Ashok Kumar vs State
1999 Latest Caselaw 1016 Del

ORDER

M.S.A. Siddiqui, J.

1. This appeal is directed against the judgment and order dated 20.2.1992 passed by the Additional Sessions Judge, Delhi in Sessions Case No. 6/91 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 ten years and to pay a fine of rupees one lac or in default to suffer further rigorous imprisonment for one year.

2. Briefly stated, the prosecution case is that on 6.7.1990 at about 5.15. P.M. , a police party led by Sub-Inspector Dalal Singh (PW-3), upon information received, apprehended the appellant near the bus stand. The appellant was given the opinion of being searched before a Gazetted Officer or a Magistrate. He declined the offer. Thereupon Sub-Inspector Dalal Singh (PW-3) took his search and recovered twenty five grams of charas vide seizure memo (Ex. PW-3/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 Additional Sessions Judge, on an assessment of the evidence adduced by the prosecution, accepted the prosecution case and convicted and sentenced the appellant as indicated above.

4. The question for consideration is whether on 6.7.1990, the contraband was recovered from the appellant's possession in accordance with the provisions of Section 50 of the Act. The prosecution case, pertaining to recovery of the contraband revolves around the evidence of Sub-Inspector Dalal Singh (PW-3), Inspector Rajinder Singh (PW-5) and Head Constable Mohan Lal (PW-6). The aforesaid witnesses deposed that on 6.7.1990 at about 5.15 P.M., the appellant was apprehended by Dalal Singh (PW-3) in a park near bus stand. The appellant was given the option of being searched before a Gazetted Officer or a Magistrate but the same was declined by him. There upon Sub-Inspector Dalal Singh (PW-3) took his search and recovered twenty five grams of charas from his possession vide seizure memo (Ex. PW-3/A). A sample of ten grams of charas was drawn. The sample as well as the remaining charas were converted into separate parcels and they were duly sealed on the spot. The CFSL form was also filled up on the spot and sealed parcels along with the CFSL form were delivered to Rajinder Singh (PW-5) for being deposited in the Police Mal Khana. Sub-Inspector Dalal Singh (PW-3) further deposed that on completion of the aforesaid formalities, he sent the rukka (Ex.PW-2/A) to the police station on the basis of which the FIR (Ex. PW-2/B) was registered at the police station. It is well settled that provisions of Section 50 of the Act provide a safeguard against false and frivolous prosecution and they are also intended to avoid criticism of arbitrary and high-handed action against the authorised Officers. In State of Punjab Vs. Baldev Singh JT 1999 (4) SC 595, it was held that an accused is entitled to a fair trial and the use of evidence collected in breach of the safeguards provided by Section 50 of the Act would render the trial unfair. It was, therefore, incumbent upon the prosecution to prove beyond doubt that the contraband was seized in accordance with the provisions of Section 50 of the Act.

5. In the instant case, the FIR (Ex. PW-2/B) was admittedly registered at the police station at 6.30 P.M. Rukka (Ex. PW-2/A) which was prepared on the spot and on the basis of which the FIR (Ex. PW-2/B) was registered at the police station, reveals that the alleged recovery was made at 4.45 P.M. and the rukka was despatched at 6.15 P.M. On the contrary, the evidence of Sub-Inspector Dalal Singh (PW-3) shows that the contraband was recovered at 5.15 P.M. Thus, there is discrepancy between the rukka (Ex. PW-2/A) and the evidence of Dalal Singh (PW-3), Inspector Rajinder Singh (PW-5) and Head Constable Mohan Lal (Pw-6) about the time of the alleged recovery of the contraband. That apart, the appellant's personal memo (Ex. PW-3/B) and the seizure memo (Ex. PW-3/B) bear the number of FIR (Ex. PW-2/B). The number of the FIR (Ex. PW-2/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 under what circumstances number of the FIR (Ex. PW-2/B) had appeared on the top of these documents. This gives rise to two inferences that either the FIR (Ex. PW-2/B) was registered prior to the alleged recovery of the contraband or number of the FIR was inserted in these documents after registration of the FIR. In both the situations, the said circumstance robs the efficacy of the statements of police witnesses, namely, Sub-Inspector Dalal Singh (PW-3), Inspector Rajinder Singh (PW-5) and Head Constable Mohan Lal (PW-6) about the alleged recovery of contraband from the appellant's possession. That being so, the benefit arising out of such situation must necessarily go to the appellant. Thus, the network constituted by the said circumstance, leaves a gap of varied dimensions through which the appellant can get out with equal facility.

6. There is another staggering circumstance which has also shaken the foundation of the prosecution case. It has come in the evidence of Sub-Inspector Dalal Singh (PW-3), Inspector Rajinder Singh (PW-5) and Head Constable Mohan Lal (PW-6) that the sealed parcels along with the CFSL form were handed over to Inspector Rajinder Singh (PW-5) for being deposited in the Police Mal Khana. Inspector Rajinder Singh (PW-5) and Head Constable Ishwar Singh (PW-4) testified that on 6.7.1990 Inspector Rajinder Singh (PW-5) had deposited two sealed parcels and one CFSL form in the Police Mal Khana vide entry in the Mal Khana register (Ex.PW-4/A). The entry (Ex.PW-4/A) in the Mal Khana register contains the procedure adopted by SI Dalal Singh (PW-3) in recovering the contraband from the appellant's possession but there is no mention that either the sealed parcels or the CFSL form were deposited in the Mal Khana. It was incumbent upon the prosecution to prove that not only the seized contraband was duly sealed and was duly deposited in the Police Mal Khana untempered but it was also necessary to prove that the sampled contraband which had been duly sealed on the spot remained intact till it reached the office of the CFSl, Chandigarh. Further it was necessary to prove that the CFSL form containing the specimen seals which was duly filled at the time of taking of the sample also remained intact till it reached the office of the CFSL, Chandigarh. In the instant case, there is not an iota of evidence to show as to where the CFSL form containing the specimen seals had remained till the sampled contraband was examined by Chemical Examiner. That being so, the necessary link between the contraband allegedly recovered from the appellant and the report of the Chemical Examiner (PW-3/D) is missing in the case. Learned Additional Sessions Judge did not take notice of the aforesaid infirmities in the prosecution case and unjustifiably accepted the prosecution evidence. Consequently, the impugned order of the conviction and sentence cannot be sustained.

7. In the result, the appeal is allowed. The judgment and the order of conviction and sentence is set aside and 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. Fine if paid shall be refunded to the appellant.