Sehdev vs State
2009 Latest Caselaw 2159 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                             CRL.A. 880/2002

       SEHDEV                                            ..... Appellant
                             Through Ms. Anu Narula, Advocate.

                    versus

       STATE                                        ..... Respondent
                             Through Mr. Jaideep Malik, APP.

       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR

        1. Whether Reporters of local papers may be
          allowed to see the judgment?                            No
       2. To be referred to the Reporter or not?                  Yes
       3. Whether the judgment should be reported in Digest? Yes


                              ORDER

20.05.2009

1. This appeal is directed against the judgment dated 8 th August 2001

passed by the learned Additional Sessions Judge (ASJ) Delhi,

convicting the appellant for the offence under Section 20 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). It

is also directed against the order dated 23rd August 2001 sentencing the

appellant to rigorous imprisonment (RI) for ten years and to pay a fine

of Rs.1 lakh and in default of payment of fine to undergo a further RI

for a period of one year.

2. It may be mentioned that in terms of the nominal roll submitted by

the jail authorities, as on 11th September 2008, the Appellant had

completed eight years, eight months and nine days of imprisonment.

Thereafter his sentence was suspended by this Court by an order dated

21st January 2009 by which time he had completed more than nine years

of imprisonment.

3. According to the prosecution on 9th January 2000 SI Satender Kumar

was on patrolling duty along with Inspector Jagbir Singh Malik and

Head Constable (HC) Rajbir, Constable Amit and Constable Vijay in

the area of Police Station (P.S.) Keshav Puram. At around 4.30 p.m.

they were present near the T-point, Ring Road, near the Britannia

Biscuit Factory. At around 4.40 p.m., a blue line bus route No.861

stopped at the Britannia bus stop. Some passengers including the

Appellant alighted from the bus. The appellant is stated to have been

holding a potli in his hand. He came walking towards the T-point for

about 20-25 steps. However, on seeing the police party, he turned on his

heels and moved quickly in the opposite direction. On suspicion, he was

chased and apprehended at around 4.40 p.m. On enquiry the police

ascertained his name and that he was a resident of a jhuggi at village

Khayala. On checking, his potli was found to contain a polythene bag

containing charas, both in the form of sticks and plates. He was served

with the notice under Section 50 NDPS Act and according to the

prosecution he declined the offer to be searched personally before a

Magistrate since all that he was carrying had already been detected.

Some passersby were asked to join the investigation but they declined.

SI Satender Kumar, under the direction of Inspector Jagbir Singh Malik,

then undertook the search of the appellant. However, nothing

incriminating recovered from his person. The polythene bag stated to

contain charas in the form of sticks weighing around 800 grams and in

the form of plates weighing around one kg, was seized. Two samples

weighing 50 grams each were taken out from the charas in stick form

as well as in the shape of plates. The samples and the residual quantities

were then packed in separate pullandas. In all, five pullandas were

prepared and sealed with the seal of SKT. The same seal was also

placed on the CFSL form which was filled at the spot. The seal after use

was handed over to Inspector Jagbir Singh. Rukka was prepared by SI

Satender Kumar and sent to the police station through Constable Amit

Kumar for registration of the FIR. All the pullandas and CFSL forms

sealed with SKT were handed over to Constable Amit Kumar for being

handed over to the SHO. It is stated that at the police station, the SHO

put a seal of SPY on the pullandas and the form CFSL and the case

property along with the form CFSL was deposited in the malkhana.

4. After registering the FIR the investigation was handed over to ASI

Yashvir Singh who then formally arrested the accused and prepared the

site plan. During the investigation, samples were sent to the CFSL,

Chandigarh which confirmed the quantity seized to be charas.

5. On behalf of the prosecution, thirteen witnesses were examined. On

behalf of the defence, one witness was examined. After analyzing the

evidence, the learned ASJ came to the conclusion that the appellant was

guilty of the offence under Section 20 NDPS Act and sentenced him in

the manner indicated hereinbefore.

6. During the pendency of this appeal, the samples were further sent to

the Central Revenue Control Laboratory (CRCL) for further testing for

the presence of the Tetra Hydro Cannabinol (THC). The report dated

27th May 2008 of the CRCL indicated that there was very low

percentage of THC in the samples but this could be on account of the

metabolic conversion of THC into the Cannabinol (CBN) for a variety

of reasons.

