Jodha Sahani vs The State Of Nct Of Delhi
2010 Latest Caselaw 4233 Del

              * IN THE HIGH COURT OF DELHI AT NEW DELHI


                                            Date of Reserve: 3rd August, 2010
                                            Date of Order: September 13, 2010

+ Crl.Appeal No. 259/2006
%                                                              13.09.2010


       Jodha Sahani                                         ... Appellant
                              Through: Ms. Rakhi Dubey, Advocate

               Versus


       The State of NCT of Delhi                  ... Respondents
                         Through: Mr. O.P.Saxena, APP for the State


JUSTICE SHIV NARAYAN DHINGRA

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

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

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

JUDGMENT

The present appeal has been preferred against order dated

30th May, 2005 convicting the accused/appellant under Section 8 of NDPS

Act punishable under Section 20(b)(ii)(c) of NDPS Act and order dated 2nd

June, 2005 sentencing him to undergo imprisonment for period of 10 years

and a fine of Rs.1 lac.

2. As per prosecution‟s case, on 17th April, 2003 a police

patrolling party at about 6.05 pm saw the appellant going near baandh

holding a gunny back in his hand. When the appellant looked at police party

he got scared and quickly moved towards village Devali. This raised

suspicion in the mind of police party and he was stopped by the police party

and his gunny bag was checked. A substance like charas was found in the

gunny bag. SI P.C.Yadav who was heading the police party told appellant

that his personal search was to be taken and he served a notice under

Section 50 NDPS Act (Exh. PW-4/A) upon the appellant. The appellant

however did not ask for search in presence of a gazette officer and

magistrate and his personal search was conducted. Nothing incriminating

was found from personal search. The substance found in the gunny bag

was weighed and found to be 8.5 kg. A message was sent to Police Station

by SI P.C.Yadav and Inspector Nand Kishore reached the spot. A sample of

500 gm was taken from the substance in gunny bag and sealed with seal of

PY. Form FSL was also prepared and the same seal was put on the form.

Inspector Nand Kishore, who had reached the spot, also put his own seal of

NK on the sample and on the form FSL. The remaining quantity of charas in

gunny bag was sealed and taken to Police Station and deposited with

malkhana. Sample charas (Exh. P1) was sent to the CFSL along with the

form and the CFSL report confirmed that the substance was charas. The

investigating officer had also sent a report under Section 57 NDPS to ACP

Greater Kailash. The learned trial Court after considering the evidence and

the documents came to the conclusion that the accused was found in

possession of 8.5 kg of charas, a prohibited substance under NDPS Act and

convicted the accused.

3. In the appeal, a plea has been taken that the provisions of

Section 42 NDPS Act were not followed by the Investigating Officer. This

plea has to be rejected since Section 42 NDPS Act was not applicable in this

case as there was no prior intimation with the police party about the

appellant carrying charas with him. Section 43 NDPS would be applicable in

this case which relates to chance recovery and therefore procedure under

Section 42 NDPS Act was not to be followed.

4. The other plea taken by the appellant is that the FSL report

mentions - "The parcels one in number marked „1‟ which was sealed with

specimen seal impression forwarded". It is stated that the word used in FSL

report is "specimen seal" and not "specimen seals" as there were two seals

"NK" and "PY" and therefore benefit of doubt should be given to the accused.

I consider that this argument is a baseless argument. The accused cannot

be given benefit of doubt because of wrong grammar of the person sitting at

FSL. It seems that the person at FSL had no idea of usage of singular and

plural words that is why for one parcel word "parcels" has been used. As the

seal impression on the parcel tallied with the seal on the form there is no

question of giving benefit of doubt. A plea is taken that form FSL was not

sent or deposited with FSL along with the parcel. This point is falsified from

FSL report itself which shows that the form FSL along with parcel was

received. The Counsel for the appellant relied on malkhana register which

does not mention of sending FSL form along with the sample. Malkhana

register is not the ultimate proof of what was sent to CFSL laboratory. PW-3

Om Prakash in his testimony has categorically stated that sealed parcel with

form FSL was sent to FSL Malviya Nagar through constable Raghubir. This

testimony of witness cannot be rejected merely because in the malkhana

register there is no mention of form FSL being sent along with the sealed

sample.

