David R. Hall v. State (Delhi Admn.)

P.K Bahri, J.:— The appellant has been convicted of offences punishable under Sections 20 & 28 read with Section 33 of the Narcotics Drugs and Psychotropic Substances Act, 1985, (for short “NDPS Act”) vide judgment dated December 24, 1988 and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000 (one lakh) and in default to undergo further rigorous imprisonment for two years on the first count and similar sentences have been awarded on the second count with the directions that the substantive sentences of imprisonment shall run concurrently, vide subsequent order dated January 2, 1989. The appellant has filed this appeal challenging his conviction and sentences.

2. Facts, as have come out in the trial, in brief, are that SI Ram Kishore was on duty at the Palam Airport for purposes of security checking at the International Departure Hall on December 23, 1985 and at about 8.30 A.M the security checking in respect of Syrian Airlines Flight No. RB 502 was in progress that the appellant, whose name and address were learnt later on after he was apprehended, came for checking and SI Raj Pal, who was also on security checking duty alongwith SI Ram Kishore was also present, and that SI Ram Kishore in the normal way checked the person of appellant and felt something attached around the waist and abdomen of the appellant and then, he was thoroughly checked and it was found that the appellant was having charas concealed underneath white strap and the charas was in four pieces and after this recovery had been effected SI P. C. Mann, who was then working at Police Station Delhi Airport, had arrived at the spot while patrolling the area in routine and he was apprised of the said recovery having been effected from the person of appellant. The appellant and the charas were handed over to the said Sub Inspector who took sample of 50 gms each of the four pieces of charas which on weight was found to be 1 kg. 450 gms. He converted the samples as well as the remaining charas into sealed parcels and the seal was handed over to SI Ram Kishore and the case was got registered on the basis of Rukka Ex. PW5.A. The case property was deposited by SI P. C. Mann in the Malkhana of the Police Station and thereafter the samples were sent to the Central Forensic Science Laboratory and the report of the CFSL was received showing that the samples gave positive test for charas. The passport, boarding card and the air ticket of the appellant were also taken into possession. The learned Additional Sessions Judge brought home the offence to the appellant on the statements of PW4 SI Raj Pal, PW5 SI Ram Kishore and PW7 SI P. C. Mann.

3. The learned counsel for the appellant has vehemently argued that in the present case, all the mandatory provisions contained from sections 41 to 55 of the ndps act have been deliberately violated by the Investigating Officer and thus, the appellant deserves to be acquitted. He has contended hat it was incumbent on the part of the Investigating Officer to have joined some public witnesses before effecting the recovery and failure to do so in the present case is fatal to the prosecution case. He has placed reliance on Rattan Lal v. State, Criminal Appeal No. 111/86 decided on March 10, 1987 [32 (1987) Delhi Law Times 1]. (1) I have gone through this judgment and find that in view of the peculiar facts appearing in that case it was held that non-joining of the public witnesses at the time of making search had rendered the prosecution story doubtful.

4. In the case of Richhpal v. State (Delhi Admn.), 1988 (2) Delhi Lawyer 419 (2), while examining the various provisions of the ndps act, particularly sections 41 to 55, this Court after referring to various judgments of the Supreme Court has laid down that the court must consider the facts of each case in order to determine whether failure of prosecution to comply with any particular provision of the NDPS Act has the effect of creating any doubt regarding the prosecution case or not. It was held that there cannot be any mechanical application of law to the facts of the case and the salutary provisions introduced in the NDPS Act are not to be obviously ignored by the court or by the prosecution but these provisions have to be kept in view only to see whether the prosecution case set up is truthful or not. In the present case, at the time the appellant appeared before the said police officers, who were only in routine checking the passengers, had no prior secret information that any Person would come carrying with him on his person any contraband material so that they could be ready with some raiding Party joining public witnesses for apprehending the culprit and for searching his person. They could not have imagined that the appellant while checked in routine and some hard substance having been felt on his person and thereafter he was thoroughly checked that the charas would be recovered from the appellant and the police officers should have made some efforts to join any public witnesses at that time. After the recovery had been effected from the appellant in such a sudden and unexpected manner, there was no fun in police officers then making efforts for joining public witnesses. It is only before a recovery is effect ed that it is necessary that public witnesses should be present but after the recovery has been effected, the purpose of having the public witnesses in order to witness only the sampling process is not very much necessary. In the present case, the statements of the police officers, who have been believed by the Additional Sessions Judge, had no motive whatsoever to falsely implicate the appellant and thus, in the present case, the prosecution case cannot be thrown overboard on the mere fact that no public witnesses could be joined at the time the recover was effected.

