Delhi High Court

Radhey Shyam vs The State(Nct Of Delhi) on 25 April, 2011

Author: Ajit Bharihoke

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Judgment delivered on: April 25, 2011

+      CRIMINAL APPEAL NO. 302/2008

       RADHEY SHYAM                                    ....APPELLANT
               Through:          Mr. Aditya Wadhwa, Advocate

                             Versus

       THE STATE (NCT OF DELHI)               ....RESPONDENT

Through: Ms. Fizani Husain, APP

WITH

CRIMINAL APPEAL NO. 395/2008

CHOTTEY LAL ....APPELLANT Through: Mr. Aditya Wadhwa, Advocate

Versus

THE STATE (GOVT. OF NCT) DELHI ....RESPONDENT Through: Ms. Fizani Husain, APP

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. Radhey Shyam and Chottey Lal, the appellants herein have

preferred the instant appeals against the impugned judgment of

Special Judge, NDPS, Delhi dated 21st January, 2008 and the

consequent order on sentence dated 24 th January, 2008 whereby the

appellants have been found guilty and convicted for the offences

punishable under Section 18 of the NDPS Act and sentenced to

undergo RI for the period of 10 years each with fine of Rs. 1 lakh

each, in default of payment of fine, to undergo SI for one month

each.

2. Briefly stated, case of the prosecution is that on 02 nd June,

2004 at about 9.00 a.m., SI Sunil Kumar (PW8) of P.S. Narcotics

Branch, Kamla Market received a secret information that four

persons namely Radhey Shyam, Chottey Lal, Bagadi Ram and

Bhairon Lal would bring Opium for supply in Delhi, Haryana and

Punjab and that they would come to a place near Mori Gate between

10.30 to 11.30 a.m. This information was recorded as DD No. 8

dated 2.6.04 at police station Narcotics Branch. SI Sunil Kumar

(PW8) organized a raiding party comprising of self and five others

namely Head Constable Harcharan Singh (PW1), Head Constable

Omkar Singh, Head Constable Kuldeep Singh (PW9), Constable

Kheta Ram (PW3) and Constable Rajbir Singh. The police party left

for Mori Gate with testing kit and an electronic weighing machine.

„Nakabandi' was held at Mori Gate Chaimbry. At about 11.00 a.m.,

above referred four persons were spotted coming from the side of

Tis Hazari Courts. They were apprehended on the pointing of

informer. Appellant Chottey Lal was carrying a white coloured

polythene bag containing a transparent polythene bag which was

found to contain 7 Kgs. of Opium. Out of the recovered Opium, two

samples of 25 gms. each were drawn. The samples sealed as well

as remaining Opium were sealed in separate packets and taken into

possession.

3. Appellant Radhey Shyam was also carrying a white coloured

bag having a transparent polythene bag containing 9 Kgs. of Opium.

Two samples of 25 gms. each were drawn from the Opium recovered

from Radhey Shyam. Samples as well as remaining Opium were

sealed in the separate packets and seized vide a seizure memo.

4. It is the case of the prosecution that the Opium recovered from

the accused persons and respective samples were sealed with the

seal of 6A PS NB DELHI.

5. SI Sunil Kumar prepared „rukka' (Ex.PW8/B) and sent it along

with the seized material as well as the form CFSL prepared at the

spot to the police station through Constable Kheta Ram (PW3) for

the registration of the case. On the basis of „rukka', formal FIR

(Ex.PW5/A) was registered.

6. Form CFSL as well as the case property and the samples were

produced before SHO P.S. Hooda, who also appended his seal "NBR

DELHI" (Ex.PW8/C) on the case property and the samples and

deposited it with MHCM. Nothing incriminating was recovered from

the other two persons Bagadi Ram and Bhairon Lal. The samples

were sent to FSL and on chemical analysis, the samples gave

positive test for Opium. On completion of investigation, a

consolidated charge sheet was filed against all the four accused

persons.

7. The appellants Radhey Shyam and Chottey Lal were charged

under Section 18 of the NDPS act. They pleaded not guilty and

claimed to be tried. They were also charged under Section 29 of

NDPS Act along with Bagadi Ram and Bhairon Lal to which all the

four accused persons pleaded not guilty and claimed trial.

8. It may be noted that there was some discrepancy regarding

weight of samples received at FSL vis-a-vis the weight of the

samples drawn at the spot of recovery. Thus a petition was filed

requesting for drawing of fresh samples and sending for

re-evaluation. Aforesaid petition was allowed by this court vide

order dated 16th July, 2007 and the prosecution was directed to

redraw sample from the case property seized at the spot and send

the same for chemical examination. The samples were accordingly

drawn and sent to FSL for chemical analysis and those samples also

tested positive for Opium.

