Bijay vs The State (G.N.C.T. Of Delhi)
2011 Latest Caselaw 3113 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 Crl.A. No. 700/2005
     %
                         Judgment delivered on:5th July, 2011


     BIJAY                                      ..... Appellant
                            Through: Mr. Rajesh Mahajan, Adv.
                            (Amicus Curiae).

                       Versus

     THE STATE (G.N.C.T. OF DELHI)               ..... Respondent

                            Through:    Mr. Arvind K. Gupta, APP.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed to
         see the judgment?                        Yes.
     2. To be referred to Reporter or not?         Yes.

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

SURESH KAIT, J.(Oral)

1. The instant appeal is filed by the appellant against the

judgment dated 22.03.2005 whereby the appellant was convicted

under Section 20 of NDPS Act and by order dated 06.04.2005, the

appellant was sentenced to undergo RI for 10 years and to pay a

fine of `1 lac. In default of payment of fine, the convict shall

further undergo RI for 6 months. The benefit of Section 428 Cr.P.C

was also given.

2. In spite of several efforts made, this Court is handicapped

since the Trial Court are not available. Vide order dated

05.07.2010, the registry had been directed by this Court to

reconstruct the records of the Trial Court. In further order dated

10.09.2010, registry was directed to place on record whatever

papers it has received in the matter during reconstruction of file.

Vide order dated 22.09.2010, learned counsel for the accused at

Trial Court was directed to be contacted but till date nothing

concrete has been found in the matter. Therefore, in the absence

of complete records of the Trial Court, I am proceeding with the

matter.

3. Mr.Rajesh Mahajan, learned counsel who has been appointed

as amicus in this matter by Delhi High Court Legal Services

Committee is also handicapped in the absence of the complete

records of the Trial Court. However, he is ready with the case on

merits.

4. The case of the prosecution in brief is that on 03.03.2003

PW-10 SI Braham Pal Singh along with PW-6 HC Ayaj Khan and

PW-7 HC Ram Avtar was on patrolling and present at platform

No.3-5 Old Delhi Railway Station. At about 09:10 pm secret

information was received by the SI that one person was sitting on black colour iron box near staircase of flyover and Ganja was

inside the said box.

5. This information was conveyed to 4/5 passerby by PW-10

SI Braham Pal Singh, they were requested to join the investigation

but they refused and left without disclosing their names and

addresses. A raiding party consisting of police officials was

organized and they proceeded towards the place where accused

was sitting on a black colour iron box and the secret informer

pointed towards the accused. On seeing the police the accused

tried to slip away with the iron box, but he was stopped by the PW-

10 SI Braham Pal Singh.

6. The said SI conveyed the secret information to the accused

and he again requested public persons to join them. On his

instance one public person by the name of Khalil Khan PW-5

joined the police party. In the meantime, PW- 4 Insp. Jai Kishan,

SHO police station RMD also reached the spot.

7. SI Braham Pal PW-10 Singh told the accused that search of

the iron box and of his person is to be conducted and it is his legal

right that search of the iron box can be conducted before a

magistrate or a gazetted officer or they can be called at the spot.

Accordingly, notice under Section 50 of NDPS Act was given to the accused. Accused declined the offer of search before a magistrate

or a gazetted officer, accordingly, his reply was noted down on the

notice. SI also offered the search of the members of raiding party to

the accused but he declined. Even then PW-10 SI Braham Pal

Singh gave his search to PW-5 Khalil Khan but no contraband was

recovered from his search.

8. PW-10 SI Braham Pal Singh directed the accused to take out

the keys of the box from the pocket of his pant and opened the box.

On opening, Ganja was found inside the said box. The Ganja was

taken out of the box and on weighing it came out to be 30 kgs., out

of which 1 kg. was separated as sample. After completing the

formalities under the NDPS Act, the said SI prepared the ruqqa

and sent the same to the police station for registration of the case.

9. Accordingly, FIR bearing no. 106/2003 was registered at

police station RMD, New Delhi. After completion of investigation,

challan under Section 20/61/85 NDPS Act was prepared and filed

in the court.

10. The Trial Court framed the charged against the accused vide

order dated 06.08.2003 under Section 20 NDPS Act to which

accused pleaded not guilty and claimed trial.

11. The prosecution has examined as many as 11 witnesses but the accused has not produced any defence witnesses in spite of

opportunity given.

12. Since there is no record of evidences on record, therefore,

there is no purpose to discuss the deposition of the witnesses.

13. Learned Amicus Curiae submits that under Section 50 of

NDPS Act, notice had to be issued in advance since on the secret

information, the police had to search the person of the accused

and his belongings. However, in this case Section 50 of NDPS Act

has not been fully complied with. Though the police has issued

notice thereafter, as alleged he declined the same.

