Delhi High Court
Suraj Bhan & Anr. vs Central Bureau Of Investigation on 22 December, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. No.514/2000
Date of Decision : 22nd December, 2016
SURAJ BHAN & ANR. ..... APPELLANTS
Through Mr.M.L. Yadav, Adv.
versus
CENTRAL BUREAU OF INVESTIGATION ...RESPONDENT
Through Mr.Narender Mann, Spl.P.P. with
Mr.Manoj Pant, Adv.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J
1. Aggrieved by the judgment of conviction dated 7th August,
2000 convicting the appellants finding them guilty under Sections
8/20 of the Narcotic Drugs & Psychotropic Substances Act, 1985
(hereinafter referred to as NDPS Act, 1985) and order on sentence
dated 9th August, 2000 vide which the sentence was passed to
undergo rigorous imprisonment for a period of ten years and to pay
a fine of Rs.1,00,000/- for the offence punishable under Section 20
of the NDPS Act, in default of payment of fine, convict was to
undergo further simple imprisonment for three years, the present
appeal has been preferred by the appellants.
2. The facts in brief are that on the basis of the Source
Information Report (SIR) received, Mr.J.R. Kotty, the then Deputy
Superintendent of Police (DSP) of Central Bureau of Investigation,
SIU XI, New Delhi, on 7th February, 1995 at about 3.15 p.m.,
apprehended the appellants Suraj Bhan and Iqbal Ahmed. As per
the informer, on 7th February, 1995, both the accused were to
supply huge quantity of charas to some unknown person in Greater
Kailash area near a park besides Lady Shri Ram College, New
Delhi at about 3.00 p.m. Notice under Section 50 of the NDPS
Act, 1985 was issued and on a search, six rolls of charas weighing
six kilogram was alleged to have been recovered from their
possession. The recovered charas was kept inside the airbag and
was converted into a parcel which was thereafter sealed.
Thereafter out of six kilogram charas recovered, samples of 50
grams was taken out from each of the roll while remaining charas
was kept in the same bag and wrapped in a white cloth and
thereafter sealed. A search memo; seizure memo and personal
search memo were prepared; R.C. No.03/95 SIU (XI) was
registered under Section 8/20 NDPS Act and the appellants were
arrested. It emerges from the record that charge under Section 20
of the NDPS Act was framed against the accused persons to which
they pleaded not guilty and claimed trial.
3. The prosecution had examined as many as nine witnesses
namely PW 1 S.M. Aggarwal; PW 2 Laxman Dass; PW 3 Mr.J.R.
Kotty; PW 4 ASI Ram Kumar; PW 5 I.C. Varshney; PW 6
Const.Jagat Singh; PW 7 Const.Phara Singh; PW 8 Inspt.R.K.
Sinha & PW 9 Mahinder Kumar Hasija. The statement of the
accused Suraj Bhan & Iqbal Ahmed were recorded under Section
313 of the Cr.P.C.
4. The appellants were held guilty by the learned Special
Judge, Delhi and by an order dated 9th August, 2000, sentenced to
undergo rigorous imprisonment for ten years and fine of rupees one
lakh for the offence punishable under Section 20 of the NDPS Act,
1985.
GROUNDS OF CHALLENGE
(a) The main ground of challenge is that the mandatory
provision of Section 50 of the NDPS Act has not been duly
complied with. Notice under Section 50 of the NDPS Act in
writing was not given to the appellants at the time of their search.
The other ground taken is that the investigating officer had drawn
the sample weighing 50 grams while the report of the CFSL
reflects that the sample received was weighing 61 grams which
shows tampering with the sample. Further ground taken is that the
public witnesses examined were stock witnesses, therefore, their
testimony cannot be relied upon. The investigating officer was
incompetent to conduct raid and make search of the appellants.
5. Apart from challenging the judgment of conviction, learned
counsel for the appellants further submitted that in the nominal roll
filed by the the Deputy Superintendent, Central Jail, Tihar, on 21st
August, 2004, it was mentioned that as on 16th August, 2001, the
appellant Suraj Bhan had undergone sentence of six years, six
months and six days. So far as convict Iqbal Ahmad is concerned,
in the nominal roll filed by the Deputy Superintendent, Central Jail,
Tihar, on 6th July, 2004, it was mentioned that as on 27th August,
2002, the appellant Iqbal Ahmad had undergone sentence of seven
years, six months and seventeen days. It further reflects that on
27th August, 2002, the convict Iqbal Ahmad was released on bail
which was granted by this Court vide order dated 9th August, 2002
in Crl.Appeal No.514/2000.
