Mr. Paramjit Singh @ Pammi vs State
2008 Latest Caselaw 1203 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         Crl. Appeal No. 2/1994

                                          Reserved on      : July 23, 2008

%                                         Date of Decision : August 1, 2008


Mr. Paramjit Singh @ Pammi                ..... Appellant
                      Through:            Mr. Lokesh Kumar, Advocate

                          versus

State                                     ..... Respondent
                               Through:   Mr. Manoj Ohri, APP.


CORAM:
HON'BLE MR. JUSTICE MANMOHAN

1. Whether Reporters of local papers may be
   allowed to see the judgment?                                  Yes
2. To be referred to the Reporter or not?                        Yes
3. Whether the judgment should be reported in                    Yes
   the digest?


                          JUDGMENT

MANMOHAN, J :

1. The present appeal has been filed seeking to set aside the

judgment and order dated 19th October, 1993 passed by learned

Additional Sessions Judge, Delhi Mr. Kuldeep Singh arising out of

FIR No. 42/1988 registered with PS Hauz Quazi, Delhi.

2. Relevant facts of this case are that on 21st February, 1988 at

about 2 pm when SHO Mr. Ram Singh Chauhan PW-3 along with

ASI Ajit Singh, Investigating Officer PW-8 were on patrolling duty,

they received secret information that a sardar carrying smack

wearing a black coloured turban and coca cola coloured jersey,

would come from Jama Masjid‟s side and proceed towards Farash

Khana.

3. At about 2.20 pm a raiding party was formed and a nakabandi

of the area was carried out. The prosecution‟s version is that a

number of passersby were asked to join the raiding party as

independent witnesses, but as the shops in the area were closed on

account of holiday only Mr. Gopal Singh PW-4, a TSR Driver agreed

to join the raiding party.

4. At about 2.45 PM the Appellant/Accused was seen walking on

the Chawri Bazar road with a blue coloured raxene bag in his right

hand. On being identified by the informer, the Appellant/Accused

was apprehended and he was given an option to be searched before

a Gazetted Officer or a Magistrate in accordance with Section 50 of

the Narcotic Drugs and Psychotropic Substances Act (hereinafter

referred to as the „NDPS Act‟). However, as the Appellant/Accused

did not give any response to the search option, SHO Mr. Ram Singh

Chauhan requested ACP Baljit Singh PW-6 to reach the spot. At

about 3.15 pm the ACP reached the spot and once again gave an

option to the Appellant/Accused to be searched in the presence of a

Magistrate, but as the Appellant/Accused refused the said option, the

ACP who is a Gazetted Officer, recorded this refusal. A certificate to

that effect issued by ACP Baljit Singh is marked Ex. PW-3/A.

5. Thereafter the bag of the Appellant/Accused was searched and

it was found to contain four packets of heroin, weighing one kilo gram

each. After drawing samples of five grams from each of the packets,

the remaining smack/heroin along with each of the four sample

packets were sealed with the seals of 'ASP' and 'RS' of ASI Ajit

Singh and SHO Ram Singh respectively. While the seal „ASP' was

handed over to Ct. Jai Singh PW-5, the Second seal of „RS'

remained with SHO Ram Singh himself.

6. Admittedly, a CFSL form was immediately filled at the time of

search. Even „Rukka‟ which is exhibited as Mark „A‟ and which is

the basis on which the First Information Report No. 42/1988 was

registered, mentions that a CFSL form was filled. The

Appellant/Accused was arrested under Sections 22, 61 and 85 of the

NDPS Act and according to the prosecution, the case property

namely sealed samples, sealed packets of heroin and accompanying

documents were deposited in Malkhana on 21st February, 1988 at

5.45 PM. However, Register No. 19 was only signed by the

Investigating Officer and not by the SHO.

7. On 22nd February, 1988 the Appellant/Accused was produced

before a Magistrate and was remanded to custody. On 23rd

February, 1988 the four seized samples were deposited for analysis

and verification with the office of CFSL by HC Jai Singh.

