Mewa Ram vs State
1999 Latest Caselaw 982 Del

ORDER

M.S.A. Siddiqui, J.

1. This appeal is directed against the judgment and order passed by the Additional Sessions Judge, Shahdara in Sessions Case No. 288/99 convicting the appellant under Section 18 of the NDPS Act and sentencing him to under go rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh or in default to undergo further rigorous imprisonment for a further period of two years.

2. Briefly stated, the prosecution case is that on 29.6.1988 at about 6 P.M., a police party led by ASI Mange Ram, upon information received, apprehended the accused near D.D.A. Park. The accused was having a beg in his hand. He was given the option of being searched by ASI Mange Ram before a Gazetted Officer or Magistrate. The accused declined the offer. He was then searched in the presence of panch witnesses Sukhbir and H.C. Vikram Singh and the bag he was carrying was found to contain opium weighing 1.50 Kgs. He was charged with an offence punishable under Section 18 of the N.D.P.S. Act (for short 'the Act').

3. The accused abjured his guilt and alleged that a false case has been foisted on him. Learned Addl. Sessions Judge, on an assessment of the evidence adduced by the prosecution, accepted the prosecution case and convicted and sentenced the accused as indicated above.

4. The prosecution case pertaining to recovery of the contraband revolves around the evidence of Sukhbir Singh (PW-2), H.C. Vikram Singh (PW-5) and ASI Mange Ram (PW-6). Learned Addl. Sessions Judge has convicted the accused on the basis of the evidence of the aforesaid witnesses.

5. It has come in the evidence of ASI Mange Ram (P.W.6) that on 29.6.1988, at about 6 p.m. while performing petrol duty along with head constable Vikram Singh, Head Constable Ashok Kumar and Constable Ranvir Singh, he received a secret information that one person would be bringing contraband from Uttar Pradesh. On the basis of the said information he organized a raiding party and waited for arrival of the accused near DDA park adjoining the Delhi UP Border. At about 6.30 p.m. he saw the accused crossing UP Delhi Border and intercepted him near the said DDA park. The accused was given the option (Ex. PW/2/A) of being searched by him (PW-6) in the presence of a Gazetted Officer or a Magistrate and on the accused's declining the said offer, he was searched in the presence of panch witnesses, namely, Sukhbir Singh (PW-2) and H.C. Vikram Singh (PW-5) and the bag he was carrying was found to contain opium. Thereupon, the contraband was seized vide seizure memo (Ex. PW-2/B) On weighment, the bag was found to contain 1.50 Kgs. of opium. A sample was drawn from the seized contraband. The sample as well as the remaining opium were converted into separate parcels and they were duly sealed on the spot. CFSL from was also duly filled up. In the meantime, SHO P.N. Nagar (PW-1) also came to the spot, who took the sealed parcels along with the CFSL form and deposited them in the Police Malkhana. Thereafter he sent Rukka (Ex. P.W.6/A) to the Police Station on the basis of which FIR No.138/98 (Ex. P.W.6/B) was registered at the Police Station. H.C. Vikram Singh (PW-5) and Raghubir Singh (P.W.-2) also swear to the same effect.

6. It is well settled that provisions of Section 50 of the Act provides a safeguard against false and frivolous prosecution and the said provision is also intended to avoid criticism of arbitrary and high-handed action against the authorised officer. In The State of Punjab Vs. Baldev Singh J.T. 1999 (4) SC 595, it was held that the 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 reasonable doubt that provisions of Section 50 of the Act were duly complied with.

7. In the instant case, the FIR (Ex. PW-6/A) was admittedly registered at the Police Station at 7.40 P.M. The evidence of ASI Mange Ram (PW-6) shows that the accused was apprehended at 6.30 P.M. and the formalities of search and seizure of the contraband were completed by 7 P.M. and after completion of the said formalities, he sent the Rukka (Ex. PW-6/A) to the Police Station on the basis of which the FIR (Ex. PW-6/A) was registered. Surprisingly, the seizure memo (Ex. PW-6/B), the search memo (Ex. PW-2/C) and the special report (Ex. PW-6/D), alleged to have been prepared on the spot, bear the number of the FIR (Ex. PW-6/A). The number of the FIR (Ex. PW-6/A) 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 and under what circumstances number of the FIR (Ex. PW-6/A) had appeared on the top of the aforesaid documents. If the FIR (Ex. PW-6/A) was registered after the alleged recovery had taken place, then these documents could not have recited the number of the FIR (E. PW-6/A) at all. This circumstance gives rise to two inferences, firstly the FIR (Ex. PW-6/A) was recorded prior to the alleged recovery of the contraband and secondly, number of the FIR (Ex.PW-6/A) was inserted in these documents after registration of the FIR. In both the situations, it seriously reflects upon the veracity of the prosecution version and the benefit arising out of such a situation must necessarily go to the accused. The aforesaid circumstance has shaken the foundation of the whole prosecution case to an irreparable extent. Consequently, the appellant's conviction and sentence under Section 18 of the Act cannot be sustained.

8. In the result, the appeal is allowed. The conviction and sentence of the appellant under Section 18 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.