband seized

is the same which is ultimately analysed by the Junior Scientific

Officer and found to be contraband within the meaning of the

NDPS Act and in order to ensure the same, the specimen seal

assumes importance and it has great sanctity and value. It was

further pointed out in the said judgment that the prosecution has to

ensure that once the specimen seal which has been used for

affixing on the contraband recovered and seal impression of the

same was taken by the Search Officer, the seal should not be

available with the Search Officer and there should be positive

evidence on record that the said specimen seal was not within the

reach of the Search Officer after the search and seizure formalities

are completed and the impression of the specimen seal is taken.

10. As regards FSL forms, the same have not been placed on

record nor proved. As per the prosecution, PW7 SI Sanjay Singh

had taken four pullandas from the malkhana along with FSL forms

to deposit the same with FSL, Rohini on 18th August, 2005.

However, relevant entries in the Stock Room register Ex. PW5/A

does not corroborate this fact. As per relevant entry, samples were

sent to FSL, Rohini through SI Sanjay Singh vide Road Certificate

No. 34/21/05 dated 18th August, 2005. In the Road Certificate

dated 18th August, 2005 Ex. PW5/B there is no mention of FSL

forms. Learned Additional Public Prosecutor has vehemently

contended that in the FSL report a reference has been made with

regard to the „FSL forms‟ which indicates that FSL forms were

sent along with the case property. I do not find any force in this

contention. A critical scrutiny of FSL report No. FSL..2005/C-

3259 dated 17th September, 2005 makes it clear that the forwarding

letter has been construed „FSL form‟. The exact language in the

report reads as under:-

"Your letter no. 1298/SHO dated 18.08.05 regarding four parcel (s) in connection with case FIR No. 301/05 dated 25.07.05 U/s. 20/61/85 NDPS Act PS Tilak Marg duly received in this office on 18.08.05. DESCRIPTION OF PARCELS & CONDITIONS OF SEALS The Parcel(s) four in numbers marked „A‟, „B‟, „C‟ & „G‟ which were sealed and tallied with specimen seal impression forwarded alongwith forwarding letter (FSL FORM)"

11. Language used in the letter makes it clear that it is the

forwarding letter which has been treated by the analyst as „FSL

form‟ and for this reason; the words used are "FSL FORM" and

not "FSL forms", inasmuch as, the words „FSL form‟ have been

mentioned in bracket after the words Forwarding Letter. As per the

prosecution, two FSL forms were prepared. Had FSL forms been

sent to FSL and the report refers to said FSL forms, then the words

"FSL forms" ought to have been used instead of „FSL form‟.

Conspicuous absence of „FSL forms‟ creates a cloud of suspicion

about their existence. It creates a serious doubt that the same had

been prepared and sent to FSL, Rohini as has been projected.

Resultantly, benefit of doubt goes in favour of appellants.

12. In Radha Kishan vs. State 87 (2000) Delhi Law Times 106 it

has been held thus, "it is normal procedure that when the

incriminating articles are seized and are required to be sent to the

Central Forensic Science Laboratory, those articles are

immediately sealed and deposited at the Malkhana at the police

station till they are taken out and sent to the Laboratory. In the

instant case, this was not done. Contemporaneously with seizure

and sealing of such articles, impression of seal used on the seal is

put on a form, commonly called, the CFSL form. This is so done

because at the time of analysis of sealed packets in the laboratory,

the analyst concerned is able to tally the seal impressions on sealed

packets with those appearing on the CFSL form in order to rule out

any possibility of tampering of seals on sealed packets after seizure

anywhere or in transit till receipt in laboratory. The importance of

the CFSL form thus cannot be overemphasized because this

document provides a valuable safeguard to an accused to ensure

that no tampering has been done during intervening period. The

CFSL form is a document or forwarding note accompanying a

sample sent by the police to Forensic Science Laboratory. Such a

form contains the nature of the crime, list of samples being sent for

examination, nature of examination required and specimen of the

seal/seals affixed on the exhibit besides particulars of the

case/police station".

13. In Radha Kishan‟case (supra), after referring to the Delhi

High Court Rules, Part III Chapter 18 B, regarding proper proof of

custody of articles, it was held that the evidence of preparation and

dispatch of the FSL form was critical for ensuring that the sealed

sample was kept intact in the police malkhana and an adverse

inference would be drawn against the prosecution in the event the

FSL form was not proved to have been prepared and dispatched.

In Moolchand vs. State 49 (1993) Delhi Law Times 649 it has been

held that FSL form allegedly filled up at the spot, was neither

deposited in malkhana nor was sent to CFSL along with the

sample. The court held that recovery was suspicious.

14. In Satinder Singh vs. State (NCT of Delhi) 69 (1997) Delhi

Law Times, 577 this court has held that oral testimony, which is

contrary to the documentary evidence, that is, register malkhana

and the Road Certificate cannot be preferred unless evidence is led

proving reasons for omission in the documents.

15. For the foregoing reasons, I am of the view that tampering of

the sample cannot be ruled out in this case firstly in not handing

over the said by the sealing officer to a third person; secondly, for

lack of compliance of the mandatory provision that is preparation

of FSL forms and forwarding the same to FSL along with sealed

pullandas containing samples. In my view, prosecution has failed

to prove the guilt of the appellants beyond shadow of reasonable

doubt for the reasons detailed hereinabove. Accordingly, both the

appeals are allowed. Appellants are acquitted by extending benefit

of doubt. Appellants be released forthwith unless required in any

other case.

16. Copy of this order be sent to the Jail Superintendent for

serving it on the appellants as also for compliance.

A.K. PATHAK, J.

NOVEMBER 27, 2012 rb