MOHD ANWAR ALIAS ANNU Vs. STATE

JUDGEMENT

(1.) By this appeal, the Appellant lays a challenge to his conviction for offence punishable under Section 21 of NDPS Act, 1985 (in short the 'Act'), and a sentence of Rigorous Imprisonment for 10 years and a fine of 1,00,00/- and in default of payment of fine, to further undergo simple imprisonment for a period of one year. The Appellant was charged for the offences along with Bishan Singh @ Natia and Parveen Singh @Kalia. All the three accused were convicted by the impugned order. Bishan Singh who was granted interim bail during the trial absented on 19th May, 1999 and the non-bailable warrants issued against him were received back unexecuted so he was declared a proclaimed offender on 12th July, 1999. Thus, the Appellant Mohd. Anwar and co-convict Parveen Singh were heard on the point of sentence and both were awarded the sentence as mentioned above. Criminal Appeal No. 493/1999 filed by Parveen Singh @ Kalia has already been disposed of by this Court vide judgment dated 11th November, 2010 wherein he has been acquitted in view of the non-compliance of Section 50 of the Act Thus, the present appeal filed by Mohd. Anwar @ Annu is being decided separately.

(2.) Briefly, the prosecution case is that prior to 14th July, 1998 there was an information with the Operation Cell, Ashok Vihar that some persons in Rohini are indulging in the business of narcotics and are supporting the terrorist. Further information was developed in this regard and on 14th July, 1998 at about 4:30 p.m. the informer who informed that Bishan Singh who indulged in the business of narcotics will come from his house B-22, Sector-7, Rohini along with his associates to distribute smack. This information was recorded in the Roznamcha vide DD Entry 17, Ex PW 11/A. This information was also passed on to ACP Amrik Singh Bhuller PW2 and the raiding party was formed; comprising of Inspector Babu Singh PW11, Inspector Ishwar Singh PW10, Inspector Bharat Singh PW 7, SI Jagtar Singh, SI Karan Singh PW6, ASI Jhandu Ram PW4, ASI Jagdish, H.C. Harkhayal, HC Anil and HC Naug Raj who left the Operation Cell vide departure entry DD 18 Ex. PW11/B at about 4:40 p.m. on two motorcycles and four two wheeler scooter. They requested 4-5 public persons in Ashok Vihar Market to join the raiding party however no one agreed and at about 5:30 p.m. they reached Sarvodaya School where they again requested 4-5 people to join, but none agreed. Nakabandi was laid in front of Uday Singh Market, Sector-7, Rohini. At about 6:30 p.m. on the pointing out of the informer, three persons namely Bishan Singh, Parveen Singh and Mohd Anwar were stopped while coming on scooter DL 8 SH 5512 which was being driven by Parveen Kumar. All the three accused were surrounded and informed that they are police officials and because they are in possession of smack, therefore, if they want they can take search of police officials but they declined. Inspector Bharat Singh was sent to make a telephone call to ACP Amrik Singh Bhuller, PW2 and SHO P.S. Rohini, Insp. Gurdial Singh PW5 and they were called at the spot. Thereafter, individual notices under Section 50 of the NDPS Act were served on all the three accused and they were asked if they want to take the search of the police official they can do so but they declined. They were further asked if they want to be searched before a Gazetted Officer/Magistrate to which they also declined. ACP, Amrik Singh Bhuller, PW 2 reached the spot at about 7:00 p.m. who was apprised of the facts and was also informed about the Section 50 notice being already served on them. Thereafter, Insp. Bharat Singh took the search of the accused. The Appellant was searched and from his right hand, a purple colour polythene on which Ganga Drydeaners was written was recovered which contained a black colour polythene containing 1 Kg. of smack, out of which 10 grms. was taken as sample and the remaining smack was sealed in parcel and the sample was given Serial No. S2. In addition, search of accused Parveen and Bishan Singh was conducted and on the disclosure of Bishan Singh his house in Sector-7, Rohini was searched where material used for supply and preparing of smack, polythene bags, staples machines etc were recovered. As the present appeal relates only to Mohd. Anwar, this Court can digress from the said facts. After completion of the investigation, the charge-sheet was filed. The Appellant was charged for offence punishable under Section 21 of the Act for being found in possession of 1kg. smack. After recording the prosecution evidence and the statement of the accused, the learned Special Judge convicted the Appellant as above.

(3.) Earned Counsel for the Appellant contends that there are material discrepancies in lodging of the FIR, sealing of the case property, the sample seized and sealed, depositing the same in Malkhana, sending them to CFSL and the report thereof. There are discrepancies in the statements of the witnesses as some of the witnesses have stated that from the Appellant a polythene of purple colour with 'Ganga Drycleaner' written on it was recovered whereas the parcel No. 2 was a white polythene on which 'Manzone' was written. The information received prior to 14th July, 1994 was not reduced in writing which is a mandatory requirement under Section 42 of the Act. This information was also not sent to the senior officers as required. As per the testimony of PW2, ACP Amrik Singh Bhuller, no public witness was asked to join the proceedings in his presence. As per PW3 HC Prem Singh who was posted at PS Rohini and was working as MHCM, the personal search of the accused was deposited with him at 11:45 p.m. whereas the case property had been deposited by the SHO Gurdial Singh PW5 at 10:00 p.m. No copy of the Section 50 notice had been deposited along with the personal search memo of the Appellant. The name of the officer who deposited the case property has not been mentioned in the Register No. 19. There is no mention of deposit of form CFSL in the Malkhana Register. Moreover, it is also not mentioned that along with the sample parcel form CFSL was sent. The earned Counsel next contended that no signatures on Malkhana register were obtained of PW1 HC Chittar Singh who took the articles to CFSL Chandigarh. Also PW 4 AS.I Jhandu Ram who took the ruqqa to the police station has not stated about any independent person being requested to join the raiding party. PW4 further states that Inspector Babu Singh called the SHO PW5 and ACP PW2 whereas other witnesses have deposed that Inspector Bharat Singh called the ACP & the SHO. PW 7 Inspector Bharat Singh in his testimony has stated that the purple polythene which was taken out from this parcel did not pertain to parcel No. 1 but it pertained to parcel No. 2. Thus the polythenes have been interchanged. All the witnesses have deposed that one seal each of 'BS' and 'GS' was put on the samples however when the samples reached the CFSL, three seals were found and thus tempering with the samples cannot be ruled out. It is, therefore, contended that in view of the discrepancies in the statements of the witnesses and in view of the fact that Section 50 and 42 of the Act have not been complied with in true spirit, the Appellant is entitled to be acquitted.