MOOL CHAND Vs. STATE

JUDGEMENT

(1.) Appellant has filed this appeal against his conviction and sentence dated 30.5.91 by the learned ASJ, Delhi under Section 18of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short NDPSAct) for being found in possession of 4 kg. of opium. He was sentenced toundergo Rl for ten years and also to pay a fine of Rs. one lac failing whichhe was to suffer SI for 2-1/2 years.

(2.) The story of the Prosecution is that on 11.1.1988 ASI 0mParkash was on patrol duty along with certain police officials. On receivingcertain secret information he organised a raiding party comprising of policeofficials and one public witness Rashid. A Nakabandi was picketed at theintersection of Shanker Gali and Bazar Sita Ram. At about 10.00 a.m. theappellant was apprehended. He was given an option that he could be produced before a Gazetted Officer or a Magistrate for search if he so desired.He, however, declined. He was found to be carrying one brandy colouredbag on his shoulder. On search it was found to contain opium wrapped in apolythene bag. SHO Ram Kumar Sharma was informed about this fact andhe also arrived on the spot. The recovered opium Weighed 4 Kg. A representative sample of 20 grams was separated. The sample and the remainingopium were separately packed and sealed with the seal impression of 'RKS'belonging to the SHO and 'OP' belonging to the 10 0m Parkash. The FormC.F.S.L. was also filled up and affixed with the seal impressions of both theseals. The SHO retained his own seal while the 10 entrusted his seal to thepublic witness Rashid. The case property was seized by recovery memoEx. PW1/A. The sample was sent to C.F.S.L. and report Ex. PA was received from C.F.S.L. which gave positive test for opium. After completion ofinvestigation the challan was filed.

(3.) I have heard arguments advanced by learned Counsel for theparties. The main contention on behalf of the appellant is that in this caseForm C.F.S.L. although allegedly filled up at the spot was neither depositedin the Malkhana nor it was sent to C.F.S.L. along with the sample opium andthus the very recovery of the opium becomes doubtful. In support of hiscontention learned Counsel for the appellant has drawn my attention tosome Authorities of this Court. The first case is that of LachhoDevi v. State1990 (2) C,C. Cases 395. That was a case of the alleged recovery of 2packets containing charas and each weighing 500 grams. It was found inthat case that there was no reliable evidence on record to show that theC.F.S.L Form was also deposited with Moharrar Malkhana and that thesame remained in his custody till it was allegedly sent with the sample toC.F.S.L. There was also no mention in the Malkhana register about thedeposit of C.F.S.L. Form with Moharrar Malkhana. The appellant was givenbenefit of doubt and acquitted. The second case is that of Anoop Joshi v.State, 1992 (2) C.C. Cases 314. It was a case of recovery of 400 grams ofsmack. It was found in that case by this Court that the prosecution had notcared to prove as to where the C.F.S.L. Form was kept before it was handedover to the Constable who took the sample parcel to the C.F.S.L. TheInvestigating Officer did not depose that the C.E.S.L. Form was depositedalong with the case property with the Moharrar Malkhana and was evensilent as to where it had been kept. Even the Moharrar Malkhana who wasalso a member of the raiding party, while appearing as a witness, did not saythat C.F.S.L. Form was deposited along with the case property and there wasno reference to the C.F.S.L. Form in the entry of the Malkhana register. Thatwas the deficiency in the prosecution evidence besides other circumstances.The appellant was acquitted by giving benefit of doubt. In the case ofSafiutlah v. State (Delhi Administration), 1993 (1) Crimes, 204,2 Kgs. ofcharas-was allegedly recovered from the accused. The independent witnessjoined by the raiding party had turned hostile. It was also found that theC.F.S.L. Form was neither filled up nor deposited with the MoharrarMalkhana. On account of these circumstances the appellant was given thebenefit of doubt. In the case before this Court PW-1, Inspector Ram KumarSharma who was S.H.O. Police Station Chandni Mahal at the relevant timedeposed that form C.F.S.L. was filled up and the case property was depositedby him with the Moharrar Malkhana. PW-2 Mobarrar Malkhana HeadConstable Bhim Singh also deposed in examination-in-chief that the caseproperty was deposited in the Malkhana by the S.H.O. However, in crossexamination he admitted that in the Malkhana register the depositor's namewas shown as ASI 0m Parkash. Therefore, the documentary evidence completely contradicts the oral testimony of PW-I Ram Kumar Sharma, SH.O.as well as that of Bhim Singh, .Head Constable himself. PW-7 ASI 0mParkash, 10 does not say a word in his examination-in-chief as to whether hehimself deposited the case property with the Moharrar Malkhana or theS.H.O. Both he and the S.H.O. do say that the form C.F.S.L. was filled up atthe spot. But as already pointed out there is no evidence if C.F.S.L. Formwas deposited with the Mobarrar Malkhana. PW-3 Constable Onkar Singhhad taken the sample parcel from the Moharrar Malkhana and deposited thesame with the C.F.S.L. He also does not say a word about C.F.S.L. formmeaning thereby that neither the C.F.S.L. form was handed over to him northe same was deposited by him with the C.F.S.L. Ex. PA is the report of theC.F.S.L. This report also does not mention if in the laboratory along withsample parcel form C.F.S.L. was also received. Thus taking the entireevidence into consideration, I find that the prosecution evidence is lacking onthe point if form C.F.S.L. was either deposited in the Malkhana or it waseven sent to C.F.S.L. along with the sample parcel. It is also a case whereinthe only public witness joined by the police not only turned hostile but evenwent to the extent of admitting that he had appeared as a prosecution witness in 5 or 6 cases pertaining to this very Police Station. He also goes tothe extent of saying that on 11.1.1988 at about 9-30 or 10-00 A.M. he waspresent in P.P. Turkman gate and made to sign certain documents whichwere neither read over nor explained to him. He also denied having madeany statement to the police.