Mobin Fathu Bhai Mulani vs N.C.B.
2000 Latest Caselaw 887 Del

ORDER

DALVEER BHANDARI, J.

1. This appeal is directed against the judgment of the learned Special Judge, New Delhi in Sessions Case No. 90/96 under Sections 21, 22, 28 & 29 of the NDPS Act. The brief facts necessary to dispose of this appeal are recapitulated as under:

2. In the instant case, the complaint has been filed by the Narcotic Control Bureau against the appellant on the basis of the secret information received by the Bureau on 22.6.1996. The appellant was apprehended on 22.6.1996 at the Custom Departure Hall, I.G.I.Airport, New Delhi while he was proceeding to Singapore.

3. Admittedly, the raiding party comprised of D.C. Mishra-PW-4, Shahid Hassan-PW-1 and the two public witnesses namely Mohan Singh and Bishan Singh. On search, some brown powder was recovered. Out of the recovered substance, two representative samples of five grams each were drawn and kept in two envelopes marked as A-1 and A-2. The envelopes were sealed with the paper slips and with the seals of NCB 08. The samples were sent to CRCL for testing through PW-6 Along with a forwarding letter Ex.PW3/D. It tested the sample positive for heroin/diacytel morphine.

4. The charge against the appellant was framed under section 21 of the NDPS Act on 28.11.1996 for illegally possessing 1.050 Kg. of heroin/diacytel morphine. The appellant was also charged under section 28 read with 23 NDPS Act for attempting to illegally export the heroin/diacytel morphine out of the country.

5. The prosecution in support of its case cited 13 witnesses but ultimately examined only 10 prosecution witnesses. According to the findings of the trial court, the prosecution has been able to prove its case and all the mandatory provisions of the Act have been complied with. The appellant was convicted under section 28 read with section 23 of the NDPS Act.

6. The appellant aggrieved by the order of the learned Special Judge has preferred the appeal before this court. Mr. Dinesh Mathur, learned Senior Counsel who appeared Along with Mr. Sanjeev Kumar for the appellant, submitted that the mandatory provisions of the Act have not been complied with. The accused/appellant was not given the option as envisaged under Section 50 of the Act.

7. Mr.Mathur, submitted that both the public witnesses have not been examined in this case.

8. Mr.Mathur also submitted that there is no compliance of Section 55 of the NDPS Act.

9. Mr. Mathur further submitted that the substance (heroin/diacytel morphine) recovered from the accused was not properly sealed and preserved. The cardboard box was tied with a string in which the substance was kept. Learned counsel for the appellant submitted that the string could be removed without tampering with or disturbing the paper slip and seals in any manner. While examining PW-1, Sahid Hasan, the learned Additional Sessions Judge mentioned as under:

"(At this stage, a card board box duly sealed with the seal of NCB with a paper slip is produced and the seal of NCB is intact. It has been observed that card board box has been tied with a string and the string can be removed without tampering with the paper slip and seal and which has been demonstrated in the court."

10. Mr.Mathur submitted that in view of this finding of the Special Court, the possibility of tampering with the case property cannot be ruled out. I would first deal with this submission of Mr. Mathur. In support of this contention he placed reliance on the judgment of this Court in Kailash Singh v.State (Delhi Admn.) . This court observed that the case property was not properly preserved. So, the possibility of some tampering having been done in the Malkhana with regard to the case property cannot be ruled out. The court in the said case further observed that the prosecution case suffers from these vital deficiencies and it would-not be safe to convict the appellant.

11. Mr.Mathur in support of his submissions also placed reliance on the judgment of the Hon'ble Supreme Court in Valsala v.State of Kerala reported in 1993(2) Crimes 267. The court observed that the articles seized have not been preserved or kept in proper custody and proper form so that the court can have the complete assurance that the substance which was seized from the accused was sent to the Chemical Examiner. There is a big gap and an important missing link in the prosecution caes. Consequently, the court set aside the conviction of the appellant and allowed the appeal.

12. Mr.Satish Agarwal, the learned counsel appearing for the respondent, submitted that non-production of case property itself is not of vital consequence. He submitted that it is a case of a large recovery of heroin. He placed reliance on the judgment of the Punjab and Haryana High Court Balraj Singh v. The State of Punjab reported in 1982 Crl. L.J. page 1374. In this case the court observed that "Usually, if not invariably, conviction in a criminal trial rests on the direct testimony and the credibility and acceptability thereof. The production of case property later in Court is only a corroborative piece of evidence. If the direct testimony is credible and unimpeachable and in the view of the Court is sufficient to establish the charge and a consequent conviction it cannot be said that the whole of it would lose all its value by mere non-production of the case property."

13. I have heard learned counsel for both the parties and perused the evidence and other relevant records.

14. From the entire evidence on record, it is clearly borne out that the case property was tied with only a string and the possibility of tampering the case property cannot be ruled out. It was demonstrated before the special court that the seized substance preserved in the cardboard box could be taken out from the box without disturbing the paper slip and seals affixed on the box. In this view of the matter, the possibility of tampering with the recovered substance cannot be ruled out. It is difficult to conclude with certainty that what has been examined by the CFSL is the one which was recovered from the accused. In view of this conclusion and on the basis of facts and circumstances of this case, the appellant has to be given benefit of doubt. In cases arising out of the provisions of the NDPS Act, the legislature in its wisdom has provided a very stringent punishment. The minimum period of sentence prescribed by the legislature is 10 years RI and a fine of Rs.1 lakh. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to the NDPS Act. There has to be a perfect balance and fine tuning between the interest of the society and the protection of the statutory safeguards available to the accused.

15. The aforesaid judgment of Balraj Singh cited by Mr.Agarwal, learned counsel for the respondent, has no application to the facts of this case.

16. The Apex court in the case of Valsala v. State of Kerala and this court in the case of Kailash Singh v. The State (Delhi Admn.) have given benefit of doubt to the respective accused persons, where the case property was not kept intact or properly preserved. Follwong the ratio of these judgment, the benefit of doubt has to be given to the appellant. Since the appeal of the appellant succeeds on this ground, therefore, it is not necessary to deal with the other submissions of the appellant.

17. Consequently, the appeal is allowed and the sentence of the appellant is set aside. The appellant shall be released forthwith, if not required in any other case.