Mool Chand Yadav vs State
2013 Latest Caselaw 4478 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                               RESERVED ON : July 04, 2013
                               DECIDED ON : September 27, 2013


+      CRL.A.183/2012 & Crl.M.B.Nos.633/2013 & 893/2013


       MOOL CHAND YADAV                                 ..... Appellant
                   Through :          Mr.Vikas Jain, Advocate.


                         versus


       STATE                                ..... Respondent
                         Through :    Mr.M.N.Dudeja, APP for the State.
                                      Insp.Kuldeep Singh, PS Crime &
                                      Railway.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Mool Chand Yadav (the appellant) challenges conviction in

Sessions Case No.05/02/2009 arising out of FIR No.20/2008 registered at

Police Station Crime Branch whereby he was held guilty for committing

offence punishable under Section 18 (c) NDPS Act by a judgment dated

30.11.2011. By an order dated 16.12.2011 he was awarded Rigorous

Imprisonment for ten years with fine `1,00,000/-.

2. Allegations against the appellant were that on 11.11.2008 at

about 10.30 A.M. near DSOI Club, Dhaula Kuan, New Delhi, he was

found in possession of 20kg of opium in contravention of provisions of

NDPS Act. The prosecution examined 12 witnesses to establish

appellant's guilt. In his 313 statement, he pleaded false implication and

examined eight witnesses - Saradara Ram (DW-1), Vikram (DW-2),

Dharam Chand (DW-3), Naresh Chand (DW-4), HC Onkar Singh (DW-

5), HC Ishwar Singh (DW-6), Const.Surender (DW-7) and Inspector

Chand Mal (DW-8) in defence. On appreciating the evidence and after

considering the rival contentions of the parties, the trial court, by the

impugned judgment, held Mool Chand Yadav perpetrator of the crime and

sentenced him as mentioned above. Being aggrieved, the appellant has

preferred the appeal.

3. Prosecution's case is that on 10.11.2008 at about 09.00 A.M.

secret information was received by SI Kuldeep Singh that Mool Chand

and Udey Bhan, R/o village Behror (Rajasthan), well connected with

local police/administration would come to Delhi in a day or two to deliver

a consignment of opium. He conveyed the secret information to

Insp.Akshay Kumar, SHO Crime Branch and Shri Sanjay Tyagi, ACP and

produced the secret informer before them. SI Kuldeep Singh and SI Rajpal

Singh were directed to develop the information in Rajasthan and Delhi

respectively. On 11.11.2008, SI Rajpal Singh received a secret

information that Mool Chand and Udey Bhan would come in between

10.00A.M. to 11.00A.M.for supply of consignment of opium near Bus

Stand, Dhaula Kuan. After completing mandatory formalities, a raiding

team was formed and left Crime Branch office along with the informer in

official vehicle (TATA 407) No.DL-ILG-0798 driven by Ct.Surinder. On

the way, SI Rajpal requested three individuals standing near Safdarjung

Hospital and STD/PCO attendant and three author rickshaw drivers at

Dhaula Kuan to join the raiding party but none of them obliged and

expressed inability for various reasons. After briefing the staff, a

'nakabandi' was organized. At about 10.30 A.M.. Mool Chand was seen

coming from bus stand towards Ring Road with a plastic container in his

right hand. On checking, it was found to contain 20 kg opium. After

completing the formalities, a complaint was sent to Duty Officer, Police

Station, Crime Branch through HC Pramod Kumar for registration of the

case. The case property was sent to SHO in compliance of Section 55

NDPS Act. Further case of the prosecution is that investigation of this

case was assigned to SI Kuldeep Singh who went to the spot. An

independent public witness Subhash joined the investigation. The

investigating officer recorded statements of HC Laxman Parsad and

Subhash under Section 161 Cr.P.C. The appellant was interrogated and

arrested. In his personal search, cash `150/-, a wrist watch and a pink

colour bus ticket from Behror to Delhi was recovered and seized. During

the course of investigation, the case property was sent for analysis to FSL.

