Mohd. Anwar @ Annu vs State
2011 Latest Caselaw 1196 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   Crl. A. No. 501/1999

%                                          Reserved on: 16th November, 2010

                                           Decided on: 28th February, 2011

MOHD. ANWAR @ ANNU                                        ..... Petitioner
                Through:                Mr. Jayendra Savada, Advocate

                    versus

STATE                                                     ..... Respondents
                             Through:   Mr. Manoj Ohri, APP

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                          Not necessary

2. To be referred to Reporter or not?                       Yes

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

MUKTA GUPTA, J.

1. By this appeal, the Appellant lays a challenge to his conviction for

offence punishable under Section 21 of NDPS Act, 1985 (in short the „Act‟),

and a sentence of Rigorous Imprisonment for 10 years and a fine of `1,00,00/-

and in default of payment of fine, to further undergo simple imprisonment for

a period of one year. The Appellant was charged for the offences along with

Bishan Singh @ Natia and Parveen Singh @ Kalia. All the three accused

were convicted by the impugned order. Bishan Singh who was granted interim

bail during the trial absented on 19th May, 1999 and the non-bailable warrants

issued against him were received back unexecuted so he was declared a

proclaimed offender on 12th July, 1999. Thus, the Appellant Mohd. Anwar

and co-convict Parveen Singh were heard on the point of sentence and both

were awarded the sentence as mentioned above. Criminal Appeal No.

493/1999 filed by Parveen Singh @ Kalia has already been disposed of by this

Court vide judgment dated 11th November, 2010 wherein he has been

acquitted in view of the non-compliance of Section 50 of the Act. Thus, the

present appeal filed by Mohd. Anwar @ Annu is being decided separately.

2. Briefly, the prosecution case is that prior to 14th July, 1998 there was an

information with the Operation Cell, Ashok Vihar that some persons in Rohini

are indulging in the business of narcotics and are supporting the terrorist.

Further information was developed in this regard and on 14th July, 1998 at

about 4:30 p.m. the informer who informed that Bishan Singh who indulged

in the business of narcotics will come from his house B-22, Sector-7, Rohini

along with his associates to distribute smack. This information was recorded

in the Roznamcha vide DD Entry 17, Ex PW 11/A. This information was also

passed on to ACP Amrik Singh Bhuller PW2 and the raiding party was

formed; comprising of Inspector Babu Singh PW11, Inspector Ishwar Singh

PW10, Inspector Bharat Singh PW 7, SI Jagtar Singh, SI Karan Singh PW6,

ASI Jhandu Ram PW4, ASI Jagdish, H.C. Harkhayal, HC Anil and HC Naug

Raj who left the Operation Cell vide departure entry DD 18 Ex. PW11/B at

about 4:40 p.m. on two motorcycles and four two wheeler scooter. They

requested 4-5 public persons in Ashok Vihar Market to join the raiding party

however no one agreed and at about 5:30 p.m. they reached Sarvodaya School

where they again requested 4-5 people to join, but none agreed. Nakabandi

was laid in front of Uday Singh Market, Sector-7, Rohini. At about 6:30 p.m.

on the pointing out of the informer, three persons namely Bishan Singh,

Parveen Singh and Mohd Anwar were stopped while coming on scooter DL 8

SH 5512 which was being driven by Parveen Kumar. All the three accused

were surrounded and informed that they are police officials and because they

are in possession of smack, therefore, if they want they can take search of

police officials but they declined. Inspector Bharat Singh was sent to make a

telephone call to ACP Amrik Singh Bhuller, PW2 and SHO P.S. Rohini, Insp.

Gurdial Singh PW5 and they were called at the spot. Thereafter, individual

notices under Section 50 of the NDPS Act were served on all the three

accused and they were asked if they want to take the search of the police

official they can do so but they declined. They were further asked if they

want to be searched before a Gazetted Officer/Magistrate to which they also

declined. ACP, Amrik Singh Bhuller, PW 2 reached the spot at about 7:00

p.m. who was apprised of the facts and was also informed about the Section

50 notice being already served on them. Thereafter, Insp. Bharat Singh took

the search of the accused. The Appellant was searched and from his right

hand, a purple colour polythene on which Ganga Drycleaners was written was

recovered which contained a black colour polythene containing 1 Kg. of

smack, out of which 10 grms. was taken as sample and the remaining smack

was sealed in parcel and the sample was given Serial No. S2. In addition,

search of accused Parveen and Bishan Singh was conducted and on the

disclosure of Bishan Singh his house in Sector-7, Rohini was searched where

material used for supply and preparing of smack, polythene bags, staples

machines etc. were recovered. As the present appeal relates only to Mohd.

