Sunil Sharma v. State

1. Vide the present petition the petitioner seeks directions thereby quashing of order dated 18.02.2017 passed by Special Judge NDPS-02, (Central), Tis Hazari Courts, Delhi in F.I.R. No. 82/2015 registered at P.S. Crime Branch whereby an application bearing M.A. No. 35 / 2016 under 2020:DHC:122 section 91 Cr.P.C. was disposed off.

2. The case of the prosecution is that on 30th May 2015 at around 12:45 pm, the Police of P.S. Crime Branch, Prashant Vihar Office, Delhi had received secret information from its informer that one person namely Sunil Sharma, petitioner herein, who is dealing in the trade of medicines and is having a Shop on the Second Floor, Ram Gali, Bhagirath Palace, Delhi was going to come to his shop between 2:00 P.M. to 3:00 P.M. with a consignment of Ephedrine. The said Sunil Sharma is into the illegal trading business of Ephedrine. Consequently, on the instructions of the superior officers, a raiding party was constituted consisting of SI Sanjay Kumar, HC Rohtash, HC Shiv Charan, Ct. Ravinder and Ct. Jitender, of Spl. Team Crime. At 1:15 P.M, the raiding party had left from Crime Branch office, Prashant Vihar, Delhi on a vehicle with IO Bag, Field Testing Kit and weighing machine and had reached at the spot, as told by the secret informer, on 30.05.2015 at around 2:20 P.M. and had laid the trap. At around 2:35 P.M., a person wearing white shirt and brown pant carrying in his hand ‘a black coloured polythene bag’ came and tried to climb the stairs of the building. He was identified by the secret informer to be Sunil Sharma, the petitioner herein, and was carrying Ephedrine with him. At about 2:37 P.M., when the said person was about to enter his shop, he was apprehended by the police and the black polythene bag was taken in custody and upon interrogation the said person revealed his name to be Sunil Sharma, R/o C- 3/57, Ashok Vihar-II, Delhi.

3. It is further the case of the prosecution that the material carried by Sunil Sharma in the black polythene bag was checked by the raiding party on the Field Testing Kit and after having found Ephedrine, weighing around 10.[2] Kg, it was confiscated and thereafter the raiding party withdrew from the said material two samples of 250 gms. each. At around 6:40 P.M., the information of seizure of Ephedrine by the raiding party along with the copy of the seizure memo was sent to the S.H.O. / Crime Branch for the registration of the case and a request was made to depute another officer for investigation. At about 8.05 P.M the information was received at the Police Station Crime branch, Delhi and consequent to that an F.I.R bearing NO. 82/2015, was registered by the police of Police Station Crime Branch, Delhi. SI Dinesh Kumar took over the investigation from SI Sanjay Kumar to conduct further investigation in this case. SI Dinesh Kumar after reaching the spot made inquiries from SI Sanjay Kumar and on his instance, prepared a ‘Site Plan’ on the spot and had recorded statement of HC Shiv Charan after making inquiries from him. SI Dinesh Kumar, after reaching the spot, made inquiries from Sunil Sharma, (petitioner herein) at about 2:30 A.M. The petitioner was arrested and remained in detention of the police at Police Station Crime Branch at Bhagirath Palace, Chandni Chowk, Delhi from 2:37 p.m. of 30.05.2015 up till 2:30 a.m. of 31.05. 2015, the place where the business establishment of the petitioner was situated. It is also the case of the prosecution that the intimation of arrest was given to the son of the petitioner.

4. On 04.01.2016 challan of the case F.I.R No. 82/2015 was filed in the Court and consequent upon the receipt of summons, the petitioner appeared before the designated Court and accordingly on 22.02.2016, charges under Section 9A read with Section 25A of the N.D.P.S. Act were framed and the matter was adjourned for 18.04.2016 for prosecution evidence. Thereafter, two witnesses were examined, out of which cross examination of one of the witnesses of the prosecution was deferred after being partially cross examined, for the purpose of filling of appropriate application seeking directions from the Trial Court to the prosecution for placing on record the original electronic file of the F.I.R of this case bearing no. 82/2015, dated 30.05.2015.

5. It is further the case of the prosecution that during the course of the trial of the case FIR no. 82/2015, the prosecution on 18.04.2016 examined HC Jaipal Singh as PW-1 to prove the FIR and after recording of his examination in chief and part cross examination, he was specifically asked to produce the original electronic file of this case. Due to his inability to provide the same, a request was made to the Trial Court to defer the cross examination of the witness, HC Jaipal Singh, as the accused wanted to file a proper application under Section 91 Cr.P.C. for obtaining the original electronic record of the FIR. On 16.07.2016, the petitioner, in order to falsify the prosecution version and demolish the story of the prosecution, filed three applications under section 91 Cr.P.C., one of which was M.A. No. 35/2016 seeking directions from the Trial Court to the Prosecution/Investigating Agency for procuring and placing on record the original electronic file of the FIR of this case. Pursuant to the application of the petitioner, number of opportunities were granted to the investigation agency to place on record the original electronic record of the FIR. Again on 07.01.17, the Court issued notice to the investigating agency, so that the application bearing no.35/16 may be heard and disposed of.

