Delhi High Court

[email protected] Kusmi vs State on 22 September, 2014

Author: Indermeet Kaur

$~R-25

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                    Judgment reserved on : 16.9.2014
                                    Judgment delivered on : 22.9.2014
+      CRL.A. 415/2006
       [email protected] KUSMI                                          ..... Appellant
                           Through       Mr.Vimal Puggal, Advocate.
                           versus
       STATE                                         ..... Respondent
                           Through       Mr.Navin K. Jha, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence dated 04.5.2006 and 06.5.2006 respectively wherein the

appellant Kusum had been convicted under Section 15 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for having

been found in unlawful possession of 12 kilograms of Poppy Straw. She

had been sentenced to undergo RI for a period of 4 years and to pay a

fine of Rs.20,000/-, in default, to undergo SI for 6 months.

2 The version of the prosecution is that SI Nalin Verma (PW-10)

received a secret information that a lady would be selling "Chura Post"

(Opiate Powder) at Majnu Ka Tila, New Delhi. PW-10 informed the

SHO, Inspector Surinder Kumar Sand (PW-4) as also the ACP of PS

Civil Lines about this information. This information was recorded in a

DD. Copy of this DD was handed over to Constable Balbir (PW-5) who

was directed to take this information to the residence of the ACP and

deliver it to him. PW-10 along with Head Constable Sushil Kumar

(PW-9) reached the spot. Passersby were asked to join the raiding party;

none agreed. At about 8.35 p.m. SHO Inspector Surinder Kumar

(PW-4) along with woman Head Constable Veena (PW-7) reached the

spot. At about 08:45 PM, a lady was seen carrying a plastic bag coming

from bus stand from the side of Punjabi Basti, going towards Majnu Ka

Tila. At the pointing out of the secret informer the lady was stopped.

She disclosed her name as Kusum @ Kusmi. PW-10 introduced himself

and informed her that she was suspected to be in possession of „Chura

Post‟. Her search was conducted. She was informed that search of the

members of the raiding party could be carried out in her presence. She

was also informed about her legal right to get her own search conducted

before a Magistrate or Gazetted Officer. Notice under Section 50 of the

NDPS Act (Ex.PW-10/A) was served upon her. She answered in

writing on the same document that she did not wish to be searched

before a Gazetted Officer or Magistrate. From the plastic bag which she

was carrying in her hand, "Chura Post" was recovered which was

weighed on the weighing scale and measured to be 12 kg. One sample

of 1 kg was prepared. The remaining "Chura Post" was put back into

the parcel. The contraband was seized and thereafter sealed, and the

seal of NV was fixed. The FSL Form was filled in. The seal after use

was handed over to H.C. Sushil Kumar. The rukka (Ex.PW-10/B) was

dispatched through H.C. Sushil Kumar and the FIR was registered. The

case property was deposited in the Malkhana with H.C. Satender Singh

(PW-1) and entry at serial No.304 in Register 19 in the Malkhana was

made and proved as Ex.PW-1/A. On 15.7.2003 this sealed parcel, along

with CFSL Form, was handed over to Constable Jitender Kumar (PW-6)

who deposited it in FSL Malviya Nagar which vide its report Ex.PX had

tested the sample contraband and found it positive for the main

constituents of Poppy Plant.

3 Ten witnesses were examined on behalf of the prosecution. In

view of the oral and documentary evidence adduced by the prosecution,

the appellant was convicted and sentenced as noted supra. In her

statement recorded under Section 313 of the Cr.PC, the appellant had

stated that the case against her was false and fabricated, and that she was

innocent. She did not lead any defence evidence.

4 On behalf of the appellant arguments have been heard in detail.

At the outset, it is pointed out that the appellant was a young girl aged

19 years at the time of the incident who has attained the age of 33 years.

She is living a live wholly away from crime. It has also been pointed

out that keeping in view the sentence awarded to her, and also keeping

in view the fact that she is living with her aged parents and they have no

other person to support them, the period of incarceration of 10

months which she had undergone out of the 4 years sentence which had

been awarded to her be treated as the sentence imposed upon her. On

merits, it is submitted that the sample which was taken from the

contraband was 1 kg; the FSL had noted in its report that the sample

which were received by them weighed 1039.79 kg. How almost 40

grams came to be in excess has not been explained by the prosecution.

It is not as if the weight of the polythene in which the sample was kept

weighed 40 grams. This clearly shows that there is tampering in the

contraband for which benefit of doubt must accrue to the appellant.

The contraband was deposited in the Malkhana on 10.6.2003 but it was

sent to FSL after a month i.e. on 12.7.2013 which was against the

notification of the Department which shows that the contraband must be

sent to the FSL for examination within next 72 hours. The delay again

being unexplained is fatal to the version of the prosecution. It is

pointed out that there is no evidence on record to show that W/Head

Constable Veena had given her search prior to searching the appellant.

Section 42 of the NDPS Act had not been complied with.

5 Arguments have been refuted. It is stated that on no count does

the impugned judgment call for any interference. It is stated that

provisions of Section 42 of the NDPS Act as also Section 50 of the

NDPS Act had been complied with and this has been noted in the

impugned judgment. The secret information had been reduced into DD

which had been sent to the Superior Officer. There is also no possibility

of tampering as the sample was duly sealed. The seal of „NV‟ was

affixed upon it. There was no disturbance in the seal. The appellant is

not entitled to any benefit on merits. On the quantum of sentence it is

pointed out that the offence is grave and serious. The period of 10

months would not be sufficient to deter the accused from committing

similar crimes in the future.

6      Arguments have been heard and record perused.

7      The case of the prosecution is hinged on a secret information.

This is evident from the testimony of PW-10 who had stated that he

received a secret information that a lady would be coming from Punjabi

Basti carrying a plastic bag. This information was reduced into writing

by him in the DD Register which was duly forwarded to the SHO and

the ACP. However, this DD has not seen the light of day through any

evidence. It was only an oral statement which had been made by the

witnesses. Section 42(2) of the NDPS Act requires that if any secret

information is received it must be reduced into writing and must be sent

to the senior officers. This is a mandatory provision. The Supreme

Court has time and again reiterated this position. This has been

expounded in the judgment of a Constitution Bench of the Apex Court

reported as (2009) 8 SCC 539 Karnail Singh Vs. State of Haryana. This

requirement of law has to be strictly complied with and the

consequences of non-compliance are grave. The Apex Court had noted

that the harsh provisions of the NDPS Act cast a duty upon the

prosecution to strictly follow the procedure and comply with all its

safeguards.

8 The Supreme Court in (2013) 2 SCC 212 Sukhdev Singh Vs. State

of Haryana in this context had observed:

"The provisions of Section 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the Investigating Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers, but could do it later and preferably prior to recovery. Compliance of Section 42 is mandatory and there cannot be an escape from its strict compliance."

9 In the instant case, there has clearly been a non-compliance of this

provision. The entire case of the prosecution is hinged upon a secret

information. Although PW-10 stated that he had recorded the secret

information by way of the DD in the DD Register, yet there is no

explanation as to why this DD was not proved by producing this

not been proved through any document. This provision has been

engrafted in the Statute as a safeguard. It had to be complied with in its

true letter and spirit which has not been done; being a mandate, the non-

compliance of it means that, a benefit of doubt must accrue in favour of

the appellant. Accordingly, giving the benefit of doubt to the appellant

for non-compliance of Section 42 (2) of the NDPS Act, the appellant is

entitled to an acquittal.