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2015 Supreme(Del) 3036
IN THE HIGH COURT OF DELHI
ASHUTOSH KUMAR, J.
SUMER SINGH – Appellant
Versus
STATE – Respondent
CRL.A No. 878, 1164/2011
Decided On : 21.12.2015
Advocate Appeared:
Mr. Mukesh Kalia, Ms. Sumita Kapil, Ms. Astha, Mr.Vansh Kalia, Advs.
Ms.Alpana Pandey, APP for the State SI Dinesh Kumar, Special Team, Crime
The central legal point established in the judgment is the application of the presumption of culpable mental state and the presumption from possession of illicit articles under the NDPS Act, 1985.
Headnote:
NDPS Act - Conviction under Section 20 - 20, 35, 54 - The judgment upheld the conviction of appellant Sumer Singh under Section 20 of the NDPS Act, 1985. The court found that the mandatory provisions of the NDPS Act were complied with, and the prosecution had proved the recovery of contraband from the appellants. The court also discussed the presumption of culpable mental state under Section 35 and the presumption from possession of illicit articles under Section 54 of the NDPS Act. The judgment set aside the conviction and sentence of appellant Balbir Singh due to the absence of the requisite mental state.
Fact of the Case:
The appellants were convicted for the offence under Section 20 of the NDPS Act, 1985, for the possession of contraband (charas) found in boxes of apples delivered to them. The prosecution's case was based on secret information received by the police, the raid conducted, and the recovery of the contraband. The appellants challenged the conviction on various grounds, including non-compliance with procedural norms, lack of specific knowledge of the contraband, and shoddy investigation.
Finding of the Court:
The court found that the prosecution had complied with the mandatory provisions of the NDPS Act, and the recovery witnesses fully supported and corroborated each other. The court also discussed the presumption of culpable mental state and the presumption from possession of illicit articles under the NDPS Act. The judgment upheld the conviction of appellant Sumer Singh but set aside the conviction and sentence of appellant Balbir Singh due to the absence of the requisite mental state.
Issues: The issues included non-compliance with procedural norms, lack of specific knowledge of the contraband by the appellants, and shoddy investigation. The court also considered the presumption of culpable mental state and the presumption from possession of illicit articles under the NDPS Act.
Ratio Decidendi: The court's decision was influenced by the compliance with the mandatory provisions of the NDPS Act, the presumption of culpable mental state, and the presumption from possession of illicit articles. The judgment set aside the conviction and sentence of appellant Balbir Singh due to the absence of the requisite mental state.
Final Decision: The judgment upheld the conviction and sentence of appellant Sumer Singh under Section 20 of the NDPS Act, 1985, and set aside the conviction and sentence of appellant Balbir Singh. Criminal Appeal No.1164/2011 was allowed, and Criminal Appeal No.878/2011 was dismissed.
ASHUTOSH KUMAR, J.
1. The appellants Sumer Singh and Balbir Singh have been convicted for the offence under Section 20 of the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act, 1985) and have been sentenced to undergo rigorous imprisonment for ten years, fine of Rs.1,00,000/- and in default of payment of fine, further rigorous imprisonment of one year by judgment and order dated 13.04.2011/19.04.2011 passed by the Special Judge, NDPS in Sessions Case No.04/09 arising out of FIR No.470/2008 (P.S. Jahangir Puri).
2. The case of the prosecution is that on 19.09.2008 at about 12:15 p.m., secret information was received by SI Sunil Kumar (PW14) that between 1:30 p.m. to 2:30 p.m., contraband (charas) would be delivered to accused Yogesh and appellant Sumer Singh. The information provided was that the consignment of the contraband would come in a truck bearing registration No.JK-02-AD-4765, which truck would reach Shimla Gate, Fruit Mandi, Azad Pur, Shalimar Bagh Road, Delhi between 1:30 p.m. to 2:30 p.m. The information was very specific. The informer stated that charas has been kept in three cartons of apples, which are in driver’s cabin.
3. On receipt of such information, SI Sunil Kumar (PW14) produced the secret informer before ACP, Joy Tirkey, and also reduced the secret information in writing (DD No.7). As directed by ACP Tirkey, a raiding team was constituted comprising HC Rajinder, HC Kanwar Pal (PW13), HC Dharamvir (PW12), Ct. Amit, Ct. Atul, Ct. Devender, Ct. Ajit (PW9), Ct. Raj Kumar, Ct. Sunil and Ct. Manoj. The raiding team along with the secret informer and SI Sunil Kumar reached the spot.
4. While the driver of the truck was handing over the boxes of apples to appellant Sumer Singh, he was apprehended. The driver and cleaner of the truck namely appellant, Balbir Singh and co-accused Bankey Sharma got down the truck and they too were apprehended. In the boxes which were delivered by appellant Balbir Singh to appellant Sumer Singh, 13 kg 500 gram charas were found to have been kept.
5. The mandatory provisions of NDPS Act were complied with. Samples were drawn. FSL form was filled up and the appellants and Bankey Sharma were arrested. Co-accused Yogesh Jain could not be apprehended.
6. After the investigation, charge-sheet was submitted, whereupon cognizance was taken and the case was committed to court of sessions.
7. After examining six witnesses on behalf of prosecution and none on behalf of defence, the Trial Court convicted the appellants under Section 20 of the NDPS Act and acquitted co-accused Bankey Sharma, cleaner of the truck, by judgment dated 13.04.2011.
8. By order dated 19.04.2011, both the appellants were sentenced to undergo RI for ten years, fine of Rs.1,00,000/- and in default of payment of fine a further RI for one year.
9. The appellants assail the judgment and order of conviction and sentence on the following grounds:
(i) The samples of the contraband were not drawn up in accordance with the norms and guidelines for the same;
(ii) Despite there being ample time for the police, no effort was made to join in public witnesses during the search and seizure operations;
(iii) The prosecution failed to prove and attribute specific knowledge of the presence of the contraband to both the appellants;
(iv) The conscious possession of the contraband by the appellants could not be established.
(v) The mandatory provisions of Section 42, 52 and 55 of the NDPS Act have been completely disregarded.
(vi) There are sufficient grounds to hold that the sample parcels were tampered with and;
(vii) Shoddy investigation in the case whereby even the origin of the consignment could not be ascertained.
10. In order to appreciate the contention of the appellants, deposition of relevant and material witnesses are required to be scrutinised.
11. SI Sunil Kumar (PW14) has deposed before the Trial Court that on 19.09.2008, while he was posted in the Anti Homicide Section of Crime Branch, Roh
