Delhi High Court
Om Parkash @ Omi @ Fauzi vs State on 29 May, 1991
Equivalent citations: 1991CRILJ1980, 1991(3)CRIMES180, 44(1991)DLT555
JUDGMENT S.C. Jain, J.
(1) Facts giving rise to this appeal are that on 1.11.1987 at 4.45 p.m., a secret information received by Si Laxaminarain Rao, when he was on patrol duty along with other police officials near Mahipalpur Chowk that one Om Parkash @ Omi @ Fauzi resident of village Bijwasan who was dealing in sale of charas/opium would go to Bijwasan from national highway along with charas. On receipt of this information, Shri Laxami Narain Rao requested some persons from public to join the raiding party but they. refused. As the time was short, a raiding party consisting of police officials was organized and the party proceeded towards national highway near Mahipalpur crossing. Nakabandi was arranged there. At 5.10 p.m. on the pointing of the informer, Om Parkash @ Omi (a) Fauzi was apprehended. He was having a bag in his right hand. The secret information was disclosed to him and it was told to him that they would take his search and that if he so wanted the search could be taken in the presence of a gazetted officer but on his refusal, he was searched by Shri Laxami Narain Rao in the presence of other members of the raiding party. From the bag (Ex. P 1) which the appellant was carrying with him, two polythene packets and three small size money papers containing charas were recovered. From one packet 21 balls of charas and from the other 16 balls of charas and from money papers three rectangular shape bars of charas were recovered. On weighment, 21 balls were found to be 3 Kg and 16 balls were found to be 2 Kg and the 3 rectangular bars were found to be 1 Kg and 500 grams. Thus in all 6 Kg 500 grams of charas was recovered from the possession of Om Parkash @ Omi @ Fauzi. 20 grams each was taken as sample from the recovered charas which were made in five samples as samples No. 1, 2, 3, 4 and 5. These five samples were sealed in one parcel with the seal of 'BS' and three parcels were prepared of the remaining charas and which was also sealed with the seal of 'BS'. From of Cfsl was filled in on the spot and the specimen seal of Bs was also affixed thereon. On the basis of Ruka sent from the site, Fir was registered. The samples, the remaining charas duly sealed with the seal of Bs and the Cfsl form were produced before Shri Jai Bhagwan Malik, Sho P.S. Mehrauli, who also affixed his seal of 'JBM' on all these parcels and also affixed his specimen seal on the Cfsl form. All these parcels duly sealed with the seal of Bs and Jbm were deposited in the Malkhana of Ps Mehrauli. During investigation, the sample parcels duly sealed with the seals of Bs and Jbm were sent to Cfsl for Chemical test. From the report of Cfsl (Ex. Public Witness 9/ C) it was found that samples S 1 to S 5 gave positive test for charas.
(2) During investigation, it also transpired that one Sher Singh @ Shera was also involved in that business of sale of charas/opium. He was also arrested and challaned along with this appellant for offences punishable under Sections 20 and 29 of the Ndps Act.
(3) The trial Court acquitted Sher Singh @ Shera of the charge levelled against him. However, the appellant was found guilty for an offence punishable under Section 20 Part Ii of the Ndps Act for having in his possession 6 Kg 500 grams of charas in contravention of Section 8 of the Ndps Act and he was convicted for the said offence and sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 1 lakh and in default of payment of fine to further undergo rigorous imprisonment for one year for the said offence by the Addl Sessions Judge Delhi by his judgment and order dated 8.8.89 and 10.8.89.
(4) Aggrieved, the appellant has filed this appeal.
(5) Mr. D.R. Sethi, learned counsel for the appellant, submitted that the provisions of Ndps Act being mandatory have to be strictly construed especially in view of the minimum sentence of imprisonment and fine prescribed under the Act leaving no discretion to the trial Court to impose a lesser sentence of imprisonment or fine in any case whatsoever, irrespective of the quantum of recovery. According to the learned counsel, there has been no compliance of the mandatory provisions of Sections 42(2), 50 and 55 of the Act resulting in grave miscarriage of justice in such a serious case.
