INDER DEV YADAV Vs. STATE

JUDGEMENT

(1.) INDER Dev Yadav (A -1), Sushil Parsad (A -2) and Ram Dev Mandal (A -3) impugn a judgment dated 30.03.2011 of learned Addl. Sessions Judge in Sessions Case No. 147/08 arising out of FIR No. 438/08 PS Jahangir Puri by which they were convicted under Section 20 Narcotic Drugs & Psychotropic Substances Act (in short NDPS Act). By an order dated 06.04.2011, they were awarded RI for ten years with fine Rs. 1,00,000/ - each.

(2.) BRIEFLY stated, the prosecution case as set up in the chargesheet was that on 26.08.2008 secret information was received by SI Bhasker Sharma at his office (Crime Branch) at 11.00 A.M. that A -1 who was main supplier of ganja would come along with his associates in a mini truck No. UP 78 T 2234 at Outer Ring Road, Bhalsava Red Light. The information reduced into writing vide Daily Diary (DD) No.6 (Ex.PW -1/A) shared with senior police officers. On their directions, a raiding party was organised and the police team left along with the secret informer in a private vehicle Qualis vide Daily Diary (DD) No.7 (Ex.PW - 1/B) at 11.30 A.M. and reached at the spot at 12.00 (noon). Request was made to four / five passersby to join the raiding team but none agreed. At around 12.30 P.M. a mini truck No. UP 78 T 2234 came from ISBT side and was parked about hundred meters away from the red light. The secret informer recognised A -1 sitting in the truck. The police team waited for someone to take delivery of the contraband. When none appeared to take delivery, at around 01.00 P.M. the truck was raided and the appellants were apprehended. Notices under Section 50 NDPS Act were served to them. On enquiry, the appellants disclosed that they had concealed ganja in a cabin in the truck. After opening the nuts of the cabin, fourty parcels were recovered. The total weight of the contraband came to 312.600 kg. Samples were taken and sealed. The Investigating Officer prepared rukka (Ex.PW -1/A) and sent through HC Lakvinder for lodging First Information Report. At 05.30 P.M., SI Sanjay reached the spot and took over the investigation. He recorded the statements of the witnesses conversant with the facts. The accused persons were arrested. Further case of the prosecution was that on 28.08.2008, on the basis of secret information, Jai Kishan Sahani @ Buti Lal (since PO) was arrested and certain documents were recovered from his possession which were seized vide seizure memo (Ex.PW -5/A). During investigation, the sample pullandas were sent to Forensic Science Laboratory for examination and its report was collected. After completion of investigation, a charge -sheet was submitted against the appellants; they were duly charged and brought to trial. The prosecution examined ten witnesses to substantiate the charges. In 313 statements, the appellants pleaded false implication and denied their involvement in the crime. They examined DW -1 (Sanjiv Singh) and DW -2 (Rita Devi) in defence. On evaluation of the evidence and after considering the rival contentions of the parties, the Trial Court, by the impugned judgment, convicted the appellants as mentioned previously. Being aggrieved and dissatisfied, they have preferred the appeal.

(3.) THE appellants conviction is based upon the testimonies of police personnel / officials alone. No independent public witness was associated at any stage of the investigation. No reasonable or plausible explanation has been offered by SI Bhasker Sharma, Incharge of raiding team and SI Sanjay who took over the investigation subsequently for not associating any public witness despite having ample time and opportunity. The proceedings were conducted at the spot till around 12.00 (night). Non -joining of independent witness to the recovery creates serious doubt about the genuineness of the prosecution case. It is no rule of law but of prudence that public witnesses should be joined. This is desired to lend authenticity and credibility to the search and the recovery. Of course, it is not an absolute rule. The evidence of police witnesses without slightest independent evidence requires to pursue with great care and caution.