K.M. Saleem vs State
1989 Latest Caselaw 73 Del

JUDGMENT

P.K. Bahri, J.

1. The appellant-K.M. Saleem @ Raj Gopal, a resident of Sri Lanka, who has been convicted of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, on being found in possession of 940 gms of smack/heroin on February 14, 1987, at about 12.45 P.M. at International Airport Hall of Indira Gandhi International Airport vide judgment dated January 23, 1988, of Shri R.P. Gupta, Additional Sessions Judge and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- (one lakh) and in default of payment fine, to undergo further rigorous imprisonment for two years vide subsequent judgment dated January 27, 1988, has filed this appeal challenging his conviction and sentences.

2. Facts, in brief, are that P.C. Mann, Sub-Inspector (PW8) while being posted at the relevant time in Police Station I.G.I. Airport Along with Head Constable Ram Kumar (PW6) and Constable Ramesh Chand, was present in front of Arrival Hall of the said Airport and he received a secret information about the presence of the appellant outside the Departure Hall having a briefcase containing the smack. Shri M.L. Meena, SHO, (PW2) joined the raiding party and the Assistant Commissioner of Police Shri Om Prakash Arya (PW1) was also informed and he also came and joined the raiding party. PW3 Dharamvir Singh, a tax driver, who admittedly plies his taxi at that Airport was also joined and on the pointing out by the secret informer the appellant was apprehended and the briefcase was got opened which contained only the clothes whereas on suspicion that the briefcase was unusually heavy its top and bottom were broken open with the help of a knife and two packets were recovered. The packet taken from the upper bottom was found to contain 410 gms of smack and the other packet taken from the lower bottom was found to contain 530 gms of smack. The samples from each of the packets were taken and the samples as well as the remaining smack were converted into separate sealed parcels. The briefcase Ex. P1, clothes Exs. P2/1 to 3 and P3/1 to 3 and the polythene papers and smack therein Exs. P4, P5, P6 and P7, passport Ex.P8 and one open air-ticket Ex.P9 issued by Indian Airlines for Delhi to Bombay were taken into possession from the accused. Rukka Ex.PW8/A was prepared. The site-plan Ex.PW8/B was also prepared. The samples were duly sealed with the seals of the Investigating Officer as well as of the S.H.O. and the case property was deposited in the malkhana on the same day. The samples were got sent to Central Forensic Science Laboratory (for short 'CFSL') through Constable Krishan Dutt (PW5), who deposited the samples with CFSL and the report of the CFSL Ex.PA was received which depicted that contents of both the samples gave positive test for heroin and narcotene. It is also pertinent to mention that this appellant was admittedly earlier arrested on February 8, 1987, in F.I.R. No. 42/87 registered under Section 419 & 420 IPC and he remained in Jail up to February 13, 1987, when he was released on bail. At the time of his arrest in connection with F.I.R. No. 42/87, the appellant had given his name as Raj Gopal. The prosecution version was duly corroborated by all the material witnesses, namely, the Assistant Commissioner of Police, S.H.O., Public witness, Head Constable and the Investigating Officer. The learned Additional Sessions Judge has discussed the evidence in quite detail and has also noticed the inconsequential contradictions appearing in the statements of the witnesses and has come to the conclusion that the offence has been brought home to the appellant without any suspicion or doubt.

3. The learned Counsel for the appellant has at first submitted that the mandatory provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances Act have not been complied with inasmuch as the secret information which was already received by the investigating officer was not reduced into writing. It is pertinent to mention that the secret information was received by the investigating officer when he was patrolling the area and in view of the urgency of the matter he had to" take steps to arrest the appellant and he could not possibly waste his time in reducing the secret information into writing. The recovery of illicit article does not become illegal only on the ground that a particular procedural provision of the statute is not complied with. If any requirement, which must be fulfillled before effecting any search, is not complied with, that can be only taken notice of in order to evaluate the other evidence appearing on the record with regard to the recovery. If the other evidence appearing on the record is convincing enough to show that the recovery effected is true then non-compliance of any particular pre-requisites for effecting the recovery would not vitiate the recovery.

