Mohd. Asif vs State (Delhi Admn.)
1991 Latest Caselaw 8 Del

JUDGMENT

1. On 15th March, 1989 the following charge under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) was framed against Mohd. Asif by an Additional Sessions Judge, New Delhi :-

"That on 4-10-88 at about 5 p.m. Chowk Kirby Palace, Delhi Cantt. within the jurisdiction of P.S. Delhi Cantt. you were found in possession of 100 grams of Heroin, a manufactured drug.

And thereby you committed an offence punishable under section 21 of NDPS Act and within my cognizance ......."

2. Mohd. Asif pleaded not guilty to the charge and claimed trial.

3. In support of this case prosecution examined eight witnesses. The plea taken up by Mohd. Asif during the recording of his statement under section 313 of the Criminal P.C. (for short the Code) was of complete denial. It was further pleaded by him that he has been falsely implicated and no independent witness was present at the time of the alleged recovery. He examined five witnesses in defense.

4. Mohd. Asif was found guilty of the offence under Section 21 of NDPS Act and was sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1 lac or in default to undergo further R.I. for one year by Shri S. L. Khanna, Addl. Sessions Judge, New Delhi vide judgment and order of 29th August, 1990.

5. Feeling aggrieved from his conviction and sentence Mohd. Asif has filed this appeal.

6. It would be necessary at this stage to refer to the prosecution story in brief before considering the arguments advanced at the Bar.

7. On 4th October, 1988 ASI Maharaj Singh accompanied by ASI Kartar Singh and Constable George Topno was present near chowk Kirby Palace when he received a secret information that one person resident of Chandni Mahal would come to Kirby Palace by bus and would proceed to Sagarpur to supply smack to Sansis. Accordingly, a raiding party was organized by ASI Maharaj Singh in which he joined the Police officials present with him. Dharan Singh s/o Shri Dayaram met the police officer by chance who on request agreed to join the raiding party.

8. On that day at about 5-00 p.m. Mohd. Asif was apprehended at the instance of the informer who got perplexed and stated that smack was available with him. At the instance of ASI Maharaj Singh, Shri G.C. Dwivedi AC Delhi Cantt., a gazetted officer was called in whose presence Mohd. Asif was searched. Two pudiyas recovered from the appellant was found to contain smack being 50 gms. each. Five gms. was separated from both the samples and thereafter the two samples and the remaining smack in two pudiyas were separately sealed with the seal of 'MS'. CFSL form was also filled up and these articles were taken into possession by ASI Maharaj Singh. A rukka was sent to P.S. Delhi Cantt. upon which FIR 338 was recorded.

9. Statements of witnesses were recorded and Mohd. Asif was arrested. He was produced before the SHO who affixed his seal parcels and the case Property was deposited with Moharrar Malkhna.

10. Sample sealed parcels were sent to CFSL wherefrom report was received that the samples gave positive test for heroin. Investigation revealed commission of offence under section 21 of the NDPS Act by the appellant and so was challaned.

11. I have heard Shri M. S. Siddique learned counsel for the appellant and Shri K. G. Sharma, Addl. Standing Counsel for the respondent. I have the also carefully gone through the records.

12. Learned count for the appellant has has been a submitted that there has been a non-compliance of mandatory provisions contained in S. 50 of NDPS Act inasmuch as the appellant was not afforded any opportunity of being searched in the presence of a gazetted officer. He has, thus, submitted that this ground alone is sufficient to acquit the appellant. Reliance in support of this submission has been made on the statement of Constable George Topno (P.W. 8). I have given my thoughtful consideration to this submission and have examined the evidence in detail. I have no hesitation in coming to the conclusion that this argument is not based on facts on record and, thus, has to be rejected.

13. All that is required by S. 50 of the NDPS Act is that when any person apprehended under section 42 or 43 of the Act is to be searched, such Person, if so required, shall without unnecessary delay be taken to the nearest gazetted, officer of any department or to the nearest Magistrate and he shall only thereafter be searched in the presence of the said officer. According to the prosecution story immediately after Mohd. Asif was apprehended ACP G. C. Dwivedi was called at the spot and search was conducted in his presence. A perusal of the rukka Ext. PW-2/A shows that immediately on being apprehended the appellant disclosed about the availability of smack with him and thereafter the ACP was summoned. Prosecution has examined ASI Maharaj Singh (P.W. 2), Dharam Singh (PW 7) and constable George Topno (PW 8) to prove that the appellant was apprehended and thereafter was searched in the presence of ACP G. C. Dwivedi and recovery was effected. Their statements stand corroborated by PW. 1 Shri Girish Chand Dwivedi ACP who has made a categorical statement that the appellant was searched by ASI Maharaj Singh in his presence.

