Govind Kumar Jha vs State (Nct) Of Delhi
2010 Latest Caselaw 740 Del

*                  HIGH COURT OF DELHI : NEW DELHI

        Judgment reserved on : February 03, 2010
      Judgment pronounced on : February 09, 2010

+                               Crl. A. No. 1037/2008

%       Govind Kumar Jha                ...  Appellant
                 Through: Ms. Rakhi Nigam, Advocate

                                     versus

        State (NCT) of Delhi                ...   Respondent
                  Through: Mr. Amit Sharma, Additional
                             Public Prosecutor for the State

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.         Whether         the
           Reporters  of local
           papers    may    be
           allowed to see the
           judgment?
                                                 No.
2.         To be referred                to
           Reporter or not?

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

SUNIL GAUR, J.

1. Appellant was prosecuted for being in unlawful

possession of 45 kgs of 'ganja' and upon being convicted

by the trial court under Section 20 of 'The Narcotic Drugs

and Psychotropic Substances Act, 1985', (hereinafter

referred to as the 'NDPS Act') he had challenged his

conviction as well as the sentence of rigorous

imprisonment for ten years with fine of Rupees one lac, in Crl. A. No. 1037/2008 Page 1 this appeal.

2. In the evening of 19th day of September, 2006, a

secret information was received that a person was sitting

near Road No.40, ahead of Sheetla Mata Mandir, Gulabi

Bagh, Delhi with huge quantity of 'ganja' which is a

contraband narcotic drug. After informing the local SHO,

concerned police officials had conducted a raid and

Appellant was apprehended at the aforesaid place with

three bags, i.e., two of black colour and third one is of blue

colour. When weighed, each of these bags were found to

be weighing 15 kgs and there were three packets of 4 kgs

each and one packet of 3 kgs, in each of these three bags.

A sample of one kg each was drawn out of these three

bags and six separate parcels were prepared and were

sent to FSL, where it was confirmed that the recovered

substance was 'ganja'.

3. Regarding this incident, FIR No. 374/06 under Section

20 of 'NDPS Act' was registered at Police Station Sarai

Rohilla, Delhi and its investigation culminated into filing of

charge sheet for the aforesaid offence. Since

appellant/accused chose to contest the charge under

Section 20 of the 'NDPS Act' framed against him by the

trial court, trial followed.

Crl. A. No. 1037/2008 Page 2

4. The evidence recorded by the trial court consists of

the deposition of the official witnesses and the material

ones, whose deposition has been referred to, during the

hearing of this appeal are ASI Raj Kumar (PW-8), who had

conducted the raid and Constables Kalu Ram and Vijay

Kumar were the members of the raiding party. The

concerned SHO, (PW-7), and the Investigating Officer (PW-

9) had deposed before the trial court about their

respective roles in this case.

5. The precise stand of the appellant/accused before

the trial court was of his going to Sadar Bazar for buying

clothes and of his being apprehended from there. He

claims false implication and asserts that he was forced to

sign blank papers, which have been used against him. He

had preferred not to lead any evidence in his defense

before the trial court.

6. The trial of this case ended with the conviction of the

appellant/accused and the sentence imposed upon him is

assailed here in this appeal.

7. The contentions advanced by both the sides, have

been thoughtfully deliberated upon and the evidence

referred to, has been meticulously examined by this court.

8. The first contention advanced during the hearing of Crl. A. No. 1037/2008 Page 3 this appeal, was that FIR Number was not written on the

Notice (Ex.P-7) under Section 50 of the 'NDPS Act', when it

was served upon the appellant/accused by ASI Raj Kumar,

(PW-8), who admits it. It appears that the FIR number etc.

was put upon Notice (Ex.P-7) subsequently. There is no

suggestion to this witness (PW-8) about any tampering in

the Notice (Ex.P-7). This notice was recovered from the

appellant/accused by the Investigating Officer (PW-9) and

in normal course, he is the one, who puts the FIR number,

etc. on the Notice (Ex.P-7), after its recovery from the

appellant/accused at the spot itself. Had there been any

cross-examination of the Investigating Officer (PW-9)

about it by the defence, this would have become clear. In

any case, nothing turns on it, as neither there is any

suggestion to the Investigating Officer (PW-9) that this

Notice (Ex.P-7) has been tampered with nor it can be so

inferred.

