RAJESH KUMAR Vs. STATE OF NCT DELHI

JUDGEMENT

(1.) Rajesh Kumar @ Sanjay (A-1), Daya Ram (A-2) and Mukesh Kumar (A-3) impugn a judgment dated 29.11.2010 of learned Addl. Sessions Judge in Sessions Case No.30A/09 arising out of FIR No.241/07 PS Sarojini Nagar by which A-1 and A-3 under Sections 20(b)(ii)(C) of the NDPS Act and A-2 under Sections 20(b)(ii)(B) of the said Act were convcited; they all were further convicted under Section 29 of the said Act. By an order dated 07.12.2010, they were awarded various prison terms with fine. The substantive sentences were to operate concurrently.

(2.) Briefly stated, the prosecution case as reflected in the chargesheet was that on the night intervening 14/15.05.2007 at around 03.30 A.M. near Kamal Cinema picket and B-4, Safdarjung Enclave, Delhi, the appellants were found in possession of 29.800 kg, 10.450 kg and 25.600 kg of ganja respectively when they were travelling in a TSR No. DL-1RE- 2450. During investigation, statements of the witnesses conversant with the facts were recorded. The case property along with FSL form was deposited in the malkhana. Mandatory procedure prescribed under the NDPS Act was followed. The exhibits were sent to Forensic Science Laboratory. After completion of investigation, a charge-sheet was filed against all of them in the Court; they were duly charged and brought to trial. The prosecution examined thirteen witnesses to substantiate the charges. In 313 statements, the appellants denied complicity in the crime and pleaded false implication without examining any witness in defence. The trial resulted in their conviction as aforesaid. Being aggrieved and dissatisfied, the appellants have preferred the appeals.

(3.) I have heard the learned counsel for the parties and have examined the file minutely. The appellants' conviction is primarily based upon the testimonies of the police officials only. Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of the police officials. Sometimes it becomes highly difficult for the police officials to associate independent public witness for various reasons. At the same time, it is undoubtedly true that joining of independent public witness is not a mere formality. Simply saying by the police witnesses that the independent public witnesses were not available without any evidence to that effect would not be suffice. The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits. In the instant case, despite availability of independent public witnesses, no genuine and sincere efforts were made by the Investigating Officer to associate them. The explanation given by the Investigating Officer does not inspire confidence. The testimony of the police officials requires to be perused with great care and caution.