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DELHI HIGH COURT
M. S. A. SIDDIQUI, J.
VIJAY KUMAR
VERSUS
STATE
Cre. A. No. 64/92,
Decided on : 14-2-1995.
Narcotic Drugs - Illegal Possession - Narcotic Drugs and Psychotropic Substances Act, 1985, Section 20
Fact of the Case:
The appellant was convicted for illegal possession of charas. The prosecution case involved a raid, seizure of charas, and forensic report confirming the substance as charas. The appellant denied guilt and alleged a false case.
Finding of the Court:
The court found the forensic report admissible despite not being by a specified expert. It held that the rules of evidence cannot be waived in a criminal case and that the defense lawyer cannot make admissions against the accused. The court also ruled that the provisions of Section 42 of the Act were not applicable to the case and that the failure to procure independent witnesses for the search did not vitiate the trial.
Issues: Admissibility of forensic report, applicability of Section 42 of the Act, and the requirement of independent witnesses for the search.
Ratio Decidendi: The court emphasized the mandatory nature of the provisions of Section 42 of the Act and the inadmissibility of the forensic report by a non-specified expert. It also highlighted the inability of the defense lawyer to make admissions against the accused and the non-applicability of Section 42 to a search at a public place. The court further clarified that the failure to procure independent witnesses for the search did not automatically render the search illegal.
Final Decision: The court maintained the conviction and sentence of the appellant, dismissing the appeal.
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 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 further RI 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 ASI Hazari Lal (PW 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, ASI Hazari Lal (PW 3) accompanied by Constables Kanhiya Lal (PW 5) and Kirpal Singh (PW 2) proceeded to B-III Block Raghubir Nagar and apprehended the appellant. Immediately thereafter Constable Kirpal Singh (PW 2) went to inform SHO, Rajinder Singh (PW 6) over phone. On the information received at about 9.05 p.m. SHO (PW 6) arrived at the spot. On reaching the spot, SHO Rajinder 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 appellant declined the offer. Then on the direction of the SHO, ASI Hazari Lal (PW 3) took search of the appellant and recovered 41 grams of charas from his possession vide seizure memo Ex. PW 4/A. Sample of the seized charas was taken. The sample as well as the remaining charas were converted into separate 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, CFSL 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 (DW 1) and Rajesh (DW 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 prosecution 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 CFSL (Ex. PW 3/B) which gave position test for charas. This report has been assailed by the appellant on the ground of its inadmissibility in evidence under Section 293, Cr. P.C. Admittedly, this report is not by a Director or Dy. Director or Asstt. Director of Forensic Science Laboratory as contemplated by Section 293 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 us 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 and examine any such expert as to the subject-matter of this report.
3) Where any such expert is summoned by a Court and he is unable to attend personally
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