Delhi High Court
Mohd. Idris Khan vs State on 19 December, 1988
Equivalent citations: 37(1989)DLT327
JUDGMENT P.K. Bahri, J.
(1) This appeal has been filed from Jail against appellant's conviction for an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and sentence of rigorous imprisonment for a period of ten years and fine of Rs. 1,00,000 (one lakh) by Shri. R. L. Gupta, Additional Sessions Judge. Delhi, vide his orders dated August 12 & 14, 1987, respectively.
(2) On the face of it, the appeal is barred by time. The limitation prescribed for filing an appeal is admittedly 60 days but the appeal is filed belatedly by 27 days. There is no prayer made for condensation of delay. The appeal is, thus, liable to be dismissed as being time barred. However, I have also heard Ms. Avnish Ahlawat, Advocate, who acted as amices Curiae for the appellant and Ms. Usha Kumar for the State and have gone through the file and find that there is no merit also in the appeal.
(3) The prosecution case, in brief, is that on April 16, 1986. Pw 3 Inspector Ram Singh (then Sho, Hauz Kazi) had received a secret information at his office at about 4.15 P.M. that four persons were present at the Tonga Stand carrying charas. Without losing any time a raiding party was organized comprising of Si Raghubir Singh, Si Banwari Lal, Si Ashok Kumar, Asi Bashir Ahmed, Head Constable Krishan Pal, Mohd. Salim and six more constables and they reached the spot at 4.30 P.M. and on the pointing of secret informer the appellant and three more culprits were apprehended and each of them was stated to be carrying a bag/briefcase in their hands respectively. The appellant was found to be holding a bag in his right hand and before taking his search the Sho is stated to have requested certain public persons to join but none came forward and thereafter the appellant as well as the other three culprits were given an option that their search could be carried out in presence of any gazetted officer or magistrate after informing that a secret information was available with the police party that they were in possession of charas. All of them are stated to have declined to have their search carried out before any gazetted officer or magistrate. The bag in possession of the appellant was found to contain 12 packets wrapped in a khaki paper and each of the packet was found to contain charas weighing 1 kilogram each. The representative samples from each of the packets were obtained and were duly sealed with the seal of the Sho and the remaining charas was sealed separately with the seal of the said Inspector. Recovery memo. Ex. Public Witness 3/A was prepared. The case was registered on the basis of Rukka sent by Si Banwari Lal. The case property was duly deposited in Malkhana and thereafter duly sealed samples were taken by Public Witness 1 Constable Mitlesh Kumar and deposited at Cfsl intact on April 21, 1986. PW2 Head Constable Mohd. Salim, in charge of Malkhana, deposed about the case property remaining in Malkhana intact and sending of the samples through Constable Mitlesh Kumar and after the samples have been analysed the same were brought back duly sealed with the seal of Cfsl by Constable Mohinder Singh and deposited in Malkhana intact. He proved the entries from the Malkhana Register, copy of which is Ex. Public Witness 2/A. He categorically stated that as long as the case property remained in Malkhana no one tampered with the same. The report of the Cfsl Ex. Pa depicted that all these samples gave positive test for charas. It is also indicated that the samples deposited in Cfsl had the seals intact as per official specimen enclosed.
(4) The prosecution case on merits was supported by Public Witness 3 Inspector Ram Singh, Public Witness 4 Head Constable Vipti Ram, Public Witness 5 Head Constable Krishan Pal Singh and Public Witness 6 Si Banwari Lal, the Investigating Officer. The appellant in his statement under Section 313 Code of Criminal Procedure pleaded innocence claiming that he was sitting in Shalimar Hotel and the police lifted him from the said Hotel and he examined DW1 Dewan Chand, Manager of the said Hotel, to show that on April 15, 1986, at about 10.25 P.M. the appellant, Faruki and Gulam had stayed in the said Hotel and police had brought them to the Hotel and had checked their room No. 24 and nothing was recovered from that room.
(5) At the outset, the learned counsel for the appellant has vehemently argued that the prosecution having failed to examine any public witnesses should lead to an inference that recovery effected from the appellant is doubtful. She had particularly placed reliance on Section 100(4) of the Code of Criminal Procedure in support of her contention that before making any personal search of any culprit it is incumbent on the police to join two respectable persons of the locality. I do not find any merit in this contention inasmuch as the provisions of Section 100 of the Code of Criminal Procedure are inapplicable to the facts of the present case. These provisions become applicable if a search is to be made in respect of any place or premises and any person found around that place or premises. In the present case, it has come out in the statements of the Sho as well as other witnesses that efforts were made for joining the public witnesses but without success. The learned counsel for the appellant has argued that no particulars of such persons have been noted down by the police who had shown their inability to join the investigation. The raiding party was more concerned at that time to apprehend the four culprits who were said to be in possession of charas and it was not practicable that instead of doing that job the police party should have gone after the public witnesses who had declined to join the investigation.
(6) Counsel for the appellant has cited . In the cited case, in view of the peculiar facts appearing in that case the High Court found that non-joining of independent witness before carrying out the search and seizure amounted to unfair investigation. No such broad proposition of law has been laid down in this judgment that in case in 8 particular case no public witnesses are joined the seizure effected has to be treated as doubtful. It will depend on the facts of each case whether the recovery effected is genuine or doubtful keeping in view the evidence led in the case. I have gone through the cross-examination of all the police witnesses and find that no circumstances have been brought out which could throw any doubt on their statements regarding the factum of recovery of heavy quantity of charas from the appellant. Reference has been made to , where also keeping in view the facts of that case the High Court found that the recovery is doubtful as no independent witnesses have been joined. So was also the case reported as . The learned counsel for the appellant thereafter has contended that the mandatory provisions of Section 50 of the Ndps Act have not been complied with inasmuch as the appellant was not brought in presence of any gazetted officer or magistrate for taking his search. Section 50 only requires that in case a particular culprit desires that his search should be taken in presence of any gazetted officer/magistrate then the arrangements have to be made by the police for getting his search done before such authority but where the culprit on his own declines to have his search carried out before such authority, there is nothing illegal in police then taking the search without calling any gazetted officer or magistrate. In the present case, all the witnesses have categorically stated that such an option was given to the appellant which was declined. No suggestions in cross-examination have been given that the version of the police in this respect is doubtful or false.
(7) The learned counsel for the appellant then submitted that the provisions of Section 55 of the Ndps Act have not been complied with inasmuch as no seal has been affixed on the case property by the investigating Officer. A perusal of the provisions of Section 55 makes it clear that emphasis had been laid that the case property as well as sample must bear the seals of the SHO. When the Sho himself is present at the spot and recovery is made in his presence and the case property is sealed with his seal, I do not see any reason that the case property also should be sealed with the seal of Investigating Officer. I had an occasion to deal with this particular provision in , and I had held that Section 55 does not contemplate fixation of seal of Investigating Officer as well as of SHO. The requirement is well met if the sample as well as the case property are sealed with the seal of SHO.
(8) I, hence, find no merit in this appeal which I, hereby, dismiss.