RAM KHILAWAN Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) Appellant-Ram Khilawan has filed this appeal challenging his conviction under Section. 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentence of rigorous imprisonment for ten years and a fine of Rs. 1)00,000 (onelakh) and in default of payment of fine, to undergo further rigorous imprisonment for six months.

(2.) The facts, in brief, are that SI L. C. Yadav (Public Witness 6), when posted in Police Station Naraina, accompanied by SI Rai Singh and Constable Daryao Singh was stated to be patrolling in 'H' Block of Naraina Vihar and at about 6.10 P.M. he rereived a secret information that a person having opium with him would be coming from the side of Railway lines. He immediately requested 4 or 5 passers-by to Join the raiding party and out of them Public Witness 5 Jai Parkash and Public Witness 8 Mahesh Chand agreed to join the raiding party thereafter necessary Naqabandi was held in 'G' Block of Naraina Vihar and at about 6.30 P.M. the appellant, was seen coming from the side of Railway lines having one thaila in his right hand. On the pointing out by the informer, the appellant was apprehended and was apprised of the secret information that he would be having opium in his possession and he was offered that his search could be taken in presence of a gazetted officer or a Magistrate. On his declining the option, his thaila was searched and it was found to contain two polythene envelopes, one of the polythene envelopes contained opium which on weighment was found to be 310 gms out of which 10 gms was taken, as sample and the same as well as the remaining opium were converted into sealed parcels. The second polythene envelope: contained currency notes of Rs. 3,750 which were also taken into possession. Necessary CFSL form was prepared and a specimen seal was put on the said form. The case property was taken into possession vide memo Ex. Public Witness 5/A which was signed by the said public witnesses as well. Rukka Ex. Public Witness I/A was prepared on the basis of which a case was got registered vide F.I.R. copy of which is Ex. Public Witness 1/.'B. Site-plan Ex. Public Witness 6/A was prepared. The case property as well as the appellant were produced before the SHO who also affixed his seal on the case property and the case property was got deposited in the Malkhana. The sample was later on sent to the Central Forensic Science Laboratory and report Ex. Public Witness 6/B was received from the CFSL showing that the sample gave positive test for opium. One of the public witnesses Jai Parkash (PW5) had turned hostile as he did not identify the appellant as the same person who was apprehended having opium in his possession on that day and at that particular time, and place. He also tried to twist the prosecution case by deposing that in fact, no option was given to the appellant that his search could be carried out in presence of a gazetted officer or a Magistrate if he so desired. He was duly confronted with his statement made to the police under Section 161 of the Code of Criminal Procedure where these facts stood recorded, copy of which is Ex. Public Witness 5/C portion A to A.

(3.) The learned counsel for the appellant has, however. contended that there has appeared serious contradictions in the testimony of various witnesses which throw doubt on the prosecution case. He has pointed out that Public Witness 5 had stated that he and Public Witness 8 were going on a motor-cycle when police party had asked them to join and then they joined as public witnesses whereas Public Witness 8 had deposed that he was going alone when he was asked to join and the other public witness was already present with the raiding party. It is true that these contradictions have appeared in the prosecution case but this court cannot lose sight of .the fact that Public Witness 5 is not a truthful Witness inasmuch as he had even refused to identify the appellant as the person from whom the opium was recovered although he admits having joined the raiding party and opium being recovered from one person on that day at that time and at that place who was pointed out by the secret informer. It appears that this witness was out and out to help the appellant so that the appellant could get himself acquitted from this case. Public Witness 6 Investigating Officer SI L. C. Yadav and Public Witness 7 SI Rai Singh have not made any such contradictory statements with regard to the manner in which public witnesses were joined. They gave out the same type of facts as given out by Public Witness 8 Mahesh.