6. In support of his contention, learned counsel for the
appellants relies on the pronouncement of the Hon'ble Supreme
Court in Rajesh Jagdamba Avasthi Vs. State of Goa 2004 (3) JCC
1827 in which the recovered contraband (charas) was sealed in
two packets (samples); sent for chemical analysis and that the same
was found deficient in weight although the seal was similar. This
appeal was stated to be allowed.
7. Per contra, arguments advanced by learned Special Public
Prosecutor for the CBI is that the appellants were rightly held
guilty under Sections 8/20 of the Narcotic Drugs and Psychotropic
Substances Act, 1985. It is submitted that on a source information
received by the DSP, CBI, SIU IX, New Delhi, appellants were
apprehended and the IO asked the appellants that he was competent
and would undertake search of the accused. The DSP also gave the
accused option to be searched before a Magistrate to which the
appellants declined and agreed to be searched by him and that six
rolls of dark brownish substance wrapped in transparent polythene
giving pungent smell weighing six kilogram of charas was
recovered from their possession. It was further submitted that in
the present case there was no need for serving notice under Section
50 of the Act inasmuch Section 50 of the Act applies in case of
personal search of a person. It does not extend to search of a
vehicle or a container or a bag or premises. In support of his
contention, learned SPP relies on the decision given in the
pronouncement of the Supreme Court in Madan Lal & Anr. Vs.
State of H.P. (2003) 7 SCC 465 which reads as under:-
"A bare reading of Section 50 shows that it only
applies in case of personal search of a person. It
does not extend to search of a vehicle or a
container or a bag or premises. The language of
Section 50 is implicitly clear that the search has
to be in relation to a person as contrasted to
search of premises, vehicles or articles. Hence
the contention regarding non-compliance with
Section 50 of the Act is without any substance."
8. Arguments advanced by learned counsel for the appellant as
well as learned Special Public Prosecutor for the CBI have been
heard.
(I) PW 1 S.M. Aggarwal, Vigilance Inspector, New Delhi
Municipal Committee in his testimony deposed that on the
instructions of Director Vigilance of the NDMC, he along with PW
2 Mr.Laxman Dass, joined the raiding party of the CBI. This
witness in his testimony stated that the raiding party left for a place
near Lady Sri Ram College, New Delhi and that a picket was laid
near a park. This witness further stated that at 2.00 or 2.15 p.m.,
one person came from the side of a Khoka in the park, towards the
railing of the park and handed over a green colour bag to another
person already standing near the railing. He further stated that,
thereafter, at the interception of CBI, both the accused persons
were apprehended. It was stated by him that the CBI party was
headed by Mr.J.R. Kotty, DSP. This witness further stated that the
DSP introduced himself to the accused by showing his identity
card and apprised them about the information with regard to
trafficking of charas. Thereafter, the accused persons were taken
to CGO complex along with him and the other panch witnesses.
This witness identified in court the accused Suraj Bhan who
brought green colour air bag and gave the same to other accused.
This witness further deposed that upon search of the air bag in the
CGO Complex, the same was found to have contained some dark
brown blackish sticks/rolls which was declared as charas by the
CBI officers. PW 1 further stated that on weighing, the charas
was probably four and a half kilogram to five kilogram. It was
stated by this witness that two small samples were drawn from the
substance so recovered and that the same were converted into two
parcels which were sealed with the seal of CBI impression. PW 1
further deposed that the recovered charas was kept in the same air
bag and was thereafter converted into a parcel which was sealed in
the same manner. The specimen of the seal was affixed on a
separate paper marked as Exh.PW 2/1. This witness further stated
that the sample of 50 grams each were drawn out at the spot and
thereafter search memo, seizure memo and personal search memo
Exh.PW 2/3 were prepared which bears his signature at point P-4.
PW 1 further stated that recovery memo Exh.PW 2/5 which runs
into six pages bearing his signature at point P-3 was also prepared.
He further stated that site plan Ex.PW 2/4 was also prepared at the
spot which bears his signature at point X-3.
(II) PW 2 Laxman Dass corroborated the testimony of PW 1. In
his statement this witness stated that while working as
Superintendent (Vigilance) in NDMC, New Delhi, he was called in
the office of the CBI where Mr.J.R. Kotty, DSP, CBI asked him to
accompany for the trap of two persons namely Iqbal Ahmed &
Suraj Bhan, who were having contraband i.e. charas with them.
