Arun Kumar vs State (Nct Of Delhi)
2015 Latest Caselaw 7669 Del

$~R-91

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on : 29.9.2015
                                    Judgment delivered on : 07.10.2015

+      CRL.A. 926/2013, CRL.M.(B) 1487/2013 & CRL.M.A.
       10880/2013

       ARUN KUMAR                                            ..... Appellant

                           Through        Ms. Arundhati Katju and Mr. Ali
                                          Choudhary, Advocates.

                           versus

       STATE (NCT OF DELHI)                           ..... 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

on sentence dated 10.02.2011 and 22.02.2011 respectively wherein the

appellant stands convicted under Section 20 of the Narcotics Drugs and

Psychotropic Substance Act (in short NDPS Act). He had been

sentenced to undergo RI for a period of 10 years and to pay a fine of

Rs.1 lac and in default of payment of fine to undergo SI for 6 months.

2 Nominal roll of the appellant reflects that as on date he has

undergone incarceration of almost about 6 years.

3 The version of the prosecution is that on 25.10.2009 SI Bhagwan

Singh (PW-9) had received a secret information that a person by the

name of Arun Kumar resident of Bihar presently residing at Mahavir

Enclave, Delhi was to supply charas and would reach the bus stand of

Punjabi Bagh, South, Rohtak Road, Delhi between 02:15 pm to 03:00

pm. This secret information was reduced into writing and was forwarded

by PW-9 to his senior officer ACP S.R. Yadav who directed him to

constitute a raiding party. PW-9 along with HC Kawal Singh and

constable Satpal (PW-5) reached the spot. On the pointing out by the

secret informer, the appellant who was coming from the side of Rani

Jhansi Road was apprehended. 4-5 passengers who were close by were

asked to join the raid. None agreed. The appellant was carrying a

shoulder bag. Notice under Section 50 of the NDPS Act (Ex.PW-3/A)

was served upon the appellant informing him that he has a right to get

his search conducted either before a Gazetted Officer or before a

Magistrate. He declined this option and his refusal has been recorded at

point 'A' on Ex.PW-3/B. From the shoulder bag of the appellant, it was

found to contain 8 slabs of rectangle shape; four slabs were of big size

and 4 slabs were of small size. All the slabs were covered with khaki

tape and on opening of the same, some batinuma substance of black

colour was found and a foul smell was emanating from the same. When

tested, it was found to contain charas. Total weight was 6 kgms. 4

samples of 50 gms each were drawn, two samples of 50 gms each were

drawn from the bigger bag marked A-1 and A-2 and two samples were

drawn from the four smaller bags marked B-1 and B-2. Samples were

seized and sealed and so also the balance contraband. The case property

along with FSL Form was deposited with malkhana by Inspector

Akshay Kumar (PW-4). The malkhana mohrar HC Chand Ram was

examined as PW-2. He had received the remnant samples on 27.11.2009

through HC Om Prakash (PW-7). The CFSL had tested the samples sent

to it positive for charas. Report under Section 57 of the NDPS Act was

also made and this was proved in the version of PW-7.

4 The statement of the accused was recorded under Section 313 of

the Cr.PC. His version was that he has been falsely implicated in the

present case. No evidence was led in defence.

5 On the basis of the aforenoted evidence collected by the

prosecution, the appellant was convicted and sentenced as aforenoted.

6 On behalf of the appellant, learned amicus curiae has made a

vehement submission that the samples were not the representative

samples and the four larger slabs which were recovered from the

appellant were admittedly four kgs of the alleged charas from which two

samples were drawn; from the four smaller slabs, two samples of 50

gms each were drawn; there was not homogenized; this is violative of

the Standing Order of NCB and attention has been drawn to the

Standing Order No. 1/88 and the procedure entailed therein. Attention

has been drawn to serial No. 1.3, 1.6 and 1.7; submission being that it

was mandatory for the prosecution to have drawn a representative

sample which in the instant case was not done. The second submission

of the learned amicus-curiae is that there is no explanation as to why no

public witness was joined when the recovery was effected at the Punjabi

Bagh bus stand in the afternoon at 02:15 pm and even as per the

prosecution, there were sufficient persons who were passing through

that area. The weight of the samples when sent to the CFSL was 60 gms

instead of 50 gms which as per the prosecution was the drawn samples.

On this count also, the appellant is entitled to a benefit of doubt and a

consequent acquittal.