The Investigating Officer recorded the statements of witnesses conversant

with the facts and after completion of investigation submitted a charge-

sheet against the appellant in the court.

4. The crucial and moot point to be ascertained is whether

opium was recovered from appellant's possession in the manner as

claimed by the prosecution on 11.11.2008 at about 10.30 A.M. The

prosecution was to prove beyond reasonable doubt that Mool Chand

Yadav was present with the contraband at the place of arrest on

11.11.2008 at 10.30 A.M. The secret information with Crime Branch on

10.11.2008 was that Mool Chand and Udey Bhan would visit Delhi in a

day or two to supply consignment of opium. It is unclear as to, to whom

the opium was to be supplied and if so at which place. No investigation

was conducted as to with whom the appellant used to remain in contact

for the supply of huge quantity of contraband. The source from where the

contraband used to be arranged or procured was not investigated. At the

time of apprehension of the accused on 11.11.2008 at 10.30 A.M., no

independent public witness was associated. It is not clear as to which

place/destination the appellant was proceeding on foot after alighting from

the bus to supply opium. No individual came near the place of

apprehension to collect the consignment. No incriminating document was

found in the appellant's possession. The secret information turned wrong

as Udey Bhan did not accompany the appellant to hand over the

consignment. The ticket (Ex.PW11/D) allegedly recovered in the

personal search of the appellant showed that he travelled from Behror to

Delhi in a bus and it was meant for two individuals/passengers. The

Investigating Officer did not verify if the appellant along with other

individual had travelled from Behror to Delhi in a particular bus. The

driver, conductor and other passengers in the bus were not examined. It

was not ascertained as to at what time the two passengers had travelled on

the ticket (Ex.PW-11/D) on 11.11.2008. The Investigating Officer did not

seek police remand to investigate if Udey Bhan had travelled with the

appellant in the said bus or where he had disappeared after arriving at the

bus stand. No attempt was made to find out his whereabouts and the IO

did not initiate any proceeding against him for his alleged involvement.

Mool Chand Yadav was seen coming alone on foot towards Ring Road

from the bus stand. It is not explained as to why no police official was

deputed at the bus stand to apprehend the suspects soon after they alighted

from the bus. It was not certain that Mool Chand Yadav would come on

foot towards Ring Road with the container and would not go towards

other direction.

5. On 11.11.2008 after getting information of Mool Chand

Yadav's abduction in a Swift car of silver colour from village Sherpur

about 10.00 or 10.30 A.M., the police of P.S. Behror, went to Vikram's

house. DW-2 Vikram in his Court statement deposed that Deputy S.P.

made telephone calls from his house to intercept the said vehicle i.e. DL

5121. DW-6 (HC Ishwar Singh) proved DD No.480 (Ex.DW-6/A)

recorded by him on 11.11.2008 at about 11.00 A.M. on the basis of

information received from an individual of village Sherpur informing that

Mool Chand Yadav S/o Prabhati Lal had been taken towards Delhi by

some person in a silver Swift vehicle whose number could be seen only as

'DL 5121'. He further recorded DD No.486 (Ex. DW6/B) at 02.10. P.M.

regarding arrival of SHO Inspector Chand Mal along with his staff to the

Police Station after investigation of DD No.480. Crucial testimony is that

of DW-8 Insp.Chand Mal, SHO PS Behror, District Alwar (Rajasthan).