This witness stated that they all reached the spot at 2.20 p.m. and
that members of the raiding party were deployed at different
places. This witness further stated that at about 3.15 p.m., the
informer told that the accused were coming. As per the
information, Suraj Bhan as well as Iqbal Ahmed with bag hanging
on his left shoulder, reached the spot. This witness further deposed
that the accused persons stayed for some time at the crossing near
Lady Shree Ram College and thereafter Iqbal Ahmed gave a
military colour bag to Suraj Bhan. This witness further stated that
the raiding party which was headed by Mr.J.R. Kotty, surrounded
the accused persons and disclosed them their identity. Thereafter,
the raiding party enquired about the contents of the bag to which
the accused disclosed that there was six kilogram charas in the bag.
PW 2 further stated that Mr.J.R. Kotty, DSP gave the accused
persons an opportunity to be searched before a gazetted officer or a
Magistrate or before him, being a gazetted officer, to which the
accused persons stated that they had no objection to be searched
before him. This witness deposed that Mr.Kotty searched the bag
in possession of Suraj Bhan at that time; found that the same was
containing six rolls of charas; tested the recovered contents and
apprised that the said contents were the contraband i.e. charas and
thereafter weighed the contraband which came to be six kilogram.
PW 2 further stated that Mr.Kotty drew samples of 50 grams from
each roll and his signatures were taken on sample packet which
was marked as 'A'. The remaining contraband i.e. charas was kept
in the same bag; wrapped in white cloth and sealed by marking A 1
& A 2 respectively carrying the impression of CBI/MS 6/94. This
witness identified his signature on the piece of paper Ex.PW 2/1
which was the specimen obtained using the seal. PW 2 further
deposed that on the personal search (Exh.PW 2/3) of accused Iqbal
Ahmed, a piece of paper was recovered which was signed by him
and marked as Exh.PW 2/2; site plan PW 2/4 was prepared along
with recovery memo which was marked as Exh.PW 2/5. This
witness further stated that the said seal was handed over to PW 1
Mr.S.M. Aggarwal against receipt which was marked as Exh.PW
2/6.
(III) Further corroboration is by PW 3 J.R. Kotty, DSP, CBI who
in his statement stated that while working as DSP, CBI, SIU,
Narcotics Branch, he received information on 7th February, 1995 at
3.00 p.m. that two persons namely Suraj Bhan and Iqbal Ahmed
were arriving in Delhi from U.P. for the purpose of delivery of
contraband i.e. charas to an unknown person near Lady Shri Ram
College, Delhi. This witness further deposed that he called two
independent witnesses i.e. PW 1 Mr.S.M. Aggarwal & PW 2
Laxman Dass from the office of the Deputy Director (Vigilance).
PW 3 further stated that three to four members from SIU XI
Branch along with PW 1 & 2 were briefed about the said
information of delivery of contraband i.e. charas whereafter they
left for the spot at around 2.00 p.m. This witness deployed the
raiding party members at strategic points in and around the spot.
Thereafter the informer apprised him about the accused persons
visiting the spot. The said witness thereafter stated that the
accused Iqbal Ahmed was seen handing over the military coloured
bag to Suraj Bhan and thereafter the accused persons appeared to
be waiting for an unknown third person. Thereafter the said
witness along with Laxman Dass, PW 2 confronted the accused
persons and enquired about the contents of the bag to which Suraj
Bhan stated that the bag contained about six kilogram of
contraband i.e. charas which they had brought from Nepal Border.
This witness gave the accused persons an opportunity to be
searched before a gazetted officer or a Magistrate or before him,
being a gazetted officer, to which the accused persons stated that
they had no objection to be searched before him. This witness
further deposed that on opening the said bag, six rolls of dark
brown substance emanating pungent smell were found wrapped in
a transparent polythene. The said contents were analysed by this
witness through a Field Test Kit which gave positive result.
Thereafter, this witness stated that two samples of 50 grams each
were drawn from the rolls by taking a small portion from each of
the six rolls and that the said packet was sealed and marked with
the CBI seal impression 'CBI/MS/6/94' and signatures of PW 2 &
independent witnesses were affixed. Thereafter, this witness
obtained specimen seal impression on two-three papers which was
handed over to PW 1 Sh.S.M. Aggarwal against receipt which was
marked as Exh.PW 2/1. This witness prepared a rough site plan
Exh.PW 2/4 and effected personal search & arrest memo which
was marked as Exh.PW 2/3. Thereafter, recovery memo was
prepared by this witness which was marked as Exh.PW 2/5.
Thereafter, the two accused persons were arrested by this witness
after being informed of the ground of arrest who were thereafter
taken to the CBI office at around 6.00 p.m. The said contraband
and sealed items were deposited in the malkhana of SIU XI and a
written complaint Exh.PW 3/1 was submitted to S.P., SIU, XII on
whose direction, the case was registered and investigation was
handed over to PW 8 Mr.R.K. Sinha, Inspector, CBI. Thereafter
on the basis of the afore-said complaint, the case was registered
which was marked as Exh.PW 3/2.
