PREM PAL SINGH Vs. STATE OF DELHI

JUDGEMENT

(1.) This criminal appeal No. 168/98 is directed against the judgment and order dated 21.3.1998 of the Special Judge in SC No. 13/95 from FIR No. 95/95, Police Station Janak Puri, New Delhi under Sections 21/61/85 of the NDPS Act, 1985 whereby the learned Special Judge held the petitioner guilty of an offence under Section 21 of the NDPS Act for being in possession of 120 grams of smack on 23.2.1995 at about 4:25, a.m.' and, therefore by order dated 27.3.1998 sentenced the appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. One lac and in default of payment of fine to under go further rigorous imprisonment for six months.

(2.) The facts of the case, as stated by the prosecution, are that on 23.2.1995, Inspector K.L. Meena with SI K.P. Singh, HC Attar Singh, HC Shiv Kumar, Cons. Satyawan, Cons. Shailesh and Const. Krishan Pal were present in Nangal Rai Village in relation to an investigation in case FIR No. 17/95 under Section 364-A Indian Penal Code P.S. Kirti Nagar because Shashi Bhushan @ Kakku was the friend of Sachin Singh who was the resident of that locality. It is the case of the prosecution that on that day at about 4 a.m. near the house of Sachin a white Maruti car No. DL-5CA-1957 was spotted, an unknown person from that car got down and went into the house. Within a minute or two thereafter, Sachin and that unknown person came out from the said house and sat in the car. The police party suspected that the occupants of the car were responsible for kidnapping and, therefore, they followed them. In the process, this car was apprehended upon which the accused Prem Pal was taken out and subjected to personal search., From the right side pocket of his pant, one 'potli' of white colour in a polythene was recovered, on checking it was found to contain heroin in powder form. This powder was weighed and was found to be 120 grams out of which 15 grams was separated as . sample and the remaining was converted into separate sealed parcel. Form CFSL was filled in at the spot upon which Inspector K.L. Meena affixed his seal. Both the parcels were handed over to the SHO O.P. Yadav, who also affixed his seal of OPY on both the parcels and CFSL form and thereafter both the parcels and the forms were deposited with the Moharrar Malkhana. The Moharrar Malkhana thereafter despatched the same for chemical analysis to CFSL Laboratory, Chandigarh. On 11.7.1995, charge was framed under Section 21 of the NDPS Act to which the appellant pleaded not guilty and thereafter the case was put up for trial.

(3.) The prosecution, in order to prove its case, examined eight witnesses. The learned Special Judge, upon appreciation of evidence, came to a finding that the prosecution has proved the case beyond the shadow of doubt and, therefore, convicted the appellant under Section 21 of the NDPS Act. The learned counsel for the appellant has argued before me that the judgment under challenge as also the prosecution's case suffers from various infirmities. Firstly, there is no evidence on record that the CFSL form, which was supposedly filled in at the spot by Inspector K.L. Meena was deposited in the Malkhana and/or was sent from the Malkhana to the Laboratory along with the samples. He has taken me through the record of the case wherein there is no mention of the CFSL form having been deposited in the Malkhana. The evidence of the Moharrar Malkhana and the inspection of Public Witness-6/A Malkhana Register does not indicate that the CFSL form was deposited along with the sample. Further Public Witness-6/A does not indicate that the CFSL form was sent along with the samples to the laboratory from the Malkhana.- From this, the learned counsel wants me to infer that the impression of the seal which is on the parcels and which was required to be com- pared with those on the CFSL form could not be done, therefore, the identity of the sample is doubtful. He draws my attention to the Judgment of this Court in the case of Safiullah v. State- (Delhi Admn.) 1993 (1) CC Cases 497 (HC) wherein this Court had held that: