Delhi High Court
Om Prakash vs State on 23 May, 2014
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.A. 453 of 2014 & Crl. M.(B) 763 of 2014
Reserved on: 15th May 2014
Delivered on: 23rd May 2014
OM PRAKASH ..... Appellant
Through: Mr. Sanjeev Bhatnagar
with Mr. Sounak S. Das and
Ms. Rubi Sagar, Advocates.
versus
STATE ..... Respondent
Through: Ms. Aashaa Tiwari, APP
for State with ASI Narendra
Kumar, Narcotics Cell.
CORAM: JUSTICE S. MURALIDHAR
JUDGMENT
23.5.2014
1. This appeal is directed against the judgment dated 15th February
2014 convicting the Appellant under Section 18(b) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 („NDPS Act‟) and the
order on sentence of the same date sentencing him to undergo rigorous
imprisonment („RI‟) for 15 years and a fine of Rs.2 lakhs and in
default to undergo simple imprisonment („SI‟) for two years.
Case of the Prosecution
2. On 9th July 2011, at around 6.30 pm, a secret informer is stated to
have come to the office of the Narcotics Cell at Shakar Pur, Delhi. He
is stated to have given information to the effect that two persons,
namely Om Prakash, the Appellant and Inder Dev, residents of District
Mandsaur, Madhya Pradesh, who supplied opium in Delhi, Haryana
and Punjab, would come in their own vehicle between 8.30 and 9 pm
on the Outer Ring Road near Kali Mata Mandir, Rohini to supply
opium to some person and that they could be apprehended at that time.
This information was received by SI Rajbir (PW-10) who, upon being
satisfied on making enquiries from the informer, produced him before
Inspector Kuldeep Singh (PW-8). PW-8, after verifying the said
information and being satisfied, informed Assistant Commissioner of
Police („ACP‟) Bir Singh (PW-11) who in turn instructed him to carry
out the raid proceedings.
3. The secret information was recorded in daily diary („DD‟) No. 13
(Ex.PW-8/A) by PW-10 and countersigned by PWs-8 and 11. A copy
of the said DD entry (Ex.PW-8/A) was retained in the Narcotics Cell
by PW-10.
4. A raiding team of PW-10, HC Laxman Prasad (PW-6) and
Constable Sohan Pal (PW-1) was formed. The raiding party left the
Narcotics Cell in an official car and reached the spot at around 8.20
pm. According to PW-10, at the time of leaving, the raiding party had
taken an Investigation Officer („IO‟) bag, Field Testing Kit („FTK‟),
weights of 20 Kg, 10 Kg, 5 Kg, 1 Kg, 500 gms, 100 gms and 50 gms
with a traditional weighing instrument. The informer also accompanied
them. The departure of the team was recorded in DD No. 14. The
vehicle was driven by HC Satyavan.
5. According to PW-10, on the way to the spot, he asked, five people
near the Narcotics Cell to join the raiding party after briefing them
about the secret information. They refused to join. He is stated to have
asked five other persons at Burari Chowk Red Light who also refused.
Finally, again, at the spot, he asked some passers-by to join the
proceedings, all of whom expressed their inability to do so. The
government vehicle was parked at a distance of about 35 meters from
Kali Mata Mandir towards Dipali Chowk and HC Satyavan, the driver,
was given instructions to reach the spot after receiving the signal. PW-
10, along with PWs-1 and 6, took their positions at the Kali Mata
Mandir at 8.30 pm and waited for the accused persons to arrive.
6. According to PW-10, at about 8.35 pm, the Appellant came from the
side of Peeragarhi in a Silver-White colour Wagon-R bearing No.RJ
30CA 1015. He stopped the car at a distance of 5 to 7 meters ahead of
the Mandir. He got down from the car and started waiting for someone,
whilst looking around. When, after about 10 minutes, he was about to
sit in the car to leave, he was apprehended by the raiding party, after
being identified by the informer. PW-10 introduced himself and, upon
enquiry, the Appellant disclosed his details. According to PW-10,
thereafter, the Wagon-R car was locked and the keys were handed over
to the Appellant. He was told about his legal rights, and that he was
required to be searched and that he could have his search done before a
Gazetted Officer or before a Magistrate, and that he could also take a
search of the government vehicle and the raiding party members. PW-
10 stated that a carbon copy of the notice under Section 50 of the
NDPS Act was served upon the Appellant. He was also told about the
meaning of Gazetted Officer and Magistrate. According to PW-10, the
Appellant declined to avail his legal rights and wrote his refusal on the
original notice under Section 50 of the NDPS Act (Ex.PW-1/B). PW-
10 stated that, at this point, he asked 6 to 7 passers-by who had
gathered there to join the raiding party after telling them about the
secret information but all of them refused to join the proceedings and
gave no names and addresses.
7. PW-10 stated that he took a cursory search of the Appellant and
from him no narcotic substance was recovered. Non-recovery memo
(Ex.PW-1/C) was prepared. Thereafter, PW-10 took the keys of the
Wagon-R car from the Appellant and opened the vehicle. On checking,
he found three plastic dibbas of off white colour on the rear seat of the
Wagon-R. The mouths of the plastic dibbas were tied with the lids.
The three dibbas were opened, checked and found containing
transparent polythenes in each of them. The mouths of the plastic
dibbas were tied with sutli and were apparently containing a black
colour sticky substance. The polythenes were untied and the foul
smelling sticky black colour material was checked separately. It was
sniffed and checked with the FTK and found to be opium. The boxes
were given marks A, B and C.
8. PW-10 then stated that three polythenes containing opium were
weighed separately at the spot with the balance that was carried by the
raiding party. The weight of the three polythenes was found to be 13
Kg, 13 Kg and 14 Kg respectively. Two samples of 50 gms each were
taken from each dibba. The six samples were kept in separate
transparent polythenes tied with rubber band and, with the help of
white cloth, six sample pullandas were prepared. Marks-A1 and A2
were given to the samples taken out from dibba Mark-A. Marks-B1
and B2 were given to the samples taken out from dibba Mark-B and
Marks C1 and C2 were given to the samples taken out from dibba
Mark-C. The remaining opium was kept in the dibbas tied with the lids
and each dibba was kept in a separate white colour plastic katta and
the kattas were given Marks-A, B and C corresponding to the marks
given to the dibbas. The Forensic Science Laboratory („FSL‟) Form
was filled at the spot. PW-10 stated that he affixed the official seal „2A
PS NB Delhi‟ on all the nine pullandas and the FSL Form. The
pullandas and the FSL Form were taken into possession by a memo
(Ex.PW-1/D).
9. PW-10 is then stated to have prepared the rukka (Ex.PW-1/DA) and
handed over the same to PW-1 along with the case property, pullandas,
carbon copy of the seizure memo and FSL Form. He was instructed to
hand over the case property to the Station House Officer („SHO‟),
Police Station („PS‟) Crime Branch, Nehru Place and produce the
rukka before the Desk Officer („DO‟) for registration of the FIR. PW-1
left in the government vehicle with HC Satyavan at around 12.45 am
for the PS Crime Branch.
10. PW-1 in his evidence more or less corroborated what was stated by
PW-10. He stated that after leaving the spot in the government vehicle
at 12.45 am, he reached the PS Crime Branch, Nehru Place at 2.05 am
and handed over the rukka to the Duty Officer. He produced the
articles before the SHO C.R.Meena (PW-3) who then fixed his seal of
„CRM‟ on the 9 pullandas and the Form FSL. He also put his
signatures and the FIR number. The SHO then called the HC Jag
Narain (PW-5), MHC(M) to his office with Register No. 19 and
handed over the case property pullandas to him. PW-5 then made the
relevant entries in Register No.19. PW-3 also recorded DD No. 11 at
2.45 am.
11. The investigation of the case was entrusted to Assistant Sub
Inspector („ASI‟) Mahender Singh (PW-7). He reached the spot at
around 7 am. There, PW-10 handed over to him all the relevant
documents, the Wagon-R car, a seizure memo and also produced the
Appellant before him. At the instance of PW-10, a site plan (Ex.PW-
7/B) was prepared by PW-7. He recorded the statement of PW-6. After
interrogating the Appellant, PW-7 arrested the Appellant and prepared
an arrest memo (Ex.PW-6/A) at 5.15 am.
12. PW-7 prepared a report under Section 57 of the NDPS Act
regarding the arrest of the Appellant (Ex.PW-7/E). In it, he stated that
the Appellant was arrested at 5.15 am on 10th July 2011 from the spot
near Kali Mata Mandir, Ring Road, Delhi and that the information of
arrest has been conveyed to his wife Smt. Saraswati Devi on Mobile
No. 07424244664 as per his desire. A special report was also prepared
by PW-10 regarding the seizure (Ex.PW-11/B) which was forwarded
to PW-8 and also to PW-11.
13. HC Dalbir (PW-4) stated that at 2.05 am, on receipt of the rukka
brought by PW-1, he made an endorsement (Ex.PW-4/B) thereon and
registered the FIR (Ex.PW-4/A). HC Jag Narain (PW-5) deposed that
PW-3 had called him to his office with Register No. 19 at 2.30 am on
10th July 2011 and handed over to him the carbon copy of the seizure
memo, 9 pullandas, the FSL Form all sealed with seals of „2A PS NB
Delhi‟ and „CRM‟. PW-2, HC Braham Dev, deposited the sample
pullandas in the FSL. He stated that he had collected the three
pullandas, the FSL Form having seals of „2A PS NB Delhi‟ and
„CRM‟ on 19th July 2011 and deposited the same at FSL, Rohini. He,
thereafter, handed over the receipt acknowledgment to MHC (M). He
stated that he had not tampered with the case property.
