Delhi High Court
Abdul Malik vs State on 28 February, 2014
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on:17.02.2014
Date of Decision: 28.02.2014
+ CRL.A. 891/2010
ABDUL MALIK ..... Appellant
Through: Mr. M.A. Hasan, Adv.
versus
STATE ..... Respondent
Through: Mr. Feroz Khan Ghazi, APP for
State with SI Pankaj Kumar,
Special Cell, INR, Rohini, Delhi
+ CRL.A. 943/2010 & Crl. M(B) 1151/2012 & Crl. MA 4406/2013
MOHD ASLAM ..... Appellant
Through: Mr. Hemendra Jailiya, Adv.
versus
STATE ..... Respondent
Through: Mr. Feroz Khan Ghazi, APP for
State with SI Pankaj Kumar,
Special Cell, INR, Rohini, Delhi
+ CRL.A. 946/2010 & Crl.M(B) 1120/2010
MOHD SAHID @ ANTONY BABA ..... Appellant
Through: Mr. M.A. Hasan, Adv.
Versus
STATE ..... Respondent
Through: Mr. Feroz Khan Ghazi, APP for
State with SI Pankaj Kumar,
Special Cell, INR, Rohini, Delhi
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J.
On 26.02.2004, the Special Cell of Delhi Police received an
information that one Mohd. Sahid @ Antony Baba would receive some
parcels containing ganja from the Post Office, Sri Niwas Puri or nearby
post office between 11 am to 11.30 am. The information was recorded vide
DD no.6 and the concerned ACP was informed, though not in writing. A
raiding party was then organized under the leadership of Inspector
Kulbhushan Sharma. The raiding party besides Inspector Kulbhushan
Sharma, included SI Dinesh Kumar, ASI Ram Babu, ASI Ishwar Singh,
Constable Deepak and constable Ravish. When the raiding party reached
near Cambridge School, the informer pointed out three persons standing at
footpath. One of them, who was an old man and was identified as Mohd.
Sahid @ Antony Baba was carrying a parcel in his hand whereas his two
associates Mohd. Aslam and Abdul Malik were found sitting on two
parcels each, which had been kept on footpath. All the three persons were
apprehended and were told that if they wished they could get their parcels
searched by any Gazetted Officer or a Magistrate. They were also told that
it was their right and they were also briefed about the duties and powers of
a Gazetted Officer/ Magistrate. The notice under Section 50 of the NDPS
Act was served on all of them. They, however, refused to get the parcels
searched by any Gazetted Officer/ Magistrate. They also refused to take the
personal search of SI Pankaj, who thereafter opened the parcels.
The parcel recovered from the appellant - Mohd. Sahid was found
addressed to him and on weighing it is weight was found to be 5 kg and
800 gm. The parcels recovered from Mohd. Aslam were also addressed to
Mohd. Sahid @ Antony Baba and were found to contain ganja wrapped in
polythene. The first parcel weighed 9.4 kg. The second parcel recovered
from the appellant - Mohh. Aslam was also addressed to Mohd. Sahid and
its weight was found to be 10 kg and 500 gm. The ganja was found
wrapped in a polythene in this parcel as well. The first parcel recovered
from Abdul Malik was also found addressed to Mohd. Sahid and contained
ganja wrapped in polythene. The weight of the said parcel was found to be
12 kg. The second parcel recovered from Abdul Malik weighed 10 kg and
500 gm and contained ganja wrapped in polythene. This parcel also was
addressed to Mohd. Sahid.
2. The case of the prosecution is that SI Pankaj took 500 gm each from
all the parcels as samples and thereafter the samples as well as the
residuary substance were duly seized after they had been sealed with the
seal of MS, which after use was handed over to Constable Ravish. This is
also the case of the prosecution that the staff of Post Office Sri Niwas Puri
was contacted and asked to keep a watch on such parcels. On 8.3.2004, an
information was received from the Post Office that four more parcels
addressed to Mohd. Sahid @ Antony Baba had been received. The said
parcels were seized from the post office. The first parcel weighed 16 kg,
the second parcel weighed 15 kg, the third parcel weighed 14.8 kg and the
fourth parcel weighed 14.2 kg. After drawing 500 gm each as samples
from the substance found in the aforesaid four parcels, the samples as well
as the residual substance were duly seized after they were sealed with the
seal of KS, which after use was handed over to Constable Adesh Kumar.
3. During the course of investigation, the IO also seized of the original
delivery slips purported to be signed by Mohd. Sahid @ Antony Baba
while receiving the parcels. Some earlier delivery slips of January and
February, 2004, signed by Mohd. Sahid @ Antony Baba were also seized
from the post office.
4. On 17.3.2004, the post office informed the Special Cell that three
parcels addressed to Vijay son of Billal had been received in the post
office. Those parcels were also seized from the post office and on opening,
they were found to contain ganja. Each parcel weighed 12.5 kg. This time
also 500 gm each was taken out as sample from all the three parcels and
the samples as well as residuary substance were seized after they had been
sealed with the seal of KS.
5. All the three appellants were charged under Section 20 of NDPS
Act. They having pleaded not guilty, as many as 21 witnesses were
examined. One witness was also examined in defence.
6. PW1 - Mr. S.N. Mastana was the Post Master of Sri Niwas Puri
Post Office at the relevant time. He deposed with respect to handing over
seven parcels to SI Mahender Singh, out of which four were seized vide
memo Ex.PW1/C and three were seized vide memo Ex.PW1/D, after
sample was drawn in his presence.
PW2 - ACP Umesh Kumar stated that on 13.3.2004, he had
received the report Ex.PW2/B under Section 57 of NDPS Act and on
20.3.2004, he had received another report under Section 57 of the Act,
which is Ex.PW2/A. Both the reports were diarized vide entry Ex.PW2/C
and PW2/D and were forwarded by the witness to the concerned Deputy
Commissioner of Police.
