GIRENDER SINGH Vs. STATE

JUDGEMENT

(1.) Appellant who has been convicted for an offence punishable under Section 18 of the Narcotic Drug's and Psychotropic Substances Act, 1985 vide order dated July 6, 1988 and has been sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000 vide order dated July 7, 1988 by an Additional Sessions Judge, Delhi has come up in appeal. Appellant has filed this appeal through Superintendent, Jail. He was not in a position to engage the services of any counsel, so Mrs. Usha Kumar, Advocate was appointed as amicus curiae to represent the appellant and she had advanced the arguments in this appeal. The appeal is barred 36 days. No application has been moved by the appellant seeking condonation of delay. However, I would decide the appeal on merits.

(2.) The appellant was apprehended on May 29, 1987 at about 6.30 P.M. outside the entrance gate of Bus Terminal Azadpur, Delhi while he was in possession of I Kg. Opium. On the said date, S.I. Kali R'arn, Public Witness -5 was patrolling the area; that he received secret information at 6 P.M. that a person having opium in his possession would be coming from the side of Ajodhya Textile Mills. He immediately constituted the raiding party comprises of himself, constables Raj Nath, Om Prakash and one public witness Public Witness -1 Jagmohan. The search, of the appellant was taken in presence of A.C.P. Shri A. K. Singn, PW-6 as appellant want-d that his search should be taken in presence of a Gazetted Officer. S.H.O. of the police station concerned Shri Vijay Kumar, Public Witness -3 had also reached the spot and the appellant was at that time having a bag in his right hand which was found to contain the opium wrapped in a polythene paper. The same was duly weighed and a sample of 50 grams was taken. The sample as well as the remaining opium was sealed separately and both the Investigating Officer as well as SHO put their seals and thereafter the case property was deposited in the Malkhana. The sample was duly seat to S.P.S.L. and the report from the C.F.S.L. was received which is Ex. Public Witness showing that the percentage of morphine to the extent of 2.4 (approximately) was found in the sample, so it was found to give positive test for opium.

(3.) The prosecution version is duly supported by Public Witness -1, Jagmohan, the public witness Public Witness -2, Constable Om Prakash, Public Witness -3, Inspector Vijay Kumar, Public Witness -5, S.I. Kali ,Ram, Public Witness -6 A.C.P. A. K. Singh. I have gone through their statements and find that nothing substantial came out from their statements to show that the prosecution story is in 'any manner doubtful. The public witness is not shown to be in any manner interest to the police. He is having a shop at Azadpur Mandi. The counsel for the appellant has further contended that no other public witness has been joined so the prosecution version should not be given any credence. In the statements of I.0. as well as Public Witness -1 it has come out that some other public witnesses were also requested to join but they went away expressing their difficulties. It has been laid down by the Supreme Court in State of U.P versus Suresh, 1982 Cri. L.J., P .850(1) that the question is not whether the prosecution should have been examined some other persons as witnesses who were present at the time of the occurrence but it is whether the evidence of the witnesses examined by the prosecution should be considered acceptable of not for proving ths case of the prosecution against the accused. The learned counsel for the appellant could not point out any other infirmity in the prosecution case. The appellant in his statement under Section 313 Criminal Procedure Code . only pleaded that he was innocent and has been falsely implicated but he did not give any reason for his false implication. A plea was raised before the trial Court that Jagmohan is a stock witness of the police which was negatived for good reason becauae no material was brought on record to show that this particular publ'c witness had joined police in any other case for investigation.