14. SI Kuldeep Singh (PW-8) and ACP Bir Singh (PW-11)
corroborated the evidence of PW-10. Alok Chaturvedi (PW-9), a clerk
in the RTO Office, Chittorgarh, Rajasthan brought the record of the
Wagon R car from which the recovery was purportedly made. It was
shown to have been initially registered on 12 th August 2008 in the
name of one Pooja Sanghnani. Later it was transferred to Mr. Raj Mal
Bhim on 26th April 2011.
15. The IO/ASI Mahender Singh (PW-7) stated that he recorded the
statements of SHO and MHC (M) at 7.15 am, then left at 7.45 am with
PW-1 and the Appellant and reached the Narcotics Cell, Shakarpur at
8.30 am. He handed over the report under Section 57 of the NDPS Act
(Ex.PW-7/E) regarding the arrest of the Appellant to PW-8 on 11th July
2011 for forwarding it to seniors. The Appellant was then taken in
police custody for five days. After completion of investigation, PW-7
handed over the case property to MHC (R). The charge sheet was
thereafter filed by the first IO.
16. It must be noted at this stage that the report of the FSL, Rohini was
prepared by Dr. S. Sudhakar, Senior Scientific Officer (Chemistry)
[Ex.PY]. Samples A1, B1 and C1 were found to contain morphine,
codeine, Thebaine, Narcotine and Papaverine which are the main
constituents of opium. The percentage of morphine in samples A1, B1
and C1 were 2.41%, 2.67%, 2.96% respectively and gave a positive
test for opium.
17. The trial Court record shows that on 28 th January 2012, charge was
framed against the appellant stating that he was found in illegal and
unlawful possession of 40 kg of opium kept in three plastic dibbas in a
Wagon R car, in which he was travelling, on 9th July 2011, at about
8.45 pm near Kali Mata Mandir, Ring Road, Rohini. Thus he had
committed an offence under Section 18 of the NDPS Act. The
Appellant pleaded not guilty and claimed trial.
Applications by the Appellant
18. The trial commenced with the examination of PWs-1 and 2 on 16th
April 2012. On 17th April 2012, PWs-3, 4 and 5 were examined and
discharged. The next dates of trial were fixed as 7th and 8th June 2012.
At that stage, two applications were filed by the Appellant. One was
for summoning the Call Detail Records („CDRs‟) of some mobile
numbers. This was in the context of the stand taken by the Appellant
that he and his brother Inder Dev had been abducted by the Crime
Branch, Delhi on 9th July 2011 from Kishan Garh in Rajasthan. He had
named Constable Kheta Ram, PW-6, PW-10, HC Rathore, HC
Satyavan, PW-7 and PW-8 as his captors. The operative portion of the
order passed by the trial Court in the said application on 21 st April
2012 reads:
"In order to know the truth such CDRs are very much material.
IO is directed to collect CAF and CDRs of following phone
numbers from 5th July 2011 to 13th July 2011:
Sl. No. Mobile No. Name of User Name of Service
Provider
1. 08447386638 Sh. Kheta Ram Vodafone, Mobile
Service Ltd. C-48,
Okhla Indl. Area
Phase-II, New
Delhi.
2. 09289696520 Sh. Kheta Ram Tata Docomo, 2A,
Old Ishwar Nagar
Main Mathura
Road, Delhi-65.
3. 09213421243 Ct. Satyawan Tata Docomo
As above.
4. 09560369790 HC Laxman Airtel
Parsad Bharti Airtel Ltd.
Vasant Kunj, Phase-
II, New Delhi-70.
5. 09810756351 Insp. Kuldeep Airtel
Singh As above.
6. 09990460100 SI Rajvir Singh Idea
Idea Cellular Ltd.
Corporate Office,
1005/06
Kailash Building,
First Floor,
Kasturba Gandhi
Marg,
Connaught Place,
New Delhi-1
7. 09968388886 Sh. Rathor MTNL
Regional Manager
Sh. B.K. Tiwari,
Bhikaji Place
New Delhi-66
8. 09868070290 ASI Mahender MTNL
As above
9. 09968788745 Ct. Sohan Pal MTNL
As above
10. 09425107225 Inder Dev BSNL
Regional Manager
BSNL Office,
Nai Abadi, Police
Colony,
Mandsor
MP-458002
11. 09424834623 Sh. Om Prakash BSNL
As above
19. Another application was filed by the Appellant seeking CCTV
footage of 9th July 2011 between 12.30 pm and 1.30 pm of the cameras
installed at Kishan Garh Toll Point, GVK, Jaipur Expressway. On the
said application, a separate order was passed by the trial Court on 21 st
Aril 2012. The operative portion of the said order reads as under:
"In order to know the truth such CCTV footage are
very much material. So, Manager Mr. Manish Sharma,
GVK, Jaipur, Kishan Garh having office at
Kishangarh Express Way Toll Point, District Ajmer,
Rajasthan is directed to produce CCTV footage dated
9th July 2011 between 12.30 pm to 1.30 pm of the
cameras installed at that point for watching the
movement of the vehicles and persons on the road
from Kishangarh to Jaipur".
20. On 10th July 2012, as a follow up on the above two orders passed
on 21st April 2012, the Court passed the following order:
"An application of the accused for calling CDRs and
CAFs of some of the police officials, accused himself
and his brother Inder Dev is pending disposal.
On 21st April 2012, police was directed to collect the
CAF and CDRs of Kheta Ram, Ct. Satyawan, HC
Laxman Prasad, Insp. Kuldeep Singh, SI Rajbir Singh,
Mr. Rathore, ASI Mahender, Ct. Sohan Pal, Inder Dev
and accused Om Prakash. On the same day, it was also
directed to produce CCTV footage dated 9th July 2011
between 12.30 pm to 1.30 pm of the vehicles passing
through Kishangarh toll point.
Police has filed reply stating that CCTV at the said
barrier is not available because it is kept only for seven
days and accused is demanding it after elapse of
several weeks.
About CAF and CDRs, it is stated in the reply that the
telephone numbers are in the name of SI Rajbir Singh
and ASI Mahender Singh. CAF also stand in their
names. Regarding other police officials and their
telephone number, it is stated that those numbers are
not owned by those officials and they are also not
users. So, this Court cannot direct police to place on
record CAFs and CDRs of the persons who are not
parties before this Court and are also not the witnesses.
The other reason is that the police officials Kheta
Ram, Ct. Satyawan, HC Laxman Prasad, Insp.
Kuldeep Singh, Mr. Rathore and Ct. Sohan Pal are not
using, as per reply, those numbers. So, police is
directed to place on record the CAFs and CDRs of the
phones of SI Rajbir Singh, ASI Mahender, public
person Inder Dev and accused Om Prakash. Today,
these have been placed on record and copies have been
supplied to accused."
21. It appears that the above orders were not fully complied with and
another application was filed by the Appellant. The following order
was passed by the trial Court on it on 23rd August 2012:
"This order shall decide the application of the accused
for compliance of order dated 21st April 2012.
An order dated 10th July 2012 was passed in the
presence of the counsel for accused directing the CAFs
and CDRs of ASI Mahender, SI Rajbir Singh, public
person Inder Dev and accused Om Prakash to be
placed on record. Vide order dated 21st April 2012,
only direction to the IO was to collect CAFs and
CDRs of eleven phone numbers. Police collected those
documents but took objection to the filing of some
CAFs and CDRs of some telephone numbers. At that
time, the application of the accused was pending and
that application was decided vide order dated 10th July
2012 holding that only the CDRs and CAFs of above
said persons shall be taken on the record. So, the
present application is maintainable only in respect of
the direction to the police to place on record the CDRs
of above said four persons dated 9th July 2011 and for
filing their BTS addresses.
Police is directed to collect the CDRs of telephone
Numbers-0999460100 of SI Rajbir Singh, 0986807290
of ASI Mahender, 09425107225 of Inder Dev and
09424834623 of accused Om Prakash dated 9th July
2011 and to place it on record.
Police is further directed to collect the location
charts/BTS addresses of above said phone numbers
from 5th July 2011 to 13th July 2011 and file report on
record.
Put up on 24th September 2012 and 25th September
2012 for P.E."
22. The CDRs of SI Rajbir and SI Mahender were filed on 24th
September 2012. On 27th November 2012, the police filed a reply that
the BTS addresses of some of the telephone numbers desired by the
Appellant were not available. On 15th January 2013, inter alia, the
following order was passed by the trial Court:
"SHO was required to file the BTS addresses of some
of the telephone numbers. He stated that Cell Ids have
been mentioned in the CDRs which have already been
filed. He stated that he will take a copy of locations of
those towers as mentioned in the CDRs. Put up on the
date fixed i.e. 7/8th February 2013."
23. On 8th February 2013, PW-10 was examined in chief and partly
cross-examined. PW-11 was examined and discharged. The CDRs
with BTS address records brought by PW-8 was taken on record.
Statement of the Appellant under Section 313 Cr PC
24. On 15th May 2013, the statement of the Appellant under Section
313 Cr PC was recorded. He maintained that he was taken with his
brother Inder Dev from Kishan Garh Toll Plaza on 9 th July 2011 and
brought to Delhi at around 8.30 pm. Thereafter, a false case was
fabricated against the Appellant. He stated that his brother Inder Dev
was freed when he promised to pay Rs.5 lakhs. He denied the entire
prosecution story as being false and fabricated. He maintained that on
9th July 2011, PW-10 was at Kotputli in a vehicle with other policemen
on the way to Delhi. As far as the arrest, seizure memos and other
documents are concerned, he stated that they were all false and forged
and prepared at the Narcotics Cell, Shakar Pur, Delhi. He further
stated that "fake recovery has been fabricated and nothing was
recovered or no incident ever happened at Kali Mandir as alleged in
the statement. The recovery is planted with conspiracy of rivals and
political enemies of my brother in my area with the collusion of crime
branch personnel."
