Mohd. Hashim vs State
1999 Latest Caselaw 990 Del

ORDER

M.S.A. Siddiqui, J.

1. This appeal is directed against the judgment and order dated 27.11.1995 passed by the Additional Sessions Judge, Delhi in Sessions Case No. 577/93 convicting the appellant under Section 21 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 six months.

2. Shorn of Verbiage, the prosecution case is that on 15.3.1993, a police party led by sub-Inspector Narender Tyagi (PW-7), upon information received, apprehended the appellant near Yamuna Bridge. He was given the option of being searched by Sub-Inspector Narender Tyagi (PW-7) before a Gazetted Officer or a Magistrate. The appellant declined the offer. He was then searched in the presence of the Manzar Hussain (PW-6), Head Constable Nafe Singh (PW-5) and Inspector Raja Ram Yadav (PW-1) as a result whereof sixty five grams of smack was recovered from his possession. The appellant was charged with an offence punishable under Section 21 of the Act.

3. The appellant abjured 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 case and convicted and sentenced the appellant as indicated above.

4. Though a number of submissions were made by the learned counsel for the appellant, I need not detain myself to deal with all those submissions as in my opinion, there is force in the argument of the learned counsel that the prosecution has failed to prove that the contraband was seized 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 Head Constable Nafe Singh (PW-5) and Sub-Inspector Narender Tyagi (PW-7). The only independent "Panch"witness, namely, Manzar Hussain (PW-6) has not supported the prosecution evidence. Sub-Inspector Narender Tyagi (PW-7) corroborated by Head Constable Nafe Singh (PW-5) testified that on 15.3.1993, at about 9.40 p.m., while he was on patrolling duty near the Navjyoti Public School, Yamuna Pusta, he received a secret information that a boy having smack i his possession would be coming from the side of Trans Yamuna. He, therefore, reduced the said information into writing (Ex. PW-7/A) and organized a raiding party. As about 10.20 p.m. to 10.30 p.m., the appellant was spotted near the Yamuna Bridge and was apprehended on the spot. He was given the option (Ex. PW-5/A) of being searched before a Gazetted Officer or a Magistrate. The appellant declined the offer. Thereafter, he took search of the appellant and recovered sixty five grams of smack from his possession appellant vide seizure memo (Ex. PW1/A). A sample was drawn from the seized contraband. The sample as well as the remaining smack were converted into separate pearls and they were duly sealed on the spot. CFSL form was duly filled up. In the meanwhile, npector Raja Ram Yadav (PW.1) also came on the spot, who took the sealed parcles along with CFSL Formica in his custody and deposited them in the Police Mal Khana. The evidence of Sub-Inspector Narender Tyagi (PW-7) further shows that the rukka (Ex. PW-R/A) was sent to the police station on the basis of which the FIR (EX. PW-4/B) was registered at the police station Kotwali. The rukka (Ex. PW-4/A) reveals that it was sent to the police station on 6.3.1993 at 1.15 a.m. and the FIR was registered at 1.20 p.m. Surprisingly, the secret information (Ex. PW.7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW.7), the notice under Section 50 of the Act (Ex. PW.5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW-1/A) and the report submitted under Section 57 of the Act (Ex.

PW-7/D) bear the number of the FIR (Ex. PW-4/B). The number of the FIR (Ex. PW-4/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-4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex.PW-4/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 and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution.

5. There is yet another staggering circumstance against the prosecution which has shaken the foundation of the prosecution to an irreparable extent. Inspector Raja Ram Yadav (PW-1) deposed that immediately after recovery of the contraband, he came to the spot and took the sealed packets along with CFSL form in his custody and deposited them in the Police Mal Khana. Head Constable Sehdev Singh (PW-2) testified that the said articles along with CFSL form were deposited in the Mal Khana vide entry in the Mal Khana Register (Ex. PW-2/A). Surprisingly, the Register (Ex. PW-2/A) shows that the contraband along with "CRCL Form " was deposited in the Mal Khana and the contraband along with the said "CRCL Form" was sent to the CFSL, Chandigarh. It needs to be highlighted that in the entry (Ex.PW-2/A) proved from the Mal Khana Register, there is no mention that either the CFSL form has been deposited or the same has been sent to the CFSL Chandigarh along with the sampled contraband. Thus, on this point, the evidences of Raja Ram Yadav (PW-1) and Head Constable Sehdev Singh (PW-2) stands falsified by the said entry (Ex. PW-2/A) in the Mal Khana Register. Even the report of the Chemical Examiner (Ex. PW.7/E) does not mention that any CFSL form along with the sealed packet was received in the office of the CFSL. 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 unhampered 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. Further it was necessary to prove that the CFSL form containing the specimen seals which was duly filled at the spot at the time of tacking of the sample also remained intact till it reached the office of the CFSL. 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 the Chemical examiner. Thus, the vital link between the contraband seized and the report of the Chemical Examiner (Ex. PW.7/E) was missing in the case. There is absolutely no link between the seizure with all the safeguards against tampering of the contraband articles till the sample was sent for Chemical analysis. 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 the accused. It must be borne in mind that severer the punishment, greater care has to be taken to see all the safeguards provided in a statute are scrupulously followed. The 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 conviction and sentence cannot be sustained in law.

6. In the result, the appeal is allowed and the impugned order of conviction and sentence is set aside and the appellant is acquitted of the offence punishable under Section 21 of the Act. The appellant is in custody.

He shall be set at liberty immediately, if not wanted in any other cause. The fine if paid shall be refunded to the appellant.