PW3 - ACP Parmod Singh Kushwah stated that on 26.2.2004,
Inspector Kulbhushan informed him that he had received a secret
information regarding Mohd. Sahid being involved in sale of ganja, which
he was receiving through postal parcels. He further stated that at about
11.30 am, on the aforesaid date, he was informed that Mohd. Sahid and his
associates were going to take parcels containing ganja from some post
office in or around Sri Niwas Puri. He also deposed with respect receipt of
a report under Section 57 of NDPS Act from SI Mahender Singh on
27.7.2004 and dispatching the same to the concerned DCP on the same
date vide dispatch register entry Ex.PW3/A.
PW6 Constable Deepak deposed with respect to taking the case
property to Inspector Satbir Singh of the Special Cell and the said
Inspector putting his official seal SVS on the parcel as well as the FSL
form. He also deposed with respect to deposit of case property with
MHC(M).
PW7 - Inspector Satyavir Singh stated that on 26.02.2004 SI
Mahender came to him along with the appellants parcels and depositing ten
parcels sealed with the seal of MS as well as FSL form sealed with the
same seal. According to the witness, he called MHC(M) with Register
no.19 in his office and handing over all the parcels with the FSL form and
copy of seizure memo.
PW10 - SI Umesh deposed with respect to seizure of parcels
containing ganga from the post office on 12.3.2004, drawing of samples
from the said parcels and then seizure of the samples as well as the
residuary substance after parcels had been sealed with the seal of KS.
PW11 Paramjit Sijgh stated that on 26.2.2004, Inspector Satyabir
Singh deposited five samples as well as the five parcels sealed with the
seal of MS and SVS with him along with one FSL Form sealed with the
aforesaid seals. He also deposed with respect to deposit of the samples as
well as the parcels with him on 12.3.2004 and 18.3.2004. He further stated
that on 2.4.2004, five samples sealed with the seal of MS and SVS and
seven samples sealed with the seal of KS and SVS were sent to FSL form
through SI Maninder Singh along with CFSL form. He also proved copies
of the entries made in Register no.19 in this regard.
PW15 Sukhbir Singh was the postman in Post Office Sri Niwas Puri
at the relevant time. He stated that the appellant Mohd. Sahid used to
reside in I.G Camp, Tamoor Nagar at the relevant time. He stated that the
appellant Mohd. Sahid used to reside in IG Camp, Tampur Pur where he
had seen him several times and he used to come to post office to receive
the parcels etc.
PW17 SI Mahender Singh, inter alia, deposed with respect to
seizure of four parcels from the post office on 12.3.2004 after drawing
samples from them and sealing the samples as well as the parcel containing
residual substance with the seal of KS.
PW18 SI R. Srinivasan stated that the report, copy of which is
Ex.PW18/A was received in ACP Office on 27.02.2004. He also deposed
with respect to receipt of the report Ex.PW2/A and Ex.PW2/B and entry of
the said reports in the Register.
7. PW4 Head Constable Ravish stated that on 26th February, 2004
when he was posted in the Special Cell, an informer came there and
informed Inspector Kulbhushan Sharma that a person named Mohd. Sahid
@ Antony Baba would come to Sri Niwas Puri along with his two
colleagues for taking parcels containing ganja, which would be coming
through post office. A raiding party was then organized and they went to
Sri Niwas Puri in a Government vehicle where they found three persons
standing on the footpath in front of Cambridge School. The secret
informer while sitting in the Government vehicle had told them that the old
man having beard was Mohd. Sahid @ Antony Baba and the other two
persons were his colleagues. He further stated that SI Pankaj also
requested 4-5 public persons to join the raiding party but none agreed.
According to the witness, the appellant Mohd. Sahid @ Antony Baba was
having one white colour packet in his hand and his two other colleagues
were sitting on two packets each of white colour Mohd. Sahid @ Antony
Baba was trying to stop an auto rickshaw but no auto rickshaw had stopped
there. Thereupon, all of them were apprehended and were informed by SI
Pankaj that they had information with regard to possession of ganja by
them and that they (the appellants) had a right to be searched in presence of
Gazetted Officer or a Magistrate. A notice under Section 50 of NDPS Act
was also given to them in this regard. But all of them refused to be
searched in presence of the Gazetted Officer or a Magistrate. They also
refused to take the search the members of the raiding party. The parcel
which the appellant Mohd. Sahid @ Antony Baba was carrying with him,
was opened and out of the said parcel, one polythene of orange colour
containing ganja wrapped in a newspaper was found. The parcels
recovered from the appellant Mohd. Aslam and Abdul Malik were also
opened and were found to contain ganja wrapped in Newspaper and kept in
polythene. After drawing 500 gram each sample from all the parcels,
sample as well as the residual substance was sealed with the seal of MS.
FSL form was also filled up at the spot. According to the witness, ganja
recovered from the possession of Mohd. Sahid @ Antony Baba was found
to be 5 kgs. & 800 gm., ganja in one packet found in possession of Mohd.
Aslam was found to be 9 kg. & 400 gm whereas other packet was found to
be of 10 kg. & 500 gm. One of the packets recovered from the possession
of the accused Abdul Malik was found to be of 10 kg. & 500 gm. whereas
the other packet was found to contain 12 kg. of ganja.
During examination, he stated that contraband acquired from the
appellants was weighed on a manual scale and after arranging the same on
the scale and seal after use was given to him, which he returned to I.O.
after two days.
8. PW-5 Constable Adesh was also a member of the raiding party,
which went to Ring Road, Sri Niwas Puri on 26 th February, 2004. He
corroborated the deposition of PW-4 Head Constable Ravish with respect
to their reaching in front of Cambridge School, finding the appellants on
the footpath and recovered the ganja from the packets found in their
possession. He also stated that the ganja found with the appellants was
weighed with the help of a manual weighing machine. However, when he
was cross-examined, he, inter alia, denied the suggestion of the appellants
that contraband was weighed on a manual scale.
9. PW-9 Inspector Kulbhushan Sharma was heading the raiding party
who went to Ring Road, Sri Niwas Puri in front of Cambridge School on
26th February, 2004. He deposed with respect to the appellants having
been found present on the footpath, the appellant Mohd. Sahid @ Antony
Baba carrying a postal parcel in his hands where the remaining appellants
being found sitting on two parcels each. He also corroborated the
deposition of PW-4 and PW-6 with respect to recovery of ganja from the
packets found in possession of the appellants as well as with respect to
drawing the samples from each packet, sealing them with the seal of MS.