14. The Trial Court has come to the conclusion that notice under

Section 50 of NDPS Act was not required since the recovery was

not effected from the person of the accused but was effected from

the iron box which he was carrying.

15. Further, learned Amicus Curiae points out the para 20 of the

judgement wherein PW-5 Khalil Khan, an independent witness who

participated in search and recovery proceedings has stated that the

police officials were requesting the public persons to join them

whereby PW-5 willingly joined the police officials. The police

officials also told PW-5 that they have received information about

Ganja in an iron box of black colour at the spot. He further pointed out that some documents were also given to the accused in

writing and police officials also told the accused that if he wants, a

gazetted officer can be called at the spot to which the accused

declined the said offer.

16. Learned Amicus Curiae further submits that, the police

officials were duty bound as per statute to give absolute right to

the accused i.e. either to call the magistrate or a gazetted officer

but in the present case, it was just a mere formality as the person

apprehended was only given the option of gazetted officer. The

other option is missing as per the deposition of PW-5, Khalil Khan,

therefore, the statutory provisions were not complied in its letter

and spirit.

17. PW-4 Insp. Jai Kishan and SHO concerned reached at the

spot and joined the investigation. They found 30 kgs. of Ganja

from the spot out of which 1 kg. was separated for sample purpose.

The same was sealed with „BPS‟ and „JK‟ and sent to the malkhana.

The report as required under Section 57 of the NDPS Act was

prepared and sent to the ACP. It is submitted by learned counsel

that vide letter dated 17.04.2003, the sample was sent to the FSL,

Malviya Nagar, New Delhi, whereas, the sample was deposited on

21.04.2003 to the FSL.

18. Learned Amicus Curiae has drawn the attention of this Court

towards the FSL report dated 03.06.2003 in respect of receipt of

parcel dated 21.04.2003 containing one cloth parcel sealed with

the seals of „JK‟ and „BPS‟. It is found to contain exhibit-„1‟ kept in

a polythene bag. (Exhibit-„1‟) Dark greenish brown coloured dried

plant material consisting of dried leaves, seeds and twigs stated to

be „Ganja‟ weight approx. 910.7 gms. with polythene.). On

chemical examination, exhibit-„1‟ was found to contain

Tetrahydrocannabinol which is main constituents of Cannabis

Plant. However, as per the report dated 03.06.2003 in respect of

receipt of parcel dated 12.05.2003, the weight of exhibit-„1‟ was

found 619.0 gms of dried, greenish, brownish, flowery vegetative

material along with seeds described as „Ganja‟.

19. Learned Amicus Curiae has pointed out that initially the

sample was taken of 1 kg. of Ganja, whereas, the weight reduced to

910.7 gms. and there is no explanation given by the prosecution as

to how the weight of the Ganja was reduced to this extent. It

creates suspicion whether the FSL report is on the same sample as

was sent by the police.

20. Learned Amicus Curiae further submits that the „FSL Form‟

was to be sent alongwith the sealed parcel of the sample of Ganja. Further he states that there was some interpolation in the

Malkhana Register which is called as "Store Room Register" (part-I)

against entry no. 91 wherein he noted that the words "And FSL

Form" were subsequently added. Therefore, it proves that the FSL

Form was not sent alongwith the sample taken. The Road

Certificate dated 21.04.2003 also does not indicate any „FSL Form‟.

Therefore, it further proves that no FSL Form was sent along with

sealed sample.

21. Learned Amicus Curiae further submits that while passing

the judgment, learned Trial Court has not considered the

deposition in cross-examination. He submits that in the instant

case, the Trial Judge has not discussed anywhere throughout the

judgment about the cross-examination being done by the counsel

for the accused. Though the judgment only indicates that there

was some cross-examination being done by the learned

counsel for the accused.

22. Learned Amicus Curiae had relied upon the judgment of

Radha Kishan vs. State 87 (2000) DLT 106 wherein in para 26 it

was discussed that it is the normal procedure that when the

incriminating articles are seized and are required to be sent to the

CFSL, those articles are immediately sealed and deposited in malkhana at the police station till they are taken out and sent to

the laboratory. However, in the instant case, this was not done.

Contemporaneously with seizure and sealing of such articles,

impression of seal used on sealed articles is put on a form,

commonly called the „CFSL Form‟. This is being done so because

at the time of analysis of sealed parcels in laboratory, the analyst

concerned is able to tally the seal impressions on sealed packets

with those appearing on the „CFSL Form‟ in order to rule out

any possibility of tampering of seals or sealed packets after seizure,

anywhere or in-transit, till receipt in laboratory. This is a safeguard

to an accused to ensure that no tampering has been done.