He deposed that at 11.00 A.M., on getting information vide DD No.480

(Ex.DW-6/A) about Mool Chand Yadav's abduction in a Swift Car

bearing Registration No.DL5121, he left for village Sherpur and flashed

wireless messages to intercept the Swift car. He went to Mool Chand's

house at Sherpur after apprising Deputy S.P., Behror about the

information and he also reached there. The family members disclosed

about the visit of one Mukesh on 10.11.2008 who stayed overnight in the

house. Next morning on 11.11.2008 after taking tea and meal, Mukesh

left along with Mool Chand towards NH-8 from where Mool Chand was

removed in a Swift car. He further deposed that Dy.SP Behror, requested

senior officers, Gurgaon on phone to intercept the Swift car. After some

time he was informed regarding interception of the vehicle at Toll Plaza at

Khirki Daula by SHO PS Khirki Daula. In the conversation with SHO, he

informed that SI Kuldeep Singh from Crime Branch along with staff were

present with Mool Chand in the said car. When he spoke to SI Kuldeep

Singh (Crime Branch), he disclosed that Mool Chand was being taken by

him for inquiry as he was involved in the supply of opium and cases were

registered against him earlier also. SI Kuldeep Singh gave him his mobile

and official number to contact him in future. After conveying the

information to family members of Mool Chand Yadav and villagers, he

recorded all these facts in DD No.486 (Ex.DW6/B). SI Kuldeep Singh's

visit to village Sherpur on 11.11.2008 in Maruti (Swift) Car DL 5121 is

not disputed. It is pertinent to note that the driver of the said vehicle was

not examined. DW-4 (Naresh Chand) from Delhi Transport Authority,

Janak Puri revealed that this was a number of Maruti Gypsy which was

registered in the name of Commandant Group Centre, CPRF, Jharoda

Kalan, New Delhi. The registration number of the vehicle apparently was

fake. There is no proof if any fare was paid to the driver for the use of the

vehicle that day. The purpose to visit Kotputli and Behror (Rajasthan) has

not been established beyond doubt. There was no plausible reason for SI

Kuldeep Singh to visit such place on 11.11.2008 to develop the secret

information received on 10.11.2008 when Mool Chand Yadav and Udey

Bhan were expected to visit Delhi in a day or two to supply opium. It is

claimed that SI Kuldeep Singh, HC Suresh, HC Rajbir Singh and Const.

Anand Pal left in a private taxi for Kotputli and Behror to verify and

develop the secret information and to conduct investigation of case FIR

No.463/2007 registered at Police Station Keshav Puram and DD No.9

(Ex.PW-11/A) was recorded in this regard. The police team returned at

about 02.15 P.M. and DD No.6 (Ex.PW-11/B) was recorded. There are

divergent versions in the testimony of prosecution witnesses as to the time

when this team left to Kotputli or whether the secret informer had

accompanied them or he had left a day prior to that. SI Kuldeep Singh did

not reveal the places visited by him. It is not clear as to what investigation

was carried out in FIR No.463/2007 registered at Police Station Keshav

Puram and what steps were taken to develop the secret information.

Apparently, they did not visit and record the entry in the local police

stations and did not raid any specific place during their visit. They even

did not go to the residence of the appellant or Udey Bhan to ascertain their

whereabouts or to find out any contraband stored in the house. No

information was collected about Udey Bhan and his whereabouts.

Admittedly, on way back to Delhi, Swift Car No. 'DL 5121' was

intercepted and checked at Toll Plaza, Khirki Daula by Haryana Police.

SI Kuldeep Singh admitted in the cross-examination that on 11.11.2008 he

had a talk with SHO and DSP Behror on the mobile phone of SHO PS

Khirki Daula, Gurgaon. He further admitted that at 10.50 A.M. when he

was present on the outskirts of village Sherpur, he received information

from a secret informer about the apprehension of accused Mool Chand.

Secret informer had met him personally there.

6. SI Kuldeep Singh in DD No.6 (Ex.PW-11/B) recorded that

when they went to village Sherpur at 10.50 A.M. from Kotputli, secret

informer informed him about apprehension of Mool Chand Yadav with

consignment of opium at Delhi and escape of Udey Bhan. Vikram, the

appellant's son, was instigating the villagers against him due to the

enquiry conducted by him. He further recorded that around 12.15 P.M. at

Khirki Daula, their vehicle was intercepted and SHO Khirki Daula

informed him that they had a message from SHO and DSP, Behror about

kidnapping of Mool Chand from Behror who was being taken to Delhi.

