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1989 Supreme(Del) 387
High Court Of Delhi
MOHAMMAD SHAMIM - Appellant
Versus
STATE OF DELHI - Respondent
Criminal 30 of 1989
Decided On : 10/04/1989
B.T.Singh, L.D.ADLEKHA
The court held that the police are required to make sincere efforts to join public witnesses in drug-related cases, and failure to do so can lead to discrepancies in their testimonies and cast doubt on the reliability of the prosecution case.
Headnote:
NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 18, 21 - PUBLIC WITNESSES - JOINING - EFFORTS - DISCRETION OF POLICE - REASONABLE DOUBT - CONVICTION - SET ASIDE.
Fact of the Case:
The appellant was convicted and sentenced for possession of opium under Sections 18 and 21 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The prosecution alleged that the appellant was apprehended with a bag containing opium based on secret information. The appellant challenged the conviction, arguing that the police failed to make sincere efforts to join public witnesses, leading to discrepancies in their testimonies.
Finding of the Court:
The court found that the police did not make sincere efforts to join public witnesses, as required by law. The court noted discrepancies in the testimonies of the police witnesses regarding the efforts made to join public witnesses, the location where the writing work was done, and who brought the scales for weighing the opium. The court also found that the seal of the Station House Officer (SHO) was not put on the case property as required by Section 55 of the NDPS Act.
Issues: 1. Whether the police made sincere efforts to join public witnesses? 2. Whether the discrepancies in the testimonies of the police witnesses affected the reliability of the prosecution case? 3. Whether the failure to comply with Section 55 of the NDPS Act rendered the conviction unsustainable?
Ratio Decidendi: 1. The court held that the police did not make sincere efforts to join public witnesses, as required by law. The court noted that the police had ample opportunity to join public witnesses but failed to do so without providing any reasonable explanation. 2. The court found that the discrepancies in the testimonies of the police witnesses regarding the efforts made to join public witnesses, the location where the writing work was done, and who brought the scales for weighing the opium were material and went to the root of the matter. The court held that these discrepancies cast doubt on the reliability of the prosecution case. 3. The court held that the failure to comply with Section 55 of the NDPS Act, which requires the seal of the SHO to be put on the case property, was a serious irregularity that rendered the conviction unsustainable.
Final Decision: The court allowed the appeal, set aside the conviction and sentences of the appellant, and acquitted the appellant of the charges.
( 1 ) THIS appeal has been brought against judgment dated January 12, 1989 of an Additional Sessions Judge, New Delhi by which he has convicted the appellant of offence punishable under Sections 18 and 21 of N. D. P. S. Act and against the subsequent order dated January 16, 1989 by which the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of rupees on lac and in default of payment of fine, to further undergo rigorous imprisonment for two years.
( 2 ) THE facts of the case in brief are that PW-6 Rajinder Bakshi, Sub Inspector who was then Incharge of Police Post Amar Colony on May 21, 1987 was said to be patrolling the area, accompanied by constables Jeet Ram, Lal Singh, Wahid Khan, Kishan Kumar, Roshan Lal and Govind Ram ; and at about 5. 30 P. M. when they reached near C-Block Market, East of Kailash that he received a secret information to the effect that two persons having opium and charas in their possession would be coming from the Village Garhi side and would be proceeding towards Okhil through Block A Market, East of Kailash. Thus he organized the raiding party comprising of the police officials already with him and in the meantime PW-6 Sushil Kumar who was then stated to be working as S H. O. of Police Station Lajpat Nagar had also reached in his jeep by chance at that spot Thereafter they proceeded to the A Block Market and that they had made request to some 8 or 10 persons who were passing by to join in the raiding party but none of them agreed. A Nakabandi was made at the culvert near A Block Market while the jeep of S. H. O was hidden at some place. At about 6. 15 P. M. on the pointing out by the secret informer the appellant and one Abrar Khan were seen coining and they were carrying a cloth bag each in their right hands and they were apprehended. It was disclosed to the appellant that police had secret information of his being in possession of contraband and an offer was given to him that if be so desired his personal search could be taken in the presence of a gazatted officer or a Magistrate. It is stated that on appellant declining the said offer, the said bag was searched in which opium was found which was weighed and it came to be 2 Kg. and 300 Gins. A sample of 100 gms. was taken and the sample and the remaining opium were converted into separate sealed parcels by affixing the seal of APS and of S K B. SKB belonged to the S. H. O. Necessary form was also filled in on which the specimen of the seals were affixed. The opium and the sample were taken into possession. The seal was handed over to constable Jeet Ram after use by the I. O. Rukka En:. PW5/b was prepared and was sent through constable Roshan Lal on the basis of which the case was registered A site plan Ex. Public Witness 6/a was prepared at the spot. A personal search memo of the appellant Ex. PW6/b was also prepared.
( 3 ) LATER on the sample was got sent to C. F. S. L. from the Malkhana and the report Ex. PW6/c was received showing that the sample was of opium. In support of the charge, PW-1 Inspector Sushil Kumar, PW-2 Constable Jeet Ram. PW-3 Constable Lal Singh, PW-6 S. I. Rajinder Bakshi appeared for proving the material facts of the case. PW-4 Head Constable Abdul Wahid was working as Malkhana Marharrar at the relevant lime and he proved the entries from the Malkhana Register, copy of which is Ex PW4/a and he also deposed that as long as the case property remained in the Malkhana, no one tampered with the same. PW-Head Constable Rajinder Singh was working as Duty Officer at the relevant time and he scribed the FIR. carbon copy of which is Ex. PW5/a. The learned Additional Sessions Judge has believed the prosecution case and thus convicted and sentenced the appellant.
( 4 ) THE learned counsel for the appellant has argued that the present case bristles with material contradictions in the statements of the witnesses who were all police officials and certain provisions of N. D. P. S. Act have bee
