Somnath vs State Through Cbi
2018 Latest Caselaw 6627 Del

$~R-28 & 29 (common order)
     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Decided on:- 1st November, 2018

+       CRL.A. 535/1999
        MUKESH KUMAR                                   ..... Appellant
                   Through:                 Mr. M.L.Yadav, Advocate with
                                            Mr. Manav Puri, Advocate

                                versus
        STATE                                           ..... Respondent
                                Through:    Ms. Rajdipa Behura, Special PP
                                            with Mr. Philomon Kani, &
                                            Ms. Kriti Handa, Advocates
+       CRL.A. 536/1999
        SOMNATH                                        ..... Appellant
                                Through:    Mr. M.L.Yadav, Advocate with
                                            Mr. Manav Puri, Advocate

                                versus

        STATE THROUGH CBI                               ..... Respondent
                    Through:                Ms. Rajdipa Behura, Special PP
                                            with Mr. Philomon Kani, &
                                            Ms. Kriti Handa, Advocates
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                        ORDER (ORAL)

1. Both the appellants stood trial, separately, on the charge for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), on the basis of two separate reports (Sessions case Nos.13/1997 and 14/1997) arising out of first information report (FIR) of Central Bureau of Investigation

(CBI) vide RC No.2/1997 registered on 28.01.1997, the gravamen of the charge against them being that on 28.01.1997 each of them had been found having in their respective possession contraband described as heroin (diacetyl morphine), the recovery allegedly made of said contraband from appellant Mukesh Kumar being in the form of three packets each of 100 gms., while the recovery allegedly made from appellant Somnath being of two packets of 100 gms. each.

2. As per the prosecution case, there was a secret information received by Mehar Singh (PW-6), Deputy Superintendent of Police (DSP) on 27.01.1997 about the involvement of these two appellants in the illicit trafficking in such contraband and this having been reduced into writing (Ex.PW-6/A). A raiding party was constituted and at a place described as Adarsh Nagar bus stand in the morning of 28.01.1997, the appellants were intercepted and, upon their search being taken, in accordance with law, the recoveries as aforesaid were made. It has been the case for the prosecution that the appellant Mukesh Kumar was carrying the three said packets in the left pocket of his trousers while Somnath was carrying the two packets as aforesaid in the right side pocket of his trousers.

3. The trial court, by the impugned judgments, each delivered on 27.09.1999 held both the appellants guilty as charged. By subsequent orders dated 29.09.1999, each of them was sentenced to rigorous imprisonment for ten years with fine of Rs.1,00,000/-, in default further rigorous imprisonment for two years.

4. The appeals have come up for hearing nineteen years after they having been preferred. The submissions of both sides have been heard at length and with the assistance of learned counsel, the record has been perused.

5. The evidence of PW-6 was restricted to receipt of secret information which was reduced into writing on 27.01.1997. For proving the recovery of contraband from the possession of the two appellants, they being in the company of each other having come to the scene of proceedings together, the prosecution placed reliance on the testimony of PW-3, PW-8, PW-9, PW-10 and PW-11. It may be mentioned there that PW-11 was the senior most officer (DSP) of the CBI, he being part of the raiding team constituted for the purpose of follow up action on the secret information that had been logged on 27.01.1997. He was assisted by PW-10, an officer of the rank of Inspector, the third CBI official who was party to the proceedings being PW-9, a constable by rank.

6. PW-3 and PW-8 were joined, as per the prosecution case, as independent witnesses. It may be added here that PW-3 was Assistance Vigilance Officer of Mahanagar Telephone Nigam Limited (MTNL) while PW-8 was working at the relevant point of time as postal assistant in the post office of New Subzi Mandi. The post office where PW-8 was on duty was in the vicinity of the place where the police proceedings leading to the recoveries which are basis of the prosecution were statedly carried out.

7. As per the recovery proceedings (Ex.PW-3/D), to which all the above mentioned witnesses are signatory, right from the time of the raiding party taking the position around the place near Adarsh Nagar Bus Stand till the arrests had been effected post the interception of the appellants, seizure of contraband, drawing of the samples and taking of personal search, etc., the raiding party had throughout remained present at the said public place only.

8. As per the case of the prosecution, PW-3 and PW-8 had been notified in advance, on 27.01.1997, and it was pursuant to the instructions that they had reported to the CBI officers in the morning of 28.01.1997 so as to accompany them to the place in question. The CBI case has been that both the said witnesses were present when the appellants were intercepted, confronted, served with notices under Section 50 of NDPS Act and, thereafter, their personal searches were taken leading to the recoveries. Both the said witnesses, however, would not support the case for the prosecution. Each of them refused to identify any of the two appellants as the persons who had been arrested in their presence and from whom any contraband recovery had been effected. Such failure on the part of independent public witnesses could have been ignored it being attributable, as is generally the case, to loss of memory. After all, they did not know any of the arrested persons from past and their interaction with them would be only for a few hours, their turn to prove the relevant facts coming after an interval of several months, if not years.

