Saleem Mohd. @ Saleh Mohd. vs State
1996 Latest Caselaw 1 Del

JUDGMENT

J.K. Mehra, J.

(1) This appeal arises out of order and judgment of Shri R.K. Sharma, Additional Sessions Judge, Special Court, N.D.P.S. Act, Delhi convicting the appellant under Sections 21/61/85 of N.D.P.S. Act in S.C.No. 437/94, P.S. Town Hall. The said Judge has sentenced the appellant to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1.00 lac and in default of payment of fine to further undergo rigorous imprisonment for one more year. It was further ordered that the period for which the appellant had remained in custody shall be set off in view of the provisions contained in Section 428 Cr.P.C.

(2) In brief the case of the prosecution is that on 21st May 1992 on a prior information the S.H.O. Town Hall with S.I. Ramesh Kumar and S.I. Ram Phal formed a raiding party with Head Constable Dhani Ram and Constable Ramesh Kumar had reached Children Park where they were joined by Jai Kumar Jain independent witness. The raiding party divided itself into three groups and carried out the blocking (Nakabandi) of the three routes at about 12.10 p.m. The appellant came on a Yamaha motor-cycle bearing registration number Dbx 3843 from the side of Community Hall. On the pointing out by the informer the raiding party tried to stop the appellant, but he fled his motor-cycle to the parking side where the party headed by S.I. Ramesh Kumar apprehended the appellant. It is further alleged on record that the appellant was informed of his right under Section 50 of the N.D.P.S. Act vide notice Exhibit Public Witness .2/A of being searched, if he so desired, in the presence of a Gazatted Officer or a nearest Magistrate, but the appellant declined to be searched. The appellant did not avail of the option given to him with regard to search consequent whereupon he was searched there itself and two polythene packets each found to be containing 2 Kgs. of Smack were seized from the appellant. The said two packets were sealed with the seals of Gcd and RK. It is further pointed out by Counsel for State that Cfsl form was also prepared on the spot and got signed by the witnesses. The seizure memo Exhibit Public Witness 2/B was also prepared. Rukka was sent to the Police Station for recording the Fir at the Police Station which was recorded by Head Constable Gyan Chand which is Exhibit Public Witness 6/A. It is alleged that the Fir was recorded by Head Constable Cyan Chand at 1.40 p.m. Inspector Gursharan Dass Public Witness 2 S.H.O. Town Hall has proved the notice under Section 50 and the seizure memo being Exhibits Public Witness 2/A and Public Witness 2/B respectively. He has further proved that the polythene bags contained 4 Kgs. of Heroin and that Cfsl forms were deposited with all the seized articles in the Malkhana. Prosecution has also examined Head Constable Inder Raj Singh as Public Witness 1 who was Mohharer Malkhana P.S. Town Hall, on 21st May 1992. Public Witness I has stated that Public Witness 2 had deposited four parcels and one Cfsl forms duly sealed with the seals of Gcd and RK. Along with these parcels the motor-cycle of the appellant mentioned above with the bunch of keys along with helmet was also deposited in the Malkhana register of the Malkhana containing the relevant entries is Exhibit Public Witness 1/A, Prosecution had examined one Mr. N.K. Prasad as Public Witness 3 who is Senior Scientific Officer-cum-Assistant Chemical Examiner Cfsl, New Delhi. The said Chemical Examiner Cfsl has admitted that the purity of the samples was not tested and that he could not say if .00001 % mg. Heroin is added to 10 gms. of Brown Powder it will give positive test of Heroin. He has also testified that adding of mordent in Brown Powder would not respond to the test of Heroin. His report is Exhibit Public Witness 1 / B. The ownership of the motor-cycle has been proved by Public Witness 4 Parveen Singh who is Dealing Assistant, Transport Authority, Sheikh Sarai, New Delhi while Public Witness 5 Constable Madan Singh P.S. Town Hall has proved the seizure of refugee certificate issued by United Nations being Exhibit Public Witness 5/A. Head Constable Gyan Chand being Public Witness 6 has stated that he was posted as duty officer in P.S. Town Hall at the material time and has proved that the Fir of the case was recorded at 1.40 p.m. being Exhibit Public Witness 6/A. He has further admitted in cross-examination that recording of Fir may have taken one hour or so. He, however, did not remember whether he had given the Fir number to anyone before it was completed and a copy of the Fir was sent to the concerned Magistrate. In fact he has not disputed that the copy of the Fir was not sent to the concerned Magistrate immediately. Constable Ravinder Kumar Public Witness 7 who was at the material time posted at P.S. Town Hall has stated that he had taken two Cfsl forms both sealed with the seals of Gcd and Rk and deposited the same in the office of the Cfsl one form of Cfsl, He has also proved that the seals were affixed on the front side of the form and that the form which was given to him is not to be found on the Court file. Public Witness 8 is a witness Shri Jai Kumar Jain who had joined the raiding party and had given the information that the appellant is in possession of Smack. This witness has proved that the appellant was informed of his right under Section 50 and he has proved the writing of Exhibit Public Witness 2/A whereby the appellant was given the said offer and he had declined to avail of this offer. But in cross-examination, he has also stated that the seizure memo (Panchnama), Exhibit Public Witness 2/B was prepared before Exhibit Public Witness 2 / A. Incidentally, he is the only witness who has deposed to the fact that the appellant was informed of his right under Section 50 of Ndps Act. The Investigating Officer who was examined as Public Witness 10 namely S.I. Ramesh Kumar has proved that the Rukka was prepared by him which is Exhibit Public Witness 10/A and handed over the same to Head Constable Mahinder Singh for registration of the case. Another witness to the recovery is Public Witness 9 Head Constable Mahinder Singh. He is the person who had taken the Rukka to the Police Station on the basis whereof Fir was registered by Public Witness 6 and the Fir is Exhibit Public Witness 6/A. It is alleged that Head Constable Mahinder Singh came back at the site with the copy of the Fir being Public Witness 6/A. He is also alleged to have prepared the site plan being Exhibit Public Witness 10/B with the marginal notes. The appellant/accused was examined under Section 313 Cr.P.C. and has stated that he has been implicated falsely that he is a refugee staying at Gujranwalan Town, Delhi and has been selling cloth/clothes in a market in Ballimaran Area in the building known as Dila Ram Guest House where a number of Afghani refugees are having their shops. He has alleged enmity with the Police. The appellant has alleged that then he was brought to the Police Station where his thumb impressions were taken on certain papers. The question and answer read as under:- "Q.It is further in evidence against you that you were informed for the information of possession smack and a Notice u/Section 50 Ndps Act Ex. PWI/ A was given to you wherein you refused to be Starched in presence of GO/ Mm what have to say? Ans. I was not given any notice nor I was informed about taking before the Mm, in fact I was called at the P.S. by construction on 21.5.92 at about 10 a.m. by the Sho and I went on my Motor Cycle when I was detained, and make my thumb marks on various papers."