He also deposed with respect to service of notice under Section 50 of
NDPS Act given by SI Pankaj. He also claimed that the secret information
received by him was recorded in a DD and was also brought to the notice
of the concerned ACP who directed him to form a raiding party. He,
however, admitted that copy of the DD was not sent to the ACP. He,
however, claimed that the weighing machine with the I.O. was not a
manual weighing machine and it had one platform upon which the
substance was kept and thereupon weight was indicated by the machine.
He also stated that was no need for weights for weighing on the said
machine.
10. PW-12 SI Ram Babu is yet another member of the raiding party who
went to Ring Road, Sri Niwas Puri, on 26.02.2004. He also corroborated
the deposition of other police officials with respect to all the three
appellants being present with the appellant Mohd. Sahid @ Antony Baba
carrying a parcel with him and the other two appellants being found sitting
carrying two parcels each. He also deposed with respect to recovery of
ganja in the parcels found with the appellant and seizure of the contraband
as well as residual substance with the seal of substance. He also stated that
the case property was handed over to the SHO who affixed seal of MS as
well as the FSL form besides being FIR number on the document of the
case property and thereafter the case property was deposited in Malkhana.
In the cross-examination, he claimed that the ganja was weighed with a
manual weighing scale and weights were used for this purpose.
11. PW14 SI Pankaj Kumar is yet another member of the raiding party
headed by Kulbhushan Sharma, which recovered the contraband from the
appellants on 26th February, 2014. He also stated that when they reached
spot, all the three appellants were found present there. According to him,
the appellant Mohd. Sahid @ Antony Baba was standing on a footpath
with a parcel in his hand which the remaining appellants found sitting on
two parcels each and after that they had been informed that they had right
to be searched in the presence of a Gazetted Officer or a Magistrate and
they refused to be searched in presence of the Gazetted Officer or a
Magistrate.
The parcels were opened and were found to contain ganja in a
polythene wrapped in a newspaper. He also deposed with respect to
seizure of ganja after drawing samples and sealing the samples as well as
the residual substance with the seal of MS. He also claimed that all the
parcels were weighed with the help of a manual weighing scale and the
seal of MS after its use was handed over to Constable Ravish.
12. PW-20 Dr. Madhulika Sharma, Assistant Director, FSL Rohini,
Delhi, stated that on 2nd April, 2004, twelve sealed parcels, out of which
three parcels Q1 to Q3 were sealed with the seal of KS and SVS, five
parcels were sealed with the seal of MS and SVS and four parcels were
sealed with the seal of KS and MS along with the FSL forms and specimen
seal impression. All the parcels were handed over to this witness for
chemical examination. Weight of parcels marked S1 to S5 was 415 grams,
418 grams, 463 grams, 407 grams, 459 grams and 483 grams respectively.
On chemical examination, all the parcels were found to contain
tetrahydrocannabinol, which is the main constitute of Cannabis plan.
13. PW21 Dr. Rajender Kumar, Assistant Director, Biology, FSL
Rohini, Delhi, received twelve parcels sealed with the seal of MS FSL in
the biology division of FSL and on analysis found the substance inside the
parcels to be ganja.
14. Vide impugned judgement dated 6.7.2010, the appellants Mohd.
Sahid @ Antony Baba and Mohd. Aslam were convicted under Section
20(b)(ii)(B) of NDPS Act whereas the appellant Abdul Malik was
convicted under Section20(b)(ii)(C) of NDPS Act. Vide order on sentence,
the appellants Mohd. Sahid @ Antony Baba and Abdul Malik were
sentenced to undergo RI for ten (10) years each and to pay fine of Rs.1.00
lakh each or in default to undergo SI for one (1) year. The appellant
Mohd. Aslam was sentenced to undergo RI for eight (8) years and to pay
fine of Rs.75,000/- or in default to undergo SI for six (6) months. Being
aggrieved from their conviction and sentence awarded to them, the
appellants are before this Court by way of these appeals.
15. In their statements under Section 313 of Cr.P.C., the appellants
denied the alleged recovery from them. The appellant Mohd. Sahid @
Antony Baba claimed that he was picked up from his residence and
nothing was found in his possession. He also claimed that his signatures
were obtained on various blank papers in the Police Station. The appellant
Mohd. Aslam and Abdul Malik claimed to be innocent and denied the
alleged recovery of the contraband from them.
16. DW-1 Mohd. Ilyas stated that on 26th February, 2004, he saw the
Police officials taking the appellants from their residence to the Police
Station for interrogation and on the next day, he came to know that they
had been implicated in some case of ganja.
DW-2 Shahid also claimed that on 26th February, 2014, at about
8 am, 8-10 police officials came and took the accused persons to the Police
Station for the purpose of interrogation and later implicated them in a false
case.
17. The impugned judgement has been assailed by the learned counsel
for the appellants on the following grounds:
a. The case of the prosecution is that 500 grams each was drawn as
sample from all the parcels alleged to have been recovered from the
appellant whereas the weight of the samples when examined in the
laboratory was found to be less which indicates the possibility of the
sample having been tampered with.
b. According to PW4 the seal was returned to the IO after two (2) days
and according to PW11 Paramjeet Singh the samples were deposited by
PW17 S.I. Maninder Singh in the laboratory on 2.4.2004 and, therefore,
there was possibility of the samples having been tampered with by PW17
using the seal of „MS‟ which had been put on them at the time of seizure.
c. There is contradiction in the deposition of the witnesses as to
whether the scale used for weighing the contraband and samples was
manual or electronic scale.
d. There was non-compliance of the provisions of Section 42 of the
NDPS Act.
e. There was delay in sending the samples to FSL since the seizure was
effected on 26.2.2004, whereas the samples were sent on 2.4.2004.
f. No public witness was joined in the raiding party though there was
ample time and opportunity for the purpose.
