Inder Dev Yadav And Ors vs The State (Nct Of Delhi)
2014 Latest Caselaw 2188 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : 5th FEBRUARY, 2014
                                  DECIDED ON : 1st MAY, 2014

+            CRL.A. 545/2011 & CRL.M.B.No. 209/2014

      INDER DEV YADAV AND ORS.                         ..... Appellants

                        Through :    Ms.Rajni Singh, Advocate for A1.
                                     Mr.U.K.Giri, Advocate for A2.
                                     Mr.Ajay Verma, Advocate for A3.
                        versus

      THE STATE (NCT OF DELHI)                         ..... Respondent

                        Through :    Mr.Lovkesh Sawhney, APP.

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

S.P.GARG, J.

1. Inder Dev Yadav (A-1), Sushil Parsad (A-2) and Ram Dev

Mandal (A-3) impugn a judgment dated 30.03.2011 of learned Addl.

Sessions Judge in Sessions Case No. 147/08 arising out of FIR No. 438/08

PS Jahangir Puri by which they were convicted under Section 20 Narcotic

Drugs & Psychotropic Substances Act (in short NDPS Act). By an order

dated 06.04.2011, they were awarded RI for ten years with fine `

1,00,000/- each.

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

sheet was that on 26.08.2008 secret information was received by SI

Bhasker Sharma at his office (Crime Branch) at 11.00 A.M. that A-1 who

was main supplier of ganja would come along with his associates in a

mini truck No. UP 78 T 2234 at Outer Ring Road, Bhalsava Red Light.

The information reduced into writing vide Daily Diary (DD) No.6

(Ex.PW-1/A) shared with senior police officers. On their directions, a

raiding party was organised and the police team left along with the secret

informer in a private vehicle Qualis vide Daily Diary (DD) No.7 (Ex.PW-

1/B) at 11.30 A.M. and reached at the spot at 12.00 (noon). Request was

made to four / five passersby to join the raiding team but none agreed. At

around 12.30 P.M. a mini truck No. UP 78 T 2234 came from ISBT side

and was parked about hundred meters away from the red light. The secret

informer recognised A-1 sitting in the truck. The police team waited for

someone to take delivery of the contraband. When none appeared to take

delivery, at around 01.00 P.M. the truck was raided and the appellants

were apprehended. Notices under Section 50 NDPS Act were served to

them. On enquiry, the appellants disclosed that they had concealed 'ganja'

in a cabin in the truck. After opening the nuts of the cabin, fourty parcels

were recovered. The total weight of the contraband came to 312.600 kg.

Samples were taken and sealed. The Investigating Officer prepared rukka

(Ex.PW-1/A) and sent through HC Lakvinder for lodging First

Information Report. At 05.30 P.M., SI Sanjay reached the spot and took

over the investigation. He recorded the statements of the witnesses

conversant with the facts. The accused persons were arrested. Further case

of the prosecution was that on 28.08.2008, on the basis of secret

information, Jai Kishan Sahani @ Buti Lal (since PO) was arrested and

certain documents were recovered from his possession which were seized

vide seizure memo (Ex.PW-5/A). During investigation, the sample

pullandas were sent to Forensic Science Laboratory for examination and

its report was collected. After completion of investigation, a charge-sheet

was submitted against the appellants; they were duly charged and brought

to trial. The prosecution examined ten witnesses to substantiate the

charges. In 313 statements, the appellants pleaded false implication and

denied their involvement in the crime. They examined DW-1 (Sanjiv

Singh) and DW-2 (Rita Devi) in defence. On evaluation of the evidence

and after considering the rival contentions of the parties, the Trial Court,

by the impugned judgment, convicted the appellants as mentioned

previously. Being aggrieved and dissatisfied, they have preferred the

appeal.

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

examined the record. The secret information was reduced into writing by

recording Daily Diary (DD) No.6 (Ex.PW-1/A) at 11.00 A.M. by SI

Bhasker Sharma. It does not record presence of HC Lakvinder and

Const.Sanjay in the office with him at that time. It does not reveal the time

when the supplier of contraband with his associates would arrive.

Admittedly, copy of this DD entry (Ex.PW-1/A) was not delivered /

shown to the senior officers. It does not disclose as to in what manner /

mode, the secret information was shared with the senior officers Insp.

Anand and concerned ACP as none of them was examined. Daily Diary

(DD) No.7 (Ex.PW-1/B) recorded at 11.30 A.M. reveals departure of

raiding team in a private vehicle. However, it is conspicuously silent

regarding its registration number and make. It also does not show if

sincere and genuine attempts were made to associate independent public

witnesses before proceeding to the spot. The author of these entries with

original record was not examined

4. The appellants' conviction is based upon the testimonies of

police personnel / officials alone. No independent public witness was

associated at any stage of the investigation. No reasonable or plausible

explanation has been offered by SI Bhasker Sharma, Incharge of raiding

team and SI Sanjay who took over the investigation subsequently for not

associating any public witness despite having ample time and opportunity.

The proceedings were conducted at the spot till around 12.00 (night).

Non-joining of independent witness to the recovery creates serious doubt

about the genuineness of the prosecution case. It is no rule of law but of

prudence that public witnesses should be joined. This is desired to lend

authenticity and credibility to the search and the recovery. Of course, it is

not an absolute rule. The evidence of police witnesses without slightest

independent evidence requires to pursue with great care and caution.

