Delhi High Court
Bennehard J. Framous @ Ortege Francis vs State on 30 April, 1992
Equivalent citations: 1992CRILJ4009, 1992(2)CRIMES788, 48(1992)DLT370
JUDGMENT P.K. Bahri, J.
(1) The appellant Bennehard J. Framous @ Ortege Francis, a French national, who had come to India as a tourist, has been convicted vide judgment dated April 26, 1989, of an Additional Sessions Judge, New Delhi, for an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Ndps Act') and vide order of the even date has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. l,00,000.00 and in default of payment of fine to undergo further rigorous imprisonment for six months. He has filed this appeal challenging his conviction and sentence.
(2) Elaborate arguments have been advanced by Mr. D.N. Goburdhan, Advocate, on behalf of the appellant and Shri R.N. Kapur, Advocate, on behalf of the State.
(3) Facts of the case, in brief, are that during the intervening night of November 8 and November 9, 1988, the appellant was apprehended by Ms. Sonia, an Italian, who was leaving Along with a group for Frankfurt in Lufthansa Flight which was to depart at about 3.15 A.M. while the appellant was attempting to steal two hand bags belonging to one of the members of the said group. Si Munshi Ram, who was on duty in the Departure Hall of the Indira Gandhi International Airport, had arrived at the spot on hearing the commotion and Acp Zile Singh PW1, PW2 Rajesh Mahajan (a Travel Agent who was assisting the said group of foreigners in check-up proceedings), PW7 Si Subhash Chand Bakshi then posted in the Police Station of the Airport, had arrived at the spot. A case under Section 379 read with Section 511 of the Indian Penal Code (for short 'the IPC') was registered against the appellant vide Fir No. 387 of the said date.
(4) It is the case of the prosecution that while the appellant was being personally searched on being arrested in that case, he was found to be having a black pouch strung across his neck checking of which revealed that it contained one polythene small packet which contained brown sugar (smack) which on weighment was found to be 30 gms. A sample of 5 gms was separated and both the sample and the remaining drug were converted into sealed parcels and taken into possession vide seizure memo Ex. PW1/A which was duly signed by Rajesh Mahajan, a public witness and Acp Zile Singh. The seal after use was handed over to Shri Rajesh Mahajan. This search took place at about 2.45 A.M. Rukka Ex. PW5/A was prepared and was sent for registration at 2.55 A.M. The case property was handed over to Head Constable Satbir Singh PW8 who produced the same before the Sho V.P. Sharma and Sho put his seals on the case property and also on the Central Forensic Science Laboratory (for short 'the CFSL') Form and the same were deposited with the Malkhana Moharrar PW3 who made necessary entries in the Malkhana Register. The sample and the Cfsl Form were handed over to Constable Mohinder Singh PW6 who deposited the same intact with the Cfsl and after the sample was examined and a report was given by the CFSL. he brought back the remnants of the sample duly sealed with the seal of the Cfsl and deposited the same in the Malkhana. Report Ex. PW7/C was given by the Cfsl to the effect that the sample gave positive test for heroin.
(5) The prosecution case was sought to the proved through the statements of Pwi Acp Zile Singh, public witness PW2 Rajesh Mahajan and Investigating Officer PW7 Subhash Chand Bakshi, the other witnesses being formal in nature.
(6) The appellant in his examination under Section 313 of the Code of Criminal Procedure admitted the material facts of Ins being apprehended while he was attempting to take away two bags belonging to another passenger but he took the plea that at that time 'he was drunk and by mistake had taken those bags. He did not deny the suggestion put to him that he was apprehended by Sonia with the help of Rajesh Mahajan and Acp Zile Singh and Si Munshi Ram. He also admitted that lic was arrested and his personal search was taken and he admitted all other items recovered from his personal search. He also admitted that ACt ZiL Singh had disclosed his identity to him before he was searched. He admitted that a pouch was recovered from him but he denied that the said pouch contained any smack. He took the plea that in fact, smack was found in the two handbags which lic had lifted by mistake and he had been falsely implicated in this case. -
(7) At the outset it must be mentioned that no suggestion to witnesses of the prosecution in the cross-examination was given at any time that in fact that smack was recovered from the two bags which the appellant had lifted. The only suggestion given to Acp Zile Singh Pwi is that the appellant had been falsely implicated and nothing was recovered from him and similar suggestion was given to PW2 Rajesh Mahajan. However, to PW7 Subhash Chand Bakshi, Investigating Officer, suggestion given was that the smack was recovered from some other person and had been planted on the appellant.
