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High Court of Delhi
S. MURALIDHAR, J.
Om Prakash
Versus
State
CRL. A. No. 453 of 2014 & Crl. M.(B) No. 763 of 2014
Decided On : 23-05-2014
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 18(b), 42, 43, 50 - Contraband - Search and seizure - Non-compliance of provision - Mandatory requirement - Notice under Section 50 of the NDPS Act 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 - Accused was not taken to the nearest Police Station but to one that was 20 Kms away at Shakarpur - Mandatory requirement under Section 50 of the NDPS Act has not been observed by the prosecution - 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 - Unless the details of the seized substance are noted at the earliest opportunity, there is every possibility of the samples being tampered with - Three plastic dibbas were marked with A, B and C at the spot were not found in the Court when opened - There was no explanation for this - This does give rise to doubts about the preservation of the seized samples - There is doubt about the seals used to seal the pullandas were in fact deposited in the malkhana - Failure of the prosecution to produce the log book of the Maruti 800 car carrying the raiding party also was not a minor lapse - Benefit of doubt has been given to the Appellant - Held, trial Court was in error in concluding that the prosecution had been able to prove the case against the Appellant beyond all reasonable doubt - Impugned judgment of the trial Court is set aside.
Based on the provided legal document, the key points are as follows:
The prosecution's case was based on the recovery of 40 kg of opium from a vehicle driven by the Appellant near Kali Mata Mandir. The evidence included seizure of contraband, sample collection, and forensic analysis confirming the presence of opium constituents (!) (!) .
The investigation involved a raid based on secret information, and the Appellant was apprehended at the scene. Notices under Section 50 of the NDPS Act were served, but they did not specify that the Appellant could be taken to the nearest Magistrate or gazetted officer, which was a procedural lapse (!) (!) .
There were procedural deficiencies, including non-compliance with Sections 52 and 52A of the NDPS Act regarding the deposit and proper documentation of the seized contraband, seals, and inventory, raising doubts about the integrity of the evidence (!) (!) .
The site plan prepared by the prosecution was questioned for its accuracy, as it did not accurately depict the location and surroundings, and the presence of the vehicles in the alleged parking area was doubtful given the area’s crowded and blocked conditions (!) (!) .
The defense challenged the entire case as fabricated, alleging illegal abduction, conspiracy, and false evidence planting. Witnesses and evidence suggested that the Appellant and his brother were abducted from Rajasthan and brought to Delhi, with claims of ransom payments and collusion among police officials (!) (!) .
The evidence regarding mobile phone call records (CDRs) was critical, with defense witnesses providing CDRs indicating the involvement of police officers in Rajasthan and Delhi, supporting the claim of abduction and conspiracy. The absence of CDRs for some police officials was noted as a procedural lapse (!) (!) .
The trial court’s judgment was challenged on multiple grounds, including the credibility of evidence, procedural lapses, and the possibility of false implication. The court noted the lack of independent witnesses, discrepancies in the site plan, and doubts about the authenticity of the seizure process (!) (!) (!) .
The court emphasized that procedural safeguards, such as proper recording of grounds of belief, timely documentation, and adherence to statutory requirements, are essential. Non-compliance, especially with Sections 50, 52, and 52A, could be fatal to the prosecution's case (!) (!) (!) .
Ultimately, the court found that the evidence was insufficient to prove the case beyond a reasonable doubt, citing procedural irregularities, doubts about the evidence's integrity, and the credibility of the defense’s claims. The benefit of doubt was given to the Appellant, leading to acquittal (!) (!) .
The impugned judgment of conviction was set aside, and the Appellant was ordered to be released, with all bonds discharged. The appeal was allowed on these grounds, and the case was remitted accordingly (!) .
These points collectively highlight procedural lapses, doubts about evidence authenticity, and the significance of procedural safeguards in the case.
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
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