SALEEM ALIAS SALEH Vs. STATE

JUDGEMENT

(1.) This appeal arises out of order and judgment of Shri R.K. Sharma, Additional Sessions Judge, Special Court, N.D.P.S. Act, Delhi convicting the appellant under Sections 21/61/85 of N.D.P.S. Act in S.C.No. 437/94, P.S. Town Hall. The said Judge has sentenced the appellant to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1.00 lac and in default of payment of fine to further undergo rigorous imprisonment for one more year. It was further ordered that the period for which the appellant had remained in custody shall be set off in view of the provisions contained in Section 428 Cr.P.C.

(2.) In brief the case of the prosecution is that on 21st May 1992 on a prior information the S.H.O. Town Hall with S.I. Ramesh Kumar and S.I. Ram Phal formed a raiding party with Head Constable Dhani Ram and Constable Ramesh Kumar had reached Children Park where they were joined by Jai Kumar Jain independent witness. The raiding party divided itself into three groups and carried out the blocking (Nakabandi) of the three routes at about 12.10 p.m. The appellant came on a Yamaha motor-cycle bearing registration number DBX 3843 from the side of Community Hall. On the pointing out by the informer the raiding party tried to stop the appellant, but he fled his motor-cycle to the parking side where the party headed by S.I. Ramesh Kumar apprehended the appellant. It is further alleged on record that the appellant was informed of his right under Section 50 of the N.D.P.S. Act vide notice Exhibit Public Witness .2/A of being searched, if he so desired, in the presence of a Gazatted Officer or a nearest Magistrate, but the appellant declined to be searched. The appellant did not avail of the option given to him with regard to search consequent whereupon he was searched there itself and two polythene packets each found to be containing 2 Kgs. of Smack were seized from the appellant. The said two packets were sealed with the seals of GCD and RK. It is further pointed out by Counsel for State that CFSL form was also prepared on the spot and got signed by the witnesses. The seizure memo Exhibit Public Witness 2/B was also prepared. Rukka was sent to the Police Station for recording the FIR at the Police Station which was recorded by Head Constable Gyan Chand which is Exhibit Public Witness 6/A. It is alleged that the FIR was recorded by Head Constable Cyan Chand at 1.40 p.m. Inspector Gursharan Dass Public Witness 2 S.H.O. Town Hall has proved the notice under Section 50 and the seizure memo being Exhibits Public Witness 2/A and Public Witness 2/B respectively. He has further proved that the polythene bags contained 4 Kgs. of Heroin and that CFSL forms were deposited with all the seized articles in the Malkhana. Prosecution has also examined Head Constable Inder Raj Singh as Public Witness 1 who was Mohharer Malkhana P.S. Town Hall, on 21st May 1992. Public Witness I has stated that Public Witness 2 had deposited four parcels and one CFSL forms duly sealed with the seals of GCD and RK. Along with these parcels the motor-cycle of the appellant mentioned above with the bunch of keys along with helmet was also deposited in the Malkhana register of the Malkhana containing the relevant entries is Exhibit Public Witness 1/A, Prosecution had examined one Mr. N.K. Prasad as Public Witness 3 who is Senior Scientific Officer-cum-Assistant Chemical Examiner CFSL, New Delhi. The said Chemical Examiner CFSL has admitted that the purety of the samples was not tested and that he could not say if .00001 % mg. Heroin is added to 10 gms. of Brown Powder it will give positive test of Heroin. He has also testified that adding of morfeen in Brown Powder would not respond to the test of Heroin. His report is Exhibit Public Witness 1 / B. The ownership of the motor-cycle has been proved by Public Witness 4 Parveen Singh who is Dealing Assistant, Transport Authority, Sheikh Sarai, New Delhi while Public Witness 5 Constable Madan Singh P.S. Town Hall has proved the seizure of refugee certificate issued by United Nations being Exhibit Public Witness 5/A. Head Constable Gyan Chand being Public Witness 6 has stated that he was posted as duty officer in P.S. Town Hall at the material time and has proved that the FIR of the case was recorded at 1.40 p.m. being Exhibit Public Witness 6/A. He has further admitted in cross-examination that recording of FIR may have taken one hour or so. He, however, did not remember whether he had given the FIR number to anyone before it was completed and a copy of the FIR was sent to the concerned Magistrate. In fact he has not disputed that the copy of the FIR was not sent to the concerned Magistrate immediately. Constable Ravinder Kumar Public Witness 7 who was at the material time posted at P.S. Town Hall has stated that he had taken two CFSL forms both sealed with the seals of GCD and RK and deposited the same in the office of the CFSL one form of CFSL, He has also proved that the seals were affixed on the front side of the form and that the form which was given to him is not to be found on the Court file. Public Witness 8 is a witness Shri Jai Kumar Jain who had joined the raiding party and had given the information that the appellant is in possession of Smack. This witness has proved that the appellant was informed of his right under Section 50 and he has proved the writing of Exhibit Public Witness 2/A whereby the appellant was given the said offer and he had declined to avail of this offer. But in cross-examination, he has also stated that the seizure memo (Panchnama), Exhibit Public Witness 2/B was prepared before Exhibit Public Witness 2 / A. Incidentally, he is the only witness who has deposed to the fact that the appellant was informed of his right under Section 50 of NDPS Act. The Investigating Officer who was examined as Public Witness 10 namely S.I. Ramesh Kumar has proved that the Rukka was prepared by him which is Exhibit Public Witness 10/A and handed over the same to Head Constable Mahinder Singh for registration of the case. Another witness to the recovery is Public Witness 9 Head Constable Mahinder Singh. He is the person who had taken the Rukka to the Police Station on the basis whereof FIR was registered by Public Witness 6 and the FIR is Exhibit Public Witness 6/A. It is alleged that Head Constable Mahinder Singh came back at the site with the copy of the FIR being Public Witness 6/A. He is also alleged to have prepared the site plan being Exhibit Public Witness 10/B with the marginal notes. The appellant/accused was examined under Section 313 Cr.P.C. and has stated that he has been implicated falsely that he is a refugee staying at Gujranwalan Town, Delhi and has been selling cloth/clothes in a market in Ballimaran Area in the building known as Dila Ram Guest House where a number of Afghani refugees are having their shops. He has alleged enmity with the Police. The appellant has alleged that then he was brought to the Police Station where his thumb impressions were taken on certain papers. The question and answer read as under:-

(3.) Sofar as the examination of the accused under Section 313 Cr.P.C. is concerned, the Counsel has argued that the examination does not amount to due compliance with the provisions of Section 342 Cr.P.C. as the appellant was not put the proper questions and in this connection he has placed reliance on AIR 1972 SC 535 (539 para 18). In the said ruling it has been laid down that under this Section the duty is cast upon the Courts to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case that the accused will have to meet and thereby an opportunity is given to the as cused explained any such point.