4. The learned Counsel for the appellant has submitted that no option was afforded to the appellant of having his personal search done in presence of some gazetted officer/Magistrate. The learned Counsel for the appellant forgets that a gazetted officer, i.e., Assistant Commissioner of Police (PW1) was already present in the raiding party and so, the provisions of Section 50 of the NDPS Act stood complied with and there was no question of giving any option to the appellant to get his search done in presence of any other gazetted officer. The mere fact that the Assistant Commissioner of Police had joined the raiding party does not make him an interested party so as to disbelieve him on the score that no other gazetted officer had been brought to the spot at the time of search being carried out. The learned Counsel for the appellant has pointed out that the SHO (PW2) had slated that after he had affixed his seal on the case property he had handed over the same to the public witness whereas the public witness stated that he was not handed over any seal by the SHO. It is pertinent to mention that the SHO initially had stated that he did not remember whether he had handed over his seal to the public witness. So, there is no categorical statement given by the SHO that he, in fact, had handed over the seal to the public witness. The purpose behind the incorporation of this provision in Section 55 of the NDPS Act is to ensure that the sample and the case property are not tampered with at any subsequent date. The Investigating Officer had already affixed his seals on the case property as well as on the sample and had handed over the seal to the public witness. So, even if the SHO had not handed over his seal to the public witness that would not lead to any inference that there was any possibility of case property being tampered with later on. The case property was deposited in the malkhana on the same day as is evident from the entries made in the malkhana register and proved by the Malkhana Moharrir (PW4) Head Constable Ramesh Chand a copy of the entry being Ex.PW4/A. Constable who took the samples to CFSL categorically stated mat no one had tampered with the seals. The expert, who examined the samples also mentioned in the report that the seals on the samples were intact. So, it cannot be argued mat there was any possibility of the samples being tampered with at any stage. The learned Counsel for the appellant has pointed out that it is the case of the prosecution that 10 gms were taken as sample from each of the two packets while the CFSL report shows that 7 gms approximately were found in one sample while 10 gms were found in the other sample. So, he has argued that there must have been some mischief played with one of the samples. I do not agree because the CFSL expert had not given any exact weight of the contents of the sample. He has given the quantity by approximation. So, it cannot be held that mere fact that 7 gms were found in one sample, so the sample was tampered with.

5. The learned Counsel for the appellant has then pointed out that the site-plan shows that the appellant was apprehended just outside the Arrival Hall of the Visitors Gallery while all the witnesses have stated that in fact, the appellant was apprehended inside the Arrival Gate. No question was put to the Investigating Officer or other witnesses as to how the apprehension of the appellant had been shown outside the Gate in the site-plan while in Court they have stated that the appellant was apprehended inside the Arrival Gate to enable the witnesses to explain this discrepancy. So, no benefit could be taken by the appellant in respect of this particular discrepancy.

6. The learned Counsel for the appellant has pointed out that the Assistant Commissioner of Police had stated that when he arrived, the public witness was already present with the raiding party whereas the public witness has stated that when he was joined the Assistant Commissioner of Police was there with the raiding party. I do not think that it is a material discrepancy which could throw any doubt on the prosecution case. After all such like discrepancies occur when the statements are made by the witnesses after gap of some period. PW1, PW2 and PW8 have stated that efforts were made to join the officials of the Airport Authority working at the spot but they expressed their inability to join as they were busy in their own work whereas PW3 stated that no such efforts were made by the Investigating Officer. It is not necessary that the public witness should have been aware of the efforts being made by the Investigating Officer to join some other witnesses. The fact remains that one public witness has been already joined by the Investigating Officer and it was not necessary or incumbent upon the Investigating Officer to join some other witnesses also. However, the efforts made by the Investigating Officer to join the employees of the Airport Authority proved futile. It cannot be said that those officials, who were working at that time, had no good reason for their refusal to join inasmuch as they were working on their duties at that moment. So, nothing turns on this futile effort of the Investigating Officer to join the officials of the Airport Authority in the raiding party.