25. The Appellant maintained that he neither knew where the opium
was brought or who had brought it. In response to a specific question
as to why all the prosecution witnesses have deposed against him, the
Appellant stated as under:
"The conspiracy started by Ct. Kheta Ram of Crime
Branch with collusion to Ishwar Singh Pahalwan of
Distt. Neemach, who is Zila Panchayat Adhyaksh and
Ganeh Rao of Rajasthan, who was to pay for the Jeera
crop of the present accused and instead of paying the
money, under conspiracy, called me and my brother at
Kishangarh, Rajasthan on 9th July 2011 at about 1 pm,
I was abducted along with my brother Inder Dev and
forcefully shifted to another vehicle at Kishangarh toll
plaza. I was brought to Delhi along with my brother
Inder Dev, our mobile phones and money/purse etc.
were taken away by the SI Rajbir Singh and his
colleagues Sohan Pal, Kheta Ram, HC Laxman Prasad
and Satyawan, whose names have come to my
knowledge after coming here at Delhi. A false case of
recovery of alleged opium 40 Kg. has been fabricated,
while no such incident happened at Kali Mandir as per
the prosecution case. My brother Inder Dev has been
freed with the ransom of Rs.5 lacs out of which, Rs.3
lacs was given to Kheta Ram on 12th July 2011 after
withdrawing from State Bank of India, Malargarh and
another cash of Rs.2 lacs was given after borrowing
from brother in law Kanwar Lal at Naraingarh. The
case of abduction has been lodged at Kishangarh,
Rajasthan against the crime branch SI Rajbir Singh,
Kheta Ram, Satyawan, Laxman Prasad and Sohan Pal.
The driver of the taxi Wagon R freed by the crime
branch people and his car has been brought alleging
Wagon R to be of mine. The conspiracy of Kheta
Ram is the result of the suffering of the present
accused here."
26. When asked whether he had anything further to say, the Appellant
stated:
"I am innocent and has been falsely implicated due to rivalry
and conspiracy of Ct. Kheta Ram who is close associate of
Ganesh Ram who had to pay Rs.1 lac balance as promised
through Ct. Kheta Ram while Kheta Ram called from his mobile
to my brother Inder Dev on his mobile and we both brothers
hired a taxi for Rs.1600/- for Kishangarh and were abducted
from there. I am innocent and was Pradhan of Gram Panchayat
Richha."
Defence witnesses
27. The Appellant examined Mr. Narender Patidar as DW-1. He stated
that at around 5 am, on 9th July 2011, he was present at his home at
Narain Garh. In the morning at around 5 am, his father, the Appellant,
and his uncle, Inder Dev, proceeded to Kishangarh for recovery of the
money for the sale of cumin seeds. He stated that Constable Kheta
Ram of the Delhi Police called Inder Dev from his mobile phone and,
thereafter, the Appellant and Inder Dev went to Kishangarh. At around
9 pm, his father called him for getting the motor of the well checked.
At around 1.30 pm, on 9th July 2011, when DW-1 rang up the
Appellant on his mobile, it failed to connect. He could not connect to
Inder Dev‟s mobile either. Thereafter, he called his cousin Dilkush
who works at a shop at Peepliya Mandi. When they could not locate
the Appellant and his brother, DW-1 and Dilkush started for Kishan
Garh at around 5 pm on 9th July 2011. They reached Nasirabad at
12.30 am and Kishan Garh in the morning at around 7 am. They were
orally informed by the police officials at Kishan Garh that two persons
had been picked up but that they would come back. At around 2 pm,
on 10th July 2011, DW-1 received a call from an unknown mobile
number. Inder Dev spoke to him and informed him that they had been
cheated and no money had been paid to them. Rather, their entire
money and mobile phones had been snatched away. He stated that he
was coming back to Jaipur and would give the details when they met in
person.
28. DW-1 and his friend Dilkush then met Inder Dev at around 7 pm at
the bus stand at Jaipur and, thereafter, on the way to Narain Garh,
Inder Dev disclosed to DW-1 as to what had transpired. Inder Dev
further told DW-1 that they had been detained in a multi-storey
building on the third floor and Inder Dev was released for a sum of
Rs.5 lakhs to be paid as early as possible. Further, Constable Kheta
Ram made the Appellant and Inder Dev sign certain blank papers.
DW-1 stated that Constable Kheta Ram was a crony of Ishwar Singh
Pehalwan who was the District Panchayat Chairman of Neemuch in
Madhya Pradesh. Inder Dev was the Panchayat Chairman of Narain
Garh and the Appellant was the sitting Sarpanch of Village Panchayat
Reecha and both belong to Congress party whereas Ishwar Singh
Pehalwan belongs to the BJP. DW-1 stated that Ishwar Singh
Pehalwan had also got gundas to attack the shop of the Appellant and
Inder Dev in order to get them to vacate the shops. Arising out of the
said incident, an FIR had been lodged.
29. DW-1 explained that they reached Naraingarh at around 2 am on
the night of 10th /11th July 2011. On 11th July 2011, at around 9.30 am,
Kheta Ram made a call from his mobile number 9289696520 to the
landline number of DW-1 (07424244664). He asked him to tell Inder
Dev to keep the money ready as they were coming on the following
day. Thereafter, Inder Dev went to the State Bank of India and
withdrew Rs.3 lakhs. The remaining Rs.2 lakhs was borrowed from
one Mr. Kanwar Lal, uncle of DW-1.
30. DW-1 further stated that on 12th July 2011, Constable Kheta Ram
came with ASI Mahender (PW-7), Constable Rajesh and the Appellant
in an Innova car at 9 pm and took the money. Prior to that, Kheta Ram
had left a message on the landline number with the lady at home,
giving his mobile number for contact purposes to ensure the timing of
the collection of the money. He further added that when after a month
and a half, he along with Inder Dev, Dilkush and Rajesh went to the
Toll Plaza and requested for the CCTV footage, the manager Mr.
Manish Sharma declined to give it stating that it could be given if the
Court or the Police demanded.
31. Inder Dev filed a complaint before the Kishangarh Court under
Section 156 (3) Cr PC in February 2012. On that basis, FIR No. 49 of
2012 (Ex.DW-1/A) was registered at PS Kishan Garh. DW-1 also
obtained the TRs of the officers of the Crime Branch. Their mobile
numbers were 8447386638 (Delhi Kheta Ram), 9289696520 (Kheta
Ram), 9990460100 (Rajbir Singh Nar), 9560369790 (Laxman),
9213421423 (Satyavanji), 9810756351 (Kuldeep Singh), 9425106022
(Ishwar Singh Pahalwan) and 7423261611 (Chauhan Pahalwan Pan).
The TRs were exhibited as Ex.DW-1/1 to DW-1/8. Request was made
for the call details from the Kishangarh Court of the Additional Civil
Judge and Judicial Magistrate (First Class), Kishangarh. On the orders
passed by the said Court, certified copies of the call detail records
(CDRs) were obtained. They were exhibited as Ex.DW1/C-1 to Ex.
DW 1/C-56. DW-1 also exhibited the certified copies of the Court
proceedings of the Additional Civil Judge and Judicial Magistrate
(First Class), Kishan Garh as Ex.DW-1/D-1 to Ex.DW-1/D-13. The
certified copy of the application filed by Inder Dev seeking the call
details of the mobile phones used by the abductors in the Kishan Garh
incident were exhibited as Ex. DW1/E-1 to Ex. DW1/E-6.
32. DW-1 also exhibited the following documents:
(i) certified copy of the order dated 28th March 2012 (Ex.DW-1/F)
(ii) certified copy of the letter of the Superintendent of Police („SP‟),
Ajmer dated 7th May 2012 (Ex.DW-1/H).
(iii) certified copy of the order passed in Criminal Revision No.
17/2012 (Ex.DW-1/J-1 to DW-1/J-5).
(iv) certified copy of the order dated 4th July 2012 of the Additional
Civil Judge and Judicial Magistrate (First Class), Kishangarh. (Ex.
DW-1/K).
(v) certified copy of the order dated 31st July 2012 passed by the
Additional Civil Judge and Judicial Magistrate (First Class) (Ex.DW-
1/L)
(vi) certified copy of the statement of SI Rajbir Singh under Section
161 Cr PC (Ex. DW1/M-1 to 1/M-4).
(vii) certified copy of the statement of Constable Sohan Pal under
Section 161 Cr PC (Ex. DW-1/N-1 to N-3).
(viii) certified copy of the order dated 14th February 2013 passed by
the Additional Civil Judge and Judicial Magistrate (First Class),
Kishangarh (Ex. DW1/O-1 to O-3).
(ix) certified copy of the election of Inder Dev as Chairman, Nagar
Panchayat, Naraingarh dated 25th November 2004 (Ex.DW-1/P).
(x) certificate of the election of Om Prakash as Sarpanch, Panchayat,
Reechha dated 3rd February 2010 (Ex. DW-1/Q).
(xi) certified copy of the Khasra of Smt. Sharda Bai, W/o Shri Inder
Dev for the year 2010-11 for the production of cumin seed crop
(Ex.DW-1/R).
(xii) certified copy of the khasra of Inder Dev (Ex. DW-1/S).
