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High Court Of Delhi
MOHAMMAD RAFFIQUE - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 216 of 1999
Decided On : 02/29/2000
Narcotic Drugs and Psychotropic Substances Act - Recovery of Contraband - Section 21 - Summary of Acts and Sections: The court discussed the provisions of Section 50 of the Act read along with sub-Section (4) of Section 100 Cr, P. C. which contemplates that search should, as far as practicable be made in the presence of two independent and respectable witnesses of the locality. The court highlighted the statutory desirability of having two or more independent and respectable witnesses during search and seizure, and emphasized the importance of following a reasonable, fair, and just procedure as envisaged by the statute scrupulously.
Fact of the Case:
The appellant was convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act based on the recovery of contraband from his possession. The appellant denied the charges, alleging a false case. The prosecution case revolved around the evidence of police officials and the compliance with procedural safeguards during the search and seizure operation.
Finding of the Court:
The court found that the prosecution failed to establish compliance with the procedural safeguards, including the absence of independent witnesses during the search and seizure operation. The court highlighted the infirmities in the prosecution case, including the absence of corroboration from independent sources and discrepancies in the evidence of the police officials.
Issues: The key issues revolved around the compliance with procedural safeguards during the search and seizure operation, the absence of independent witnesses, and the credibility of the evidence presented by the prosecution.
Ratio Decidendi: The court emphasized the statutory desirability of having two or more independent and respectable witnesses during search and seizure, and the importance of following a reasonable, fair, and just procedure as envisaged by the statute scrupulously. The court also highlighted the need for corroboration of the testimony of police officials from independent sources.
Final Decision: The appeal was allowed, and the appellant was acquitted of the offence charged under Section 21 of the Act. The impugned judgment, the order of conviction and sentence were set aside, and the appellant was to be set at liberty immediately.
( 1 ) THIS appeal is directed against the judgment and the order dated 20. 4. 99 passed by the Additional Sessions Judge, Delhi in Sessions Case No. 118/95 convicting the appellant under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short the act ) and sentencing him to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1 lakhs or in default to suffer further rigorous imprisonment for one year.
( 2 ) BRIEFLY stated, the prosecution case is that on 1st April, 1995 at 9. 45 A. M. a police party led by Sub Inspector Satpal (P. W. 6), upon information received, apprehended the appellant in the Gali Masjid Wali, Mohalla Shahganj Delhi. The appellant was given the option (Ex. Public Witness. 3/8) of being searched before a Gazetted Officer or a Magistrate. He declined the offer. Thereupon SHO P. L. Puri (P. W. 2), directed the Constable Jamil Ahmad (P. W. 4) to search the appellant. Pursuant to the said direction, Constable Jamil Ahmad (P. W. 4) searched the appellant and recovered one packet containing 5 gms. of heroin from right side pocket of his Kurta. The contraband was seized vide recovery memo (Ex. Public Witness. 2/a ). The appellant was charged with an offence punishable under Section 21 of the Act and tried.
( 3 ) THE appellant abjured his guilt and alleged that a false case has been foisted on him. He has examined Mohd. Nafeez (D. W. 1 ) and Mohd. Shabir (P. W. 2) in support of his defence. Learned Additional Sessions Judge, on an assessment of the evidence on record, accepted the prosecution case and convicted and sentenced the appellant as indicated above.
( 4 ) THE question for consideration is whether on 1st April, 1995 the contraband was recovered from the appellant s possession in accordance with the provisions of the Act. The prosecution case pertaining to recovery of the contraband revolves around the evidence of Inspector P. L. Puri (P. W. 2), Constable Sukhram Pal (P. W. 3) Constable Jamil Ahmad (P. W. 4) and Sub Inspector Satpal (P. W. 6 ). S. I. Satpal Singh (P. W. 6) deposed that on 1st April, 1995, while he was on petrol duty he received a secret information that one person was selling smack in Gali Masjid Wali Mohalla Shahganj. The information was received at 9. 35 A. M. and the same was reduced into writing (Ex. Public Witness. 3/a ). Thereafter he organised a raiding party consisting of Constable Jamil Ahmad (P. W. 4) and Constable Sukhram Pal (P. W. 3 ). Public witnesses were approached but they declined to join the raiding party. However, the raiding party came to the spot namely Gali Masjid Wali at 9. 45 A. M. and the appellant was napped on being pointed out by the informer. SHO P. L. Puri (P. W. 2), on receiving the telephonic message about arrest of the appellant, came to the spot. Notice under Section 50 of the Act (Ex. Public Witness. 3/b) was served on the appellant but he declined the offer of being searched before a Gazetted Officer or a Magistrate. On his declining SHO P. L. Puri (P. W. 2) directed the Constable Jamil Ahmad (P. W. 4) to search the appellant. Pursuant to the said direction, Constable Jamil Ahmad (P. W. 4) searched the appellant and recovered one packet containing 5 gms. of smack from the right side pocket of his Kurta, which was seized vide seizure memo (Ex. Public Witness. 21 A ). A sample of one gram. was taken out and the sample and the remaining smack were converted into two separate parcels, which were duly sealed. The CFSL form was filled in at the spot. The rukka (Ex. Public Witness. 1/a) was prepared at the spot and the case property along with CFSL form and the rukka (Ex. Public Witness. 1/a) were sent to the police station. The prosecution witnesses, namely, SHO P. L. Puri (P. W. 3), Constable Sukhram Pal (P. W. 3) and Constable Jamil Ahmad (P. W. 4) have supported the said version of Sub Inspector Satpal (P. W. 6 ).
( 5 ) LEARNED counsel for the appellant contended that the sub-inspector Satpal (P. W. 6) a
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