SURESH KUMAR RAI AND OTHER Vs. STATE

JUDGEMENT

(1.) The present appeals are directed against the judgment dated 11th December, 2015 passed by the learned Special Judge, NDPS whereby the appellants Suresh Kumar Rai and Mukesh Kumar were convicted for offence punishable under Section 20 (C) of Narcotics Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). Vide order on sentence dated 15th December, 2015, they were sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for six months.

(2.) Briefly, the prosecution case is that on 5th April, 2013 at about 4:50 P.M., a secret information was received stating that two persons namely, Suresh Kumar and Mukesh Kumar would come around 5:30-6:00 P.M. behind Red Fort, opposite Electric Cremation, Nigam Bodh Ghat to supply charas. The appellants were apprehended from the spot at around 5:55 P.M. on the pointing out of the secret informer and 5 kg charas each was recovered from the appellants. Further investigation of the case was handed over to ASI Mahender (PW-8). He prepared the site plan at the instance of ASI Devender vide Ex. PW-8/A. He interrogated both the appellants. At about 3:30 A.M., he arrested Mukesh vide arrest memo Ex. PW-1/G after which he conducted the personal search vide Ex.PW-1/1 and Rs. 150 were recovered from his possession. Disclosure statement was recorded vide Ex. PW-1/K. At about 4:15 A.M., he arrested Suresh vide arrest memo Ex. PW- 1/H after which he conducted the personal search vide Ex. PW-1/J and Rs. 130 were recovered from him. His disclosure statement was recorded vide Ex. PW-1/L. He also produced personal search articles of the appellants before MHC (M). On 10th April, 2013, exhibits were sent to FSL Rohini and the FSL result was proved as Ex. PX during trial.

(3.) Assailing the conviction, learned counsel for Suresh Kumar Rai contends that there was non-compliance of mandatory provision of Section 42 of the NDPS Act as it is the admitted case of the prosecution that the alleged raid was conducted upon prior information. To buttress this argument, reliance is placed upon the decision reported as (2000) 2 SCC 513 Abdul Rashid Ibrahim Mansuri v. State of Gujarat. Further, it is urged that the sampling procedure was erroneous and the prosecution has failed to prove that all ten packets contained charas. The sample was taken after mixing the contents of all the ten packets, thus even if one packet contained charas, liability of commercial quantity will be imputed upon the appellant which is an erroneous procedure. Reliance is placed upon the decision reported as (2012) 191 DLT 403 Basant Rai v. State. Furthermore, the burden of proving that two FSL forms were deposited with the case property and sent to the FSL was upon the prosecution. In the absence of proof of FSL form being sent to the FSL, the appellant is entitled to acquittal. Chapter XVIII of the Delhi High Court Rules explains the procedure how the parcels are to be sent to the FSL to ensure that there is no tampering with the same and it relates to the same case. While placing reliance upon the decision reported as 2013 SCC OnLine Del 1416 Hannan v. State of NCT of Delhi it is submitted that in the absence of deposition of the MHC(M) that the case property is not tampered with while in his possession, the appellant is entitled to be acquitted. There are discrepancies in the prosecution case with respect to arrest of appellant. It is the case of prosecution that the appellant was apprehended at 5:55 P.M. on 5th April, 2013 whereas the arrest memo shows the time as 3:30 A.M. on 6th April, 2013. No notice was served upon public persons to join the proceedings. There are contradictions in the testimonies of the prosecution witnesses. Hence the appellant be acquitted.