(xiii) certified copy of the FIR, site plan, Panchnama and statements in
FIR No. 206 of 2010 dated 31st July 2010 registered at Mandsaur
(M.P.) with regard to an assault incident at the behest of Pahalwan
Ishwar Singh (Ex. DW-1/T-1 to T-8).
(xiv) copy of the complaint dated 15th October 2011 sent to the Union
Home Minister and State Ministers (Ex.DW-1/U-1 to Ex. DW-1/U-5).
33. DW-1 also produced, among other things, the following
documents:
(a) reply dated 5th November 2011 from BSNL giving the detailed
CDRs of mobile phones of the Appellant (Ex. DW-1/X-1 to X-7).
(b) reply dated 22nd November 2011 from BSNL with the detailed
roaming CDR record of the mobile of the Appellant (Ex. DW-1/Y-1 to
Y-3).
(c) computerised bank statement of his account with State Bank of
India, Malhargarh (Ex. DW-1/Z-1 and Z-2)
(d) call details of mobile used by Inder Dev from 20 th June to 15th July
2011 (Ex. DW1/1 to Ex. DW1/10).
(e) The original cuttings of the front pages of six newspapers exhibited
as Ex.DW-1/36 to 1/41.
34. DW-1 was cross-examined at length by the Additional Public
Prosecutor („APP‟). DW-1 stated that he did not note the original
number of the Wagon-R taxi in which Inder Dev had gone to Kishan
Garh. He also did not note the name and address of the taxi driver. He
did not have any document to show that cumin seeds were sold to
Ganesh Ram. He had not made any complaint to any authority about
the abduction of his father and uncle. He denied the suggestion that he
had not made any payment of Rs.3 lakhs after borrowing from Inder
Dev‟s uncle or that no payment of Rs.2 lakhs was made to any police
official. He admitted that initially the police had filed a cancellation
report in the Kishan Garh Court regarding the case under Section
342/364 IPC. He placed on record the photocopy of the CAF of the
mobile phone belonging to Kheta Ram (Mark DW-1/P-4 and 1/P-5).
He volunteered that one Rajni Sharma was living with Kheta Ram after
the death of her husband as well as the death of the wife of Kheta Ram.
35. On 30th August 2013, DW-1 placed on record the original video
tape and DVD of the place of occurrence and its surroundings. The
video tape was marked as Ex. D-1 and DVD as Ex. D-2. Although he
was cross-examined by learned APP on 31st October 2013, nothing
was elicited to discredit his evidence.
36. DW-2 Prabhu Ram Chaudhary, an agriculturist, was a resident of
village Pratap Pura, Tehsil Sanchaur, District Jalaur, Rajasthan. He
talked to Kheta Ram on his mobile on 6 th July 2011 between 4 and 5
pm. Kheta Ram was a neighbour of DW-2. A printout of the computer
application „Truecaller‟ bearing the mobile number of the witness was
shown to DW-2. He admitted that it was his mobile number. This
printout is exhibited as Ex. DW-2/A. In his cross-examination, he
pointed out that Constable Kheta Ram had a residence 15 Km away
from his village and was known to the Appellant. Kheta Ram is stated
to have called DW-2 on his mobile on two or three occasions on 6th
July 2011.
37. Ganesha Ram, an agriculturist and resident of village Sarnau,
Tehsil Sanchaur, District Jalaur, Rajasthan was examined as DW-3. He
stated that he had purchased 10 quintals of cumin seeds from Inder
Dev on 1st May 2011 at Rs.16,000 per quintal. He had paid Rs.60,000
and the balance had to be paid as early as possible. Constable Kheta
Ram, a resident of the neighbouring village, had some transaction with
DW-3 and promised to pay the money to Inder Dev. Although he was
subjected to intense cross-examination, he remained firm.
38. Moti Ram Chaudhary, an agriculturist, was examined as DW-4. He
identified Kheta Ram as being a resident of village Mokhatra which is
about 13-14 kms away from his village. On 10th July 2011, he had
talked to Constable Kheta Ram on his mobile number. This he
maintained in his cross-examination as well.
39. Inder Dev was examined as DW-5. He stuck to his version about
selling 10 quintals of cumin seeds to Ganesh Ram for Rs.1,60,000. He
stated that Rs.60,000 was paid in cash and Rs.1 lakh was due. Kheta
Ram had called him on the phone and informed him that the sum of
Rs.1 lakh due from Ganesh Ram would be paid to him by Kheta Ram
in 15 to 20 days. On 8th July 2011, Kheta Ram stated that he would
not be able to come to Naraingarh and that Inder Dev would have to
come to Kishangarh on 9th July 2011 to collect Rs.1 lakh. Om Prakash
and Inder Dev left Naraingarh at 5 am and reached Kishangarh at
around 12.45 pm on 9th July 2011. They came by bus from there to
Nimbhara and from there they went to Kishan Garh by taxi. On
reaching Kishan Garh, DW-5 called the mobile of Kheta Ram to ask
about his whereabouts. He also disclosed the registration number of the
car to Kheta Ram. When they reached the Toll Plaza, while the driver
was paying the toll and taking the receipt, a Tata Safari and an Indica
car came from the back and two persons armed with machine guns
alighted from the Tata Safari and pointed the guns at both Inder Dev
and the Appellant. When Inder Dev and the Appellant sought to alight
from the car, they were forcibly pushed in the Tata Safari and their
mobile phones and purses were snatched. They were threatened with
death if they made a noise.
40. Thereafter, the Appellant and Inder Dev reached Delhi at around
8.15 to 8.30 pm and were confined to the third floor of a building
located at PS Shakarpur. Kheta Ram, arrived there and threatened and
beat them. He demanded Rs.5 lakhs and stated that if DW-5 paid the
money, he would be released. DW-5 was released on that condition.
He reached Naraingarh on 11th July 2011 at 2 am. After again
receiving a call from Kheta Ram, he went to the State Bank of Indore,
Mallargarh and withdrew Rs. 3 lakhs. He further borrowed Rs.2 lakhs
from his brother-in-law. On 12th July 2011, he gave Rs.5 lakhs to
Kheta Ram. He also spoke of the unsuccessful attempts of getting the
CCTV footage. He confirmed the long standing dispute with Ishwar
Singh Pehalwan.
41. In his cross-examination, DW-5 stated that he sold cumin seeds to
Ganesh Ram for the first time on credit on 1st May 2011. He stated that
the distance between Ganesh Ram‟s village and the village of the
Appellant was around 600 to 700 Kms. He stated that 5 to 6
kidnappers made the Appellant and his brother vacate the Wagon-R
car and move to a white colour Tata Safari. DW-5 admitted as correct
that in FIR No. 49 of 2012, there was no mention of the involvement
of Ishwar Singh Pehalwan or the threats given by Kheta Ram for
vacating the shop.
The trial Court judgment
42. In the impugned judgment dated 15th February 2014 of the trial
Court, it was held as under:
(i) The accused could not be acquitted on the sole ground that no
public witness was associated in the raid or at the time of search and
arrest. In the event of non-joinder of independent witnesses, the
evidence of the official witnesses had to be approached with suspicion
and corroboration of their evidence should be insisted upon.
(ii) Notice under Section 50 of the NDPS Act was not required in the
search of baggage, article or container carried by the persons searched
and, therefore, there was no violation of the said provision only
because the word „nearest‟ in relation to the availability of the gazetted
officer and/or Magistrate was not mentioned in the notice.
(iii) Since SI Rajbir Singh was acting under an authorisation of ACP
Bir Singh, who was a gazetted officer of the Delhi Police, and since
sufficient time was not available to get a written authorisation, there
was no violation of Section 42(1) of the NDPS Act. Further, since the
recovery was effected from a public place, no authorisation or search
warrant was required in terms of Section 43 of the NDPS Act.
(iv) Although the police did not comply with Section 52 of the NDPS
Act in letter and spirit by depositing the case property and producing
the accused at the nearest police station, there was „substantial‟
compliance since the Crime Branch was also a police station and had
jurisdiction to register and investigate cases all across the territory of
Delhi.
(v) Since in the present case the report regarding the seizure had
reached ACP Bir Singh through PW-8, police officials up to the
gazetted rank had come to know of the facts and there was nothing
stated by ACP Bir Singh to suggest that the recovery and arrest were
false. Since, in any event, the provisions of Section 57 of the Act were
directory, there was no violation as such of that provision.
(vi) Section 52A was not for the benefit of the accused and pertained
only to the destruction of the case property and, therefore, there was no
question of violation of that provision.
(vii) Even if the second IO Mahender Singh (PW-7) was subordinate to
first IO ASI Rajbir Singh (PW-10), it made no difference to the
prosecution case because nothing effective was done by the second IO.
(viii) There was no difference in the seals bearing words „2A PS NB
Delhi‟ affixed by the IO and those appearing on the sample parcels A1,
B1 and C1 sent to the FSL since generally the seals are round and if it
is read from the other side, the word „Delhi‟ would be common since it
is in the centre of the seal.
(ix) There was no merit in the submission that since the charge sheet
was filed without the FSL report, an inference should be drawn that the
samples had been tampered with by the police. The recovered opium,
when tested at the spot with the FTK, gave a positive result and,
therefore, that itself constituted a sufficient basis for the police to file
the charge sheet.
(x) There was no merit in the argument that there was no service lane
near the temple since temporary barricades had been erected by the
police in order to control the crowd of the temple and, therefore, the
service lanes were closed. The fact that the government vehicle and the
Wagon-R were shown parked in the service lane did not, therefore,
mean that the site plan was not consistent with the testimonies of the
recovery witnesses.
