Ram Swaroop vs State (Gnct) Of Delhi
2009 Latest Caselaw 1798 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Criminal Appeal No. 394/2007

%                                 Date of reserve : 29th April, 2009
                                  Date of decision: 04th May, 2009

       RAM SWAROOP                             ...APPELLANT
                              Through: Mr.Bharat Bhushan and
                              Mr.R.S.Bhoria, Advocates


                                    Versus

       STATE (GNCT) OF DELHI          ...RESPONDENT
                     Through: Navin Sharma, APP

CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG

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

2.     To be referred to Reporter or not?          Yes

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

MOOL CHAND GARG, J.

1. This criminal appeal has been filed by the appellant under

Section 374(2) Cr.P.C. aggrieved of the judgment dated

21.9.1996 passed by Additional Sessions Judge, Delhi in

Sessions Case No. 90/2006 arising out of FIR No. 386/2005

under Section 15/61/85 of the NDPS Act, registered at Police

Station Kashmiri Gate, wherein after holding the trial the

Additional Sessions Judge convicted the appellant under all the

aforesaid Sections and sentenced him to undergo RI for ten

years with a fine of Rs. 1 lakh and in default to further undergo

RI for two years vide orders passed on 28.9.1996.

2. Briefly stating the case of the prosecution is that on 22.7.2005

SI Ritesh Kumar while patrolling reached at the outer gate of

ISBT where Constable Balwant Singh met him at 10.15 a.m. At

that time, the accused was found sitting on two white colour

kattas on the left side of foot path of outer gate of ISBT and on

seeing the police party he tried to run away after leaving the

kattas which raised suspicion in the mind of SI Ritesh Kumar,

and accused was apprehended and on interrogation he

disclosed his name as Ram Swaroop and further on being

asked as to what were the contents of those kattas, he got

perplexed and disclosed that the contents of the kattas were

chura post brought by him from Shahjanpur, Rajasthan for

taking the same to Punjab. SI Ritesh Kumar informed the

accused about his legal right to get himself searched before a

Gazetted Officer or a Magistrate, who can be called at the spot

or that he can be produced before them and a notice under

Section 50 of the NDPS Act was served upon the accused but

the accused refused to get himself search in the presence of a

Gazetted Officer or a Magistrate and the reply of the accused

was recorded on the notice under Section 50 of the NDPS Act.

SI Ritesh Kumar conducted the search of the accused. He also

asked passerby to join the proceedings but nobody agreed to

join the same and accordingly, SI Ritesh Kumar asked

Constable Balwan Singh to bring investigation material and

balance and weights. The kattas were weighed with the help

of balance brought by Constable Balwan Singh. They were

found to be containing 32 packets of polythene each,

containing poppy straw powder and each packet weighed 1

kg. Thus, the total quantity recovered from accused was 64

kgs. Thereafter, from the recovered poppy straw powder,

sample of 1 kg each was drawn out from each of the katta.

Samples and the remaining poppy straw powder were

converted into pullandas and were sealed with the seal of RK.

The kattas were converted into pullandas and were given

Sl.No.1 and 1A while the sample pullandas were given Sl.No.2

and 2A. SI Ritesh Kumar then prepared the relevant

documents and got the FIR registered. Constable Balwan

Singh handed the sealed pullandas sealed with the seal of RK,

form FSL on which also the seal of RK was affixed and carbon

copy of seizure memo to Inspector Randhir Singh Khatri, Addl.

SHO who was working as SHO and who also affixed his seal

RSK on all the pullandas, form FSL and mentioned the number

of FIR on the pullandas, form FSL and carbon copy of seizure

memo and deposited the same in the malkhana. The

necessary entries in this regard were also made in the

malkhana register by MHCM. The further investigation of this

case was handed over to ASI Jagdish Chander who reached at

the spot and at the instance of SI Ritesh Kumar prepared the

site plan Ex.PW7/B, arrested the accused and conducted the

personal search. The accused was also got medically

examined. ASI Jagdish Chander also prepared a report under

Section 57 of the NDPS Act and sent a copy thereof to ACP,

Sadar Bazar on 23.7.2005. After completing the investigation,

the challan was filed before the Additional Sessions Judge.

