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2000 Supreme(Del) 197
High Court Of Delhi
PRITHVI PAL SINGH MUNNA - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 56 of 1996
Decided On : 02/21/2000
M.S.BUTALIA
Headnote:NDPS Act, 1985 - Section 21 — Punishment for contravention in manufactured drugs and preparations — Recovery of contraband (Heroin) — Search and seizure of a rexene bag — Recovery of 100 gms of Heroin — offence punishable under Section 21 of the Act.
Recovery - Whether the contraband was recovered from the appellants possession in accordance with the provisions of the Act — In absence of corroboration from an independent source, the evidence could not be believed.
Code of criminal Procedure, Section 43 r/w Sub-section (4) of Section 100 - Contemplates that search should, as far as practicable, be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to establish that the association of such witnesses was not possible on the facts and circumstances of a particular case. — In the present case no public witness was associated during the course of search and seizure proceedings and the prosecution case, hinges solely on the testimony of the police officials.
Evidence - There is inconsistency between the statements of prosecution witnesses regarding presence of public witnesses at the time of the alleged search and seizure. Prosecution witnesses have stated in one voice that no shopkeeper or anybody from the public was asked to witness the alleged search and seizure. In that view of the matter, it may safely be inferred that although public witnesses were available but no attempt was made by the Authorised Officer to associate them before searching the appellant. [Para 9]
Documents - There is another infirmity which has shaken the foundation of the prosecution case to an irreparable extent.
( 1 ) THIS appeal is directed against the judgment and order dated 26. 10. 1995 passed by the Additional Sessions Judge, Delhi in Sessions Case No. 42/94 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 ten years and to pay a fine of Rs. l,00. 000. 00 or in default to suffer further rigorous imprisonment for one year.
( 2 ) BRIEFLY stated, the prosecution case is that on 15. 7. 1993 at about 7. 05 P. M. a police party led by the ACP J. S. Rana (P. W. 11), upon information received, apprehended the appellant near the Imperial Cinema, Pahar Ganj. The appellant was given the option (Ex. PW-4/8) of being searched before a Gazetted Officer or a Magistrate. He declined the offer. At that time, the appellant was holding a rexene bag, which was delivered to him by the co-accused Devki Nandan. On search, the said bag was found to contain 100 grams of heroin, which was seized vide seizure memo (Ex PW-4/c ). 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. Learned Additional Sessions Judge, on an assessment of the evidence adduced by the prosecution;, accepted the prosecution case and convicted and sentenced the appellant as indicated above.
( 4 ) THE question for consideration is whether on 15. 7. 1993, 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 ACP J. S. Rana (Public Witness -11), ACP H. L. Manaktala (Public Witness -8), Constable Dalveer Singh (Public Witness -9), SI Panna Lal (Public Witness -5), SI Rishal Singh (Public Witness -4), and the Constable Raj Kumar (Public Witness -3 ). ACP J. S. Rana (Public Witness -II) deposed that on 15. 7. 1993 at about 6. 15 P. M. he received secret information to the effect that one person in possession of heroin wound be coming at Imperial Cinema, Pahar Ganj to supply heroin to the appellant. He conveyed the said information to the ACP Narcotic Cell, who directed him to organise a raiding party. Pursuant to the said directions, a raiding party consisting to himself, ACP H. L. Manaktala (Public Witness -8), Inspector A. S. Bajwa, SI Panna Lal (. PW-5), SI Rishal Singh (Public Witness -4), Head Constable Rajender Singh, Constable Raj Kumar (Public Witness - 3) and Constable Dalveer Singh (Public Witness -9) was constituted. Public witnesses were approached but they declined to join the raiding party. However, a Nakabandi was held near the Imperial Cinema and at about 7. 05 P. M. the appellant was nabbed on being pointed out by the informer. At that time, the appellant was holding a rexene bag (P- 1), which was delivered to him by the co-accused Devki Nandan. The appellant was given the option (Ex. PW-4/b) for being searched in the presence of a Gazetted Officer or a Magistrate and on his declining, he was searched and the said bag (Ex. P-1) was found to contain 100 grams of heroin, which was seized vide seizure memo (Ex. PW-4/c ). A sample of five grams was taken out and the sample and the remaining heroin were converted into two separate parcels, which were sealed on the spot. The CRCL form was filled in on the spot. The Rukka (Ex PW-11/a) was prepared on the spot and the case property along with CRCL form and the Rukka (Ex. PW-II/a) was sent to the police station through Constable Raj Kumar (Public Witness -3 ). The prosecution witnesses,; namely, Constable Raj Kumar (Public Witness -3), SI Rishal Singh (Public Witness -4), SI Raman Lal (PW-5), ACP H. L. Manaktala (Public Witness -8) and Constable Dalveer Singh (Public Witness -9), have supported the said version of ACP J. S. Rana (Public Witness -11 ).
( 5 ) LEARNED counsel for the appellant contended that the tria
