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High Court Of Delhi
VIJAY KUMAR - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 64 of 1992
Decided On : 02/01/1995
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 20 - POSSESSION OF CHARAS - EVIDENCE - ADMISSIBILITY OF REPORT OF SCIENTIFIC OFFICER - SECTION 293 CRIMINAL PROCEDURE CODE - SEARCH AND SEIZURE - SECTION 42 NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - FAILURE TO COMPLY WITH MANDATORY PROVISIONS - EFFECT - SEARCH OF PERSON IN PUBLIC PLACE - SECTION 43 NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - PRESENCE OF INDEPENDENT WITNESSES - SECTION 50 NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - COMPLIANCE WITH MANDATORY PROVISIONS.
Fact of the Case:
The appellant was convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of 41 grams of charas. The prosecution relied on the report of the Central Forensic Science Laboratory (CFSL) to prove that the substance seized was charas. The appellant challenged the admissibility of the report on the ground that it was not prepared by an expert mentioned in Section 293 of the Code of Criminal Procedure (CrPC). The appellant also contended that the mandatory provisions of Section 42 of the Act were not complied with as the police officer did not incorporate the secret information received in the Daily Diary. Furthermore, the appellant argued that his search was not conducted in the presence of two independent and respectable witnesses, as required by Section 50 of the Act.
Finding of the Court:
The court held that the report of the CFSL was admissible in evidence even though it was not prepared by an expert mentioned in Section 293 of the CrPC. The court relied on the decision in Shankaria @ Shanker Vs. The State, which held that the rules of evidence as regards the production and strict proof of a document can be waived in a criminal case. The court also held that the provisions of Section 42 of the Act were not applicable to the present case as the appellant's search was carried out in a public place. The court further held that the failure of the police officer to procure independent witnesses at the time of the search did not vitiate the trial, as efforts were made to join some passers-by but they declined. The court also found that the mandatory provisions of Section 50 of the Act were duly complied with by the police officer.
Issues: 1. Whether the report of the CFSL was admissible in evidence. 2. Whether the mandatory provisions of Section 42 of the Act were complied with. 3. Whether the appellant's search was conducted in the presence of two independent and respectable witnesses. 4. Whether the mandatory provisions of Section 50 of the Act were complied with.
Ratio Decidendi: 1. The court held that the report of the CFSL was admissible in evidence even though it was not prepared by an expert mentioned in Section 293 of the CrPC, as the rules of evidence can be waived in a criminal case. 2. The court held that the provisions of Section 42 of the Act were not applicable to the present case as the appellant's search was carried out in a public place. 3. The court held that the failure of the police officer to procure independent witnesses at the time of the search did not vitiate the trial, as efforts were made to join some passers-by but they declined. 4. The court held that the mandatory provisions of Section 50 of the Act were duly complied with by the police officer.
Final Decision: The court dismissed the appeal and upheld the conviction and sentence of the appellant.
( 1 ) THE appellant Vijay alias Hanuman was convicted by the Additional Sessions Judge, New Delhi under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter REFERRED TO to as the Act ) and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. one lac in default of payment of which to undergo fur- ther R. I. for two years for being in illegal and unauthorised possession of 41 grams of charas.
( 2 ) BRIEFLY stated, the prosecution case is that on 8. 4. 90 at about 8. 30 p. m. , while A. S. I. Hazari Lal (P. W. 3), was on patrol duty along with Constable Kirpal Singh and Kanihya Lal, received a secret information to the effect that one person was selling charas near B-Block, Raghubir Nagar. Acting upon this information, a raiding party was organized. Since public persons refused to join the raiding party, A. S. I. Hazari Lal (P. W. 3) accompanied by Constables Kanhiya Lal (P. W. 5) and Kirpal Singh (P. W. 2) proceeded to B-III Block Raghubir Nagar and apprehended the appellant. Immediately thereafter Constable Kirpal Singh (P. W. 2) went to inform S. H. O. Rajinder Singh (P. W. 6) over phone. On the information received at about 9. 05 p. m. S. H. O. (P. W. 6) arrived at the spot. On reaching the spot, S. H. O. Rajindra Singh made an offer to the appellant that if he desired his search could be carried out in presence of a Gazetted Officer or a Magistrate but the apellant declined the offer. Then on the direction of the S. H. O. , A. S. I. Hazari Lal (P. W. 3) took search of the appellant and recovered 41 grams of charas from his possession vide seizure memo Ex. P. W. 4/a. Sample of the seized charas was taken. The sample as well as the remaining charas were converted into seperate packets and they were duly sealed. The case was registered against the appellant and the case property was deposited in the Malkhana. The sampled charas was sent to the Central Forensic Science Laboratory and on receipt of the report of Shri V. S. Bisaria, Senior Scientific Officer, C. F. S. L. showing that the sample was of charas, the appellant was charge sheeted under Section 20 of the Act.
( 3 ) THE appellant abjured his guilt and alleged that a false case has been foisted on him. He has examined Shanti (D. W. I) and Rajesh (D. W. 2) in support of his defence. Learned trial court accepted the prosecution case and convicted the appellant.
( 4 ) THE main contention advanced on behalf of the appellant is that the Lower Court failed to appreciate the inherent infirmities in the prose- cution evidence and that there is no legal evidence on record to support the finding that on the day in question the appellant was found in possession of the contraband.
( 5 ) THE first point to be determined in the appeal is whether the substance seized and produced in this case was charas. In order to prove the said fact, the prosecution has relied on the report of the C. F. S. L. (Ex. P. W. 3/b) which gave positive test for charas. This report has been assailed by the appellant on the ground of its inadmissibility in evidence under Section 293 Criminal Procedure Code. Admittedly, this report is not by a Director or Deputy Director or Assistant Director of Forensic Science Laboratory as contemplated by Section293 of the Code of Criminal Procedure. Perusal of the said report shows that the same has been made by Shri V -. S. Bisaria, Sr. Scientific Officer, Central Forensic Laboratory, Central Bureau of Investigation. Section 293 Cr. P. C. reads as follows:-
"reports of Certain Government Scientific Experts: 1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. 2) The Court may, if it thinks fit, summon
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