The appellant pleaded not guilty and accordingly the charges

were framed against him. In order to prove its case,

prosecution examined eight witnesses. Thereafter, the

statement of the appellant was recorded under Section 313

Cr.P.C. However, no defence evidence was led by the

appellant. The trial court vide impugned orders dated

21.9.1996 and 28.9.1996 convicted the appellant under

Section 15/16/85 of the NDPS Act and sentenced him to

undergo RI for ten years and to pay a fine of Rs. 1 lakh and in

default RI for three years as aforesaid.

3. It is the case of the appellant that the order of conviction and

order of sentence passed by the Additional Sessions Judge are

unsustainable in law taking into consideration the facts on

record.

4. It is also submitted on behalf of the appellant that there are

material contradictions in the deposition of witnesses who had

been examined and that the trial otherwise stands vitiated

because the provisions of Code of Criminal Procedure to ask

the independent witnesses to join the proceedings at the time

of search have not been complied with by the Police officials

intentionally inasmuch they have not given notice to any of

the public witness to join the proceedings. It is submitted

that the SHO or the ACP was not informed about the incident

nor was he called at the spot, nor the search of the appellant

was taken before the ACP or the SHO.

5. It is also submitted that there is no entry in the rojnamcha

register about fetching of weights and balance from the police

post. There are difference of timing of reaching of spot by PW-

5 and PW-7. The essential requisites of the NDPS Act have not

been complied with. There is no evidence that the appellant

alone was in exclusive possession of the contraband goods

and therefore, he cannot be held guilty of the possession of

contraband goods as allegedly recovered from him.

6. It is further submitted that the conviction of the appellant

could not have been based solely upon the testimony of the

police witnesses and therefore, it is prayed that the appellant

be acquitted of the charge and the sentence awarded to him

be accordingly set aside.

7. Arguments heard. The learned counsel for the appellant has

reiterated the submissions made in the grounds of appeal and

has also taken me through the statements of witnesses

recorded on behalf of the prosecution.

8. On the other hand, the learned APP has submitted that the

possession of contraband has been proved beyond reasonable

doubt inasmuch as the raiding party which in fact came to

know about the possession of the contraband goods by the

appellant just by chance has conducted itself in accordance

with law. They have given adequate opportunities to the

appellant to get himself searched in the presence of a

Gazetted Offier but the appellant refused to do so. It is

submitted that the entire proceedings and the sequence of

events starting from the time when the appellant was

identified along with two kattas and deposition of the exhibits

in Malkhana Register as also the report of the FSL proves the

case of the prosecution beyond reasonable doubt.

9. I have given my thoughtful consideration to the rival

submissions and have also gone through the judgments which

have come on record. I have also gone through the impugned

judgment of the trial court. I find that the star witness of this

case is SI Ritesh Kumar, who was examined as PW-7 before

the trial court. He deposed that on 22.7.2005 at about 10.15

am he met Constable Balwain Singh and while they were on

patrolling, the accused was seen sitting on two white colour

bags on foot path in the left side of ISBT out gate and tried to

slip away on seeing the police, which act of the accused raised

suspicion in their mind and the accused was over powered and

the bag was checked and both the bags were found to contain

poppy straw powder. He has also deposed that he informed

the accused about his legal right to get himself searched

before a Magistrate or a Gazetted Officer who can be called at

the spot or that the accused can be produced before them and

a notice under Section 50 NDPS Act was given to the accused.

