Mohd. Saleem vs State
1997 Latest Caselaw 337 Del

JUDGMENT

J.K. Mehra, J.

(1) This is an appeal arising out of an order of conviction passed against the appellant whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for 10 years and pay fine of Rs.1 lac and in default of payment of the fine, the appellant is to undergo a rigorous imprisonment for a further period of 2 years under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Ndps Act").

(2) Briefly the case, according to the prosecution is :-

(3) That on 21st of June 1989, Asi Ilam Singh, posted as Special Staff, Central District, was on patrol duty with Head Constable (HC) Nanak Chand, Asi Jai Narain, Constables Ishwar Dayal, Virender Kumar. Head Constable Dilawar Singh under the supervision of Inspector Harish Chand Joshi in government vehicle No.DED-3756 driven by Asi Pyara Singh were present at Ajmeri Gate Chowk at about 3.40 p.m. A secret information was received by Asi Ham Singh that a person residing in Government Press Quarters would come from Okhia via Ranjit Singh fly-over and would go inside Turkman Gate while carrying opium in a bag. Asi Ham Singh asked 3/4 passers-by to join the raiding party but only one Chaman Lal s/o Brij Lal agreed while the others left without disclosing their names and addresses. A trap was laid under the supervision of Inspector Harish Chand Joshi by Asi Ham Singh with the members of the raiding party which consisted of himself, the police staff with him and public witness Chaman Lal near light point Ranjit Singh fly-over. At about 3.55 p.m. on the pointing out of the informer, accused Mohd. Saleem was intercepted near Ranjit Singh fly-over light point - Meer-Dard-Road. Accused Mohd. Saleem at that time was carrying a bag in his right hand and he was told that there was secret information about his possessing opium in the bag and was to be searched. Option was also given to the accused that in case he wanted, some Gazetted Officer or Magistrate should be called during his search. Accused declined to avail of the option in writing. Asi Ilam Singh offered his search to accused Mohd. Saleem which was also not availed by the accused and prepared a memo to this effect. Thereafter Asi Ham Singh took the bag from the right hand of accused Mohd. Saleem which was found to contain green polythene cover having opium therein. Opium was weighed and was found to be 2 Kg and 200 Grams, 100 Grams of opium was taken out as sample. The sample opium and the remaining opium with the polythene paper and the bag were put into two different parcels which were sealed with the seal of Vs. Seal after use was handed over to Asi Jai Narain and both the parcels were taken into possession vide recovery memo. Form Cfsl was also Filled in at the spot. Rukka was sent together with the case property to the Police Station for registration of the case on the basis of which Fir No. 289 was registered. Accused was arrested in this case. The case property and Form Cfsl were produced before Inspector Surinder Kumar, Sho who affixed his own seal Skg on the case property. Case property was deposited in the Malkhana of the Police Station. On 27.6.89 sample parcel with form Cfsl were sent to Cfsl by Mohrrar Malkhana Head Constable Rewti Prashad and was deposited with the CFSL. Report was received from Cfsl which declared that the sample gave positive tests for opium and that the percentage of morphine therein was 7.03(approx.). After completion of investigation accused was challenged.

(4) The appellant in a statement under Section 313 Criminal Procedure Code . has denied recovery of any narcotic substance from him and has taken the plea that he had been illegally framed and the case against him is incorrect and false. He has further alleged in the said statement that in the night of 21st June, 1989 at about 2.00 a.m. S.I. Islam Singh took the appellant to the office of the special staff where he was detained as the S.I. wanted the appellant who according to S.I. was an addict to disclose the source wherefrom he was getting the supply of this drug and it was only when his people gathered in the morning at the office of S.I. Ham Singh that a false case was registered against him by planting narcotic substance so as to justify his detention. The appellant has also led defense evidence wherein he examined one witness namely Somvir Singh as DW-1.

(5) In the course of hearing, counsel has referred to various provisions of the Act and has also pointed out that there has been non-compliance of the mandatory provisions of Sections 42,52 and 57 of the Act.