Anwar, this Court can digress from the said facts. After completion of the

investigation, the charge-sheet was filed. The Appellant was charged for

offence punishable under Section 21 of the Act for being found in possession

of 1kg. smack. After recording the prosecution evidence and the statement of

the accused, the learned Special Judge convicted the Appellant as above.

3. Learned counsel for the Appellant contends that there are material

discrepancies in lodging of the FIR, sealing of the case property, the sample

seized and sealed, depositing the same in Malkhana, sending them to CFSL

and the report thereof. There are discrepancies in the statements of the

witnesses as some of the witnesses have stated that from the Appellant a

polythene of purple colour with „Ganga Drycleaner‟ written on it was

recovered whereas the parcel no. 2 was a white polythene on which

„Manzone‟ was written. The information received prior to 14th July, 1994 was

not reduced in writing which is a mandatory requirement under Section 42 of

the Act. This information was also not sent to the senior officers as required.

As per the testimony of PW2, ACP Amrik Singh Bhuller, no public witness

was asked to join the proceedings in his presence. As per PW3 HC Prem

Singh who was posted at PS Rohini and was working as MHCM, the personal

search of the accused was deposited with him at 11:45 p.m. whereas the case

property had been deposited by the SHO Gurdial Singh PW5 at 10:00 p.m.

No copy of the Section 50 notice had been deposited along with the personal

search memo of the Appellant. The name of the officer who deposited the

case property has not been mentioned in the Register No. 19. There is no

mention of deposit of form CFSL in the Malkhana Register. Moreover, it is

also not mentioned that along with the sample parcel form CFSL was sent.

The learned counsel next contended that no signatures on Malkhana register

were obtained of PW1 HC Chittar Singh who took the articles to CFSL

Chandigarh. Also PW 4 ASI Jhandu Ram who took the ruqqa to the police

station has not stated about any independent person being requested to join the

raiding party. PW4 further states that Inspector Babu Singh called the SHO

PW5 and ACP PW2 whereas other witnesses have deposed that Inspector

Bharat Singh called the ACP & the SHO. PW 7 Inspector Bharat Singh in his

testimony has stated that the purple polythene which was taken out from this

parcel did not pertain to parcel no. 1 but it pertained to parcel no. 2. Thus the

polythenes have been interchanged. All the witnesses have deposed that one

seal each of „BS‟ and „GS‟ was put on the samples however when the samples

reached the CFSL, three seals were found and thus tempering with the

samples cannot be ruled out. It is, therefore, contended that in view of the

discrepancies in the statements of the witnesses and in view of the fact that

Section 50 and 42 of the Act have not been complied with in true spirit, the

Appellant is entitled to be acquitted.

4. Learned APP on the other hand contends that the prosecution has

proved its case beyond reasonable doubt against the Appellant. PW11 in his

testimony has deposed that the secret information so received was recorded in

writing in Roznamcha vide DD No. 17 Ex. PW11/A which was passed onto

the senior police officer. ACP Amrik Singh Bhuller was made aware of each

and every development and was also called at the spot. He has appeared as

witness PW 2 and testified to this effect. Thus, in terms of the decision of the

Constitution Bench in Karnail Singh vs. State of Haryana, 2009 (8) SCC 539

Section 42 of the Act has been duly complied with.