(3) Safar as the examination of the accused under Section 313 Cr.P.C. is concerned, the Counsel has argued that the examination does not amount to due compliance with the provisions of Section 342 Cr.P.C. as the appellant was not put the proper questions and in this connection he has placed reliance on . In the said ruling it has been laid down that under this Section the duty is cast upon the Courts to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case that the accused will have to meet and thereby an opportunity is given to the as accused explained any such point.

(4) It is important to note that in this case the accused /appellant had examined himself as defense witness being Dw I and in his statement on oath he has specifically denied being informed of any right under Section 50 or being given any notice such as Exhibit Public Witness 2/A. He has also denied that any Panchanama was prepared in his presence. In his statement he has further stated that he does not know Hindi nor can he read or write that language, and that all these were got thumb mark by him at the Police Station. His cross-examination which is very brief reads as under :- "I am in India for the last 10/11 years. I deal in clothes. I had no quarrel with the police but they use to harassed and were departing money. It is wrong to suggest that I am deposing falsely. I have not placed the copies of complaints against the higher officials my friend may have done so. It is incorrect to suggest that I am deposing falsely to save myself. It is also incorrect that recovery was effected from me. No questions in the cross-examination were put to the appellant regarding place of preparation of Exhibit Public Witness 2/A or Public Witness 2/B. I here was no suggestion in the cross examination that the contents of Exhibit Public Witness 2/A were read over and explained to him. The only endorsement on Exhibit Public Witness 2/A which is again in Hindu reads : Maine achchi prakar se up roktlikha hua samajh liyahai. Main apnitalashi kasi Magistrate ya Go ke same denanahin chahta hu, nahi Police ki talashi lena chahta hu."

On this document there is no evidence that all what is written was read over to the accused and explained to him. There is no denial or challenge to the assertion of the defense that the accused could not read or write Hindi.

