Delhi High Court

Prakash Singh And Ors vs State on 24 August, 2015

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on : 20.8.2015
                                    Judgment delivered on : 24.8.2015

+      CRL.A. 1148/2012

       PRAKASH SINGH AND ORS.                         ..... Appellants

                      Through       Mr. Shubhankar Jha, Adv.

                           versus

       STATE                                          ..... Respondent

                      Through       Ms. Kusum Dhalla, APP for the State.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence dated 23.4.2012 wherein the appellants Prakash Singh and

Moti Khan have been convicted under Section 20(b)(ii) (C) read with

Section 29 of the NDPS Act; each of them have been sentenced to

undergo RI for a period of 10 years and to pay a fine of Rs.2 lac in

default of payment of fine to undergo SI for 12 months.

2 The version of the prosecution is that at about 8.45 P.M., a black

colour Pulsar motorcycle driven by accused Prakash Singh with Moti

Khan as the pillion rider, reached in front of the under construction

community hall near Netaji Nagar. Inspector Bal Kishan along with SI

Balihar Singh, ASI P.D. Meena (PW-8), H.C.Abdul Hakim (PW-9),

H.C. Jasraj (PW-5), H.C.Pramod Kumar (PW-4), Constable A.Rehman

(PW-7), Constable Joginder who were on patrolling duty being member

of AATS, District South became suspicious as they noticed that there

were three army bags kept on the motorcycle. The motorcyclist was

asked to stop. Each of the two appellants had one bag with them and the

third bag was lying on the motorcycle. PW-8 and the other members of

the raiding party introduced themselves to the appellants. They tried to

slip away but they were apprehended Accused Prakash Singh was

apprehended by PW-8 and accused Moti Khan was apprehended by

PW-4. On checking the bags of the appellants, it was found that the

bags contained contraband which was in the shape of grass leaves like

objects which was later revealed to be ganja. The packets were weighed

separately. Each of the three bags contained two packets each. 50 gram

samples from each packet were obtained. The total numbers of samples

which were drawn from the contraband were 12 and each of them were

described separately as A-1, A-2 to G-1 and G-2. The samples as also

the remaining contraband was seized and sealed. The disclosure

statements of the accused were recorded. They were formally arrested.

3 Further investigation of this case was marked to PW-3. He had

also reached the spot. The contraband and the samples were deposited

in the Malkhana by PW-6 and entries in the relevant Registrar No.19

were proved. The FSL had tested the samples positive for ganja.

4 On the basis of the aforenoted evidence collected by the

prosecution, the appellants were chargesheeted and sentenced as

aforenoted.

5 On behalf of the appellants, arguments have been heard in detail.

The ground of appeal argued by the learned counsel for the appellant is

that the mandate of Section 55 of the NDPS Act has not been complied

with; when was the case property deposited? by whom and how the

samples were taken to the FSL has not been explained; the link evidence

is missing. It is pointed out that notice under Section 50 of the NDPS

Act was also not served upon the accused which is a mandatory

requirement. The next submission made by learned counsel for the

appellant is that there are glaring contradictions in the versions of the

prosecution witnesses; they are all police officials; there is no

explanation as to why no public witness was joined when admittedly it

was a public place where the offence had taken place. On all the

aforenoted grounds, the appellants are entitled to benefit of doubt and a

consequent acquittal.

6 These arguments have been refuted by learned APP for the State.

She has drawn attention of this Court to the testimony of PW-6 who had

on oath deposed that he had deposited the case property including FSL

form in the Malkhana. Further submission is that since this was a case

of chance recovery, notice under Section 50 of the NDPS is not a

mandatory requirement. The last submission made by the learned

counsel for the State is that the public witnesses were asked to join the

proceedings but since they had refused to join and there being no

inconsistency in the testimony of the members of the raiding party their

versions cannot be disbelieved only on the ground that public witnesses

have not been joined.