14. Learned counsel for the appellant has placed reliance upon the testimony of constable George Topno PW 8 who has during cross-examination stated that "the ACP reached at the spot and when he reached the search had already been conducted by the Investigating Officer ......... It may, however, be noted that constable George Topno (P.W. 8) in his statement in examination-in-chief had made a categorical statement that he was present when the appellant was searched and the recovery was effected. He was declared hostile and on request was allowed to be cross-examined by the Addl. PP. It is only during cross-examination that he made a contradictory statement. As against this statement of constable George Topno we have the consistent testimony of PW 1 G.C. Dwivedi, AST Maharaj Singh (P.W. 2) and Dharam Singh (P.W. 8) that there recovery was effected in the presence of ACP. It has specifically been stated by PW. 1 Shri Dwivedi that he had disclosed his identity to the appellant telling him that he was a gazetted officer and an Asstt. Commissioner of Police and it is only thereafter that the personal search of the appellant was conducted. Had it been a case of not taking the search in the presence of the gazetted officer there could be a grievance by the person concerned that he was not given the option of being searched in the presence of gazetted officer or a magistrate. There could hardly be any grievance of not being given such an option when the search has actually been made in the presence of and at the instance of a Gazetted Officer. This ground has, thus, no force.

15. Learned counsel for the appellant has submitted that in reality no independent witness was joined by ASI Maharaj Singh in spite of the time being available with him. He has also submitted that Dharam Singh (P.W. 7) could hardly be stated to be any an independent and reliable witness who has suppressed even material evidence about he being involved in numerous cases as an accused. He has also submitted that the very fact of his suppressing this fact is sufficient to hold that he was not an independent and reliable witness and that he has been joined by the Investigating Officer being known to him. I do not agree with this submission. It has specifically been stated by Dhararn Singh (P.W. 7) that he has not appeared as a witness in any other case. ASI Maharaj Singh has also stated that Dharam Singh was not known to him or to any other member of the raiding party prior to that date. In these circumstances, there could hardly be any question of he being joined by ASI Maharaj Singh in any other raiding party. There is no doubt that this Dhararn Singh denied being involved in some criminal cases which has been proved by the appellant by way of leading evidence in defense. However, this would not be sufficient to hold that he was not present in the raiding party or that the appellant was not apprehended in his presence and nothing was recovered from the appellant. The prosecution is not mainly relying upon the testimony of Dharam Singh which, in fact, corroborates the testimony of ASI Maharaj Singh (PW 2), ACP Dwivedi (P.W. 1) and also constable George Topno (P.W. 8). Merely because Dharam Singh is a resident of another area cannot be a ground to hold that the Investigating Officer has falsely introduced him as a witness.

16. Learned counsel for the appellant has submitted that that the Investigating Officer has fabricated the documents meaning there by that no recovery was effected from the appellant and heroin has only been planted upon him. In support of this submission he has referred to seizure memo Ext. P.W. I/A alleged to have been prepared by the Investigating Officer at the spot after effecting the recovery. He has also submitted that according to the prosecution story rukka was sent to police station on the basis of which FIR 338 was recorded and the Investigating officer received its copy subsequently. Since number of the FIR appears on this seizure memo it clearly indicates that this document was prepared in the police station and, thus, falsify the prosecution story. I do not agree with this submission. A perusal of this document shows that the FIR number "338" is written in different ink than the ink used for the writing of the documents. It is not unusual and rather it is the normal practice that while preparing seizure memos at the spot a police officer leaves the FIR number blank and subsequently after the registration of the case the number of the FIR is written in the space left blank. So is the position in the instant case. Thus, it cannot be said that this document was not prepared at the spot keeping in view the statement of P.W. 1 ACP G. C. Dwivedi, Ram Singh (P.W. 8) and Investigating Officer ASI Maharaj Singh (PW. 2).

