Arif Butt vs State
2004 Latest Caselaw 1184 Del

JUDGMENT

R.C. Chopra, J.

1. This appeal is directed against a judgment dated 20th December, 1999 by which the appellant was convicted under Section 21 of the NDPS ( hereinafter referred to as `the Act' only). Vide order dated 24th December, 1999 the appellant was sentenced to undergo RI for 10 years and pay a fine of Rs.1 lakh. In default of payment of fine, he was ordered to undergo SI for two years.

2. The facts relevant for the disposal of this appeal, briefly stated, are that an accused Mohd. Taufiq was arrested by the Special Staff of the police in case FIR No.45/96 and 46/96 registered at PS Karol Bagh. His interrogation disclosed that he and some thers belonging to a gang based in Pakistan had come from Pakistan to India for the sale of illegal arms and contraband. He disclosed that on 4.2.1996 some of his associates including the present appellant would come to Hotel Yatri with heavy quantity of smack and arms and give delivery to some Indians. This information was recorded in DDNo.19-A and a raiding party was organized under the supervision of ACP/KB S.B.S. Tyagi and ACP Sh. M.S. Chikara, Operation Cell Central District. Many other officers were also joined in the raiding party. One public witness Laxmi Narain also agreed to join the raiding party. At about 7.00 PM Nakabandi was done near Hotel Yatri. At about 7.30PM three persons came from the side of WEA gate No.1 and stood on the other sie of the road in front of Hotel Yatri. Two persons were carrying suit cases and third was having a brief case. Mohd. Taufiq pointed towards those persons and stated that they were the persons about whom he had disclosed. The police party kept a watch. A about 8.00 PM two persons came and started talking to the persons standing in front of Hotel Yatri. After some time they started going to the adjoining gali. On this Ins. Sukhvinder Singh with the help of others over-powered them inducting the appellat. He was carrying one suit case of cream colour in his right hand. Other police officers over-powered other persons. The appellant was served with a notice under Section 50 of the Act but he declined the offer to be searched in the presence of a Gazettd Officer or Magistrate. Upon the search of the suit case which he was carrying three white colour bags were recovered. When these bags were opened they were found to be containing smack kept in polythene. The recovered smack was weighed and each bag was found containing 1 kg smack. From each of the bags 10 gms was separated as sample and thereafter the samples as well as the remaining smack were sealed with the seal KCS of Ins. K.C. Sharma as well as the seal SS of Insp. Sukhvinder Singh. Form CFSL ws filled up, the seal of IO was put thereon and thereafter handed over to public witness. The smack was taken into possession through the seizure memo. In the suitcase six pistols with spare magazines were also recovered. This court is not considering said recovery as the appellant has not filed any appeal against his conviction under Section 25 of the Arms Act. On the basis of the rukka sent by the IO FIR 50/96 was registered. After completion of investigation a challan under Section 21 of the Act as filed against the appellant.

3. A charge under Section 21 of the NDPS Act was framed by the learned Trial Judge to which appellant pleaded not guilty and claimed trial.

4. In support of its case the prosecution examined PW1 ASI Jai Pal Singh, PW-2 Con. Ramesh Kumar, PW3 HC Ramesh Kumar, PW4 HC Girish Chand, PW5 HC Pawan Kumar, PW6 Ins. K.C.Sharma, PW-7 Ins. M.s. Chikara, PW8 Laxmi Narain, public witness, PW9 S.S. Tyagi, Addl. DCP and PW-10 Ins. Sukhvinder Singh, IO.

5. After the close of the prosecution evidence the appellant was examined under Section 313 Cr.P.C.. He denied the prosecution case and stated that it was a false case. Initially he stated that he would lead defense evidence but later on did not produce any witness.

6. I have heard learned counsel for the appellant. Learned counsel for the State. I have gone through the impugned judgment and the evidence on record.