7 Arguments have been heard and record has been perused.

8 Admittedly this is a case of chance recovery. The members of the

raiding party which included, PW-4,PW-5, PW-7, PW-8 and PW-9 have

all deposed that they were on patrolling duty at the time when the

appellants were going on a motorcycle, and on chance they were

apprehended and the contraband was recovered from their possession

i.e. from their baggage and not from their person. In such a scenario,

provisions of Section 50 of the NDPS Act are inapplicable. This has

been held by the Constitution Bench of the Apex Court in 3(1999) 6

SCC 172 State of Punjab V. Baldev Singh as under:

"Sec.50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Sec. 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the N.D.P.S. Act is also recovered, the requirements of Sec. 50 of the Act are not attracted."

9 This has also been upheld in 2005 SCC (Cri.) 943 State of H.P.V.

Pawan Kumar, as under:

"Sec. 50 will come into play only in the case of personal

search of the accused and not of some baggage like a bag,

article or container, etc. which he may be carrying."

10 The members of the raiding party as noted supra were PW-4,

PW-5, PW-7, PW-8 and PW-9. They have all deposed consistently.

PW-4 has on oath deposed that when he, along with the members of the

raiding party were on a patrolling duty in the area in a Government Bus

they noticed that a pulsar motorcycle on which two persons were seated

and that there were three bags of green colour in between them. On

suspicion, they were asked to stop. PW-8 introduced himself to them

and asked them to search their bags. They attempted to flee but they

were apprehended. The person who was driving the motorcycle gave

his name as Prakash Singh. He was apprehended by PW-8. He was

having one bag. The other person Moti Khan was having a bag in his

hand. On checking these three bags, each of them was found to contain

two plastic containers having ganja. The ganja was measured on a scale

by the Investigating Officer. It appeared to be a grassy type object.

Each of these bags were separately weighed and 50 grams samples were

drawn from each of the packet making them 12 samples in each. The

case property was seized vide memo Ex.PW-4/A. FSL form was filled

up at the spot. Arrest memo of appellant Prakash Singh was proved as

Ex.PW-3/C and arrest memo of appellant Moti Khan was proved as

Ex.PW-3/D. Their personal search was also conducted. In his cross-

examination he stuck to his stand and categorically stated that each

sample was drawn separately from each packet and they were all sealed

with the seal of "PDM" and "RR". Nothing has also been pointed out in

the cross-examination of the aforenoted witnesses which could discredit

his otherwise cogent version. The other members of the raiding party

namely PW-5, PW-7, PW-8, PW-9 corroborated the version of PW-4.

PW-8 has catergorically stated that the public persons were asked to join

the raid but none agreed; he had not noted the name of the persons who

had refused to join the raid. The entire weighment took about one hour.

He left the spot at about 3.00 a.m. in his vehicle and went back to his

office. The samples and the pullandas were deposited.

11 The non-joining of the public witnesses has been explained by

PW-8. It is also a well-known fact that public persons are wary of

joining police raids as they know that this is a cumbersome procedure;

not only do they have to spend time in the proceedings at the spot but

they would also be called to the Court later on for deposition. This is

largely the reason which discourages public persons from joining these

proceedings. In these circumstances, the non-joining of public

witnesses would not affect the version of the members of the raiding

party who had otherwise given a coherent version. The observations of

the Apex Court in AIR 2013 3SC 3995 Gian Chand & Ors. Vs. State of

Haryana are relevant in this context and read as under:

" mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the Appellants."

12 The case property, the samples and the FSL Form were deposited

in the Malkhana by Inspector Ritu Raj (PW-6) who has deposed that she

had affixed the seal on the parcels and thereafter deposited the case

property and the FSL Form along with the samples in the Malkhana.

DD entry to this effect had been recorded. PW-7 Constable A.Rehman

had taken these samples along with the FSL form to the FSL on

16.10.2009 and entries in the Register No.19 to the said effect have been

proved by H.C.Atar Singh (PW-1). The FSL vide its report tested the

samples positive for ganja.

13 This Court, further notes that the contraband which had been

recovered from the accused measured 58.50 kg. which falls within the

definition of a commercial quantity. The illegal possession of ganja for