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2016 (3) TMI 769 - DELHI HIGH COURT

2016 (3) TMI 769 - DELHI HIGH COURT - TMI - Seeking modification of sentence order - Recovery of charas - Non-joining of independent witnesses - ASI Bijender Singh at the time of raid asked 4-5 passersby to join the raiding party but none agreed and went away after giving their reasonable excuses - Held that:- the case of the prosecution cannot be thrown away simply because no public witness has been joined at the time of recovery of Charas. This view finds support from the observation made by S .....

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e officer which is available to any other official witness. There is no presumption that police officials are liars. The effect of non-joining of independent witness is only that the court has to view the submission of the police or other witnesses with caution and circumspection and the veracity of the same has to be decided before placing reliance upon them for arriving at any conclusion regarding the guilt of the accused. In this case, efforts were made by the police officials to join indepen .....

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ce in any building, conveyance or any enclosed place and when seizure has taken place at a public place. If a search is made in a public place, the officer taking the search is not required to comply with sub-Section (1) and (2) of Section 42 of the Act. Therefore, the provisions of Section 42 of the Act were not legally required to be complied with referred inDirectorate of Revenue and Anr. vs. Mohd. Nisar Holia [2007 (12) TMI 413 - SUPREME COURT OF INDIA], State, NCT of Delhi vs. Malvinder Sin .....

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ing the information to ACP at 1.30 pm. Under the circumstances, it was rightly observed by learned Special Judge that despite the fact that the provisions of Section 42 of NDPS Act were not legally required to be complied within this case but there is substantial compliance of the same.

Seeking modification of sentence order - Recovery of charas - Competency of ASI Bijender Singh to carry out search being an Assistant sub-inspector - Held taht:- as per single bench judgment of this co .....

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hat:- pullandas of the samples as well as remaining case property were sealed at the spot itself and seal of BS was affixed thereon. Thereafter, Head Constable Sanjeev Kumar took the sealed pullandas alongwith FSL form and copy of the seizure memo and handed over the same to SHO who affixed his seals of RK on the parcels as well as form FSL. All the sealed pullandas alongwith documents were deposited by Lallu Ram in the Malkhana vide entry No.1881 of Register No.19. Lallu Ram has specifically de .....

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ny stage. Therefore, mere delay in sending the samples to FSL does not cast any dent on prosecution case.

Seeking modification of sentence order - Recovery of charas - Case property deposited in the night but submitted the same in the next morning hours - Held that:- as per storeroom register, the case property was deposited on 14.07.2010 at 11.55 am. This submission, which initially seemed to be attractive, was dispelled by learned Public Prosecutor for the State by submitting that t .....

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50 of the NDPS Act - Original notice under Section 50 of the Act does not bear signatures of the accused - Held that:- it has come in evidence that before taking search of the accused he was apprised of the legal right to be searched before a Magistrate or a Gazetted Officer and thereupon a notice under Section 50 NDPS Act Ex.P5 was duly served upon him. Mere fact that this notice does not bear his signatures does not raise any suspicion in regard to serving of this notice because the carbon co .....

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wo samples were taken. That being so, even if only one parcel is sent to the FSL and as stated by learned Public Prosecutor for the State that second sample was taken as a precautionary measure that if for some reason the FSL require another sample, the same could have been sent to FSL, deserves credence.

Therefore, the appellant has been convicted and sentenced to the minimum sentence period under the Act and the impugned order is not to be interfered with. - Decided against the app .....

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/10 under Section 20 NDPS Act, Police Station Hauz Khas convicting the appellant under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act ) and sentencing him to undergo rigorous imprisonment for 10 years and a fine of ₹ 1 lac in default, to suffer further simple imprisonment for a period of six months. Benefit of Section 428 Cr.P.C was also given to him. 2. Prosecution case, in nutshell, is that on 14.07.2010 at about 3.45 pm a secret infor .....

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tion, informed ACP Mehar Singh (PW-10) telephonically. DD No.20A Ex.PW- 5/A was recorded by ASI Bijender Singh in this regard and the same was sent to the ACP through the SHO who directed him to proceed further in the matter. A raiding party consisting of police officials reached the spot at about 5.00 pm. Some passersby were asked to join the raiding party but none agreed. At about 8.15 pm, accused came from the side of AIIMS hospital and was going towards South Extension Part-II by holding one .....