(6) Learned counsel further submitted that the police had admittedly not reduced the secret information into writing with the result that they have contemptuously defied the provisions of Section 42(2) of the Act. Reliance has been placed on various decisions of this Court, namely, Raju Parshad Gupta v. State, 1990 (2) Delhi Lawyer 138, Santok Singh v. State, 1990 (1) Chandigarh Crl Cases 598; Ram Khilavan v. State, 1990 (1) Chandigarh Cri Cases 570 in support of his contention that non compliance of mandatory provisions of the Act vitiates the investigation.
(7) Section 42(1) "gives power of entry, search, seizure and arrest without warrant or authorisation to any officer (being an officer superior in rank to peon, sepoy or constable) of the Department of Central Excise, narcotics, customs, revenue intelligence or any other department of the Central Govt. or of the Border Security force as is empowered in this behalf by the general or special order by the Central Govt. or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State govt., as is empowered in this behalf by general or special order of the State Govt, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug. or psychotropic substance, in respect of which an offence punishable under Chapter Iv has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset..."
(8) Section 42(2) provides that "where an officer takes down any information in writing under sub Section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior."
(9) In this case search has been carried out at a public place and not in any building, conveyance or enclosed place. The case of the appellant is not covered under this Section. Besides this, a perusal of Section 42(2) reveals that it is not incumbent upon an officer to reduced into writing the secret information. It is only when the secret information is reduced into writing then it is required to be sent to the official superior. Bahri, J. in Santok Singh v. State 1990 (1) Chandigarh Crl Cases 598 has laid down that non-compliance of mandatory provisions of Section 42 is not material in every case. It will depend where non-compliance was deliberate or due to some valid reason. In this case search was made at a public place. Secret information was not reduced into writing and therefore, the question of sending a copy to his official superior could not have arisen. The decisions relied upon by the learned counsel for the appellant are not helpful to him in the circumstances of the case. Every case has to 'be judged on its own facts on merits. The trial Court has correctly held that the fact that secret information was not recorded does not adversely affect the case of the prosecution in any manner.
(10) Regarding non compliance of the provision of Section 50 of the Act, learned counsel for the appellant submitted that no efforts were made by the Investigating Officer for conducting search of the appellant in the presence of a gazetted officer or a magistrate as provided under the Act. According to the learned counsel the assertion of the prosecution that an offer was made to the appellant to get himself searched before a gazetted officer but he declined is false. The statement of the appellant declining the offer is inadmissible in evidence. According to the learned counsel this is a fine method adopted by the police in every case to circumvent the provision of Section 50 of the Act. This procedure is patently unfair and consequently violates the Article 21 of the Constitution of India.
(11) Section 50 of the Ndps Act reads as under : "(1).When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, be shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-Section (1). (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if be sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female."
A perusal of this Section reveals that if a person has to be searched for contraband under the Ndps Act, he has to make a requisition or demand on the searching officer that he should be first taken before a gazetted officer or a magistrate. If this demand is made it should be complied with and search has to be deferred till he is brought before a gazetted officer or a magistrate However, it is obligatory on the part of the officer intending to search, to inform the person to be searched of his right to be searched in the presence of a gazetted officer or a magistrate. Failure to do so can be construed as a prejudice to the accused which may in the circumstances warrant his acquittal in respect of the offence charged. In order to find out whether compliance of Section 50 has been made or not, it has to be seen whether the accused was apprised by the searching officer of his right to make a choice to be taken before a gazetted officer or a magistrate as he is to be searched for having contraband in his possession. If the accused is not made aware of his right before his search, it can be said that prejudice has been caused to The accused warranting his acquittal for non-compliance of Section 50 of the Ndps Act.
(12) In this case, Si Laxami Narain Rao Investigating Officer has deposed on oath that before conducting the search of the accused be was given an Offer that in case he wanted to be searched before a gazetted officer or a magistrate, this can be done but the accused declined that offer. This version given by the I.O. has been corrobarate, by other witnesses examined by the prosecution in this case. This version also finds mentioned in the Rukka Ex. Public Witness 7/A which was sent to the police station for registration of the case. Learned counsel for the appellant argued that there are serious contradictions in the statements of the prosecution witnesses. No person from the public has come forward to depose in this regard. According to the learned counsel persons from public were available but they were not intentionally joined in raiding party and it is very unsafe to rely upon the testimony of the public officials.
