BAGRU RAM Vs. STATE OF DELHI

JUDGEMENT

(1.) This appeal is directed against the judgment and order of the Special Judge dated 17.7.1999 in SC No. 284/97 arising out of FIR No. 442/90, Police Station, Railway Main Delhi, under Sections 21/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') holding the appellant, Bagru Ram, guilty of possessing 4 kgs. of heroin and 6 kgs. of opium on 26.11.1990 and for having committed offence punishable under Sections 21 /18 of the Act. Further by his order dated 19.7.1999, the learned Judge was pleased to sentence the appellant to 20 years rigorous imprisonment with a fine of rupees two lakhs for the offence under Section 21 and in default of payment of fine to further undergo simple imprisonment for two-and-half years and 10 years rigorous imprisonment and a fine of rupees one lakh for the offence under Section 18 and in default of payment of fine to further undergo simple imprisonment for two years. The sentences were to run concurrently.

(2.) The case of the prosecution against the appellant is that on 26.11.1990 at about 1.30 p.m. SHO, Inspector Satinder Nath, received a secret information which was recorded vide DD No. 10-A through Duty Officer. Thereafter, a raiding party was constituted in which one public witness, Ramesh, was joined. The aforesaid raiding party reached west passenger hall, near platform Nos. 18 and 19 of Railway Station Delhi Main at around 2.00 p.m. The accused was seen coming holding a suit case in his right hand and at the pointing out of the informer, the accused was apprehended by Inspector Sanjeev Gupta. Thereafter the Investigating Officer revealed to the accused that he had information in respect of the accused being in possession of narcotics and, therefore, gave him an option of being searched before a Magistrate or a Gazetted Officer. It is stated that the accused refused to exercise his opinion whereafter ACP Hira Lal was called to the spot who reached there at about 2.15 p.m. and the search was conducted in his presence. From the suit case held by the accused, 10 thailies of cloth were recovered; four of the thailies upon opening were suspected to contain heroin in crystal form while the balance six thailies were suspected of containing opium. On weighing, each thaily was of one kg. From each of the thaily 50 gms. substance was taken out as sample. The thailies were numbered 1 to 10 and correspondingly the samples from each of the thailies was numbered 1 to 10. The case property was sealed and Form CFSL filled in and impression of the seal was affixed. The seal of the SHO was given to the public witness, Ramesh, after use. All the parcels were put in the suit case, which was seized, vide Memo No. Ex. Public Witness 7/B and thereafter the suit case, the CFSL Form and copy of the seizure memo were handed over to the SHO for deposit in the Malkhana. The SHO deposited the same before the Mohrar Malkhana. The Investigating Officer prepared Rukka which resulted in the registering of the FIR and the accused was arrested. After completion of investigation, charge-sheet was filed in the Court and charges framed under Sections 21/18 of the Act. The prosecution led as many as 11 witnesses to prove the case. The learned Special Judge, on appraisal of the evidence adduced before him, returned a finding as has been stated above.

(3.) With the help of learned Counsel for the parties, I have been taken through the record of the case as also the judgment under appeal. It is the case of the appellant before me that in the present case there is violation of Sections 42(2), 50,55 and 57 of the Act. Learned Counsel for the appellant submitted that violation of mandatory provisions of the Act would vitiate the trial as has been held by the Supreme Court in State of Punjab v. Baldev Singh, 1999 (6) SCC 172=III (1999) CCR 109 (SC)=VI (1999) SLT 109. Learned Counsel referred to the evidence of Public Witness 9, ACP Satinder Nath who has stated that on 26.11.1999 he was working as SHO, Police Station, Railway Station Delhi Main. On that day at about 1.15 p.m. he received a secret information in respect of possession of narcotic drugs by a person. He directed the Duty Officer to record this information in the daily diary as DD No. 10-A at 1.30 p.m. (Ex. Public Witness 9/A). Immediately thereafter he constituted a raiding party consisting of SI Sanjeev Gupta, Const. Raj Nath, Const. Aayas Khan, Const. Kallu Singh, Const. Satish Kumar and joined a public witness, Ramesh, and laid a naka at west passenger hall at the Railway Station Delhi Main. After apprehending the accused, it is stated in the deposition that SI Sanjeev Gupta narrated to him the secret information received regarding the possession of certain narcotic drugs and offered that the accused may give his personal search before a Gazetted Officer or a Magistrate if he so desired. The accused refused to offer his search before any Gazetted Officer or Magistrate. Despite his refusal, the then ACP, Mr. Hira Lal, was called on the spot.