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2019 Supreme(Del) 1759
IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
Tahejul Seikh @ Siraj - Appellant
Versus
The State - Respondent
CRL.A. 125, 592 of 2017
Decided On : 22-04-2019
For the Appellant :Mr. P.K. Anand, Advocate, Mr. Harsh Prabhakar.
For the Respondent: Mr. Ashok Kumar Garg, APP with ASI Abdul Barkat.
The main legal point established in the judgment is that convicting an accused under a section for which no charge was framed causes prejudice, and serious infirmities in the prosecution's case can lead to the benefit of doubt being granted to the accused.
Headnote:
NDPS Act - Conviction under Section 21(c) - Section 21, Section 29 - The judgment discusses the conviction of the appellants under Section 21(c) of the NDPS Act and the legal provisions of Section 21 and Section 29. It highlights the issue of framing charges and the prejudice caused by convicting the accused under a section for which no charge was framed. The judgment also addresses the doubts raised regarding the handling and sealing of the contraband, the permission for the raid, and the infirmities in the prosecution's case.
Fact of the Case:
The appellants were convicted for an offence under Section 21(c) of the NDPS Act based on the prosecution's case of heroin supply. The defense raised issues regarding inconsistencies in evidence, non-compliance with search procedures, lack of credible evidence, and doubts about the handling and sealing of the contraband.
Finding of the Court:
The court found that the conviction under Section 21(c) without framing a charge for the same prejudiced the accused. It also noted serious infirmities in the prosecution's case, including doubts about the handling and sealing of the contraband, permission for the raid, and inconsistencies in the evidence.
Issues: The issues included the framing of charges, compliance with search procedures, credibility of evidence, doubts about the handling and sealing of the contraband, and permission for the raid.
Ratio Decidendi: The court's decision was influenced by the failure to frame a charge under Section 21 NDPS Act, doubts about the handling and sealing of the contraband, inconsistencies in the evidence, and doubts about the permission for the raid. These factors led the court to grant the benefit of doubt to the appellants and set aside the conviction and sentence.
Final Decision: The judgment set aside the conviction and order on sentence for the appellants, directing their release if not required in any other case.
JUDGMENT :
Mukta Gupta, J.
1. The present appeals are directed against the judgment dated 22nd December, 2016 passed by the learned Special Judge, NDPS whereby the appellants Tahejul Seikh @ Siraj and Naseem were convicted for offence punishable under Section 21(c) of Narcotics Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). Vide order on sentence dated 22nd December, 2016, they were sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for six months.
2. Briefly, the prosecution case is that on 30th May 2013 at about 8:00 A.M., a secret information was received regarding one person namely Tahejul, a resident of Paharganj who was involved in supply of heroin in the area of Delhi and was to come near Idgah Mor, Rani Jhansi Road, Delhi between 9:30 A.M. to 10:00 A.M. to supply heroin to one man namely Naseem, resident of Raghubir Nagar. The secret informer was produced before Inspector Vivek Pathak who made inquiries from him and further informed ACP Udaivir Singh who directed that a raiding party be constituted. Aforesaid information was recorded vide DD No.6 (Ex.PW-3/B). SI Sunil Jain constituted a raiding party consisting of himself, HC Yogesh, Ct. Kheta Ram and HC Om Prakash and informed them regarding the secret information. At around 8:45 A.M. they left from the Narcotics Cell in government vehicle bearing number DL-1-CM-4228 and reached the spot near Idgah Mor, Rani Jhansi Road at about 9:15 A.M. via Pusa Road, Shantivan Flyover, Paharganj. On the way he requested five persons at Pusa Road and JPN Hospital road and four persons at the spot to join the raiding party but they refused to join. They parked the government vehicle at Rani Jhansi Road at a distance of about 50 meters from the spot towards Jhandewalan mandir. Thereafter, he along with the informer took the position on the footpath near the corner of idgah. HC Om Prakash was standing at Rani Jhansi Road towards Jhandewalan Mandir. At about 9:35 A.M., one person wearing khaki colour trousers and having a black colour polythene in his right hand was seen coming from the side of Sadar Bazar Police Station on foot, he crossed them and stood on the road in front of HC Om Prakash and started waiting for someone. The secret informer identified this person as Tahejul. Few minutes later one person wearing brown colour check shorts was seen coming from the opposite side of the road, he crossed the road and came near Tahejul. The secret informer identified this person as Naseem. Tahejul and Naseem started talking to each other after which Tahejul handed over the black polythene to Naseem. Thereafter, SI Sunil with the help of the members of the raiding team apprehended the appellants at about 9:45 A.M. On enquiry they revealed their names as Tahejul Sheikh and Naseem. He informed the appellants of their legal right to be searched in the presence of a Gazetted Officer or Magistrate but both of them refused to exercise their legal right. He prepared and served the notice under Section 50 NDPS Act vide Ex.PW-1/A and Ex.PW-1/B on Tahejul and Naseem respectively which they refused to sign. Thereafter he searched the Appellants. On personal search of Naseem a black colour polythene was recovered which was found containing a transparent polythene tied with a rubber band. The polythene was found containing matiala colour powder. On testing the powder, it was found to be heroin. Thereafter, he checked the weight of the polythene which weighed 520 grams. He prepared two samples of 5 grams each and kept the same in two separate cloth parcels that were given the mark A and B and the remaining heroin was given the Mark C. He prepared the FSL form and affixed his seal 3 APS NB DELHI on all the cloth parcels i.e. mark A, B and C and FSL form. He took the case property into possession vide seizure memo Ex.PW-1/E. Thereafter, he conducted the search of Tahejul and n
