Rajesh Kumar Singh vs State
2009 Latest Caselaw 690 Del

                                                                 A-21
*                    HIGH COURT OF DELHI : NEW DELHI

            Judgment reserved on : February 10, 2009
              Judgment delivered on : March 02, 2009

+                            Crl. Appeal No. 45/2006
                                        &
                             Crl. M.A. 10995/2008


%       Rajesh Kumar Singh                     ...     Appellant
                       Through:         Mr. Alok Lakhanpal, Advocate

                                  versus

        State                            ...       Respondent
                             Through:   Mr. Amit Sharma, Additional
                                        Public Prosecutor for State.
CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

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?


SUNIL GAUR, J.

1. In this appeal, challenge is to impugned judgment/order

of 7th and 13th October, 2005, of the learned Sessions Judge,

New Delhi, who has convicted the Appellant for the offence of

illegal possession of 4 Kgs. of charas, which is punishable

under Section 20 (b) (ii) (c) of The Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as

NDPS Act) and sentenced him to undergo rigorous

imprisonment for a period of ten years alongwith a fine of

Rs.1,00,000/- (Rupees one lac only), and in default of payment

Crl. Appeal No. 45/2006 Page 1 of fine, he has been sentenced to undergo simple

imprisonment for six months.

2. Prosecution case, as emerging from the record of this

case, is as under:-

On 10.10.2001, secret information was received stating

that a person by the name of Rajesh will be available

near Odeon Cinema between 2.30 to 3 PM for supply of

charas, who is a regular supplier and who imports charas

from Nepal. Upon such information, raiding party was

constituted and reached the spot and apprehended the

accused. After complying with the provisions of Section

50 of NDPS Act, recovery of 4 Kgs charas was effected.

Two samples weighing 25 gms each were separated.

Case property and samples were sealed and seized and

FIR was got registered. The accused was arrested. The

contraband was sent for chemical examination and the

report was received. Upon conclusion of investigation,

charge-sheet was filed against the appellant/accused.

Trial court vide order of 12th April 2002, framed charge

against the accused under Section 20(b) (c) NDPS Act for

being in possession of 3kg. 950 gms. of charas.

3. Nine witnesses were produced in evidence by the

prosecution in this case before the trial court. Inspector

Kaushik (PW-1), ASI U.R. Khan (PW-2) and Head Constable

Harvinder Singh (PW-9) have deposed about the spot

Crl. Appeal No. 45/2006 Page 2 proceedings i.e. of receiving of secret information and of

raiding party apprehending the appellant/accused with a bag

containing 4 kgs. of a substance, which was said to be charas.

Rest of the witnesses have deposed regarding the various

stages of investigation of this case. SI Brij Pal (PW-5) had

submitted the charge sheet in this case against the

appellant/accused, after completing the investigation of this

case.

4. Appellant/accused before the trial court denied the

prosecution case, in his statement under Section 313 of the

Cr.P.C. and claimed that he was a minor at the time of this

incident and that he is a poor person and is illiterate and he

used to drive a rickshaw and the main accused was let off who

was sitting in the rickshaw and the contraband was planted

upon him. Appellant had got examined two witnesses in his

defence before the trial court. Sagar Mandal (DW-2) claimed to

be the owner of the rickshaw which was plied by the appellant

and he claimed that B K Malhotra (DW-1) had informed him on

the day of the incident, that appellant had been apprehended

by the police and he had left his rickshaw near Odeon Cinema.

B K Malhotra (DW-1) claims to have seen appellant driving the

rickshaw with a passenger who was sitting with a black colour

bag and according to this witness, the police tried to

apprehend the said passenger but could not do so and had

apprehended the rickshaw driver i.e. the appellant with the

bag of that passenger.

Crl. Appeal No. 45/2006 Page 3

5. After the trial, appellant/ accused stands convicted and

sentenced as noticed in the opening paragraph of this

judgment.

6. Counsel for the parties, have been heard in this appeal

and the record of this case has been perused.