18. I find that according to PW6 Constable Deepak the case property
was taken by him and S.I. Maninder Singh to Inspector Satyavir Singh,
who put his official seal „SVS‟ on the parcel as well as FSL forms and then
deposited the same with MHC(M). Inspector Satyavir Singh came in the
witness box as PW7 and stated that on 26.2.2004, S.I. Mahender had come
to him and ten (10) parcels sealed with the seal of „MS‟ as well as FSL
forms sealed with the same seal were also produced before him. He put his
seal „SVS‟ on all the parcels as well as FSL forms and thereafter called the
MHC(M) and deposited the said parcels as well as FSL forms with him.
His deposition has been corroborated by PW11 Paramjeet Singh who
stated that five (5) samples as well as parcels sealed with the seal of „MS‟
and „SVS‟ were deposited by Inspector Satyavir Singh on 26.2.2004, and
the same were sent, through S.I. Maninder Singh, to the FSL on 2.4.2004.
Since the parcels containing samples were sealed not only with the seal of
„MS‟, which according to PW4 Constable Harish, had been returned to S.I.
Maninder Singh after two days of the seizure but also with the seal of
„SVS‟, it would not be possible for PW17 SI Maninder Singh to tamper
with the samples since he did not have the sale of „SVS‟ in his custody. It
would be appropriate to note that when the parcels were received in the
FSL, they were found duly sealed with the seals of „MS‟ as well as „SVS‟.
Therefore, there was no possibility of the samples having been tampered
with by S.I. Maninder Singh.
19. As regards the weight of the samples when examined in the FSL
being less than 500 grams each, the court needs to keep in mind that ganja
is primarily a plant which is bound to contain moisture. With the passage
of time, the moisture in the ganja is likely to evaporate thereby resulting in
reduction of its weight on account of loss of moisture. A reference in this
regard may be made to the decision of the Kerala High Court in Dharman
Vs. State of Kerala 2003 Crl.LJ 1586, where the Court, finding reduction
in the weight of the sample when they were examined in the laboratory,
was of the view that the reduction was a result of loss of moisture from the
sampled ganja during the period between the seizure and the analysis. In
the present case the seizure took place on 26.2.2004 whereas the samples
were examined in the laboratory on 14.7.2004, i.e., after about five (5)
months of the seizure. Therefore, the loss in the weight of the samples can
be safely attributed to loss of moisture with the passage of time. A similar
view was taken by Patna High Court in Criminal Appeal (S.J.)
No.321/1997 titled Surendra Singh and Suraj Mal Yadav, Both Sons of
Rupan Singh Yadav Vs. The State of Bihar decided on 20.7.2011, where
the Court inter alia observed "it is well known that ganja has the potency
of losing weight in the course of time on account of loss of moisture."
20. In Dehal Singh Vs. State of Himachal Pradesh (2010) 9 SCC 85, the
case of the prosecution was that two samples of 50 grams each were taken
out of the contraband recovered from the accused. However, the net
weight when received in the laboratory was found to be 65.56 grams, i.e.,
more than 30 per cent in excess of the quantity alleged to have been drawn
as sample. It was contended on behalf of the accused that the discrepancy
in the weight of the sample casts serious doubt to the credibility of the case
and was enough to reject it. Reliance by the learned counsel for the
accused was placed on the decision of the Apex Court in Noor Aga Vs.
State of Punjab (2008) 16 SCC 417 as well as Rajesh Jagdamba Avasthi
Vs. State of Goa (2005) 9 SCC 773. Both the cases relied upon by the
accused were cases of recovery of charas. Noticing that the weighing scale
and the weights came from a nearby grocery shop, the Apex Court
observed that samples were taken by a common weighing scale and the
weights found in a grocery shop, whereas the weight in the laboratory is
recorded with precision scale and, therefore, the small difference in the
weight loses its significance when no infirmity in the other part of the
prosecution story is found. It was noted that in the case of Noor Aga
(supra), the sample was taken by custom official at the Airport from a
precision scale and discrepancy in the weight alone was not the reason to
reject the case of the prosecution in the said case. The Court, in this
regard, also referred to the observations in Noor Aga (supra) to the effect
that discrepancy in weight individually may not be fatal. It was also noted
that in Rajesh Jagdamba Avasthi (supra), the recovery proceedings were
found to be suspicious and there was every possibility of the seized
substance being tampered with and it were those infirmities which had led
the Court to doubt the truthfulness of the prosecution case.
21. The learned counsel for the appellants has relied upon Pappu Vs.
State of Rajasthan 2007 (2) JCC (Narcotics) 67, where the weight of the
sample was per the report of FSL was found to be 43 grams whereas the
case of the prosecution was that they had drawn two samples of 50 grams
each. The contraband in the aforesaid case was opium. The High Court
inter alia observed that this created doubt in the prosecution case.
However, in the present case the contraband seized from the appellants was
ganja which contains moisture and the moisture evaporates with the
passage of time. Therefore, no adverse inference can be drawn on account
of weight of the samples when analyzed in FSL being found to be less than
500 grams each.
22. As regards discrepancy in the deposition of the witnesses with
respect to the kind of the scale used for weighing the samples, the said
discrepancy, in my view, can be safely attributed to loss of memory with
the passage of time and is not material. Most of the witnesses have
expressly stated that it was manual scale which was used for weighing
samples. Nothing really turns on whether the scale used for weighing the
samples was a manual scale or a digital scale.
23. As regards non-compliance of the provisions of Section 42 of the
NDPS Act is concerned, a bare perusal of the said Section would show that
it applies only to a case where narcotic drugs, psychotropic substance or
controlled substance is kept or concealed in any building, conveyance or
enclosed place. The recovery in the present case was not effected from any
building, conveyance or enclosed place. Moreover the information
received by him was recorded by Inspector Kulbhushan Sharma by way of
DD No.6 which was also immediately thereafter brought by him to the
notice of the concerned ACP. Sub-section (2) of Section 42 requires an
officer recording the information to send its copy to its immediate official
superior within 72 hours. It has come in the deposition of PW3 Shri
Pramod Singh, ACP that on 26.2.2004, Inspector Kulbhushan had
informed him that he had received a secret information regarding Mohd.
