Back
1996 Supreme(Del) 301
High Court Of Delhi
PREM SINGH - Appellant
Versus
STATE OF DELHI - Respondent
Decided On : 03/20/1996
The prosecution has the burden of proving the guilt of the accused beyond reasonable doubt. If the prosecution fails to produce material witnesses or if there are contradictions in the testimonies of the prosecution witnesses, the court may give the benefit of doubt to the accused.
Headnote:
CRIMINAL APPEAL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50 - POSSESSION OF SMACK - EVIDENCE - TAMPERING OF CASE PROPERTY AND SAMPLE - INDEPENDENT WITNESS - SECTION 64A OF THE EVIDENCE ACT, 1872 - BURDEN OF PROOF - FAILURE TO PRODUCE MATERIAL WITNESSES - CONTRADICTIONS IN TESTIMONIES - BENEFIT OF DOUBT - CONVICTION AND SENTENCE SET ASIDE.
Fact of the Case:
The appellant was convicted under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possession of 4 grams of smack. The prosecution case was based on the testimony of seven witnesses, including the arresting officer, a public witness, and the CFSL expert. The appellant challenged the conviction on the grounds that there was no proof of deposit of the pullandas and sample with the Moharar Malkhana, the person who took the sample to the CFSL was not examined, and the case property was neither produced nor proved.
Finding of the Court:
The court found that there were material contradictions in the testimonies of the prosecution witnesses, including the use of different seal initials, the failure to get the seizure memo signed by the accused, and the failure to produce material witnesses. The court also found that the appellant had successfully created a dent in the case of the prosecution and that the likelihood of the sample being tampered with could not be ruled out.
Issues: 1. Whether the prosecution had proved beyond reasonable doubt that the appellant was in possession of smack? 2. Whether the appellant was denied a fair trial due to the failure of the prosecution to produce material witnesses and due to the contradictions in the testimonies of the prosecution witnesses?
Ratio Decidendi: The court held that the prosecution had failed to prove beyond reasonable doubt that the appellant was in possession of smack. The court relied on the following legal principles: * The burden of proof lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. * The failure of the prosecution to produce material witnesses and the contradictions in the testimonies of the prosecution witnesses create a doubt in the mind of the court. * The benefit of doubt must be given to the accused.
Final Decision: The court set aside the conviction and sentence of the appellant.
( 1 ) PREM Singh, petitioner herein was apprehended on 6th March, 1990 by the Investigating Officer, S. I. Durga Prasad of Police Station Town Hall. Prosecution case is based on secret information received by SJ. Durga Prasad informing therein that a person sitting near Hardayal Municipal Chambery possessed smack. On receipt of this information, S. I. Durga Prasad arranged a raiding party consisting of Constables Ramesh Kumar and Raj Kumar and one Santosh Kumar a public independent witness. The secret informer pointed towards the appellant to be that person. Pursuance to which appellant was apprehended. Before searching him option was given to be searched either before Gazetted Officer or the Magistrate, but appellant declined. Notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act (in short the Act) was served. S. H. O. in the meantime also came at the spot. It is the case of the prosecution that from the right side pocket of appellant s pant a match box homelight containing smack wrapped in a paper was recovered. On being weighed it turned out to be 4 gms. One gram was taken out as sample. The remaining was converted into pullandas and duly sealed. Thus, the case property and the sample were sealed with the seal of DPJand HLM. CFSL form was also filled. The seals after use were handed over to the public witness. Thereafter Pullanda, CFSL form and the sample were deposited with the Moharar Malkhana. Sample was sent to the office of the CFSL for analysis. On receipt of expert report Ex. Public Witness 7/c the challan was filed. Prosecution examined as many as seven witnesses. After considering the facts which came on record the learned Trial Court convicted the appellant and sentenced him to undergo rigorous imprisonment for 10 years and a fine of Rs. 1 lac, in default of payment of fine to further undergo simple imprisonment for one year.
( 2 ) THE impugned Judgement has been assailed by the appellant, primarily on the ground that there was no proof of deposit of Pullandas and sample with the Moharar Malkhana. The person who is alleged to have taken the sample with CFSL form to the office of the CFSL has not been examined. Hence in the absence of linking evidence the chances of tampering with the sample cannot be ruled out. Case property was neither produced nor proved. However, if the property as was produced is believed to be the case property then it must have been tampered with. In order to appreciate the contention of Mr. Mukesh Kalia, Amicus Curiae we must have to evaluate the evidence properly. On 6th March, 1990 at about 5. 15p. m. when appellant was apprehended on search being conducted 4 gms. of smack on his person was found. The sample and the case property was sealed with the seals of DPJ and HLM, as per the SHO (Public Witness-1 ). CFSL Form was also filled. notice Ex. Public Witness-7/a under Section 50 of the Act was given. Seal after use was handed over to the said Public Witness. Seizure Memo has been proved as Ex. Public Witness-1/a. Rukka also proved. It was sent to the Police Station through Constable Ramesh Kumar. Site plan is Ex. Public Witness-7/b. Personal search memo is Ex. Public Witness-3/a. CFSL report is EX. Public Witness-7/c. Inspector Harbans lal (Public Witness-1) deposed that he kept the seal with him after affixing the same on the case property, on sample as well as on the CFSL form. So far as Public Witness-2 ASI Satpal Singh is concerned, he could only prove that he made FIR Ex. Public Witness-2/a, on the basis of the Rukka brought by Ramesh Kumar. There is clear contradiction in the testimony of Public Witness-1 and Public Witness-2 on the point of initials of the Seal. Constable Raj Kumar (Public Witness-3) testified that sample of smack and remaining smack was converted into two pullandas and were sealed with the seals of DP and HLM. Whereas according to Inspector Harbans Lal (Public Witness-1), the seal affixed were of DPJ and HLM. Similarly, Head Co