7. Learned Counsel for the appellant asserted that the

appellant was a minor at the time of this incident and the

sentence awarded to the appellant deserves to be set aside as

the appellant is entitled to the benefit of the benevolent

provisions of Juvenile Justice (Care and Protection of Children)

Act, 2000. Reliance has been placed upon the decisions of this

court reported in 114 (2004) DLT 206 (DB) to contend that

while sustaining the conviction for the offence of murder, the

sentence awarded was quashed as the accused was found to

be juvenile on the day when the aforesaid Act came into force

i.e. on 1st April, 2001.

8. It has been pointed out by learned Counsel for the

appellant that as per the Nominal Roll of the appellant, his age

on the day of the incident was seventeen years and eleven

months and as per his statement under Section 313 of the

Cr.P.C., his age was 17.5 years on the day of the incident.

9. On 7th March, 2008, brother Vipin Sanghi, J, had directed

the bone age examination of the appellant and, accordingly,

bone age report of 26th March, 2008, was submitted to this

court, indicating that the appellant was aged above twenty Crl. Appeal No. 45/2006 Page 4 three years and below twenty five years as on 12 th March,

2008.

10. On 7th May, 2008 learned Counsel for the appellant had

sought an enquiry to determine the age of the appellant but

the record of this case reveals that the request for enquiry was

not pursued by learned Counsel for the appellant and when the

final arguments in this appeal were heard by this court, no

such request was made and even the application Crl.M.A.

No.10995/2008 for determination of the percentage of THC in

the recovered contraband, was not pressed. As such, this

application is disposed of, as not pressed.

11. Learned Counsel for the appellant felt contended by

relying upon a decision reported in (2002) 2 SCC 287 to

contend that if two views are possible on the basis of the

evidence adduced, the view which is in favour of the juvenile-

accused should be adopted. According to learned Counsel for

the appellant, even if the age of the appellant as disclosed in

the Nominal Roll is taken to be correct, then also, it is clear

that he was aged less than eighteen years on the day of the

incident. Thus, it is contended that since the appellant was a

juvenile on the day of the incident, therefore, even while

maintaining the conviction of the appellant, the sentence

imposed upon him deserves to be set aside. Lastly, it is

submitted that as per the Nominal Roll of the appellant, he has

already remained behind bars for more than seven years and

Crl. Appeal No. 45/2006 Page 5 he deserves to be released from jail forthwith. Nothing else has

been urged on behalf of the appellant.

12. Learned Additional Public Prosecutor for the State has

submitted that the conviction of the appellant is supported by

the evidence on record and the sentence awarded to the

appellant by the trial court does not deserve to be quashed on

the ground of appellant being a juvenile on the date of the

incident because the age reflected in the Nominal Roll is the

one which is given by the appellant/accused at the time of his

admission in jail and the age given by the appellant at the

time of recording of his statement under Section 313 of the

Cr.P.C., is upon legal advice and same cannot be taken to be

the correct age of the appellant. It is pointed out that neither

any birth certificate nor school certificate of the appellant was

produced either before the trial court or before this court, to

claim the benefit of appellant being a juvenile on the day of

the incident and plea of the appellant being juvenile was not

argued before the trial court. Thus, it is submitted that the

bone age report of the appellant alone, cannot be sufficient to

extend the benefit as claimed by the appellant and therefore,

this appeal deserves to be dismissed straightaway.

13. After having deliberated upon the submissions made by

both sides, I find that the age of the appellant as reflected in

his Nominal Roll and as given by him in his statement under

Section 313 of the Cr.P.C. before the trial court, cannot be the

Crl. Appeal No. 45/2006 Page 6 basis for determination of his age. Thus, the solitary basis to

determine the age of the appellant is the bone age test and as

per the bone age report of the appellant, he was aged below

twenty five years as on 12th March, 2008.

14. The Secretary General of the United Nations writing on

'the World Drug Report 2000" observed:-

"Globalisation offers the human race unprecedented opportunities. Unfortunately, it also enables many anti-social activities to become „problems without passport‟.

Among these are drug abuse, which brings misery to millions of families around the world every year, and drug trafficking which cynically promotes and exploits that misery for commercial gain. If the International community is to deserve its name, it must respond to this challenge".

15. 15. The dark under-world of drugs is a bizarre and cruel place

increasingly sucking into its vortex successive generations of

the young. This indicates the shift in the strategies of the illicit

trade. The ruthlessness with which the illicit drug traffic

diminishes and destroys its prey is a heart-rending spectacle.

