TULDEEP SINGH Vs. STATE

JUDGEMENT

(1.) -Tuldeep Singh who was convicted for an offence punishable' under 'Section 20 Part II of N.D.P.S. Act vide judgment dated January 20 1988 and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of rupees one lac and in default to further undergo rigorous imprisonment for two years vide subsequent order dated January 25 1988 by the Additional Sessions Judge, New Delhi has filed this appeal through jail against his conviction and the sentences. As the appellant was not in a position to engage any counsel, Shri SK. Dubey, advocate was appointed as amicus curiae and I have heard arguments advanced by him and also heard the arguments of the counsel for the State. Although the appeal is barred by five days yet I have heard the arguments on merits.

(2.) The appellant was apprehended on 15th January 1987 at about l 50 P M at the Bus Stand D.D.A Flats Kalka Ji while he was in possession of about 7 Kg. 800.gramms of charas. S.I. Ram Kumar then posted in police station Kalka Ji, accommpanied by Head Constables Ramesh Chand and Balbir Singb, constable Bir Singh were stated to be patrolling the area that he received secret information near Central Market DDA Flats. Kalka Ji of the presence of one person at the D.T.C. Bus Stand of Route No. 429 who would be having a bundle containing the charas. After joining a pubic witness Shri Shankar Lal son of Bhikari Dass, the raiding party reached the spot and on the pointing out by the secret informer the appellant was apprehended and was found to be having the bundle in his right hand and he was apprised of his right to get himself searched in the presence of gazetted officer or a Magistrate but on his declining to have his search carved out in this manner, the Investigating Officer proceeded to take the search of the said bundle and it was found to contain the said charas. After taking a sample of 200 gramms, the sample as well as the remaining charas converted into sealed parcels in the presence of S.H O. who has also arrived at the spot After the recovery has been effected and both the parcels were sealed wth the seals of 1.0. as well as of S.H.O. and case property was deposited in the Malkana, Rukka Ex. PW6/A was sent from the spot and case posited vide FIR, copy of which is Ex.PW6/B at about 2.50 P.M. in the police station conceded. The appellant had pleaded innocence during trial.

(3.) Head Constable Balbir, PW-2, Shankar Lal, public witness, PW-4 and Ram Kumar, S.I. PW-5 proved the said recovery of the charas from the appellant whereas S.H.O. also appeared as PW-3 give corroboration to the said recovery by deposing that he arrived at the spot when the charas had been recovered and was yet to be converted into sealed parcels. The sample of the said charas was sent through constable Ghasi Ram, PW-I to CF.S.L. and the sample was examined by Shri C.L. Bansal, Sr. Scientific Assistant of C.F.S.L. PW-5 who gave his report Ex. PW5/D which shows that the contents gave positive tests for charas. PW-7, Rishi Kumar proved the FIR and Head Constable Chida Lal PW-8 proved the entery from the Malkhana Register Ex. PW8/A regarding the case property being deposited., intact in Malkhana and sample being sent in intact to C.F.S.L. and being deposited back in the Malkhana after the sample had been examined by the expert of C.F.S.L. The learned counsel for the appellant has vehemently argued that the fail-the of the 1.0. to join any other public witness should render the case against the appellant as doubtful. He made reference to Section 100(4) Cr.P.C,, in support of his contention that at least two respectable persons of the locality should have been joined as witnesses before the appellant was apprehended and his personal search was taken. It must be emphasised that Section 100 Cr.P.C. applies to the searches being made of places or premises and the persons found nearabout the premises The present was not such a case. So, strictly speaking the provisions of Section 100 Cr.P.C. are not applicable to the facts of the present case. At any rate it has come out in the statements of the witnesses that five or six public witnesses were asked to join and only Shankar Lal argreed to join while other expressed their inability and they went away without disclosing their names and addresses. So, it is not a case where the 1.0. had not made any serious attempt to join any public witness. The mere fact that his effort to join some other public witnesses remained unfruitful does not mean that the prosecution story is to be disbelieved with the regard to the factum of recovery when it is proved that the statements of the police witnesses as well as the solitary public witness Shinkar Lal are trustworthy and do not suffer from any infirmities.