7. The first and foremost contention advanced by learned counsel for the appellant is that a serious doubt in regard to the result of CFSL and the case property arises on account of the fact that the prosecution has not been able to prove on record that after the sample proceedings the CFSL form was deposited in the Malkhana and was sent to CFSL Chandigarh Along with sample parcel. He points out that PW2 Const. Ramesh Kumar who had allegedly taken the sample parcel to CFSL Chandigarh admitted in his cross examination that he had taken the CFSL form from the Investigating Officer. According to learned counsel for the appellant this statement of PW2 gets supported from the fact that in the Malkhana register no entry was made in regard to the deposit of CFS forms Along with the case property. Learned counsel for the State controverts this submission by pointing out that in his examination-in-chief PW2 Const. Ramesh Kumar had stated that he had obtained the sample portion Along with CFSL forms from Mohararead Const.Malkhana and only in his cross examination stated that he had taken CFSL forms from IO which statement appears to be on account of some confusion only. He submits that this statement is against records also in as much as the entry Ex.PW4/A regarding handing over of the sample to PW2 for taking it to CFSL Chandigarh CFSL says that CFSL forms were also handed over and as such it is proved on record that CFSL forms had been deposited in the Malkhana along with the case property. He also submiters that PW6 SHO Insp. K.C. Sharma categorically says that the sample pulandas and form CFSL were handed over to him at the spot itself by the IO and he deposited the same with Moharar H.C. Malkhana. In the face of this statement it cannot be argued on the basis of bald statement of PW2 that the CFSL forms had not been deposited in the Malkhana.

8. After considering the submissions made by learned counsel for the parties, this Court is of the view that merely on the basis of a bald statement of PW2 Const. Ramesh Kumar that he took CFSL forms from the IO it cannot be held that the CFSL forms had not been deposited in the Malkhana. PW2 in his examination-in-chief had categorically stated that he had obtained one sample portion Along with form CFSL forms from Moharrar Head Constable. Therefore it is not understandable as to how in his cross examination he made a statement that he had taken the CFSL forms from the I.O. The statement of PW3 Ramesh Kumar Head Const, who was working as Moharrar Malkhana on the date of the incident, shows that on 7.3.1996 he had handed over the sample pulanda Along with orms CFSL to PW2 Ramesh Kumar for being deposited at CFSL Chandigarh. He admitted that in Col No.4 the fact of the deposit of the forms CFSL was not mentioned but he denied the suggestion that the forms were not deposited. The statement of PW3 is fortiied by the fact that in malkhana entry PW4/A dated 7.3.1996 it was specifically recorded that along with samples CFSL forms were also sent to CFSL Chandigarh. Had these forms not been deposited there was no question of the handing over of the same to PW2 for delivery at CFSL Chandigarh. PW6 Ins. K.C. Sharma SHO PS Karol Bagh has also stated that the Investigating Officer had produced before him the sample parcels Along with CFSL forms which he had deposited with Moharrar Head Const (Malkhana). Nothing could be brought out in his cross examination to show that he was deposing falsely. Therefore, on the basis of a contradictory and confusing statement of PW2 regarding receipt of CFSL forms from IO it cannot be held that the CFSL forms were not deposited in the Malkhana. The contention of the learned counsel for the appellant in this behalf therefore stands rejected.

9. Learned counsel for the appellant has further argued that the entire prosecution case is that three packets of smack wg.1 kg each were recovered from the appellant and as such three separate samples of 10 gms each were drawn and sent to CFSL for analysis whereas PW2 Const. Ramesh Kumar, who had taken the sample to CFSL, says that he had received from Malkhana only one sample parcel which creates a serious doubt in the prosecution case . After considering this submission of learned counsel for the appellant , this Court finds that the aforesaid statement of PW2 does not show that only one sample was taken by him to CFSL Chandigarh. PW2 had stated that one sample portion was taken by him to Chandigarh which statement may be on account of the fact that a l the three samples being very small in size could have been wrapped or tied together so as to create an impression that it was one packet. The CFSL report Ex.PW10/F categorically says that three sealed parcels were received for analysis. If PW2 had carried only one sample parcel, this report could not speak of three parcels. The statements of PW6,7,8,9 and 10 categorically speak of three samples from the three packets of smack recovered from the appellant. These statements have not been controverter. The entries in the Malkhana register as well as recovery memo speak of three samples and as such on the basis of ipsi dixi of PW2 that one sample parcel was taken by him to CFSL Chandigarh, it cannot be held that all the three samples were not sent to CFSL Chandigarh for analysis.

10. Learned counsel for the appellant has argued that the case property as well as samples have been tempered with. After considering the submissions it cannot be held that the case property or sample parcels were tempered with. The statements of prosecution witnesses clearly show that the samples were sealed at the spot itself with the seals of the IO as well as SHO PW6 and after the sealing of the case property and samples the seal of the IO was handed over to the public witness PW8. The change in the co our and shape of the smack produced in the Court could be on account of time gap between the seizure and the production of the case property in the Court. The case property could have solidified on account of moisture, temparature etc. The Malkhanas a neither air conditioned nor very neat and clean so as to preserve the property deposited therein from the vagaries of weather. PW9 SBS Tyagi the then ACP as well as PW10 IO Sukvinder Singh. IO have deposed that the change in the colour and the state of the smack could be on account of temperature, moisture and passage of time. In case the appellant wanted to show that the case property being produced in the Court had been tempered with or changed or was not the same from which the samples were drawn the appellant could have summoned the Chemical examiner who had given the report PW10/F and brought on record his expert opinion to show that the case property being produced before the court had been tempered with. Nothing was done in this behalf and is such merely on account of some change in the colour and condition of the case property, this Court is not inclined to hold that the case property had been tempered with.