8. On 18th March, 1988 the CFSL in its report stated that the four

samples had tested positive for heroin. After receiving the said report

the police filed a challan against the Appellant/Accused.

9. During the trial, the prosecution examined eight witnesses

namely Duty Officer SI Dharam Singh PW-1, Malkhana Moharrar Ct.

Jaswant Singh PW-2, SHO Inspector Ram Singh Chauhan PW-3, Mr.

Gopal Singh PW-4, Ct. Jai Singh PW-5, ACP Baljit Singh PW-6, Ct.

Suraj Pal PW-7and IO ASI Ajit Singh PW-8. The Appellant/Accused

did not lead any evidence but in his statement under Section 313 Cr.

P.C. claimed that he had been falsely implicated.

10. On 19th October, 1993 the trial court convicted the

Appellant/Accused under Sections 21, 61 and 85 of the NDPS Act

and sentenced him to undergo rigorous imprisonment for ten years

and to pay fine of rupees two lakhs, in default whereof undergo

rigorous imprisonment for three years.

11. Mr. Lokesh Kumar, learned Counsel for Appellant/Accused

challenges the impugned judgment firstly on the ground that PW-4

Mr. Gopal Singh was not an independent witness. Learned Counsel

contends that the fact that the Investigating Officer went to Dehradun

to bring the independent witness for deposition before the trial court

as well as the contradiction in the evidence of the Investigating

Officer and the independent witness as to how he was asked to join

the raiding party clearly shows that PW-4 was a person known to the

police officer and not an independent witness. In this context, Mr.

Lokesh Kumar relied upon the cross examination of Mr. Gopal Singh

PW-4.

12. However, on a reading of entire evidence on record this Court

is of the view that PW-4 was an independent witness who had been

selected to join the raiding party at the nakabandi site. The

Investigating Officer Mr. Ajit Singh PW-8 in his evidence has

specifically deposed that on 21st February, 1988 the shops were

closed on account of a holiday. He has further stated that five or six

persons at the site were asked to join the raiding party but only PW-4

had agreed. PW-8 has even mentioned the name of some of the

persons who had refused to join the raiding party as an independent

witness. This deposition has been corroborated not only by

Mr. Gopal Singh PW-4 but also by the SHO Mr. Ram Singh Chauhan

PW-3. This Court is also of the view that even if the Investigating

Officer had gone to Dehradun to bring Mr. Gopal Singh to depose

before the Court, it would not prove that PW-4 was a planted witness

of the Investigating Officer. In fact the Apex Court in P.P. Beeran vs.

State of Kerala reported in (2001) 9 SCC 571 has held that there is

no mandatory requirement of having public witnesses in an NDPS

case. The Supreme Court has further held that if the evidence of the

Police Officer inspires confidence, then even if it is not corroborated

by any other source, it can nonetheless be made sole basis for

conviction.

13. Mr. Lokesh Kumar next argued that the police version of search

and seizure on 21st February, 1988 was contrary to human conduct

inasmuch as it is impossible that after apprehending the

Appellant/Accused at 2.45 pm the police did not search his bag till the

ACP reached the spot. This contention of the Appellant/Accused

also does not impress this Court as firstly the time gap between the

apprehension of the Appellant/Accused and the search of the bag in

ACP‟s presence is only about half-an-hour and secondly from the

evidence on record it is apparent that immediate search was not

carried out as the raiding party wanted to ensure that the rights of the

Appellant/Accused under Section 50 of the NDPS Act are not

violated. In fact the course adopted by the Police of conducting a

search in presence of the ACP needs to be commended.

14. Mr. Lokesh Kumar further submitted that there was non-

compliance of Section 55 of the NDPS Act inasmuch as the case

property was deposited by ASI Ajit Singh on 21st February, 1988 and

not by the SHO Ram Singh Chauhan as mandated by the said

provision. In this context, Mr. Lokesh Kumar referred to and relied

upon the extract of Register No. 19.