The notice has been proved as Ex.PW5/A. He also deposed

that accused refused to get himself searched before a

Magistrate or a Gazetted Officer and the reply of the accused

point X to X on Ex.PW5/A was noted down and the accused

admitted the same to be correct and put his signature on the

same. He also deposed that he asked passerby to join the

proceedings but none agreed and left without disclosing their

names and addresses. Constable Balwan Singh was sent to

fetch investigation material and the scale and on being

checked the bags, each of the bag was found to contain 32

packets of poppy straw powder and each of the packet

contained 1 kg poppy straw powder. He had also stated that

samples were drawn from each and the sample pullandas

were given mark S.No. 2 & 2A and the pullandas of remaining

poppy straw were given S.No. 1 & 1A. He has also deposed

that he filled form FSL and affixed seal of RK on all the four

pullandas and the same were taken into possession vide

seizure memo Ex.PW5/B. He has proved the tehrir as

Ex.PW7/A which was prepared by him and was handed over to

Contable Balwan Singh for getting the FIR registered at the

police station, who left the spot along with four pullandas duly

sealed and form FSL and carbon copy of seizure memo.

10. The deposition of this witness is fully corroborated by PW-5

Constable Balwan Singh, who was with him when the

appellant was seen at the spot. He has also corroborated the

testimony of PW-7 that the tehrir was handed over to Duty

officer and the remaining articles were handed over to Addl.

SHO Inspector Randhir Singh Khatri and came back to the spot

and handed over the copy of FIR and tehrir to ASI Jagdish

Chander to whom the investigation was marked, who arrested

the accused vide memo Ex.PW5/C and conducted personal

search of the accused vide Ex.PW5/D.

11. The testimonies of PW-5 and 7 are also corroborated by ASI

Jagdish Chander, who appeared as PW-8 and prepared the

report under Section 57 of the NDPS Act Ex.PW8/B, a copy

whereof was sent to the office of ACP. He also proved that the

goods were deposited in Malkhana. The FSL report and

carbon copies of the seizure memo have also been proved.

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

Additional Sessions Judge has rightly held that once an

opportunity is granted and nobody is found agreeable to join

the proceedings, no fault can be found with the investigation.

Similarly, the argument that SHO and ACP were not informed

or called at the spot, the Additional Sessions Judge has rightly

held that it was a case of chance recovery, which is supported

by the testimony of PW-5 and 7. The argument that the case

particulars were not mentioned in the notice under Section 50

is of no consequence because at that stage the FIR was not

recorded. As regard contradictions, it is rightly held that they

were minor in nature and does not affect the case of the

prosecution. I may also 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. Reference can be made to

a judgment delivered in the case of Abdul Majid Abdul Hak

Ansari Vs. State of Gujarat, 2003 (10) SCC 198. Relevant

observations are reproduced hereunder:-

3. Mrs K. Sarada Devi, learned counsel appearing for the appellant contended before us that the prosecution has not examined any independent witness in the case, and that the prosecution case is based on the evidence of police witness only, therefore, it is not safe to rely on such evidence to hold that the said charas was seized from the appellant. She also pointed out that only one panch witness was examined and he too has not supported the prosecution case. Though it is true that the prosecution has relied on the police witness only, both the courts below after considering this evidence have placed reliance on the same and we find no error in the same. Having considered the evidence, we agree with the courts below that the prosecution has proved beyond reasonable doubt that the charas was seized from the person of the appellant and the same was properly sent to the Forensic Science Laboratory for the purpose of analysis and the same was found to be a contraband article, sale of which is prohibited under the provision of the Act and the appellant was found possessing the said quantity of charas for the purpose of sale. For the said reason we find no error in the finding of the courts below, hence this appeal has to fail.

13. At this stage, I may also observe that the search in this case

was covered by the powers available to the Police as provided

for under Section 43 of the NDPS Act, which reads as under:-

Section 43 - Power of seizure and arrest in public place

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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 or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled 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 was also a case of chance recovery, the aforesaid

observations are fully applicable in this case also. Accordingly

the appeal is dismissed as no concession can be granted to

the appellant even in respect of the sentence awarded to him.

Trial court record be sent back with a copy of this order.

Another copy be sent to the appellant through Jail

Superintendent.

MOOL CHAND GARG, J.

May 04, 2009 dc