Mohd. Rafiq @ Rafiq Kana vs State
1998 Latest Caselaw 1121 Del

ORDER

J.B. Goel, J.

1. This appeal is directed against the judgment of conviction and order of sentence both dated 26.8.1994 whereby the appellant has been convicted for an offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short the 'Act') and has been sentenced to RI of 10 years and a fine of Rs. one lakh and in default of payment of fine further RI for one year.

2. Briefly the facts are that ASI Inderpal Singh was posted in Narcotics Cell at Kamla Market, on 23.4.1992 at about 1200 Noon an informer came to him and gave information that Rafiq accused with large quantity of smack will go to his house (in Gali No. 11, Sadar Bazar Delhi) between 1 P.M. to 2 P.M. Said ASI informed the ACP Civil Lines about it and then organized a raiding party comprising of himself, SI Ramesh Rana, H.C. Jagbir Singh, Cts. Gyanainder Singh, Ram Bhool, Dalbir Singh, Suresh Raj and two lady constables Lekha and Geeta besides driver Vijendar and proceeded towards the spot and reached at Chowk Bara Tooti at about 12.20 p.m. in government vehicle, 3-4 passersby and shopkeepers were asked to join the raiding party, but they declined; however one Desraj @ Desa agreed and was joined in the raiding party. The police party took positions near the corner of Gali No. 11, Sadar Bazar Road; at about 1.20 p.m. the accused came and on the pointing of the informer, he was apprehended; informed about the secret information and asked if he wanted to be searched in the presence of a G.Os. or M.M., arrangement for it could be made and a notice under Section 50 to this effect was given but the accused declined. The accused also declined to take the personal search of the members of the raiding party. Then on the personal search of the accused from the right side pocket of his pant one packet in polythene cover was recovered which on checking found containing 50 grams of heroin. 5 Gms. was taken as sample and the sample and the remaining heroin were separately packed and sealed with the seals of 'RR' and CFSL form was also filled in. A rukka was drawn by the said ASI and the case property and the rukka were sent through H.C. Jagbir ingh to the SHO and got the FIR registered. The SHO after affixing his own seal of MCS deposited the case property with the Moharar Malkhana. The accused was arrested. The appellant was tried for an offence under Section 21 of the Act. The prosecution inter alia examined PW-3 Des Raj @ Desa, the public witness, PW-5 H.C. Jagbir Singh, PW-6 SI Ramesh Rana and PW-7 ASI Inder Pal Singh, IO as witnesses of the recovery and seizure of the contra-band. PW-3 Des Raj has not supported the prosecution case and was declared hostile. The accused in his statement under Section 313 Cr.P.C. denied the incriminating circumstances and pleaded that he was taken away from his house and falsely implicated in the present case. He, however, did not lead any evidence in his defense. The learned trial court accepted the other evidence of prosecution and convicted and sentenced him as aforesaid.

3. The learned counsel for the appellant has raised a number of legal pleas as well as about the reliability of the evidence. These contentions are refuted by the learned counsel for the State.

4. Learned counsel for the appellant has contended that this is a false case; PW-3, the public witness has not supported the prosecution case obviously being false; also that the material on record show that no raid as alleged was conducted and a false case has been made sitting in the office and falsely implicating the appellant. He contends that the learned trial court has wrongly placed reliance on unreliable evidence. He has thus challenged the very raid and recovery from the alleged spot.

5. PW-3 Des Raj is the public witness. PW-5, PW-6 and PW-7 have deposed that on reaching the Bara Tooti Chowk at about 12.20 p.m. 3-4 passers by including the shopkeepers were asked to join the raiding party who declined but P.W.-3 who was there on being asked agreed and was joined in the raid-ing party. PW-3, however, has stated that he had gone to P.S. Kamla Market when he was called by 3-4 police persons and his signatures were obtained on some blank papers. He denied that he was joined in the raiding party at the alleged spot of recovery; or that the recovery was effected in his presence from the accused or he was arrested in his presence. He has further stated that he was living in Kishan Ganj and was not working at Sadar Bazar. In his cross-examination he has further stated that police persons of Police Station Kamla Market knew him from before on which he was not challenged. He does not appear to be an independent witness and apparently was under the influence of the plice. He is a chance witness being a resident of Kishan Ganj, a very far away place and having no business in Sadar Bazar. Normally, he would not have been present at the time and place of the alleged recovery and there is no apparent reason for his being present there nor any has been brought on record. He has stated that he had gone to Police Station Kamla Market and being known to the police of that police station he was asked to sign some blank papers. In these circum-stances, the possibility of his being asked to sign various memos at the police station or in the office of the Narcotics Cell at Kamla Market cannot be ruled out.