(8) The substratum of the prosecution version, the manner in which the appellant was apprehended and arrested remains unchallenged. It is not the police who had apprehended the appellant at the first instance. It was Sonia, who was part of a group of foreigners who was leaving on that night, and Rajesh Mahajan PW2 who was the traveling Agent for the said foreign group and had come to the Airport for assisting the said foreign travellers, who had apprehended the appellant while he was attempting to steal the two handbags belonging to another member of the group. The police came into picture after Sonia and Rajesh Mahajan had caught hold of the appellant and recovered the handbags from him. Sonia' admittedly had made a complaint in writing on the basis of which the case was registered against the appellant and police officials had arrived at the spot including Acp Zile Singh, who was patrolling the area in routine at that time. Nothing.was suggested in crossexamination of all these witnesses as to why the appellant would have been falsely implicated in this case.
(9) It is true that a minor discrepancy has appeared in the statements of the witnesses with regard to the facts whether the two handbags belonging to the member of the group which appellant had attempted to steal were still there or not when Acp Zile Singh arrived Along with other police officials. Acp Zile Singh deposed that he did not see those bags whereas Rajesh Mahajan stated that those bags were still there with the member of the group to whom those belonged and that person was also available when the police arrived but Rajesh Mahajan has also stated that Sonia as well as members of the said group were in great hurry inasmuch as they were to catch the flight which was to leave at 3.15 A.M. and after making a written complaint Sonia with the group left the airport for catching the flight. There appears to be nothing abnormal in the statements of the witnesses with regard to these facts. After all nobody at that time expected that any contraband would be recovered from the personal search of the appellant. The police party as well as the public witness Rajesh Mahajan and Sonia were concentrating, on getting the appellant arrested, in a case of attempted theft.
(10) There is also discrepancy as to whether the personal search of appellant was carried out in presence of Sonia or not? I do not think such discrepancies go to the root of the case. Appellant admittedly was apprehended in a case of attempted theft and after that case' was registered and all other formalities had been completed, that appellant was arrested in that case and when his personal search was being taken in presence of Rajesh Mahajan and police officials including Acp, who is a gazetted officer, that appellant was found to be in possession of the contraband. There is no enmity even alleged between the public witness and the appellant. The public witness has categorically deposed that he had for the first time in his life become a witness in a police case. It was sheer matter of chance that he was present when the appellant was apprehended while committing another offence that the personal search of the appellant resulted in recovery of heroin and Rajesh Mahajan became witness to the said recovery.
(11) The learned Counsel for the appellant has vehemently argued that PW7, who had effected the recovery, should not have continued to investigate the case and investigation of the case ought to have been entrusted to some other officer and he has placed reliance for this proposition on Nathiya & Others v. The State of Rajasthan, 1 (1992) Ccr 133, wherein a Single Judge of Rajasthan High Court had expressed the view that normally the investigation should not be done by the officer who had effected the recovery, ft is not possible to lay down any such broad proposition of law that in no case investigation should be done by the officer who effects the recovery. It is to be emphasized that in a case like the present where recovery effected from the appellant is the only material evidence which needs to be collected, there arises no question of entrusting the investigation to any other officer in such circumstances. After all the investigation is over the moment the recovery is effected and the statements of the witnesses are recorded who are present at the spot. In the present case Acp Zile Singh himself was present at the time of the recovery and I do not think any prejudice has been caused to the appellant with the officer, who had recovered, the heroin from the appellant, had carried out the further investigation in the case.
(12) The learned Counsel for the appellant has further argued that the sample ought to have been taken in presence of the Sho and he drew my attention to Section 55 of the Ndps Act. Section 55 was interpreted by mein Ram Khilawan v. Slate (Delhi Admn.), 1990 (1) Cc Cases 570 and also in David R, Hall v. State (Delhi Admn.) 1990, (1) Cc Cases 604. In these judgments I have held that Section 55 does not prohibit taking of sample by the Investigating Officer at the spot and only requirement contemplated by Section 55 is that the case property should be presented to the Sho who should take custody of the same and put his seal on the said case property and deposit the same in the Malkhana. The purpose of incorporating such provisions in this Act is to ensure that no foul play takes place during the investigation of the cases under the Ndps Act which contemplates imposition of very severe punishments. Keeping in view the severity of punishments contemplated in the Ndps Act the Court expects higher standard of proof for proving the offences under the said Act. The legislature had also incorporated various salutary provisions in the said Act to ensure that no foul play takes place while investigating the cases under the said Act. A bare reading of Section 55 shows that if a sample is to be taken after the case property had been deposited with the officer-in-charge of the Police Station, then it must be taken in presence of the said officer-in-charge. The provisions do not prohibit taking of any sample by the Investigating Officer at the spot. Even otherwise any violation of the salutary provisions which have been incorporated in the Ndps Act would not be fatal to the prosecution case unless from the overall view of the evidence the Court comes to the conclusion that the prosecution case is suspect.
