Ram Murthi vs State (Nct Of Delhi)
2009 Latest Caselaw 3110 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Crl. Appeal No. 382/2007

%                                   Date of Reserve: 29.07.2009
                                    Date of decision: 11.08.2009

       RAM MURTHI                                      ...Appellant
                               Through:     Ms. Anu Narula, Amicus Curiae


                                        Versus


       STATE (NCT OF DELHI)                       ...Respondent
                     Through:               Mr. Naveen Sharma, APP


       CORAM:
       HON'BLE MR. JUSTICE MOOL CHAND GARG

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to Reporter or not?

     3. Whether the judgment should be reported in the Digest?


:      MOOL CHAND GARG, J.

1. This appeal has been filed against the judgment dated

11.10.2006 and the order on sentence dated 13.10.2006 passed in

Sessions Case No.215/2001 arising out of FIR No.370/2005 registered

at P.S. Kashmere Gate, convicting the appellant under Section 15 of

the NDPS Act and sentencing him to undergo R.I. for 10 years and to

pay a fine of Rs.1,00,000/- (Rupees One Lakh) and in default to further

undergo SI for six months.

2. Briefly stating, it is the case of the prosecution that on

10.07.2005 at about 7 p.m. the appellant was sitting on two plastic

bags (kattas) near the Out Gate ISBT, Kashmere Gate and at that time

due to suspicion on his conduct he was apprehended by Constable Raj

Singh. Later on, when inquiry was made about the contents of two

plastic bags on which he was sitting, he could not give any satisfactory

answer and therefore, the bags were checked which were found to be

containing brown colour Poppy Straw powder. On this the local police

was informed and ASI Jagdish Chander came on the spot, who after

complying with all necessary formalities weighed both bags and found

each bag containing 36 packets of polythene. Each of the 72 packets

of polythene were containing Poppy Straw powder. The weight of each

of packet was 1 kg and thus, 72 kgs of Poppy Straw powder was seized

out of the two bags on which the appellant was found sitting at the

relevant time. Samples of 1 kg each were also taken out from both the

bags which were then sent to FSL after complying with all the

formalities. A rukka was also prepared which is the basis of

registration of FIR. The articles seized were also taken into possession

and deposited in the Malkhana. Thereafter, an FIR was registered in

connection with this case and the investigation was handed over to ASI

Jagdish Kumar.

3. It is also the case of the prosecution that the appellant was

arrested, his personal search was conducted and arrest memo was

also prepared. He also made a disclosure statement about his

involvement in this case which was recorded as Ex.PW5/H. After

completion of the investigation, challan was filed before the ASJ. The

learned ASJ framed charges to which the appellant pleaded not guilty.

After the prosecution led its evidence, the statement of the appellant

was recorded under Section 313 Cr.P.C. The appellant has not led any

defence evidence. Ultimately, the appellant was convicted and

sentenced as aforesaid.

4. The appellant has assailed the judgment of conviction and order

on sentence by submitting that there are material contradictions in the

deposition of witnesses which creates a doubt in the story of the

prosecution. It is also submitted that failure of the investigating

agency to join public witnesses at the time of search also vitiates the

entire proceedings. It is also submitted that even notice, as is required

to be given under the provisions of the Act, was not given to the

appellant. In fact, the seal was also not given to any independent

person and was retained by the I.O. himself. The case property was

sent to FSL after 38 days and as such there was a delay in sending the

case property. It is also submitted that the SHO or the ACP were not

informed about the incident nor were called at the spot. The search of

the appellant was also not taken by the SHO or ACP. It is also

submitted that the prosecution has failed to prove that the appellant

was found in possession of the contraband consciously or that he was

aware about the contents of the bags. No inquiry was made from the

appellant about the source from where the said powder was obtained.

