Nagina S/O Sh. Jamuna Rai vs State
2006 Latest Caselaw 2246 Del

JUDGMENT

J.M. Malik, J.

1. The appellant was sentenced to undergo Rigorous Imprisonment for five years and to pay a fine in the sum of Rs. 25,000/-, failing which he was to further undergo Rigorous Imprisonment for two months for possessing ganja, kept in a black suit case, which in turn further contained two packets having ganja weighing 33 kilograms and 17 kilograms respectively, the total ganja being 50 kilograms, under Section 20 NDPS Act. The appellant has challenged the above said order in this appeal.

2. The learned Counsel for the appellant made the following four short submissions. Firstly, he argued that the tip off received by the police mentioned the name of Sanjeeva only. The name of Nagina is conspicuously missing. He argued that the prosecution case is thus tinged with suspicion.

3. This argument is lame of strength. I have perused the secret information which was recorded under DD No.10, proved on the record Ex. PW10/A, which clearly, specifically and unequivocally reads that Sanjeeva was coming with one companion. Although, it also mentions the name of Nagina, yet, it is doubtful whether it was written at the same time or subsequently, as the word Nagina was written upwards and not in the proper line. However, it does not make any difference because it is clearly written that Sanjeeva was coming with one companion. The argument does not make any dent upon the prosecution story.

4. The second submission made by the learned Counsel for the appellant was that the identity of case property does not stand established, for that statement of PW3 is crucial. During his examination recorded on 18.11.2003, the Court observed that the seals were not legible.

5. I find no force in these arguments. I have perused the CFSL report Mark-A. It clearly reads that at serial number 9, that the condition of sealed parcels were found intact and tallied with the specimen seals. It is not the case property but the sample which is more significant. The seal of the case property may get disturbed while these are brought to the Court or kept in the malkhana. Seals also get disturbed due to wear and tear of the time. The CFSL report shows that the exhibits 1-6 produced before it were identified as ganja after analysis by Chemical, Thin Layer Chromatographic and Gas Chromatographic methods. In case the appellant has got some doubt about the case property which was exhibited before the trial court, he should have made request to the Court that the case property should be re-examined before the CFSL analyst. Consequently, this ground, too, does not ensure in favor of the appellant.

6. The next submission made by the learned Counsel for the appellant was that only police officers have supported the prosecution case. He pointed out that absence of independent evidence adds another spoke in the wheel of doubt.

7. I am unable to locate substance in this argument. Firstly, learned Counsel for the appellant himself admitted that there is no evidence of enmity or hostility between the appellant and the police. Secondly, there are number of authorities which clearly go to show that under these circumstances reliance should be placed on the official testimony. In State Govt. of N.C.T. of Delhi v. Sunil Kumar 2001 (1) C.C. Cases (SC) 6, the Apex Court was pleased to hold:

Hence, it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hand over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version, to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other material, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, no to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

8. Reliance was placed upon the statements of the police officers in the cases reported in Nathusingh v. State of Madhya Pradesh ; Ahir Raja Kohmia v. State of Sorashtra ; T. Shankar Prasad v. State of Andhra Pradesh Crl. Appeal No. 909 of 1997, decided by Hon'ble Supreme Court on 12.01.2004; Dalbir Kaur and Ors. v. State of Punjab 1977 Cr.L.J. 273 (SC); State of Kerala v. M.M. Mathew ; M. Prabhulal v. The Assistant Director DRI 2003 (3) CC Cases (SC) 67; Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. 2001 IV AD (SC) 393; State of U.P. v. Anil Singh , Pal Singh and Ors. v. State of U.P. .

9. The last submission made by the learned Counsel for the appellant was that under the new amendment, no maximum sentence has been prescribed but the Court can award sentence up to ten years. He explained that the appellant is already incarcerated in Jail for the last more than three years and it should be ordered that he be released on the imprisonment already undergone.

10. I see no merit in these arguments. It may be recalled that the appellant was found in possession of as much as 50 kilograms of ganja. The lower court has already taken a lenient view. Thus, the appeal has no merits and, therefore, the same is hereby dismissed.