Shahid being involved in sale of ganja which he was receiving through
postal parcels. It has also come in his deposition that Inspector
Kulbhushan had further informed him on 26.2.2004 that Mohd.Shahid and
his associates were going to take parcels containing ganja from Post Office
in or around Srinivaspuri. On receipt of a report under Section 57 of the
NDPS Act from S.I. Mahender Singh on 27.2.2004, this witness dispatched
the same to the concerned DCP on the same date vide entry Ex.PW3/A
made in the dispatch register. The report Ex.PW18/A, received by the
ACP on 27.2.2004, also contained the information, which Inspector
Kulbhushan had received on 26.2.2004. Thus, there was due compliance
not only with the provisions of Section 42 but also with the provisions of
Section 57 of the Act which requires every seizure to be reported to the
immediate superior officer within 48 hours of the seizure.
24. In Ravindran @ John Vs. The Superintendent of Customs (2007) 6
SCC 410, the appellant was found at a bus stand, carrying a polythene bag
which on being searched was found to contain Diazepam. Before taking
search, the accused was asked whether he would like the search to be
conducted before a Magistrate or a Gazetted Officer. He, however, did not
insist on his search before them. Later, the conviction was challenged,
inter alia, on the ground that there was non-compliance with the provisions
of Section 50 of the Act since the accused was not informed of his legal
right to be searched in the presence of a Gazetted Officer or a Magistrate
and the mere information given to him was not sufficient. It was held by
the Apex Court that the High Court was right in coming to the conclusion
that Section 42 of the Act was not attracted since the appellant had not
been searched and arrested in exercise of the powers of arrest, search and
seizure under the said Act, which applies to a case where information is
received or an officer has reasons to believe that any offence has been
committed in relation to any drug, etc. which is kept or concealed in any
building, conveyance or enclosed place. The Apex Court was of the view
that there was no requirement that the concerned officer must send a copy
of the information to his immediate official superior within 72 hours.
In support of his contention with respect to the alleged non-
compliance of the provisions of Section 42 of the Act, the learned counsel
for the appellants relied upon Dalip & Anr. Vs. State of MP (2007) 1 SCC
450. In the aforesaid case, the contraband was found in the search of the
scooter on which the appellants before the Apex Court were travelling.
The conviction of the appellants was challenged on a number of grounds.
The provisions of Section 42 of the Act do apply to the search of a
conveyance but not to the search of a parcel, in a public place. Nowhere
the Apex Court has held in this case that the provisions of Section 42 of the
NDPS Act need to be complied with even in the case where the search of a
parcel is effected from a public place. In Ravindra Vs. Superintendent of
Customs 2007 (2) JCC Narcotics 89, the appellant was arrested from a bus
stand pursuant to an information received in this regard. The Apex Court
inter alia held that since the appellant was not searched and arrested in
exercise of the powers of arrest, search and seizure under Section 42 of the
Act, the seizure having taken place at a bus stand and not at a building,
conveyance or enclosed place the information was not required to be taken
down in writing and there was no requirement of sending a copy of the
information to the immediate official superior within 72 hours. A similar
view was taken in Azim Hussain Vs. State of Delhi 2010 (1) JCC
(Narcotics).
25. Coming to the question of delay in sending the samples to FSL, the
purpose of sending the samples to the laboratory at the earliest is to rule
out the possibility of its being tampered before it reaches the laboratory. I
find that in the case before this Court, the prosecution has proved, by
producing the recovery link evidence, verbal as well as documentary that
there was no tampering with the samples till the time they were received in
the FSL. The police official who took the samples duly sealed with the
seal of „MS‟ to the office of Special Cell and handed over to Inspector
Satyavir Singh, with seals intact on them has been produced. Inspector
Satyavir Singh received these samples duly sealed with the seal of „MS‟
and then put his own seal „SVS‟ on them and deposited the samples duly
sealed with the seals of „MS‟ and „SVS‟ in the Malkhana on the same date.
The MHC(M) Pritam Singh has come in the witness box as PW11 and has
clearly stated that the samples duly sealed with the seals of „MS‟ and
„SVS‟ along with the FSL forms bearing the said seals were deposited in
the Malkhana on 26.2.2004 and the said samples were sent to the FSL
through S.I. Maninder Singh on 2.4.2004. The entry made in register
No.19 on 2.4.2004 (Ex.PW1/J) corroborates the oral deposition of PW11
with respect to sending the samples duly sealed with the seals of „MS‟ and
„SVS‟ to the FSL through S.I. Maninder Singh on 2.4.2004. The entry
made in the register at the time the samples sealed with the seals of „MS‟
and „SVS‟ were deposited in the Malkhana on 26.2.2004 is Ex.PW11/A.
In these circumstances, I find no reasonable possibility of the samples
having been tampered with during the period they remained in the
Malkhana.
The learned counsel for the appellants on the issue of delay in
sending the samples to FSL relied upon Jarnail Singh Vs. State of Punjab
and connected matter 2008 (4) JCC (Narcotics) 204 and Dharambir Vs.
The State of Haryana 2008 (4) JCC (Narcotics) 197. In Jarnail Singh
(supra), the Court relied upon the instructions issued by NCB emphasizing
that the samples should be dispatched to the laboratory within 72 hours of
seizure to avoid any legal objection. However, the aforesaid delay was not
the sole ground on acquittal in that case. A perusal of the judgement
would show that the record produced in the Court was quite barren to show
that FSL form was filled at the spot or deposited in Malkhana. There were
also amongst the discrepancies found in the case of the prosecution.
However, in the case before this Court, the NCB instructions are not
applicable and evidence has been led to prove that FSL form was filled on
the spot, was sealed with the seal of „MS‟ on the spot. Seal of „SVS‟ was
then put on it in the office of the Special Cell and thereafter the form duly
filled with the aforesaid seals was deposited in the Malkhana on the same
date and later sent to FSL on 2.4.2004. In Dharambir Vs. The State of
Haryana (supra), the High Court found that there was delay of nine (9)
days in sending the sample to FSL. The Court, however, also took note of
the fact that the other evidence produced by the prosecution to prove the
link evidence was not only deficient but also unreliable. However, in the
case before this Court, there is no deficiency in the link evidence produced
by the prosecution nor can the same be said to be unreliable. Therefore,
sending the samples to FSL after 35 days would by itself not entitled the
appellants to acquittal.