(13) The factum of non-joining public witnesses in the raiding party has been duly explained by the prosecution by giving satisfactory explanation in this regard. Non-joining of persons from public in the present circumstances of the case is not fatal to the case. However, keeping in view the stringent punishment provided in the Act, in the interest of justice, it is incumbent upon the Court to ensure that before conviction is recorded no element of doubt creeps in and therefore, it has to be seen as to whether the statements of police officials can be relied upon and are sufficient for conviction of the appellant for this offence.
(14) Minor contradictions in the statements of witnesses who have been examined after a considerable time after the incident is not sufficient. to discard the statements of these witnesses who have not been alleged to be inimical to the appellant. Venkatarama Ayyar, J. of the Supreme Court in Aher Raja Khima v. State of Saurashtra, :- "THE presumption that a person acts honestly applies so much in favor of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefore. Such an attitude can do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration."
(15) It is settled principle of law that while appreciating the evidence of a witness approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences turn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witnesses, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(16) Keeping in view this proposition of law regarding appreciation of evidence, I find that the trial Court has correctly appreciated the evidence led by the prosecution and there are no such contradictions in their statements which go to the root of the matter. The statement of all the witnesses including the statement of the Investigating Officer are corroborative on the point of apprehension of the appellant, giving him an opportunity of being searched before a gazetted officer, recovery of charas weighing 6.5 kg. taking out samples of 20 grams each, sealing of samples as well as the remaining charas, filling of Cfsl form, producing the case property, samples and Cpsl form before the Sho concerned, putting seal by the Sho on the sealed parcel of charas and Cfsl form, deposit of parcels of char as and samples in the Malkhana, etc. The contention of the learned counsel for the appellant that contradictions in the statements of the police officials make their statements unacceptable, is not tenable in the circumstances of the case. Regarding the non compliance of mandatory provisions of the Act it is true that the provisions of Ndps Act have to be strictly construed in view of the minimum sentence and fine leaving no discretion to the trial Court to impose lesser imprisonment or fine, bat in this case from the evidence, it is apparent that there is no violation of the mandatory provisions of the Ndps Act. The version given by the investigating Officer that the appellant was informed about the information against him and that he was told that if he wanted to be searched before a gazetted officer a gazetted officer could be arranged but the accused declined has been corroborated by the other prosecution witnesses namely Asi Devi Singh (Public Witness 4) Inspector O.P. Swamy (Public Witness 5) Constable Intzar Hussain (Public Witness 8). It is compliance of Section 50 of the Ndps Act. Section 42 does net come in the picture in this case as the appellant was apprehended and searched at a public place on receipt of the secret information a few minutes before the apprehension. Section 43 which is applicable has been duly complied with. From the statements of the witnesses it is apparent that compliance of the mandatory provisions of the Ndps Act has been made. Time was so short when the secret information was received that the raiding party was organized in a hurry. Even then the I.O. made efforts to associate a public witness in the raiding party, but none was ready and there was no option but to organise a raiding party of police officials and there is no reason to discredit the testimony of police officials when they have no animosity against the appellant.
(17) The learned Addl Sessions Judge has correctly appreciate the facts and law while convicting the appellant under Section 20 of Ndps Act and I confirm his findings.
(18) On the point of sentence, the minimum sentence provided for this offence under the Ndps Act is ten years rigorous imprisonment and a fine of Rs. I lakh which may extend to 20 years rigorous imprisonment and a fine of Rs. 2 lakh. Keeping in view the quantum of recovery of charas which is 6.5 Kg and other circumstances explained, I am of the view that the sentence awarded by the learned Addl Sessions Judge is not disproportionate to the offence committed by the appellant. I find no irregularity and infirmity in the judgment and order passed by the learned Addl Sessions Judge and I confirm the same. Appeal is dismissed.