Amjad Shahid vs State
2004 Latest Caselaw 1188 Del

JUDGMENT

R.C. Chopra, J.

1. The appellant has come in appeal against his conviction under Section 21 of the NDPS act ( hereinafter referred to as `the Act' only) vide judgment dated 20.12.1999. He was sentenced vide orders dated 24.12.1999 and was ordered to undergo RI for 10 years and pay a fine of Rs. 1lakh. 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 others 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 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. Some other officers were also joined in the raiding party. One public witness Laxmi Narain also was included in 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 side of the road in front of Hotel Yatri. Two persons were carrying suit cases and third was having a brief case. Mohd. Taufiq pointed out towards these persons and stated that they were the persons about whom he had disclosed that they would come for giving delivery. The police party ept a watch. At about 8.00 PM two more persons came there and started talking to the persons standing in front of Hotel Yatri. After some time they started going towards the adjoining gali. On this Khushal Singh, Sub Inspector with the help of others over-powered the appellant. He was carrying one suit case of grey 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 Gazetted Officer or Magistrate. Upon the search of the suit case which he was carrying, some arms and one packet of smack were recovered. The recovered smack was weighed and was found to be 1 kg in weight. 10 gms of smack was separated as ample and thereafter the sample as well as the remaining smack were sealed by the Investigating Officer with his seal KS. Form CFSL was filled up and the seal was handed over to public witness after its use. The smack was taken into possession through aeizure memo. Case property as well as sample were sealed by SHO also with his seal KS and taken into his custody. On the basis of the Rukka sent by the IO, FIR was registered. After completion of investigation a challan under Section 21 of the Act was filed against the appellant. This court is not considering the arms recovery as the appellant has not filed any appeal against his conviction under Section 25 of the Arms Act.

3. The Trial Court framed a charge under Section 21 of the NDPS Act to which he pleaded not guilty and claimed trial.

4. In support of its case the prosecution examined PW1 ASI Jai Pal Singh, PW-2 Const Ramesh Kumar, PW-3 Inspector K.C. Sharma, Addl. SHO P.S. Karol Bagh, PW-4 HC Ramesh Kumar, PW5 HC Girish Chand, PW-6 Const. Puran Mal, PW-7 Laxmi Narain, public witness PW- SBS Tyagi, Addl. DCP North West. Investigating Officer, SI Khushal Singh was wrongly numbered at PW12. PW-7 Laxmi Narain was recalled for further examination but was numbered as PW-11 on 6.2.1999.

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 the case against him was false. He stated that he would lead defense evidence but ultimately did not produce any evidence in defense.

6. I have heard learned counsel for the parties and have gone through the impugned judgment as well as the evidence on record.

7. Learned counsel for the appellant assails the impugned conviction and sentence of the appellant mainly on the ground that the prosecution has failed to establish on record beyond reasonable doubt that the case property as well as sample were not tempered with between the alleged seizure and its testing by CFSL Chandigarh. This plea is based on the statement of PW2 Const. Ramesh Kumar who stated towards the end of his cross examination that he had obtained CFSL form from the Investigating Officer for taking a sample to CFSL, Chandigarh for analysis. Learned counsel for the appellant points out that in the entry Ex.PW3/A regarding deposit of case property in the Malkhana it was not at all mentioned that the CFSL form was deposited in the Malkhana along with the case property and the sample and as such it does not stand proved on record that the CFSL form remained in the safe custody of Moharrar Head Constable till it reached CFSL, Chandigarh. Learned counsel for the State, however, submits that the statement made by PW2 Const. Ramesh Kumar towards the end of his cross-examination is contrary to the statement made by him in his examination-in-chief in which he had categorically stated that he had obtained the sample along with CFSL form from Moharrar Head onst and as such undue importance cannot be attached to the statement made by him that he had obtained the form from the Investigating Officer. Learned counsel for the State also argues that the omission of the mentioning of CFSL form in Ex.PW3/A, in the entry regarding deposit of case property, is immaterial and inconsequential in as much as the entry regarding the dispatch of the sample to CFSL Chandigarh clearly speaks of CFSL form. According to him had the CFSL form not been deposited in Malkhana is could not have been handed over by Moharrar Head Constable to PW2 at the time of handing over of the sample for taking the same to CFSL Chandigarh. Learned counsel for the State contends that in view of the entry regarding dispatch of the sample as well as the statements of other witnesses it cannot be held that the CFSL form was not deposited in the Malkhana and as such there was tempering of the sample.

