State vs Ramesh
2013 Latest Caselaw 642 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI


+      CRL.L.P. 57/2013
       STATE
                                                                   ..... Appellant
                           Through Mr. Naveen Sharma, APP for the State.

                           versus
       RAMESH
                                                                 ..... Respondent
                           Through


       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
                       ORDER

            %          11.02.2013



CRL.M.A. NO. 1755/2013

By this application the appellant seeks condonation of 217 days delay

in filing the present appeal.

For the reasons stated in the application, the same is allowed.

The present application stands disposed of.

CRL.L.P. 57/2013

1. This application for criminal leave to appeal has been preferred by the

State against the order of acquittal dated 07.03.2012 passed by the ld.

Special Judge (NDPS), Shri Brijesh Kumar Garg, Karkardooma Courts,

Delhi in Sessions Case No. 29 of 2010 arising out of FIR No. 130 of

2010.

2. The accused, Ramesh was facing trial for the offence punishable

under Section 21 of the The Narcotic Drugs and Psychotropic

Substances (NDPS) Act, 1985 on the allegations that on 03.09.2010 , at

about 3.30 P.M. at Metro Station, Shastri Park behind Majar, Delhi, the

accused was found in possession of 500 gms of heroin without any

license or permit.

3. The case of the prosecution before the trial court was that S.I.

Bhagwan Singh received a secret information 03.09.2010 regarding the

possession of contraband by the accused, on which S.I. Bhagwan

Singh produced the secret informer before Inspector Vivek Pathak and

in pursuance thereof a raiding team was constituted , who went at the

spot, where the accused was apprehended at the instance of the secret

informer and thereafter, in compliance with the provisions of the NDPS

Act, a notice under section 50, NDPS Act, 1985 was served upon the

accused and the raiding party then proceeded to search the accused and

recovered 500 gms of heroin from his possession. In light of these

facts, the accused is liable to be convicted under the offence punishable

under Section 21 ( c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985.

4. The learned Trial Court vide order dated 07.03.2012, acquitted the

accused in the said offence on a premise that there are material

contradictions in the deposition of the witnesses, making the entire case

doubtful which resulted in the acquittal of the accused.

5. Assailing the aforesaid order Mr. Naveen Sharma, APP for the State

submits that the trial court doubted the entire prosecution on puerile

reasons. Contentions raised by the counsel for the appellant is that the

ld. Trial Court has erred in forming a doubt about the preparation of the

rukka by S.I. Bhagwan Singh, as he himself deposed that it was

prepared by H.C. Kanwal Singh who allegedly drove the police vehicle

to the spot. Counsel further submitted that the learned Trial Court

committed grave error by not appreciating that it is no more res integra

that mere defects in the investigation would not vitiate the trial and

cannot be a ground of acquittal. Counsel also argued that the learned

Trial Court has given undue weightage to the minor and small

contradictions regarding the time of occurrence of the incident in the

evidence led by the prosecution. Counsel further argued that learned

Trial Court also did not appreciate the fact that as soon as the duty

officer receives a rukka, the preparation of the FIR begins. As such, at

the time of preparation of the FIR itself, the FIR number is known to

the duty officer and in the present case also, the fact that the

investigating officer gave the FIR number before recording of the same

was completed is not an irregularity. Counsel further argued that the

learned trial court has grossly erred in passing the impugned judgment

in so far as it absolutely failed to notice that there is no bar in law to a

document being prepared by one investigating officer or a member of

the raiding team and being signed by another, therefore, not much

significance could be attached to the minor contradictions to have taken

place in the prosecution evidence. Counsel also argued that learned trial

court also committed an error in taking any view on the possession of

heroin when the recovery witnesses have uniformly deposed that the

heroin was in fact recovered from the accused and therefore, based on

the ocular and circumstantial evidence the prosecution can succeed in

seeking the conviction of the accused persons.

6. Based on the above submissions, counsel for the appellant seek grant

of criminal leave to appeal to challenge the impugned order dated 7th

March, 2012.

7. I have heard learned counsel for the appellant and given my anxious

consideration to the arguments advanced by him. I have also gone

through the impugned order passed by the Special Judge, NDPS,

Karkardooma Courts, Delhi.

8. The case of the prosecution is that on 03.09.2010, secret information

was received by S.I. Bhagwan Singh regarding the possession of

contraband by the accused, in pursuance of which, as per the directions

of the senior officers , a raiding team consisting of S.I. Bhagwan

Singh, H.C. Mahesh Kumar and Ct. Satpal went to the spot in a

Government vehicle, driven by H.C Kanwal Singh. The accused was

apprehended at the instance of the secret informer, although the

accused refused to get himself searched in the presence of the Gazetted

officer , thereafter, his personal search was conducted and 500 grams of

Heroin was recovered. Samples were taken and all these articles were

seized by S.I. Bhagwan Singh vide a seizure memo.