(xi) As regards the failure to produce the log book for the car in which
the police travelled, the reliance placed on Kishan Chand v. State of
Haryana 2013 1 EFR 310 was misplaced since the facts of that case
were distinguishable.
(xii) The defence version was not believable since the prosecution had
proved that it was the son of PW-10 who was using the mobile phone
between 8th and 10th July 2011. DWs-2 and 3 did not produce their
mobile sets to show the Court that they had received calls from Kheta
Ram and did not place on record their CDRs. As regards the Truecaller
Details, since there was no certificate under Section 65B of the Indian
Evidence Act to prove their contents, it was not admissible in
evidence.
(xiii) It was unbelievable that DW-3, Ganesha Ram, a resident of
village Sarnau, Tehsil Sanchaur, District Jalaur, Rajasthan would travel
433 Kms to purchase 10 quintals of cumin and that it would be sold to
him on credit by DW-5 and his brother to DW-3, who were strangers
to him. Further, the defence did not examine the witnesses to establish
a connection between Constable Kheta Ram and Ishwar Singh
Pehalwan.
(xiv) If Constable Kheta Ram had threatened DW-5 for vacating the
shop, then it was unlikely that he would accept a proposal from DW-3
that Kheta Ram would pay DW-5 Rs.1 lakh and that DW-5 would
travel to collect the said amount from Kheta Ram at Kishangarh. It was
beyond comprehension that a person would travel 433 Kms to
Kishangarh just to collect Rs.1 lakh. Further, Kheta Ram was merely a
Constable and could not be expected to wield so much influence that
"he would manage ASI, SIs, two Inspectors and even the ACP of
Crime Branch, Delhi".
(xv) Constable Kheta Ram was to pay Rs.1 lakh to DW-5 whereas the
value of the recovered opium which was to the extent of 40 Kg "would
be more than Rs.40 lakhs". It was unlikely that Kheta Ram would
spend Rs.40 lakhs to ward off a liability of Rs.1 lakh. Since 40 kg of
opium required a lot of space, the police could not be expected to have
planted such a huge quantity on the Appellant.
(xvi) The delay in filing a complaint regarding the alleged abduction of
the Appellant and DW-5 raised doubts as to the truthfulness of their
version. There was no explanation as to why the accused did not obtain
the CCTV footage from GVK. Further, in the abduction case, the
Rajasthan police had already filed a cancellation report under Section
169 Cr PC. The statements given by Mr. Shailesh Sethi, Supervisor,
Mr. Kesar Singh, Incharge and Mr. Prem Balra Chamoli, Road and
Safety Officer at Kishan Garh Toll Plaza revealed that they were
present throughout on 9th July 2011 and there was no incident of
kidnapping of any person by armed persons.
43. The Appellant was accordingly held guilty of the offence under
Section 18 (b) of the NDPS Act and by the order on sentence of the
same day sentenced to 15 years‟ RI with fine of Rs.2 lakhs and in
default to undergo SI for two years.
Reliability of the site plan
44. Mr. Sanjeev Bhatnagar, learned counsel for the accused first relied
on the video recording of the place of occurrence which showed that it
was a crowded area with the service lane around the Kali Mata Mandir
being totally blocked. Referring to the rough site plan (Ex. PW-7/B)
prepared by ASI Mahender Singh (PW-7), it was submitted that it was
inconceivable that both the government vehicle and the Wagon R car
were parked in the service lane as shown in the site plan.
45. It is seen from the record of the trial Court that the video prepared
by DW-1 was indeed marked as an exhibit in the evidence of DW-1
Narender Singh, son of the Appellant. In his cross-examination on 31st
October 2013, DW-1 confirmed that he himself had prepared the
video. He explained in detail how he prepared the DVD. There was
nothing in his cross-examination to doubt the veracity of the DVD.
46. Ms. Aashaa Tiwari, learned APP for the State also viewed the same
DVD along with the Court when it was played and has not doubted its
correctness. The time of occurrence is shown around 8.30 pm on the
evening of 9th July 2011 which happens to be a Saturday. The area is
obviously a busy one and it is not in doubt that the temple was open
even at that time. It has come in the evidence of PW-10 that there was
a crowd. In the cross-examination of PW-10, he states that there were
50 to 60 persons present near the Mandir. He admitted that in the
vicinity of the Mandir, at a distance of about 100 meters, there was a
Mall on the eastern side and a petrol pump on the western side along
with various shops and houses. He also admitted that these were not
shown in the site plan for some reason. Although in his examination-
in-chief he has stated that he had asked some persons to join in the
investigation and they refused, he admitted in his cross-examination
that he did not join the priest of the temple in the investigation. What is
interesting is the deposition of Constable Sohan Pal (PW-1). In his
cross-examination, PW-1 stated that "none of the police officials went
himself or were sent by the IO to summon a public person from the
above stated places (bus depot, petrol pump, Tarun Enclave) either
before or after the apprehension of the accused". He admitted that "it is
also correct that there is a worship in Kali Mata Mandir for long hours
on Saturday. It is also correct that 500 to 700 people are present on
Saturday at the time of Aarti. Generally, the Aarti is done in the night
time".
47. The Court finds that the site plan is wholly inadequate to give a
clear picture as to the surroundings of the Kali Mata Mandir. It must
be noticed at this stage that the site plan showed the main road in front
of the Kali Mata Mandir with the writing „patri‟ on it. The two
vehicles i.e. the Wagon-R car which was supposedly driven by the
Appellant is shown parked at point A at a point behind the footpath.
Likewise, the government vehicle in which the raiding party was
travelling is shown at point B which is also behind the footpath. In his
cross-examination, PW-10 stated that "we entered the service lane
towards Mandir side after taking „U‟ turn from Dipali Chowk". This
does not appear to be possible at all since the service lane is
barricaded. It is also unlikely that any vehicle could have been parked
in front of the temple as indicated in the site plan when one views the
area in front of the temple as depicted in the video. Clearly, the site
plan has not correctly depicted the location of the temple and its
surroundings. Importantly, it omits to show the surrounding
structures/buildings and the residential locality across the road (Tarun
Enclave), the petrol pump in the vicinity and most importantly the
Rani Bagh Police Station which is visible from the temple itself as can
be seen from the video. The existence of all these other places have
been admitted by PWs-1 and 10 in their cross-examinations.
48. The trial Court appears to have overlooked the objections raised by
the counsel for the Appellant on this aspect by simply stating that the
vehicles were "parked on the outer Ring Road". This was a statement
which is not supported by even PW-10 who states that they entered the
service lane towards the Mandir side after taking a „U‟ turn from
Diplai Chowk. Also, the submission is not that there were no service
lanes but with the service lane being completely blocked, the
prosecution had to explain how both vehicles i.e. the Wagon-R car
supposedly driven by the Appellant and the government vehicle were
both shown in the site plan as being parked in the service lane. In a
case where the prosecution alleges that the recovery was effected from
a vehicle parked in a busy locality outside a temple on the main road or
on the service lane, it was important for the prosecution to have
presented a correct site plan, if not a scaled site plan, instead of a rough
sketch which has been drawn in the most casual manner and which
gives rise to several questions which remain unanswered.
False implication
49. The central thrust of the submission of Mr. Sanjeev Bhatnagar was
that the entire case was a false and fabricated one. He submitted that
both the Appellant and his brother had been picked up from
Kishangarh Toll Plaza at around 1 pm on 9th July 2011 and brought to
Narcotics Cell in Shakarpur by about 8.30 pm and that Constable
Kheta Ram, who interestingly was not examined as a prosecution
witness, was involved in the abduction of the Appellant and his
brother. Five witnesses have been examined by the defence to prove
the above stand of the Appellant.
50. The information noted in DD No. 13 (Ex.PW-8/A) was to the
effect that on 9th July 2011 there would be two persons i.e. Om Prakash
and Inder Dev, residents of District Mandsaur, Madhya Pradesh
coming to Delhi near the Kali Mata temple in the Outer Ring Road
between 8.30 and 9 pm to deliver a consignment of opium. Yet, when
the raiding party purportedly went to the spot, they found only the
Appellant and not the other person i.e. Inder Dev. Strangely, neither in
the report of arrest or seizure submitted by PW-10 to his superiors nor
at any subsequent point in time did the police find out about the other
person who was also supposed to travel with the Appellant on that day.
51. The trial Court failed to note that in the complaint filed against the
police officials of Police Station Shakarpur in Kishangarh, Rajasthan
(FIR No. 49 of 2012), statements were recorded under Section 161 Cr
PC of both SI Rajbir Singh (PW-10) and Constable Sohan Pal (PW-1).
These were placed on record before the trial Court. In his statement,
ASI Rajbir Singh stated that on 9th July 2011 when they reached the
Kali Mata Mandir at around 8.30 pm, a Wagon-R car came and they
had stopped it and enquired about the driver who disclosed his name as
Om Prakash. He further stated that the person sitting next to him
disclosed his name to be Inder Dev. In the statement of Constable
Sohan Pal, it was again stated that while the driver disclosed his name
to be Om Prakash, the person sitting next to him disclosed his name to
be Inder Dev. Neither PW-1 nor PW-10 have in the present case stated
as to what happened to Inder Dev but the statements of PWs-1 and 10,
made to the Rajasthan police on 22nd April 2012, do indicate that there
were two persons present in the Wagon-R car.
52. In the present case, PW-1, who was examined on 16th April 2012,
stated nothing about another person being present in the Wagon-R car.