16. Will it be safe to solely rely upon the bone age report of

the appellant, when his age as per his Nominal Roll was just

one month less than eighteen years on the day of the incident?

This is a serious question which requires consideration in view

of the fact that during the recent years illicit trafficking in

Crl. Appeal No. 45/2006 Page 7 drugs, is a cause of concern not only to India but is a matter of

concern for the whole world. Unfortunately, many teenagers

are not only victims of drug abuse but due to poverty, are also

inducted by the well organized gang of drug smugglers, as

drug peddlers and to give the benefit of the social legislation

i.e. of Juvenile Justice (Care and Protection of Children) Act,

2000 (hereinafter referred to as Juvenile Justice Act, 2000)

would run counter to the spirit of the Narcotic Drug

Psychotropic Substances Act, 1985 (as amended in 2006).

17. I am in respectful agreement with the ratio of the two

decisions relied upon on behalf of the appellant but I find that

both these cases were murder cases and in the decision

reported in Charanjeet Singh vs. State of NCT of Delhi, 114

(2004) DLT 206 (DB), the accused and the deceased were

both students of a school and birth certificate of the accused

was the basis to extend the benefit of the Juvenile Justice Act,

2000. Similarly, in the decision reported in „Rajinder Chandra

vs. State of Chhattisgarh and another‟, (2002) 2 SCC 287, the

school certificate was the basis for extending the benefit of the

provisions of the Juvenile Justice Act, 1986, as the age of the

accused was found to be just less than sixteen years by few

months only and in the facts of the above cited case, it was

observed that a hyper-technical approach should not be

adopted and if two views are possible regarding the age of the

juvenile, then benefit should accrue to the accused.

Crl. Appeal No. 45/2006 Page 8

18. In the case of 'Megh Singh vs. State of Punjab‟ 2003 (3)

JCC 1513, it has been highlighted by the Apex Court that in

criminal law, there are no precedents and the pertinent

observations made are as under:-

"Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based."

19. In the instant case, there can be no view formation on the

basis of the age as orally disclosed by the appellant before the

jail authorities as reflected in his Nominal Roll or on the basis

of the age given by him at the time of recording of the

statement under Section 313 of the Cr.P.C. by the trial court.

The solitary evidence is the bone age report, on the basis of

which, no definite opinion regarding the age of the appellant

can be formed. No other evidence is forthcoming to enable this

court to declare that the appellant was a juvenile on the day of

this incident. Thus, the challenge of the appellant to the

impugned sentence on the ground of his being a juvenile

cannot succeed and is hereby repelled.

20. On merits, the grounds taken in this appeal are the very

same grounds, which were taken before the trial court. A bare

Crl. Appeal No. 45/2006 Page 9 perusal of the impugned judgment reveals that the contention

of the appellant of non-compliance of Section 50 of the NDPS

Act, has been rightly rejected by trial court, as the recovery of

the charas was not from the person of the appellant/accused

but was from his bag. Likewise other contentions of the

appellant have been dealt with by the trial court in the

impugned judgment in the correct perspective and no fault can

be found with the reasoning adopted by the trial court in

rejecting the contentions of the appellant regarding non

compliance of Section 55 and 57 of the NDPS Act. The

contention of non-joining of independent witnesses has been

also adequately dealt with in the impugned judgment by

relying upon a decision of the Apex Court reported in 2003 (3

JCC) 1631. Trial court was right in discarding the

plea/evidence of appellant of false implication, as it not all

plausible on the face of it. It is not shown as what animosity

Raiding Team had with the appellant to falsely implicate him in

the case.

21. After having appreciated evidence on record, I am of the

considered view that the conviction and the sentence imposed

upon the appellant by the trial court is well merited and it calls

for no interference by this court in this appeal.

22. This appeal lacks merits and deserves to be dismissed.

Accordingly, it is dismissed.

Crl. Appeal No. 45/2006 Page 10

23. This appeal and pending application stands disposed of

accordingly.

Sunil Gaur, J.

March 02, 2009
rs




Crl. Appeal No. 45/2006                                 Page 11