17. Learned counsel for the appellant has submitted that there is non-compliance of the provisions contained in S. 55 of the NDPS Act inasmuch as SHO had not seen the heroin alleged to have been recovered from the appellant and he had not converted it into scaled parcels himself. 1 have no doubt in my mind that there is no violation of the provisions of S. 55 of the Act in the instant case. ASI Maharaj Singh after effecting the recovery "in the presence of ACP G. C. Dwivedi (P.W. 1) took proceedings and seized the heroin recovered from the appellant after preparing scaled parcels vide seizure memo. It has clearly been stated by ASI Maharaj Singh (PW. 2) that he had produced the scaled streets before the SHO in the police station who after making enquiry had affixed his seal on the sealed parcels and also on the CFSL form and thereafter the case property was given to Head Constable Gokal Ram (P.W. 4) for safe custody. To my mind it is complete Compliance of this provision and it is only that if subsequently any sample is required to be taken from the sealed parcel it has to be in the presence of the SHO who would then affix his seal. This argument, thus, also stands rejected.

18. Learned counsel for the appellant has submitted that there has been a basic lacuna in the prosecution evidence to indicate and prove conclusively on the record that the recovery effected from the appellant was not tampered with by any one till the samples were examined in the Central Forensic Science Laboratory (CFSL). He has submitted that according to the prosecution story the parcels were initially sealed with the seal of 'MS' and subsequently SHO had affixed his seal of 'NS' but the report received from CFSL shows that the parcels were sealed with the seal of 'MS' and 'NS'. In this way he has submitted the there is clear proof on record that the sample parcels were tampered with before being analysed and this ground alone is sufficient to acquit the appellant by giving him the benefit of doubt. He has also submitted that there is no positive and convincing evidence on record to indicate that the CFSL form was deposited with Moharrar Malkhana or that it was also sent to the CFSL from Moharrar Malkhana. I have examined this submission with reference to the evidence on record and have no hesitation is coming to the conclusion that the evidence on record has proved complete chain to indicate that no one tampered with the case property till it was examined in the CFSL wherefrom the report came that the contents give positive test of heroin.

19. P.W. 1 ACP Girish Chand Dwivedi has made a categorical statement that after the recovery of two pudiyas containing heroin from the appellant two samples of 5 gms each were taken and then the two examples and remaining heroin in two pudiyas were separately scaled with the seal of 'MS' which was then given to Dharam Singh independent witness. He has been fully corroborated in this statement by ASI Maharaj Singh (PW 7). Dharam Singh has also corroborated the statement to the effect that the seal after use was given to him.

20. According to ASIM Maharaj Singh the accused and the case property were produced by him before the SHO in his office in the police station who verified the facts from the witness and the accused and thereafter affixed his seal 'NS' on all the four parcels and on CFSL form. He has also stated that these were thereafter handed over by the SHO to Moharrar Malkhana after calling him in his office. To the same effect has been the statement of Head Constable Gokal Pam (PW 4). There is no doubt that in the entry made in the Malkhana Register about the deposit of this case property there is no mention about the deposit of the CFSL form also but I have not been able to find any material on record to hold that Head Constable Gokal Ram (PW 4) was not summoned by the SHO in his office or that the parcels were not given to him. These statements have been fully corroborated by Inspector Narinder Kumar Sawhney (sic) at the relevant time was working as the SHO of P.S. Delhi Cantt.