Likewise, PW-10 was examined on 8th February 2013 but he did not
mention the presence of Inder Dev in the car. If there was secret
information about the Appellant and Inder Dev proceeding to Delhi to
deliver a consignment of opium, then it is indeed strange that there is
no mention about the police making efforts to find out the other
person.
53. The specific case of the defence was that Inder Dev was released
by the police after being abducted on his promising to pay Rs.5 lakhs.
In order to demonstrate that Constable Kheta Ram along with Rajbir
and ASI Mahender were involved in the abduction, the defence has
placed reliance on CDRs of the mobile phones of both Constable
Kheta Ram and PW-10 Rajbir Singh. Mr. Bhatnagar was able to show
to the Court how the CDRs of Kheta Ram‟s Mobile Nos. (8447386638
in the name of Rajni Sharma and 9289696520) show his movement
from Delhi to Kishangarh on 8th July 2011, reaching Kishangarh on 9th
July 2011 and thereafter returning to Delhi at around 8.30 pm on 9 th
July 2011. The submission of learned counsel for the defence that the
so-called secret informer could indeed have been Constable Kheta
Ram stands probablised because there is no suggestion made to the
defence witnesses, and in particular DW-1, that the CDRs of the said
mobile number, certified copies of which were exhibited as DW-1/C-1
to C-56, were not genuine.
54. The CDR of Kheta Ram‟s mobile phone shows his presence at
Kishangarh on 9th July 2011 at around 1 pm and his movement through
Rajasthan back to Delhi and his reaching Delhi at around 7 pm. The
other mobile phone used by Kheta Ram also probablizes his presence
at Kishangarh on 9th July 2011 from around 10 am in the morning till
about 1 pm and thereafter moving through Tilonia Patan, Amer,
Gurgaon and then reaching Delhi at around 8 pm.
55. Mr. Bhatnagar submitted that the CDR for the mobile No.
9990460100 showed that SI Rajbir Singh was also present in Alwar
and Jaipur in Rajasthan on 8th July 2011 as well as 9th July 2011. He
pointed out that in his cross-examination PW-10 stated: "I cannot
admit or deny that my mobile No. 9990460100 was used on 9 th July
2011 at 1.04 am to make a call to Ct. Kheta Ram‟s mobile No.
8447386638".
56. Indeed, the CDR of the above mobile phone of Rajbir Singh
reveals that he travelled for a good part of 8 th July 2011 from 9.18 pm
onwards in Rajasthan. The calls on the 8th July 2011 end at 11.55 pm
in Virat Nagar district, Jaipur. A call was made to mobile No.
8447386638 (used by Kheta Ram) at 1.04 am on 9th July 2011 from a
bus stand at Manoharpura, Sahapura district, Jaipur. It appears that the
mobile phone was switched off at that point because the next entry is
only on 10thJuly 2011. The next call, thereafter, is at 9.40 am on 10 th
July 2011 at Aram Park in Delhi.
57. Having realised that the CDRs would now show the movement of
the holder of the aforesaid mobile number on 9th July 2011, PW-10
explained as under:
"On that day (9th July 2011) the said phone was not
available with me as it was taken by my son to Jaipur.
He had gone to Jaipur on 8th July 2011 in my absence.
I do not know when he left the house for Jaipur. He
had taken mobile with my consent for one day. My
son‟s name is Gaurav Bhatti. During those days my
son Gaurav Bhatti was using No. 9718391704. Vol.
During those days my son Gaurav Bhatti was using
No.9718391704. Vol. During those days battery of his
phone was working only for one hour due to dampness
and hence he took my phone. My son‟s phone was
with me."
58. It seems highly improbable that a police officer would exchange,
for no apparent reason, his mobile phone which he obviously uses in
the course of his official duty, with his son and agree to take his son‟s
mobile with him. It is not understood why the trial Court accepted this
kind of an incredible explanation. PW-10 did not stop at that. The
further answers given by him in his cross-examination make his
version even more improbable. He stated:
"It is incorrect to suggest that on 8th July 2011 at 11.
27, I used my mobile phone No. 9990460100 to call
my son Gaurav Bhatti on his mobile No. 9718391704
and at that time my location was at Kotputli. Vol. At
that time either I had called or I had received call from
Gaurav Bhatti regarding his wellness. I do not know to
whom phone No. 8447386638 belonged and who was
its user. I do not remember if I ever called or received
call from that number. I do not remember if I was
calling and receiving call from that number frequently.
It is incorrect to suggest that that number belongs to
Kheta Ram and I am not deliberately disclosing that
fact before the Court. Me and my son exchanged
phones on 8th July 2011 between 6.30-7.00 am. I
cannot admit or deny that my phone was used on 8 th
July 2011 at 7.29 pm to call Inspt. Kuldeep Singh for
one minute and he reciprocated by calling at 7.30 pm
and we talked for 52 seconds. Vol. At that time my
phone was with my son. I cannot admit or deny that at
2020 hours a outgoing call was made from my cell
number to HC Laxman Prasad mobile No.
9560369790 and similarly at 8.27 pm on 8th July 2011
a call from my cell number was made to mobile
number user Kheta Ram and the location of my cell
number was Mehram Nagar. Similarly, various calls
from Inspector Kuldeep Singh‟s number, ASI
Mahender number 9868070290 was also made for 75
seconds and the location was Mehram Nagar."
59. Why the son of Rajbir Singh (PW-10) would make so many calls
to other police officers on 8th July 2011 while moving from Delhi to
Jaipur is beyond comprehension. A careful examination of the CDRs
exposes the hollowness of the above story of PW-10. He went to the
extent of saying that "I had exchanged SIM also along with handset
because he was taking it only for one day". And yet somehow the
mobile phone is back with PW-10 at 10 am on 10th July 2011.
60. In a further cross-examination, PW-10 had to admit that:
"it is correct that from my mobile number 9990460100 calls
were done to mobile no. 9968388886 on 1st July, 2nd July, 5th
July, 6th July, 7th July, 10th July and 11th July 2011. I don‟t
remember whose number is this. I don‟t know any Govind
Rajpt. I don‟t know any Rajni Sharma also. It is correct that
from my mobile no. 9990460100 I had calls on 8th July 2011 at
17:27, 17:48, 18:24, 18:39, 18:45, 18:53, 19:52, 20:27, 22:38,
22:53, 22:59, 23:05, 23:13, 23:27, 23:55 with a person (the
witness is claiming that he had talked to informer at that time
and so mobile no is not written in the evidence). Similarly on 9th
July 2011 I called this number at 01-04 and on 10th July 2011 at
13:57, 14:22, 18:21 and on 12th July 2011 at 9:29, 9:41, 9:52,
12:51, 19:43, 20:35, 20:38, 20:48 and 22:15. During some
period my phone was with my son and informer would have
talked to him. It is correct that my Narcotics cell Land line
number of Duty Officer is 22048331 and when this number
would be called from any mobile then it would appear as 011-
22048331. It is correct that I had phone calls from my mobile
no.9990460100 to aforesaid number on 1st July 2011 at 09:05,
on 2nd July 2011 at 08:00, 09:29, 09:35, on 4th July 2011 at
12:00, 12:05, 12:26 and on 5th July 2011 at 12:41, on 7th July
2011 at 12:00, on 8th July 2011 at 19:26, on 10th July 2011 at
09:43, 19:56, on 11th July 2011 at 11:51 and on 12th July 2011 at
09:31, 10:04. I don‟t remember to whom I talked on the
aforesaid dates. On 6th July 2011 I had called mobile number
9810756351 and I called the same number on 8th July 2011 at
19:26, 19:30, 21:18 and similarly on 11th July 2011 at 20:49 and
on 12th July 2011 at 11:01. I do not remember whose number is
this. I cannot admit or deny that this number belongs to Insp.
Kuldeep Singh. I do not remember the mobile numbers of my
colleagues HC Laxman and Ct. Sohan Pal. It is incorrect to
suggest that I am intentionally concealing the truth and not
telling the correct facts."
61. It is surprising that the trial Court had completely overlooked the
above answers given by this witness and had rejected the entire
evidence produced in this regard even though certified copies of the
CDR was produced. The fact that the certificate under Section 65B of
the Indian Evidence Act did not accompany the CDRs should not have
deterred the trial Court since the witness himself was not in a position
to deny the making of the above calls from his mobile phone. Not once
in his cross-examination did he suggest that the CDR was fabricated.
62. On the aspect of the CDRs, the Court finds it odd that the trial
Court has failed to note the orders passed by it on 21st April 2012 in
the applications filed by the Appellant and the partial compliance with
those orders by the prosecution. To recall, in its orders dated 21st April
2012 the trial Court noted the Appellant's defence that "he was
abducted by Crime Branch, Delhi on 9th July 2011 from Kishangarh"
and that he had "named officials Kheta Ram, HC Laxman Parsad, SI
Rajvir Singh Bhati, HC Rathor, HC Satyawan, SI Mahendra Singh and
Inspt. Kuldeep Singh for abduction". The order further noted the
mobile numbers of Constable Kheta Ram, Constable Satyawan, HC
Laxman Parsad, Inspector Kuldeep Singh, SI Rajvir Singh, Shri
Rathor, ASI Mahender, Constable Sohan Pal with the names of service
providers. The trial Court had thereafter on two occasions directed the
prosecution to comply with its orders regarding production of CDRs.
The prosecution itself admitted the mobile numbers of SI Rajvir Singh
and ASI Mahender but declined to comply with the direction to
produce the CDRs of the other police officers only because they "are
not using, as per reply, those numbers." The question was not whether
they were continuing to use those numbers at the time the orders were
passed but whether on the crucial dates i.e. on 8th, 9th and 10th July
2011 they were using those mobile phones. This aspect of the matter
has been unsatisfactorily dealt with by the trial Court.
