Back
High Court Of Delhi
SUNIL KUMAR - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 23 of 1989
Decided On : 10/18/1989
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 21 - POSSESSION OF HEROIN - EVIDENCE - RELIABILITY OF POLICE WITNESSES - NON-JOINING OF PUBLIC WITNESSES - VIOLATION OF SECTIONS 41, 42, 52(3), 55 AND 57 OF THE ACT - EFFECT.
Fact of the Case:
The appellants were apprehended while travelling on a two-wheeler scooter along with a third person. They were convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to ten years of rigorous imprisonment and a fine of Rs. One lac or in default, two years of further rigorous imprisonment.
Finding of the Court:
The court found that the police had prior information about the activities of the appellants and had organized a raiding party to apprehend them. The appellants were apprehended while Surjit Singh, another appellant, was parking the scooter. The police recovered 150 grams of heroin from the right pocket of Sunil Kumar's pant. The sample and the remaining heroin were separately sealed and sent for chemical examination. The report of the CFSL confirmed that the sample gave a positive test for heroin.
Issues: 1. Whether the non-joining of public witnesses by the police vitiated the prosecution case? 2. Whether the alleged violation of Sections 41, 42, 52(3), 55, and 57 of the NDPS Act affected the validity of the recovery of heroin from the appellant? 3. Whether the evidence of the police witnesses was reliable and trustworthy?
Ratio Decidendi: 1. The court held that the non-joining of public witnesses by the police did not vitiate the prosecution case. It observed that in highly urbanized areas, people are generally reluctant to get involved in such matters and that it is becoming increasingly difficult to involve public witnesses in court cases, especially in cases of capital offenses. The court further held that the police cannot be expected to take action against public persons for not joining the raid party, as this may alert the offenders and allow them to escape. 2. The court held that the alleged violation of Sections 41, 42, 52(3), 55, and 57 of the NDPS Act did not affect the validity of the recovery of heroin from the appellant. It observed that the safeguards in these provisions are incorporated to ensure that there has been a genuine recovery from the accused and that the evidence of the witnesses should be scrutinized more closely in such cases. However, the court found that there were no circumstances to indicate that the police had a motive to implicate the accused and that the evidence of the witnesses was cogent, convincing, and trustworthy. 3. The court held that the evidence of the police witnesses was reliable and trustworthy. It observed that the witnesses had no motive to falsely implicate the accused and that their evidence was consistent and corroborated by other evidence on record.
Final Decision: The court dismissed both appeals and affirmed the sentence awarded to the appellants.
( 1 ) THIS judgment will dispose of Crl. A. No. 23/89 and Crl. A. No. 166/88. The appellants in both these appeals were apprehended at the same time while travelling on a two wheeler scooter along with a third person.
( 2 ) VIDE two separate judgments/orders sentence dated 29. 1188/ 10 12. 88 the learned Addl. Sessions Judge, New Delhi convicted the appelignts under Section 21 of the Narcotic Durgs and Psychotropic Substances Act 1985 (hereinafter REFERRED TO to as the act ) and sentenced them to suffer rigorous imprisonment for ten years and also to pay a fine of Rs One lac or in default suffer further rigorous imprisonment for two years.
( 3 ) THE story of the prosecution is that for some days perior to 23. 12. 86 the police bad information that some persons used to supply heroin to their known parties by coming near Shivaji Restaurant at Bhagat Singb Marg, New Delhi. On 23. 12. 86 SI Surinder Singh was present in office of the Crime Branch at Police Headquarters when he received secret information that three persons will come on a two wheeler scooter at Shivaji Restaurant, Bhagat Singh Marg, and will deliver heroid to their respective parties at about 5. 30 P. M. On the basis of the prior information as well as Secret information received that day a raiding party consisting of SI Om Prakash, SI Jagpal Singh. HC Harbir Singh and 3-4 constables was organized by SI Surindar Singh. All of them went near Arora Pan Bhandar situtated at Bhagat Singh Marg near Shivaji Stadium. SI Surinder Singh asked 8-10 persons to join the raiding party but they declined by expressing their inability and went away. SI Sukesh Kumar and one constable of Police Station Mandir Marg also met the party there by chance. They were also apprised of the secret informotion and were included in the raiding party. They picketted a Nakabandi near that place in such a manner that their presence was not felt by the anybody. At about 5. 30 PM one two wheeler scooter driven by Surjit Singh, appellant arrived there. One Muni Lal and the appellant, Sunil Kumar were occupying pillion seat of the scooter. On the pointing out of the Informer they were apprehended while Surjit Singh, appellant was parking the scooter. SI Jagpal Singh PW8 informed Sunil Kumar appellant that they were police officers and they wanted to search them because the had information that they had heroin. They also told the appellants that they were at liberty to take their search and also if they desired their search before any Gazetted Officer or a Magistrate. But the appellant, Sunil Kumar and others declined either to search any member of the police party to be searched in the presence of a Gazetted Officer or a Magistrate. The appellant, Sunil Kumar was then search by SI Jagpal Singh. From the right pocket of his pant heroin wrapped in a wax paper was recovered. It weighed 150 grams. 10 grams was separated as sample. The sample and the remaining heroin were separately sealed in two cloth parcels and sealed with the seal impression JPS belonging to SI Jagpal Singb. Form CFSL was also filled up at the spot. Case property was seized vide Memo Ex. , PW4/a. Jagpal Singh also prepared rukka Ex. PW8/a and sent it along with the case property and from CFSL to police station Mandir Marg through constable Harbir Singh for registration of the case and also for sealing the case with property the seal impression of the SHO. The site plan Ex. PW8/b was also prepared by him. He also subjected the appellant Sunil Kumar to a personal search and prepared the personal search memo Ex. PW4/ in his own hand. The sample parcel of this case was taken to CFSL by PW6 Ram Daras constable on 2. 1. 87. The report of the CFSL is Ex. PW2/a according to which the sample gave the positive test for heroin. After completion of necessary investigation the challan was filed in the cour. t and the appellants were convicted and sentenced as stated above.
( 4 ) I have heard learned counsel for the parties and have also
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