26. After conclusion of arguments, the learned counsel for the appellant
Mohd. Aslam has submitted certain judgements, viz., Ramu Vs. State of
Punjab 2008 (4) C.C. Cases (HC) 98; Bhagwan Dass Vs. State of
Himachal Pradesh 2003 Crl.L.J. 536 and State of Punjab Vs. Gurnam Kaur
& Ors. 2009 (2) JCC (Narcotics) 73.
In Ramu Vs. State of Punjab (supra), the accused was found sitting
on bags on the roadside of the bridge of canal minor towards a village. It
was found by the Court that possession or conscious possession of the bags
in question had not been put to him in his statement. It was, therefore, held
that the presumption under Section 34 or 54 of the Act could not be drawn
against him. However, in the present case, the appellants were not only
found sitting on the two parcels which contained ganja and the said parcels
were addressed to the appellant Mohd. Shahid @ Antony Baba who was
also present along with them. In their statements under Section 313 of
Cr.P.C., the appellants did not offer any explanation for their sitting on the
aforesaid parcels to the appellants Antony Baba. They did not claim that
they did not know to whom the parcels belonged and what they contained
and having found the parcels kept on the footpath they had just sat on them
when they were apprehended. Section 106 of the Evidence Act, provides
that when a fact is in the special knowledge of a person, the onus of
proving that fact lies on him. In the present case, it was known only to the
appellants, Abdul Malik & Mohd. Aslam, as to in what circumstances and
for what reasons they were sitting on the parcels addressed to the appellant
Mohd. Shahid @ Antony Baba. Therefore, it was for them to disclose such
circumstances to the court. No such attempt, however, was made by them.
Their case before the trial court was of total denial and they claimed that
they were picked up from their house and implicated in a false case. Thus,
they did not even admit their presence on the footpath where they were
found sitting on the said parcels. It was expressly put to the appellants in
their statements under Section 313 of Cr.P.C. that they were sitting on the
two bags of white colour while their co-accused Mohd. Shahid was trying
to stop an autorickshaw and ganja was found in the aforesaid parcels when
they were opened in their presence. It was also put to them that the
samples drawn from the parcels on which they were sitting when analyzed
in the FSL was found to be ganja. Therefore, the judgement relied upon
by the learned counsel for the appellant does not really help him.
In Bhagwan Dass Vs. State of Himachal Pradesh (supra), the two
accused were found sitting on the roadside and a bag was found lying in
between them. It was in these circumstances that the Court felt that it
cannot be presumed that they were in possession of the said bag. It was
further observed that assuming that the bag was in possession of one of
them, the question would be in whose possession it was. It was also
noticed by the High Court that the recovery of the bag from the possession
of the accused was not put to them in their statement under Section 313 of
Cr.P.C. However, in the present case, the facts are quite different and the
entire incriminating evidence was duly put to the appellants in their
respective statements under Section 313 of Cr.P.C.
In State of Punjab Vs. Gurnam Kaur & Ors. (supra), the respondents
Gurnam Kaur and her two daughters-in-law were found sitting on the same
bed beneath which the contraband had allegedly been kept. It was held,
that by itself did not establish that all of them were in conscious possession
of the narcotics. It was also noticed that the ladies in the natural course
were in their house. The facts in the present case being altogether
different, this judgement is of no use to the appellants.
27. In State of Rajasthan Vs. Tara Singh (2011) 11 SCC 559, the
respondent before the Apex Court was found carrying opium in a bag
which he was carrying on his head. An `offer of search, in terms of
Section 50 was made to him, which he declined to avail. The High Court
acquitted the accused inter alia on the ground that the provisions of Section
50 had not been complied. The Apex Court was of the view that the
provisions of Section 50 would not be applicable to such a search. The
Apex Court in this regard placed reliance upon its earlier decision in State
of Himachal Pradesh Vs. Pawan Kumar (2005) 4 SCC 350.
In Ravindran @ John (supra), the appellant before the Apex Court
had been informed as to whether he would like the search to be conducted
before a Judicial Magistrate or a Gazetted Officer. Since he did not insist
on search before a Judicial Magistrate or a Gazetted Officer, he was
searched in the presence of witnesses. It was argued on behalf of the
appellant that the mandatory provisions of Section 50 of the Act had not
been complied with. It was held by the Hon‟ble Supreme Court that since
the appellant was carrying a bag in which the drug had been kept Section
50 of the Act was not attracted. It was contended before the Hon‟ble
Supreme Court that the appellant had not been informed of his legal right
to get his person searched in the presence of a Gazetted Officer or a
Magistrate and merely informing him that he had an option to have his
personal search done in the presence of a Gazetted Officer or a Magistrate
was not sufficient. Rejecting the contention, the Apex Court held that this
issue had been settled by a larger Bench of the Apex Court in State of
Himachal Pradesh Vs. Pawan Kumar (supra). The Apex Court thereafter
expressly held that if any drug was recovered from the personal search of
the appellant as explained in State of Himachal Pradesh Vs. Pawan Kumar
(supra) the appellant could advance this argument to challenge his personal
search but since that was not the case, the submission must be rejected.
In State of Himachal Pradesh Vs. Pawan Kumar (supra), the three
Judges Bench of the Hon‟ble Supreme Court had inter alia held as under:
"10. 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.
11. An incriminating article can be kept concealed in the body
or clothings or coverings in different manner or in the footwear.
While making a search of such type of articles, which have been
kept so concealed, it will certainly come within the ambit of the
word "search of person". One of the tests, which can be applied is,
where in the process of search the human body comes into contact
or shall have to be touched by the person carrying out the search,
it will be search of a person."
The Bench in this regard also referred to the decision of the
Constitution Bench decision in State of Punjab Vs. Baldev Singh 1999
Crl.LJ 3672. While allowing connected Crl. A. No.375/2003 titled State of
Rajasthan Vs. Bhanwar Lal, the Bench noted that in that case the accused
was found standing with a attaché in his hand. A written notice was given
to him that his attaché case would be searched as information had been
received that the same contained opium. He was also asked as to whether
he would like the search to be conducted before a Magistrate or a Gazetted
Officer. This fact was also mentioned in the notice. The accused said that
he did not want to be searched before any Magistrate or Gazetted Officer.
