Rajesh Kumar @ Sanjay vs State Of Nct Delhi
2014 Latest Caselaw 2904 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : 15th APRIL, 2014
                                     DECIDED ON : 03rd JULY, 2014

+      CRL.A.No. 263/2011 & CRL.M.B.No. 345/2011

       RAJESH KUMAR @ SANJAY                   ..... Appellant
                   Through : Mr.Pankaj Singh, Advocate.

                              versus

       STATE OF NCT DELHI                                 ..... Respondent
                     Through :            Mr.M.N.Dudeja, APP.



+      CRL.A.No. 211/2011

       DAYA RAM                                           ..... Appellant
                              Through :   Mr.Ajay Verma, Advocate with
                                          Mr.Shiv Kumar Dwivedi,
                                          Advocate.

                              versus

       THE STATE (NCT OF DELHI)                ..... Respondent
                     Through : Mr.M.N.Dudeja, APP.

AND
+   CRL.A.No. 212/2011 & CRL.M.B.No. 676/2012

       MUKESH KUMAR                                        ..... Appellant
                  Through :               Mr.Sudhansu Palo, Advocate with
                                          Mr.T.K.Mahapatro, Advocate.

                              versus


Crl.A.No.263/2011 & connected appeals.                         Page 1 of 13
        THE STATE (NCT OF DELHI)                ..... Respondent
                     Through : Mr.M.N.Dudeja, APP.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Rajesh Kumar @ Sanjay (A-1), Daya Ram (A-2) and Mukesh

Kumar (A-3) impugn a judgment dated 29.11.2010 of learned Addl.

Sessions Judge in Sessions Case No.30A/09 arising out of FIR No.241/07

PS Sarojini Nagar by which A-1 and A-3 under Sections 20(b)(ii)(C) of

the NDPS Act and A-2 under Sections 20(b)(ii)(B) of the said Act were

convcited; they all were further convicted under Section 29 of the said

Act. By an order dated 07.12.2010, they were awarded various prison

terms with fine. The substantive sentences were to operate concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on the night intervening 14/15.05.2007 at around 03.30

A.M. near Kamal Cinema picket and B-4, Safdarjung Enclave, Delhi, the

appellants were found in possession of 29.800 kg, 10.450 kg and 25.600

kg of ganja respectively when they were travelling in a TSR No. DL-1RE-

2450. During investigation, statements of the witnesses conversant with

the facts were recorded. The case property along with FSL form was

deposited in the malkhana. Mandatory procedure prescribed under the

NDPS Act was followed. The exhibits were sent to Forensic Science

Laboratory. After completion of investigation, a charge-sheet was filed

against all of them in the Court; they were duly charged and brought to

trial. The prosecution examined thirteen witnesses to substantiate the

charges. In 313 statements, the appellants denied complicity in the crime

and pleaded false implication without examining any witness in defence.

The trial resulted in their conviction as aforesaid. Being aggrieved and

dissatisfied, the appellants have preferred the appeals.

3. I have heard the learned counsel for the parties and have

examined the file minutely. The appellants‟ conviction is primarily based

upon the testimonies of the police officials only. Admittedly, no

independent public witness was associated at any stage of the

investigation. True, it is no rule of law that public witnesses should be

joined in every eventuality and no conviction can be based upon the

testimonies of the police officials. Sometimes it becomes highly difficult

for the police officials to associate independent public witness for various

reasons. At the same time, it is undoubtedly true that joining of

independent public witness is not a mere formality. Simply saying by the

police witnesses that the independent public witnesses were not available

without any evidence to that effect would not be suffice. The Investigating

Officer is required to make genuine efforts to associate independent public

witnesses if available. This is insisted so as to lend authenticity and

credibility to the search and recovery that are effected. It is of course not

an absolute rule and fact of each case has to be appreciated and

scrutinized on its own merits. In the instant case, despite availability of

independent public witnesses, no genuine and sincere efforts were made

by the Investigating Officer to associate them. The explanation given by

the Investigating Officer does not inspire confidence. The testimony of the

police officials requires to be perused with great care and caution.