6. PW-7 ASI Inder Pal Singh was heading the raiding party who had received the secret information and organized the raiding party. According to him the raiding party formed by him comprised of himself, SI Ramesh Rana, H.C. Jagbir Singh, Cts. Gyanainder Singh, Ram Bhool, Dalbir Singh, Suresh Raj and two lady constables Lekha and Geeta ides Ct. Vijendar, the driver.

7. PW-6, SI Ramesh Rana has also stated that it comprised of himself, ASI Inder Pal Singh, H.C. Jagbir Singh, 4 constables, 2 lady constables besides driver Vijendar. PW-5 H.C. Jagbir Singh has stated about the raiding party that besides himself it comprised of SI Ramesh Rana, ASI Inder Pal Singh, Cts. Dalbir Singh, Ct. Gyanainder Singh, Ct. Suresh Raj and lady constables Geeta and Lekha. None of these three witnesses has stated that ASI Kushal Pal was included in the raiding party or had reached the spot and was present there at the time of apprehension of the appellant or the alleged recovery from him.

8. D.D. No. 8 is the entry of departure of the police party recorded before ASI Inder Pal Singh had proceeded to the spot for conducting the raid with the raiding party. This document though not specifically exhibited but produced by the prosecution and admitted by the counsel of the accused and has been referred and relied upon by the trial court also. According to this entry the persons who had proceeded to the spot are ASI Inder Pal Singh, SI Ramesh Rana, H.C. Jagbir Singh, 4 constables, namely, Gyanainder Singh, Ram Bhool, Dalbir Singh, Suresh Raj and two lady constables Lekha and Geeta besides the driver of the vehicle. Thus, neither this documentary evidence nor the oral testimony of PW-5, PW-6 and PW-7 show/prove that ASI Kushal Pal was a member of the raiding party or had joined the raid at the spot. PW-7 IO in his cross-examination has admitted that notice under Section 50 Ex. PW 3/B s written in the handwriting of ASI Kushal Pal. ASI Kushal Pal has also witnessed the personal search memo of the accused Ex. PW 3/D. How ASI Kushal Pal came into picture is not known nor is explained by any of the witnesses. This circumstance creates doubt in the prosecution case. In that context the plea of the accused assumes importance. The accused in his statement under Section 313 Cr. P.C. has stated that he was taken away from his house to the police station and was falsely implicated in the case. ASI Kushal Pal, the writer of the said notice under Section 50 was not a member of the raiding party and would not have been present at the time of search and as such this notice could not have been given at the spot. It follows that it would have been prepared in the office of the Narcotics Cell and in that view the story of recovery and seizure of the contraband from the accused at the spot is not reliable and is fabricated. PW-5 and PW-6 in their cross-examination have stated that the secret informer had accompanied them in th same vehicle to the spot but PW-7 does not say so. In the aforesaid DD entry No. 8, it is specifically mentioned that the informer had already been sent to meet the raiding party at the spot which belies the testimony of PW-5 and PW-6 and this also casts doubt if at all any such raid was carried out at the spot at the instance of a secret informer.

9. This point was raised before the learned trial court which has been dealt with by it in para 11 of the judgment. The learned trial court in view of other material available on record has held that it clearly establishes that the ASI Kushal Pal posted in the Narcotics Cell has already been present at the spot at some stage when notice under Section 50 of the Act was got prepared by him. The learned trial court has also observed that ASI Kushal Pal was sought to be examined to prove the disclosure statement, but an objection was raised by the learned counsel for the appellant and he was not examined. He has signed the personal search memo also and as such it held that ASI Kushal Pal was present at the spot. In my view this approach of the learned trial court is not proper and justified. It was not for the accused to disprove that ASI Kushal Pal was not present at the spot especially when there is no evidence led by the prosecution to prove that he was present at the spot and moreover as noticed above, the oral and documentary evidence brought on the record show that he would not have been present. The evidence relied by the learned trial court could as well have been fabricated while sitting in the office or police station. If presence of ASI Kushal Pal is excluded this knocks the bottom of the prosecution case and would show that the prosecution case is false and fabricated and the documents had been prepared in the office itself after the accused may have been taken away from his house as alleged by him. This circumstance also casts a serious doubt on the prosecution case.

