2016 (3) TMI 769 - HC - Indian Laws

Seeking modification of sentence order - Recovery of charas - Non-joining of independent witnesses - ASI Bijender Singh at the time of raid asked 4-5 passersby to join the raiding party but none agreed and went away after giving their reasonable excuses - Held that - the case of the prosecution cannot be thrown away simply because no public witness has been joined at the time of recovery of Charas. This view finds support from the observation made by Supreme Court in P.P.Beeran vs. State of Kerala 2001 (1) TMI 972 - SUPREME COURT where Supreme Court observed that the testimony of the police officials cannot be rejected on the ground that police official was the sole witness of the recovery of Ganja and the public witness who was examined, turned hostile. Also the conviction can be based on the sole testimony of a sub-Inspector if other circumstances existed to corroborate his testimony. Presumption of honesty is as much available to a police officer which is available to any other official witness. There is no presumption that police officials are liars. The effect of non-joining of independent witness is only that the court has to view the submission of the police or other witnesses with caution and circumspection and the veracity of the same has to be decided before placing reliance upon them for arriving at any conclusion regarding the guilt of the accused. In this case, efforts were made by the police officials to join independent witnesses but, none agreed to join the proceedings but that ipso facto is not a ground to discard the testimony of police officials who stood the test of cross-examination and nothing material could be elicited to discredit their testimony. Seeking modification of sentence order - Recovery of charas - Non-compliance of Section 42 of NDPS Act - Held that - Section 42 is applicable only when the secret information pertains to concealment of any narcotic drug or psychotropic substance in any building, conveyance or any enclosed place and when seizure has taken place at a public place. If a search is made in a public place, the officer taking the search is not required to comply with sub-Section (1) and (2) of Section 42 of the Act. Therefore, the provisions of Section 42 of the Act were not legally required to be complied with referred inDirectorate of Revenue and Anr. vs. Mohd. Nisar Holia 2007 (12) TMI 413 - SUPREME COURT OF INDIA , State, NCT of Delhi vs. Malvinder Singh 2007 (6) TMI 505 - SUPREME COURT and Mohan Lal vs. State of Rajasthan 2015 (4) TMI 688 - SUPREME COURT . The contention of Public Prosecutor that, there seems to be a typographical error in the cross-examination of this witness is not correct as it was recorded that the report was received in the office at about 1.30 pm because voluminous evidence is available on record to prove that the secret information itself was received at 3.45 pm, therefore, there was no question of sending the information to ACP at 1.30 pm. Under the circumstances, it was rightly observed by learned Special Judge that despite the fact that the provisions of Section 42 of NDPS Act were not legally required to be complied within this case but there is substantial compliance of the same. Seeking modification of sentence order - Recovery of charas - Competency of ASI Bijender Singh to carry out search being an Assistant sub-inspector - Held taht - as per single bench judgment of this court in the case of Kamal Thakur vs. The State (Delhi Administration) 1994 (11) TMI 431 - DELHI HIGH COURT , Head Constable being superior in rank to Constable is competent to investigate. Therefore, as Bijender Singh was Additional sub-Inspector in Delhi Police was competent to carry out the search and seizure. Seeking modification of sentence order - Recovery of charas - Delay of 15 days in sending the parcels to FSL as such, possibility of tampering with the case property - Held that - pullandas of the samples as well as remaining case property were sealed at the spot itself and seal of BS was affixed thereon. Thereafter, Head Constable Sanjeev Kumar took the sealed pullandas alongwith FSL form and copy of the seizure memo and handed over the same to SHO who affixed his seals of RK on the parcels as well as form FSL. All the sealed pullandas alongwith documents were deposited by Lallu Ram in the Malkhana vide entry No.1881 of Register No.19. Lallu Ram has specifically deposed about the seals of BS and RK found affixed on these pullandas and the form FSL. FSL result also goes to show that the above description of the seal were found to be mentioned and that the seals affixed on the sample pullandas were found to be in intact condition and it tallied with the specimen seals as per the forwarding letter. Moreover, nothing has come on record from which it can be presumed that the sealed pullandas of the samples or the remaining case property were tampered with at any stage. Therefore, mere delay in sending the samples to FSL does not cast any dent on prosecution case. Seeking modification of sentence order - Recovery of charas - Case property deposited in the night but submitted the same in the next morning hours - Held that - as per storeroom register, the case property was deposited on 14.07.2010 at 11.55 am. This submission, which initially seemed to be attractive, was dispelled by learned Public Prosecutor for the State by submitting that the deposit was made vide DD No. 39A, therefore, the original DD No.39A was summoned which clearly reflects that the deposit was made by Inspector Ramesh Kalsan at 11.55 pm. That being so, there is nothing on record to show that the case property was at any point of time tampered with till it reached FSL. Therefore, mere delay in sending the samples to FSL does not cast any dent on prosecution case. Seeking modification of sentence order - Recovery of charas - Non-compliance of Section 50 of the NDPS Act - Original notice under Section 50 of the Act does not bear signatures of the accused - Held that - it has come in evidence that before taking search of the accused he was apprised of the legal right to be searched before a Magistrate or a Gazetted Officer and thereupon a notice under Section 50 NDPS Act Ex.P5 was duly served upon him. Mere fact that this notice does not bear his signatures does not raise any suspicion in regard to serving of this notice because the carbon copy of the notice bears his signatures regarding receipt of the notice and thereafter since he claimed himself to be illiterate his reply was written by ASI Bijender Singh and bears signatures of accused at point X. Seeking modification of sentence order - Recovery of charas - One sample out of two taken sent to FSL - Held that - two samples were taken out but only one of the parcel was sent to FSL does not make the prosecution case suspicious because out of the entire case property, two samples were taken. That being so, even if only one parcel is sent to the FSL and as stated by learned Public Prosecutor for the State that second sample was taken as a precautionary measure that if for some reason the FSL require another sample, the same could have been sent to FSL, deserves credence. Therefore, the appellant has been convicted and sentenced to the minimum sentence period under the Act and the impugned order is not to be interfered with. - Decided against the appellant