5. The other ground taken is that a proper notice under Section

50 NDPS was not served upon the accused as the notice served was

defective. This argument is not tenable since in this case recovery was not

made from the person of the appellant. The recovery was made from a

gunny bag and the Supreme Court in State of Himachal Pradesh v. Pawan

Kumar 2005 (4) SCC 350, after considering large number of decisions

including decision in State of Punjab v. Baldev Singh 1999 (6) SCC 172,

categorically held that Section 50 of the Act would be applicable only in a

case of personal search of an accused and it would not be applicable in

respect of search of some baggage like bag, article or container which the

accused at the relevant time was carrying.

6. The next ground taken by the appellant is that a notice under

Section 57 of the NDPS Act about arrest and search was not signed and

dated therefore this was no notice in the eyes of law. It would be seen that a

report regarding arrest of accused was sent by SI Sanjiv Dodi, who on the

date of incident was posted at PS Sangam Vihar. The report exhibited on

the court record was a carbon copy of the information sent. The witness did

admit that carbon copy did not bear his signature and date but that does not

mean that the original report was not signed. The witness has testified that

he prepared this report and sent the same to ACP Greater Kailash. It is a

normal procedure that a report with carbon copy is prepared and it is quite

possible that the original alone was signed by this witness and sent to ACP

and the carbon copy was kept for record. Signing and preparing of report

are two different acts. Merely because carbon copy placed on record was

not signed does not mean that the original was also not signed. I, therefore,

find no force in this argument.

7. The next ground taken by the Counsel for the appellant is that

no public witness was joined at the time of recovery. The accused had

started moving quickly towards the village on the seeing police party and

police party therefore stopped the accused/appellant and checked his gunny

bag. On checking it was found that gunny bag held by the accused

contained charas. Merely because the police party did not associate public

persons in this "chance recovery" cannot be a ground to disbelieve the case

of prosecution. Moreover, there is normal tendency of public persons not to

associate themselves with police investigation as the investigation and the

trials in this country are the source of great harassment to the witnesses who

are often not taken care of by the courts or by the police. The witnesses are

normally scared to join any investigation or give testimony even of what they

have witnessed in broad daylight because of the repeated summoning in the

courts and sending them unexamined in a routine and casual manner by the

courts.

8. The other ground of assailing trial Court judgment is that when

the gunny bag containing remaining material was produced in the Court, its

seal was not intact and therefore this was a case where benefit of doubt

should be given to the accused/appellant. In Rangi Ram v. State of Haryana

JT 2000(5) SC 494 a similar argument was made before the Supreme Court

that seal on the gunny bag produced in the Court was found broken

therefore there was no guarantee as to what was found in the gunny bag.

The Supreme Court held that the submission did not deserve to be accepted

because according to the evidence on record and from the material which

was found in the gunny bag, a sample was taken and the chemical examiner

had reported that it was powder of poppy husk.

9. Merely because of the circumstances the seal got broken, the

Court could not jump to the conclusion that the material in gunny bag was

substituted. Broken seal of the gunny bag, when it was produced in the

Court, only reflected the the circumstances in which the materials are kept in

malkhanas and have to remain there till they are produced in the Court.

Most of the materials are kept one over the other due to several reasons,

including paucity of space, and in this process while taking out required case

property there is always possibility of the seals getting damaged. I, therefore

consider that this is no ground to doubt the case of the prosecution.

I find no force in this appeal. The appeal is hereby dismissed.

September 13, 2010                       SHIV NARAYAN DHINGRA, J.
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