The vehicle was searched but Mool Chand Yadav was not found therein.

The facts mentioned in DD No.6 (Ex.PW11/B) remained unproved or

established. Constable Anand Pal was examined as PW-7, to prove that

on 15.12.2008 he had taken pulandas to deposit in the office of FSL,

Rohini. He did not depose about his visit to Kotputli and Behror on

11.11.2008 with SI Kuldeep Singh. In answer to a Court question in the

cross-examination, he admitted that on 11.11.2008, he had accompanied

SI Kuldeep and others in a private taxi to Kotputli to arrest Krishan Pal @

Fauji. He was unable to tell the exact places where they had gone in

Kotputli. He contradicted SI Kuldeep Singh and disclosed that the secret

informer had informed about Mool Chand's arrest at 11.30 or 12.00 noon.

SI Kuldeep Singh did not explain how Vikram came to know about his

visit to Sherpur when he had not taken assistance of the local police and

did not visit his residence. No other member of the team was examined to

prove the specific purpose to visit to Sherpur. There is no evidence

whatsoever as to what investigation was carried out at Kotputli or

Sherpur. There were no compelling reasons to return to Delhi at 02.15

P.M. on the same day without positive results and to take over the

investigation of this case immediately.

7. Presence of PW-6 (Subhash Kumar) a chance witness at the

spot is highly doubtful as he did not support the prosecution in its entirety

and resiled from the previous statement under Section 161 Cr.P.C. He

identified Mool Chand to be an individual who was detained by the police

and from whose pocket some cash and ticket were recovered. He

admitted that he had put signatures on three papers without going through

its contents. He was not informed about recovery of 20 kg opium from

the appellant and source from where it was procured. PW-6 (Subhash

Kumar) cannot be considered an independent public witness as he had

acquaintance with SI Kuldeep Singh. He revealed that he was asked by SI

Kuldeep on mobile to reach the court. He met him outside the court and

was aked to identify the accused who was outside the court. In the cross-

examination, he introduced a new version that when he went to the spot

on his motor cycle, the accused was sitting in TATA 407 and the

proceedings were conducted therein. None of the prosecution witnesses

disclosed the arrival of this witness on motorcycle and its number. SI

Kuldeep Singh in the cross-examination admitted about the 'casual' visits

of PW-6 (Subhash Kumar) to his office once or twice after 11.11.2008

and having conversation with him on telephone once or twice. No implicit

reliance can be placed on the testimony of PW-6 (Subhash Kumar) in

whose presence the contraband was not recovered.

8. On Vikram's complaint under Section 156 (3) Cr.P.C., case

FIR No.114/2009 was registered at Police Station, Behror. He fairly

admitted that cancellation report was filed and he has lodged 'protest

petition'. The cancellation report (Ex.DW2/PB) was filed as the police

officials of PS Khirki Daula did not find Mool Chand in the vehicle.

Since the witnesses from Police Station, Khirki Daula were not examined

in this case, their deposition in the said proceedings cannot be

commented. The fact remains that DW-8 (Insp.Chand Mal) came to know

after having a conversation with SHO Khirki Daula that they had

intercepted vehicle No. DL4CB 5121 and SI Kuldeep Singh from Crime

Branch along with staff was present with Mool Chand in the said car.

SHO Khirki Daula made him to speak to SI Kuldeep Singh who informed

him that Mool Chand was involved in the supply of opium and he was

being taken for inquiry to Delhi. No ulterior motive was assigned to PW-

8 to make false statement in the court. There are no good reasons to

discard or disbelieve the official witness holding a responsible job as SHO

Behror. All these facts were also within the knowledge of concerned

Deputy SP. DD entries recorded at Police Station, Crime Branch were

mainly on the basis of information given by SI Kuldeep Singh and were

attested by senior officers. Appellant's counsel drew attention to entries

in register No.19 on 11.11.2008 regarding deposit of case property

(Ex.PW-3/A, 3/B and 3/C) and (Ex.PW-3/D/1) which are at variance.

