Ramji Singh vs State
1999 Latest Caselaw 1095 Del

ORDER

M.S.A. Siddiqui, J.

1. This appeal is directed against the judgment and the order dated 31.7.1995 passed by the Addl. Sessions Judge, Delhi in S.C. No. 536/1993 convicting the appellant under section 20 of the N.D.P.S. Act (for short the Act) and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac or in default to suffer further rigorous imprisonment for one year.

2. Briefly stated, the prosecution case is that on 28.12.1992, at about 11 p.m., a police party led by S.I. Rajendra Singh Adhikari (PW-7), upon information received, apprehended the appellant at Sehyog Vihar near Matiala Village. The appellant was given the option (Ex. PW 4/B) of being searched before a Gazetted Officer or a Magistrate. He declined the offer. Thereupon, S.I. Rajendra Singh Adhikari (PW-7) took his search and recovered 2 Kgs. of Charas vide seizure memo (Ex. PW-4/A). The appellant was charged with an offence punishable under Section 20 of the Act and tried.

3. The appellant abjured his guilt and alleged that a false case has been foisted on him. Learned ASJ, on an assessment of the evidence of the prosecution witnesses Head Constable Nafe Singh (PW-2), Constable Suresh Kumar (PW-3), Chandra Bhan (PW-4), Chemical Examiner S.C. Johri (PW-5), Inspector Surjit Lal Birdi (PW-6), S.I. Rajendra Singh Adhikari (PW-7) and Head Constable Dharam Pal (PW-8), accepted the prosecution case and convicted and sentenced the appellant as indicated above.

4. The prosecution examined at the trial the panch witnesses Chandra Bhan (PW-4), Inspector Surjit Lal Birdi (PW-6), S.I. Rajendra Singh Adhikari (PW-7) and Head Constable Dharam Pal (PW-8) to prove how the raid was organized, how the appellant was apprehended at Sehyog Vihar near Matiala Village, and further, how he was found in possession of the bag containing 2 Kgs. of Charas vide seizure memo (Ex. PW-4/A). They also deposed that a sample of 10 grams of charas was drawn; that the sample as well as the remaining charas was converted into separate parcels and were duly sealed on the spot; that the CFSL form was also filled up on the spot and the sealed parcels along with the CFSL form were delivered to the Inspector Surjit Lal Birdi (PW-6) for being deposited in police Malkhana. Inspector Surjit Lal Birdi (PW-6) and Head Constable Nafe Singh (PW-2) testified that on 29.12.1992, the SHO (PW-6) has deposited the case property in the police Malkhana vide entry in the Malkhana Register (Ex. P-2/A). Head Constable Nafe Singh (PW-2) also testified that on 1.1.1993, the sample was sent to the CRCL through constable Suresh Kumar for analysis and during the period the sealed parcels and the CFSL form remained with him and were not tampered with.

5. S.I. Rajendra Singh Adhikari (PW-7) further deposed after completing the formalities relating to the alleged recovery of charas, he prepared the rukka (Ex. PW-1/A) on the spot and sent it to the police station on the basis of which the FIR (Ex.PW-1/B) was registered at the P.S. Janakpuri. The rukka (Ex. PW-1/A) shows that the alleged recovery was made at 11 p.m. and the rukka (Ex.PW-1/A) was despatched at 12 in the night. The FIR (Ex.PW-1/B) shows that it was registered on 29.12.1992 at 12.20 a.m. S.I. Rajendra Singh Adhikari (PW-7) has stated in his statement that "writing work was done by me while sitting on cement pipes under the street light". From this statement, it can safely be inferred that the notice under Section 50 of the Act (Ex.PW-4/B), the carbon copy of the notice under Section 50 of the Act (Ex.PW-7/DA), the seizure memo (Ex.PW-4/A), the report under Section 57 of the Act (Ex.PW-7/E), personal search memo of the S.I. Rajen-

dra Singh Adhikari (Ex.PW-6/A), the arrest memo of the appellant (Ex.PW7/D) and the search memo of the appellant (Ex.PW-7/C) were prepared on the spot. Surprisingly, the aforesaid documents bear the number of the FIR (Ex.PW-1/B). The number of the FIR (Ex.PW-1/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to how number of the FIR (Ex.PW-1/B) had appeared on these documents, which were prepared on the spot before registration of the FIR at the P.S. Janakpuri. This gives rise to two inferences that either the FIR (Ex.PW-1/B) was registered prior to the alleged recovery of the contraband or that number of the FIR (Ex.PW-1/B) was inserted in these documents after its registration at the P.S. Janakpuri. In both the situations, the aforesaid circumstance seriously reflects upon the veracity of the prosecution story narrated by Chandra Bhan (PW-4), Inspector Surjit Lal Birdi (PW-6) S.I. Rajendra Singh Adhikari (PW-7) and Head Constable Dharam Pal (PW-8) and creates a good deal of doubt about the recovery of the contraband in the manner alleged by the prosecution. Thus, the network constituted by the said circumstances leave a gap of varied dimensions through which the appellant can get out with equal facility.

6. Learned counsel for the appellant also contended that possibility of the sample being tampered with in the present case cannot be completely overlooked inasmuch as the link evidence which could complete the chain that the sample was duly sealed on the spot and that the same had reached the Malkhana of the P.S. Janakpuri and had also reached untempered the Chemical Examiner. Head Constable Nafe Singh (PW-2) has proved the entry made in the Malkhana Register (Ex.PW-2/A). A perusal of the said entry (Ex.PW-2/A) does not show that any CFSL form filled in respect of the contraband had been deposited in the Malkhana along with the case property. It is also significant to mention that although it was mentioned in Col. No. 8 of the register (Ex.PW-2/A) that on 1.1.1993, the sample was despatched to the Chemical Examiner for analysis but there was no mention about the despatch of the CFSL form along with the said sample. Thus, in the entry (Ex.PW-2/A) proved from the Malkhana Register, there is no mention that either the CFSL form has been deposited or the same has been sent to the Chemical Examiner along with the sample. It was incumbent upon the prosecution to prove that not only the contraband articles were duly sealed and deposited in Malkhana untempered but it was also necessary to prove that the samples which had been duly sealed remained intact till they reached the office of the Chemical Examiner. In the instant case, the entry (Ex.PW-2/A) does not show that the CFSL form, which was allegedly filled in at the time of taking of the samples, was deposited in the Malkhana and it was sent in the same condition to the office of the Chemical Examiner. One does not know as to where the said CFSL forms remained during the said period. In Amarjit Singh & Anr. Vs. State 1995 JCC 91, the prosecution had failed to prove as to where the CFSL form containing the specimen seals had remained till the contraband was examined by the Chemical Examiner and a Divisional Bench of this Court, keeping in view the particular piece of evidence and the other evidence adduced by the prosecution, came to the conclusion that perhaps the samples sent to the Chemical Examiner did not remain untempered. Thus, in the present case, benefit arising out of the circumstances mentioned above, must necessarily go to the appellant.

For the foregoing reasons, I am of the opinion that the appellant's conviction and sentence cannot be sustained in law. Consequently, the appeal is allowed and the appellant's conviction and sentence is set aside. The appellant is acquitted of the offence charged under Section 20 of the Act. The appellant is in custody. He be set at liberty forthwith, if not wanted in any other case. Fine, if paid, shall be refunded to the appellant.