(6) Before dealing with the said legal question, it would be appropriate to refer to the prosecution evidence which leaves a lot to be desired. In view of various, contradictions and discrepancies hereinafter referred to, the evidence of the prosecution does not inspire confidence. Counsel for the appellant has referred to various statements of the witnesses wherefrom it appears that the Cfsl Form was not deposited in the Malkhana not was it sent to CFSL. He has further challenged the seal, as according to him, nothing could have been sealed in the presence of the independent witness as the appellant was never apprehended at the place alleged by the prosecution. It is not disputed that the procedure of sealing the case property in cases under Ndps Act and handing over of the seal to the independent witness is the main safeguard available to ensure that the sample sealed cannot be tampered with. Although Constable Virender says nothing about his seal being used, the other witnesses of prosecution have pointed out that it was Virender's seal which was used. Nothing has been pointed out by the State counsel to show as to how Constables are also authorised to possess and use the seal instead of the seal of the 1.0., who is his superior officer and was present on the spot. The prosecution has led it's evidence to show that the seal after sealing the property was handed over to the 1.0. It is not understood as to why the public witness was not entrusted with the seal used in the case property. It is also peculiar that while Public Witness -4 says in cross-examination that this seal was handed over by him a week later, to the 1.0., the 1.0. states that it was banded over the next day as is clear from the below noted statement:- P.W.4 "Ire turned the seal to the 1.0. after one week. I cannot say whether any D.D. entry regarding return of seal was recorded by the 1.0. The same applies to the statement, if any, if recorded in this regard."

 I.O. in his cross-examination states:-    "A.S.I.Jai Narain (Public Witness -4) returned to me the seal on the next day".  

 (7) Normally, the seal should be handed over to the 1.0. only after the case property has been despatched to CFSL. In the non-observance of the safeguards by (i) not handing over seal to the independent witness and (ii) further to deliver the seal to S.H.O. before the despatch of the sample to Cfsl, the possibility of the seal being tampered with, and the substance being changed and subsequently containers being released cannot be ruled out.   

 (8) Another important document which is normally sent in these cases is the road certificate which accompanies the case property to CFSL. No such document has been produced in the present case. As if these discrepancies were not enough the Police Officers have not cared to deposit the Cfsl Form with the Malkhana which is also one of the safeguards against anyone getting falsely implicated. Neither the Ruqqa nor the Fir mentions anything about deposit of Cfsl Form in the Malkhana nor the register of Malkhana contains an entry in this connection while despatching or depositing the case property.   

 (9) It appears that the public witness associated with the case is also a known criminal of the area and has already got 5 to 6 cases proceeding against him in Pahar Ganj area. The 1.0. has denied having known this public witness but peculiar fact which came to light in his cross-examination is that there were cases against public witness in 1992 and during the said period 1.0. was also posted in the same Police Station. The witness denies having known the 1.0. but the 1.0. had admitted the fact as it appears from his statement quoted below :- Statement of the said independent witness:-    "I did not know 1.0. before this case was registered........ The last cases registered against me were the one which have been stated above i.e. under Section 325 Indian Penal Code and the other under Section 447 Indian Penal Code The last case registered against me by the police was in 1982 or 1983".  

 Statement of the 1.0. in this connection:-    "I knew Chaman Lal prior to the detection of the present case as he was running a shop on Sadar Thana Road".  

 (10) The public witness has admitted that the seal was never handed over to him. Not only that he has further stated in the Court that the bag containing the case property, which is produced before the Court, is different from the bag which was originally produced.   