(IV) PW 4 ASI Ram Kumar in his statement stated that while
posted as Duty Officer, CBI, S.I.U. XI, on 7th February, 1995 at
about 6.00 p.m., a pulanda sealed with the seal of CBI, MS/6/94
along with two samples, marked as A 1 & A 2, was given to him
by PW 3 J.R. Kotty. This witness, after checking the seals on
pulanda, deposited the same in the malkhana and entry (PW 4/A)
in this regard was made in the concerned register through ASI
Smt.Pushp Lata. PW 4 further stated that on 9th February, 1995, he
gave one sample A-1 and facsimile of the seal impression to
Ct.Ferray Singh for the purpose of depositing the same at CRCL,
Pusa Road. This witness further stated that he received the report
from the office of CRCL on 22nd March, 1995 which was
accompanied with the duly sealed envelop of NDPS Control Lab
Laboratory from Ct.Jagat Singh.
(V) Further corroboration is by PW 5 I.C. Warshnay who in his
statement stated that while posted as Asstt. Chemical Examiner In
Central Revenue Chemical Lab, Pusa Institute, New Delhi, he
received the sample along with covering letter (Ex.PW 5/A), test
memo & one paper having the specimen of CBI seal (Ex.PW 2/1)
on 7th March, 1995 from his incharge Mr.R.S. Malhotra, Asstt.
Chemical Examiner for the purpose of chemical analysis of the
sample. This witness identified the signatures of Mukesh Kumar
whom he had seen writing and signing the covering letter. This
witness deposed that the seals on the envelops were in intact
condition. This witness weighed the sample along with the plastic
bag which measured about 61 grams. This witness also examined
the sample and after examination, found the same to be charas
containing 18.8% tetrahydrocannabinol. This witness thereafter
got the report (Exh.PW 5/B) prepared through his Assistant. The
report also bears the signature of this witness at point 'X'.
(VI) PW 6 Ct.Jagat Singh in his statement stated that while
posted as Constable in CBI, SIU-XI, on 22nd March, 1995, after
being authorised (Exh.PW 6/A), he went to CRCL, Pusa Road on
the instruction of the Superintendent of Police for the purpose of
collecting the analysed remnant sample and chemical report with
the sealed cover. This witness thereafter deposited the remnant
sample to the Malkhana incharge and a report in this regard was
given to the Superintendent of Police of the branch.
(VII) PW 7 Ct.Phare Singh in his statement stated that while
posted as Constable in CBI, SIU XI, New Delhi, on 10th February,
1995, he carried the sealed packet containing sample, a specimen
with seal impression (Ex.PW 2/1) and a forwarding letter (Exh.PW
5/A), from the Incharge of the Malkhana and deposited the same at
CRCL, Pusa Road.
(VIII) PW 8 Mr.R.K. Sinha in his statement stated that while
posted as Inspector, CBI, SIU XI Branch, New Delhi, on 7th
February, 1995, he was directed to investigate the matter relating to
recovery of six kilogram of charas from Suraj Bhan and Iqbal
Ahmed. An FIR being RC No.395 was registered for the same.
This witness, during the course of investigation, recorded the
statements of PW 2 Laxman Dass, PW 3 J.R. Kotty, PW 1 S.M.
Aggarwal, Gaje Singh; PW 4 Ram Kumar; PW 6 Jagat Singh and
the chemical examiner. The concerned sample was sent to CRCL
(marked as A 1) and the report in this regard was received by this
witness. This witness filed the chargesheet (Ex.PW 8/A) against
the accused persons.
(IX) PW 9 Mr.Mahinder Kumar Hasija in his statement
stated that while posted as P.A. to the Superintendent of Police,
SIU XI, he received notesheet of S.I.R. (Exh.PW 3/A endorsed at
point 'D') for the purpose of registering the same. This witness
endorsed the remaining smack which was seized vide memo PW
3/B at point 'C'.