9. In order to bring home the guilt of the appellants, prosecution

examined nine witnesses in all. Material witnesses, however, are

the raid officer SI Sunil Kumar (PW8) and Head Constable Harcharan

Singh (PW1) and Constable Kheta Ram (PW3), who were members of

the raiding party. All of them in their testimony in the court have

supported the above referred version of the prosecution.

10. Other material evidence on record is the report dated

23.11.2007 of CFSL Ex.PX pertaining to analysis of the samples of

the case property sent for analysis pursuant to the directions of this

Court dated 16.07.2007 and the earlier CFSL report dated

14.09.2004 relating to the analysis of the samples drawn from the

case property at the time of recovery.

11. Learned Additional Sessions Judge relying upon the testimony

of the prosecution witnesses and other material on record, found the

appellants guilty of having illegal possession of 9 kgs and 7 kgs of

opium respectively and convicted and sentenced both the

appellants for offence under Section 18 of NDPS Act.

12. Learned Shri Aditya Wadhwa, Advocate appearing for the

appellants has contended that the appellants are innocent and their

conviction is based upon incorrect appreciation of the facts.

Expanding on the argument, learned counsel submitted that the

story of the recovery of opium from the possession of the appellants

is highly improbable for the reason that there is a mismatch

between the FSL reports regarding the analysis of the samples

allegedly drawn at the spot and the samples which were sent

subsequently pursuant to the orders of the Court after drawing the

same from the case property. In this regard, he has drawn my

attention to the FSL report dated 14.09.2004 regarding analysis of

the samples allegedly drawn from the case property in raid

proceedings and the CFSL report Ex.PX pertaining to the analysis of

samples subsequently drawn from the case property and pointed

out that in the first report dated 14.09.2004 which was filed along

with the charge sheet, the chemical analyst has opined that

respective samples were found to contain 3.4% and 3.2% of opium,

whereas as per the subsequent report Ex.PX, the samples drawn

from the case property were found to contain 0.49% and 0.47% of

Morphine. Learned counsel has contended that this marked

difference in the contents of Morphine of respective samples cast a

strong doubt on the story of prosecution regarding the recovery of

the Opium from the possession of the appellants. Learned counsel

argued that had prosecution version been true, there would not

have been such a difference in the Morphine content of the samples

drawn from the case property at different occasions. Learned

counsel urged, this contradiction raise a strong possibility that the

opium was not recovered from the possession of the appellants and

they have been falsely implicated in this case. Learned counsel

argued that aforesaid doubt against the prosecution story is

compounded by the fact that the prosecution case is not supported

by any independent witness, despite of the fact that admittedly

there were shops near the place where secret information was

received as well as the place of recovery. Admittedly, the raid

officer did not make any effort to join a shop keeper to the recovery

and instead he has come out with a vague explanation that he

requested few passersby near the place of recovery as well as the

place of occurrence to join the raiding party but no one obliged.

Learned counsel argued that had the Investigating Officer been

serious about joining an independent witness, he was naturally

expected to have given preference to the shop keepers because

their address was certain and they could be easily produced in

evidence to support the case of prosecution. This, however, has not

been done which cast a doubt against the correctness of prosecution

case. Thirdly, it is argued that the doubt against prosecution case is

further compounded by the fact that in all the arrest memos and

personal search memos of the accused persons, there is

manipulation regarding the date and in these memos the date of FIR

as well as date of preparation of memos have been converted by

overwriting to 2.06.2004. It may be noted that on perusal, it

appears that 3.06.2004 has been converted by overwriting 2.6.2004.

Learned counsel has submitted that in view of the aforesaid

contradictions coupled with the fact that there is also a discrepancy

regarding inscription on the seal allegedly affixed by the raid officer

and the SHO on the samples vis-a-vis the seal found on the samples

at FSL by the concerned officer, it is not safe to rely upon the

prosecution evidence which is based upon the testimony of the

police officers who are interested in the success of the case. Thus,

he has strongly urged for the acquittal of the appellants.

13. Learned Ms. Fizani Husain, APP for the State, on the contrary

has argued in support of the impugned judgment. Learned APP

submitted that nothing turns on the discrepancy regarding the

weight of samples drawn at the spot and found at the CFSL at the

time of analysis. Learned APP pointed out that as per the CFSL

report dated 14.09.2004 the samples were weighed along with

polythene and submitted since the samples were weighed along

with the polythene wrapping, it was bound to be more than 25 gms.