23. In para 29 of this judgment of Radha Kishan (supra), it was

observed that in a large number of NDPS cases the prosecution has

to establish that the „CFSL Form‟ should be deposited in malkhana

and thereafter be sent to the CFSL along with the seized sample;

otherwise there is a strong possibility of tampering with the seals of

samples sent to CFSL.

24. Further, learned Amicus Curiae relied upon the judgement of

Mool Chand vs. State 49 (1993) DLT 649 wherein in para 3, the

main contention on behalf of the appellant was that the „CFSL

Form‟ although allegedly filled up at the spot, neither was deposited in the malkhana nor was it sent to the CFSL alongwith

the sample and thus the very recovery of the opium becomes

doubtful.

In the present case also, learned counsel has taken the same

stand that the „FSL Form‟ was neither sent nor produced or proved

in the Court.

25. Learned Amicus Curiae further points out that the sample on

17.04.2003 was made ready to deposit at FSL, Malviya Nagar, New

Delhi, however, the sample reached there on 21.04.2003 as

indicates by the Road Certificate dated 21.04.2003. This fact has

been proved by PW-1, HC Kunji Lal. This gap of period creates

suspicion on the samples, whether it remained intact or tampered

with. Even as per the chargesheet, Ex. PW- the sample was sent

on 17.04.2003 vide R/C No. 12/21 to FSL Malviya Nagar, New

Delhi.

26. On the other hand, learned counsel for the respondent

submits that the „FSL Form‟ is not to be proved but only the report

of FSL has to be proved, therefore, the issue in the present case on

the FSL Form has no relevance at all. Therefore, the argument of

learned Amicus Curiae has to be discarded.

27. Learned counsel for the respondent has further pointed out that it is recorded in Store Room Register (part-I) that the result of

FSL was deposited at malkhana on 06.06.2003, after the report

came back alongwith the „CFSL Form‟.

28. On perusal of the said store room Register, I found that there

is no mention of „FSL Form‟ and therefore, there is no force in the

statement of learned counsel for the respondent. This issue has

already been dealt in the case of Balban Singh v. State, decided

on 05.05.2009 in Criminal Appeal No. 921/2005, in which the

Court has observed on the issues of inter-collision, variation, delay,

interpolation as under:

8. Mr.Mahajan is also right in pointing out that in the road certificate (Exhibit PW 3/B at page 107 of the trial court record), the words "& F.S.L. form" appear to have been added later to the line "one pulanda of cloth sealed with seal of LSY & HSY containing 1 kg ganja." The endorsement on its reverse signed by Constable Jitender Singh reads: "Retained one sealed cloth parcel in chemistry (sic chemical) division." There is no mention of any FSL form. The date under the signature of the person preparing the Road certificate reads 18th September 2002 whereas the endorsement of the person receiving it is dated 13th September 2002. This is yet another unexplained anomaly. In the cross-examination of PW-3, a suggestion was put that no FSL form was prepared and sent with the sample, which was of course denied by the witness. These factors taken collectively lead to the conclusion that the prosecution has failed to prove the preparation and dispatch of the FSL form with the sample for testing."

Para 9 and 10 of the judgment in the case of Balban Singh (supra) deals on the issue of the importance of ensuring the FSL form duly signed, which reads as under:-

9. In Radha Kishan v. State (supra), this Court has explained the importance of ensuring that the FSL form is duly sent with the sample for testing. IN para 26 of the said judgment, it was explained:

"26. It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central forensic Science laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instant case, this was not done.

Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is ablse to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/ police station." (emphasis supplied)

10. In Radha Kishan, after referring to the Delhi High Court Rules, Part III Chapter 18 B, regarding proper proof of custody of articles, it was held by this Court that the evidence of preparation and dispatch of the FSL form was critical for ensuring that the sealed sample was kept intact in the police malkhana. An adverse inference would be drawn against the prosecution in the event the FSL form was not proved to have been prepared and dispatched. To the same effect are the judgments in Moolchand and Phool Kumar. Further, it has been held in Satinder Singh v. State (NCT of Delhi) 69 (1997) DLT 577, that oral evidence which is contrary to the documentary evidence ought not to be relied upon. In the instant case, despite the prosecution witnesses asserting that the FSL form was prepared, not only is the FSL form unavailable on the record but the photocopies of the store room register and road certificate throw considerable doubts whether the FSL form was in fact prepared and dispatched. These documents are unreliable. For the above reasons, it is held that in the instant case the non- compliance with the mandatory requirement of preparation and dispatch of the FSL form with the sample sent for testing is fatal to the case of the prosecution.