4. On scrutinizing the testimonies of police officials regarding

recovery and other proceedings, it reveals that number of vital

contradictions, inconsistencies and infirmities have emerged. Prosecution

case is that when the appellants were travelling in TSR No. DL-1RE-

2450, on seeing the police officials present at picket Kamal Cinema, they

stopped the TSR at a distance of about 50 meters; turned it back and

accelerated its speed to escape. They (the police officials) chased them.

The TSR stopped due to failure of engine and the appellants were

apprehended while fleeing from the spot carrying bags on their heads. On

checking the bags, ganja was found contained therein. PW-5 (HC

Surender) proved Daily Diary (DD) Entry No.66B (Ex.PW-5/A) by

which, Const.Ramesh and Const.Vijender were sent for picket duty at

Kamal Cinema T Point. The prosecution witnesses, however, are silent

about the presence of Const.Vijender at the picket duty at Kamal Cinema.

Const.Vijender was not examined as a witness and there is no explanation

about his whereabouts at the time of apprehension of the appellants. PW-2

(HC Ramesh Chand) in his testimony claimed that he was on picket duty

at Kamal Cinema from 12.00 (night) to 05.00 A.M. and at around 02.30

A.M., ASI P.D.Meena and Const.Rajesh came to the picket and checked

number of vehicles by putting barricades. At about 03.25 A.M., a TSR

No. DL-1RE-2450 came from Jhandu Singh Marg, Safdarjung side. PW-9

(ASI P.D.Meena) gave a conflicting version and deposed that on the night

intervening 14/15.05.2007, he along with Const.Rajesh was on picket duty

at Kamal Cinema and at around 02.30 A.M., a TSR No. DL-1RE-2450

came from the side of A-2 Block, Safdarjung Enclave. PW-10

(Const.Rajesh) giving different version stated that he and ASI P.D.Meena

were on patrolling duty and at around 03.00 A.M. Const.Ramesh joined

them and they all started checking vehicles. It is thus unclear whether ASI

P.D.Meena and Const.Rajesh were on patrolling duty or were on picket

duty. The inconsistency has not been explained. Again, the witnesses have

given divergent statements regarding the checking of vehicles prior to the

apprehension of the appellants. PW-2 (HC Ramesh Chand) disclosed that

ASI P.D.Meena had checked number of vehicles by putting barricades and

the number of searched vehicles was 10 - 15. PW-10 (Const.Rajesh) also

disclosed about the checking of the vehicles by ASI P.D.Meena but gave

the number of the checked vehicles as 2 - 3. ASI P.D.Meena did not

testify if any vehicle was checked by him before apprehending the

appellants by putting barricades. He was unable to disclose the number of

the vehicles checked by them before the arrival of the TSR in the cross-

examination. PWs have given inconsistent statements if the number of

such checked vehicles was recorded in the register. Some have answered

in affirmative and the others in negative. The Investigating Officer

revealed that no such register containing numbers of vehicles checked

prior to the apprehension of the appellants was handed over to him by ASI

P.D.Meena.

5. PWs have given conflicting statements as to the manner in

which the appellants were apprehended. PW-2 (HC Ramesh Chand)

