Hari Singh vs Govt. Of Nct Of Delhi
2009 Latest Caselaw 5033 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


%                    Judgment Reserved on: 2nd December,2009
                    Judgment Delivered on: 7th December, 2009


+                   CRL.R.P. No.282/2003

        HARI SINGH                            ......Petitioner
                 Through:      Mr. K.P. Singh, Adv.

                          Versus
        GOVT. OF NCT OF DELHI                .....Respondent
                    Through:   Mr. Manoj Ohri, APP for the State.




CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                 Yes

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

INDERMEET KAUR, J.

1. On 4th November, 1983 SI Chander Prakash, PW-7 alongwith

SI Kanta Prasad PW-6, Jagbir Singh PW-4, Constable Om Prakash

and other members of the raiding party were patrolling in the area

of Lajpat Nagar. At about 4 PM, secret information was received

that at about 5 PM some persons peddling in heroin, a contraband

and a dangerous drug under the provisions of the Dangerous

Drugs Act, 1930, would be supplying heroin near the Bangla Desh

Chansri. Raiding party was organized.

2. At 5.05 PM scooter No. DEQ 7815 driven by Bahadur Singh

of which Kuldeep Singh was the pillion rider came from the side of

Moolchand. Simultaneously, a motorcycle number 9416 was also

seen coming which was driven by the petitioner Hari Singh; the

pillion rider was Purshottam. The petitioner Hari Singh took out a

packet from the basket of his motorcycle and gave it to his co-

accused Purshottam. On the signal of the secret informer all the

accused persons i.e. Kuldeep, Bahadur Singh and Purshottam

were apprehended. Hari Singh, however, managed to flee. He was

arrested subsequently i.e. three days later on 7/11/83. From the

possession of the co-accused Purshottam one packet containing 1

kg. of heroin was recovered. FIR No. 539/83 was registered

pursuant to the aforesaid recovery.

3. Another FIR i.e FIR No.538/83 was registered against the

other two persons, namely, Kuldeep and Bahadur Singh who were

the driver and pillion rider of the scooter No. DEQ 7815. Separate

recovery was effected from those persons.

4. The heroin recovered from co-accused Purshottam was

seized and sealed. The investigating officer of this case is

Chander Prakash PW-7. He has on oath deposed that a packet

was found wrapped in a khaki paper. 10 gram of heroin was taken

out as a sample and the remaining heroin was seized; two separate

pullandas were made and sealed with the seal of KPS and the seal

after use was handed over to SI Jagbir Singh. The recovery memo

is Ex. PW-4/A.

5. SI Jagbir Singh examined as PW-4 has corroborated this

version of PW-7 and has deposed that the seal after use was

handed over to him.

6. SI Kanta Prasad was examined as PW-6. He has deposed that

his seal had been affixed on the sample parcel as also on the

remaining contraband. Form CFSL was also filled.

7. The two sealed pullandas were deposited with MHCM HC

Shiv Lal examined as Pw-3. He has deposed that on 4/11/83 SI

Kanta Prasad of the Special Staff has deposited one bag and two

packets with him. These packets were sealed with the seal of KPS

and entry to the said effect was made in register no. 19; said entry

is Ex.PW-3/A. His testimony is silent on the deposit of the CFSL

form.

8. The sample packet was thereafter taken to the CFSL

through Vijay Pal PW-1. PW-1 had deposed that on 29/11/83 he

was posted at the Special staff south district Lajpat Nagar. On

that day he received a sample parcel duly sealed from the MHCM

HC Shiv Lal which was deposited by him on the same day in an

intact condition in the office of CFSL; nobody tampered with the

seal as long it remained in his custody. In his cross-examination

Pw-1 has stated that there was only one seal on the pullanda, it

was sealed with the seal of IO Chander Prakash.

9. It is this version of PW-1 which has been brought forth as an

argument by the learned defence counsel to substantiate his

submission that the possibility of the tampering of the sample

cannot be excluded. PW-1 has deposed that the sealed sample

packet which he had taken from PW-3 to deposit in the CFSL bore

the seal of IO Chander Prakash. This version of PW-1 is clearly in

contrast with the version as set up by the prosecution and as has

been testified by the PW-3,PW-4, PW-6 and PW-7 all of whom have

stated that sealed sample bore the seal of KPS. It is argued that

the sample which had been seized from the spot had the seal of

KPS but the sample which had been sent to the CFSL and analyzed

by the scientific expert was a sample which bore the seal of

Chander Prakash. It has thus not been proved by the prosecution

that the sample analyzed by the CFSL was in fact the seized

sample i.e. the sample which had been seized from the possession

of the co-accused Purshottam. In these circumstances, benefit of

doubt has accrued in favour of the petitioner entitling him to an

acquittal.

10. In the alternate it has been argued that if this Court is not

inclined to alter the conviction of the petitioner, he is entitled to

the grant of probation. On this count it has been submitted that

the petitioner is more than 80 years of age as on date, his driving

licence and identification papers have been shown to the Court to

substantiate this argument. It is further submitted that the

offence relates to the year 1983; it was an offence under Section

14 of the Dangerous Drugs Act, 1930 and the maximum

punishment prescribed for such an offence was imprisonment

which may extend to 3 years with or without fine. It is submitted

that the intention of the legislature can be gathered from the fact

that this offence is punishable with a fine only and in this

circumstances, keeping in view the fact that the petitioner has

already suffered an incarceration of about one month he be

granted the benefit of probation.

