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High Court of Delhi
THE HONOURABLE MR. JUSTICE V.K. JAIN
Abdul Malik & Others
Versus
State
CRL.A. Nos. 891, 943, 946 of 2010 & Crl. M(B) Nos. 1151 of 2012, 1120 of 2010 & Crl. MA No. 4406 of 2013
Decided On : 28-02-2014
NDPS ACT - SECTION 50 - SEARCH AND SEIZURE - COMPLIANCE - PUBLIC WITNESSES - FAILURE TO JOIN - ADVERSE INFERENCE - SENTENCE - MODIFICATION.
Fact of the Case:
Three appellants were found in possession of parcels containing ganja. They were informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate, but they refused. The parcels were opened and the ganja was seized. The appellants were convicted under Section 20(b)(ii)(B) and (C) of the NDPS Act and sentenced to imprisonment for 10 and 8 years, respectively, and fined Rs. 1 lakh and Rs. 75,000, respectively. They appealed, arguing that the search and seizure was not conducted in accordance with Section 50 of the NDPS Act, that there was a delay in sending the samples to the FSL, and that no public witnesses were joined in the raiding party.
Finding of the Court:
The court found that the search and seizure was conducted in accordance with Section 50 of the NDPS Act, that the delay in sending the samples to the FSL was not unreasonable, and that the failure to join public witnesses in the raiding party did not vitiate the search and seizure. The court also found that the sentences imposed on the appellants were excessive and reduced them to 7 years and Rs. 20,000 fine for the appellant Mohd. Sahid @ Antony Baba, 5 years and Rs. 10,000 fine for the appellant Mohd. Aslam, and 10 years and Rs. 1 lakh fine for the appellant Abdul Malik.
Issues: 1. Whether the search and seizure was conducted in accordance with Section 50 of the NDPS Act? 2. Whether the delay in sending the samples to the FSL was unreasonable? 3. Whether the failure to join public witnesses in the raiding party vitiated the search and seizure? 4. Whether the sentences imposed on the appellants were excessive?
Ratio Decidendi: 1. The court held that the search and seizure was conducted in accordance with Section 50 of the NDPS Act because the appellants were informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate, but they refused. 2. The court held that the delay in sending the samples to the FSL was not unreasonable because the prosecution proved that there was no tampering with the samples till the time they were received in the FSL. 3. The court held that the failure to join public witnesses in the raiding party did not vitiate the search and seizure because the police officers made efforts to join public witnesses but no one agreed to be associated with them. 4. The court held that the sentences imposed on the appellants were excessive and reduced them to 7 years and Rs. 20,000 fine for the appellant Mohd. Sahid @ Antony Baba, 5 years and Rs. 10,000 fine for the appellant Mohd. Aslam, and 10 years and Rs. 1 lakh fine for the appellant Abdul Malik.
Final Decision: The appeals were disposed of. The conviction of the appellants was affirmed. The sentences imposed on the appellants were modified.
V.K. Jain, J.
1. On 26.02.2004, the Special Cell of Delhi Police received an information that one Mohd. Sahid @ Antony Baba would receive some parcels containing ganja from the Post Office, Sri Niwas Puri or nearby post office between 11 am to 11.30 am. The information was recorded vide DD no.6 and the concerned ACP was informed, though not in writing. A raiding party was then organized under the leadership of Inspector Kulbhushan Sharma. The raiding party besides Inspector Kulbhushan Sharma, included SI Dinesh Kumar, ASI Ram Babu, ASI Ishwar Singh, Constable Deepak and constable Ravish. When the raiding party reached near Cambridge School, the informer pointed out three persons standing at footpath. One of them, who was an old man and was identified as Mohd. Sahid @ Antony Baba was carrying a parcel in his hand whereas his two associates Mohd. Aslam and Abdul Malik were found sitting on two parcels each, which had been kept on footpath. All the three persons were apprehended and were told that if they wished they could get their parcels searched by any Gazetted Officer or a Magistrate. They were also told that it was their right and they were also briefed about the duties and powers of a Gazetted Officer/ Magistrate. The notice under Section 50 of the NDPS Act was served on all of them. They, however, refused to get the parcels searched by any Gazetted Officer/ Magistrate. They also refused to take the personal search of SI Pankaj, who thereafter opened the parcels. The parcel recovered from the appellant – Mohd. Sahid was found addressed to him and on weighing it is weight was found to be 5 kg and 800 gm. The parcels recovered from Mohd. Aslam were also addressed to Mohd. Sahid @ Antony Baba and were found to contain ganja wrapped in polythene. The first parcel weighed 9.4 kg. The second parcel recovered from the appellant – Mohh. Aslam was also addressed to Mohd. Sahid and its weight was found to be 10 kg and 500 gm. The ganja was found wrapped in a polythene in this parcel as well. The first parcel recovered from Abdul Malik was also found addressed to Mohd. Sahid and contained ganja wrapped in polythene. The weight of the said parcel was found to be 12 kg. The second parcel recovered from Abdul Malik weighed 10 kg and 500 gm and contained ganja wrapped in polythene. This parcel also was addressed to Mohd. Sahid.
2. The case of the prosecution is that SI Pankaj took 500 gm each from all the parcels as samples and thereafter the samples as well as the residuary substance were duly seized after they had been sealed with the seal of MS, which after use was handed over to Constable Ravish. This is also the case of the prosecution that the staff of Post Office Sri Niwas Puri was contacted and asked to keep a watch on such parcels. On 8.3.2004, an information was received from the Post Office that four more parcels addressed to Mohd. Sahid @ Antony Baba had been received. The said parcels were seized from the post office. The first parcel weighed 16 kg, the second parcel weighed 15 kg, the third parcel weighed 14.8 kg and the fourth parcel weighed 14.2 kg. After drawing 500 gm each as samples from the substance found in the aforesaid four parcels, the samples as well as the residual substance were duly seized after they were sealed with the seal of KS, which after use was handed over to Constable Adesh Kumar.
3. During the course of investigation, the IO also seized of the original delivery slips purported to be signed by Mohd. Sahid @ Antony Baba while receiving the parcels. Some earlier delivery slips of January and February, 2004, signed by Mohd. Sahid @ Antony Baba were also seized from the post office.
4. On 17.3.2004, the post office informed the Special Cell that three parcels addressed to Vijay son of Billal had been received in the post office. Those parcels were also seized from the post office and on opening, they were found to contain ganja. Each parcel weighed 12.5 kg. This time also 500 gm each was taken out
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