testified that on seeing the police, the TSR stopped at a distance of 40 / 50

meters away from the picket; they started turning back the TSR and on

suspicion, ASI P.D.Meena directed them to stop it. On seeing the police,

the TSR driver accelerated its speed and at a distance of 50 meters, the

TSR stopped due to engine failure. Three individuals came out from the

TSR taking gunny bags on their heads and started running towards B-4

Block, Safdarjung Enclave. At some distance, A-3 (the TSR driver) was

apprehended by him. Const.Rajesh apprehended A-2 and A-1 was

apprehended by ASI P.D.Meena and they were brought back near the TSR

and thereafter, to the police picket where the bags found in possession of

the appellants were checked. PW-10 (Const.Rajesh) disclosed that at

around 03.25 A.M. on seeing the police, the TSR stopped at a distance of

40 / 50 yards. On suspicion, they proceeded towards the TSR; the TSR

driver turned it and accelerated its speed to escape. They chased the TSR

for 40 / 45 yards and it stopped due to engine failure. The appellants came

out of the TSR with their gunny bags and started running towards B-4,

Safdarjung Enclave. They all were apprehended and enquiries were made

about the contents of the bags which they could not reply satisfactory.

PW-9 (ASI P.D.Meena) checked the bags and the proceedings were

conducted there. Again, entirely different sequence of events by

Investigating Officer. PW-9 (ASI P.D.Meena) disclosed that at about

02.30 A.M., a TSR came from the side of A-2 Block, Safdarjung Enclave

and on seeing the police, its driver started turning it back. In the

meantime, PW-2 (HC Ramesh Chand) also reached at the spot. They

stopped the TSR and the three individuals came out of it. They were

having gunny bags on their shoulders and were stopped. The bags were

checked which gave the smell of ganja type material. Enquiries were

made about the contents but the answer was unsatisfactory. The

inconsistency regarding the manner in which the appellants were

apprehended are quite material and have remained unexplained. It is

unclear whether the proceedings were conducted at the place where the

TSR stopped due to engine failure or all the appellants were brought at the

picket and the writing work was conducted there.

6. PW-10 (Const.Rajesh) was sent to procure scale to weigh

ganja from one Shadab (kabari). Surprisingly, he was able to procure it

from him and the ganja was allegedly weighed at the spot. The

prosecution examined PW-7 (Shadab) who supported the prosecution and

deposed that on 15.05.2007, Const.Rajesh approached him to take

electronic weighing machine at around 04.00 A.M. and it was returned to

him at 08.30 A.M. It is unbelievable that PW-7 (Shadab) would be

available at odd hours to make available the electronic weighing machine

to PW-10 (Const.Rajesh). He was not requested to join the investigation

despite his alleged availability. PW-10 (Const.Rajesh) claimed that he had

taken lift on a motorcycle for going to the „kabari‟ shop and returned to

the spot with the weighing machine on a motorcycle after taking lift. No

such motorcyclist was joined in the investigation and motorcycle number

was not disclosed. PW-7 (Shadab) in the cross-examination giving

inconsistent version disclosed that PW-10 (Const.Rajesh), Beat officer of

the area, had come to him in a Government Gypsy. In the cross-

examination, he admitted that his counsel Ms.Upasna, Advocate had read

the statement to him outside the Court. PW-2 (HC Ramesh Chand) in the

cross-examination disclosed that he had seen Const.Rajesh coming with

the electronic weighing machine on foot.