5. It is stated that there was no need to comply with Section 50 of the Act

as the recovery was not from the person of the Appellant but from a polythene

bag in his right hand. The law on the point is well- settled that Section 50 has

to be complied only in a case of personal search of the accused. It is next

contended by the learned APP that there is no discrepancy in regard to the

polythene from which recovery was made. The first material witness PW2

ACP Amrik Singh Bhuller has testified that from Bishan Singh a light purple

coloured polythene on which Shri Ganga Drycleaners was written was

recovered with a black polythene inside which contained smack whereas from

Mohd. Anwar a white coloured polythene was recovered on which „Menzone‟

was written was recovered with a black polythene inside which contained

smack. Though, there is a discrepancy in the deposition of PW2 on this count,

however, this has been clarified by all other witnesses i.e. PW6, PW7, PW10

and PW11 who have stated that the purple colour polythene with „Ganga

Drycleaners‟ written on it was recovered from Mohd. Anwar the Appellant

herein; whereas the white coloured polythene with „Menzon‟ written on it was

recovered from the accused Bishan. It is thus contended that the prosecution

case cannot be thrown out on this count.

6. From the testimony of PW1, PW3, PW5, PW6, PW7, PW10 and PW11

and ruqqa Ex. PW11/C, seizure memo Ex. PW2/A and Register No. 19 Ex.

PW3/A, it has been duly proved that the form CFSL was filled at the spot and

later deposited with PW3 HC Prem Singh who was then the Moharar

Malkhana. PW3 in his testimony recorded on 30th March, 1999 stated that the

form CFSL along with the three sample parcels so seized were sent to CFSL

through HC Chittar Singh PW1, which is also corroborated by the testimony

of ACP Amrik Singh Bhuller PW2 who stated that form CFSL was filled at

the spot and PW1 who deposed that on 21.7.1998 he took three sealed parcels

and form CFSL from PW3 vide RC No.74/98 to CFSL Chandigarh on the

same day. The said fact also stands recorded in the road certificate Ex.

PW1/B and Ex. PW11/P the result of CFSL.

7. As per testimony of PW6, PW7, PW10 and PW11, it is proved that

notice under Section 50 was served on the Appellant and a copy thereof has

been recovered from his personal search memo Ex.PW6/H. The Register No.

19, Ex.PW3/A also records the articles seized from the personal search of the

Appellant and it is duly recorded there that a copy of notice under Section 50

of the Act was recovered. Learned APP contends that PW5 having not

appended the signatures on the Register No. 19 is immaterial. PW3 in his

testimony has explained that the signatures of PW1 were not obtained in

column 7 of the Register but were obtained on the road certificate Ex. PW1/B.

Replying to the contention of the learned counsel for the Appellant in relation

to the seizure and sealing of the case property, it is stated that PW11 Inspector

Babu Singh has stated that he had received back the seal after 21st July, 1998

and as per PW1, he had taken the samples from PW3 HC Prem Singh the

Moharar Malkahana at about 6:20 a.m. on 21st July, 1998 for taking the same

to the CFSL. Thus, the seal was returned to PW11 only after the samples

were sent for being deposited to the CFSL that is on 21st July, 1998. Hence, no

tempering could be possible with the samples and case property.

8. It is urged that efforts were made to join the public witnesses and the

same stands proved by the testimony of PW6, PW7, PW 10 and PW11. Once

efforts are made, then the non-joining of public witnesses is not fatal to the

prosecution case. The fact that the witnesses have stated that there were two

seals and as per CFSL report there were three seals on the case property is

inconsequential as no suggestion has been given to PW3 MHCM that the case

property was taken out after the initial deposit on 14th July, 1998 and was ever

tempered with. Further there is no suggestion given to PW1 that while taking

samples to CFSL there was any tempering with the case property. The fact

that the seals were intact and tallied with the specimen seal is also observed in

the CFSL report Ex.PW11/P. Moreover, no objection was taken to the

admissibility and the mode of proof of the CFSL report when it was exhibited

by PW11 and thus no objection can now be taken at the appellate stage.

Learned APP contended that there is no merit in the contentions of the learned

counsel for the Appellant and thus the appeal be dismissed being devoid of

any merit.

9. I have heard learned counsel for the parties and perused the records. In

the present case, the recovery of the contraband from the Appellant is from a

bag in his hand. Whether recovery of contraband from a bag in the hand

would amount to recovery from the person of the accused and thus require

mandatory compliance of Section 50 is settled by the Hon‟ble Supreme Court

in State of H.P. Vs. Pawan Kumar, 2005 (4) SCC 350:

"11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry, any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which

it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act."