(11) A further contradiction on the aspect of deposit of the case property in the Maikhana is also apparent from the fact that while Public Witness -1 S.H.O. claims to have deposited the case property and signed over the register No. 19 whereas Public Witness -3 Constable Virender Singh, who had carried the case property to the- Police Station claims to have deposited the case property in the Malkhana. On the other hand as per the record of register No. 19 and column No. 3 the case property was deposited by the 1.0. Ham Singh. Therefore, it is difficult to believe any statement in view of such contradictions. Another discrepancy which has been pointed out by the counsel for the appellant in the prosecution case is regarding the registration of the case while according to Public Witness -2 and PW-3, the case was registered first and then the case property was produced before the S.H.O. but as per the statement of Public Witness -I, S.H.O. the Rukka was brought to him alongwith the case property. He affixed his seal on the case property and then deposited the same in the Malkhana. It is contended by the appellant that the prosecution has failed to produce the Inspector Mr. Joshi as a witness though he was one of the members of the raiding party and was a senior Police Officer. Consequently, under Section 114 Illustration (g) of the Evidence Act an adverse inference should be drawn against the prosecution. It is argued on behalf of the appellant that the likelihood of the case property being tempered with cannot be ruled out in the present case because of the failure of the prosecution to prove and establish beyond doubt that the Cfsl Form was prepared and sent to Malkhana. It has also been argued by the counsel for the appellant that the case of the prosecution is silent on the fact that whether the Cfsl Form was sent to Cfsl laboratory alongwith the samples as alleged by the prosecution. It is the duty of the prosecution to prove beyond reasonable doubt that the sample which was allegedly taken was duly sealed and the same sample has been got analysed from CFSL. The submissions of counsel for the appellant that the prosecution miserably failed to prove its case beyond reasonable doubt is not without substance in view of the above discussion as apart from contradictions discussed above which makes the prosecution evidence incredible. The possibility of the sample being tampered with in the present case cannot be ruled out as the link evidence which will complete the chain that the sample was duly sealed at the spot and the same had reached the Malkhana and also reached untempered for Chemical analysis at Cfsl laboratory, is clearly missing.

(12) Coming to the legal contentions, advanced on behalf of the appellant of non-observance of the mandatory provisions of law, it is contended that the prosecution has not proved that on receipt of the secret information the same was reduced into writing, recording reasons for the belief while carrying out arrest or search of a suspicious person. It is contended that to avoid harm to the innocent persons and to avoid abuse of the provisions of the Act by the Officers safeguards such as Sections 42 and 57 have been provided in the Act. To appreciate the contention of the counsel for the appellant, it is relevant to reproduce the said provision. Sections 42 and 57 of the Ndps Act read as under:-

"42.Power of entry, search, seizure and arrest without warrant or authorisation - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by the general or special order of the State government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter Iv has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, - (a) enter into and search any such building, conveyance, or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter Iv relating to such drug or substance; (d) detain and search, and, if he thinks proper, arrest any person who he has reason to believe to have committed any offence punishable under Chapter Iv relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, the may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. 57. Report of arrest and seizure - Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."

(13) Nothing has been shown to me by counsel for the Stale from the evidence about compliance with Sections 42(2) or Section 57 of the Ndps Act. The compliance with these provisions is mandatory as held by the Hon'ble Supreme Court in the cases of Shiv Rawat Vs. State, reported as 1987 Jcc 14, State of Punjab Vs. Balbir Singh, reported as 1994 Jcc 303 and Mohinder Kumar Vs. State, Panaji, Goa, reported as 1995 Crl. LJ. 2074 wherein the provisions of Sections 42, 50 and 57 have been held to be mandatory. A reference be also made to the judgments pronounced by me in the cases of Amiri Ali Ligaga Vs. State, reported 1996 (1) Recent Criminal Reports 519 and Saleem Mohd. Saleh Mohd. Vs. State, reported as 1996 Jcc 219. the non-observance of the aforesaid provisions of the Ndps Act vitiates the prosecution,

(14) In view of the submissions and the legal position discussed above, it is clear that the prosecution has miserably failed to prove the compliance of Sections 42 and 57 of the Ndps Act which are mandatory.

(15) The next argument advanced by counsel for the appellant is that the provisions of Section 52 of the said Act have also not been complied with. This provision as also Section 57 come into operation after the seizure and arrest of the accused under the Act. Provisions similar to Section 52 also exist in the Code of Criminal Procedure and the view taken by the Courts is that in case effect of non-observance of such provisions results in any prejudice or failure of justice, it will be deemed to adversely effect the case of the prosecution. However, a mere irregularity or failure to strictly comply with the said provisions may not vitiate the prosecution. Counsel has in this behalf relied on the authorities, already discussed hereinabove.

(16) The result of the above discussion is that the prosecution has failed to prove its case on merits as well as on the question of compliance with the mandatory provisions of the Act. In the circumstances, I accept this appeal. The judgment recording the conviction of the accused vide order dated 6.1.1994 as also the order on sentence dated 6.1.1994 passed in Fir No. 289/89 under Section 18 Ndps Act, P.S. I.P.Estate, Delhi in Sc No. 81/93, are hereby set aside. The accused shall be released forthwith unless he is required in any other case.

(17) This appeal is disposed of in the above terms.