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2020 Supreme(Del) 926
IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, J.
Sunil Sharma - Appellant
Versus
State - Respondent
CRL.M.C. 1850/2017
Decided On : 09-01-2020
Mr.Kirti Uppal, Sr. Advocate,with Mr.Shailendra Babbar, Mr.Ajay Kumar, Ms.Manisha Parmar & Ms.Siddhi Mittal, Advocate, for the Appellant, Mr.Rahul Mehra, Standing Counsel (Crl.) with Mr. Panna Lal Sharma, APP & Mr.Chaitanya Gosain, Advocate Addl. DCP Seweta Chauhan, Insp.Jarnail Singh, ACP Tilak R. Malhotra & Insp.Sailender Sangwan, SHO/Crime Branch. Mr. Madhu, NIC, CGO Complex
The main legal point established in the judgment is that the unavailability of the original electronic file of the FIR, due to system transition, does not constitute illegality, and the petitioner may seek remedy under the law if necessary.
Headnote:
NDPS Act - Quashing of Order - Section 91 Cr.P.C. - [Section 9A, Section 25A of the N.D.P.S. Act] - The court discussed the application of Section 91 Cr.P.C. and the unavailability of the original electronic file of the FIR due to the transition from CIPA to CCTNS. The key legal provisions discussed were Section 91 Cr.P.C. and Section 65 (B) of the Indian Evidence Act, 1872. The interpretation of the unavailability of the electronic file and the requirement of the original electronic file as evidence influenced the court's decision to dismiss the petitioner's application.
Fact of the Case:
The petitioner sought to quash an order passed by the Special Judge NDPS-02, regarding an application under Section 91 Cr.P.C. The prosecution alleged illegal trading of Ephedrine by the petitioner and seized the substance, leading to the filing of an FIR.
Finding of the Court:
The court found that the unavailability of the original electronic file of the FIR due to the transition from CIPA to CCTNS did not constitute illegality or perversity in the impugned order. The petitioner was advised to seek remedy under the law if there were defects in the system.
Issues: The issues revolved around the unavailability of the original electronic file of the FIR and the petitioner's contention that it was vital evidence to falsify the prosecution's case.
Ratio Decidendi: The court's decision was based on the finding that the unavailability of the original electronic file did not constitute illegality, and the petitioner was advised to seek remedy under the law if necessary.
Final Decision: The court upheld the impugned order and advised the petitioner to take steps as per the law if they felt the need to summon any document.
JUDGMENT
1. Vide the present petition the petitioner seeks directions thereby quashing of order dated 18.02.2017 passed by Special Judge NDPS-02, (Central), Tis Hazari Courts, Delhi in F.I.R. No. 82/2015 registered at P.S. Crime Branch whereby an application bearing M.A. No. 35 / 2016 under section 91 Cr.P.C. was disposed off.
2. The case of the prosecution is that on 30 th May 2015 at around 12:45 pm, the Police of P.S. Crime Branch, Prashant Vihar Office, Delhi had received secret information from its informer that one person namely Sunil Sharma, petitioner herein, who is dealing in the trade of medicines and is having a Shop on the Second Floor, Ram Gali, Bhagirath Palace, Delhi was going to come to his shop between 2:00 P.M. to 3:00 P.M. with a consignment of Ephedrine. The said Sunil Sharma is into the illegal trading business of Ephedrine. Consequently, on the instructions of the superior officers, a raiding party was constituted consisting of SI Sanjay Kumar, HC Rohtash, HC Shiv Charan, Ct. Ravinder and Ct. Jitender, of Spl. Team Crime. At 1:15 P.M, the raiding party had left from Crime Branch office, Prashant Vihar, Delhi on a vehicle with IO Bag, Field Testing Kit and weighing machine and had reached at the spot, as told by the secret informer, on 30.05.2015 at around 2:20 P.M. and had laid the trap. At around 2:35 P.M., a person wearing white shirt and brown pant carrying in his hand ''a black coloured polythene bag'' came and tried to climb the stairs of the building. He was identified by the secret informer to be Sunil Sharma, the petitioner herein, and was carrying Ephedrine with him. At about 2:37P.M., when the said person was about to enter his shop, he was apprehended by the police and the black polythene bag was taken in custody and upon interrogation the said person revealed his name to be Sunil Sharma, R/o C-3/57, Ashok Vihar-II, Delhi.
3. It is further the case of the prosecution that the material carried by Sunil Sharma in the black polythene bag was checked by the raiding party on the Field Testing Kit and after having found Ephedrine, weighing around 10.2 Kg, it was confiscated and thereafter the raiding party withdrew from the said material two samples of 250 gms. each. At around 6:40 P.M., the information of seizure of Ephedrine by the raiding party along with the copy of the seizure memo was sent to the S.H.O. / Crime Branch for the registration of the case and a request was made to depute another officer for investigation. At about 8.05 P.M the information was received at the Police Station Crime branch, Delhi and consequent to that an F.I.R bearing no. 82/2015, was registered by the police of Police Station Crime Branch, Delhi. SI Dinesh Kumar took over the investigation from SI Sanjay Kumar to conduct further investigation in this case. SI Dinesh Kumar after reaching the spot made inquiries from SI Sanjay Kumar and on his instance, prepared a ''Site Plan'' on the spot and had recorded statement of HC Shiv Charanafter making inquiries from him. SI Dinesh Kumar, after reaching the spot, made inquiries from Sunil Sharma, (petitioner herein) at about 2:30 A.M. The petitioner was arrested and remained in detention of the police at Police Station Crime Branch at Bhagirath Palace, Chandni Chowk, Delhi from 2:37 p.m. of 30.05.2015 up till 2:30 a.m. of 31.05. 2015, the place where the business establishment of the petitioner was situated. It is also the case of the prosecution that the intimation of arrest was given to the son of the petitioner.
4. On 04.01.2016 challan of the case F.I.R No. 82/2015 was filed in the Court and consequent upon the receipt of summons, the petitioner appeared before the designated Court and accordingly on 22.02.2016, charges under Section 9A read with Section 25A of the N.D.P.S. Act were framed and the matter was adjourned for 18.04.2016 for prosecution evidence. Thereafter, two witnesses were examined, out of which cross examination of one of the witnesses of the prosecution wa