Therefore, in the light of the settled legal position and on the facts of

the present case, the contention of the learned counsel for the Appellant that

he is entitled to be acquitted is liable to be dismissed.

10. As regards the non-compliance of Section 42 of the Act is concerned,

the prosecution has adduced evidence to show that the secret information

received on 14th July, 1998 has been recorded in writing vide DD No. 17 Ex.

PW11/A. The contention of the Appellant that since there was an earlier

information also and the same should have been recorded is meritless in view

of the deposition of the PW2 ACP Amrik Singh Bhuller who has deposed that

there were earlier information but as they were not very specific same were

not reduced to writing and PW7 Inspector Bharat Singh and PW11 Inspector

Babu Singh were asked to further develop the said information. Thus, the

Senior Officer i.e. PW2 was informed of all the facts. Once a proper and

specific information was received on 14th November, 1994, the same was

reduced into writing and was duly passed on to the senior officers as required

under the provisions of Section 42 of the Act. As held by the Hon‟ble

Supreme Court in Karnail Singh (supra), compliance of Section 42 is a

question of fact to be determined on the facts of each case. In the present

case, from the testimony of the witnesses that is PW2, PW7 and PW11 who

have deposed that the information though received prior to 14th July, 1998 but

was not specific and was being developed, hence not reduced to writing, when

on 14th July, 1998 specific information was received it was reduced to writing

and sent to the senior officers, sufficient compliance of Section 42 of the Act

has been proved.

11. I also do not find any merit in the contention of the learned counsel for

the Appellant that though one seal each of GS and BS was affixed, however,

when the samples reached CFSL there were three seals on the parcels. PW5

Inspector Gurdayal Chand who was the SHO of PS Rohini has in his

testimony stated that three accused were apprehended by the Operation Cell

he interrogated the said three accused persons and that the three bags of

smack, three sample parcels, recovery memo and form CFSL were handed

over to him and the seal of BS was affixed on it and thereafter he affixed his

seal of GS on the three parcels, the three sample parcels and form CFSL. As

per Ex. PW11/P, the CFSL report the sample parcel S1 had two seals of BS

and one of GS whereas sample parcels S2 and S3 had two seals of GS and one

of B.S. Thus, all that has been noted is that an additional seal has been found

of the same person which in no way shows that the sample parcels were

tempered. The CFSL report clearly shows that the seals were intact and

tallied with the specimen seals. Putting of an extra seal of the same kind

would not mean that seals were tempered with and would not be fatal to the

prosecution or that the prosecution has not proved the link evidence.

12. Learned counsel for the Appellant has laid emphasis on the fact that

Malkhana Register No. 19 does not indicate that form CFSL has been

deposited. PW3, H.C. Prem Singh in his statement has stated that on 14 th

July, 1998 he was posted at MHCM P.S. Rohini and Inspector G.C.Shalan i.e.

PW5 the SHO of PS Rohini deposited three parcels sealed with the seal of GS

and BS and three sample parcels with the same seals along with the form

CFSL. He has further deposed that an entry to this effect was made by him in

the Register No. 19 at Serial No. 1112. The witness has stated that on 21 st

July, 1998 he gave the three sample parcels along with form CFSL to be sent

to CFSL through PW1 HC Chitter Singh vide R.C. No. 74/98 and made

entries to this effect in the Register No. 19. This witness brought the original

register in the court and the relevant portion of the photocopy of the Register

No. 19 was exhibited as Ex.PW3/A. A copy of the Road certificate Ex.

PW1/B has also been proved whereby PW1 HC Chitter Singh had received

the three sealed sample parcels along with CFSL form. Moreover, CFSL

Repot Ex. PW11/P records that the seals were intact and tallied with specimen

seals. Thus this corroborated the version of PW 1 that the form CFSL was sent

to CFSL along with the sample parcels.