As regards the discrepancy regarding the Morphine found in

respective CFSL reports, learned APP pointed out that first report is

dated 14.09.2004 and second report is dated 23.09.2007 and

submitted that it is possible that due to time gap of three years, the

content of Morphine in the case property came down because of

some chemical reaction. Regarding description of the seal

inscription, learned APP has contended that comparison of the

testimony of the Raid Officer and the SHO P.S.Hooda (PW6) vis-a-vis

CFSL report would show that the alphabets of the seal inscriptions

found in the CFSL report dated 14.09.2004 are exactly similar to the

alphabets of seal used by the Raid Officer and the SHO. The only

discrepancy is that there is a difference of placement of alphabets in

the seal inscriptions which can be attributed to typographical error.

Learned APP submitted that Raid Officer as well as other witnesses

of recovery have fully supported the case of the prosecution. There

is no reason as to why the Raid Officer would falsely implicate the

appellants, who were residents of Madhya Pradesh, as such, there is

no reason to doubt their testimony. Thus, learned APP has pressed

for dismissal of the appeal.

14. I have considered the rival contentions and perused the record.

Admittedly, the case of the prosecution is based upon the testimony

of police officials. PW8 SI Sunil Kumar has admitted in his cross

examination that secret information was received by him in his

room at Narcotics Branch at Kamla Market, Delhi and there were

shops in the vicinity but he did not call anybody from those shops to

join the raid. He has also admitted that even near the place of

recovery i.e. roundabout Mori Gate, there were shops but he did not

call anybody from those shops to join the raid. He however stated

that near the place of secret information as well as the place of

recovery, he requested passersby to join the raid but they declined

to oblige. From this, it is evident that the Investigating Officer has

not made sincere efforts to join the independent witness with

permanent address to the raid. It is difficult to accept that a sincere

and responsible Investigating Officer would prefer stray persons by

over the nearby shopkeepers having permanent address, while

investigating such a serious case. No doubt, the failure of the

Investigating Officer to join independent witnesses, however, by

itself cannot be taken as a circumstance to reject the testimony of

the police officials. But, this calls for a cautious approach on the

part of the Court while analysing the evidence. Learned APP has

tried to explain the non-joining of the public witnesses by the

Investigating Officer by contending that secret information was

received at 09.20 a.m. and police party reached at the place of

recovery at 10.20 a.m. She contended it is possible that due to

early hours of morning, the shops were not even open, therefore,

the Investigating Officer had no occasion to request shopkeepers to

join the raid. There is no merit in this contention for the reason that

if the shops were closed, raid officer Sunil Kumar SI definitely would

have clarified by deposing to this effect.

15. As per the testimony of raid officer SI Sunil Kumar, he had

drawn two samples of 25 gms. each from the opium respectively

recovered from the appellants Chottey Lal and Radhey Shyam.

Admittedly, the samples were sent to CFSL for analysis and as per

the report of CFSL dated 14.09.2004 annexed to the charge sheet,

respective samples were found to contain Morphine content to the

extent of 3.4% and 3.2% respectively. Admittedly pursuant to the

orders of this Court dated 16.07.2007 fresh samples were drawn

from the case properties recovered from respective case and sent to

CFSL. Those samples as per the report of CFSL Ex.PX gave an

entirely different result i.e. the Morphine found in those samples was

0.49% and 0.47%. This huge variation in the content of Morphine in

the sample sent earlier and the samples sent on subsequent

occasions raise a strong doubt against the correctness of

prosecution story, particularly when the prosecution has not been

able to give a cogent explanation for this discrepancy. Only

explanation given by learned APP is that the samples were sent for

analysis after a gap of three years, therefore, a possibility cannot be

ruled out that the Morphine contend in the case property came

down due to some chemical reaction. Learned APP has not been

able to show me any scientific literature in support of her

contention. Therefore, I find it difficult to accept the aforesaid

explanation for mismatch between the two CFSL reports. This

discrepancy in two CFSL reports definitely puts a question mark on

the prosecution story. The doubt against the correctness of

prosecution story is further compounded by the fact that there is no

independent witness to the recovery of opium from the appellants.

