Sanjay Mandal vs State
2015 Latest Caselaw 7463 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on :23.9.2015
                                Judgment delivered on :30.9.2015

+      CRL.A. 1055/2012 & Crl. M. (B) No.3108/2015
       SANJAY MANDAL
                                                        ..... Appellant
                           Through    Mr.Siddharth Yadav, Advocate.

                           Versus

       STATE
                                                      ..... Respondent
                           Through    Mr. Akshai Malik, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

on sentence dated 22.05.2012 and 29.05.2012 respectively the appellant

stands convicted under Section 20 of the Narcotic Drugs and

Psychotropic Substance Act (NDPS Act). He has 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 3 months.

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

undergone incarceration of approximately 4 years.

3 The version of the prosecution is that on 24.08.2011 while HC

Dalip Kumar (PW-3) and SI Siddappa (PW-6) and constable Ramesh

Chand (PW-4) had gone to apprehend the appellant with regard to

another FIR i.e. FIR No.31/2011 registered under Section 25 of the

Arms Act; the appellant was found carrying a polythene in his right

hand; on his formal check and on checking the polythene, it was found

to contain charas. Notice under Section 50 of the NDPS Act had been

served upon him. The contraband which was recovered was weighed

and two samples of 500 gms each were drawn. It was sent to the CFSL

which has tested this seized contraband positive for charas. The

investigation was thereafter handed over to ASI Swadesh Kumar

examined as PW-7. Compliance of Section 57 of the NDPS Act was

effect by him.

4 In the statement of the accused recorded under Section 313 of the

Cr.PC, he had pleaded innocence stating that he has been falsely

implicated by the members of the raiding party who had a grudge

against him and they had threatened him to implicate him in a false case.

To support this argument, the appellant had also produced one witness

in defence. He was examined as DW-1. Contention was that on

03.06.2011, he had been abused by the local police which included HC

Dalip Kumar (PW-3) and ASI Swadesh Kumar (PW-7); they had asked

for money from him. On 04.06.2011, they had again tried to extort

money. He had reported the matter to the Vigilance Branch and had also

filed a complaint before the Commissioner of Police proved as Ex.DW-

1/C. He was constrained to file a bail application seeking anticipatory

protection in view of these threats which have been given to him which

was declined by the Court of Sessions on 02.06.2011 Ex.DW-1/B.

5 On the basis of the aforenoted evidence collected by the

prosecution, both oral and documentary, the appellant was convicted

and sentenced as aforenoted.

6 The only argument of the learned counsel for the appellant is that

the appellant has been falsely implicated by the members of the raiding

party especially HC Dalip Kumar (PW-3) and ASI Swadesh Kumar

(PW-7) and they all being police personnel posted at the local police

station Sadar Bazar had threatened him as he being a kabadi was asked

to pay up the money to the police personnel to which he objected and

this was the grudge against him; this is a clear case of false implication.

Ex.DW-1/C which was the complaint dated 04.06.2011 almost one

month prior to the date of the incident in fact evidenced his

apprehension; his apprehension was that PW-3 and PW-7 would embroil

him in a false case as he had failed to pay up the money which they were

demanding from him. He has also moved an application seeking

anticipatory bail application which has been declined by the Sessions

Judge vide Ex.DW-1/B. No other argument has been pressed before this

Court.

7 These factual submissions as noted above are matter of record. It

is a matter of record that the appellant had all along taken a defence that

he has been falsely implicated in the present case because of his

unwillingness to pay up the money to PW-3 and PW-7. The fact that he

had made a complaint on 04.06.2011 to the Commissioner of Police,

Headquarter and thereafter was also constrained to file an application

seeking anticipatory protection which was declined are also a matter of

record.

8 The version of the prosecution as revealed from the record shows

that the police official including PW-3 and PW-6 had gone to the

appellant to execute the NBWs against him in another case (under

Section 25 of the Arms Act). At that time, he was found carrying a

polythene bag. It contained charas. This was a chance recovery. As such

the compliance under Section 50 of the NDPS Act was not really

required although a notice under Section 50 of the NDPS Act had been

served upon the appellant.

9 The recovered contraband was seized, samples were drawn and

deposited in the malkhana along with contraband and was sent to the

CFSL which had tested the contraband positive for charas. As noted

supra, learned counsel for the appellant has not addressed on the merits

of the case; his submission is that this is a case of false implication only

on the basis of Ex.DW-1/B and Ex.DW-1/C.

10 This argument of the learned counsel for the appellant was rightly

rejected by the Trial Court and the reasons shall now be discussed in the

subsequent part of the judgment.

11 Record shows that the appellant was clearly a bad character of the

area; he was a B.C.; the fact that he is involved in several other criminal

activities has been noted. It is also come on record that on 03.06.2011

(one day prior to 04.06.2011) three persons had been apprehended by

HC Dalip Kumar (posted as police constable in police station Sadar

Bazar); they were booked under Section 107/151 of the Cr.PC. This was

by DD No. 11-A dated 09.06.2011. The appellant was a part of this

quarrel. If the police personnel did have any grudge against the

appellant, they could have well arrested the appellant to embroil him in

the false case on 03.06.2011 i.e. when the proceedings under Sections

107/151 of the Cr.PC had been recorded. The fact that the raiding party

in the present case had gone to execute the NBWs against the appellant

in a FIR under Section 25 of the Arms Act (which he was facing) is an

admitted fact. Criminal background of the appellant has been noted.

12 Section 54 of the Indian Evidence Act reads herein as under:-

"[54. Previous bad character not relevant, except in reply.--In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.

Explanation 1.--This section does not apply to cases in which the bad character of any person is itself a fact in issue.

Explanation 2.--A previous conviction is relevant as evidence of bad character.]" 13 Although under this provision of law in criminal proceedings, the

fact that the accused person has a bad character is irrelevant but where

evidence has been given that he has a good character, his bad character

would then become relevant.

14 In the instant case, the defence of the appellant all along was that

this is a case of false implication and he is a man of good character who

has been embroiled in this false criminal proceeding for which evidence

of DW-1 had been led and Ex.DW-1/B and DW-1/C had also been

relied upon as the documentary evidence. This has been negatived by

the other criminal record of the appellant which are proceedings pending

against him not only under Sections 107/151 of the Cr.PC but also an

FIR registered under Section 25 of the Arms Act. His evidence that he

has a good character has been rebutted by his bad character which has

been evidenced through his criminal record. This Court is thus not

inclined to accept the submission of the learned counsel for the appellant

that this is a case of false implication.

15 The prosecution has been able to establish that the appellant was

found to be in possession of an illegal quantity of charas which on

weighing was found to be 2 kgs and 200 gms which is in the

commercial bracket. The conviction of the appellant and the sentence

which is imposed upon him being already the minimum which is 10

years RI and minimum fine of Rs.1 lac thus calls for no interference.

 16     Appeal is without any merit. Dismissed.




                                      INDERMEET KAUR, J
SEPTEMBER 30 , 2015
A