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2007(5) Supreme 411
Supreme Court of India
(From Delhi High Court)
Dr. Arijit Pasayat & P.P. Naolekar, JJ.
State, NCT of Delhi — Petitioner
versus
Malvinder Singh — Respondent
Appeal (Crl.) 433 of 2002
Decided on : 21-06-2007
(2002)9 SCC 618; (2004)5 SCC 188 – Relied upon.
Facts of the case :
On 20th February, 1990 at about 7 a.m., 7.45 a.m. an scooter was spotted by the members of the raiding party. Malvinder Singh (accused) was plying the said scooter and accused Om Parkash @ Lalla @ Gupta was sitting on its pillion seat. Pran Nath, Sub Inspector acquainted the accused with the contents of the information and with the fact that if the accused so desired, they could be produced before an Officer (Gazetted) for conducting their search. The accused reeled off their refusal to the said proposal and made clean breast of the charge that they were having opium.
The search of Om Parkash accused resulted in recovery of opium weighing 800 gms. which had been wrapped in a newspaper and kept in between chest, shirt and sweater of Om Parkash. Malvinder accused produced the key of the scooter. He brought out the same from the lock of the head of the scooter. Opium weighing 700 gms., wrapped in green polythene paper was recovered from dicky of the above said scooter. Two samples weighing 50 grams each were separated from the above said opium weighing 800 grams and 700 grams. Both the samples and the remaining two parcels of the opium were separately packed and sealed with the seals bearing the initials of RKV belonging to Ramesh Kumar Vohra ASI and RCS belonging to the SHO. CFSL form was filled in and both the seals were affixed thereon. The seal of RKV was entrusted with Jeet Lal, public witness, but the SHO retained his seal with him. SHO carried the case property and CFSL form to the police station and deposited the same with the Moharar Malkhana.
Report of CFSL Ex. 7/B depicted the percentage of Morphine in the samples as 5.5 and 4.8. approximately. The Public Analyst came to the conclusion that the samples had given positive tests for opium. The accused were thus arrested and charged under Section 17 of the N.D.P.S. Act.
The trial court found the evidence to be cogent and credible and convicted both the accused persons. The High Court accepted the plea that the secret information received was not reduced into writing and was also not sent to the higher officer. In the absence of any evidence in this effect it was held that there was non compliance of the mandatory requirements of Section 42 of the Act. Accordingly the conviction was set aside and acquittal was directed.
Findings of the Court:
When the superior officer was informed and was a member of the raid party, section 42 had no application.
Result: Appeal allowed.
JUDGMENT
Dr. ARIJIT PASAYAT, J. —
1.Challenge in this appeal is to the judgment of a learned Single Judge of Delhi High Court directing acquittal of the respondent (hereinafter referred to as the ‘Accused’). Learned Session Judge, Delhi in Sessions Case No.698 of 1991 found the accused guilty of the offence punishable under Section 17 of the Narcotic Drugs and Psychotropic Substances Act,1995 (in short the ‘Act’) and sentenced him to undergo rigorous imprisonment for ten years with a fine of Rs.1,00,000/- with default stipulation.
2.Background facts in a nutshell are as follows:
“On 20th February, 1990 Pran Nath, Sub Inspector of Special staff, north District, was on patrolling duty along with Ramesh Kumar, Assistant Sub-Inspector, Puran Chand, Head Constable; Raghbir Singh, Head Constable; Ved Parkash Head Constable and other constables. At about 7 a.m., near the petrol pump at Mall Road situated within the bounds of Police Station, Timarpur, a police Informer gave information to Pran Nath, Sub Inspector of the accused’s possession of opium. Consequently, a raiding party was organized. Jeet Lal, public witness was also joined in the raiding party besides the above mentioned cops. Thereafter, the members of the raiding party lay waiting at the Ring Road crossing, Timarpur. At about 7.45 a.m. scooter No. DIA 819 was spotted by the members of the raiding party. It was observed that Malvinder Singh (accused) was plying the said scooter and accused Om Parkash @ Lalla @ Gupta was sitting on its pillion seat. At the instance of the informer the scooter was stopped. Pran Nath, Sub Inspector acquainted the accused with the contents of the information and with the fact that if the accused so desired, they could be produced before an Officer (Gazetted) for conducting their search. The accused reeled off their refusal to the said proposal and made clean breast of the charge that they were having opium. However, Pran Nath sent information to Ramesh Chand Saini, the then S.H.O. of Police Station Timarpur and H.M. Meena, A.C.P. and called them to the spot. After some time ACP Shri Meena and SHO Shri Saini arrived at the spot one after the other. Both of verified the facts on the spot. Thereafter, they directed the Investigating Officer to conduct the search. The search of Om Parkash accused resulted in recovery of opium weighing 800 gms. which had been wrapped in a newspaper and kept in between chest, shirt and sweater of Om Parkash. Malvinder accused produced the key of the scooter. He brought out the same from the lock of the head of the scooter. Opium weighing 700 gms., wrapped in green polythene paper was recovered from dicky of the above said scooter. Two samples weighing 50 grams each were separated from the above said opium weighing 800 grams and 700 grams. Both the samples and the remaining two parcels of the opium were separately packed and sealed with the seals bearing the initials of RKV belonging to Ramesh Kumar Vohra ASI and RCS belonging to the SHO. CFSL form was filled in and both the seals were affixed thereon. The seal of RKV was entrusted with Jeet Lal, public witness, but the SHO retained his seal with him. SHO carried the case property and CFSL form to the police station and deposited the same with the Moharar Malkhana. The case property recovered from the possession of Om Prakash was seized vide recovery memo Ex. PW 1/B, Malvinder’s case property, scooter, keys were seized vide recovery memo Ex. PW1/A. Kuldip Singh constable took the ruqqa Ex. PW 6/A to the police station and Kedar Nath Singh, Head Constable registered the instant case. Report of CFSL Ex. 7/B depicted the percentage of Morphine in the samples as 5.5 and 4.8. approximately. The Public Analyst came to the conclusion that the samples had given positive tests for opium. The accused were thus arrested and charged under Section 17 of the N.D.P.S. Act.”
3.After investigation, charge sheet was filed. Accused pleaded innocence. Appellant also pleaded that on account
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