11. Learned counsel for the appellant has laid a great deal of stress on the question as to whether the suit case from which the contraband was recovered from the appellant was locked or not. He points out that the public witness PW8 had stated that the ke of the suit case was produced by the appellant and PW7, the then ACP, also stated that the key was taken into possession but according to other witnesses including the IO (PW10) there was no key. According to him this contradiction creates a serious doubt in the prosecution case benefit of which must go to the appellant. After examining the testimonies of the prosecution witnesses, recovery memo and the documents proved on record this Court finds that it was never the case of the prosecution that the suit case from which the contraband was recovered was locked or that the appellant had produced any key with which it was opened. PW8 and PW7 appear to be making these statements out of confusion due to lapse of time between the recovery and their statements. Had the suit case been under any lock and key, and had it been opened with the help of any key, the recovery memo itself would have mentioned the taking into possession of the key along with the case property. In that event the I.O would have happily brought it on record as it would have further strengthened the prosecution case. Therefore it cannot be said that a key has been withheld or the contradiction is so serious that it creates a doubt in regard to the recovery. On one hand learned counsel for the appellant contends that Pw8 Laxmi Narain was a falsely introduced witness and was not present at the spot and on the other hand on the basis of his statement regarding key, he wants this Court to hold that the police witnesses are concealing the key or there is a contradiction in the case of the prosecution. This Court therefore is of the considered view that the statements of PW7 and 8 in regard to the key of the suit case are on account of failure of their memory due to lapse of time and as such cannot be attached any importance.

12. Learned counsel for the appellant has not pressed the plea of violation of Section 50 of the Act for the reason that the alleged recovery was from the suit case and not from the person of the appellant. The judgments of the Apex Court in Kalema Tumba Vs State of Maharashtra and Anr., Sarjudas and Anr. Vs. state of Gujarat (1999) 8 SCC and Birakishore Kar Vs. State of Orissa clearly says that Section 50 of the Act comes into play only in case of personal search of the accused. In a recent judgment of the Apex Court in Rajender Kumar Vs. State of Madhya Pradesh reported in 1 (2004) SLT 304, this position has been reiterated.

13. The contention that Section 42(2) of the Act was not complied with and as such the conviction of the appellant stands vitiated is liable to be rejected for the reason that Section 42 of the Act was not at all attracted to the alleged recovery in this case which was not in persuance of search of any building, conveyance or enclosed place. In State of Haryana Vs. Jarnail Singh and Other 2004 SCC (Crl.) 1571 the Apex Court has clearly held that in case of recovery of contraband at a public place to Section 2 is not attracted.

14. There is no violation of Section 55 of the Act for the reason that SHO PW6 had reached the spot and the Investigating Officer PW10 had handed over the case property including samples to him at the spot itself. After putting his seals thereon he had deposited the case property in Malkhana. Section 57 of the act is also not violated on account of the fact that ACP PW7 who was a Gazetted Officer had also reached at the spot and had come to know of the arrest and recovery of the contraband from the appellant and as such no separate information was required to be sent to him within 48 hours. Moreover when the FIR itself contained the details of the recovery as well as the accused Section 57 of the Act stood complied with in letter and spirit.

15. A perusal of the statement of the prosecution witnesses which include a public witness PW8 Laxmi Narain satisfactorily establishes on record that on 4.2.1996 a raid was organized and the appellant was arrested and from his suit case which he was carrying three kg of smack was recovered . The prosecution witnesses have made consistent and convincing statements regarding the recovery of the contraband from the appellant. Nothing could be brought out in their cross examinations to show that they are deposin falsely. The appellant is a Pakistani National and as such the police and witnesses had no reason to falsely implicate him in such a serious case and depose against him falsely. Learned Trial Judge after considering the evidence on record and the submistion made on behalf of the appellant came to the conclusion that the prosecution had succeeded in establishing its case against the appellant beyond reasonable doubt. This Court has no good grounds to take a different view. Holding that the statements made by the prosecution witnesses are wholly reliable and trust-worthy, this Court has no hesitation in concluding that the prosecution case against the appellant in regard to the recovery of 3 kgs of smack stands proved beyond any reasonable doubt. The convnction of the appellant therefore was fully justified and is upheld.