(5) Counsel for the appellant has argued that the notice under Section 50 of Ndps Act had not been given and in fact the said notice Exhibit Public Witness 2/A as well as seizure memo Exhibit P"W2/B also the site plan being the Fir number which could not have been given at the time these documents were prepared as the Fir had not so far been registered. He argues that the very fact that these numbers have been given on the documents gives rise to serious doubt and lends credence to the defense story that all these documents were prepared in the Police Station and the accused / appellant was made to thumb mark on the same without contents thereof being read over and explained to him particularly when it is clear that the accused was unable to read or write Hindi. There is no endorsement on the document that the contents thereof were duly read over and explained to the accused by any of the witnesses.

(6) The Head Constable Mahinder Singh Public Witness 9 has also deposed that the notice under Section 50 Ndps Act was given in writing to the an used and has proved the same as Exhibit Public Witness 2/A. It is further given in the evidence that this independent witness Public Witness 8 was in fact a Spo (Special Police Officer). He has further stated that the Fard Jama Talashi Exhibit Public Witness 2/B was prepared and signed by him after the Rukka had been sent. An important fact stated by Public Witness 8, which cannot be lost sight of is that of the document Exhibit Public Witness 2/B preceding preparation of the Exhibit Pw 2/A. The relevant part of his statement is quoted hereinafter :

(7) It is neither party's case that the accused was first explained and informed of his rights under Section 50 of N.D.P.S. Act and thereafter written notice under Section 50 was prepared whereon the appellant put his thumb impression. It means the Ferd Jamatalashi i.e. the Seizure Memo was prepared before notice under Section 50 was given to the accused.

(8) Nearly all Police witnesses except Public Witness 10 Si Ramesh Kumar were asked the' question and had answered that no alteration, addition was made to the documents 0Exhibit Public Witness 2/A and Exhibit Public Witness 2/B. No explanation has been given in evidence as to how the Fir number came to be written on these documents if no addition had been effected thereon after the initial writing of the documents. Counsel for State has tried to explain that the said number was witted subsequently in order to identify the documents with the case. My attention Was drawn to the statement of P.W. 10, Si Ramesh Kumar, who in his cross-examination deposed to having written Fir number later on. He in his cross examination further stated that the said fact was noted by him in the case diary. When his attention was drawn to the absence of any such fact having been recorded in the case diary, he admitted that in "The case diary only the fact that Hc Mahender Singh came back at the spot and handed over the original rukka and copy of FIR. It is not specifically written in the case diary that the Fir number was later on written in Ex. Public Witness 2/A and Ex. Public Witness 2/B. It is correct that entire writing of Ex. Public Witness 2/A and Ex. Public Witness 2/B including Fir no. is in the same pen and ink. The Fir can be written after registration of the case." Public Witness 8 Jai Kumar Jain had stated that he did not know Sho previous to the occurrence and he had not met him earlier and that he for the first time came to know the name of the Sho from seeing his name plate. He has also denied having known Si Ramesh Chand previously and having never gone to Police Station earlier. But in cross-examination, he admitted that he is a Spo for Chandni Chowk area. Public Witness 10 Ramesh Kumar has also stated that he knew Public Witness 8 Jai Kumar Jain for about one to two months prior to the case. Spo helps Beat officers and petrols the area alongwith police officials apart from attending meetings at the police station. In view of this, it is not possible to conclude that he had not known the S.H.O. This witness who is an Spo, could not be stated to be not amenable to the influence of police authorities and could not be described as an independent witness.

(9) Certain other discrepancies with regard to the time were pointed out by Counsel for the appellant such as Public Witness 2 stating that he remained at the spot upto 2 p.m. and that Si Ramesh remained at the spot when he left, and that he had deposited the parcels and samples with Cfsl forms, motor cycle, bunch of keys and one "Studds" helmet, a copy of seizure memo in the malkhana after reaching the police station at about 2.30 pm. Further that the special report was also sent on the same day. According to the witness, the report is Exhibit Public Witness 2/DA. It is also to be noted that there is no mention of the notice under Section 50 of Ndps Act in the special report.

