Sanjay Kumar S/O Shri Badri ... vs The State
2002 Latest Caselaw 1379 Del

JUDGMENT

V.S. Aggarwal, J.

1. This is an appeal, filed by Sanjay Kumar (hereinafter described as "the Appellant"), directed against the judgment and order of sentence passed by the learned Additional Sessions Judge, Shahdara dated 13.1.2000. The learned trial Court held the appellant guilty of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropics Substances Act (for short "the Act") and sentenced him to undergo rigorous imprisonment for 10 years and a fine of Rs. 1.00 lakh. In default of payment of fine, the appellant was to undergo further rigorous imprisonment of six months.

2. The facts of the prosecution case, in brief, are that on 21.3.1997 Sub Inspector Vikramjit Singh was posted at Police Station Gokal Pur. On the say day, along with Head Constable Joginder and Constable Ganga Singh they were patrolling near Shiv Vihar Tiraha. At 8.20 p.m. he received a secret information that a boy is standing at Shiv Vihar Pulia and is in possession of charas. SI Vikramjit Singh requested 4-5 public persons to join the raiding party but they refused. Thereafter, along with the police constables, he reached Shiv Vihar Pulia at 8.25 p.m. and at the instance of the informer the appellant was apprehended. The appellant was having a bag in his hand. In the mean time, Officer in charge of the police station Bharat Singh also reached there per chance. He was informed about the facts.

3. The appellant was told about the secret information and that if he likes, his person can be searched before a gazetted officer or a magistrate. A notice was served upon him. The appellant expressed his desire to be searched before a gazetted officer. The officer in charge of police station informed the Assistant Commissioner of Police, Seelam Pur. The Assistant Commissioner of Police reached the spot at 8.50 p.m. He was disclosed the entire facts. The Assistant Commissioner of Police disclosed his identity and directed SI Vikramajit Singh to conduct the search. The bag was found to contain three polythene bags containing charas. They were weighed and found to be 1385 grams.

4. 200 grams of charas was taken as a sample. They were converted into separate parcels, sealed and taken into possession vide a recovery memo. Seals of "VS" and "BSS" were used (latter of the Station House Officer). Rukka was sent to police station on basis of which formal First Information Report was recorded. The sealed parcels along with CFSL forms were deposited in the Mal Khana. The appellant was arrested. Subsequently the representative samples were sent to the Central Forensic Science Laboratory. On receipt of the report that contents were charas, report under Section 173 of the Code of Criminal Procedure was filed.

5. In support of its case, the prosecution examined nine witnesses. Thereafter the statement of the appellant had been recorded and the prosecution evidence was put to him in the form of different questions. He denied recovery of charas from his person. He stated that he is innocent. He had come to Loni Border to meet his friend. When he was returning after meeting his friend, he stopped at a shop to purchase Pann. He was picked up and was falsely implicated. No defense evidence was produced.

6. The learned trial court, on appraisal of the evidence, held that there is no ground to reject the testimonies of the official witnesses, merely because the public witnesses had not been joined. It was held further that provisions of Sections 42 and 57 of the Act were directory and that provisions of Section 50 of the Act were complied with. With these findings, the learned trial court held the appellant guilty of the above said offence and passed the order as already mentioned above. Aggrieved by the same, the present appeal has been filed.

7. During the course of arguments learned counsel for the appellant raised two pertinent pleas, one, the case property cannot be taken to have been sealed and preserved ruling out any chances of tampering of the same and, secondly compliance of provisions of Section 50 of the Act has not been complied with.

8. So far as the first contention is concerned in principle there cannot be any dispute that it is the bounded duty of the prosecution to ensure that the case property is not tampered with. It is the duty of the prosecution to take care in this regard and once such safeguard is that CFSL form is filled up containing the specimen seal which is subsequently to be deposited in the 'malkhana' and is thereafter sent to the CFSL.