Summary

Issues Involved:
1. Non-joining of independent witnesses.
2. Alleged discrepancy in the timing of receiving secret information.
3. Competency of ASI Bijender Singh to conduct the search.
4. Delay in sending parcels to FSL.
5. Non-compliance with Section 50 of the NDPS Act.
6. Alleged tampering with the case property as per register entry.

Issue-wise Detailed Analysis:

1. Non-joining of Independent Witnesses:
The appellant argued that no independent witnesses were joined despite the busy area of apprehension. The court noted that sincere efforts were made by the police to involve public witnesses, but none agreed. The testimony of police officials was found consistent and credible. The court referenced Supreme Court observations in P.P. Beeran vs. State of Kerala, which support the reliability of police testimony even without independent witnesses. The court also cited Jawahar vs. State, emphasizing the practical challenges of involving public witnesses and the credibility of police testimony.

2. Alleged Discrepancy in Timing of Receiving Secret Information:
The appellant pointed out a discrepancy where the report under Section 42 of the NDPS Act was allegedly received at 1.30 pm, before the actual recovery time. The court accepted the prosecution's argument that this was a typographical error, supported by substantial evidence showing the secret information was received at 3.45 pm. The court found substantial compliance with the requirements under Section 42 of the NDPS Act, despite it not being legally necessary for public place seizures under Section 43.

3. Competency of ASI Bijender Singh to Conduct the Search:
The appellant questioned ASI Bijender Singh's competency, arguing he was below the rank required to conduct the search. The court referenced Kamal Thakur vs. The State (Delhi Administration), which held that a Head Constable, being superior in rank to a Constable, is competent under the NDPS Act. ASI Bijender Singh, being an Additional Sub-Inspector, was deemed competent to carry out the search and seizure.

4. Delay in Sending Parcels to FSL:
The appellant argued that a 15-day delay in sending the samples to FSL raised the possibility of tampering. The court found no merit in this argument, noting that the seals on the parcels were intact when received by FSL, as corroborated by multiple testimonies and FSL reports. The court cited similar cases where delays were not considered fatal in the absence of evidence of tampering.

5. Non-compliance with Section 50 of the NDPS Act:
The appellant claimed non-compliance with Section 50, as the notice did not bear his signatures. The court found substantial compliance, noting that the accused was informed of his right to be searched before a Magistrate or Gazetted Officer, and a notice was served. The carbon copy of the notice bore the accused's signatures, and his reply was recorded by ASI Bijender Singh, signed by the accused.

6. Alleged Tampering with Case Property as per Register Entry:
The appellant argued that the case property was deposited in the Malkhana at 11.55 am, before the alleged recovery time. The court clarified this by referencing DD No. 39A, which indicated the deposit was made at 11.55 pm. The court found no evidence of tampering with the case property.

Conclusion:
The court dismissed the appeal, finding no merit in the appellant's arguments. The judgment and sentence by the Additional Sessions Judge were upheld, and the trial court record was ordered to be sent back along with the judgment copy.