(10) In the statement of Public Witness 6, Head Constable Gyan Chand, he has stated :- On that day, at about 1.40 p.m. on receipt of rukka sent by Si Ramesh Kumar through Hc Mahinder Singh, I recorded formal Fir of this case. Rukka Ex. Public Witness . 6/A Time of writing 1.30 p.m. I cannot say how much time if took in recording the F.I.R. It may take one hour also. The 10 did not come to me till the recording of Fir nor the Sho came. Fir number is given first of all. Thereafter, the contents are recorded. I cannot say whether I had given the Fir number to anyone before it was completed. So long I remained on duty on the day, no other Fir regarding the Narcotics are recorded. Copy of the Fir was not sent to the concerneted Magistrate." Pw 8 Mr. Jai Kumar Jain has stated as under :- "The Sho left the spot after taking the case property at about 1.00 or 1.30 p.m. I remained at the spot for about 3.00 or 3.30 p.m. and thereafter I went at my house. " In cross-examination, Public Witness 8 Mr. Jai Kumar Jain has stated as under :- 375 "At the time when rukka was sent writing work was going on at the spot. I had not signed any paper till then. I cannot say if Sho or Ramesh Chand or other Constable present had signed any papers. On that day I did not go in the PS. I remained at the spot upto 3.30 p.m. S.I. Ramesh Chand was present some constables and H.C. were present, but I do not remember their names. The writing work was done while sitting under a tree in sports club. The one chair was called from the chowkidar and after serving the chair was returned. The fard Ex. Public Witness 2/BJ was signed by me after the rukka had been sent. The Fard Ex. Public Witness 2/B was written by S.I. Ramesh Kumar..... The Fard which was prepared was Ex. Public Witness 2/B thereafter Ex. Public Witness 2/A was prepared. I did not sign on the site plan. The Sho had signed in my presence. I had signed the papers later on Sho Saheb had signed the papers and left the place. Head Constable had gone to record the Fir and thereafter the H.C. came at about 2.00 p.m. who had taken the rukka to the P.S. and he signed the papers after he had come. I do not know what was written in the rukka taken by the H.C."

 Pw 9 H.C. Mahinder Singh in his statement, inter-alia, stated as under :- "No addition, subtraction or alteration was made in Ex. Public Witness 2/B. Si thereafter wrote rukka which he handed over to me. Sho remained at the spot. I took rukka at 1.30 p.m. and I left for the P.S. Thereafter Fir was registered at 1.40 p.m. Sho was not present when I came back with a copy of the FIR." Pw 10 Si Ramesh Kumar in his statement, inter-alia, stated as under :-    "IT took about 1" hours till the time rukka was prepared. Sho left the spot after I had prepared the rukka. Thereafter Sho met me in his office at P.S. about 5 p.m. At about 2.45 p.m. H.C. Mahender Singh came alongwith copy of Fir at the spot."  

 (11) The appellant's Counsel has canvassed that the sealing and the preparation of documents were not at the spot, but at the police station.   

 (12) The learned Addl. Sessions Judge believing prosecution story and also the fact that the accused was made aware of his right by notice under the provisions of Section 50 Ndps Act which amounted to compliance with the mandatory provisions of Section 50 of Ndps Act convicted the appellant under Sections 21,61 and 85 of Ndps Act and sentenced him to undergo Ri for 10 years and Rs. 1.00 lac fine and in default of payment of fine further to undergo Ri for one year. The discrepancies pointed out by the defense were considered by the learned Addl. Sessions Judge as minor in nature.   

 (13) In the Ndps Act, the Legislature has provided very stringent punishment for the offence, but at the same time, it has in its wisdom prescribed in the Act itself safeguards so as to ensure that no prejudice is caused to any person accused of the offence under the Act. In view of the stringent punishment under the Act, it becomes absolutely necessary that there is proper and meticulous adherence to the safeguards by the law enforcement agency. One such safeguard is under Sub-section (i) under Section 50 of the Act, which reads as under :-    "WHEN any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, or he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate."  