9. The next contention advanced is that there is a

discrepancy in the prosecution case regarding sending of

report under Section 57 of 'NDPS Act'. It is pointed out by

learned counsel for the Appellant that ASI Raj Kumar (PW-

8) claims that he had prepared it whereas, Investigating

Officer (PW-9) asserts that he had prepared this report

(Ex.PW-1/A) and had sent it. This is an innocuous

Crl. A. No. 1037/2008 Page 4 inconsistency which does not adversely reflect upon the

prosecution case, for the reason that this report (Ex.PW-

1/A), itself reveals that it was prepared by the

Investigating Officer (PW-9) and not by ASI Raj Kumar (PW-

8). In any case, this is not a material defect.

10. The third contention advanced revolves around the

FSL Report (Ex. PW-9/C), which is a foundation of the

prosecution case and it has been asserted on behalf of the

appellant/accused that this vital document is inadmissible

in evidence as the same has not been formally proved in

evidence. This contention needs to be rejected

straightaway for the reason that this FSL Report (Ex. PW-

9/C & Ex. PW-9/D) is authored by Assistant Director of

Forensic Science Laboratory and is per se admissible

under Section 293 of the Code of Criminal Procedure.

However, if the appellant/accused was not satisfied with

the aforesaid FSL Report (Ex. PW-9/C), nothing stopped

him from making a prayer for calling the expert witness,

(who had given this report) to elicit as to how the

recovered 'flowery vegetative material' could be described

as 'ganja'.

11. Here only, the fourth contention raised needs to be

dealt with and it pertains to the varying weight of the

samples received in the FSL. It stands noted in the FSL Crl. A. No. 1037/2008 Page 5 document/Report (Ex. PW-9/D) that the weight of the three

samples was 1073 gms, 1101 gms and 939 gms,

respectively. As per this document/FSL Report (Ex. PW-

9/D), these three samples, when received, were sealed

and had tallied with the specimen seal impression

forwarded alongwith the FSL form. It is no doubt true that

these three samples were of one kg each and they were

weighed at the spot in a manual weighing scale and not in

electronic weighing scale. Therefore, marginal

inconsequential variation in the weight of these three

samples does not even remotely suggest that there was

any tampering in these three samples, especially so, when

the FSL Report itself certifies that these samples were

intact and their seal impressions were tallied with the

specimen seal impression on the FSL form accompanying

these samples. It is pertinent to note that there is no

cross-examination of the Investigating Officer (PW-9)

regarding the weight of the three samples drawn by him.

Therefore, I do not find any ambiguity in the prosecution

case on this aspect.

12. The fifth contention pertains to acknowledgement

taken by Constable Kalu Ram (PW-4) regarding deposit of

the samples from FSL, on the back of the FSL Form. What

is asserted is that this means that two FSL Forms were

Crl. A. No. 1037/2008 Page 6 prepared. The best person to give an answer to it, is ASI

Raj Kumar (PW-8), who had prepared it. He is not

questioned about it. In fact, only one FSL Form is prepared

in cases like the present one. Constable Kalu Ram (PW-4)

had infact taken the acknowledgement regarding the

deposit of the samples on the carbon copy of the 'Road

Certificate', whose attested copy is on record and it clearly

bears the endorsement that the three samples of this

case, in sealed conditions, have been retained in the

Chemistry Division of the FSL. In this background, the

aforesaid inadvertent omission, cannot by itself demolish

the entire prosecution case.

13. Sixth and the last contention advanced on behalf of

the appellant/accused is of Constable Vijay Kumar (PW-5)

having taken the samples of this case with the copy of

seizure memo from the spot to Police Station and had

handed over the same to the SHO concerned. According to

Appellant's counsel this shows that more than one copy of

the Seizure Memo were prepared which shakes the

credibility of the prosecution case. It is not so. It is a

matter of record that carbon copy of the seizure memo

was also prepared, as is the practice to do so and the

carbon copy of the seizure memo was deposited with the

MHC (M) - (PW-2), which was duly entered by him in his

Crl. A. No. 1037/2008 Page 7 register.

14. After a detailed scrutiny of the entire evidence on

record, this court is of the considered opinion that the

aforesaid contentions do not demolish the prosecution

case, which has been rightly accepted by the trial court to

convict the appellant/accused. The sentence imposed

upon the appellant/accused is also the minimum provided

under the law. There is no scope for any interference by

this court, as the conviction of the appellant/accused is

well founded and the sentence imposed upon him is in

accordance with law.

15. This appeal lacks substance and needs to be

dismissed. Accordingly, the appeal is dismissed. Appellant

is in custody. He be apprised of this order through the Jail

Superintendant.

16. The appeal and pending application, if any, stands

disposed of accordingly.

Sunil Gaur, J.

February 09, 2010
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Crl. A. No. 1037/2008                                     Page 8