RAM NIWAS Vs. STATE

JUDGEMENT

(1.) Appellant has been convicted of an offence punishable under section 18 of Narcotic Drugs and Psychotropic Substances Act for having been found in possession of 2 Kg. and 100 gms. of opium vide judgment dated July 8, 1988 by Additional Sessions Judge, Delhi and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000.00and in default to undergo rigorous imprisonment for two years more by the separate order of the same date. Appellant has filed this appeal challenging his conviction and sentences.

(2.) Facts of the case are that on April 24, 1986, Inspector Ashok Hari of Police Station Raiouri Garden, accompanied by Ravi Shanker, S.I., S.I. Azad Singh, Head Constables Kali Charan and Dharam Pal and constable Ravi Dutt were patrolling the area and had reached at the crossing of Raja Garden and Shivaji Road causing, that at about 9 45 p.m. they noticed the appellant coming from the side of Rajouri Garden Chowk who was carrying a green colour bag in his hand and on seeing the police party he became nervous, started moving briskly towards Raja Garden and on suspicion he was checked and as it was suspected that he might not be carrying some contraband drug, the appellant was given an option that his search could be carried out in presence of a gazatted officer but on his declining the said option, the said bag was searched and it was found to contain opium which was weighed and was found to be 2 Kg. and 100 gms. A sample of opium was taken. The sample and the remaining opium were converted into sealed parcels and were sealed with the seals of S.I. Ravi Shanker and of S.H.O. Ashok Hari. Rukka Ex. P.W. 1/A was prepared and the case was registered. The case property was deposited in the Malkhana and later on the sample was sent to C.F S.L. The report Ex. PA was received from the expert of CFSL showing that the contents gave positive test for opium and the percentage of morphine found was 3.6.

(3.) The appellant in his statement under section 313 of the Code of Criminal Procedure denied all the material facts appearing against him and mentioned that he had come to meet his relation at Basai Darapur and as he was present near Vishal Cinema and was having a stick with him, the police apprehended him and falsely implicated him in this case. The prosecution version has been sought to be proved from the statements of P.W. 2 Constable Ravi Dutt, P.W. 4 S.I. Ravi Shanker and P.W. 5, Inspector Ashok Hari, the remaining being formal witnesses. The learned counsel for the appellant has vehemently argued that it was incumbent upon the prosecution to have joined some public witnesses and as no public witnesses have been joined in the present case, the prosecution version regarding the recovery of the said drug from the appellant should not be given any credence. He has made reference to section 51 of the Act to show that in respect of the search carried out under the provisions of this Act, the corresponding provisions appearing in the Code particularly provision of section 100 of the Code of Criminal Procedure are applicable and thus it was mandatory on the part of the police to have joined at least two public witnesses before effecting any recovery from the appellant. It is to be noticed that the appellant was apprehended at about 9.45 p.m. So, the possibility of any shops being open at that particular time was quite remote. It has come out in the statement on the witnesses that the residential houses are located at the distance of 250 yards away from the spot. The question which arises for decision in the present case is that when there is no prior secret information available to the police and a particular culprit is apprehended in routine check up, would the failure of the police to join public witnesses before effecting recovery from such a culprit vitiates the prosecution case completely. It is true that P.W. 2 Constable Ravi Dutt had stated that some persons even at that late hour were passing by and they were asked to join in the personal search of the appellant but they did not join. It was not clarified whether those persons were passing by at the moment the appellant was apprehended and was being searched or they came when the search had already bee a effected. P.W. 2, Constable Ravi Dutt had stated that no passers by were requested to join by the SHO or the I O., P.W. 4, Ravi Shankar however, had stated that no public person was available, so no one was asked to join at the time the appellant was searched whereas the SHO deposed that two or three passers by had been requested to join but they had declined. It is true that this discrepancy had appeared in the prosecution case as to whether some public persons were requested to join or not. However, it is also to be taken note of that these police officials had no reason to falsely implicate the appellant. In such like cases of recovery it is desirable that public witnesses should be joined in order to ensure fair investigation but where there has appeared no public witness to support the recovery, the task becomes onerous on the Court to scrutinize with case the statements of the police witnesses in order to see whether they should be believed or not with regard to the factum of recovery. In the present case it is surprising that although the police had no prior information as to whether the appellant was carrying any prohibited drug, still the appellant was given the option of his search being done in the presence of a gazatted officer as is required under section 50 of the Act. This particular fact noticed in the prosecution case throw a lot of doubt on the prosecution version. If the police was not aware as to whether any prohibited drug would be found in possession of the appellant or not, there was no question of the police giving any option to the appellant that if he so desired he could be taken to a Gazatted Officer for carrying out his personal search. Even in the Rukka which is the basis of the FIR, it has been mentioned that this option was given to the appellant. It is not understood how on earth it could be suspected by the police that he was carrying in the bag or on his person any prohibited drug so as to give him an option of his search being done in the presence of a Gazatted Officer. In view of this lacunna appearing in the prosecution case that the importance has to be given with regard to the material discrepancy appearing in the statements of the said three police officials with regard to the efforts made for joining the public witnesses. In the Rukka there is no mention made as to whether any public persons were present or not at the time the appellant was apprehended and whether any public persons had been asked to join or not or any effort had been made to request any public person to join in the search of the appellant. The statements of P.W. 1, P.W. 4 and P.W. 5 on this crucial point are discrepant. Hence, keeping in view the fact that a doubt has arisen with regard to the prosecution case benefit of which must go to the appellant. It is also significant to mention that S.I. Ravi Shankar as well as SHO stated that the case property was given in custody of SHO and it is the SHO who had deposited the case property in the Malkhana but both of them are belied on this point by P.W. 6 Head Constable Ram Pershad who had categorically stated that on the basis of the entries made in the Malkhana Register, copy of which is Ex. P.W. 6/A that is only S.I. Ravi Shankar who had deposited the case property in Malkhana. Sec. 55 of the Act required that the case property should be given in custody of the SHO and it is the responsibility of the SHO to have deposited the case property in the Malkhana. That provision of the law has also been violated in the present case, So, keeping in view the overall facts and circumstances I hold that the conviction of the appellant is not well based in as much as there arose a reasonable lurking doubt that the recovery was not effected from the appellant in the manner alleged by the prosecution.