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declined to be searched before the aforesaid officers or to take search of the police party. Again, some public persons were asked to join the proceedings but none agreed. Contents of the rexine bag were checked. It was found to contain one old cloth bag which was found to contain one white polythene bag containing 36 square tikkiyas giving foul smell which on weighing came to 3.5 Kg. From each of the tikkiyas some substance was taken and two samples of 50 gms each were taken out and kept in se .....

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orm FSL and carbon copy of seizure memo for entrusting the same to the SHO. The pullandas and the documents were handed over to the SHO who in turn affixed his own seal of RK and thereafter deposited the same in Malkhana. FIR was registered and further investigation was carried out by SI Narender Kumar (PW-6). He sent the information/report under Section 57 of NDPS Act (Ex.PW-6/C) to the senior officers. Sample pullandas were sent to FSL. The appellant was charged for offence under Section 20(b) .....

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e appellant was apprehended at 8.30 pm. There was more than sufficient time available with the police officials to join independent witnesses, more particularly, when he was apprehended from a busy area but no independent witness was joined in the proceedings; (ii) As per the prosecution case, the secret information was received at 3.45 pm, accused was apprehended at 8.30 pm and only thereafter recovery is alleged to have been effected. However, as per testimony of PW-3, Head Constable Afsar Pas .....

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ity of tampering with the case property cannot be ruled out. Moreover, while according to the recovery witnesses, two samples of 50 gms were taken out, however, only one parcel was sent to FSL. No explanation is forthcoming as to why the other parcel was not sent to FSL; (v) There is non-compliance of provisions of Section 50 of NDPS Act as the original notice under Section 50 of the Act does not bear signatures of the accused. Moreover, the reply is not in his handwriting although he signed the .....

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enefit of doubt. Accordingly, he be acquitted of the offence alleged against him. 5. Per contra, learned Public Prosecutor submitted; (i) Sincere efforts were made to join public persons pre and post apprehension of accused but none agreed to join, however, mere non-joining of the independent witnesses is no ground to discard the testimony of the police officials which is consistent and with whom no enmity is alleged by the appellant; (ii) As regards information received at the office of ACP at .....

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of NDPS Act. The original notice Ex.P5 was recovered from the personal search of accused. Copy of the notice bears an endorsement of the accused that it was received by him. Moreover, since the accused claimed to be illiterate, therefore, his reply was recorded by ASI Bijender Singh which was duly signed by him at point X on Ex.PW5/C; (vi) As regards taking out two parcels and sending one of them to FSL, it was submitted that the two samples were taken only for precautionary sake because if for .....

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oes not suffer from any infirmity calling for any interference. That being so, appeal is liable to be dismissed. 6. I have given my considerable thoughts to the respective submissions of learned counsels for the parties and have perused the record. 7. As regards the first limb of argument regarding non-joining of independent witnesses it has come in the testimony of PW-5 ASI Bijender Singh that after forming the raiding party when they left the police station and reached the spot, on the way nea .....

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these witnesses. The case of the prosecution cannot be thrown away simply because no public witness has been joined at the time of recovery of Charas. This view finds support from the observation made by Supreme Court in P.P.Beeran vs. State of Kerala 2001(9)SCC 571 where Supreme Court observed that the testimony of the police officials cannot be rejected on the ground that police official was the sole witness of the recovery of Ganja and the public witness who was examined, turned hostile. Supr .....

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tion. It is very hard these days to get association of public witnesses in criminal investigation. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with investigation is harassment of public witness that takes place in the courts. Normally a public witness should be .....

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e courts are; the counsel having urgent personal work, left the court; death of some near relatives etc; the counsel being busy in arguing other matter in other court or cross examining other witness in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police is faced with this handicap, the police cannot be blamed for not associating public witness. There is n .....

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much available to a police officer which is available to any other official witness. There is no presumption that police officials are liars. The effect of non-joining of independent witness is only that the court has to view the submission of the police or other witnesses with caution and circumspection and the veracity of the same has to be decided before placing reliance upon them for arriving at any conclusion regarding the guilt of the accused. Learned counsel for the appellant placed relia .....

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Therefore, non-joining of independent witnesses was considered to be an additional factor while acquitting the accused. Similar is the case of Mohd.Javed vs. State I (2000) CCR 402 where besides not joining any independent witness in the raiding party even the gunny bag from which the recovery was alleged to have been effected, was not produced nor mentioned in the search memo. Again, Gulam Mohd. vs. The State 1996 JCC 533 was a case where one independent witness was alleged to have been joined .....