8. After perusal of the examination-in-chief of the PW2, the dispatch entry Ex.PW3/A , the statement of PW4 Moharrar Head Constable, PW3 SHO K.C. Sharma and PW 12 SI Khushal Singh, IO, this Court has no hesitation in holding that on the basis of a bald statement made by PW2 in his cross examination, which is contrary to his examination -in-chief, it cannot be held that the CFSL form was not deposited in the Malkhana or that PW 2 had received it from the Investigating Officer. This statement is falsified by the fact that in the dispatch entry in Ex.PW3/A, CFSL form was mentioned. Had the CFSL form not been deposited in the Malkhana it cold not have been handed over by Moharrar Head Constable in terms of the entry regarding dispatch of sample. PW3 SHO, PW4 M harrar Constable and PW12 have deposed on oath that CFSL form had been deposited in the Malkhana Along with case property. Their statements cannot be brushed aside on the basis of a contradictory and confusing statement of PW2. This Court has no hesitation in holding that the CFSL form was deposited in the Malkhana along with the case property and it remained in Malkhana till it was handed over by PW3 to PW2 vide Ex.PW3/A. Therefore, it cannot be said that the prosecution has failed to proved on record that the case property or sample were tempered with during the period those remained in the police Malkhana.

9. Learned counsel for the appellant has not pressed the plea that Section 50 of the Act had been violated in as much as the recovery in the present case was not from the person of the appellant but from a suit case being carried by him in his right hand.

10. In Kalema Tumba Vs. State of Maharashtra and Anr. and Rajinder and Anr. Vs. State of Madhya Pradesh reported in 1 (2004) SLT page 304 the Apex Court has held in no uncertain terms that Section 50 of the Act is not applicable to the case of search of bags etc.

11. The plea that Section 42(2) of the Act was not complied with and as such the appellant's conviction and sentence is vitiated cannot be sustained for the reason that the present case was not a case of recovery of contraband in-consequence of search of a building, conveyance or enclosed place . In State of Haryana Vs. Jarnail Singh and Others reported in 2004 SCC (Crl.) 1571, it has been clearly held that Section 42 of the Act is not applicable to the cases of search and seizure at a public place.

12. Learned counsel for the appellant has vehmently argued argued that PW7 Laxmi Narain is a stock witness of the police and was falsely introduced in the case and as such the prosecution case is liable to be rejected. A perusal of the testimony of PW7 Laxm Narain does not show that he is a stock witness of the police. In his cross examination he denied suggestion that he was a stock witness of the police or was deposing falsely at the behest of the police. Nothing has come on record to show that PW7 Laxm Narain is a false witness or was not present at the spot. Minute details given by PW7 indicate that he was very much present at the spot otherwise such vivid account could not be given by a person who had not actually seen the apprehension of the appellant and the recovery of contraband from him. The mere fact that PW7 had stated that the appellant had produced a key of the suit case from which the contraband was recovered whereas the prosecution case is that no such key was produced is not sufficient to hold that PW7 is a false witness. This statement could be on account of the time gap between the recovery and the deposition being made by the witness in the Court. Thus it cannot be said that PW7 Laxmi Narain was a stock witness of the police or has been falsely introduced in the case.

13. The contention that the change in colour and shape of the case property as it was on the date of seizure suggests tampering cannot be upheld in as much as the change in the colour and form could be on account of lapse of time, moisture and temperature etc. The police Malkhanas are neither air conditioned nor very neat and clean and as such the vagaries of weather may affect articles like smack. The appellant did not summon the public analyst/Chemical Examiner to bring on record expert opinion on the is issue. Had the public analyst or Chemical Analyst deposed that the case property being produced before the Court was not the same out of which the sample was sent to him for analysis, the result would have been different. Therefore, merely on account of some change in the colour of the smack or its shape it cannot be held that the case property has been tampered with.

14. After going through the testimonies of the police witnesses as well as PW7 Laxmi Narain public witness, this Court is satisfied that the prosecution has succeeded in establishing on record that on 4.2.1996 at about 8.15 PM the appellant was apprehended near Hotel Yatri, Karol Bagh and from his possession 1 kg smack was recovered. The report of public analyst stands proved on record as Ex.PW12/F. There is nothing on record to doubt the prosecution case in as much as the statements made by the prosecution witnesses are quite consistent, cogent and convincing. The appellant was a Pakistani national. The police officers had no ill-will against him or any motive to falsely implicate him in such a serious case. The learned Trial Judge also came to the conclusion that the prosecution case against the appellant in regard to recovery of contraband was proved beyond any shadow or doubt. There are no good grounds for taking a different view.

15. Accordingly, it is held that the conviction and sentence of the appellant is well founded. The same is upheld.

16. The appeal, therefore, stands dismissed.