The High Court, however, held that the provisions of Section 50 of the Act
were not complied with. Allowing the appeal filed by the State, the Apex
Court held that the view taken by the High Court could not be sustained.
Thus, despite a notice under Section 50 of the Act having been given to the
accused and a contention having been raised that the notice was not in
conformity with the provisions of Section 50 of the Act, the three Judges
Bench, allowed the appeal filed by the State and set aside the acquittal of
the accused, on the ground that no such notice was required in law.
In Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746, the
appellant before the Apex Court was carrying on his shoulders, a bag
which was later found to contain 500 grams of charas. He was served a
notice under Section 50 of the Act giving an option to be searched either
by the Gazetted Officer or the Magistrate. He was then taken to a DSP
where his search was carried out on the directions of the DSP though not
by the DSP himself. It was contended before the Apex Court that the
provisions of Section 50 of the Act had not been complied with. Rejecting
the contention, the Apex Court held that the question of compliance or
non-compliance of Section 50 of the Act is relevant only where the search
of person is involved and the said Section does not apply where no search
of a person is involved. The Court was of the view that the said provision
is not attracted in case of recovery from a bag, brief case, container, etc.,
which do not come within its ambit.
In K. Chithhayan Vs. State of Tamil Nadu (2008) 11 SCC 363, the
appellant was found standing near a bus stop with a bag on his right hand.
It was conveyed to him that he was entitled for the conduct of the search
before a Gazetted Officer or a Judicial Magistrate. The accused, however,
gave consent to be search by the police officer himself. It was contended
on behalf of the appellant that there was non-compliance of the mandatory
provisions of Sections 42(2) & 50 of the Act. Rejecting the contention, it
was held that Section 42 of the Act did not apply since the search was
made in a public place. It was further held that Section 50 of the Act also
did not apply since the search was of the bag carried by the appellant and
there was no personal search. Reliance in this regard was placed upon
State of Himachal Pradesh Vs. Pawan Kumar (supra).
In Ghasita Sahu Vs. State of Madhya Pradesh (2008) 3 SCC 52, the
search was effected from a gunny bag kept in a room in the house of the
appellant. The appellant was told that if he wanted the search to be
conducted in the presence of some Gazetted Officer or Magistrate or he
had no objection if the police officer conducted the search himself. It was
contended on his behalf that he was not informed of his legal right.
Rejecting the contention, the Apex Court held that there was no question of
any such right of the accused since the right is restricted to a case where
the search is to be taken of the person of the accused whereas in the case
before the Apex Court the search was of a house.
In State of Haryana Vs. Ranbir @ Rana (2006) 5 SCC 167, the
contraband was recovered from the plastic bag which the respondent
before the Apex Court was carrying. He was told that the search was to be
effected in the presence of a Gazetted Officer or a Magistrate if he so
desired. The High Court having acquitted him, the State took the matter to
the Apex Court by way of appeal. Relying upon State of Himachal
Pradesh Vs. Pawan Kumar (supra) and State of Punjab Vs. Baldev Singh
(supra), it was held that Section 50 of the Act was applicable only in a case
of personal search of the accused. The Apex Court rejected the contention
that the three Judges Bench in State of Himachal Pradesh Vs. Pawan
Kumar (supra) had wrongly distinguished the earlier decision of another
three Judges Bench in Namdi Francis Nwazor Vs. Union of India (1998) 8
SCC 534.
In State of Rajasthan Vs. Daulat Ram (2005) 7 SCC 36, the
respondent before the Apex Court was asked as to whether he wanted to be
searched before a Magistrate or a Gazetted Officer. The High Court while
acquitting the respondent held that the provisions of Section 50 of the Act
would be applicable and since the option given to the respondent was only
a partial option there was no strict compliance of Section 50 of the Act.
Setting aside the decision of the High Court, the Apex Court held that the
provisions of Section 50 of the Act were not attracted.
In Dehal Singh (supra), the accused persons were given option in
writing as to whether they wanted the search of the vehicle before a
Magistrate or a Gazetted Officer. It was contended on their behalf that
they were not apprised of their legal right to be searched in the presence of
a Gazetted Officer or a Magistrate and, therefore, the requirement of
Section 50 of the Act had not been fulfilled. Rejecting the contention, it
was noted that the recovery had been effected from a vehicle and,
therefore, the requirement of Section 50 of the Act was not to be complied
with.
28. The attention of this Court has been drawn to the fact that in the
above-referred cases despite notice having been given to the accused, the
Apex Court, rejected the challenge to the validity of the notice, with
reference to the requirement of Section 50 of the Act taking the view that
the search having not been effected from the person of the accused, no
such notice was required. Taking a different view would be contrary to the
aforesaid decisions.
29. The learned counsel for the appellant Mohd. Aslam relied upon
Dalip & Anr. (supra), Narcotics Central Bureau Vs. Sukh Dev Raj Sodhi
2011 (2) Crimes 311 (SC) and Mahinder Singh Vs. State and connected
matter 2011 (2) JCC (Narcotics) 123. However, none of these judgements
are of any help to the appellants since the recovery having not been effect
from their person no notice under Section 50 of the Act was required to be
served upon them. In any case, it has come in the deposition of the
witnesses that the accused persons were told that they had a right to be
search in the presence of a Gazetted Officer of a Magistrate. If this is so,
there would be compliance with the requirement of Section 50 of the Act
even if such a requirement is assumed in the present case and there would
be no defect in the notice given to the appellants.
30. In the case before this Court two appellants were found sitting on
parcels containing ganja. Somewhat similarly in Birakishore Kar Vs. State
of Orissa AIR 2000 SC 3626, the accused was found lying on a plastic bag
in a train compartment. It was held that it was not a case of the search of
the person of the accused.