9. As per the testimony of PW 1 S.M. Aggarwal, he joined the
raiding party of CBI and picket was laid which was headed by PW
3 J.R. Kotty, DSP. This witness specifically stated that the accused
persons were apprehended and that six kilogram of charas was
recovered from their possession. PW 2 Laxman Dass in his
testimony deposed that he also joined the raiding party and that
raid was conducted in his presence in which the accused persons
were apprehended and charas measuring six kilogram in weight
was recovered from their possession. As per the testimony of PW
3 J.R. Kotty, on the date of the incident, on receipt of source
information report that the appellants who were drug suppliers and
were supplying the drug to a third unknown person, he organised a
raiding party at strategic points in and around the spot. A raid was
conducted and the accused persons were apprehended in Greater
Kailash area near a park besides Lady Shri Ram College. Option
was given to the appellants to get themselves searched before the
Magistrate. Thereafter on search, the military uniform coloured
bag recovered was found to be containing contraband i.e. charas
which was in the form of dark brown substance emanating pungent
smell and wrapped in a transparent polythene. On weighing, it was
found to be six kilogram. After preparing separate samples of 50
grams each from the rolls, the said packet was sealed and marked
with CBI seal impression. PW 4 ASI Ram Kumar received the
pulanda along with two samples sealed with the seal of CBI/MS
6/94who deposited the same in the malkhana after making entry
Exh.PW 4/A. PW 5 I.C. Warshnay, Assistant Chemical Examiner
who received the sample, analysed the same and found it to be
charas containing 18.8% tetrahydrocannabinol and weighed it
along with the plastic bag which was measured as 61 grams. A
report Exh.PW 5/B under his signature was prepared by this
witness.
10. The testimony of PW 3 has been duly corroborated by other
raiding party members i.e. PW 1 S.M. Aggarwal; PW 2 Laxman
Dass & PW 4 ASI Ram Kumar. All these witnesses in the same
breath have stated that raid was conducted in which the appellants
were apprehended with the contraband i.e. smack. They have also
stated in the same line that the proceedings were conducted by PW
3 J.R. Kotty and in-charge of raiding team at the spot and that
recovery of charas, its seizure, search of appellants, was conducted
and the other proceedings were effected.
11. All the above witnesses were cross-examined at length but
the defence had failed to put any dent to their testimony. They
remained unshaken with regard to conducting of raid and
apprehension of the appellants with the contraband i.e. charas.
They have also stated in a single voice that charas weighing six
kilogram was recovered from the appellants; compliance with
Section 50 of the NDPS Act was made with regard to the
proceedings conducted at the spot.
12. Contention of the learned counsel for the appellants that
there was no proper service of notice under Section 50 of the
NDPS Act upon the appellants, is without any basis inasmuch as
after apprehension of the appellants and before conducting search,
they were offered to get themselves searched and search of the bag
in the presence of a gazetted officer of a magistrate. However, the
appellants themselves chose not to be searched before any gazetted
officer or a magistrate. Even otherwise, PW 3 Mr.J.R. Kotty was
himself a Gazetted Officer. This clearly proves that the
compliance of Section 50 of the NDPS Act was duly made before
conducting search of the appellants as well as the search of the bag
and thus there is mandatory compliance of Section 50 of the NDPS
Act by the raiding officer before conducting search of the
appellant.
13. The testimony of the raiding party members has also been
duly corroborated by report (Exh.PW 5/B) prepared by PW 5 I.C.
Warshnay. The report also bears the signature of this witness at
point 'X' which shows that when the sealed sample was opened
and examined, the same was found to be charas containing 18.8%
tetrahydrocannabinol. The report Exh.PW 5/B duly proves the
case of the prosecution that the recovered substance from the
appellant was a contraband i.e. charas.
14. The discussion made above shows that the testimony made
by the raiding party members is trustworthy and their testimony
coupled with report Exh.5/B of the Chemical Examiner, CRCL
brings the case of prosecution within the four corners of the alleged
commission of offence which culminated into the conviction of the
appellants. This court is of the considered opinion that the
prosecution has successfully proven the guilt of the appellants.
15. So far as the contention of the appellants to the effect that
there was tampering with the sample inasmuch as according to the
version of the investigating officer PW 3 Mr.J.R. Kotty, the sample
taken by this witness was weighing 50 grams whereas the report of
the CFSL analysis reflected that the quantity of sample given to
them was weighing 61 grams, is concerned in this regard perusal of
statement of PW 5 Mr.I.C. Varshney would establish that the
sample weighed by him was done along with the plastic bag
containing smack and when the sample was weighed by the
investigating officer, the same was done without the plastic bag as
is clear from the statement of PW 3 J.R. Kotty. So this plea taken
by the appellants cannot be accepted. As a result, the facts and
circumstances mentioned above culminate into the guilt of the
accused persons within the four corners of the offence committed.
16. As a result, no error or illegality is found in the view taken
by the Trial Court and the judgment of conviction dated 7th August,
2000 is upheld.
The present appeal is dismissed.
(P.S.TEJI)
JUDGE
DECEMBER 22, 2016
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