Kalu Ram vs State
1999 Latest Caselaw 976 Del

ORDER

M.S.A. Siddiqui, J.

1. This appeal is directed against the judgment and the order dated 28.2.1995 passed by the Addl. Sessions Judge, Delhi in S.C. No. 606/93 convicting the appellant under Section 21(ii) of the Narcotics and Psychotropic substances Act (for short 'the Act') and sentencing him to undergo the rigorous imprisonment for 10 years and a fine of Rs. 1,00,000/- or in default to undergo further rigorous imprisonment for six months.

2. Briefly stated, the prosecution case is that on 21.3.1990, while ASI Hari Prakash (PW-3) was on Petrol Duty, he received a secret information that one person having Charas in his ossession was standing near M.C.D. School, Ghee Market Chowk. After reducing the said information into writing (Ex.PW.3/C), ASI Hari Prakash (PW-3) along with Constable Salam Mohammed (PW-6) apprehended the appellant near the said school. The appellant was given the option (Ex. PW-3/D) of being searched before a Gazetted Officer or a Magistrate and on the appellant's declining the said option, ASI Hari Parkash (PW-3) took search of the appellant and recovered the Charas wrapped in a piece of newspaper from the appellant vide seizure memo (Ex. PW-3/A). A sample of 5 gram of Charas from the Charas seized from the appellant was drawn. The sample as well as the remaining Charas were converted into separate parcels and they were duly sealed with the seals of the ASI Hari Prakash (PW-3) as well as the SHO J.L. Sahney (PW-5), who accidently came to the spot ASI Hari Prakash (PW-3) prepared a rukka (EX. PW2/A) on the spot and sent it to the Police Station on the basis of which the FIR (EX. PW2. B) registered at the Police Station Pahar Ganj. The case property was handed over to the SHO J.L. Sahney (PW-5), who deposited the same in the police malkhana and thereafter sample was sent to the Central Forensic Science Laboratory (for short 'CFSL') and on receipt of the report (EX. PW. 3/G) from the CFSL, showing that the sample was of Charas, the appellant was charge-sheeted for trial under Section 21(ii) of the Act.

3. The appellant pleaded not guilty to the charge framed under Section 21(ii) of the Act and alleged that a false case has been foisted on him. The learned Addl. Sessions Judge, on an assessment of the evidence adduced by the prosecution convicted the appellant and sentenced him as indicated above.

4. The main thrust of the argument of learned counsel for the appellant is that the learned Addl. Sessions Judge erred in placing reliance on the evidence of ASI Hari Prakash (PW-3) and Constable Salam Mohammed (PW-6) in convicting the appellant since the mandatory requirements prescribed under Section 50 of the N.D.P.S. Act have not been complied with by the ASI Hari Prakash (PW-3).

5. It is well settled that Section 50 of the Act provides a reasonable safeguard to the accused before a search of his person is made by an officer authorised under the Act. The provision is also intended to lend credibility to the procedure keeping in view the severe punishment prescribed in the Act. In the State of Punjab Vs. Baldev Singh 1999 (6) AD (S.C.) 397 = J.T. 1999 (4) SC 595, it was held that an accused is entitled to fair trial and the evidence collected in breach of the safeguards provided by Section 50 of the Act would render the trial unfair and consequently the conviction and sentence of an accused cannot be sustained in law. Bearing in mind the said caution, I shall proceed to consider the evidence adduced by the prosecution.

6. The evidence of the prosecution pertaining to recovery of contraband revolves around the evidence of ASI Hari Prakash (PW-3) and Constable Salam Mohammed (PW-6). At the outset, I must make it clear that there is no independent witness of the alleged seizure of the contraband. However, the evidence of the said witnesses cannot discarded on account of their official status, ASI Hari Prakash (PW-3) deposed that on 21.3.1993, while on petrol duty, he received a secret information that one person, having Charas in possession, was standing near M.C.D. School, Ghee Market Chowk and on this information he along with Constable Salam Mohammed (PW-6) proceeded to spot and apprehended the accused. According to him, the accused was given the option being searched by him before a Gazetted Officer or a Magistrate but the accused declined the offer vide (Ex. PW-3/D). Thereafter, he took search of the accused and recovered 70 grams of Charas from his possession vide seizure memo (Ex. PW-3/A). Sample of 5 grams of Charas was drawn from the seized contraband. 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 duly filled on the spot. Thereafter, a rukka (Ex. PW-2/A) was sent to the Police Station on the basis of which the FIR (Ex. PW-2/B) was registered at the Police Station. Constable Salam Mohammed (PW-6) also swears to the same effect.

7. It is significant to mention that the FIR (Ex. PW-2/B) was admittedly recorded at 2.30 P.M, i.e. after the alleged recovery of the contraband from the accused. Surprisingly, the notice under Section 50 of the Act (EX. PW-3-D) served upon the accused, the recovery memo (EX. PW-3/A), the secret information (EX. Pw-3/C) received by ASI Hari Prakash (PW-3) before the alleged raid, the offer (EX. PW-3/D) made by the ASI Hari Prakash (PW-3) for his personal search, the search memo (Ex .PW-3/E) of the accused and the personal memo (EX.PW-3/F) of the ASI Hari Prakash (PW-3) bear number of the FIR (Ex. PW-2/B). F.I.R. Number had appeared on top of the aforesaid documents in the same ink and in the same handwriting, which indicated that these documents including the notice under Section 50 of the Act (EX. Pw-

3/D) were prepared at one and the same time. If the FIR (EX.PW-2/B) was registered after the alleged recovery had taken place, then these documents could not have recited the number of the F.I.R. (EX. PW-2/B) at all. The prosecution has not offered any explanation, as to how, number of the FIR (EX. PW-2/B) had appeared on the top of these documents, which were allegedly prepared on the spot. This circumstance gives rise to two inferences; firstly, the FIR (EX. PW-2/B) was recorded prior to the alleged recovery of the contraband and secondly, number of the FIR (EX. PW-2/B) was inserted in these documents after registration of the FIR. In both the situations, it seriously reflects upon the main version of the prosecution regarding the alleged recovery of contraband from the accused. In other words, the aforesaid infirmity has shaken the foundation of the prosecution case to an irreparable extent. Principles of criminal jurisprudence which govern the trial of criminal cases do not permit the ignoring or brushing aside such a big jerk given to the prosecution. In this view of the matter, it would not be safe to act upon the testimony of ASI Hari Prakash (PW-3) and Constable Salam Mohammed (PW-6). Learned Addl. Sessions Judge had obviously not kept the aforesaid infirmities in view while dealing with the evidence of the said witnesses. Eliminating the evidence of ASI Hari Prakash (PW-3) and Constable Salam Mohammed (PW-6), there remains nothing on record to connect the accused with the alleged crime. Consequently, the conviction and sentence of the accused cannot be sustained in law.

In the result, the appeal is allowed. The conviction and sentence of the appellant under Section 21(ii) of the Act is set aside and the appel-

lant is acquitted of the said offence. The appellant is in custody, he be set at liberty immediately, if not wanted in any other cause.