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TMI Blog2017 (2) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... pply of narcotics drugs i.e. heroin, a contraband substance. On 19-7-2008, they both were apprehended near Yamuna Vihar Bus Depot being in possession of 8.932 kg. heroin (having purity from 0.97% to 34.9%). 3. On 18-7-2008 at about 5.10 p.m., PW-1 (Sujeet Kumar), Intelligence Officer, received a secret information that two individuals would bring some narcotics concealed in a silver colour Toyota Innova car bearing registration No. PB 08 BD 9648 to deliver it to someone at Yamuna Vihar Bus Depot, Delhi at about 1.30 a.m. on the night intervening 18/19-7-2008. The secret information (Ex. PW-1/A) was reduced into writing and put up before PW-2 (P.K. Singh). PW-3 (R. Roy) was instructed to take necessary action for seizure of the contraband substance. A raiding team was organised and two independent public witnesses - Azim Khan and Annu were associated therein. At around 1.30 a.m. the aforesaid vehicle was found coming at the spot. It was occupied by two male individuals who parked the vehicle opposite bus depot and remained seated therein. The DRI officials continued to keep a discreet watch over them. The individuals waited for 15 - 20 minutes and when none arrived, the driver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants in the Court. 5. In order to establish its case, the prosecution examined fourteen witnesses in all. In 313 Cr.P.C. statements the appellants denied their involvement in the crime and pleaded false implication. They examined DW-1 (D.P. Singh) and DW-2 (Jyoti Kumar) in defence. The trial resulted in their conviction under Section 21(c) NDPS Act. It is relevant to note that both the appellants were acquitted of the charge under Section 29 of the NDPS Act and DRI did not challenge the said acquittal. 6. I have heard the learned counsel for the parties and have examined the file. Learned counsel for the appellants urged that the Trial Court did not appreciate the evidence in its true and proper perspective. It ignored vital discrepancies and infirmities in the statements of the prosecution witnesses without cogent reasons. It overlooked that material independent public witnesses were not produced during evidence. The case property was tampered with. Learned counsel for the DRI urged that there are no valid reasons to disbelieve the testimonies of official witnesses particularly when in 313 Cr.P.C. statement A-1 admitted about their apprehension during their presence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Summons were issued to both these witnesses, however, they were found not residing at the given addresses. Consequent to that, DRI counsel opted to drop both these witnesses from examination. No genuine efforts were made by the Investigating Officer to find out where both these witnesses had suddenly disappeared. It is relevant to note that both these witnesses were allegedly available to PW-3 (R. Roy) when pursuant to the summons (Ex. PW-3/R and Ex. PW-3/S) under Section 67 of the NDPS Act, they had appeared before him on 22-7-2008 to record their statements (Ex. PW-3/T and Ex. PW-3/U). It is mystery as to by what mode summons were served upon both these witnesses. The individual who had served the summons at the given addresses has not been examined. It is curious to note that when both these witnesses were available to the Investigating Officer at the given addresses on 22-7-2008, why they could not be traced or located when summons were issued for their appearance by the Court. The Investigating Officer did not examine any witness from the said locality to ascertain if both these witnesses had ever lived at the given addresses or when they vacated it or where else they had shif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dress and serve the summons on such correct address. 26. The lapse of the NCB points to another difficulty. The summons issued to the panch witness in the very first instance by the NCB during investigation, gave the address as E-15/12, G.T.K. Road, Delhi. The summons was dated 15th December, 2007. Rajiv Chauhan was asked to appear before the NCB on 4th January, 2008. He is stated to have appeared pursuant to the said summons. The NCB failed to explain how it managed to get the summons in the first instance served on Rajiv Chauhan at an address that was either incomplete or false. 28. Nevertheless, the inescapable conclusion is that the NCB having failed to produce the named panch witness who was shown as being present at the time of arrest and seizure, there remains a serious unexplained doubt whether such a witness in fact existed. The Trial Court appears to have overlooked the above features of the prosecution case and easily accepted the explanation that the witness was perhaps not served with the summons in the first instance by post. That was a surmise which was not warranted. In the process, the trial Court overlooked its own orders requiring service of summons u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar observations in 'Rakesh Kumar Mehra and Ors. v. State and Ors. - MANU/DE/2460/2015 in Crl. A. 1360, decided on 24-8-2015. In the said case also, DRI had allegedly associated two independent public witnesses - Sandeep Singh and Akshit @ Sonu, however, they could not be located despite so-called efforts made by the prosecution. Co-incidentally, the accused therein were apprehended on the basis of secret information from reliable source that a white colour Maruti 800 car bearing Registration No. JK 02G 4126 occupied by two male persons would cross Singhu Border on GT Karnal Road to enter Delhi between 09.30 a.m. to 10.30 a.m. and some narcotic drug was concealed therein. The said information was also reduced into writing and was placed before Mr. P.K. Singh (PW-2 in the present case). Incidentally, PW-12 (Jyothimon) in the instant case was the Investigating Officer in the said case and he was directed to take appropriate action in the matter immediately by PW-2 (P.K. Singh). It is again relevant to note that the Investigating Officer R. Roy (PW-3) was one of members in the said raiding team. The accused persons therein were also brought in similar circumstances to the parking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Admittedly PW-2 (P.K. Singh) before whom the secret information was put up by PW-1 (Sujeet Kumar) was not his immediate superior officer/appraisal. PW-1 (Sujeet Kumar) did not explain as to why he opted to put up the secret information only before PW-2 (P.K. Singh) posted as Deputy Director in DRI Headquarters. No written document has been placed to infer if PW-1 (Sujeet Kumar) was required to report only to PW-2 (P.K. Singh) and was working directly under him. 13. The secret information (Ex. PW-1/A) was written on a loose paper; it does not bear any official number. It was not reduced into writing in a official register duly maintained in the office. It is unclear as to by what mode PW-2 (P.K. Singh) directed PW-3 (R. Roy) to take up appropriate action for seizure of the contraband. The secret information did not reveal the broad-features of the occupants of the car; from where the vehicle was to arrive and who would be driving it. The secret information was not verified to ascertain its authenticity. Strange enough, as per secret information, the vehicle was to arrive at 1.30 hours on the night intervening 18/19-7-2008, and it arrived at the very spot exactly at that time. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant person. No Call Detail Record has been collected. It did not emerge if prior to the apprehension, the appellants were in constant touch with the supplier of the contraband or with the person to whom the contraband was to be delivered. It was also not verified as to from where the vehicle originated, what was its route. The Investigating Officer was unable to disclose as to which vehicle was used to travel by the members of the raiding team and who was its driver. Log book regarding the movement of the official vehicle has not been produced. The accused persons were not produced before the Court soon after their arrest on 19-7-2008. They were allegedly taken for medical examination at late hours on 19-7-2008; put up in the lockup of the Darya Ganj Police Station and could be produced before the Court only on 20-7-2008. The 'seal' used to the seal the case property did not belong to the complainant; it did not bear his 'initials'. The seal was allegedly of "Directorate of Intelligence Officer". The case property remained allegedly in occupation of PW-8 (K.K. Sood), Assistant Director DRI Headquarters, New Delhi till 21-7-2008 when the sealed trunk containing the case property we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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