7. PW-9 (ASI P.D.Meena) disclosed that ganja was put on a

cloth piece after taking it out from the bags. The cloth piece was

requisitioned from malkhana and it measured about 10 meters. However,

no record from the malkhana showed if any cloth piece was issued for this

purpose. The prosecution witnesses have given conflicting statements

regarding the removal of TSR from the spot to the police station. PW-2

(HC Ramesh Chand) stated that an auto driver was asked to drive it to the

police station. PW-9 (ASI P.D.Meena), however, disclosed that the TSR

was driven by a public person whose name he did not remember. PW-10

(Const.Rajesh) was not aware as to how the TSR was taken to the police

station. PW-12 (SI Rajesh Shukla) disclosed that subordinate officials had

taken it to the police station. The PWs have given inconsistent statements

as to who had gone to deposit the case property with the MHC(M). In the

cross-examination PW-1 (HC Shiv Narain) introduced an altogether

different story deposing that ASI P.D.Meena had brought the case

property in the malkhana on 15.05.2007 at about 11.00 A.M.. SHO Laxmi

Narain was also with him at that time. Const. Ramesh Chand had assisted

ASI P.D.Meena in carrying the case property. Prosecution case is that case

property was sent for deposit by ASI P.D.Meena through Const.Ramesh

Chand. Number of other discrepancies; whether the accused persons had

run towards one direction or different directions when chased by the

police officials; whether they were carrying the gunny bags on their heads

or shoulders; whether the proceedings were conducted at the place where

the TSR stopped due to engine failure or at the police picket; whether the

TSR was pushed from the place of its seizure to the police picket; at what

time the case property was deposited; at what time, the seal was returned

to ASI P.D.Meena; at what time the police officials left the spot finally;

whether the gross weight of the ganja recovered was inclusive of the

weight of the gunny bags; how many FSL forms were filled are apparent

in the statements of prosecution witnesses. Some of these discrepancies

were noted and observed in the impugned judgment by the Trial

Court.

8. During investigation, it revealed that the TSR No. DL-1RE-

2450 belonged to one Sri Ram and it was released to him on superdari.

However, TSR owner has not been examined to ascertain as to when and

under what circumstances, it came into possession of the accused persons

and since when they were plying it. The origin of the ganja allegedly

recovered from the possession of the appellants could not be ascertained.

Nothing emerged during investigation as to for whose benefit this ganja

was meant for. The appellants were not involved in any other such

criminal activity prior to the incident. It was imperative for the

Investigating Officer to investigate as to from which source, at what time /

date and for what price the ganja was procured. It was also not

investigated as to whom ganja was to be disposed of or sold. Allegedly

two mobile phones were recovered from the possession of the appellants,

however, for the reasons best known to the Investigating Officer, no call

details of the mobile phones were recovered to find out if the appellants

remained in regular touch with each other and someone to whom they

wanted to sell the ganja in question. It is unclear if after the apprehension

of the appellants, they were first taken to police station or to hospital for

medical examination. The prosecution witnesses have given different

statements on this aspect. No medical examination report of any of the

appellants has been placed on record to infer as to at what time they were

taken to the hospital and were medically examined.

9. Inordinate delay in sending the samples to FSL has remained

unexplained. Indisputably, the samples in question were sent on

25.06.2007 after a delay of about 40 days. Road certificate by which the

samples were sent to FSL does not reflect if FSL form was sent along with

samples. There is no mention of FSL form in the Road certificate

(EX.PW-1/C).

10. No investigation was carried out to find out if the accused

persons hatched criminal conspiracy, and if so, on what date and time. All

the accused persons were from different places and nothing is on record to

infer if they used to have prior meetings indulging in the sale of

contraband.

11. In the light of above referred deficiencies, inconsistencies

and discrepancies, the statements of the official witnesses without

corroboration from independent sources cannot be believed to base

conviction for stringent provisions of the Act. The law on this aspect is

that "stringent the punishment stricter the proof". In such like cases, the

prosecution evidence has to be examined very zealously so as to exclude

every chance of false implication. The prosecution has failed to establish

the commission of offence by the appellants beyond reasonable doubt. It

cannot take benefit of appellants‟ inability to establish their defence

pleaded in 313 statements beyond reasonable doubt. Mere apprehension of

the appellants is not enough. The evidence is scanty and lacking to

establish that the contraband was recovered from the possession of the

appellants in the manner alleged by the prosecution on the said date and

time. They deserve benefit of doubt.

12. Resultantly, appeals filed by the appellants are accepted. The

conviction and sentence are set aside. The appellants shall be released

forthwith if not required to be detained in any other criminal case.

Pending applications stand disposed of as infructuous. Trial Court record

be sent back immediately with the copy of the order. A copy of the order

be sent to the Superintendent jail for information.

(S.P.GARG) JUDGE JULY 03, 2014 / tr