Kamrul Haq vs State
2011 Latest Caselaw 975 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL. A. 941/2004

KAMRUL HAQ                                   ..... Appellant
                             Through:   Ms. Rakhi Dubey and Mr.
                                        Rajmangal Kumar, Advocates.
                    versus


STATE                                       .... Respondent
                             Through:   Mr. Pawan Sharma, Standing
                                        Counsel with Mr. Harsh Prabhakar,
                                        Advocate.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA

                               ORDER

% 18.02.2011

The appellant-Kamrul Haq by the impugned judgment dated 10th

September, 2004 has been convicted under Section 20 (b) (ii) (C) of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the

Act) and by order dated 16th September, 2004 has been sentenced to

rigorous imprisonment for ten years and fine of Rs.1,00,000/-. In default

of payment of fine, the appellant has been directed to undergo simple

imprisonment for one year. Benefit of Section 428 of the Code of

Criminal Procedure, 1973 however has been granted to the appellant.

2. This appeal was adjourned repeatedly to await the decision of the

Division Bench on the question, whether the percentage of THC in the Criminal Appeal No. 941/2004 Page 1 seized material, i.e. Charas, was relevant or not. The Division Bench in

Dilip Vs. State 2010 (4) JCC 169 (Narcotic) has held that in the case of

Charas percentage of THC is not relevant for deciding whether the

quantity seized is commercial quantity or not. The appellant during

pendency of the appeal was released on bail vide order dated 22nd January,

2010.

3. The facts as noticed in the impugned judgment are that on 3rd

January, 2010, a search party had apprehended the appellant at Shyam

Giri Mandir at about 1 pm on pointing out by the informer with a bag

containing Charas. It is alleged that 6 kgs. of Charas, which is a contra

band, was in possession of the appellant and was seized.

4. As far as search, seizure and the arrest of the appellant are

concerned, the prosecution has led evidence in form of statements of PW-

2, ACP Parvez Ahmed, PW-3, Inspector R.K. Singh, PW-9, HC Virender

Kumar and PW-11, SI Arun Kumar Choudhary. The said witnesses have

proved the case of the prosecution with regard to the search, seizure and

arrest of the appellant. They have stated that in a bag carried by the

appellant, Charas weighing about 6 kgs. was seized and out of the said

Charas one sample weighing 500 gms. was separated. The seized article

as well as the sample was sealed with the seal of AKC and GCD. Learned

Criminal Appeal No. 941/2004 Page 2 counsel for the appellant initially had urged that there is discrepancy in

the statement of PW-9, HC Virender Kumar and PW-11, SI Arun Kumar

Choudhary in respect of how the alleged Charas was weighed. It was

pointed out that PW-9, HC Virender Kumar had stated that the alleged

Charas was weighed with the help of an Electronic Scale, whereas the

PW-11, SI Arun Kumar Choudhary had stated that the weighing scale

which was issued was mechanical. This discrepancy according to me is

not material and the counsel for the appellant did not seriously press the

said point.

5. The real issue and question raised by the appellant is with regard to

the production of the sample and the case property i.e. substance

recovered from the appellant in the Court. PW-2, ACP Parvez Ahmed in

his examination in chief, has stated that the Charas was weighed and

found to be weighing 6 kgs. The sample as well as the Charas were both

sealed with the seals of AKC and GCD. CFSL form was filled up. He has

stated that he had signed the recovery memo and could recognize the case

property if shown to him. Thereafter, the case property as well as the

sample was shown to PW-2, ACP Parvez Ahmed. He has stated as

follows:-

"At this stage, one sealed parcel with the seal of AKC and GCD is opened and found charas. The same is Criminal Appeal No. 941/2004 Page 3 Ex.P1, green polythene is Ex.P2.

At this stage, another sealed parcel sealed with the seal of AKC and GCD is opened and found remanat of Charas, same is Ex.P3."

6. What is apparent from the statement of PW-2, ACP Parvez Ahmed

is that the case property was produced and had the seal of AKC and GCD.

The same was opened and marked Ex.PW1. The polythene bag was given

mark Ex.PW2. Thereafter, another parcel i.e. the sample was opened. The

sample also had the seal of AKC and GCD. Thus, the sample as well as

the case property both had seals of AKC and GCD.

7. There is merit in the contention of the learned counsel for the

appellant that this was not possible as the case of the prosecution is that

the sample along with CFSL form were sent to the CFSL Laboratory at

Police Complex, Malviya Nagar, New Delhi. The CFSL Laboratory has

submitted their report Ex.PW-6/H. As per the said report, after

examination, remnants of the sample, were sealed with the seal of

KMFSL, DELHI. The relevant portion of the CFSL report Ex.PW-6/H

reads:-

"Note: After examination, remnants of the exhibit were sealed with the seal of KMFSL, DELHI."

8. The said CFSL report is signed by Mr. Kamlesh Miglani, Senior

Scientific Officer, who has appeared as PW-10. Thus, it is clear from the

Criminal Appeal No. 941/2004 Page 4 statement of PW-2, ACP Parvez Ahmed, PW-10 Kamlesh Miglani as well

as the CFSL report Ex.PW-6/H that the sample which was produced in

the Court was not the same sample which was sent to the CFSL

Laboratory and which after examination/tests was returned back. The

sample after testing was sealed with the seal of KMFSL, DELHI, whereas

the sample which was produced in the Court had the seal of AKC and

GCD i.e., the original seals which were put at the time of seizure. Mr.

Pawan Sharma, learned Standing Counsel for the State could not

controvert and meet the allegation with regard to the discrepancy in the

seals. He, however, submitted that this appears to be a typographical error

or mistake. The said contention of the learned Standing Counsel cannot be

accepted as PW-2, ACP Parvez Ahmed has made a clear and categorical

statement in this regard. It is difficult to accept that the statement of PW-

2, ACP Parvez Ahmed was incorrectly recorded. As noticed above, he has

specifically stated that the two separate seals i.e. AKC and GCD were

present on the sample which was produced in the Court and was marked

Ex.PW3. If there was error or mistake, other witness could have corrected

or clarified the position. This has not happened.

9. It has been rightly emphasized and highlighted that the CFSL form

is required to be deposited in the Malkhana and has to be thereafter sent

Criminal Appeal No. 941/2004 Page 5 along with the sample to the Laboratory. At each and every stage it should

be ensured that there is no tampering of the seal of the sample sent for

testing. In the present case there is a doubt about the sample which was

sent to the CFSL Laboratory of which report is available and the sample

which was produced before the Court. It is obvious that the sample which

was tested was not produced before the Court, as the sample produced in

the Court does not bear the seal which was put by the Laboratory. How

and why the sample with seal of AKC and GCD was produced in the

court remains a mystery and unanswered. This creates a grave doubt about

the sample which was sent for test to CFSL and the sample of which the

report ExPw-6/H is available. In these circumstances, I feel that the

appellant is entitled to benefit of doubt. Accordingly the appeal is allowed

and the appellant is acquitted. Bail bond is discharged.

SANJIV KHANNA, J.

FEBRUARY 18, 2011
NA




Criminal Appeal No. 941/2004                                          Page 6