9. In order to prove its case the prosecution had examined 9 witnesses

PW-1 being ASI Bhim Singh, the duty officer , who received the rukka,

sent by SI Bhagwan Singh through Constable Satpal and recorded the

same vide DD. No. 15 and lodged an FIR No. 130/10. PW-2, Constable

Satpal, member of the raiding team who deposed that the rukka was

prepared by SI Bhagwan Singh. PW-3, HC Karuna Karan, reader to

ACP , N & CP who received two reports under section 57 NDPS Act

regarding the recovery of contraband from the accused. PW-4 , Ins

Kuldeep Singh, SHO , Crime Branch, who received sealed pulandas

and had put the FIR number on all these articles and deposited the same

vide a seizure memo. PW- 6 and PW-7 , HC Jag Narain and HC

Mahesh Kumar respectively, the recovery witnesses. PW-9 SI

Bhagwan Singh, the first investigating officer, who himself deposed in

his examination in the trial Court that the rukka was not prepared by

him and he got the same prepared through HC Kanwal Singh, however,

indisputably the HC Kanwal Singh accompanied the raiding team, as

the driver of the official vehicle who was neither cited as the witness

nor was he ever examined during trial. The existing lacuna was never

clarified by S.I. Bhagwan Singh in his deposition. It has also been

noticed by the trial court that the rukka has been prepared in different

handwriting while all the other documents bear a similar handwriting as

that of S.I. Bhagwan Singh. The two recovery witnesses on the contrary

have deposed that the rukka was prepared by SI Bhagwan Singh,

whereas S.I. Bhagwan Singh could not clarify as to why the rukka was

prepared by HC Kanwal Singh.

10. After critical analysis of the evidence of the said witnesses and

perusing the material on record, the Sessions Court found that the

prosecution has not been able to prove and substantiate the allegations

against the accused Ramesh due to gross procedural contradictions. The

learned Sessions Court thus passed an order of acquittal after finding

the entire prosecution evidence as sceptical. The learned Sessions Court

is right in observing that the perusal of the entries in DD no. 15, DD.

No. 17 and DDNo. 22 create doubt, as the entries indicate that Ct.

Satpal reached the crime Branch at 8.15 pm and handed over the rukka

to the DO and thereafter, driver Kanwal Singh retuned back to the spot,

whereas Ct. Sat Pal remained in the office to help the SHO. While as

per DD. No. 15, HC Kanwal Singh was directed to take second IO SI

Rajbir Singh to the spot, however recording of the FIR took about one

and a half hour , which got completed at around 9.45 p.m., therefore, it

is not clear as to how Inspector Kuldeep Singh got the FIR number and

its details , which were put by him on the sealed parcels after having

received them through Constable Sat Pal at 9.00.pm, and it is quite

cynical to note how he lodged DD no.16 at 9.00.pm. regarding

receiving of the pulandas and putting the numbers of the case on the

parcels and his seal on the case property and the FSL form and

deposited the same with MHCM at 9.pm., when the FIR was still being

recorded. The Sessions court has rightly observed that there are

procedural irregularities in the investigation. Therefore, the said

lacunas in the prosecution must be understood as a latent wedge in the

matrix of the prosecution case, the advantage of which would clearly

favour the accused.

11. The testimony of the nine prosecution witnesses as well as the

documentary evidence as relied upon by the prosecution , have also

failed to enthuse any confidence because of the substantial

incongruities in proving the relevant time when the incident in question

took place. The other witnesses also failed to demonstrate and justify

the prosecution story. In fact PW-9 , SI Bhagwan Singh himself has

deposed that the rukka was prepared by HC Kanwal Singh who has not

been even cited as a witness before the trial court

12. One cannot lose sight of the fact that there has been irregularities in

the conduct of investigation of the prosecution and the prosecution has

failed to clarify the same. For the prosecution to succeed in establishing

the guilt against the accused persons the sequence of chain of evidence

establishing the guilt has to be proved beyond all probabilities and not

merely by creating a cover-up at every step. In the facts of the present

case the prosecution has failed to prove as to whether the investigation

was conducted in a fair manner and eventually the entire prosecution

evidence being doubtful, could not even prove the said charges against

the accused persons due to the material contradictions. Apparently the

statement of various witnesses in the prosecution evidence was self-

contradictory. That being the case, the learned Additional Sessions

judge has placidly stated in his judgment in paragraph 14 & 15 as

follows:

"14. Perusal of these DDs further indicates that SI Rajbir Singh had left the PS Crime Branch for Narcotics Cell at about 9.00 p.m. in the official vehicle being driven by HC Kanwal Singh but he has deposed in the Court he has reached the spot at 9.20 p.m. It is pertinent to mention here that the accused was apprehended near Majar near Metro Station, Seelampur and as per the deposition of the prosecution witnesses, the said spot was situated at a distance of about 32- 35 kms from the police station- Crime Branch at Nehru Place. It is not clear as to how HC Kanwal Singh met him at PS Crime Branch at Nehru Place. It is not clear as to how HC Kanwal Singh met him at PS- Crime Branch when HC Kanwal Singh had already returned back at the spot, alone. It is not clear as to how SI Rajbir Singh had started the investigation on the spot at 9.20 p.m. when he had not even received the copy of the seizure memo or rukka or the copy of the FIR, as recording of the FIR was concluded only at 9.45 p.m.

15. All the above factors and material contradictions in the deposition witnessed, makes the entire prosecution case doubtful and accordingly the accused is hereby acquitted for the offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused, who is in judicial custody , be released henceforth, if not wanted in any other case, file be consigned to the record room, after due compliance."

13. Therefore in view of the above discussion, I find no illegality,

perversity or impropriety in the order passed by the learned Special

Judge. There is no merit in the contentions raised by counsel for the

appellant in the present criminal leave to appeal, therefore, the same is

accordingly declined and is hereby dismissed.

KAILASH GAMBHIR, J FEBRUARY 11, 2013 g