Lalji Shukla vs State
1999 Latest Caselaw 1012 Del

ORDER

M.S.A. Siddiqui, J.

1. This appeal is directed against the judgment and the order dated 8.3.1995 passed by the Additional Sessions Judge in Sessions Case No. 113/94 convicting the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act) and sentencing him to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1 lakh or in default to suffer further rigorous imprisonment for one year.

2. Briefly stated the prosecution case is that on 1.2.1994, a police party led by Inspector Yashwant Singh, P.W. 3 of Police Station Kirti Nagar, upon information received, apprehended the appellant on the spot. He was given the option (Ex. P.W.3/A) of being searched before a Gazetted Officer or a Magistrate. The appellant declined the offer. He was then searched by ASI Ram Saran (P.W. 6) in the presence of Parveen Kumar, P.W. 4, Constable Shammi Kapur, P.W. 5, and Inspector Yashwant Singh (P.W. 3) as a result whereof O 410 gramms of charas was recovered from his possession vide seizure memo (Ex. P.W. 3/C). The appellant was charged with an offence punishable under Section 20 of the Act and tried. The appellant adjured his guilt and alleged that a false case has been foisted on him. The learned Additional Sessions Judge, on an assessment of evidence adduced by the prosecution, accepted the prosecution ase and convicted and sentenced the appellant as indicated above.

3. The point for determination in this appeal is whether on 1.2.1994, the contraband was recovered from the appellant's possession in accordance with the provisions of Section 50 of the Act. The evidence of the prosecution pertaining to the recovery of the contraband revolves around the testimony of Inspector Yashwant Singh P.W. 3, Parveen Kumar P.W.4, Constable Shammi Kapur P.W. 5 and ASI Ram Saran P.W.6. The aforesaid witnesses testified that on 1.2.1994, the appellant was apprehended on the spot and he was given the option (Ex. P.W. 3/A) of being searched before a Gazetted Officer or a Magistrate, but he declined the offer. Thereafter, A.S.I. Ram Saran (P.W. 6) took search of the appellant and recovered the contraband charas from his possession vide Seizure Memo Ex. P.W. 3/C. They further deposed that after seizure of the contraband a sample of 10 grams of charas was drawn from the charas seized from the appellant and the sample as well as the remaining charas were converted into separate parcels and they were duly sealed on the spot. CFSL form was filled up on the spot and the case property alongwith the CFSL form was deposited in the Malkhana. ASI Ram Saran P.W.6 deposed that on completion of the formalities regarding the alleged search of seizure, he sent the rukka (Ex. P.W. 6/A) to the police station on the basis of which the FIR (Ex. P.W. 6/B) was registered at the police station.

4. It needs to be highlighted that the rukka (Ex. P.W./6A) shows that the contraband was recovered at 6.15 p.m. and the rukka was sent to the police station at 8 p.m. The FIR (Ex. P.W. 6/B) shows that it was registered at 8.10. p.m. Surprisingly the personal search memo of the members of the raiding party (Ex. P.W. 3/B), the personal search memo of the appellant (Ex.P.W. 4/A), the notice under Section 50 of the Act (Ex. P.W. 3/A) alleged to have been served upon the appellant before taking his search and the seizure memo (Ex. P.W. 3/C) bear the number of the FIR Ex. P.W. 6/B. The number of the FIR (Ex. P.W. 6/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 an explanation whatsoever as to under what circumstances number of the FIR (Ex. P.W. 6/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This gives rise to two inference that either the FIR (Ex. P.W. 6/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant. Needless to add that the provisions of the Act are so stringent that it cast a duty on the prosecution to rule out any possibility of tampering of the sample and false implication of an accused. It must be borne in mind that severer the punishment, the greater care has to be taken to see all the safeguards provided in a statute are scrupulously followed. Unfortunately, the learned Additional Sessions Judge did not take notice of the aforesaid infirmity in the prosecution case and unjustifiably accepted the prosecution evidence. Consequently, the impugned order of conviction and sentence cannot be sustained.

5. For the foregoing reasons, the appeal is allowed and the impugned order of 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 immediately if not wanted in any other cause. The fine, if paid, shall be refunded to the appellant.