7. Ms. Anu Narula, the learned counsel, appearing for the Appellant

submitted first that the evidence on record has not supported the case of

the prosecution as regards the time of arrest, the manner of seizure as

well as the preparation of documents at the site. She points out that

although the Appellant is stated to have been apprehended around 4.40

p.m., the arrest memo in fact shows the time of arrest to be 6.45 p.m.

In his statement under Section 313 CrPC, the Appellant had stated that

he had been falsely implicated in the case. According to him, at around

12 noon on 9th January 2000 he was present in his jhuggi and having

food when two persons in uniform and two persons in plain clothes

called him to the police station. They took him to the Britania Chowk in

a private maruti van and falsely implicated him. He further stated that

Girdhari Lal s/o Asharfi Lal and Partap Singh s/o Megh Nath were

present in his jhuggi at that time.

8. It is further pointed out that Pratap was examined as DW1. He

confirmed that he was present in the jhuggi with the Appellant on 9 th

January 2000. Between 1.30 p.m. to 2.00 p.m. four persons took away

the Appellant in a white Maruti van. It is pointed out that this evidence

has not been even adverted to by the learned ASJ.

9. Ms. Narula then criticizes the manner in which the police had

chanced upon the Appellant as carrying charas without any secret

information whatsoever. She points out that the Britania Chowk is an

extremely crowded place particularly at around 4.30 p.m. It is unlikely

that the police party was unable to associate any independent witness.

She points out that it would be highly improbable for a person carrying

charas to walk 20-25 steps towards the police knowing that he was

carrying charas. She points out that the CFSL forms and the arrest

memo, panchnama etc., are stated to have been written at the spot.

However, the evidence of PW3 shows that the documents were filled up

elsewhere. Finally, she submits that the deposit of the sealed parcels in

the malkhana and their removal for being sent to the CFSL at

Chandigarh have not been proved by producing the register maintained

at the malkhana. There are no entries in the register to support the

version of the about removal of the sample to the CFSL Chandigarh.

She submits that the procedure has to be strictly adhered to and any

deviation therefrom would result in benefit of doubt having been given

to the Appellant.

10. Mr. Jaideep Malik, the learned APP submits that the depositions of

the police witnesses are consistent and fully support the case of the

prosecution. He submitted that there was nothing to show that the police

had falsely implicated the appellant and that there was no ground made

out to extent any benefit of doubt to the Appellant.

11. This Court proposes to first consider the question of the arrest of the

appellant. Admittedly, he is the resident of the jhuggies at Khayala. His

version in the statement under Section 313 CrPC supported by the

evidence of DW1, is that at around 1.30 p.m. to 2.00 p.m. when he was

having lunch in his jhuggi, four policemen, two in uniform and two in

plain clothes took him away. This has not been controverted by the

prosecution. The evidence of DW1 on this aspect has not been

discredited. It is surprising that the learned ASJ has not discussed this

part of the evidence at all.

12. To this Court, the manner in which the police accidentally chanced

upon the Appellant carrying a potli containing charas, is shrouded in

mystery. Unlike other NDPS cases, this case is not based on any secret

information. The police did not in fact belong to the area where they

were patrolling and where the arrest took place. They were of P.S.

Keshav Puram. It is indeed unexplained how among the several persons

who were in a blue line bus, the police party somehow zeroed in on the

appellant holding a potli containing charas in his hand. It is indeed

unbelievable that the appellant walking towards the T-point for about

20-25 steps and towards the policemen when, according to the

prosecution, the appellant knew that he was carrying charas weighing

around 1.8 kg.

13. The arrest memo on record indicates the time of arrest to be 6.45

p.m. This is glaringly inconsistent with the version of the prosecution

that the Appellant was arrested at 4.40 p.m. This cannot be brushed

aside as a mistake or merely as the time of `formal' arrest of the

appellant. The arrest memo is supposed to indicate the precise date and

time of the apprehension of the appellant. The concept of an `informal'

arrest as contrasted with a `formal' arrest is not envisaged under the

CrPC or the NDPS Act. The arrest memo has been marked through

PW5 HC Rajbir Singh. He in fact states that the Appellant "chased and

was apprehended at 4.40 p.m." In fact, he also states that he is the one

who prepared the arrest memo which was signed by him. The arrest

memo is wholly inconsistent with the version of the prosecution and

creates considerable doubt as to the time of arrest of the appellant.

