Laxman vs State
1999 Latest Caselaw 979 Del

ORDER

M.S.A. Siddiqui, J.

1. The appellant in this appeal has been found quality of the offences punishable under Section 20/21 of the N.D.P.S. Act (for short 'the Act') and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lacs or in default to undergo further rigorousimprisonment for six months.

2. Briefly stated, the prosecution case is that on 6.9.1991, undertrial Khushi Ram was brought from the Central Jail, Delhi for production before the trial court. At about 1.30 P.M., the accused came to the judicial lockup at Patiala House and gave one bundle of bidi to the Constable on duty Anees Ahmed (PW-1) for being handed over to the said Khushi Ram. On checking the said bundle of bidi by Constable Anees Ahmed (PW-1), it was found to contain two PURIAS (small packets) of Charas and smack. Thereupon Constable Anees Ahmed (PW-1) apprehended the accused on the spot and produced him before Inspector Dayanand (PW-2), who intimated the SHO Tilak Marg about the alleged incident. S.I. Rajpal Singh (PW-6), on receiving information at the Police Station Tilak Marg, came to the spot at about 1.45 P.M. and seized the bundle of bidi (Ex. P-1) along with the contraband vide seizure memo (Ex.PW-1/B). The seized property was duly sealed and the CFSL farm was filled up. S.I. Rajpal Singh (PW-6) recorded the rukka (Ex.PW/6/A) on the spot and sent it to the Police Station, on the basis of which FIR (Ex.PW-4/A) was registered at the Police Station. The case property along with the CFSL form was handed over to the SHO Balbir Singh (PW-5), who deposited the same in the Police Malkhana and thereafter the seized contraband was sent to the Central Forensic Science Laboratory (for short 'CFSL') and on receipt of the report (Ex.PW-6/C), the accused was charge-sheeted for trial under Sections 20/21 of the Act.

3. The accused abjured his guilt 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 accused and sentenced him as indicated above.

4. The evidence of the prosecution pertaining to recovery of the contraband revolves around the evidence of Constable Anees Ahmad (PW-1), Inspector Dayanand (PW-2) and S.I. Rajpal Singh (PW-6), whose evidence has been believed by the learned Addl. Sessions Judge. Constable Anees Ahmad (PW-1) deposed that on 6.9.1991, the accused gave him a bundle of bidi (Ex.P-1) for being handed over to the under trial Khushi Ram, who was in the judicial lock up of the Patiala House. On checking the said bidi bundle, it was found to contain two PURIAS of charas and smack. He, therefore, apprehended the accused and produced him along with the contraband before Inspector Dayanand (PW-2). Inspector Dayanand (PW-2) and S.I. Rajpal Singh (PW-6) want us to believe that on receiving the information about the alleged recovery of contraband, S.I. Rajpal Singh (PW-6) came to the spot and seized the contraband vide seizure memo (Ex.PW-1/B). It needs to be highlighted that Inspector Dayanand (PW-2) has made the following statements in his cross examination :

"It is further correct to suggest that the case property was planted on the accused on the instance of the constable."

"It is further incorrect to suggest that this case was planted at the instance of constable Anis and nothing was recovered from the accused."

5. In my opinion, the aforesaid admission of Inspector Dayanand (PW-2) that the case property was planted on the accused demolishes the entire prosecution case about the alleged recovery of contraband from the possession of the accused. In addition, there is yet another staggering circumstance against the prosecution which was shaken the foundation of the prosecution version to an irreparable extent. In the instant case, the FIR (Ex.PW-4/A) was admittedly registered at 4 P.M. The evidence of S.I. Rajpal Singh (PW-6) shows that the seizure memo (Ex.PW-1/B) was prepared on the spot at about 1.45 P.M. Surprisingly, the seizure memo (Ex.PW-1/B) bears the number of the F.I.R. This number is in the same ink and in the same handwriting. If the FIR (Ex.PW-4/A) was registered after the alleged recovery had taken place, then the seizure memo (Ex.PW-1/B) could not have recited the number of the F.I.R. The prosecution has not offered any explanation as to how the number of the FIR (Ex.PW-4/A) appeared on the top of the seizure memo (Ex.PW-1/B), which was alledly prepared on the spot. Thus, this circumstance gives rise to two inferences, firstly, the FIR (Ex.PW-4/A) was recorded prior to the alleged recovery of contraband and secondly, the number of the FIR was inserted in the seizure memo (Ex.PW-1/B) after registration of the FIR (Ex.PW-4/A). In both the situations, it robs the efficacy of the evidence of Constable Anees Ahmad (PW-1), Inspector Dayanand (PW-2) and S.I. Rajpal Singh (PW-6) about the alleged recovery of contraband from the possession of the accused. Thus, the network constituted by the circumstances mentioned above leaves a gap of varied dimensions through which the accused can get out with equal facility. Consequently, the accused's conviction and sentence under Section 20/21 of the Act cannot be sustained.

6. In the result, the appeal is allowed. The conviction and sentence of the appellant under Section 20/21 of the Act is set aside and the appellant is acquitted of the said offence. The appellant is in custody, he be set at liberty immediately, if not wanted in any other cause.