21. Submission of learned counsel for the appellant has been that Sr. Scientific Asstt. CFSL (PW 3) has stated that on 7th October, 1988 two scaled parcels along with a forwarding letter Ext. PW 3/A and road certificate Ext. P.W. 31/B were received in the CFSL and that on the reverse of the forwarding letter Ext. PW 3/A the word "S.N." encircled with red pencil was written by him and that the seals of the forwarding letter tallied with the two sample parcels. Learned counsel for the appellant has, thus, submitted that according to this witness the sample was found to having seal of 'SN'. While according to the prosecution story the parcels were scaled with the seals of 'MS' and 'NS' and there being difference in seals the only possible conclusion may be that the samples were tampered with. PW. 1 G.C. Dwivedi has proved the two sealed parcels produced in the court, from Malkhana having seals of 'MS' and 'NS' and that these contained the same heroin which was recovered from the accused. Inspector N. Sawhney (P.W. 6) has made a categorical statement that on Ext. P.W. 3/A he had affixed his seal 'NS' which is encircled and marked A. It As the same seal which has been read by P.W. 4 Head Constable Gokal Ram. There is nothing in the cross-examination of P.W. 6 to show that the seal impression at point 'A' on Ext. PW 31 A is not the same which was affixed by him on it and on the sealed parcels. I have also perused the aforesaid seal impression which can certainly be read as 'NS'. P.W. 4 Head Constable Gokal Ram was working as Moharrer Malkhana in the P.S. at relevant time and had made a categorical statement that the scaled parcels sealed with the seal of 'MS' and 'NS' and CFSL forms were handed over to him by the SHO in his office and that these were kept by him in safe custody. He has also claimed that on 7th October, 1988 the samples and the CFSL forms were sent to CFSL through constable George Topno without being tampered with by any one. There is nothing in the cross-examination of this witness so as to hold that he was not a truthful witness. There is no doubt that in his statement recorded under section 161 Cr.P.C. by the Investigating Officer there is no mention about the CFSL form being deposited. However, this could be an omission either on his part or on the part of the Investigating Officer but there is nothing on record to disbelieve him In his claim that the CFSL form was also deposited in the Malkhana along with the case property especially when his statement stands corroborated from the testimony of constable George Topno (P.W. 8) about having taken the samples and the CFSL form with road certificate and depositing the same in the CFSL without being tampered with.

22. Learned counsel for the appellant has submitted that there is absence of link evidence about the samples being not tampered with by any one till they were actually examined in the CFSL and, thus, placing reliance upon the case State of Rajasthan v. Daulat Ram, he had prayed that the appellant may be acquitted by giving him benefit of doubt. I am afraid the facts of the case in hand are distinguishable from the facts of the aforesaid case. In the said case of Daulat Ram (supra) the sample parcels were not accepted even in the office of the Superintendent of Police on account of the labels being not in order and having changed hands when all the persons handling the parcels were not examined. In the instant case prosecution has produced link evidence to indicate that ASI Maharaj Singh produced the sealed parcels before Inspector N. K. Sawhney (PW 6) who after affixing his own seal handed over the same to Head Constable Gokal Ram., This witness kept the sealed parcels in custody without being tampered with and handed over the same to constable George Topno (PW 8) who delivered them at CFSL without being tampered with by any one. In these circumstances I have no hesitation in coming to the conclusion that it was not necessary for the prosecution to produce and examine the officials of the CFSL who may have handled the samples before being actually analysed. It is pertinent to note that C. L. Bansal (P.W. 3) has made categorical statement that the seals on the parcels tallied with the sample seals available on the letter Ext. PW 31 A and there is nothing in the cross-examination so as to disbelieve him. In case Bhagwan Dass v. The State of Punjab 1982 CC Cases 482 (HC) : 1982 Cri LJ 2138 it has been held that under section 293, Cr.P.C. report of the Chemical Examiner as a whole including the averments with regard to the condition of sample and the seal thereon and the manner of its receipt is admissible and that it is not necessary for the prosecution to examine concerned officials from the office of the Chemical Examiner to prove that no one tampered with the sealed parcels. In the instant case report Ext. P.W. 2/D, in fact, has fully been supported and corroborated by P.W. 3 C. L. Bansal.

23. There can possibly be no dispute with regard to the proposition that in cases where link evidence is missing to prove that the sealed parcels were not tampered with the court has to give benefit of doubt to an accused and I have given benefit in such type of case (reference can be made to the case Lachho Devi v. State 1990 (3) Delhi Lawyer 180 and Pears Lal Sood v. State 42 (1990) 1 Delhi Law Times 433). However, in the instant case we have positive evidence that the sample parcels were not tampered with by any one till they were examined in the CFSL. The report Ext. PW 3/A clearly shows that it was heroin. The appellant having been found in possession of heroin has rightly been convicted for the offence under section 21 of the NDPS Act. The sentence awarded to the appellant is minimum prescribed under law and, thus, there is no scope for interference in the sentence as well.

24. As a result. I find no force in this appeal which stands dismissed.

25. Appeal dismissed.