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1991 Supreme(Del) 364
High Court Of Delhi
SATISH BOMBAIYA - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 81 of 1990
Decided On : 05/31/1991
ANJANA GOSAIN, S.K.Bhatia
Headnote:NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1958 -Sections 20 and 50 — Accused in possession of charas — Convicted and sentenced — Appeal — Contradictions in the statement of witnesses examined — Salutary method of appreciation of evidence — Compliance of Section 50 has not been made — SHO offered accused if he desired he could be searched in presence of ACP — Offer could not be said to be compliance of Section 50 which contemplates that accused be taken before a Gazetted officer or Magistrate for search — Accused not to be afforded limited option of search — Evidence of prosecution witnesses not trustworthy — Sentence set aside.
HELD :
Keeping in vies the principles of evidence, the contradictions pointed out by the counsel for the petitioner in the present case are very much material and they go to the root of the case. When all these discrepancies are considered jointly they add up to show the case of the prosecution as false.
Compliance of Section 50 of the NDPS Act has also not been made in this case, as is apparent from the evidence on record. According to the statement of S.I. Ramesh Dutta (PW 7) and SHO Jai Narain (PW 6) an offer was made to the accused if he desired he could be searched in the presence of an ACP. It shows that the I.O. and the S.H O. asked only whether the appellant wised to be searched in the presence of an ACP. This offer could not be said to be compliance of Section 50. Section 50 of the NDPS Act contemplates that if the accused so desire, he could be taken before a gazetted officer or magistrate for his search. No doubt, ACP is a gazetted officer but it docs not mean that the accused be afforded a limited option of search before an ACP. The searching officer should have told the accused of his right of being searched before a gazetted officer or a magistrate and not limited to an ACP (Asstt. Commissioner of Police).
Regarding the deposit of the case property there is also a lacuna in the prosecution case. PW 6 stated that the case property as deposited in the Malkhana at the Police Station of Delhi main and he returned to New Delhi Railway station. The entry in the register shows that the case property was deposited at New Delhi Railway Police Station. Thus, there are serious contradictions as to where the case property was deposited:
The prosecution has not been able to substantiate the case against the present appellant warranting his conviction under Section 20 of the NDPS Act. Keeping in view the stringent punishment under the Act, interest of justice makes it incumbent upon the Court to ensure that before conviction is recorded no element of doubt creeps in.
In these circumstances, it would not be safe to accept the evidence of the prosecution witness as trust worthy to hold that the appellant was found in possession of the contraband and thereforee the Addl. Sessions Judge was in error in holding the appellant guilty of offence punishable under Section 20 of the NDPS Act and the sentence will have to be set aside, and the appeal has to be allowed. The order of convictions and sentence is set aside. The appellant shall be released forthwith if not required in any other case. The fine, if recovered be refunded to the appellant. Appeal allowed.
( 1 ) FACTS giving rise to this appeal are that on 9. 1. 1988, at 7. 30 a m. ,s. I. Ramesh Duct of New Delhi Railway Police Station along with SHO Jai Narain was on patrolling duty near the parcel gate Ajmeri Gate. ASI Budh Raj met them and he also joined them. In the meanwhile, a secret information was received that a boy who was wearing black pant and grey jarsy having charas for sale was sitting in the park near bus stand of route No. RL-7. On receipt of this information. S. I. organised a raiding party under the supervision of SHO and requested four or five persons to join the raiding party but none agreed. Ultimately, one public person Sat Pal resident of 1260 Sham Nagar, Rajpura, District Patiala (Punjab) who happened to pass through the parcel gate was stopped and asked to join the raiding party who readily agreed. At 7. 30 a m. the raiding party, reached the park near the bus stand and nabbed the appellant Satish from the park. He was informed that he was suspected to be in possession of charas and if he so wanted his search could be taken before a gazetted officer or a magistrate, but he declined. The search of the accused resulted in recovery of a polythene packet containing charas from the right side peeked of his black pant. Charas was weighed and it was found to be 500 grams out of which 10 grams was taken as sample. Both the sample and remaining charas was converted 206 into two separate packet staled with the seal of JN. CFSL form was filled in at the spot and the seal of JN was affixed thereon and the seal was handed over to Sat Pal. A Ruka was sent, on the basis of which FIR was regisered. The accused was arrested and the simple and the remaining charas was deposited in Malkhana. During investigation the sample was s. ent to the CFSL and on receipt of positive test report of charas, challan was submitted in the Court. The Addl. Sessions Judge found the accused guilty for an offence punishable under Section 20 of the NDPS Act and he convicted and sentenced the appellant to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh and in case- of default of payment of fine to further undergo rigorous imprisonment for two years.
( 2 ) AGGRIEVED, this appeal has been filed by the appellant through the Supdt. Jail, as he has been in jail throughout. On the request of the appellant Mr. Anjana Gosain, advocate, was appointed as amicus curiae to pursue the appeal filed by the appellant through jail.
( 3 ) IN this case, the prosecution besides relying upon the testimony of police officials, has relied upon the testimony of public witness Sat Pat. who proved the factum of recovery of charas from the appellant. Sat Pal, Public Witness 5, deposed that on 9. 1. 1988, he had gone to New Delhi Rly Station in order to board a train for Rajpura but when he was at the parcel gate of the Riy Station, three or four police officials met him and requested him to join raiding party because they had some information about some person being in possession of chdras and he joined the raiding party and thereafter the appellant wss found. sitting on the Patri at the bus stand of route No. RL-7. The police officer nabbed him and they asked him whether he wanted to be serched in the presence of a gazetted officer or a magistrate. The petitioner declined and he was searched by the police. According to this witness, from the right side pocket of his pant charas was recovered which on weighment was found to be 500 grams out of which 10 grams was separated for sample. Both the sample and the remaining charas was sealed and the seal after use was given to him On the request of the SHO he stayed in Delhi so that he could return the seal on the next day. On the request of the APP the witness was declared hostile and on his cross examination by the APP he could not tell that initial on the seal which was affixed on the two packets. He also denied that in his previous statement to the police he had stated that the se