13. As regards the contention of the learned counsel for the Appellant in

filling up the form and being deposited in Malkhana is concerned there is

sufficient evidence on record in the form of statement of the witnesses PW5,

PW6, PW7, PW10 and PW11 who were all present at the spot and have

consistently deposed that form CFSL was filled at the spot itself, when the

other documents that is when the seizure memos, recovery memos etc. were

prepared and smack and other case property was sealed. PW3 HC Prem

Singh who was working as MHCM and had deposited it in the Malkhana and

PW1 who had taken the samples to the CFSL have also deposed on same lines

that form CFSL was deposited in the malkhana and the same was sent to the

CFSL through PW1, which proves the fact that form CFSL was duly filled,

deposited and sent along with the samples to the CFSL for obtaining the

results.

14. I do not find any merit in the contention of the learned counsel for the

Appellant that non-joining of public witnesses casts a serious doubt on the

prosecution case. Testimony of PW2 ACP Amrik Singh Bhuller that no

public witness was asked to join the proceedings in his presence is of no

consequence. The raiding party was formed by Insp. Babu Singh PW11, Insp.

Ishwar Singh PW10, Inspector Bharat Singh, PW 7, ASI Jagtar Singh, SI

Karan Singh Pw6, ASI Jhandu Ram PW4, ASI Jagdish, H.C. Harkhayal, HC

Anil and HC Naug Raj. PW6, PW7, PW10 and PW11 all in their examination

in chief have deposed that they had requested the passers-by to join at Ashok

Vihar market and Sarvodaya Market, however, they refused which fact has

been deposed by the said witnesses when they appeared in the Court. Further,

it is well-settled that even in the absence of joining of public witnesses, the

conviction can safely be based on the testimony of police witnesses if the

same inspires confidence, as held in Karamjit Singh vs. State (Delhi

Administration), 2003 (5) SCC 291.

15. Though, there is discrepancy in the testimony of PW2 ACP Amrik

Singh Bhuller between the two polythenes recovered from Appellant Mohd.

Anwar and his co-accused Bishan Singh however the other witnesses i.e.

PW6, PW7, PW10, PW11 are consistent in their statement that from Bishan

Singh a white coloured polythene on which `Menzone‟ was written containing

one black colour polythene with 1 Kg smack was recovered and from the

Appellant Mohd. Anwar a purple colour polythene on which „Ganga

Drycleaner‟ was written which contained one black colour polythene with

1k.g. smack was recovered. It is stated that the said polythene was found in

the right hand of the Appellant. When the case property was produced in the

Court and said parcels were shown to PW2 sealed parcel No.1 containing Shri

Ganga Drycleaners polythene as Ex.P-1, a black polythene as Ex.P-2 and

smack as Ex.P-3 were found. PW2 deposed that the said recovery was

attributable to accused Bishan Singh whereas when sealed parcel No.2

containing white polythene with `Menzone‟ written on it as Ex.P-5, black

polythene Ex.P-6 and smack as Ex.P-7 was opened in Court, PW-2 attributed

the said recovery to the Appellant. This testimony of PW-2 identifying the

case property is contradictory to the testimony of other witnesses i.e. PW6,

PW7, PW10 and PW11. At this stage, it would be appropriate to reproduce

the relevant portions of the testimony of the other witnesses:-

PW6 - SI Karan Singh

"xxx xxx xxx xxx xxx xxx xxx xxx Thereafter, Inspector Babu Singh took search of accused Bishan Singh. One white colour plastic polythene was recovered from right hand on which Menzol etc. was printed. That plastic bag was containing a black polythene bag which contained heroin. It was weighed and found to be 1 kgm. out of which 10 grams were taken out as sample. Recovered smack was given Sl.No.1 and the sample parcel was also marked as S-1

xxx xxx xxx xxx xxx xxx xxx xxx

Thereafter, from right hand of Mohd. Anwar, light purpled colour polythene was recovered which contained black polythene containing heroin. On weighing it came out to 1 kgm. out of which 10 grams were taken out as sample and sample and remaining smack were converted into parcels and sealed with the seal of BS.

xxx xxx xxx xxx xxx xxx xxx xxx

I can identify the case property if shown to me. Witness identifies light purple colour having print of Shri Ganga Drycleaners Ex.P-1, black polythene Ex.P-2, smack Ex.P-3 to be the same which was recovered from accused Mohd. Anwar. Remnants of sample are Ex.P-4.

