MAHATMA PARSHAD Vs. STATE OF DELHI

JUDGEMENT

(1.) . On July 22, 1991 during patrolling, ASI Chandan Singh received secret information that a person sitting in Ram Leela Park opposite Shiv Shakti Marg eastern side was having charas in his possession. A raiding party was thereafter formed by ASI Chandan Singh and he requested 5-6 passerby to join the raiding party but they expressed their inability except that one Deep Chand was included in the raiding party. The accused was found standing on the eastern side of the park opposite Shiv Shakti Marg. He was apprehended and was informed that he was suspected to have charas. He was given an option to be searched in the presence of a gazetted officer or a Magistrate but the accused declined the option. On search 800 gms. of charas in batti form was recovered from the bag which was carried by the accused. In the meantime, SHO had also reached at the spot in the Government vehicle while patrolling. Out of the charas recovered from the accused 30 gms of. charas was taken out as sample and two parcels were prepared which were sealed with the seal of C.S.R. and S.K.S. CFSL form was filled at the spot and specimen of the above seals were affixed thereon. On report from the CFSL the sample was found to contain charas and a challan was, accordingly, filed in the Court under Section 20(ii) of the Narcotic Drug and Psychotropic Substances Act (in short referred to as "The Act"). After trial the appellant was convicted of the offence under Section 20(ii) of the Act and was sentenced to undergo rigorous imprisonment for 10 years and pay afine of Rs.l,00,000.00 .or in default of payment of fine, to undergo further rigorous imprisonment for six months. Being aggrieved by the judgment of the Sessions Court, the appellant has filed this appeal mainly on two grounds, namely, i) the seal with which the samples were sealed always remained with the SHO and there Was a delay of 17 days in sending the sample to CFSL. The remaining of the seal with the SHO coupled with the fact of delay of 17 days in sending the sample to CFSL vitiates the trial and ii) no reliance upon the prosecution evidence can be placed as the public witness who is alleged to have joined the raiding party has not been produced as awitness and all the witnesses who have been produced in Court are police officials. .

(2.) . The SHO has appeared as.PW-1 and has stated that on search of the bag of the accused, .charas (candle shape wrapped in polythene paper) was recovered. It was weighed and found to be 800 gms. He further stated that 30 gms was separated as sample and scaled with the seal of C.S.R. and S.K.S. and the remaining charas was kept in the same hand bag which was also converted into a parcel with the same seals of C.S.R and S.K.S. CFSL form was filled at the spot and the specimen of the above seals were affixed on the CFSL form. The case property was then taken into possession vide memo exhibit No.PW-1/A. He also stated that he kept his own S.K.S. seal with him and the seal of C.S.R. was given to the public witness. The case property along with CFSL form and seizure memo were then handed over to Moharrir Malkhana at PS Ambedkar Nagar for safe custody in the Malkhana. No suggestion was given to this witness about the CFSL form having not been deposited with the Moharrir Malkhana. HC Dharampal Singh, who was the Moharrir Malkhana at the relevant time, has appeared as Public Witness -4 and has stated that on 22nd July, 1991 Inspector S.K.Sharma, the then SHO PS Ambedkar Nagar, had deposited with him two sealed parcels with the seals of C.S.R. and S.K.S. pertaining to FIR No.278/91 and one CFSL form having the same seal impression and one copy of the recovery memo were also deposited with him. He further stated that on August 8, 1991 the samples sealed with seals C.S.R. and S.K.S. along with the CFSL form were sent to the laboratory for chemical analysis through Constable Rajinder Singh and so long as the case property remained with him, it was not tampered with by anyone. In the cross-examination, no suggestion was given to this witness about the CFSL form having not been deposited with him or the same having not been given along with the sample for sending to the laboratory on August 8, 1991. Constable Rajinder Singh, appeared as a witness and stated that on 8th August, 1996 he had taken one sealed parcel and form CFSL bearing the seals C.S.R. and S.K.S. from Moharrir Malkhan:i and deposited the same in the office of the CFSL, Lodi Road on the same dale and so long as the sample remained with him, it was not tampered with. Again in cross-examination of the said witness, no question has been put to him about his having not taken the CFSL form along with the sample from the Moharrir Malkhana.

(3.) . Mr.K.B.Andley, appearing on behalf of the petitioner, submits that as the road certificate has not been produced and the entry in the Malkhana register does not show the deposit of the CFSL form, the only presumption that can be raised is that CFSL form was not deposited with the Moharrir Malkhana and in the absence of the said form, the possibility of the sample having been tampered with cannot be ruled out more so when there was a delay of 17 days in sending the sample to the office of the CFSL. He further states that the SHO had not said anything about the sample having not been tampered with from the time of taking possession of the same by him till it was deposited with the Moharrir Malkhana. He has referred to the judgment reported as Ghanshyam Vs. State 1994 JCC 240 in support of his contention that the Inspector who effected the recovery having not stated anywhere that the case property including the sample was not tampered with by any one during the time it remained in his custody, the conviction and sentence cannot be sustained.