9. This court in the case of Pradeep Kumar v. State 1999 Chandigarh Criminal Cases 69 has dealt with this controversy in detail and in paragraph 21 it was held:

"21. Another safeguard which could ensure the sanctity of the seal, was the affixation of the specimen of the seal on the CFSL form which had to be done simultaneously together with the sealing of the parcels and although the learned counsel for the appellant could not show any written instructions to that effect, but there is justification in his submission that the whole purpose would be defeated if the CFSL form containing the specimen of the seal, is not deposited in the Malkhana, together with the sealed parcels, because only that course can provide an assurance that the seals have not been tampered with."

10. In another decision rendered by this court in Sher Singh Walia v. State NCT Delhi Criminal Appeal No. 88/1999 decided on 2nd October, 2000 once again the same question was considered and similar answer had been provided. Reference with advantage may also be made to the yet another decision of this court in the case of Rajan Ali v. The State (Delhi Admn) 2000(1) CLR 362. The view expressed was not different than what has already been stated above.

11. In the present case in hand Head Constable Joginder Singh, PW-1 stated that form CFSL was also filled up at the spot when the appellant had been apprehended. In identical terms was the statement of M S Sapra, PW-2 in terms that the CFSL form had been filled up at the spot. Inspector Bharat Singh, PW-5 supported the same besides Sub Inspector Vikramajeet Singh, PW-6. Orally in one voice all of them testified that CFSL form had been filled up at the spot. However, the statement of 'malkhana muharrar' had his own version to state in this regard. Jeet Singh, Head constable, PW-3 at the relevant time was the malkhana muharrar though he wanted the court to believe that CFSL form was deposited but he produced copy of register No. 19 maintained in the police station. The same in Exhibit PW-3/A. Perusal of the same reveals that there is no mention when the case property was deposited of the CFSL form. He admitted during cross examination that there is no entry about CFSL form being deposited. There was no entry further of CFSL form being sent when representative sample was sent to the CFSL. In other words, the oral evidence referred to above was in total contradiction to the register No. XIX was maintained. The improvement now being made in the oral testimonies necessarily now must be rejected and it appears that it was an after thought. Otherwise there was no occasion as to why there would not have been an entry in register No. XIX. It must therefore be held that initial precaution in this regard was to taken.

12. As regards the second contention also once again after perusal of the record the court comes to the considered opinion that provision of Section 50 of the Act were not complied with. It was not disputed even by the learned State counsel that the provisions of the Section 50 are mandatory in nature.

13. It transpires in the testimony of Head Constable Jeet Singh, PW-1, M S Sapra, PW-2, Inspector Bharat Singh, PW-5 Sub Inspector Vikramjeet Singh, PW-6 that after secret information was received and when appellant was stopped he was told that if he likes his person could be searched before a gazetted officer or a magistrate. A notice in this regard was served which is Ex. PW-1/C. The appellant wanted the search to be conducted in presence of a gazetted officer and his statement was recorded. Thereupon Assistant Commissioner of Police Shri M S Sapra had been contacted and he reached the spot. He had disclosed his identity and thereafter charas was recovered from the bag of the appellant.

14. When the record as such is perused particularly the notice PW 1/C it clearly reveals that as to what is being stated at the bar cannot be accepted as correct. The notice purported to be served under Section 50 is only signed by the Investigating Officer. If the other persons who are stated to be members of the raiding party were also present there was no occasion as to why they were not witnesses to the said notice. In all other documents supposedly prepared at the spot there is one or the other witness that has been mentioned as witness. The only logical conclusion that can be arrived at is that notice seemingly was not served as is the prosecution's case. Once it is so the obvious conclusion would be that it cannot be held that provision of Section 50 of the Act were complied with.

15. Cumulative effect of the aforesaid would be that appellant keeping in view the non compliance of the provisions of the Act and not taking due care with respect to the filling up of the CFSL form is entitled to the benefit of doubt. Accordingly the appeal is accepted. The judgment and order of sentence are set aside. Appellant is acquitted of the charges giving him the benefit of doubt.