15. This Court is of the opinion that this submission is contrary to

facts inasmuch as firstly the Inspector Ram Singh Chauhan PW-3 in

his evidence-in-chief and cross examination has emphasized that in

his presence the case property had been deposited in the Malkhana.

Even HC Jaswant Singh PW-2 who was the then Malkhana Moharrar

of Police Station Hauz Quazi has specifically deposed that on 21st

February, 1988 the SHO Mr. Ram Singh Chauhan accompanied with

the IO ASI Ajit Singh had come to Malkha at 5.45 pm and deposited

the case property. In fact, there is no statutory requirement that both

the SHO and IO must sign the Register 19. The Apex Court in

Ouseph vs. State of Kerala reported in (2004) 10 SCC 647 as

well as in Babubhai Odhavji Patel vs. State of Gujarat reported in

(2005) 8 SCC 725 has held that provisions of Section 55 are not

mandatory but only directory. In any event, this Court is of the view

that just because the name of SHO is not mentioned in column No. 3

of Register 19 does not mean that he was not present at the time the

case property was deposited in Malkhana, specially when there is

oral testimony to this effect.

16. Mr. Lokesh Kumar next submitted that in the present case there

was non-compliance of Section 42 of the NDPS Act. According to

Mr. Kumar even though the Investigating Officer had received prior

secret information that the Appellant/Accused would be carrying

smack, yet he had neither reduced the said information in writing nor

sent the same to his immediate superior. This submission of Counsel

for Appellant/Accused is untenable in law as in the present case the

search was carried out in a public place. The Apex Court in State of

Haryana & Ors. Vs. Jarnail Singh reported in (2004) 5 SCC 188

has held , "The requirement of the proviso to Section 42 was also not

required to be complied with since the recovery was made at a public

place and was, therefore, governed by Section 43 of the Act which

did not lay down any such requirement." Consequently the provisions

of Section 42 of the NDPS Act would not apply to the present case.

17. Mr. Lokesh Kumar lastly submitted that vital link evidence was

missing as the prosecution failed to prove that CFSL form was

deposited along with the case property at Malkhana and further that

the said form was sent along with the samples to CFSL.

Mr. Kumar also pointed out that seals of 'APS' and 'RS' remained in

possession of the raiding party and were neither handed over to the

independent witness nor deposited in the Malkhana. Learned

Counsel for the Appellant/Accused referred to the evidence of HC

Jaswant Singh Malkhana Moharrar PW-2 as well as deposition of Ct.

Jai Singh PW-5 to show that while 'RS' seal remained with the SHO,

the 'APS' seal was handed over by the Investigating Officer to Ct. Jai

Singh PW-5 who in turn had delivered/deposited the samples with

CFSL for examination. The endeavour of learned Counsel for

Appellant/Accused was to show that in such circumstances tampering

of seized products could not be ruled out and therefore the

Appellant/Accused was entitled to benefit of doubt. In this

connection, learned Counsel for Accused/Appellant referred to and

relied upon following judgments :-

a) Safiullah Vs. State (Delhi Admn) reported in I (1993) CCR 161;

b) Mool Chand Vs. State reported in 49 (1993) Delhi Law Times 649;

c) Pradeep Kumar Vs. State reported in 1990 C.C. Cases 69 (HC);

d) Shankaria @ Shankar Vs. The State (Delhi Admn.) reported in 1994 (4) Delhi Lawyer 225;

e) Ramdayal Bishnoi Vs. State reported in 2001 I AD (Delhi) 990;

f) Karam Chand Vs. The State reported in 2006 I AD (Delhi) 1; and

g) Lachho Devi Vs. State reported in 1990 (2) C.C. Cases 395 (HC)

18. Learned Counsel for State, Mr. Manoj Ohri has painstakingly

taken this Court through the evidence of SHO Mr. Ram Singh

Chauhan PW-3, Ct. Jai Singh PW-5, Investigating Officer PW-8 to

contend that a CFSL form was contemporaneously filled up at the

time of search and seizure and further the said form had been

deposited with the Malkhana Moharrar. According to Mr. Ohri,

Register 19 is a mere repetition of the recovery memo and non

mention of CFSL form in the said Register is irrelevant.

