BAL KISHAN Vs. STATE

JUDGEMENT

(1.) This appeal has been filed by the appellantagainst his conviction and sentence under Section 21 of the Narcotic Drugsand Psychotropic Substance Act (hereinafter referred to as the NDPS Act)for being found in possession of 20 grams of heroin. He was sentenced toundergo RI for 10 years and fine of Rs. one lac or in default of payment offine to suffer SI for one year.

(2.) The brief facts leading to the prosecution of the appellant are thaton 10.6.1987. S.I. Mahavir Singh along with Constable Rishi Pal of PoliceStation Paharganj were patrolling the area in their police station. When theyreached Manji Chock via Vasant Road, two more constables, namely, Jagbirand Ram Pal joined them. While they were near Train Tickets Examinersrest house at 4.15. p.m a secret information was received by the S.I that aknown bad character of the area, namely, Babu Alam would come therebetween 4.30 and 5 p.m. and deliver some smack to Prem Chadha Compounder of Railway Hospital. This information was record and a raidingparty was organised comprising of the police officials alone accompanyinghim because five/six passersby requested to join the raiding party declined.Thereafter, they held a NAKABANDI on the back side of Railway Hospitalin a Power house sub-station. At about 4.40 p.m. the appellant alreadyknown to the S.I. came there from back gate of the Railway Hospital. Theraiding party emerged in its verandaha from hiding. On seeing them theappellant started running towards the side of wall of Karnail Stadium. Hewas over-powered. He was informed that there was some secret informationagainst him and S.I. told him that if he desired he could be searchedbefore an ACP or other gazetted office The appellant declined the offer.The S.I. then offered his own search which was also declined. SHO Paharganjcame to the spot at about 4-50 PM. The S.I. informed him of the incident.The SHO also made an offer whether appellant would like to be searched inthe presence of a gazetted officer or ACP, Paharganj. It was also declined bythe appellant. Then personal search of the appellant was conducted by S.I.Mahavir Singh which yielded recovery of a PURIA of wax paper of whitecolour from the right pocket of the pant worn by the appellant. It was foundto be a white powder of heroin weighing 20- grams. One gram of heroinwas separated as sample. The sample and remaining heroin were separatelyput into two parcels duly sealed with the seal of MSL belonging to S.I.Mahavir Singh. The SHO also affixed his seal with seal impression VM.Form CFSL was also filled up and the seal after use was banded over toConstable Jagbir Singh. The S.I. also put his seal impression on both thePURIAS as well as From CFSL. Both the sealed parcels were taken by theSHO for being deposited in safe custody. Rukka Ex. PW6/B was sent fromthe spot for registration of the case whereupon a formal FIR, carbon copyof which is Ex. PW1/A was recorded at the police station by the duty officerPW-1. The sample was sent to CFSL, Form where the report Ex. PW6/Dwas received indicating that the simple gave positive test for heroin.

(3.) I have heard arguments advanced by learned Counsel for theparties. PW-2 Jagir Singh was a member of the raiding party who deposedthat after recovery of the smack weighing about 20 grams, one gram was'separated as sample. Both the sample and the remaining smack were converted into two separate parcels and sealed with the seal impression MSLbelonging to the 10 and VM belonging to the SHO. The seal of the 10was given to him while the SHO retained his own seal. Form CFSL wasalso prepared at the spot and both sample seal impressions were affixed onthat. Similarly PW-3 Constable Rishipal deposed about the preparation ofthe CFSL form and affixing of seal impressions thereon. PW-6 is the Investigation Officer and he also made a similar statement. However, PW-4 SISardar Singh who was posted as Moharrar Malkhana stated that the twopackets containing the case property and the sample duly .sealed with theseal impressions MSL and VM were deposited with him by the SHO. Hedoes not state if form CFSL was also deposited alongwith the case propertySimilarly PW-3 Constable Rishipal Singh who stated that he had carriedthe seaeld sample packet of this case from Moharrar Malkhana doesnot state if, CFSL form handed over to him by the Moharrar MalkhanaOn the other hand he says that CFSL form was given to him by the10. It is clear from the above evidence that the 10 did not depositthe CFSL form with the Moharrar Malkhana. Rather he handed over thesame to Constable Rishipal Singh at the time he took- the sampleparcel to CFSL. 10 on the other hand does not depose that he gaveCFSL form to Constable Rishi Pal Singh. It has been laid down in anumber of authorities by this Court that when it is not shown by theprosecution that CFSL form was not deposited in the Malkhana, thepossibility of the sample parcel being tampered with cannot be ruled out.Learned Counsel for the appellant has drawn my attention to some Authorities of this Court. These are Lachho Devi v. State, 1990(2) C.C. Cases 395,Anoop Joshi v .State ,1992(2) CC.Cases314and Safiullah v State (DelhiAdministration), 1993(1) Crimes, 204. In all these cases the accused wasgiven benefit of doubt on account of the fact that CFSL form was neitherdeposited with the case property in the Malkhana nor taken to CFSL alongwith the sample parcel. Following these authorities' I also acquitted MoolChand in Cr.A. 82/91 on 8.2.93 only. In the present case the situation israther worse. The occurrence in this case is of 10.6.87 while the sampleparcel was taken to CFSL on 16.6.1987. The 10, S.I. Mahavir Singh does notsay that he handed over the CFSL form to Constable Rishipal Singh. Therefore, it is not known in what manner Constable Rishipal Singh came topossess the CFSL form.