14. PW3 SI Satender Kumar states that he is the author of the seizure

memo Ex.PW1/C. Although he identified his signature thereon, he

stated that he has not himself written out the said seizure memo but that

it was dictated by him and reduced to writing by Constable Vijay

Kumar. However, Ex.PW3/B is the report which he says he prepared on

10th January 2000 under Section 57 of the NDPS Act which was sent to

the ACP District Crime Cell. He further states that he was the one, who

prepared the rukka being Ex.PW3/A. A comparison of Ex.PW3/A

which is at page 185 of the trial court record and Ex.PW3/B which is at

page 302 (which is a carbon copy the original of which is at page 173 of

the trial court record) shows that there is a vast difference in the writing

of the documents. It appears that Ex.PW3/B was written by PW3 SI

Satender Kumar whereas Ex.PW3/A was not.

15. In his examination-in-chief, PW3 states that the documents were

prepared at the spot and then sent to the police station through

Constable Amit Kumar. In his cross-examination however, he

contradicts himself by stating that "the writing work was done while

sitting in the shed of the bus stand". He then states that "I remained at

the spot till 9.30 p.m. on that date. I did not prepare any document. I

cannot give any reason as to why I did not prepare any document

myself. I cannot say what documents were prepared by the I.O. when

the constable had returned back with the FIR number." If in fact the

rukka was not prepared by PW3, and Constable Vijay Kumar has not

been examined, then it is unclear as to who wrote it up and where. The

confusion is confounded by PW6 Constable Amit Kumar who states

that it was IO who was writing the documents "by sitting on the

footpath."

16. To say the least, these witnesses do not inspire any confidence at all.

It is wholly unclear as to when the above documents were prepared,

where they were prepared and when exactly they were sent to the police

station. The timing is unclear. It appears to this Court that the police has

gone about preparing the documents of this case without any concern

for the factual position. The record is riddled with uncertainties about

the exact manner of the arrest, for preparation of the documents and

their being sent to the police station for registration of the FIR.

17. The learned counsel for the appellant is also right in doubting the

record of the police station regarding removal of the samples for being

sent to the CFSL Chandigarh for testing. The photocopy of the register

which forms part of the trial court record makes no mention of the exact

date and time of the removal of the sample to the CFSL Chandigarh and

their being deposited again at the malkhana. Two witnesses are relevant

in this regard. PW10 Constable Megh Singh states that at around 7 p.m.

he was called by the SHO along with register No. 19 and he made an

entry in register No.19 regarding deposit of the case property. However,

the register no. 19 was never produced in court as is evident from the

cross-examination of this witness. PW11 HC Jogender Singh states that

on 21st January 2000 he was instructed by ASI Jasbir Singh to collect

two sealed pullandas from the malkhana mohrrar and hand them over

to the CFSL at Chandigarh. However, there no record was brought by

this witness to prove the fact. The prosecution therefore failed to prove

when the samples were removed from malkhana and when they were

sent to the CFSL Chandigarh. This also creates a considerable doubt on

the version of the prosecution.

18. In view of the numerous inconsistencies in the record which do not

support the case of the prosecution, this Court is of the view that benefit

of the doubt resulting therefrom should go to the appellant.

19. The impugned judgment and order on sentence of the learned ASJ

dated 8th August 2001 and 23rd August 2001 respectively are hereby set

aside. The appeal is allowed. The appellant is acquitted and shall be set

at liberty forthwith. The bail bonds and surety stand discharged.

20. The appeal stands allowed accordingly with no orders as to costs.

21. This Court places on record its appreciation of the competent

presentation of the case by Ms. Anu Narula, learned counsel appearing

as amicus curiae on behalf of the appellant.

S. MURALIDHAR, J.

MAY 20, 2009 ak