7 Needless to state, these arguments have been refuted by the

learned Public Prosecutor for the State. Submission being that on no

count, does the impugned judgment call for any interference.

8 Arguments have been heard. Record has been perused.

9 The second and third argument propounded by the learned

amicus-curiae shall be answered first. All members of the raiding party

which included PW-3, PW-5 and PW-9 have categorically stated that

passersby were asked to join the raid but none had agreed. This has

come in the categorical versions of all the aforenoted three members of

the raiding party. Thus nothing adverse can be inferred for non-joining

of the public witness and especially as it is a matter of common

knowledge that public persons are wary of joining raids as the procedure

is long drawn and once they become witnesses, they would be called at

the police station time and again which is the deterrent for their non-

joining these raids. Record also evidences that efforts were made to join

the members of the public. In fact at the cost of repetition, all the

members of raiding party i.e. PW-3, PW-5 and PW-9 had stated that

efforts were made to join the public passersby but they had not agreed.

There is also no gainsaying to the settled proposition that if the

testimony of a police witness is cogent, coherent and inspires confidence

and is not attributable to any malafides, there is no reason as to why the

same cannot be relied upon. It is also relevant to note that it is not the

case of the appellant that the police party had any enmity against the

appellant; his simplicitor defence being that he has been falsely

implicated. Applying the rule of caution to the testimony of PW-3, PW-

5 and PW-9, this Court is of the considered view that their versions

being cogent and coherent, their testimony cannot be discarded only on

the count that public witnesses had not joined the raid. The second

argument of the learned counsel for the appellant is without any merit.

10 The third argument of the learned counsel for appellant is on the

weight of the samples. Admittedly as per the version of the prosecution,

four samples were drawn from the total contraband of 6 kgs; each of

them weighed 50 gms. The Investigating Officer (PW-9) has deposed

that weighment of the contraband was done on an electronic scale. PW-9

who had drawn the samples has categorically stated that the two samples

of 50 gms each were drawn from the four bigger slabs (marked A-1 and

A-2); the balance two samples of 50 gms each were drawn from the four

smaller slabs. After seizing and sealing the samples, they were deposited

in the malkhana and thereafter PW-7 sent the samples for testing to the

CFSL. The report of the CFSL (proved as Ex.PW-8/H) shows that the

two samples marked A-1 was received intact and tallied with specimen

seal and on testing, it was found to contain charas. The CFSL has

reported that the weight of each sample as approximately 60 gms with

the polythene; the version of the prosecution was that 50 gms was drawn

which was the gross weight of a sample and this was exclusive of the

weight of the polythene. Even otherwise, a discrepancy of 2-3 gms on

either side would not dent the version of the prosecution as it is not the

argument before this Court that the drawn samples were tampered or

that they did not contain charas. In this intervening period, the seals had

remained with PW-3; the possibility of tampering was even otherwise

excluded. This argument qua the weight of the sample is thus without

any merit.

11 The first argument which had been propounded by the learned

counsel for the appellant is also noted to be rejected. PW-9 has

categorically stated that what was drawn were representative samples;

this has come in his version. The total haul was 6 kgs. There were four

slabs of 1 kg each. Two samples of 50 gms each were taken from the

four big slabs meaning that a small quantity was taken from all the four

slabs. Similarly from the four smaller slabs, a small quantify was taken

from each of the four smaller slabs and marked as B-1 and B-2. Thus the

submission of the learned counsel for the appellant that they were not

representative samples was negatived. The samples drawn were duly

representative as they were drawn from each of the 8 slabs i.e. from the

four bigger slabs as also from four small slabs.

12 The Standing Orders of the NCB are even otherwise guidelines

which should by and large be followed by the investigating agency and

even in case of an irregularity, it may not by itself be sufficient to vitiate

the trial. In the facts of the instant case, the procedure has been followed

and there has been no violation of the Standing Order of the NCB as the

drawn samples were representative samples.

13 The impugned judgment does not call for any interference. It has

been established beyond reasonable doubt that what was recovered from

the appellant pursuant to a secret information was charas. It falls in the

commercial quantity being 6 kg. The appellant has rightly been

convicted under Section 20 of the NDPS Act. The sentence which has

been imposed upon him is also of the minimum of RI 10 years and a

fine of Rs.1 lac. The sentence also calls for no interference.

14     Appeal is without any merit. Dismissed.



                                        INDERMEET KAUR, J
OCTOBER 07, 2015
A