Witness identifies white polythene Ex.P-5 black polythene Ex.P-6, smack Ex.P-7 to be the same which were recovered from accused Bishan Singh. Witness identifies remnants of sample Ex.P-8 taken from smack Ex.P-7."

PW7 - Inspector Bharat Singh

"...........Thereafter, the polythene which accused Bishan Singh was having, words Menzole was written. It was containing one more polythene which contained heroin. On weighing, it came out to be 1 kgm. out of which 10 grams were taken out as sample. Sample as well as remaining heroin were sealed in separate pullandas with the seal of BS and the sample was marked as S-1 and the remaining heroin was given Sl.No.1. Thereafter polythene which accd. Mohd. Anwar was carrying in his right hand was checked. It was of purple colour and words of some Drycleaners were printed on that polythene. That polythene contained one black coloured polythene which contained heroin. On weighing it came out to be 1 kgm. out of which 10 grams were taken as sample. Sample and remaining smack were sealed with the seal of BS and given Sl. No.2 and sample was marked as S-2

xxx xxx xxx xxx xxx xxx xxx xxx

I can identify the case property if shown to me.

At this stage, a sealed parcel No.1 bearing court seal is opened and the contents shown to the witness. Witness states that purple polythene which has been taken out from

this parcel did not pertain to parcel No.1 but it pertains to parcel No.2. However, he identifies black coloured polythene which contained smack. The witness states that since the polythene has changed, he cannot say this smack was recovered from which of the two accused i.e. Bishan Singh or Mohd. Anwar

At this stage, parcel No.2 sealed with the seal of court is opened and the contents shown to the witness. Witness statement that white polythene having words of Menzole pertains to parcel No.1 and not parcel No.2. He identifies the black polythene which contained smack. He states that since the polythene has been interchanged, I cannot say from whom this smack shown in parcel No.2 has been recovered i.e. from Bishan Singh or Mohd. Anwar."

                PW10 - Inspector Ishwar Singh

                "xxx     xxx   xxx    xxx    xxx   xxx    xxx      xxx

Thereafter, in search of Bishan Singh, he was carrying one white polythene bag on which Manzone was written. That white polythene bag contained one black polythene which contained heroin. On weighing, it came to be 1 kgm. out of which 10 grams were taken out as sample and the sample and remaining smack were converted into parcels and sealed with the seal of BS.

Thereafter, Mohd. Anwar was searched and he was carrying a purple colour polythene bag on which Ganga drycleaners was written. That polythene bag contained another black polythene which contained heroin. On weighing it came to be 1 kgm. out of which 10 grams was taken out as sample and sample and remaining smack were converted into parcels and sealed with the seal of BS."

xxx xxx xxx xxx xxx xxx xxx xxx

I can identify the case property if shown to me.

.........At this stage, a sealed parcel bearing No.1 bearing court seal is opened and the contents shown to the witness. It contains purple colour polythene on which Ganga Drycleaners is written and it contained black polythene which contained heroin. Witness states that this polythene containing smack was recovered from accused Mohd. Anwar and parcel was given Serial No.2 and sample was given serial No.S-2. He identifies purple colour polythene Ex.P-1 black polythene Ex.P-2; smack Ex.P-3 to be the same which was recovered from accused Mohd. Anwar.

.......At this stage, a sealed parcel No.2 bearing court seal is opened and the contents shown to the witness. It contains white polythene having print of Manzone which contained black polythene having smack. Witness states that this polythene was recovered from accused Bishan Singh present in court and it was given Sl.No.1 and its sample was given Sl.No.1. Witness identifies white polythene Ex.P-5, black polythene, Ex.P-6 and smack Ex.P-7 to be the same which was recovered from accused Bishan present in court today."