19. Mr. Ohri relied heavily on the report of CFSL wherein under the

heading "Description of Articles and Conditions of Samples" the

CFSL has remarked, "received four sealed parcels with seal intact

„ASP' and 'RS' as per official specimen enclosed". Mr. Ohri

submitted that as long as the CFSL endorsement says that seal on

the sample parcel tallied with specimen seals, it would mean that the

seals on the parcels tallied with the seals on the CFSL form. Mr. Ohri

also referred to the trial court observation, while recording the

evidence of Inspector Ram Singh Chauhan, PW-3, that a sealed

packet duly sealed was opened and it was found to contain smack.

20. Mr. Ohri further contended that even though the Investigating

Officer had given his seal to constable Jai Singh,PW-5 who had

carried the samples from Malkhana to CFSL, but the other seal,

namely, „RS' had always remained with the SHO. He contended that

as both the seals never remained in possession of a single Police

official, there was no possibility of tempering with the samples.

Mr. Ohri also submitted that there was no legal obligation on the

Police to hand over its seals to an independent witness or to discard

old seals. He further referred to the facts of the case to submit that

events had moved at such a fast face that the Police did not have any

opportunity, even if they wanted, to tamper with the sample sent to

CFSL for testing. Lastly, Mr. Ohri submitted that as there was no

suggestion during cross-examination that the Police officials were

hostile to the Accused, this Court should not examine the issue of

tampering of seals. In this context, Mr. Ohri relied upon the following

judgments :

(a) Rameh Kumar Rajput @ Khan vs. State, NCT of Delhi bearing Criminal Appeal No. 755/2004.

       (b)     Rameshwar vs. State, 2002 (63) DRJ 538.
       (c)     Shamim vs. State of Delhi, being Criminal Appeal No.
               161/2000.

        (d)     Siddiqua vs. Narcotic control Bureau reported in I
               (2007) DLT (Crl.) 481.

21. This Court is of the view that a mere omission on the part of a

witness to state that along with the sample parcels, he took the CFSL

form is not fatal. This is more so, when there is oral evidence not

only by the Investigating Officer and SHO but also by the carrier of

the samples that a CFSL form was filled up at the stage of seizure

and the said form had been deposited with the Malkhana Moharrar.

Even the CFSL by way of a written certificate had confirmed that the

seals on the sample parcel tallied with the specimen seal. It is

pertinent to mention that there is no cross-examination of the SHO

and Constable Jai Singh, the carrier of the samples, on the deposit

and carrying of CFSL form.

22. Moreover, keeping in view the facts that firstly there is no

allegation of animosity, secondly there is no delay in sending the

samples to CFSL and thirdly the Appellant/Accused has been found

in possession of a very large quantity of heroin, this Court is of the

view that the Appellant/Accused is not entitled to any benefit of doubt.

23. As far as non-deposit of seals is concerned, this Court is of the

view that as held in Siddiqua (supra), there is no provision in the

NDPS Act which makes it mandatory either to hand over the seals to

any independent witness or to discard the old seals. The object is to

ensure that seals of samples are intact and they tally with the seals

placed at the time of search. In the present case, the CFSL report

proves beyond doubt that the seals were intact and had not been

tampered with. This Court is also of the view that the

Appellant/Accused cannot urge that the seals had been tampered

with as in the cross-examination of the prosecution witness it has not

even been so remotely suggested.

24. There is no discrepancy or any other fact on record which

throws any doubt on the Prosecution‟s case. In fact the prosecution

has been able to prove its case beyond doubt.

25. Before concluding, this Court would like to place on record its

appreciation of the manner in which both the learned counsel had

argued the matter with precision and clarity.

26. In the result, the present appeal being devoid of merit is

dismissed and the bail bonds of Appellant stand cancelled.

August 1, 2008                                              [Manmohan]
rn/jt                                                          Judge