Section 50(1) of the Act 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, he shall, if such person so requires,  take  such person without unnecessary delay to the nearest Gazette  Officer of  any  of  the departments mentioned in Section 42  or  to  the nearest Magistrate."  
 

 10.  In  State  of Punjab Vs. Balbir Singh , it  was  held 

that this provision gives a valuable right to the person to be searched in the presence of a Gazette Officer or a Magistrate if he so requires; to afford such an opportunity to the person to be searched, he must be aware of this right and that can be done only by the officer making the search informing him. This provision is intended to impart more authenticity and credit-worthiness to the proceedings and also while providing an important safeguard to the accused. The provision has been held to be mandatory and non-compliance vitiates the trial. This view has been approved and followed by a 3-Judges Bench of the Supreme Court in Saiyad Mohd. Saiyad Umar Saiyed & Ors. Vs. The State of Gujarat .

11. It was thus imperative on the part of the officer who had conducted the search to have informed the accused of his right that if he chose, he will be searched in the presence of a Gazette Officer or a Magistrate.

12. The alleged notice is Ex. PW3-B and is written in Hindi. The relevant part of the said notice on translation in English reads as under :-

"....You are informed that as per law your search can be made in the presence of any G.O. or M.M. and if you want to be searched in the presence of GOs or MM then give the answer in writing in yes or no."

13. The words "GO" and "MM" are the abbreviations of the words. The meanings or import of these words would not be known to a layman and even to an educated person. The accused appears to be a layman and not well educated. There is nothing to show that the accused knew the meaning of these words or that he was explained what the words "GOs" and "MM" stood for. This notice is not an empty formality and was to serve a very laudatory purpose as noticed above. With these vague and abbreviated words this notice cannot be said to give a proper notice to the accused that if he desired, he could be searched in the presence of a "Gazette Officer" or a "Magistrate". Thus, it cannot be said that the mandatory provisions of Section 50 have also been complied with.

14. To ensure the purity of the sample, from the time it is seized, deposited in the malkhana and till it reaches the Analyst it is required that alongwith the sealed sample parcel CFSL Form is required to be prepared with the sample seal used as sample and sent to the Analyst alongwith the sample so that the Analyst may satisfy that the sample remained intact. Though some of the PWs have stated that the CFSL Form was prepared and sample seals of 'RR' and 'MSC' were put. However, Ex. PW7/E is the CFSL report. In this description of the parcels and the condition of the seal is shown as under.

Description of the Parcel and Condition of the seal.

15. Received one sealed parcel with the seal intact 'RR' and 'MSC' as per official specimen enclosed.

16. The words "as per official specimen enclosed" have been scored off in pen with initials thereon. This is indicative of the fact that the sample seal had not accompanied the sample contraband. No explanation has been made by the prosecution to show why these words have been scored off. This circumstance also casts doubt if the sample parcel would have remained intact and untempered.

17. A police officer entrusted with the job of search and seizure is provided with his own seal. ASI Inder Pal Singh was heading the raiding party and is the IO and had made recovery. According to the prosecution case he had gone to the spot from his office on the basis of secret information for raid. The seal used on the case property is of 'RR' perhaps of SI Ramesh Rana. There is no explanation why the seal of ASI Inder Pal Singh has not been affixed. This circumstance also has been taken to be a suspicious circumstance in the case of Berthe Djakaridja Vs. State 1998 II AD (Delhi) 888 where it has been held that it is imperative for the Investigating Officer to seal the parcel containing the sample with his own seal. In case his seal is not available for some reason then in that event he could use the seal of another police officer but he must explain the circumstances under which the seal of another officer was used. This also casts doubt on the case.

18. The learned trial court has not considered these material circumstances which make the prosecution case doubtful and suspicious.

19. In view of this discussion, it will not be safe to sustain the conviction of the appellant.

20. This appeal is accordingly allowed and the judgment of conviction and order of sentence are set aside and the appellant is acquitted of the charge.

21. He be set free forthwith if not required in any other case. Jail Superintendent be informed accordingly.