Para 11 of the said judgment deals with the issue of seal to be handed over to an independent witness which reads as under:

11. It was next submitted by Mr.Mahajan that where there is an independent witness to the arrest and search, in the person of PW6, the seal used by the police officer to seal the pulandas containing the seized material and sample must be handed over to such the independent witness. On the contrary, Head Constable Ayaj Khan PW-4 states that "seal after use was handed over to me ................... I took the rukka to Police Station along with from box, sealed parcel, form FSL and copy of seizure memo." SI Lal Sahib also confirms that "seal after use is handed over to SI Ayaj Khan." The law in this regard has been explained by the Supreme Court in Rajesh Jagdambha Avasthi v.

State of Goa (2005) 9 SCC 773 where in para 15, it was observed: (SCC, p. 778) "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." (emphasis supplied)

Para 13 of the judgment deals with the issue of the sample being seen late for deciding to FSL and reads as under:-

13. The next submission concerned the delay of over a month and a half in sending the seized sample for testing to the FSL. The seizure was made on 22nd July 2002 and the sample was sent for testing on 13th September 2002. The Supreme Court has in Valsala v. State of Kerala 1993 (2) Crimes 267 (SC) and later in State of Gujarat v. Ismail U Haji Patel (2003) 12 SCC 29 held that the delay per se would not be material. What had to be established was that the seized articles were in proper custody and in the proper form and that the sample sent to the Chemical Analyst for testing was the same that was seized.

Para 15 of the Judgment deals with the issue of seal to be handed over to an independent witness, and reads as under:-

15. The further submission was that PW-6 Ramesh Chand was in fact a stock witness for the prosecution. It is seen from the cross-examination of PW-6 that "he had appeared as a witness once, in a narcotics case." He further stated: "he appeared as witness in some other drug case about one year back." In Rajesh Jagdambha Avasthi, among other grounds, the acquittal of the accused was based on the ground that one of the panch witnesses was a stock witness. It was observed (SCC, p. 778) "16. There is one other aspect of the matter. PW-2, the panch witness associated in this case appears to be a stock witness. The other panch witness has not been examined. PW-2 admitted in very clear terms that he was earlier associated in two other cases under the NDPS Act as panch witness. In both those cases, PSI Thorat was the Investigating Officer. On 14.12.1994 he had been summoned by PSI Thorat and acted as a panch witness in the case against P.C. Kulbi, who as noticed earlier disclosed the complicity of the appellant. Thereafter, in the instant case, he was requested by PW-4 to act as a panch witness. It appears that PSI Thorat was also associated with this case as he was present with PW-4 when PC Kulbi was apprehended and thereafter when the appellant herein was apprehended and searched at the instance of the aforesaid Kulbi."

30. At the end, learned counsel for the respondent feels

handicapped in the absence of the Trial Court records, therefore,

he has not argued further.

31. I have heard both the parties. The notice under Section 50 of the NDPS Act was not properly given as the Investigating Authority

was supposed to give him both the option of a Gazetted Officer or a

Magistrate as is provided in the act which the Investigating

Authority has failed in the instant case which is supported by PW5

Khalil Khan who stated that police official told the accused that if

he wants a gazetted officer, can be called at the spot to which the

accused declined the said offer.

32. As regard the question of „FSL Form‟ is concerned, it has

been proved from the above discussion that it was never sent to the

FSL Malviya Nagar and not proved in the Court also. By not

sending the FSL Form along with the samples make the samples

doubtful.

33. The sample of Ganja was taken of 1 Kg, wheras the weight

was found to be 910.7 grams and there is no explanation as to how

the weight of the Ganja was reduced, this also creates doubt on the

sample. The Investigating Officer interpolated Malkhana Register

and mentioned and „FSL Form‟ which proves that the Police Officer

never sent the FSL Form along with samples.

34. After sealing the samples, the seal was not handed over to an

independent person, rather he kept with him only, which also

creates doubt on the sample whether the samples, were intact and not tempered with.

35. I have perused the nominal roll dated 04.02.2010. The

appellant has already undergone 6 years 10 months and 29 days

and the unexpired portion of sentence is only 3 years 1 months

and one day (IFP).

36. Putting the curtain down, in the above said facts and

circumstances of the case, the judgment dated 22.03.2005 and the

order dated 06.04.2005, whereby he was sentenced to RI for ten

years and to pay a fine of `1 Lac, is set aside.

37. Criminal Appeal No.700/2005 is accordingly allowed and the

appellant is acquitted from all the charges and he shall be released

forthwith. His personal Bond and surety bond are cancelled.

SURESH KAIT, J

JULY 05, 2011 KA/Neelam