                PW11 - Inspector Babu Singh

                "xxx     xxx   xxx   xxx    xxx   xxx   xxx    xxx

First of all, I took search of accd. Bishan Singh. From his right hand one polythene bag was recovered on which Manzone was written. That contained one black colour polythene which contained smack. On weighing smack came out to be 1 kgm. out of which 10 gram was taken as sample. The sample and remaining smack were given Serial No.1 and sample as S-1. It was sealed in pullanda with the seal of BS. Thereafter, accused Mohd. Anwar was searched. From his right hand, a purple colour polythene on which Ganga Drycleaners was written was recovered which contained black polythene which was containing smack. On weighing it came out to be 1 kgm. out of which 10 grams was taken out as sample. Smack was given Sl.No.2 and sample was given S-2

xxx xxx xxx xxx xxx xxx xxx xxx

I can identify the case property if shown to me.

..........At this stage, parcel no.1 is shown to the witness. Witness states that purple colour polythene having the print of Ganga Drycleaners and the black polythene inside this polythene containing smack was recovered from accud. Mohd. Anwar and he further states that he had given these articles as serial no.2. He further states that these articles were wrapped in a parcel made of cloth but the cloth shown to him in the Court today does not bears his signatures and even the other particulars on this cloth are not in his handwriting. According to him somebody has changed this cloth and written the particulars of the case and also wrote on it parcel no.1 whereas in fact the articles which were recovered in the purple polythene was from Mohd. Anwar and he had given it as serial no.2. However he states that polythene (purple colour) and black polythene smack are the same which were recovered from accud. Mohd. Anwar. He identified purple colour polythene Ex.P1, black polythene Ex.P-2, smack Ex.P-3 to be the same which were recovered from accud. Mohd. Anwar.

At this stage, parcel no.2 and its contents are shown to the witness. Witness identifies white polythene Ex.P-5, black polythene Ex.P-6 and smack Ex.P-7 to be the same which was recovered from accud. Bishan Singh present in the court today. However, according to him, these articles were also sealed by him in a pullanda made of cloth on which he had given serial no.1 but the cloth shown to him today in the court bears serial no.2 and according to him although he had signed the parcel but the cloth cover shown to him does not bears his signature and the other particulars are also not written in his hand."

16. Thus on a perusal of the above noted testimonies it is evident that PW6

SI Karan Singh has correctly identified the case property, the purple coloured

polythene with „Ganga Drycleaners‟ written on it which was recovered from

the Appellant Mohd. Anwar and the white polythene on which „Menzone‟

was written which was recovered from accused Bishan. PW7 has stated that

that the polythene bearing words of `Menzone‟ written on it was recovered

from accused Bishan and polythene with the name of some drycleaner written

on it was recovered from accused Mohd. Anwar and has also stated that the

contents of Parcel No.1 pertains to parcel No.2 and not parcel No.1 and due to

this interchange in the outer white cloth of the parcels, he could not identify

the smack so recovered whether it is attributable to accused Bishan or Mohd.

Anwar. PW10 Insp. Ishwar Singh has also deposed on similar lines on the

fact of recovery from accused Bishan and Mohd. Anwar and has also

identified the case property, stated about the recovery and sealing of parcels.

Thus, the factum of recovery and sealing of the case property has been proved

by PW11, Inspector Babu Singh duly corroborated by the version of PW6,

PW7, PW10 and the contemporaneous documents i.e. ruqqa Ex. PW 11/C and

the seizure memo Ex.PW2/A. However, PW11 Insp. Babu Singh has deposed

that the said pullandas which he sealed beared his signature and information

of the contents of the pullanda and that the pullanda which have been opened

in the court do not bear his handwriting and are not the same.

17. From the evidence it is clear that the cloth parcel in which the seized

articles i.e., the polythene bags and the smack were sealed have been

interpolated with. On this aspect the learned Trial Judge has directed an

enquiry be held by the Commissioner of Police, as to who and at what

juncture the cloth parcel were changed. Hence, the sanctity of the case

property being kept in Malkhana in sealed condition without being tempered

with becomes doubtful. Thus the prosecution has not been able to prove the

link evidence of the case property.

18. Since the prosecution has failed to prove the link evidence, the

Appellant is entitled to the benefit of doubt. The impugned judgment of

conviction and sentence in Sessions Case No. 44/98 is set aside. The

Appellant is acquitted of the charges framed. The bail bond and surety bond

are discharged.

19. The appeal is accordingly allowed.

(MUKTA GUPTA) JUDGE FEBRUARY 28, 2011