(13) The learned Counsel for the appellant has then argued that the appellant was apprehended at about 1.15 A.M. yet his personal search took place at 2.45 A.M. and there has been given no explanation for such delay. Counsel for the appellant forgets that the appellant was arrested while committing another offence and the proceedings were being taken by the police in respect of the said offence and thereafter the appellant was arrested and bids personal search was carried out. So, there is no unusual delay taking place in taking the personal search of the appellant in this case.
(14) The learned Counsel for the appellant has then argued that as per rukka the offence was discovered at 2.45 A.M. and the rukka was sent at 2.55 A.M. He has urged that within ten minutes the police could not have finished the proceedings and that would show that some foul play occurred in carrying out the search of the appellant and in preparing the documents. The contention is not tenable. After all the rukka is prepared after recovery is effected and sample is taken and case property is sealed and much time could not have been taken in carrying out such proceedings. No question has been put to the Investigating Officer to draw his attention to the time gap mentioned in the rukka regarding the time of the occurrence and departure of the rukka. If any question had been put to the Investigating Officer, possibly he would have come out with some plausible explanation.
(15) It has been then contended that sample had been sent for analysis belatedly. The recovery was effected on November 9, 1988, while the sample was sent to the Cfsl on January, 4, 1989. I do not think that this delay in sending the sample has thrown any doubt with regard to keeping the sample intact. Rajesh Mahajan has categorically deposed that seal after use was given to him by the Investigating Officer which he returned after about two months. So, the seal of the Investigating Officer remained in the safe hands of the public witness much after the sample was sent for analysis. The constable who took the sample and the Malkhana Moharrar who kept the case property had categorically stated that the case property remained intact throughout. There is no reason to doubt their statements on this aspect of the case. It has been then contention that there is no evidence led by the prosecution to show that any report was sent to the superior officer. The Sho PW4 who recorded the Fir had Stated that special reports were sent to the superior officers and his statement remained unchallenged. So, nothing turns in favor of the appellant on this point. A contention was also raised by the learned Counsel for the appellant that Sho in his testimony has not stated as to at what point of time the accused and the case property were produced before him. I do not think that it was necessary for the prosecution to have elicited these facts from the SHO. The appellant if wanted to make out any defense on this question he ought to have obtained these facts while cross-examining the SHO. The learned Counsel for the appellant has agued that before the search of the appellant took place the Investigating Officer had not given his own personal search and he has placed reliance on State of Billar v. Kapil Singh, . In the said case, search was to take place from a house of the accused. In this connection the Supreme Court said that - one of the formalities that has to be observed is that the search officer should give his personal search to the witnesses before entering the premises to be searched. I do not understand bow this requirement can be insisted upon when in a case like the present where the appellant was found to be having a pouch strung around his neck which he on being asked handed over to the Investigating Officer and which was opened in presence of the public witness and the contraband was recovered. There was not even remotest chance of police clandestinely planting anything in that pouch. It is only in those cases where there is a possibility of the police secretly planting the contraband on the suspect that it is required that before any search is taken the officer carrying out the search should give his own search to the witnesses. Such is not the case here.
(16) It was also contended by the learned Counsel for the appellant that there is no evidence to show that Cfsl form had been sent to the Cfsl Along with the sample. There is no merit in this contention. Entry from the Malkhana Register, copy Ex. PW7/A, clearly shows that Cfsl form was sent Along with the sample through Constable Mohinder Singh.
(17) Lastly, it was contended that no offer was given to the appellan before his search was taken that his search could be made in presence of gazetted officer or a Magistrate. Although in the present case Acp, who is gazetted officer, was present at the spot, so no question of giving any option to the appellant could arise. In the present case there was no prior information with the police that any drug was to be found in possession of the appellant so that an option could be given to him so that his search could be carried out in the presence of a gazetted officer or a police officer. The recovery of drug was made from the appellant in an unexpected manner. So was the case of David R. Hall (supra) and in that case also it was held that this requirement of giving option to the suspect before effecting the recovery could not have been resorted to in peculiar facts of the case when recovery of the drug had been effected unexpectedly.
(18) In view of the above discussion, I hold that the Additional Sessions Judge has in his well reasoned judgment rightly brought home the offence to the appellant beyond any reasonable doubts. I find no merit in this appeal which I, hereby, dismiss.