PUSHPA DEVI Vs. STATE

JUDGEMENT

(1.) On August 28, 1989 a secret information was received on telephone at PS Mandir Marg that Charas was being sold in the Jhuggi of Radhey Shyam Pradhan and his wife was also involved in that trade. According to the information, one person was to come in their Jhuggi to take Charas. On receipt of this information, a raiding party was constituted which proceeded towards the Jhuggi of the Pradhan. On the way, the raiding party is alleged to have met the SHO at Gole Market who on being disclosed of the information also accompanied them. When they reached near Mata Ka Mandir, Raja Bazar, two public witnesses were also asked to accompany them. Nakabandi of Jhuggi No.28 was effected. At about 8.45 p.m. they saw one Ram Baran coming out of Jhuggi No.28 with a bag of polythene. On being spotted by the informer, the said Ram Baran was apprehended. In the meantime, the appellant was seen coming out of Jhuggi No.28 and hurriedly tried to proceed towards East. She was also apprehended. Two separate challans were filed against Ram Baran and the present appellant Pushpa Devi. While Ram Baran has-been acquitted of the charge under Section 20/61/85 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act), by the Court of Ms.Rekha Sharma, Additional Sessions Judge, Delhi by her order dated February 27, 1993, the present appellant has been convicted of the charge under Section 20(ii) of the NDPS Act by the Court of the Additional Sessions Judge Mr.S.L.Khanna by his order dated 21st February, 1991 and sentenced to rigorous imprisonment of 10 years and fine of Rs.l lakh.

(2.) Being aggrieved by the said order, the present appealas been filed by the appellant. The facts are not in dispute. Only two points have been urged by learned counsel for the appellant in support of his contention that there was no case for coviction of the appellant and she ought to have been acquitted. Besides relying upon the judgment in the case of Ram Baran whereby he had been acquitted by the Court of Additional Sessions Judge, learned counsel for the appellant has sought the acquittal of the appellant on the ground that i) neither the CFSL form was deposited in the malkhana nor there was any evidence as to where it has gone, and ii) that the provisions of Section 50 of Narcotic Drugs and Psychotropic Substances Act (in short referred to as "NDPS Act") were not complied with at the time of search of the appellant.

(3.) In support of his first contention learned counsel for the appellant has referred to the statement of Head Constable Ram Manohar, PW-4 who has nowhere stated that the CFSL form was also deposited in the malkhana or that he had handed over the same to SI Satpal on August 28, 1989 along with the samples when the same were being taken for analysis to the office of the CFSL. None of the witnesses who had appeared on behalf of the prosecution have said a single word about the CFSL form. The contention of learned counsel for the appellant, therefore, is that in case CFSL form was neither deposited in the malkhana nor sent to CFSL along with the sample, it would entitle the accused to the benefit of doubt and consequent acquittal. Reliance for this has been placed upon the judgments reported as Jagdish Prasad Vs. State 54 (1994) DLT 424, 1992(2) Chandigarh Criminal Cases 314 and another Division Bench judgment of this Court reported as Amarjeet Singh Vs. State (Delhi Administration) 1995 (32) DLJ 110. In all these judgments it has been held that in the absence of any evidence of the CFSL form having been deposited along with the sample in the malkhana, the accused would be entitled to benefit of doubt and acquittal. On perusal of the evidence and documents on record, I am satisfied that there is no evidence on record to show that the CFSL form was deposited with Moharrir, Malkhana or that the said form was sent with the sample to the Public Analyst. In the absence of any such evidence, the possibility of the sample being tampered with cannot be ruled out and consequently the same shall vitiate the trial and consequent conviction of the appellant.