Corrections were made in Ex.PW-3/A & 3/C. PW-3 (HC Chand Ram),

admitted that there were cuttings in Ex.PW-3/C and not in Ex.PW-3/D1.

He further admitted that he had wrongly written the name of SI Rajpal, as

the first Investigating Officer at entry No.32 in Register No.19 instead of

SHO and thereafter made the correction in the register after 5/7 days of

deposit of the case property at the instance of SHO without written

directions. The corrections were neither signed by the SHO nor he put his

signatures or date at the time of making corrections. There is no entry in

Ex.PW-3/D-1 regarding deposit of FSL form on 11.11.2008 and no entry

on 10.12.2008 and 15.12.2008 regarding sending of CFSL form with

parcel to CFSL. Again there is no entry when CFSL form was deposited

after refusal on 10.12.2008. Road certificate (Ex.PW3/B-1) dated

10.12.2008 does not record that FSL form was sent along with parcel.

There are corrections/additions in exhibits Ex.PW-3/A and Ex.PW-3/C to

show entry of CFSL form along with case property and sending it with

parcel on 10.12.2008 and 15.12.2008. Ex.PW3/D-1 showed the name of

depositor of the case property as SI Raj Pal Singh. In Ex.PW-3/A, the

name of Akshay Kumar (SHO) as depositor was added. Appellant's

counsel pointed out that as per the testimony of PW-4, mouth of polythene

containing samples was tied with 'rubber band'. PWs 5 and 9 deposed

differently and stated that it was tied with a piece of 'cloth'. Call details

were not placed on record though SI Kuldeep Singh had calls on his

mobile No.9810756351 on 10.11.2008 and 11.11.2008 from mobile

No.9210853451 allegedly belonging to Mukesh and mobile Nos.

9214152627 and 9610562414 of Mool Chand. Certified copies of call

details were, however, filed in the court at Behror, Rajasthan. There are

serious inconsistencies whether on 30.10.2010 PW-6 (Subhash Kumar)

appeared suo motto to give statement in the court or was called by SI

Kuldeep. PW-11 (SI Kuldeep Singh) denied to have made any telephone

call to PW-6 Subhash Kumar to summon him in the court.

9. Burden to prove the case beyond reasonable doubt was upon

the prosecution. The provisions of the Act and the punishment prescribed

therein being indisputably stringent, the extent of burden to prove the

foundational facts on the prosecution i.e. proof beyond all reasonable

doubt' would be more onerous. A heightened scrutiny test would be

necessary to be invoked. It is a well settled principle of criminal

jurisdiction that more serious the offence, the stricker is the degree of

proof. Defence witnesses have to be given weightage at par with that of

the prosecution witnesses. Testimony of police officials from Behror,

Rajasthan causes dent in the prosecution case about his apprehension and

arrest with contraband on 11.11.2008 at 10.30 A.M. in Delhi. Neither the

prosecution nor the accused examined the police officials posted at Toll

Plaza at Khirki Daula to prove their respective version. Statements under

Section 161 Cr.P.C. given by them during investigation in FIR

No.114/2009 cannot be commented as the complainant had no opportunity

to cross-examine the said witnesses.

10. In the light of the above discussion, I am of the view that the

prosecution has failed to establish the case beyond reasonable doubt. The

impugned judgment cannot be sustained and is set aside. The appeal is

accepted. The appellant be released forthwith if not required in any other

case. All pending applications stand disposed of. Copy of the order be sent

to the accused/appellant through Jail Superintendent. Trial Court record, if

any, along with copy of this order be sent back to the Trial Court.

(S.P.GARG) JUDGE September 27, 2013/sa