5. Learned APP submitted that the prosecution has been able to

prove conclusively that the appellant was in conscious possession of

the two plastic bags which were containing the contraband goods. In

this regard, they have also followed the legal formalities by giving full

opportunity to the appellant to get himself searched in the presence of

a Gazetted officer but the appellant refused to avail that offer. It is

submitted that in view of recovery of 72 Kgs of poppy straw powder

from the possession of the appellant, the minor contradictions in the

statements are of no consequence.

6. Ms. Anu Narula, learned Amicus Curiae appearing for the

appellant in support of her submissions has also relied upon the

following judgments:

 State of Punjab Vs. Balkar Singh and Anr. (2004) 2    Possession Not Conscious
 SCC 582
 Ranbir Singh Vs. State of Haryana (2001) 1 RCR        Source of poppy husk
 (Cr) 674                                              obtaining and distribution
                                                       not investigated

 Gurbachan Singh     Vs. State of Punjab 1998 (2)      Discrepancies            in
 RCR (Cr) 175                                          Statements     in bringing
                                                       weights, FSL Form

 State of Punjab Vs.Har Chand Singh 2002 (2) RCR       No Public Witnesses
 (Cr.) 746
 State of Punjab vs. Jaswant Singh 2002 (3)
 RCR(Cr.) 548 (DB)

Saudan and Anr. Vs. State of Rajasthan 2002 CrlLJ

Faujdari Mistry and others. Vs. State of Bihar 1999 (3) RCR (Cr.) 561 Chand Mohd. Vs. State of Punjab 1996 (3) RCR (Cr.) 142 State of Punjab vs. Jaswant Singh 2002 (3) Seal after use not given to RCR(Cr.) 548 (DB) independent witness

State of Punjab vs. Jaswant Singh 2002 (3) Delay of 38 days in sending RCR(Cr.) 548 (DB) case property to FSL

7. I have examined the judgments relied upon by the appellant. In

the case of State of Punjab Vs. Balkar Singh & Anr.(supra) the facts

were entirely different inasmuch as at a place where hundreds of bags

of poppy straw were lying the accused was sitting only on one of them

and, therefore, to presume possession of the contents of hundred bags

qua the accused was not found correct, which is not the case in hand.

8. The judgment delivered in the case of Ranbir Singh (supra) is also

not applicable to the case of appellant as it has been given on peculiar

facts of that case and taking a conclusive view on various deficiencies,

which were pointed out even regarding the presence of the Police

party at the spot.

9. In the case of Gurbachan Singh (supra) the discrepancy was

about the place of recovery, which is not the case in hand. Here the

place of recovery is fully identified i.e. ISBT, Kashmere Gate. The other

judgments cited by appellant are of no help to him in the given facts.

