Geeta vs State (Delhi Administration)
1989 Latest Caselaw 114 Del

JUDGMENT

Bahri, J.

(1) This appeal has been brought against order of the Additional Sessions Judge dated 26/11/1988 by which he convicted the appellant for an offence punishable under Section 21, N.D.P.S. Act and the subsequent order dated 30/11/1988 by which he sentenced her to undergo rigorous imprisonment for 10 years and to pay a fine of rupees one lac and in default, further undergo rigorous imprisonment for 2 years.

(2) According to the prosecution case S.I. O.P. Chauhan, PW-6 then posted in Police Station Delhi Cantt. on 22/5/1986 was patrolling the area accompanied by Constables Paras Ram and Mahabir Singh and had reached near railway gate of Brahmpun and while proceeding to Raghunagar at about 4.30 P.M. he received secret information that one woman was present near the drain of Sitapuri having heroin with her. He constituted the raiding party comprising of his two constables and allegedly requested 5 or 6 passers by to join the raiding party who expressed their inability and had gone away without disclosing their names and addresses and one Deena Nath, PW-5 joined in the raiding party.

(3) On the pointing out of the secret informer the appellant was apprehended and she was found carrying in her right hand a yellow colour small 'theli' and it was found to contain 15 small paper packets and each packet was found to contain heroin. It was weighed and found to be 3 grams and then the appellant was given choice to get herself searched in the presence of any gazetted officer but she declined the option and after separating were gram, of heroin as sample, the sample as well as the remaining heroin one sealed in the separate parcels and were sealed with the seals of the I.O. and the seal was handed over to the public witness, and the case was got registered.

(4) The case property was deposited in the Malkhana and the sample was got sent to C.F.S.L. and the report of the C.F.S.L. Ex.P 6/B was received showing that the contents of the sample gave positive test for heroin.

(5) There have appeared certain serious lapses in evidence of the prosecution which, in my opinion, throw lot of doubt on the truthfulness of the prosecution case. Section 50(4) of the N.D.P.S. Act lays down that no female shall be searched by any one excepting a female. The documents prepared by the 10. at the spot do not show that any female was called for getting the personal search of the appellant carried out. The personal search memo of the appellant proved in the case does not bear signature of any female witness i.e. Ex. PW4/A which is signed by the two constables and Deena Nath. The contents of the personal search memo also do not indicate that any female was called for taking appellant's search. Realizing this particular lapse appearing in the prosecution case, the prosecution tried to cover it up by making the witnesses to say that in fact an un-known female who was passing by was requested to take personal search of the appellant and she after helping in taking personal search of the appellant went away expressing her inability to become a witness in the case. This story introduced for the first time in the statements of the prosecution witnesses which is totally against the document prepared on the spot can hardly be given any credence. It is also to be mentioned here that under Section 50 of the Act an option has to given to the person whose search is to be taken that if the said person required the person can be taken without unnecessary delay to nearest gazetted officer or nearest Magistrate. This option is stated to have been given to the appellant after the investigating officer had apprehended that appellant and had also made the recovery of the Drug in question. So, the option given after effecting the recovery to the appellant was on the face of it an illusory option which was meaninglesss. Apart from this fact I find that the public witness who has been joined is not an independent witness. He admits to have been joined as a witness in five or six other cases of the same police station. The learned counsel for the appellant has also drawn my attention to certified copy of the judgment in S.C. No. 99 of 1988-; State v. Sheela pertaining to Fir No. 203/86 of Police Station Delhi Cantt. wherein also Deena Nath was joined as a witness by the same 1.0. and same type of case was put up against Sheela which was not believed by the Additional Sessions Judge. It is also admitted that this Deena Nath is well known to the appellant and is having his house adjacent to the house of the appellant. So, the possibility of this Deena Nath having some animas against the appellant cannot be overlooked. Deena Nath claims that he is a special police officer and thus is duty bound to help the police in becoming witness in police cases. Nothing has been brought on record to show that he had been appointed, a special police officer by some competent authority. At any rate, the discrepancies noticed above by me appearing in the prosecution case throw a lot of doubt regarding the version of the prosecution. The appellant is hence liable to be acquitted. A contention was raised by the learned counsel for the appellant that in view of Section 80 of the Act. the provisions of Drugs and Cosmetics Act 1940 and the rules made there under arc also applicable to the samples being taken under the present Act. He referred to Section 23 of the Drugs & Cosmetics Act 1940 The Section shows that if an Inspector takes any sample of a drug or cosmetic under this Chapter, he has to lender the fair price thereof. It is evident that the drug of which the sample is to be taken under Section 23 has to come within the definition of Drug given in that Act. Under Section 3(b) drugin elude all medicines. Obviously, a medicine can be sold as there is no legal bar in selling the medicine and the Inspector taking sample of such a medicine has to offer a fair price. The narcotic drugs defined in the N D.P.S. Act are not meant to be sold. The mere possession of the prohibited drugs defined in N.D.P.S. Act is an offence. So, there is no question of the inspector purchasing any such sample from the person concerned in possession of the prohibited drug. Moreover, there is no question of sampling being done in the manner the sampling is to be, done under the Drugs & Cosmetics Act in as much as under the said Act, one of the samples has to be given to the accused. If a sample of the prohibited drug is given to the accused it would amount to making that accused in possession of a narcotic drug which by itself is an offence under the N.D.P.S. Act. So, the procedure of sampling laid down in Section 23 of the other Act obviously cannot be followed while taking the samples under the N.D.P.S. Act. So, the procedure given in Section 23 on the face of it is not applicable.

(6) In view of the above discussion I allow the appeal and set aside the conviction and the sentences of the appellant and acquit the appellant.