63. The trial Court was not justified in observing that the Appellant
had not been able to prove that the above mobile numbers belonged to
the police officers named by him as being responsible for his abduction
and that he also failed to produce the CCTV footage. On his part, the
Appellant had filed an application on which the trial Court has passed
a separate order and there was no convincing reason why the said order
was not complied with. He had also filed a separate application for
production of the CCTV footage on which again a separate order was
passed by the trial Court on 21st April 2012 noting that such CCTV
footage was "very much material". The Manager, Mr. Manish Sharma,
GVK, Jaipur, Kishangarh was directed to produce the CCTV footage
dated 9th July 2011 between 12.30 pm and 1.30 pm of the camera
installed at that point. This order was also not complied with. In these
circumstances, to place the burden on the defence to produce the
CCTV footage and to reject the defence by asking the question "Why
the accused did not get preserved CCTV footage dated 9 th July 2011?"
is overlooking the trial Court‟s own order dated 21st April 2012.
64. The specific case of the defence was that Inder Dev was the former
President of Nagar Panchayat, Naraingarh and belongs to the Congress
party. A certificate to this effect was placed on record and has not been
disputed by the prosecution. Another certificate to show that the
Appellant was the Sarpanch of village Richha, Tehsil Malhargarh,
District Mandsaur has also been placed on record. This has also not
been disputed by the prosecution. The evidence of DW-1 that Ishwar
Singh Pehalwan belongs to the BJP and was District Panchayat
Chairman of Neemach, Madhya Pradesh has also not been disputed by
the prosecution. In his evidence, DW-1 has spoken about Constable
Kheta Ram being a person working for Ishwar Singh Pehalwan. He has
placed the CDRs to show the calls made by Kheta Ram on 11 th July
2011 from his mobile number to the landline number. The details of
withdrawal of Rs.3 lakhs from the ATM of Inder Dev has also been
placed on record and not disputed. In other words, sufficient evidence
has been placed on record to substantiate the case of the Appellant that
Inder Dev did pay the ransom money to Kheta Ram after he was
released. The trial Court has not appreciated the exhaustive material
placed on record by the defence witnesses. Their depositions have also
not been adequately discussed.
65. The trial Court has also not appreciated the evidence regarding the
truecaller details although in para 20 (iii) of the impugned judgment
there is a lengthy discussion on how the truecaller system works. The
material produced by the defence has been disregarded only because
no certificate under Section 65B of the Indian Evidence Act was
produced. Learned APP has also placed reliance on the decision in
Ravi Kant Sharma v. State 183 (2011) DLT 248 and Rakesh Kumar
v. State 163 (2009) DLT 658 in this regard.
66. While it is correct that no certificate under Section 65B of the
Indian Evidence Act has been produced by the defence, an important
fact that has been overlooked is that DWs 2 and 4, when shown the
TDs, admitted that they were correct as regards their own mobile
numbers. Therefore, to that extent the TDs could not be rejected as
being inadmissible. In any event, the CDR of the mobile phone of PW-
10 has not been disputed by the prosecution. In discarding the evidence
of the defence, the trial Court has overlooked the fact that the presence
of Kheta Ram at Kishangarh on 9th July 2011 and Rajbir Singh at
various locations in Rajasthan on 8th and 9th July 2011 has been
probablised through the CDRs of the mobile phones used by them.
This also has to be appreciated in the context of the fact that the CDRs
of the mobile phones used by the other police officials of the raiding
party on the relevant dates and times were not produced before the trial
Court by the prosecution.
67. Learned counsel for the Appellant was also justified in questioning
why no CDRs were produced to show the location of the police men
on the date when the raid took place i.e. 9 th July 2011. It is highly
unlikely that the members of the raiding party were moving without
any mobile phones whatsoever. In light of the evidence produced by
the defence as discussed above, and in the absence of public witnesses
to the apprehension, search and recovery of contraband from the
Appellant or even his arrest, it was necessary for the prosecution to
have established, if not by other independent evidence, through the
CDRs of the mobile phones used by the police party, that on the
relevant date and time i.e. 9th July 2011 at around 8.30 pm they were
near the Kali Mata Mandir at Rohini. The failure to do so not only
probablises the defence but also raises reasonable doubts about the
prosecution version.
68. The Appellant filed a complaint before the Magistrate in
Kishangarh under Section 156 (3) Cr PC in regard to his abduction
pursuant to which an FIR was registered. The trial Court appears to
have erred in observing that "a cancellation report had been filed in the
said case" without noticing that on a protest petition filed by the
Appellant and Inder Dev, an order was passed for further investigation
of the case. The order dated 14th February 2013 passed by the learned
Additional Civil Judge (Judicial Division) has been placed on record
before the trial Court as Ex. DW1/01-03. The said order has not even
been referred to although it was placed on record by DW-1 in his
examination-in-chief.
69. The evidence placed on record by the Appellant to show the
involvement of Constable Kheta Ram who was also part of PS
Shakarpur has not been rebutted by the prosecution. His association
with Ishwar Singh Pehalwan has been spoken of by DWs-1 and 5.
They have not been shaken on this aspect in their cross-examination by
the APP. It is possible that in the FIR that was initially registered, the
fact of Ishwar Singh Pehalwan being behind the incident might have
not come on record. The explanation offered that at that time the full
facts had not emerged appears plausible. Without further commenting
on this evidence, as the case arising out of the FIR at PS Kishangarh is
pending, the Court would only like to observe that sufficient material
has been placed on record in these proceedings to probablise the case
of the defence.
Failure to associate independent witnesses
70. As regards the absence of independent witnesses, PWs-1 and 6
have contradicted PW-10 and have stated that no attempt had been
made to associate any independent witnesses at the spot. It is not
disputed that the place of alleged apprehension of the Appellant on 9th
July 2011 was crowded. It was outside a temple at around 8.30 pm,
when aarti and pooja usually takes place. In the circumstances, the
failure to even record the names of the public witnesses who allegedly
refused to join the raid, creates a reasonable doubt on the truthfulness
of the prosecution version, especially that of PW-10. The trial Court
has observed: "So it is held that public witnesses were definitely
available at the spot in large numbers because recovery was effected
from the bank of outer ring road but despite it not a single public
witness was joined."
71. Routinely, no attempt is being made by the police in such cases to
associate public witnesses. In the absence of clear evidence to show
that a sincere effort was made, the Court should not simply accept the
proposition that generally in such cases no member of the public
comes forward to help the prosecution. In Ajmer Singh v. State of
Haryana (2010) 3 SCC 746, it was held that in such circumstances the
Court will have to determine whether the evidence of the police officer
"was believable after taking due care and caution in evaluating their
evidence". In the present case, given the shoddy investigation, the
failure to associate any independent witness constituted an additional
factor to disbelieve the case of the prosecution.
Non-compliance with Section 42 NDPS Act
72. Learned counsel for the Appellant submitted that there is a
violation of Section 42 of the NDPS Act inasmuch as PW-10 Rajbir
Singh did not record "grounds of belief" and send it to his superior
officer.
73. Learned APP, on the other hand, referred to the trial Court
judgment in which it has been held that there was no violation of
Section 42 because PW-10 had communicated the information given to
him by the secret informer to a superior officer by means of DD No. 13
and that since the recovery was from a public place only Section 43
would apply. There was no need to comply with Section 42.
74. In the first place it should be observed that Section 43 of the NDPS
Act would apply when a police officer apprehends narcotics drugs and
psychotropic substances from a person in a public place without any
prior intimation. In such a scenario, obviously, there will be no
occasion for recording in advance the grounds of belief or
communicating it to any superior officer. However, where the raiding
officer proceeds to a public place on the basis of prior information
which he has recorded in writing, then the question of applicability of
Section 43 would not arise. In such circumstances, the proviso to
Section 42 mandates that the officer must record the grounds for his
belief. If he proceeds to the spot without a search warrant, the
evidence may be concealed or the offender may escape.
75. The mandatory nature of the above requirement of law regarding
recording the "grounds of belief" was explained in Karnail Singh v.
State of Haryana (2009) 8 SCC 539 as under:
"In conclusion, what is to be noticed is Abdul Rashid did not
require literal compliance with the requirements of Sections
42(1) and 42(2) nor did Sajan Abraham hold that the
requirements of Section 42(1) and 42(2) need not be fulfilled at
all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature
referred to in Sub-section (1) of Section 42) from any person had
to record it in writing in the concerned Register and forthwith
send a copy to his immediate official superior, before
proceeding to take action in terms of Clauses (a) to (d) of
Section 42(1).
(b) But if the information was received when the officer was not
in the police station, but while he was on the move either on
patrol duty or otherwise, either by mobile phone, or other means,
and the information calls for immediate action and any delay
would have resulted in the goods or evidence being removed or
destroyed, it would not be feasible or practical to take down in
writing the information given to him, in such a situation, he
could take action as per Clauses (a) to (d) of Section 42(1) and
thereafter, as soon as it is practical, record the information in
writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of
Sections 42(1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the superior
officer, should normally precede the entry, search and seizure by
the officer. But in special circumstances involving emergent
situations, the recording of the information in writing and
sending a copy thereof to the official superior may get
postponed by a reasonable period, that is after the search, entry
and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of Sub-sections
(1) and (2) of Section 42 is impermissible, delayed compliance
with satisfactory explanation about the delay will be acceptable
compliance of Section 42. To illustrate, if any delay may result
in the accused escaping or the goods or evidence being
destroyed or removed, not recording in writing the information
received, before initiating action, or non-sending a copy of such
information to the official superior forthwith, may not be treated
as violation of Section 42. But if the information was received
when the police officer was in the police station with sufficient
time to take action, and if the police officer fails to record in
writing the information received, or fails to send a copy thereof,
to the official superior, then it will be a suspicious circumstance
being a clear violation of Section 42 of the Act. Similarly, where
the police officer does not record the information at all, and does
not inform the official superior at all, then also it will be a clear
violation of Section 42 of the Act. Whether there is adequate or
substantial compliance with Section 42 or not is a question of
fact to be decided in each case. The above position got
strengthened with the amendment to Section 42 by Act 9 of
2001."