31. The question whether the failure to join public witnesses before
effecting the recovery of the contraband would be fatal to the prosecution
or not came to be considered by this Court in Crl. A. No.392/2010 Jai
Yodhad Vs. State decided on 30.1.2014, and the following view was taken:
"11. As regards public witnesses not being joined, it has come in
the deposition of prosecution witnesses that a number of persons
present on the bus stops on the way to the place where the
appellant was apprehended as well as several members of the
public present on the spot were requested to join the police team
but no one agreed to be associated with them. It cannot be
disputed that the public does not want to get dragged in police and
criminal case and wants to avoid them, because of long drawn
trials and unnecessarily harassment. Similar view was taken in
Manish Vs. State, 2000 VIII AD (SC) 29 and in A. Bhai Vs. State
of Gujrat, AIR 1980 SC 696. We can‟t be oblivious to the
reluctance of common men to join such raiding parties organized
by the police, lest they are compelled to attend Police Station and
Courts umpteen times at the cost of considerable inconvenience to
them, without any commensurate benefit. Hence, no adverse
inference on account of failure to join public witnesses in such
raids despite genuine efforts should be drawn.
In Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746, it
was contended that the evidence of the official witness cannot be
relied upon as their testimony had not been corroborated by any
independent witness. The Hon‟ble Supreme Court, rejecting the
contention, held as under:
"16. The minimum sentence prescribed under the Act is
imprisonment of 10 years and fine. In this situation, it is
normally expected that there should be independent
evidence to support the case of the prosecution. However, it
is not an inviolable rule. Therefore, in the peculiar
circumstances of this case, we are satisfied that it would be
travesty of justice, if the appellant is acquitted merely
because no independent witness has been produced. We
cannot forget that it may not be possible to find
independent witness at all places, at all times. The
obligation to take public witnesses is not absolute. If after
making efforts which the court considered in the
circumstances of the case reasonable, the police officer is
not able to get public witnesses to associate with the raid or
arrest of the culprit, the arrest and the recovery made would
not be necessarily vitiated. The court will have to
appreciate the relevant evidence and will have to determine
whether the evidence of the police officer was believable
after taking due care and caution in evaluating their
evidence."
Rejecting a similar contention in Kashmiri Lal Vs. State of
Haryana (2013) 6 SCC 595, the Hon‟ble Supreme Court inter alia
observed as under:
"9. ....it is evincible from the evidence on record that
the police officials had requested the people present in the
'dhaba; to be witnesses, but they declined to cooperate and,
in fact, did not make themselves available. That apart, there
is no absolute command of law that the police officers
cannot be cited as witnesses and their testimony should
always be treated with suspicion. Ordinarily, the public at
large show their disinclination to come forward to become
witnesses. If the testimony of the police officer is found to
reliable and trustworthy, the court can definitely act upon
the same. If in the course of scrutinising the evidence the
court finds the evidence of the police officer as unreliable
and untrustworthy, the court may disbelieve him but it
should not do so solely on the presumption that a witness
from the department of police should be viewed with
distrust. This is also based on the principle of quality of the
evidence weighs over the quantity of evidence. These
aspects have been highlighted in State of U.P. v. Anil Singh
1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil
and another (2001) 1 SCC 652 and Ramjee Rai and others
v. State of Bihar (2006) 13 SCC 229."
Dealing with a similar contention in Ram Swaroop Vs.
State (Govt. NCT) of Delhi 2013 (7) SCALE 407, where the
alleged seizure took place at a crowded place yet no independent
witness could be associated with the seizure, the Apex Court inter
alia observed as under:
"7. ....We may note here with profit there is no absolute
rule that police officers cannot be cited as witnesses and
their depositions should be treated with suspect. In this
context we may refer with profit to the dictum in State of
U.P. v. Anil Singh 1988 Supp SCC 686, wherein this Court
took note of the fact that generally the public at large are
reluctant to come forward to depose before the court and,
therefore, the prosecution case cannot be doubted for non-
examining the independent witnesses."
"9. In Ramjee Rai and others v. State of Bihar (2006) 13
SCC 229, it has been opined as follows: -
"26. It is now well settled that what is necessary for
proving the prosecution case is not the quantity but quality
of the evidence. The court cannot overlook the changes in
the value system in the society. When an offence is
committed in a village owing to land dispute, the
independent witnesses may not come forward."
10. Keeping in view the aforesaid authorities, it can safely be
stated that in the case at hand there is no reason to hold that non-
examination of the independent witnesses affect the prosecution
case and, hence, we unhesitatingly repel the submission advanced
by the learned counsel for the appellant."
Therefore, no adverse inference can be drawn against the
prosecution on account of the inability of the raiding party to join
public witnesses. It is not as if no effort was made by them in this
regard. They did make efforts at several places but no member of
the public agreed to be associated with them."
32. For the reasons stated hereinabove, I find no good reason to interfere
with the conviction of the appellants which is accordingly affirmed.
33. As regards sentence, the appellant Abdul Malik having been given
the minimum sentence prescribed in the Act, there is no scope for
interfering with the substantive sentence awarded to him or the fine
imposed on him. It is, however, directed that in default of payment of fine,
the appellant, Abdul Malik, shall undergo SI for thirty (30) days as against
one (1) year awarded by the trial court.
As far as the appellant, Mohd. Aslam, is concerned, he has been
found in possession of intermediate quantity. In the facts & circumstances
of the case, he is sentenced to undergo RI for five (5) years and to pay fine
of Rs.10,000/- or to undergo SI for fifteen (15) days in default.
As far as appellant Mohd. Sahid @ Antony Baba is concerned,
though he appears to be the kingpin since the parcels found in possession
of the other appellants were also addressed to him and it has also come in
evidence that ganja was also found in a number of other parcels which
were addressed to him and were later seized from the post office, he has
been charged only for the possession of intermediate quantity of ganja. In
the facts & circumstances the case, the appellant Mohd. Sahid @ Antony
Baba is sentenced to undergo RI for seven (7) years and to pay fine of
Rs.20,000/- or to undergo SI for one (1) month in default.
The appeals are accordingly disposed of.
LCR be sent back along with a copy of this order.
A copy of this order be sent to the concerned Jail Superintendent for
information and necessary action.
FEBRUARY 28, 2014 V.K. JAIN, J.
rd/b'nesh
