NARAIN SINGH Vs. STATE

JUDGEMENT

(1.) Shri Jaspal Singh, Additional Sessions Judge, Delhi had convicted appellant vide his order dated January 28, 1988 for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act 1985 and vide his subsequent order dated January 29, 1988 he has sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000. The 'appellant was found to be in possession of 300 Grams of opium on January 29, 1987 at 6 P.M. at Sanjay Nagar Market railway line within the jurisdiction of Police Station Subzi Mandi. The appellant has sent this appeal from jail and had expressed his inability to make the services of any counsel, so I appointed Shri Sanjay Suri, Advocate as amicus curiae. I have heard the arguments and had gone through the file and find that there is no merit in this appeal.

(2.) The prosecution case in brief is that on January 29, 1987. S.I Surinder Kumar who was posted as Incharge Police Post Culabi Bagh and while he was patrolling the area alongwith constable Ashok Kumar and Head Constable Rajinder Singh. he received a secret information at about 5.40 P.M. that a middle aged man wearing a suit and having wrapped himself with a is chaddar would be moving in Sanjay Nagar Park Market for purposes of selling opium. He is stated to have requested certain public witnesses to join the raiding party and one Public Witness Dharampal agreed to join the raiding party and thus at about 6 P.M. the appellant who was pointed out by the secret informer was apprehended. The appellant was made aware of his Tight to have his personal search in the presence of Metropolitan Magistrate or a gazetted officer but the appellant is stated to have declined the said option and thereafter the search of the appellant was carried out and from the left outer pocket of his coat ten small pieces of paper were recovered and from the right side of the outer pocket of the .coat a small brass scale with two weights, one of 5 grams and the other of 50 grams were recovered. The opium was duly weighed and found to be 300 Grams out of which a representative sample of 50 Grams was taken in the presence of S.H.O. The representative sample as well as the remaining opium was duly sealed with the seals of I.0. as well as of the S.H.O. The weighing scale and the weights recovered from the appellant were Ex. Public Witness 2 to Ex. Public Witness 4. The Seizure Memo prepared at the spot is Ex. Public Witness 4/A. The Rukka was sent & on the basis of which case was registered vide FIR copy of which is Ex. Public Witness 2/A. The case property was duly deposited in the Malkhana and later on the sample in question was sent to C.F.S.L. through Constable Jacob Pal and after the sample has been analysed, it was received back with the seal of C.F.S.L. and deposited in the Malkhana by the same constable on March 11, 1987. The report of the C.F.S.L. is Ex. PA which shows that the contents of the sample gave positive test for opium with the percentage of morphine being 1.9 (approx). The prosecution case is supported by Public Witness -4, Dharampal, public witness Public Witness -5, S.H.O. Ishwar Singh, S.I. Surinder Kumar. Public Witness 1 is the formal witness of Malkhana and he deposed that so long as the case property remained in my custody it was not tampared with in any manner. Public Witness -3 is the constable who had taken the sample to C.F.S.L.

(3.) The learned counsel for the appellant has pointed out that in the statements of Public Witness -5 and Public Witness -6, it has been mentioned that the recovery was effected on January 29, 1986 and even in the question put to appellant under Section 313, Criminal Procedure Code . the date of recovery is mentioned as January 29, 1986 and even the learned Additional Sessions Judge has mentioned the same date in his impugned judgment. It is true that according to prosecution version and the documents proved on record it is evident that the recovery was effected on January 29, 1987. It is perhaps due to some slip of tongue that in the statements of PW-5 and Public Witness -6 the year was mentioned as 1986 instead of 1987 and same mistake continued in the examination of appellant as well as in the judgment of the trial Court. I do not think that by this innocuous mistake being made in the recording of year 1986 instead of 1987, any prejudice has been caused to the appellant. It is not the case of the appellant that he was apprehended and arrested in this case in the year 1986. The charge clearly shows that he was apprehended on January 29, 1987 at 6 P.M. and 300 Grams of opium was recovered from him. So no benefit could be allowed to be taken by the appellant by this innocuous mistake made by Public Witness s 5 and 6 in giving wrong year and that mistake being repeated by the Court by putting question to the appellant under Section 313 Criminal Procedure Code . and white dictating the judgment in question.