Though the Investigating Officer has admitted that there were shops

in the vicinity of aforesaid two places, he admittedly did not care to

request any shopkeeper to join the raiding party and was satisfied

by requesting few passersby who perhaps did not have any time to

wait for the accused persons to come and raid to materialise. This

circumstance also cast a doubt on bona fides of the Investigating

Officer. This Court is conscious of the fact that absence of public

witness to recovery by itself cannot be a ground to reject the

testimony of the police officials, yet in my considered view, this

circumstance assumes importance in view of the fact that the two

samples drawn from the case property on different occasions did not

match when sent for chemical analysis. Not only this, there are

cuttings regarding the date on the personal search memos as well

as the arrest memos of the appellants as well as the other accused

persons arrested along with them. On perusal of memos Exhibits

PW1/S, PW1/T, PW1/U, PW1/V, PW1/N, PW1/P, PW1/Q and PW1/R, it

transpires that on all these memos there is overwriting regarding

the date at the top and under the signatures of the IO. It appears

that date has been converted to 2.6.2004 by overwriting from

3.6.2004. This also makes the prosecution version suspect and a

possibility of manipulation cannot be ruled out.

16. In my aforesaid view, I draw strength from the judgment of

Supreme Court in the case of Rakesh Jagdamba Avasthi Vs.

State of Goa, (2005) 9 SCC 773 where the Supreme Court taking

note of the discrepancy regarding the weight of Charas allegedly

seized from the accused vis-a-vis the weight of Charas found in the

packet by the Junior Scientific Officer observed that aforesaid

unexplained discrepancy eroded the credibility of recovery

proceedings and rendered the case of prosecution doubtful.

Relevant observations of the Supreme Court are reproduced thus:

"12. However, there appears to be substance in the other submissions urged on behalf of the appellant, namely, that the weight of the substance sealed in two envelopes was found to be different from the weight of the substance received by the laboratory as deposed to by PW-1. It is not disputed that from the shoe on the right foot 100 gms. of Charas was recovered, which was sealed in envelope 'A'. According to PW-1, the Junior Scientific Officer when that envelope was opened and the substance weighed it was found to be 98.16 gms. Similarly, from the shoe on the left foot 115 gms. of Charas was recovered which was packed and sealed in envelope B. But only 82.54 gms. of the substance was found in envelope B when the same was opened by PW-1. A similar submission was urged before the High Court and the High Court also found that this discrepancy could not be explained by the prosecution. The High Court observed that there was no doubt that the envelope B which was said to contain 115 gms. of Charas was found to contain only 82.54 gms. of Charas and this could not be considered to be a minor discrepancy. However, the High Court was of the view that even if this sample contained in envelope B was not considered against the appellant on account of discrepancy in the weight, since there was no material discrepancy in the weight of the Charas found in the other envelope A, the case against the appellant stood established on the basis of the Charas recovered, packed and sealed in envelope A.

13. It, therefore, concluded that the appellant could be held guilty for unauthorized possession of 98.16 gms. of Charas found in envelope 'A', if not for the total quantity of 180,70 gms. as charged.

14. We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of Charas weighing 180.70 gms. The Charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by Junior Scientific Officer, PW-1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference in weight was significant The High Court itself found that it could not be described as a mere minor discrepancy. Learned counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on

the basis of what was recovered only from envelope 'A' ignoring the quantity of Charas found in envelope 'B'. This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW-1 was less than the quantity sealed and sent to him. As he rightly emphasized, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW-1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful.

15. This is not all. We find from the evidence of PW-4 that he had taken the seal from PSI Thorat and after preparing the seizure report, panchnama, etc. he carried both the packets to the police station and handed over the packets as well as the seal to Inspector Yadav. According to him on the next day, he took back the packets from the police station and sent them to PW-3, Manohar Joshi, Scientific Assistant in the Crime Branch, who forwarded the same to PW-1 for chemical analysis. In these circumstances, there is justification for the argument that since the seal as well as the packets were in the custody of the same person; there was every possibility of the seized substance being tampered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case".

17. Learned APP has submitted that first CFSL report dated 14 th

September, 2004 cannot be looked into as it has not been relied

upon by the prosecution nor it has been proved on record. This

contention of learned APP is misconceived. The FSL report dated

14th September, 2004 has been relied upon in the charge sheet. Just

because the prosecution has opted not to prove it on record, it

cannot get away from the discrepancy in two CFSL reports.

18. In view of the discussions above, I am of the considered view

that it is not safe to base conviction of the appellants upon the

testimony of the police officials who were interested in success of

the case. Thus, the impugned judgment and the consequent order

on sentence dated 24th January, 2008 cannot be sustained.