Delhi High Court
Kailash Singh vs State (Delhi Administration) on 19 December, 1988
Equivalent citations: 37(1989)DLT145
JUDGMENT P.K. Babri, J.
(1) The appellant, who has been convicted for an offence punishable under Section 21 of Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act') vide judgment dated March 18, 1987 and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. l,00,000.00 (one lakh) vide subsequent order of the same date by an Additional Sessions Judge, Delhi, has filed this appeal from jail. The appellant was not in a position to engage any counsel and thus, Ms. Pinki Anand, Advocate, was appointed as amices Curiae to argue the case on behalf of the appellant.
(2) The appeal was apparently barred by limitation but vide order dated August 31, 1987, Malik Sharief-Ud-Din, J. has condoned the delay.
(3) The prosecution case, in brief, is that on February 14, 1986, at about 3.30 P.M. at Bus Stand, East Patel Nagar. PW4 Inspector Satendra Nath Along with Asi Umed Singh and Head Constables Radhey Sham and Attar Singh, had apprehended the appellant who was suspected of being in possession of smack. His personal search was taken and 300 gms of smack heroin was recovered from the appellant's trouseis' right side pocket. A representative sample was taken and the sample as well as the remaining heroin were converted into sealed parcels and they were sealed with the seals of the Investigating Officer as well as of the S.H.O. The seizure memo Ex PW3/A was prepared and then Rukka Ex. PW1 A was sent, on the basis of which a case registered. The parcel containing the remaining heroin weighing 290 gms was exhibited as Pi but at the time the case property was brought in the trial Court it was found that it did not bear any seals. The sample was sent for analysis to the Central Forensic Science Laboratory and the report of the Cfsl Ex. Pa was received showing that the sample gave positive test for heroin. It was given out in the evidence of the prosecution witnesses that efforts were made to join some public witnesses but none came forward. The prosecution story was sought to be proved through the statements of Asi Umed Singh (Public Witness 3), Inspector Satendra Nath (Public Witness 4) and Head Constable Attar Singh (Public Witness 5). Others are formal witnesses. The learned Additional Sessions Judge after believing the statements of the prosecution witnesses has found the appellant guilty of the offence.
(4) The learned counsel for the appellant has, at the outset, pointed out that the mandatory provisions contained in Section 50 of the Ndps Act had not been complied with inasmuch as no option was given to the appellant that his search may be taken in presence of gazetted officer/ magistrate. I have gone through the Fir of the case as well as the statements of the aforesaid witnesses and find that in this case no offer was made to the appellant that he could be brought before any gazetted officer or magistrate for taking his personal search. A salutary provision has been made in this Act keeping in view the heavy punishment which is liable to be imposed in case a person is found guilty of particular offences under Ndps Act. So, it is rather incumbent on the police parties to see that the salutary provisions contained in Sections 42 to 55 of the Ndps Act are complied with. These provisions have been made so as to ensure fair investigation of the cases being brought under this Act. It is true that if from the evidence on the record one can come to the conclusion without any doubt that the recovery effected from a particular accused is genuine then may be in some cases it can be said that non-compliance of one or other provisions preceding the recovery would not render such recovery invalid but where no reasons are given for not complying with the requisite provisions preceding the recovery then lingering doubt does arise regarding the genuineness of the recovery. In this case, particularly it has come out that the police had not bothered even to preserve the case property in a proper manner because the parcel containing the heroin, allegedly recovered from the appellant, when brought before the trial Court was found to have no seals. So, possibility of some tampering having been done in the Malkhana with regard to the case property cannot be completely overruled. After all if the case property had been kept intact under proper seals the appellant, if he wanted to challenge the report of the Cfsl with regard to the sample, could have prayed to the trial Court for taking another sample from the remaining case property for being analysed. So the prosecution case, thus. in my opinion, suffers from these vital deficiencies and it would not be safe to convict the appellant of the serious offence allegedly committed by him under Section 21 of the Ndps Act. He deserves to be given a benefit of doudt.
(5) I allow the appeal, set aside the conviction and sentences of the appellant and acquit him.