(14) A perusal of the said provisions leaves no doubt that it is the right of the person to be informed that he has a right to insist that he be taken without unnecessary delay to the nearest Gazetted Officer of any of the Departments mentioned in Section 42 of the Act or to the nearest Magistrate. This is an extremely valuable right which has been provided by the Legislature keeping in view the severity of the punishment. The rationale behind this provision is apparent that is search before a Gazetted Officer or a Magistrate would lend more authenticity and credit worthiness to the proceedings and will not lend the proceedings illusory. This matter came up before the Hon'ble Supreme Court of India in the case of State of Punjab v. Balbir Singh, , the Hon'ble Supreme Court had again reiterated what was laid down by it in the aforesaid case of State of Punjab v. Balbir Singh that the provisions of Section 50 are mandatory and non-compliance thereof would vitiate the conviction even in the cases of chance recovery. In the case ot Mahinder Kumar v State, , the Hon'ble Supreme Court held that the provisions of Section 50 are mandatory and even in a case of chance recovery, the officer concerned is required to adhere to and comply with the provisions of Section 50 of Ndps Act from then onwards. The fact that the person should be made aware of his right or protection was also emphasized in the case of Mohd. Syed Umar Sayed & Ors., wherein it was held that, "Cogent evidence has to be produced to show that the said person was made aware of such right or protection and there is no question of drawing presumption under Section 114 Illustration (e) that the requirement of Section 50 were complied with. Protection under Section 50 to the accused is sacrosanct and cannot be disregarded. In Crl.A. No. 54/91 entitled "Shri Krishan v .State", I have already held that even partial option given to the accused does not amount to compliance with Section 50 of Ndps Act. 1994 (4) Ad, Delhi 1171, Crl.Appeal no. 91/92 "Amarjit Singh v. State" is also to the same effect. Another submission made on behalf of the appellant is on tin basis of the Supreme Court judgment in Suraj Mal's case wherein it has been laid down that if witnesses made two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence, and in the absence of special circumstances no conviction can be based on the evidence of such witneses. It has been argued that giving of Fir number on Exhibits Public Witness 2/A and Public Witness 2/B and also the inconsistencies in the statements of Public Witness 8 and other PWs etc. creates serious doubts as to whether the story of the prosecution is correct. Appellant's Counsel has also relied upon Lalu Bhai Jogi Bhai's case and . In the light of the law laid down by the Hon'ble Supreme Court in Suraj Mat's case (supra), the contradictions in the statements of PM 8 in examination in chief and cross-examination when the Public Witness 8 stated first that notice under Section 50 was given before the search and the statement that Exhibit Public Witness 2/B which is the seizure list (Panchnama) was prepared first and thereafter Exhabit Public Witness 2/A (Section 50 notice) was prepared. If Section 50 notice (Exhibit Public Witness 2/ A) was written later, then how could it precede the search which is the mandatory requirement. It is nobody's case that the appellant was orally informed of his right under Section 50 and writing took place later, i.e., after search and preparation of seizure list. Even the timings given in the cross examination of the statements of various PWs to show that there is considerable discrepancy in the timings and such discrepancy could not have occurred if all PWs were stating the truth. For instance, the Public Witness Head Constable Mahinder Kumar came along with a copy of the Fir at the spot at 2.45 p.m. Thereafter the Fir number could not be written untill 3.45 p.m. and he left the Sho only at 5 p.m. In the statement of S.H.O. Public Witness 2, he admits that he deposited both the parcels, both the samples, Cfsl forms, motor cycle, helmet and bunch of keys and a copy of seizure memo in malkhana after reaching Police Station at about 2.30 p.m. This is also mentioned in D.D. No. 9A. Therefore, if such list had already been deposited at 2.30 p.m. there could not be any occasion to enter the Fir number thereon at 2.45 p.m. These discrepancies and certain other discrepancies in the evidence referred to hereinabove have the cumulative effect of leaving one with an impression that the prosecution has failed to prove beyond reasonable doubt that the notice under Section 50 Ndps Act informing the appellant of his right under the said section was given before the search was resorted to

(15) Another aspect of which I do not find any evidence is relating to compliance with the provisions of Section 42 Ndpa Act which is also essential. There is no document or statement which proves that the secret information which was received was sent to the superior officer as contemplated under the provisions of Section 42 Ndps Act. Apart from this certain other arguments were raised relating to violation of Section 57 and non-filing in Court of Cfsl form which was received back by Public Witness 7. The only answer the State Counsel had to these was that these were minor discrepancies. State Counsel has referred to the Malkhana register and pointed out that a copy of the search list was not deposited in the Malkhana as this fact is not mentioned in the Malkhana register but in contrast to this there is categorical statement of Public Witness 2 the Sho where he has stilted that such list was deposited in the Malkhana.

(16) The effect of the above discussion in the light of the law laid down in the cases referred to hereinabove, in my opinion is that the prosecution has failed to prove the due compliance with the mandatory provisions of Sections 50 and 42 of Ndps Act beyond reasonable doubt. The doubt cast on the compliance with the mandatory provisions of Section 50 of Ndps Act by itself is sufficient to vitiate the conviction and would entitle the accused to be acquitted by giving him benefit of doubt. In the circumstances I hold that the accused/appellant is entitled to be acquitted. Accordingly he is acquitted. He should be released forthwith unless required in any other case.