76. In the present case, DD No. 13 only records the fact that the secret
informer told PW-10 about the possibility of the Appellant and his
brother Inder Dev coming to the Kali Mata Mandir at around 8.30 pm
for handing over a consignment of opium. The recording in DD No. 13
does not state that PW-10 believes that if a search warrant was sought
to be obtained, the offender might suspect apprehension or that the
evidence may be concealed. The above mandatory requirement of law
has been reiterated in State of Orissa v. Laxman Jena JT 2002 (5) SC
1 wherein para 7 it was observed as under:
"7. The mandate of law, as incorporated under the Act, is
required to be strictly compiled in view of the grave
consequences which are likely to be followed on proof of illicit
article under the Act. The legislature had enacted and provided
certain safeguards in various provisions of the Act including
Sections 42 and 50, in all cases which must be proved to have
been strictly followed. The harsh provisions of the Act cast a
duty upon the prosecution to strictly follow the procedure and
comply with of safeguards."
77. To the same effect is the decision in Kishan Chand v. State of
Haryana (2013) 2 SCC 502. In the present case, therefore, the Court is
of the view that the trial Court erred in overlooking the obvious
violation of the mandatory requirement of Section 42 of the Act.
Non-compliance with Sections 50 and 52 NDPS Act
78. Section 50 of the Act mandates that the officer who is about to
search a person under Section 42 of the NDPS Act "if such person so
requires, take such person without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned in Section 42 or
to the nearest Magistrate". Only when it is not possible to take the
person to the nearest Gazetted Officer that, in terms of Section 50(5),
the Officer can proceed to search the person as provided under Section
100 Cr PC. After the search, under Section 50(6) "the officer shall
record the reason for such belief which necessitated such search and
within seventy-two hours send a copy thereof to his immediate official
superior".
79. In the present case, undoubtedly, the Appellant was searched by
PW-10 although that search did not lead to recovery of any narcotic
substance. The fact that the person of the Appellant was searched has
been admitted by PW-10. He was served with the notice under Section
50 of the NDPS Act. The Court is unable to agree with the submission
of the learned APP, which appears to have found favour with the trial
Court, that in the present case there existed no reason to issue a Section
50 notice since the recovery was effected from the Wagon-R car. The
evidence makes it clear that PW-10 did issue a Section 50 NDPS Act
notice since he believed that apart from the Wagon-R car, the
Appellant himself might be carrying some prohibited substance and it
was not possible for him at that stage to rule out such a contingency.
PW-10 served a copy of the notice on the Appellant. Since the
Appellant was, in fact, searched pursuant to the notice issued, it is not
open now for the prosecution to contend that there was no need to
issue such notice and, therefore, the failure to observe the requirement
of Section 50 of the NDPS Act was not fatal to the prosecution.
80. The admitted position is that the notice under Section 50 of the
NDPS Act that was served to the Appellant did not mention that he
could be taken to the nearest Magistrate or Police Station which had a
gazetted officer. In fact, he was not taken to the nearest Police Station
but to one that was 20 Kms away at Shakarpur. As already earlier
noticed, the nearest Police Station was the one at Rani Bagh which was
visible even from the Kali Mata Mandir. There was no explanation
why the Appellant was not first told about the nearest Police Station
and thereafter taken there. The mandatory requirement under Section
50 of the NDPS Act as explained in Ashok Kumar Sharma v. State of
Rajasthan 2013 (2) SCC 67 has not been observed by the prosecution
in the present case.
81. As regards the non-compliance of Section 52 of the NDPS Act, the
trial Court has itself in para 13 of the judgment observed that "police
did not comply with Section 52 in every respect but there is a
substantial compliance". There is no question of "substantial
compliance" as far as the NDPS Act is concerned. If, indeed, there has
been non-compliance of Section 52 of the NDPS Act, the failure to do
so would be fatal to the case of the prosecution.
Non-compliance with Section 52 A (2) NDPS Act
82. Section 52 A (2) of the NDPS Act reads as under:
"(2) Where any narcotic drugs or psychotropic substances has
been seized and forwarded to the officer in charge of the nearest
police station or to the officer empowered under Section 53, the
officer referred to in subsection (1) shall prepare an inventory of
such narcotic drugs or, psychotropic substances containing such
details relating to their description, quality, quantity, mode of
packing, marks, numbers or such other identifying particulars of
the narcotic drugs or psychotropic substances or the packing in
which they are packed, country of origin and other particulars as
the officer referred to in sub-section (1) may consider relevant to
the identity of the narcotic drugs or psychotropic substances in
any proceedings under this Act and make an application, to any
purpose of,-
(a) Certifying correctness of the inventory so prepared; or
(b) Taking, in the presence of such Magistrate, photographs
substances and certifying such photographs as true; or
(c) Allowing to draw representative samples of such drugs or
substances, in the presence of such Magistrate and certifying the
correctness of any list of samples so drawn."
83. The trial Court was not right in observing that the above
requirement applies only in the case of disposal of the seized narcotic
drugs and not at the stage of seizure. Unless the details of the seized
substance are noted at the earliest opportunity, there is every
possibility of the samples being tampered with. In the present case,
although it was stated that the three plastic dibbas were marked A, B
and C at the spot, when during the cross-examination of PW-1 they
were opened in Court, those marks were not found. There was no
explanation for this. This does give rise to doubts about the
preservation of the seized samples.
Preservation, weight and value of the seized consignment
84. There is also doubt whether the seals used to seal the pullandas
were in fact deposited in the malkhana. The entries in the malkhana
register do not reflect the deposit of the seals. In the evidence of PW-6,
it is seen that according to him he handed over the seals back to PW-10
Rajbir Singh who was himself the IO. This raises sufficient doubt on
whether there was an opportunity for the samples to be tampered.
85. The case of the prosecution is that the weight of the three
polythene packets in the dibbas were 13kg, 13 kg and 14 kg
respectively. The further case is that the raiding party carried a
weighing balance with weights of 20 Kg, 10 Kg, 5 Kg, 1 Kg, 500 gm,
100 gm and 50 gm. They were apparently carrying only one of each of
the above weights. Therefore, while they could have weighed a packet
of 14Kg, they could not have weighed packets of 13 Kg. Faced with
this obvious conundrum, the prosecution witnesses have tried to
improve their versions during examination by suggesting that they
were carrying two weights of 1 kg. The fact remains that there is no
record of the raiding party taking the weighing balance and weights
from the malkhana or elsewhere while leaving for the raid. This adds
to the several factors that give rise to doubts about the prosecution
version.
86. It is seen from the judgment of the trial Court that in para 20 (x),
one of the reasons for not believing the defence version is that the
recovered opium was 40 Kg and its price would be more than Rs.40
lakhs. This appears to be something that the trial Court has stated on
its own without there being any evidence. Learned counsel for the
Appellant has produced before the Court the prevalent rates for 100%
pure opium that is legally grown which is Rs.1630 per Kg. At the time
of making payment, 10% is held back. It is stated that the rate
officially fixed is for opium of 10% purity and here the purity
percentage was only 2.64% as per the FSL report. It was contended
that going by the said rate, the value of 40 Kg opium would not even
be Rs.16,000. Be that as it may, the fact is that there was no material
before the trial Court to conclude that the value of the consignment
was Rs. 40 lakhs.
Other lapses of the prosecution
87. The trial Court observed that the second IO did not do any
substantial work when the record shows otherwise. The second IO was
subordinate to the first IO although the trial Court has observed to the
contrary. The failure of the prosecution to produce the log book of the
Maruti 800 car carrying the raiding party also was not a minor lapse
that could have been simply brushed aside. Such a log could have
corroborated the prosecution version as to whether they had
apprehended the Appellant from outside the Kali Mata Mandir and at
the date and time as alleged. In the absence of production of the log
book, an adverse inference should have been drawn against the
prosecution.
88. Since the above grounds by themselves are sufficient to give the
benefit of doubt to the Appellant, the Court does not consider it
necessary to discuss the further grounds put forth by the counsel for
the Appellant regarding the inconsistencies in the versions of the
police witnesses, the failure to communicate the seizure report by PW-
10 to his superior PW-8 or the FSL Form not being exhibited in the
Court.
Conclusion
89. For all of the above reasons, the Court is of the view that the trial
Court was in error in concluding that the prosecution had been able to
prove the case against the Appellant beyond all reasonable doubt.
Having examined the evidence, this Court is of the view that the
defence of the Appellant stood probablised and that the prosecution
has failed to prove its case against the Appellant beyond all reasonable
doubt.
90. Accordingly, the impugned judgment dated 15th February 2014 of
the trial Court is hereby set aside. The Appellant is acquitted of the
offence under Section 18(b) of the NDPS Act. The bail bond and
surety bonds of the Appellant are discharged. He will be released
forthwith if not wanted in any other case.
91. The appeal is allowed in the above terms. The application is
disposed of.
92. The trial Court record be returned forthwith.
S. MURALIDHAR, J.
MAY 23, 2014
dn
