Delhi High Court
Hori Lal vs State Of Nct Of Delhi on 10 March, 1995
Equivalent citations: 58(1995)DLT673, 1995(33)DRJ52, 1996 A I H C 4090, (1995) 33 DRJ 52 (1995) 22 CRILT 248, (1995) 22 CRILT 248
JUDGMENT Vijender Jain, J.
(1) This order will dispose of appeal filed by the appellant against the judgment and order of conviction and fine passed by learned Additional Sessions Judge dated 12.4.1994.
(2) MR.J.S.ATTRI, learned counsel for the appellant, has argued that there was material contradiction in the statements of prosecution evidence. Secondly provisions of Section 52 and 55 of the Narcotic Drugs Psychotropic Substances Act (in short "NDPS Act") were not followed. Thirdly the alleged independent witness was not brought in the witness box and the report of Cfsl is defective.
(3) Elaborating his submissions, the learned counsel for the appellant has argued that PW-7 has stated in his evidence that the accused was taken to Sant Nagar whereas PW-6 has stated that Shri Hori Lal, appellant, was brought to the Police Station. Another contradiction pointed out by the learned counsel for the appellant is that PW-4 has narrated that raiding party consisted of six Police officials and one public witness whereas PW-6 has stated that they were five Police officials. Another contradiction has been pointed out is in relation to the statements of PW-1 and PW-2 regarding deposit of seized contraband which according to PW-1 was at 2.45 A.M. and according to PW- 2 it was 2.45 P.M. I have gone through the statements of the witnesses, there is no contradiction much less material contradiction in the statements of witnesses either regarding the number of persons, who constituted the raiding party or about the accused being brought to the Police Station. With regard to the timing as stated by PW-2 to be 2.45 P.M. whereas PW-1 has stated time to be 2.45 A.M., from the totality of evidence brought on record, it is borne out that 2.45 A.M. has been inadvertently typed and it is on account of typing that this mistake has crept in. I do not see any infirmity with the finding of fact arriving at by the Trial Court keeping in view the deposition of all the witnesses of the prosecution. The next contention of the learned counsel for the appellant is that in terms of sub-Section (3) of Section 52 of the Ndps Act every person arrested and article seized under Sub-section (2) of Sections 41, 42, 43 and 44 of the Act shall be forwarded without unnecessary delay to Officer In-charge of the nearest Police Station. What Mr.Attri has contended, is that in this case the accused was not forwarded to the Officer In-charge of the Police Station and, therefore, there is non-compliance of Sub- section (3) of Section 52 of the Ndps Act. Learned counsel for the appellant has further contended that Section 55 of the Ndps Act pre-supposes that Sho should be present at the spot where in the present case he never visited the spot. In support of his arguments learned counsel for the appellant has cited Gurcharan Singh @ Channi & anr. v. State 1993 (2) Crimes 229 and Rajesh v. State 1989 (1) Delhi Lawyer 359, in which it was held |-
"I, therefore, find it to be a case where even the factum of Sho putting his own seal is rendered dubious, apart from the fact that it would have been inconsequential, even if he had done so, in view of the earlier finding that the provisions of Section 55 of the Act postulate entirely different requirements, to the effect that the Sho himself gets parcels prepared, and sealed, and puts his own seal in the first instance and invariably, and it is only incidental that when another officer is allowed to take the parcels to the police station, then he may also be allowed to put his seal in addition. It has been found as a fact that this procedure was given a total go by in this case, and that there was clear contravention of the mandatory provisions of section 55 of the Act, when the whole procedure has been subverted by the investigating officer, and he exceeded his authority as given to him by sections 43 and 52(3) of the Act."
(4) On the other hand, Ms.Mukta Gupta, learned counsel for the State, has argued that the accused was produced before the Sho on the first available opportunity. She has brought to my notice that Sho was not available at Police Station as he has gone to Gurgoan in connection with some information pertaining to some disclosure statement made by the accused himself and, therefore, she has argued that it cannot be said that the accused was not brought before the In-charge of the Police Station at the first opportunity. To controvert the arguments advanced by learned counsel for the appellant that Section 55 of the Act postulates the presence of Sho at the spot, she has cited Ram Khilawan V. State (Delhi Admn.) 1990 (2) Delhi Lawyer 146 in which the Court held |-
"THE learned counsel for the appellant has then contended that under Section 55 of the Ndps Act the sample of the case property ought to have been taken in presence of the Sho and as it was not done in the present case, the mandatory provision contained in Section 55 stands violated. I have construed the provisions of Section 55 in my judgment dated March 19, 1990, in Criminal Appeal No.12/89, David R. Hall v. State (Delhi Administration) and have held that Section 55 does not contemplate that sample cannot be taken by the Investigating Officer at the spot and I have held that if any sample is to be taken after the case property is deposited with the Sho then the same shall be taken in presence of the Sho and in that situation the sample has to be also sealed with the seal of the SHO. The interpretation put on Section 55 in the case of Choteylal v.State of Rajasthan, 1990 (1) Crimes 246, that the sample must be taken in presence of the Sho appears with respect not correct interpretation of Section 55."
