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1989 Supreme(Del) 52
High Court Of Delhi
K.M.SALIM - Appellant
Versus
STATI - Respondent
CRIMINAL APPEAL 26 of 1988
Decided On : 02/06/1989
K.K.Gujral, K.Paul
Non-compliance with a particular procedural provision of the statute does not necessarily vitiate the recovery of illicit articles if the other evidence on record is convincing enough to show that the recovery is true.
Headnote:
NDPS ACT - SECTION 42, 50, 55 - SUMMARY OF THE ACTS AND SECTIONS REFERENCED AND DISCUSSED BY THE COURT - KEY LEGAL PROVISIONS, THEIR INTERPRETATIONS, AND HOW THEY INFLUENCED THE COURT'S DECISION.
Fact of the Case:
The appellant, K. M. Saleem, was arrested at the Indira Gandhi International Airport with 940 gms of smack heroin in his possession. The prosecution alleged that the appellant was found with the briefcase containing the heroin and that the briefcase was opened with a knife and two packets of heroin were recovered.
Finding of the Court:
The court found that the prosecution had proved its case beyond reasonable doubt and convicted the appellant under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Issues: 1. Whether the mandatory provisions of Section 42 of the NDPS Act were complied with? 2. Whether the appellant was afforded the option of having his personal search done in the presence of a gazetted officer/magistrate? 3. Whether the case property was tampered with? 4. Whether the discrepancies in the statements of the witnesses affect the prosecution case? 5. Whether the appellant was falsely implicated?
Ratio Decidendi: 1. The court held that the mandatory provisions of Section 42 of the NDPS Act were not complied with as the secret information received by the Investigating Officer was not reduced into writing. However, the court held that this non-compliance did not vitiate the recovery of the heroin as the other evidence on record was convincing enough to show that the recovery was true. 2. The court held that the appellant was afforded the option of having his personal search done in the presence of a gazetted officer as the Assistant Commissioner of Police was already present in the raiding party. 3. The court held that there was no evidence to suggest that the case property was tampered with. 4. The court held that the discrepancies in the statements of the witnesses were not material and did not affect the prosecution case. 5. The court held that there was no evidence to suggest that the appellant was falsely implicated.
Final Decision: The court dismissed the appeal and upheld the conviction and sentence of the appellant.
( 1 ) THE appellant-K. M. Saleem @ Rai Gopal, a resident of Sri Lanka, who has been convicted of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, on being found in possession of 940 gms. of smack heroin on February 14, 1987, at about 12. 45 P. M. at International Airport Hall of Indira Gandhi International Airport vide judgment dated January 23, 1988, of Shri R. P. Gupta, Additional Sessions Judge and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000 (one lakh) and in default ot payment fine, to undergo further rigorous imprisonment for two years vide subsequent judgment dated January 27, 1988, has filed this appeal challenging his conviction and sentences.
( 2 ) FACTS, in brief, are that P. C. Mann, Sub-Inspector, (PW8) while being posted at the relevant time in Police Station I. G. I. Airport alongwith Head Constable Ram Kumar (Public Witness 6) and Constable Ramesh Chand, was present in front of Arrival Hall of the said Airport and he received a secret information that the presence of the appellant outside the Departure Hall having a briefcase containing the smack. Shri M. L. Meena, SI-10, (PW2) joined the raiding party and the Assistant Commissioner of Police Shri Om Prakash Arya (Public Witness I) was also informed and he also came and joined the raiding party. Public Witness 3 Dharamvir Singh, a taxi driver, who admittedly plies his taxi at that Airport was also joined and on the pointing out by the secret informer the appellant was apprehended and the briefcase was got. opened which contained only the clothes whereas on suspicion that the briefcase was unsually heavy its top and bottom were broken open with the help of a knife and two packets wererecoveicd. The packet taken from the upper bottom was found to contain 410 gms of smack and the other packet taken from the lower bottom was found to contain 530 gms of smack. The samples from each of the packets were taken and the samples as well as the remaining smack were converted into separate sealed parcels. The briefcase Ex. PI, clothes Exs, P2/1 to 3 and P3/1 to 3 and the polythene papers and smack therein Exs. P4, P5, P6 and P7, passport Ex. P8 and one open air-ticket Ex. P9 issued by Indian Airlines for Delhi to Bombay were taken into possession from the accused, Rukka Ex. Public Witness /8 was prepared. The site-plan Ex. Public Witness /8b was also prepared. The sample were sealed with the seal of the Investigating Officer as well as of the S. H. O. and the case property was deposited in the Malkhana on the same day. The samples were got sent to Central Forensic Science Laboratory (for short cfsl ) through Constable Krishan Dutt (Public Witness 5), who deposited the samples with CPSL and the report of the CFSL Ex. PA was received which depicted that contents of both the samples gave positive test for heroin and Harcotene. It is also pertinent to mention that this appellant was admittedly earlier arrested on february 8, 1987, in F. I. R. No. 42/87 registered undersections 419 and 420 Indian Penal Code and he remained in Jail upto February 13, 1987, when he was released on bail. At the time of his arrest in connection with F. I. R. No. 42/87, the appellant had given his name as Raj Gopal. The prosecution version was duly corroborated by all the material witnesses, namely, the Assistant Commissioner of Police, S. H. O. , public witness. Head Constable and the Investigating Officer. The learned Additional Sessions Judge has discussed the evidence in quite detail arid has also noticed the inconsequential contradictions appearing in the statements of witnesses and has come to the conclusion that the offence has been brought home to the appellant without any suspicion or doubt.
( 3 ) THE learned counsel for the appellant has at first submitted that the mandatory provisions of Section 42 of the NDPS Act have not been complied with inasmuch as the secret informati