10. I have also gone through the impugned judgment of the trial

court and the order of sentence. The star witness of the case is

Constable Raj Singh who was examined as PW5. He has deposed that

on 10.07.2005 when he was posted at Police Post Kashmere Gate and

was on duty at Out Gate from 8 am to 8 pm at about 7pm, while he

was checking the person passing through the Out Gate, he saw the

accused present in court sitting on two white colour plastic bags at

footpath in left side. After he saw the accused/applicant sitting on the

said bags, the appellant tried to slip away leaving the bags. On

suspicion the accused was overpowered whose name later revealed on

inquiry as Ram Murthi. On being asked about the contents of the two

bags, he could not give satisfactory answer. On checking, the bags

were found to be containing polythene packets containing brown

colour powder like poppy straw. Then he informed the PP on telephone

and thereafter ASI Jagdish Chand reached there. He also deposed that

ASI then recorded his statement which is Ex.PW5/A and and bears his

signature at point A. He further deposed that then ASI asked 4-5

passerbys to join the proceedings when he informed about the

possession of two bags by the accused but none of them agreed to join

the proceedings. He further deposed that ASI then gave a notice u/s

50 of the NDPS Act to the appellant. The said notice is Ex.PW5/B and

bears his signatures at point A. He also deposed that he informed the

appellant about his legal right to get himself searched before the

Magistrate or Gazette Officer and that the arrangement can be made

at spot or he can be produced before the said authorities. He also

deposed that accused refused his search before the above authorities

and the reply of the accused in his own hand writing along with the

carbon copy of Notice is Ex.PW5/C. Appellant also put his signature on

the same. He also deposed that he and ASI Jagdish Chand also offered

their search to the accused to which he refused. He further deposed

that he was then sent to bring scale, IO bag and weight from Police

Post. Thereafter, the ASI opened both the bags and checked the

packets after opening the same, which were containing 36 polythene

packets in each bag i.e. total 72 packets. Each packet was containing

one kg poppy straw. The poppy straw in all the packets were kept in

plastic bags and one kg from each bag was taken as sample. The bags

were given S.No.1 and 1 A and samples which were kept in polythene

and later on converted into a pulanda of cloth were given S.No. 2 and 2

A. The mouth of the bags were also tied with the aid of the cloth and

sealed with the seal of JC. The sample pullandas were sealed with the

same seal and the same were taken into possession vide seizure

memo Ex.PW5/D. He also deposed that ASI prepared tehrir on his

statement and handed over the same to him along with the FSL form,

copy of seizure memo and the case property. He produced the tehrir

before the DO and produced the case property along with the sample

pullandas, copy of seizure memo and form FSL. He also deposed that

further investigation was entrusted to ASI Jagdish Chander and he

handed over the tehrir and copy of FIR handed over to him by DO to

the said ASI who was present at the spot.

11. The testimony of PW5 stands fully corroborated by ASI Jagdish

Chander, who appeared as PW6 and prepared the report under section

57 of the NDPS Act vide Ex. PW-6/C.

12. As regard non-examination of the public witnesses, the learned

Additional Sessions Judge has rightly held that once an opportunity is

granted and nobody is ready to join the proceedings, no fault can be

attributed to the investigation. Similarly, with regard to the argument

that the SHO and the ACP were not informed or called at the spot, it

was held by the Ld. ASJ that accused was produced before the SHO in

the PS and report under section 57 NDPS Act was duly sent to the

office of ACP, Sadar Bajar within time and therefore, this argument

advanced in appeal also has no legs to stand. As regard to the

contradictions, it is rightly held that they were minor in nature and do

not go to the root of the prosecution story. I may observe here that

merely because the case of recovery of contraband in this case is

based upon the sole testimony of the police witnesses it does not make

the testimony inadmissible in evidence since this is a case of chance

recovery and therefore putting to accused about the source and its

distribution is not material while seizing the Contrabands. Reference in

this regard can be made to a judgment delivered by this court in

Criminal Appeal No.394/2007, Ram Swaroop Vs. State (GNCT) of Delhi

decided on 04.05.2009. Reference can also be made to a judgment

delivered by Apex Court in Abdul Majid Abdul Hak Ansari Vs. State of

Gujrat, 2003 (10) SCC 198.

13. At this stage, I my observe that the search in the present case

was covered by the powers available to Police under section 43 of the

NDPS Act, which reads as under :-

43. Power of seizure and arrest in public places.

Any officer of any of the departments mentioned in section 42 may -

        (a)    seize, in any public place or in transit, any
              narcotic drug or       psychotropic substance in
              respect of which he has reason to believe an
              offence punishable under Chapter IV has been
              committed, and,       along with such drug or

substance, any animal or conveyance or article liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation.-- For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public.

14. Since it is a case of chance recovery, the aforesaid observations

are fully applicable in this case also.

15. Accordingly, no infirmity is found in the impugned judgment and

the order of conviction. The appeal is dismissed.

16. Trial Court record be sent back with a copy of this judgment.

Another copy be sent to the appellant through jail Superintendent.

Crl.M.B.940/2007

In view of the orders passed above, the application stands

disposed of as having become infructuous.

MOOL CHAND GARG, J.

AUGUST 11, 2009 anb/dc