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agreed to join the proceedings but that ipso facto is not a ground to discard the testimony of police officials who stood the test of cross-examination and nothing material could be elicited to discredit their testimony. Moreover, the accused is not alleging any animosity, ill will or grudge against any of the police officials. He is not even a resident of Delhi and had come from Himachal Pradesh, therefore, there was no plausible reason to plant such a heavy case property on the accused. 10. Be .....

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t including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, 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 Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in .....

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ny building, conveyance or enclosed place, may between sunrise and sunset, - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to belie .....

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s or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer, not below the rank of sub-inspector: Provided further that] if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunris .....

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nveyance or any enclosed place and when seizure has taken place at a public place. Section 43 of the Act contemplates seizure made in the public place. There is a distinction between Section 42 and Section 43 of the Act. If a search is made in a public place, the officer taking the search is not required to comply with sub-Section (1) and (2) of Section 42 of the Act. Reference in this regard can be made to Directorate of Revenue and Anr. vs. Mohd. Nisar Holia (2008) 2 SCC 370, State, NCT of Del .....

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concerned i.e., PW-2 Inspector Ramesh Kalsan. The same was also forwarded by him to ACP concerned Mr.Mehar Singh and it was duly received in the office of ACP vide entry no. 4073 of dak register dated 14.07.2010. Head Constable Afsar Pasha who was working as Reader to the ACP has proved the relevant entry Ex.PW3/C and deposed that the same was put up to ACP which was seen and endorsed by him. There is force in the submission of learned Public Prosecutor for the State that there seems to be a ty .....

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t legally required to be complied within this case but there is substantial compliance of the same. 13. As regards the doubts raised by learned counsel for the appellant regarding competency of ASI Bijender Singh who seized the contraband substance on the ground that a police officer below the rank of a sub Inspector is not competent to exercise the powers under NDPS Act, the same is devoid of merit. The matter came up for consideration before this Court in Kamal Thakur vs. The State (Delhi Admi .....

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rest without warrant or authorization. A single Judge of this Court referred to the following notification issued by the State Government: No.F.10(76)/85-Fin.(G) - in exercise of the powers conferred by sub-Section (1) of Section 42 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (61 of 1985) read with Government of India, Ministry of Home Affairs Notification No.S.O.818(E) dated the 8th November, 1985, the Administrator of the Union Territory of Delhi is pleased to empower all offi .....

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d in any building, conveyance or enclosed place within the Metropolitan Area of Delhi between sunrise and sunset, to:- (a) Enter into and search any such building, conveyance or place, (b) In case of resistance, break open any door and remove any obstacle to such entry, (c) Seize such drug or substance and all material used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the said Act and any document .....

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without affording opportunity for the concealment of evidence or facility for escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief, 1. Revenue Department. 2. Drugs Control Department, 3. Excise Department, and 4. Police Department. for holding that a Head Constable being superior in rank to Constable is competent to investigate the matter. In the instant case PW-5 Bijender Sing .....

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ered to be fatal keeping in view the fact that there was nothing on record to suggest or to infer that the sample pullandas were tampered in the Malkhana. Similarly, in Ahmad vs. State 2011 III AD (Crl.) (DHC) 293 delay of 59 days in sending samples was not considered to be fatal in the absence of any evidence or inference of tampering with the sample pullandas on the basis of record. In Mohan Lal (supra) again a plea was taken that the seized articles were not sent immediately for chemical exam .....

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, the seal put on that parcels was intact. Under the circumstances, the delay of 40 days in sending sample to FSL was considered to be immaterial and would not dent the prosecution case. 15. In the instant case, it has come in the testimony of PW-7 as well as PW-8 that pullandas of the samples as well as remaining case property were sealed by PW-5 at the spot itself and seal of BS was affixed thereon. Thereafter, PW-8 Head Constable Sanjeev Kumar took the sealed pullandas alongwith FSL form and .....

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eals affixed on the sample pullandas were found to be in intact condition and it tallied with the specimen seals as per the forwarding letter. Moreover, nothing has come on record from which it can be presumed that the sealed pullandas of the samples or the remaining case property were tampered with at any stage. 16. Heavy emphasis was laid by learned counsel for the appellant for submitting that as per storeroom register Ex.PW-4/A, the case property was deposited on 14.07.2010 at 11.55 am. This .....

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