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2018 Supreme(Del) 1943
IN THE HIGH COURT OF DELHI AT NEW DELHI
C.HARI SHANKAR, J.
Binod Kumar @ Bindu – Appellant
Versus
State – Respondent
CRL.A. 557 of 2016
Decided On : 24-08-2018
For the Appellant : Ms. Naomi Chandra, Adv.
For the Respondent: Mr. G.M. Farooqui, APP with SI Ramkishan, Crime Branch, Shakarpur, Delhi
A statement recorded under Section 67 of the NDPS Act by a police officer is not admissible in evidence.
Headnote:
NDPS ACT - SECTION 20 - POSSESSION OF GANJA - EVIDENCE - TESTIMONY OF POLICE WITNESSES - ADMISSIBILITY OF STATEMENT UNDER SECTION 67 OF THE ACT - SAMPLING AND TESTING OF GANJA - QUANTITY OF GANJA - COMMERCIAL QUANTITY - PUNISHMENT.
Fact of the Case:
The appellant was convicted under Section 20 of the Narcotics Drugs and Psychiatric Substances Act, 1985 (NDPS Act) for possession of 139 kg of ganja. The prosecution's case was based on the testimony of police witnesses, the appellant's statement under Section 67 of the Act, and the FSL report.
Finding of the Court:
The court held that the appellant's statement under Section 67 of the Act was not admissible in evidence as it was recorded by a police officer. The court also found that the manner in which the ganja was sampled and tested was unsatisfactory and that it could not be said with certainty that the quantity of ganja being carried was commercial quantity. The court further held that the appellant had already suffered incarceration for over 6 years, which was more than the maximum punishment that could have been imposed on him if the quantity of ganja was treated as less than commercial quantity.
Issues: 1. Whether the appellant's statement under Section 67 of the NDPS Act was admissible in evidence? 2. Whether the manner in which the ganja was sampled and tested was satisfactory? 3. Whether the quantity of ganja being carried was commercial quantity? 4. Whether the appellant had already suffered incarceration for more than the maximum punishment that could have been imposed on him?
Ratio Decidendi: 1. The court held that the appellant's statement under Section 67 of the NDPS Act was not admissible in evidence as it was recorded by a police officer. The court relied on the Supreme Court decision in Noor Aga v. State of Punjab, (2008) 16 SCC 417, which held that a statement recorded under Section 67 of the Act would attract Section 25 of the Evidence Act, and would not be admissible in evidence. 2. The court held that the manner in which the ganja was sampled and tested was unsatisfactory. The court noted that only 1/2 kg of ganja was drawn from the total quantity of 139 kg, and that the percentage of ganja contained in the sample tested by the FSL was not forthcoming. The court held that it could not be said with certainty that the quantity of ganja being carried was commercial quantity. 3. The court held that the appellant had already suffered incarceration for over 6 years, which was more than the maximum punishment that could have been imposed on him if the quantity of ganja was treated as less than commercial quantity. The court noted that the maximum punishment for possession of less than commercial quantity of ganja is six months' rigorous imprisonment or a fine of ten thousand rupees, or both.
Final Decision: The court allowed the appeal, set aside the conviction and sentence of the appellant, and ordered his release.
1. Vide the impugned judgment dated 3rd March, 2016, followed by order on sentence dated 10th March, 2016, the appellant stands convicted, by the learned Special Judge, NDPS, under Section 20 of the Narcotics Drugs and Psychiatric Substances Act, 1985 (hereinafter referred to as “the Act”), and sentenced to rigorous imprisonment for 12 years and fine of Rs.1,00,000/-, with default simple imprisonment of six months.
2. The relevant facts, as set out in the Special Report, submitted by SI Virender Singh (PW-15) under Section 57 of the Act, read thus:
“It is submitted that on 29/7/2012, secret information was received vide DD No.4 at 10:30 AM and after compliance of sec. 42 NDPS Act, a trap was laid near Monkey Bridge behind Red Fort, ring road, Kotwali, Delhi. At about 12 Noon one person namely Binod Kumar @ Bindu s/o Sumer Prasad r/o N-9 B/274, Jhuggi Lal Bagh, Azadpur, Delhi was apprehended along with a hired vehicle tempo No. DL 1 LL 9760, Notice U/S 50 NDPS act was served upon him and his legal rights were explained. After his refusal, search of the hired vehicle was conducted as per law. During search 5 plastic bags were recovered from his hired vehicle. All bags were given mark 1 to 5. All bags were opened and checked. In the plastic bags sl no. 1 & 2 was having 25-25 packets, sl.no.30 was having 30 packets, Sl. No.4 was having 36 packets and Sl.No. 25 was having 23 packets. Weight of each packet was 1 Kg each. Some small quantity was taken out from each parcel and two sample of 250/250 gms each were prepared. marked A & B. Rest of the Ganja recovered was kept as it was recovered and all were kept in 5 pulandas and marked as sl. No.1 to 5, FSL form filled up. All the pulandas and FSL forms were sealed with the seal of SP. After use, the saal was handed over to HC Suresh Kumar No. 1221/Cr. SI Samar Pal took all the 7 pulandas and vehicle into police possession through seizure memo and prepared rukka u/s 20/25 NDPS Act against the accused person and handed over to Ct. Anil No. 1701/Cr. Along with the case property, FSL form and carbon copy of the case property seizure memo for registration of the case and depositing the case property by SHO/Crime Branch, Delhi. The further investigation of the case is being carried over by under signed. I reached on the spot i.e. Monkey Bridge, behind Red Fort, Ring Road, Kotwali. Delhi and prepared the site plan, interrogated the accused persons, arrested the accused person namely Binod Kumar @ Bindu s/o Sumer Prasad r/o N-9 B/274, Jhuggi Lal Bagh, Azadpur, Delhi at 7 p.m. dated 29/7/2012 after his sufficient evidence and recorded his disclosure statement. Then I went to PS-Crime Branch and recorded the statement of SHO/Crime Branch and MHCM/Crime Branch, later that I again came back to the office of SOS and recorded the statement of witnesses. Information of his arrest has been given to his wife Savita personally. The investigation of the case is in progress.”
Witnesses cited by the prosecution
3. The witnesses cited by the prosecution may be divided into three categories, viz.
(i) witnesses to the seizure and recovery of the ganja, i.e. PW-9, PW-10, PW-11, PW-12, PW-14 and PW-15,
(ii) witnesses to the sampling and testing of the seized ganja, i.e. PW-3, PW-5, PW-6, PW-7 and PW-13 and
(iii) other witnesses, i.e. PW-1, PW-2, PW-4, PW-9.
4. Of the various officers who constituted the raiding party, evidence was led, by the prosecution, of HC Suresh, Constable Anil Kumar and SI Samarpal Singh, who deposed as PW-10, PW-12 and PW-14 respectively. To a large extent, the evidence of these three officers was identical; so much so that the examination-in-chief of PW-12 Const. Anil Kumar is a near unsettlingly verbatim reproduction of the examination-in-chief of PW-10 HC Suresh. These three witnesses deposed, in one voice, that (i) the raid team was constituted by SI Samar Pal Singh (PW-14), (