9. While PW-8 was categorical in asserting that he never joined the CBI team at Adarsh Nagar Bus Stand, his role being restricted to witnessing the police proceedings concerning the drawing of samples in the basement of the post office, PW-3 also discredited the case of CBI by testifying that he was only told that the incriminating substances had been recovered from the persons arrested who had been arrested he being actually not a witness to the process of recovery. Going by his version he was in the police vehicle when the arrestees were intercepted and it was after some time that he was taken to the place where they were being held, and shown the packets which had been "recovered". The cross examination of PW-3 and PW-8 by the prosecution could not bring out any such material as could show they having been won over or withholding the truth for some ulterior purposes.

10. Making a further dent to the prosecution version, a part of the testimony of PW-3 and PW-8 stands out which is in sharp contrast of the claim of the CBI officials, who are witnesses to the alleged seizures, and this raises serious doubts as to the reliability of the prosecution case. This may be elaborated hereinafter.

11. There is no requirement in law that the paper work relating to seizures made must invariably and without exception be prepared by the police officer in charge of investigation at the place of recovery itself. If the place in question does not afford such paper work to be readied owing to various factors such as it being road side or interference by on-lookers or miscreants, or the time of the day

(darkness) etc., nothing inhibits the investigating officer from moving to a more convenient place to reduce into writing his actions, the only expectation being that his proceedings must truthfully state the reasons for this move. Perhaps to avoid scrutiny of reasoning for shifting to safer or more convenient locations, the police proceedings, almost as a matter of practice, are drawn with reference to place of seizure only. It is, thus, often seen that police officials while attempting to prove seizure of the incriminating evidence take the position that the entire proceedings were conducted at the same very place where the suspect had been intercepted through the stage of the necessary paper work being prepared, signed and sealed.

12. Perhaps out of an anxiety as not to be found contradicting such practice or render suspect the papers prepared at the relevant point of time PW-9, PW-10 and PW-11 have deposed that the proceedings, including the recovery memo (Ex.PW-3/P) were prepared at Adarsh Nagar bus stand itself. PW-10 would go to the extent of saying that he had done so while standing at the said public place throughout, he being contradicted to an extent by PW-9 by deposing that a table and chair had been arranged from a local shopkeeper.

13. The above noted small contradiction could have been ignored but for the fact that PW-3, during his testimony, spoke about the samples being drawn and the remainder sealed in different packets, and such proceedings being reduced into writing in the basement of post office. No effort was made by the prosecutor to discredit PW-3 in this regard, not even a remote suggestion being given to the

contrary. From this, it has to be inferred that the statement of PW-3 to that extent was not being disowned. The statement of PW-3 could have been treated as a stray remark but for the fact that PW-8, an official with whom PW-3 had had no prior or subsequent contact, also spoke of he being instructed by the post master (his superior) on the morning of 28.01.1997 to go to the basement of the post office where he was expected to be a witness to the CBI officials drawing samples and the paper work being readied. The testimonies of PW-3 and PW- 8, thus, conjointly brought out that the proceedings were held by the investigating officer not at the Adarsh Nagar bus stand but in the basement of the post office where PW-8 was on duty.

14. The above contradiction, in the given facts and circumstances, cannot be treated as trivial. The unchallenged testimony of PW-3 to above effect raises serious question mark about the credibility of the version of the police witnesses which consequently cannot be accepted as wholly reliable.

15. There is one more reason why these appeals must succeed. The defence has raised the issue of infraction of the mandatory requirement of Section 50 of NDPS Act, in which context the prosecution had claimed that in spite of being served with notices informing them of their statutory right to be taken to a gazetted officer for witnessing the search, the appellants had forfeited the said right and had opted to be subjected to search by PW-11 (DSP), himself an officer of gazetted rank. This argument is also of substance, inasmuch as, PW-11 during the course of his cross-examination conceded that

he had verbally told the appellants to write on the notices under Section 50 of the NDPS Act that they did not want to be searched before a gazetted officer or a Magistrate. It was the duty of PW-11 to inform the arrested persons of their statutory rights but not to advise them as to what option they ought to take.

16. On the foregoing facts and in the circumstances, the prosecution evidence does not inspire confidence. Doubts persist as to the extent of truth in such evidence concerning the events leading to the alleged recoveries. The benefit of such doubts will have to go to the appellants.

17. For the above reasons, the appeals are allowed. The impugned judgments and orders on sentence of the trial court are set aside. The appellants, are acquitted. Fine, if deposited, shall be refunded to them. Bail Bonds stand discharged.

18. Trial court records be returned forthwith.

R.K.GAUBA, J.

NOVEMBER 01, 2018 vk