5. Allegedly, the raiding team went to the spot in a Qualis

driven by SI Bhasker Sharma. The prosecution witnesses, however, did

not divulge the registration number of the Qualis; when and from where it

was arranged; when it arrived at the office of Crime Branch and with

which travel agency the Qualis was attached. It is unclear who drove the

Qualis from the travel agency to the Crime Branch. The prosecution

witnesses have given inconsistent and conflicting version in this regard. It

is unbelievable that the travel agency would not provide a driver on hiring

the taxi from it. It appears that prosecution witnesses have not given true

facts about the hiring of the vehicle by which they arrived at the spot. The

raiding team had prior information about availability of huge quantity of

'ganja' and had ample time to arrange the weighing scale and plastic bags

at the office itself. However, only after the alleged recovery of the

contraband from the cabin of the truck, PW-7 (Const.Sanjay) was sent to

arrange weighing machine and plastic bags. He allegedly brought fourty

bags and a weighing machine from a 'kabari' sitting on a pavement within

fifteen minutes. The said 'kabari' was not associated at the time of

conducting proceedings at the spot. None of the prosecution witnesses

disclosed name of the 'kabari' from whom electronic weighing machine

and plastic bags numbering fourty were purchased within a few minutes.

It is unbelievable that a 'kabari' sitting on a pavement would keep ready

an electronic weighing machine and the plastic bags to make available to

the raiding team on their demand within no time. There is no evidence if

any specific payment was made for the purchase of the articles or any

receipt was obtained from him.

6. SI. Bhasker Sharma categorically deposed that he took out

one sample each of 100 grams from all the fourty packets / parcels;

assigned serial numbers S1 to S40; converted into pullandas; sealed with

the seal of BS and seized vide seizure memo (Ex.PW-1/N). When these

samples were sent to FSL vide letter No. 843/Spl.Team/CB dated

09.09.2008, on weighing their weight was found in the range of 89 grams

to 114.30 grams as reflected in the report (Ex.PX). The prosecution did

not offer any plausible explanation for this glaring mismatch. In the cross-

examination, PW-1 (SI Bhasker Sharma) attempted to justify variation in

the weight of different samples due to error in weighing or the weighing

machine. This explanation does not inspire confidence. Keeping in view

the discrepancy in the weight of the samples taken by the Incharge, Crime

Team and the weight of the samples examined by the Scientific Officer,

the possibility of tempering cannot be discarded. The provisions of NDPS

Act are stringent and casts a duty upon the prosecution to rule out any

possibility of tempering with the sample. The delay of fifteen days in

sending the sample to FSL has not been explained.

7. The offending vehicle (mini truck No. UP 78 T 2234) was

recovered and seized vide seizure memo (Ex.PW-1/A). Documents

pertaining to the vehicle seized vide memo (Ex.PW-1/B) were only

photocopies and no attempt was made to recover original documents. No

investigation was carried out as to who was the registered owner of the

vehicle and how; when and under what circumstances, the vehicle in

question came into appellants' possession and if so, in what capacity. It

was also not investigated as to from where the appellants had collected the

contraband and who was its supplier. The movements of the vehicle prior

to its seizure were not ascertained to reach out to the real culprits king

pins. As per the secret information, the contraband was to be delivered at

the spot to prospective buyers. Again, the information proved incorrect as

none came near the vehicle to take delivery of the contraband. Nothing

was ascertained as to, to whom the appellants were to deliver the

contraband and at what price.

8. A-1 was found driving the vehicle in question; A-2 and A-3

were found present in the truck at the time of recovery. However, no

evidence was collected to ascertain as to what was the role of all the

appellants in the transaction. Whenever a person is held up for possession

of any offending articles, it must be in his exclusive possession. It is

obligatory on the part of the prosecution to establish by cogent and

reliable evidence that the suspect was an exclusive and conscious

possession of the contraband article. In the instant case, mere presence of

A-2 and A-3 in the truck at the time of search will not be sufficient to hold

that they had kept the contraband articles in the cabin and were aware of

it. It is unclear if all the appellants were beneficiaries in the transaction in

any manner.

PWs have given inconsistent statements on various material

facts. PW-5 (HC Lakhvinder) claimed that he left the spot in the seized

truck with the case property at about 05.10 P.M. and reached the police

station Jahangir Puri at about 05.20 P.M. He, however, arrived at the spot

back at around 11.00 P.M. It is unclear as to who drove the offending

vehicle to the police station. There are inconsistencies in the statements as

to where the writing work was carried out i.e. inside the truck or on the

pavement; how much time was taken to record the proceedings; who

assigned the investigation to SI Sanjay. In the personal search of two of

the appellants, mobile phones were recovered. However, the Investigating

Officer did not collect call details of the mobile phones to find out as to

with whom they remained in touch during the relevant period.

9. Appellants' counsel pointed out that in the FSL reports

(Ex.PX) and Ex.PW-10/A, the samples sent were described 'dried

vegetative material'. On the basis of morphological microscopical

examination, the samples were identified to be dried Indian Hemp i.e.

'Ganja'. In the cross-examination, PW-10 (Ms.Shashi Bala) admitted that

she did not mention in the report that the samples contained fruiting or

flowering tops. She admitted that 'dried vegetative material' included

leaves, stems, flowering portion and seeds. She further admitted that in the

report, she did not mention about the presence of leaves and stems. She

volunteered to add that all this was done in her worksheet which was not

made part of the report. Apparently, the report did not reflect the complete

findings and it prejudiced the appellants.

Antecedents of the appellants were not verified during

investigation. Their houses at native places were not raided. The source

from where the contraband was collected or purchased was not

ascertained. Nominal rolls of the appellants reveal that they are not

involved in any other criminal case.

10. In the light of above discussion and considering the vital

discrepancies and deficiencies in the prosecution case, conviction and

sentence awarded to the appellants cannot be sustained and are set aside.

The appeal is allowed. Pending application also stands disposed of. Trial

Court record be sent back forthwith with the copy of the order. A copy of

the order be sent to the Superintendent jail for information. The appellants

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

(S.P.GARG) JUDGE MAY 01, 2014 / tr