(5) MS.GUPTA has also argued that by a plain reading of Section 42 of the Ndps Act the power of entry, search, seizure and arrest is given to an Officer who is superior in rank to a Peon, Sepoy or Constable. What the learned counsel has contended is that in view of the provisions contained in Sections 42, 52 and 55 of the Act, if harmoniously construed, it would be apparent that the intention of the Legislature was that every person so arrested and article seized shall be forwarded without delay before the Officer In-charge of the nearest Police Station and that being the situation it cannot be construed from the language of Section 55 of the Act that Section 55 requires the presence of Sho at the spot.
(6) I have given my careful consideration to the arguments advanced by learned counsel for both the parties on this ground. The intention of the Legislature is manifest from the plain language of Section 55 of the Act itself and I need not go to other Sections for the purpose. Section 55 of the Act is as follows |-
"POLICE to take charge of articles seized and delivered - An officer- in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer- in-charge of the police station."
(7) From above it is clear that after a person, who has been forwarded or goods which have been brought before the Officer In-charge pursuant to various provisions of foregoing Sections of the Act, the Sho shall take charge and keep in safe custody pending the orders of the Magistrate all articles seized under the Act which are delivered to him and shall allow any other Officer, if he would accompany him with such articles, to take the same to the Police Station to affix the seal to such articles. Therefore, what the Legislature intended is that in case the Sho is present at the spot then he will keep in his custody all articles seized till further orders of the Magistrate. If the Sho is not present and any other Officer who is deputed for this purpose then such articles may be taken to the Police Station for affixing the seal or to take samples and thereafter a seal of Sho i.e. Officer In-charge of the Police Station shall also be put on all such items. In any event of the matter in State of Punjab v. Balbir Singh 1994 Jcc 303 while analysing the provisions of Sections 52 and 57 of the Ndps Act the Supreme Court laid down as follows |-
"SECTION 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions also are there in the Cr.P.C. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two Sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore, it has to be shown that such non- compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution."
(8) From the above, it will be clear that if there is no strict compliance of any of the requirements as contained in Sections 52 and 57 of the Act that by itself will not render the acts done by the Officer null and void and at the most it may affect the probative value of the evidence regarding arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material in this regard. Though Supreme Court was not specifically dealing with Section 55 of the Act in State of Punjab v.Balbir Singh's case (supra) but taking into account the intent and content of the language of Section 55 of the Act, it cannot be said that requirements are higher than what has been postulated in Sections 52 and 57 of the Act by the Supreme Court. Same principle applies to Section 55 of the Act. In the case before me, keeping in view the law laid down in State of Punjab v. Balbir Singh's case (supra) and the evidence on record it cannot be said that the conviction is bad taking into consideration the totality of evidence against the appellant.
(9) The next argument of the learned counsel for the appellant was with regard to the non-production of independent witness into the witness box. Mr.Attri has argued that Section 100 of the Code of Criminal Procedure deals with searches, the inclusion of two independent witnesses into the search party is required. He has contended that even one public witness who was associated with the search was not brought and the non-production has not been explained as no bailable or non-bailable warrants were procured against the said witness and on this score the judgment of the Trial Court be set aside. In support of his contention he has cited Rattan Lal v. State 1987 (2) Crimes 29 wherein it was held that |-
"SEARCH and seizure under Section 43 of the Narcotic Drgus and Psychotropic Substances Act, 1985 must take place before a public witness and failure to involve such witness could render the proceedings invalid."
And also cited the cases of Rajiv Kumar v. State 1992 (2) Crimes 153 and Anoop Joshi v. State 1992 (2) Crimes 550.
(10) On the other hand, learned counsel for the State has repelled the contention of the appellant and has argued that in any of these judgments cited by the learned counsel for the appellant, Court came to the conclusion because of inconsistent statements made by the Police witnesses and it was found that public witness ought to have been associated with the search keeping in view the stringent penalties imposed by the Legislature. However, in the present case no inconsistency has been made by the official witnesses and keeping in view that there is no inconsistency, merely the absence of public witness will not vitiate the conviction of the appellant. In support of her arguments she has cited Sunil Kumar v. State , Mohd.Idris Khan v. State and Ashraf Ali v. State .
(11) After hearing the arguments advanced by learned counsel for both the parties on this ground, I am of the opinion that it is well-settled principle of law that the testimony of a witness is not to be disbelieved or discarded merely on the ground that he happens to be an official witness, but it is a well recognised rule of caution that Court should look for independent corroboration to the testimony of official witnesses in such cases. Of course, relevant considerations in this context are as to the time and opportunity available to the Police to associate such independent witness. I have gone through the cross- examination of the Police witnesses and find that no circumstances have been brought out which could throw doubt on the statement regarding the factum of recovery. I am afraid that I cannot be persuaded to agree to such broad proposition of law that in case no public witnesses are joined, the seizure effected has to be treated as doubtful. However, it will depend on the facts of each case where the recovery effected is genuine or doubtful keeping in view the evidence led in that case. As I have stated earlier, I do not find any reason to disbelief the evidence of the official witnesses which have been brought on record and has been discussed in detail by the Trial Court.
(12) The last argument of learned counsel for the appellant is regarding the report of Cfsl being defective. This argument has been discussed in detail by the Trial Court in view of the fact that on the Cfsl report the F.I.R. number is correct. Date mentioned as 6.5.1991 instead of 16.5.1991 is merely a typing error and due to an over-sight as has been rightly held by the Trial Court.
(13) In view of these findings, I do not find any merit in the appeal. The appeal is dismissed with no order as to costs.