6. The Trial Court, vide impugned order disposed of the application of the petitioner as under:- "As regards application no. 36/16, it may be mentioned here that PW-1 HC Jaipal Singh had got registered FIR through computer operator. It was not recorded by PW[1] himself. Even otherwise, it is submitted by Ld. Addl. PP that even the computer operator would not be able to provide properties of the file containing the FIR, as he merely recorded on the system provided to him. Since PW[1] HC Jaipal Singh himself did not record the FIR, rather he got it recorded through computer operator, he would not be able to provide particulars of the concerned FIR file, so registered online. As regards computer operator, he too would not be able to provide for any such original electronic file, the reason being that he simply typed on the computer made available to him, while the data is fed online and goes to the server. In view of this, application filed by the accused seeking production of original electronic file pertaining to the FIR, is hereby Dismissed.”

7. It is pertinent to mention here that the respondent/State filed reply in Crl.MC 1851/2017 along with CDRs of the petitioner, his son and his employee and on the basis of the said reply, the application of the petitioner was dismissed. However, in reply, it was stated that the information for registration of FIR was fed into the computer system and thereafter the same was stored on the server and hence, the original electronic file containing the FIR with its properties cannot be placed on record. The FIR was fed into the computer installed at PS Crime Branch on 30.05.2015 and the FIR was registered using CIPA system but now the CIPA system is not being used and instead, CCTNS project is in operation with effect from 01.07.2015 and due to this transition from CIPA to CCTNS, the original electronic file of the FIR in question, is no longer available.

8. The State further replied that the requirement in law is that the copy of F.I.R. is to be supported by a certificate under Section 65 (B) of the Indian Evidence Act, 1872. Further, recording of the information on the basis of rukka, the contents of rukka are fed into the same online and FIRs are thereafter registered, and as such, there is no requirement in law that original electronic file containing the F.I.R. is to be placed on record.

9. During hearing of the present case on 20.11.2019, Mr. Kirti Uppal, learned senior counsel for the petitioner submitted that the learned Trial Court has lost the sight of the fact that the liability and availability are two different aspects and it was never said that the data was not available. Moreover, it was not pleaded that the data has been destroyed. Accordingly, Ld. Counsel submitted that relevant data can prove the falsity of the case of the prosecution and goes to the root of the matter and the same cannot be brushed aside in a casual manner especially when the concerned ‘Record Keeper’ of the data is not bringing records despite directions of the Court. As such, the impugned order suffers from conjunctures and surmises, hence the same is liable to be set aside.

10. Learned Senior counsel also contended that the learned Trial Court failed to appreciate the contention of the petitioner that allegations of the prosecution are that call details and tower location of mobile phones will prove the presence of the holders of mobile numbers at the places which will falsify the story of the prosecution and can only be proved by placing on record the data as prayed. It cannot be concluded that the same is not available without directing the service provider to place on record the statement on oath and permission to the accused to cross examine the person concerned to test the veracity of the said statement, as it is vital right of the accused and the same cannot be taken away in summary manner. Especially, when it clearly falsifies the contents of the stand of prosecution, this clinching evidence will help the Court to come to a logical conclusion. Further, the Trial Court failed to appreciate that prosecution has intentionally and deliberately not placed on record the affidavit and its statement on oath, however, the version of the Prosecution has been believed in most casual manner and resultant of that, true facts cannot be brought on record. The Petitioner wanted prosecution to place the aforesaid documents on record and the endeavor of the petitioner is to bring primary evidence on record which is not only admissible, but also clinching to prove/dis-prove the case of the prosecution. As such, the impugned order suffers from material irregularity, hence the same is liable to be rejected.

11. Mr. Shailendra Babbar, learned counsel for the petitioner submitted that when a file is generated in the computer, the same is saved with its properties as to at what time and date the same is created, the date of modification and access of that file and to see on which date and at what time the F.I.R. in question was registered.

12. He further contends that the case of the prosecution is that the file was not available due to the transition period from shifting of electronic record from CIPA system to CCTNS. Then, it was incumbent upon the prosecution to record a DD entry to that effect as to how many such files were not available, but on this count, no such DD entry is available.

13. It is pertinent to mention here that in the certificate issued under section 65-B of Indian Evidence Act, filed along with challan dated 22.12.2015, stated as under: “It is certified that document bearing FIR No. 82/15 is a computer print out. The same has been obtained on- the basis of information fed into the computer installed at P.S. Crime Branch on 30.05.15 while the same was being used in routine manner for the purpose of feeling in the similar category, of information and while-the said computer was under my lawful control. It is further certified, that the nothing adverse happened during this period so as, to cause any error regarding the information so fed in the computer.”

14. Accordingly, the question arose in the mind of this Court, if the certificate based upon the F.I.R. mentioned above is issued, which is on the judicial file, then why the F.I.R. is neither in the hard disk nor on CCTNS server.

15. Moreover, as per the reply filed by the respondent, the F.I.R. was registered in May, 2015 and was shifted from CIPA to CCTNS project in July, 2015, thus the case of the prosecution is that during the period from May, 2015 to July, 2015, the electronic file was not available. Then, how in December, 2015 certificate under Section 65 B of Evidence Act was filed along with the charge sheet thereby conveying that the said system is still under control of person who has issued the said certificate.