11. The trial court vide judgment dated 11/1/90 had convicted

both the accused i.e. Purshottam and Hari Singh for the offence

under Section 14 of the Dangerous Drugs Act, 1930. Vide order of

sentence dated 17/1/90 both the petitioners had been sentenced to

undergo RI for a period of two years and to pay a fine of Rs. 5000/-

in default of payment of fine to undergo SI for three months.

12. In appeal conviction of the accused petitioner had been

maintained; his sentence had been modified and RI two years had

been reduced to RI one year; fine amount had been raised from

Rs. 5000/- to Rs. 25000/- and in default of payment of fine,

petitioner had to undergo SI for one year. This judgment is dated

29th March, 2003.

13. This revision petition has been preferred against this

impugned judgment.

14. Record has been perused. This Court is sitting in revision

where the powers of the Court are confined to test the legality,

correctness and the propriety of an impugned order, finding or

sentence.

15. The Dangerous Drugs Act, 1930 had been incorporated to

control certain operations relating to dangerous drugs and to

increase and render a uniformity on the penalties for the offences

relating to such operations. This Act stood repealed by the new

legislation i.e. the Narcotic Drugs & Pshycotropic Substances

(NDPS) Act 1985 which now takes care of offences relating to a

narcotic drug or a psychotropic substance.

16. The petitioner has been held guilty under Section 14 of the

said Act. Section 23 of the said Act deals with the powers of the

seizure of an article which the officer of the rank described in the

said Section has reason to believe to be liable for confiscation

under Section 33 or any other article which he has reason to

believe may furnish evidence of the commission of an offence

punishable under Chapter III of the said Act relating to such a

drug.

17. In the instant case the testimony of the witnesses discussed

supra clearly shows that the possibility of the tampering of the

sample cannot be excluded. Whereas PW-7 the investigating

officer has categorically stated that sample which was seized from

the spot alongwith the balance case property was sealed with the

seal of KPS which version has been corroborated by PW-3,4 and

PW-6 yet PW-1 who had taken this sample from PW-3 to the CFSL

has deposed otherwise. He has categorically stated that the

sample which he had taken to the CFSL bore the seal of IO

Chander Prakash.

18. This variance in the version of the said witnesses, in the view

of this Court goes to the root of the matter as it cannot be said

beyond reasonable doubt that the sample which had been sent

from the Malkhana to the CFSL was in fact the same which had

been seized by the investigating officer from the co-accused

Purshottam. The report of the CFSL Ex.PW-5/A is also silent on

the description of the sample which have been received in the

department; it merely states that the sealed parcel with the seal

intact as per the official specimen enclosed has been received.

The said specimen which would be the specimen seal affixed on

the CFSL form has not been exhibited; in fact no witness of the

prosecution has deposed about the deposit of CFSL form in the

Malkhana or its consequent despatch with the sample pullanda to

the CFSL. The CFSL expert has come into the witness box as

PW-5. On oath PW-5 has deposed that he had received one sealed

parcel with the seal of KPS. He is also silent on the receipt of the

CFSL form.

19. Section 82(1) of the NDPS Act had repealed the Dangerous

Drugs Act of 1930. Sub-clause 2 is the savings clause and states

that notwithstanding such repeal, anything done or any action

taken or purported to have been done or taken under any of the

enactments repealed by sub-section 1 shall, in so far as it is not

inconsistent with the provisions of this Act, be deemed to have

been done or taken under the corresponding provisions of this Act.

20. In 1989 (39) DLT 456 Pradeep Kumar Vs. State it has been

held by a coordinate Bench of this Court that Section 55 and 52(3)

of the Narcotic Drugs and Psychotropic Substances Act, which are

provisions dealing with a seizure under the NDPS Act are not to be

treated as an empty formality but are substantive provisions to

ensure the authenticity of the recovery.

21. In 1988 (1) FAC 107 Delhi Patel Robertson Cowan Vs. State

a Bench of this Court had held that where the sample which has

been seized from the accused in that case bore two seals i.e. of

BDS and VM; testimony of the witness showed that what was sent

for analysis to be analyzed was not what was seized from the

appellant; the possibility of tampering of the sample could not be

excluded; benefit of doubt had been given to the petitioner

entitling him to be an acquittal.

22. In the instant case as well the prosecution having failed to

prove that the sample analyzed by the CFSL was in fact the same

sample which had been seized from the co-accused benefit of

doubt has accrued in favour of the petitioner, the consequence of

which would be that the petitioner is entitled to an acquittal. The

petitioner is accordingly acquitted of the charges leveled against

him. His bail bond and surety bond stand discharged. Fine

deposited by him be remitted back.

23. Appeal allowed on the aforestated terms.

(INDERMEET KAUR) JUDGE December 7, 2009 mr