Delhi High Court
Zohra vs State on 9 December, 1999
Equivalent citations: 2000IAD(DELHI)716, 83(2000)DLT177, 2000(52)DRJ287, 2000(68)ECC47
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
ORDER M.S.A. Siddiqui, J.
1. This appeal is directed against the judgment and order of conviction dated 16.3.1995 convicting the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') and sentencing her to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- or in default to suffer further rigorous imprisonment for one year.
2. Briefly stated, the prosecution case is that on 5.9.1991, a police party led by Inspector Rajeshwar Kumar (PW-7), upon information received, apprehended the appellant near the Tomb of a Muslim Saint outside Sanjay Amar Colony. She was given the option of being searched before a Gazetted Officer or a Magistrate. The appellant declined the offer. She was then searched in the presence of Dost Mohd (PW-4), Constable Jagvir Singh (PW-5), Constable Babu Lal (PW-6) and 560 grams of charas was seized from her rexine bag vide Seizure Memo (Ex.PW-2/C). The appellant was charged with an offence punishable under Section 20 of the Act and tried.
3. The appellant abjured her guilt and alleged that a false case has been foisted on her. The learned Addl. Sessions Judge, on an assessment of the evidence adduced by the prosecution, accepted the prosecution case and convicted and sentenced the appellant as indicated above.
4. The evidence of the prosecution pertaining to the recovery of the contraband revolves around the evidence of Dost Mohd. (PW-4), Constable Jagvir Singh (PW-5), Constable Babu Lal (PW-6) and Inspector Rajeshwar Kumar (PW-7). Inspector Rajeshwar Kumar (PW-7) testified that on 5th September, 1991 at about 2 P.M. he received a secret information that a lady having charas in her possession would be coming from the side of Yamuna Pushta. The information was reduced into writing in the daily diary (Ex. PW-2/A) and a raiding party was organized. According to him, at about 2.50 P.M. the appellant was spotted near the Tomb of a Muslim Saint outside Sanjay Amar Colony and was apprehended on the spot. She was given the option (Ex. PW-2/B) of being searched before a Gazetted Officer or a Magistrate. The appellant declined the offer. Thereafter, a lady constable took search of the appellant and recovered from her rexine bag the charas weighing 560 grams which was seized vide Seizure Memo (Ex. PW-2/C). A representative sample was drawn from the seized contraband. The sample as well as the remaining Charas were converted into separate parcels and they were duly sealed on the spot. The CFSL form was duly filled up and the sealed parcels along with the CFSL form were handed over to the SHO Police Station Kotwali for being deposited in the Malkhana. His evidence further shows that the rukka (Ex. PW-7/A) was prepared on the spot and it was sent to the Police Station on the basis of which the FIR (Ex. PW-7/B) was registered at the Police Station. Prosecution witnesses Dost Mohd (PW-4), Constable Jagvir Singh (PW-5) and Constable Babu Lal (PW-6) have supported the said statement of Inspector Rajeshwar Kumar (PW-7). It is significant to mention that the lady constable, who took search of the appellant was not produced in the witness box. The FIR (Ex. PW-7/B) shows that it was registered at the Police Station at 4.30 P.M. Surprisingly, the secret information (Ex. PW-2/A), the notice under Section 50 of the Act (Ex. PW-2/B), the seizure memo (Ex. PW-2/C), the personal search memo (Ex. PW-2/E) and the report under Section 57 of the Act (Ex. PW-2/D) bear number of the FIR (Ex.PW-7/B). The number of the FIR (Ex.PW-7/B) on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these aforesaid documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstances number of the FIR (Ex. PW-7/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This circumstances gives rise to two inferences that the FIR (Ex. PW.7/B) was recorded prior to the alleged recovery of the alleged contraband and or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the varacity of the prosecution version and creates a good deal of doubt about the recovery of the contraband in the manner alleged by the prosecution.
5. There is yet another staggering circumstances against the prosecution which has shaken the foundation of the prosecution case to an irreparable extent. Inspector Rajeshwar Kumar (PW-7) testified that after completing the procedure of the alleged search and seizure, he had handed over the sealed property along with the CFSL form for being deposited in the Malkhana. For the reasons best known to the rosecution, SHO Ranbir Singh of Police Station Kotwali has not been produced in the witness box. However, Head Constable Satpal (PW-8) testified that on 5.9.1991, SHO Ranbir Singh had deposited two sealed parcels and the CFSL form in the Malkhana vide entry in the Malkhana register (Ex. PW-8/A). Surprisingly, there is no mention in the Malkhana Register (Ex. PW-8/A) that either the CFSL form has been deposited or the same has been sent to the CFSL Chandigarh along with the sampled contraband. Even the report of the Chemical Examiner (EX. PW-3/A) is conspicuous by the absence of receipt of any CFSL form along with sealed packets. It was incumbent upon the prosecution to prove that not only the seized contraband was duly sealed and duly deposited in the Police Malkhana untempered but it was also necessary to prove that the sampled contraband which had been sealed on the spot remained intact till it reached the office of the CFSL. Further it was necessary to prove that the CFSL form containing the specimen seals which was duly filled at the spot at the time of taking of the sample also remained intact till it reached the office of the CFSL. In the instant case there is not an iota of evidence to show as to where CFSL form containing the specimen seals had remained till the sampled contraband was examined by the Chemical Examiner. Thus, the vital link between the contraband seized and the report of the Chemical Examiner (Ex. PW-3/A) was missing in the case. There is absolutely no link between the seizure with all the safeguards against tempering of the contraband articles till the sample was sent for Chemical analysis. Needless to add that the provisions of the Act are so stringent that it cast a duty on the prosecution to rule out any possibility of tempering with the sample, and false implication of the accused. It must be borne in mind that severer the punishment, the greater care has to be taken to see all the safeguards provided in a Statute are scrupulously followed. The Addl. Sessions Judge did not take notice of the aforesaid infirmities in the prosecution case and unjustifiably accepted the prosecution evidence. Consequently, the impugned order and sentence cannot be sustained in law.
6. In the result, the appeal is allowed and the impugned order of conviction and sentence is set aside and the appellant is acquitted of the ffence punishable under Section 20 of the Act. The appellant is in custody. She shall be set at liberty immediately if not wanted in any other case. Fine, if paid, shall be refunded to the appellant.