7. The learned Counsel for the appellant has then pointed out that there had occurred some discrepancies in the statements of the witnesses as to the exact time PW1 remained at the spot. PW1 stated that he went away after half an hour whereas PW3 stated that no police official left the spot till the proceedings were completed. PW8 Investigating Officer had stated that the SHO and the Assistant Commissioner of Police left the spot after one hour 45 minutes. I do not think that these discrepancies have any effect on the substratum of the prosecution case. Then it has been pointed out that PW3 has stated that some of the work was carried on after shifting to a cabin located near the passengers gallery whereas PW1 stated that the proceedings were carried on at the place the appellant was apprehended. I do not think this amounts to any discrepancy because the Asstt. Commissioner of Police had left the sot after some time and there is nothing to show that after the Asstt. Commissioner of Police had left the spot the police party had not shifted to the cabin for completing some other formalities.

8. It has been also argued on behalf of the appellant that the SHO did not comply with the provisions of Section 55 of the NDPS Act inasmuch as he left the spot without taking the charge of the case property. The case property had been deposited in the malkhana on the instructions of the SHO. So, it cannot be said that the SHO had not taken the charge of the case property when the malkhana is working under him.

9. The learned Counsel for the appellant has then referred to some innocuous discrepancies appearing in the statements of the witnesses as to from where and who had procured the knife, the scales, the cloth and the polythene bags. PW1 stated that the Investigating Officer procured the knife from the Post Office and later on he went and brought the scales from the Post Office. PW1 stated that he was not aware from where the polythene bags and cloth were brought. PW2 did not remember who brought the said things but he stated that they were brought in different rounds. PW3 stated that it is the Head Constable and the Constable who had gone and brought the scales etc. from the Post Office while the polythene paper and the cloth were taken out by the Investigating Officer from his Investigating Bag, and the Investigating Officer had not gone anywhere. PW6 deposed that the knife was brought from the Post Office but he did not remember who had brought it. He stated that Ramesh Constable had brought the cloth and polythene bags from the Police Station. PW8 Investigating Officer stated that he brought the knife and the scales from the Post Office in two different rounds while he had sent the Constable to the Police Station who had brought his bag which contained the sealing material. I do not think that such discrepancies can throw any doubt on the veracity of the prosecution case. It is consistently stated by all the witnesses that the knife and the scales were brought from the Post Office. Some of the witnesses stated that the Investigating Officer brought them while one witness (PW3) stated that Head Constable and a Constable brought those things whereas the Investigating Officer had stated that he himself had brought the knife and the scales from the Post Office. It is possible that PW3 was inattentive as to remember correctly whether the said things were brought by the Investigating Officer or the Head Constable. At any rate, it is clear that the sealing material was present in the Investigating Bag of the Investigating Officer which was summoned by him through the Constable from the Police Station. I hold that these discrepancies pointed out in the statements of the witnesses are not very material.

10. The learned Counsel for the appellant has then pointed out that PW3, who is a public witness, was under the thumb of the police, so the prosecution version should be disbelieved on account of joining such a convenient witness. It is not shown from the cross-examination of PW3 that PW3 was in any manner connected with the police. Mere fact that he knew the police officials earlier would not mean that he is under the influence of the police. Nothing has come out from the cross-examination of the witnesses to show that there could be any motive for the police to falsely implicate the appellant for this offence. The appellant is not local man. So, there could be hardly any reason to foist this heavy recovery of heroin on him falsely. The learned Counsel for the appellant has pointed out that as per statement of DW1, who brought the Jail record the appellant was released from Jail on February 13, 1987 and generally the accused from Jail, who are released on bail, are let off after 7 P.M. and so, the appellant could not have gone to the Police Station to collect his personal search items on that very night. I do not understand how any dent can be considered to have been made in the story of the prosecution that on February 14, 1987, at 12.45 P.M. the appellant was found in possession of the said contraband.

11. The learned Counsel for the appellant has then pointed out that the air-ticket, which the appellant was having, would not have enabled him to take any flight for Bombay from I.G.I. Airport. It is not necessary that the appellant had gone to I.G.I. Airport for taking any flight. The fact is that he was found there carrying the briefcase which contained the heroin. It is only within the knowledge of the appellant as to why and for what purpose he had gone to I.G.I. Airport at that time. So, examining the evidence, as discussed above, I am of the firm view that the prosecution has been able to bring home the offence to the appellant beyond any reasonable doubts. I entirely agree with the reasoning given by the learned Additional Sessions Judge in his judgment for convicting the appellant for the said offence.

12. I find no merit in this appeal which I, hereby, dismiss.