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IN THE HIGH COURT OF DELHI AT NEW DELHI
P.S. TEJI, J.
INDUL SHAH – Appellant
versus
STATE – Respondent
CRL.A. No.455 of 2001
Decided on : 7-03-2017
NDPS Act - Conviction under Section 20 - 20 of the NDPS Act, 1985 - Summary of Acts and Sections: The court discussed the compliance with Section 50 of the NDPS Act, the testimonies of the raiding party members, and the CFSL report to establish the guilt of the appellant. The court also considered the Amendment Act of 2001, which rationalized the sentencing structure for drug offenses, and reduced the punishment for possessing small quantities of prohibited substances.
Fact of the Case:
A secret information led to the apprehension of the appellant with 950 grams of charas. The appellant was convicted under Section 20 of the NDPS Act, 1985 and sentenced to ten years of rigorous imprisonment and a fine of Rs.1,00,000.
Finding of the Court:
The court upheld the judgment of conviction, finding that the prosecution had successfully proven the guilt of the appellant. The court also reduced the appellant's sentence to nine years with a fine of Rs.90,000, considering the Amendment Act of 2001.
Issues: The issues included the compliance with Section 50 of the NDPS Act, the validity of the evidence presented by the prosecution, and the applicability of the Amendment Act of 2001 to the appellant's case.
Ratio Decidendi: The court found that there was compliance with Section 50 of the NDPS Act, and the testimonies of the raiding party members, along with the CFSL report, established the guilt of the appellant. The court also applied the beneficial provisions of the Amendment Act of 2001 to reduce the appellant's sentence.
Final Decision: The court upheld the judgment of conviction and reduced the appellant's sentence to nine years with a fine of Rs.90,000, directing the appellant to surrender immediately to serve the remaining sentence of imprisonment.
1. Aggrieved by the judgment of conviction dated 25th April, 2001 convicting the appellant finding him guilty under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act, 1985) and order on sentence dated 28th April, 2001 vide which the sentence was passed against the appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-for the offence punishable under Section 20 of the NDPS Act, in default of payment of fine, convict was ordered to further undergo rigorous imprisonment for one year, the present appeal has been filed.
2. The facts in brief are that a secret information was received on the basis of which the police on 23rd September, 1999 at about 06.45 p.m., apprehended two persons namely Indul Shah (appellant herein) and Munna, from Chatta Rail chowk, Delhi. Notice under Section 50 of the NDPS Act, 1985 was served to which the accused persons refused to exercise the said option and their refusal was recorded to writing. Thereafter, on the direction of Additional SHO, who also reached the spot after receiving a wireless message, search of the accused Indul Shah was effected and one polythene packet of light green colour was recovered from the right hand pocket of the pant of the accused, which when opened was found to contain charas in the shape of sticks to the tune of 950 grams. Out of 950 gram charas recovered, 100 gram was separated as sample which was kept in white paper and the remaining charas was kept in the light green colour polythene and kept in two separate parcels. Thereafter, search of the accused Munna was effected by the same ASI but no incriminating article was found from his possession. It appears from the record that the case property was seized vide seizure memo Exh.PW 5/D; CFSL form was filled in and sealed; tehrir was prepared Ex.PW 11/A; FIR No.581/99 was registered; case property was handed over to the SHO; accused was arrested; the sample was got chemically analysed and after completion of the investigation, accused was sent for trial to the court. It further emerges from the record that charge under Section 20 of the NDPS Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. The prosecution had examined as many as eleven prosecution witnesses namely PW 1 Kamlesh Miglani; PW 2 Const.Satish Kumar; PW 3 HC Babu Lal; PW 4 HC Purshotam; PW 5 HC Dalbir Singh; PW 6 Const.Satbir Singh; PW 7 HC Prem Kumar; PW 8 Const.Kavinder; PW 9 Const.Yashbir; PW 10 SI Sanjay Sharma & PW 11 ASI Satpal. The statement of the accused Indul Shah was recorded under Section 313 of the Cr.P.C.
4. The appellant was held guilty by the learned Additional Sessions Judge, Delhi and by an order dated 28th April, 2001, sentenced to undergo rigorous imprisonment for ten years and fined rupees one lakh for the offence punishable under Section 20 of the NDPS Act, 1985. In default of payment of fine, the convict was to further undergo rigorous imprisonment for a period of one year.
GROUNDS OF CHALLENGE
(a) There was no evidence of independent witnesses though the spot wherefrom the appellant was apprehended, was a busy market area. There have been material contradictions and infirmities in the evidences of the various witnesses. The statement of Malkhana Moharrar i.e. PW 4 HC Purushottam was not recorded by the investigating officer and that the said witness was totally silent about the deposit of case property and samples in the malkhana, till 3rd November, 1999. It was also alleged that there was violation of Sections 50 of the NDPS Act inasmuch as before the appellant was apprehended, the investigating officer had registered the case and the FIR was already registered. The investigating officer had not drawn the representative samples as per law. The provisions of Section 42 as well as Sections 55 & 57 of the NDPS Act were not complied with. The defence evidence has not been taken into consideration
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