5. The learned counsel for the appellant has then made reference to section 50 of the ndps act, which requires that before the search is effected an offer should be given to the person concerned that he could be taken before a gazetted officer or a Magistrate for taking his search. Counsel for the appellant has argued that as this particular provision has not been complied with in the present case, the charges against the appellant must fail. He has made reference to a judgment of this Court in Jayapalan v. State, Criminal Appeal No. 242/87 decided on January 6, 1989 [1989 (1) Delhi Lawyer 157] (3). In the cited case the police had prior information about the appellant that he would be having some contraband in his possession and still no offer was made as required by section 50 of the ndps act and this Court held that the prosecution case has become doubtful. The court had examined the facts of the case as well and had found certain serious infirmities in the prosecution evidence and had held that the charge against the said appellant was not proved beyond shadow of reasonable doubt. So, non-compliance of provisions of section 50 in the said case was examined in the context of the other infirmities appearing in the prosecution version. In the present case again, the question of any choice being given to the appellant for his being produced before any Magistrate or gazetted officer for taking his search did not arise as the recovery of charas was made from his person in a totally unexpected and in a sudden manner. I, hence, find that on this score alone the appellant cannot be acquitted.

6. The learned counsel for the appellant has then made reference to section 55 of the ndps act and has contended strongly that as in the present case admittedly the case properly was not produced before the SHO and no seal of the SHO was affixed on the case property, there is violation of the provisions of section 55 which should lead this Court to acquit the appellant. He has cited Rajesh v. State, (1989 (1) Delhi Lawyer 539) (4). I have gone through this judgment and find that on facts the court found that the seals allegedly affixed on the sample were not in accordance with the prosecution case as it was the case of the prosecution that there were two seals of ‘SFS’ and ‘PNA’ affixed on the case property whereas entry in the Malkhana register did not show that the case, property had any seal of ‘PNA’ which was the seal of the SHO and in the light of the said facts the court found the case of the prosecution not free from doubt although the court had held that under section 55 of the ndps act it was incumbent upon the Investigating Officer to have produced the case property before the SHO and the sample ought to have been taken in the presence of the SHO. The interpretation of section 55 of the ndps act given in this judgment is obiter dicta as the judgment has been given on peculiar facts appearing in that case showing that the sample taken was perhaps tempered with. Section 55 reads as follows: —

“An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.”

7. The provisions of section 55 do not indicate that the sample of the case property must be taken in presence of the SHO. The provisions do not bar talking of sample by the Investigating Officer at the spot and sealing it with his own seal and only requirement of law is that the case property must be deposited with the SHO and in case any sample is required to be taken after the case property has been deposited with the SHO, the same shall be taken in presence of the SHO. The learned Additional Sessions Judge has also given similar interpretation to the provisions of Section, 55 of the NDPS Act. In Criminal Appeal No. 38/89, Pradeep Kumar v. State, decided on September 22, 1989 (5), I had also occasion to give similar interpretation to section 55 of the ndps act. So, it was not incumbent upon the investigating Officer to have taken the sample from the case property in the presence of the SHO and also to get the seal of the SHO affixed on the aforesaid sample. The only duty which was cast on the Investigating Officer was to have placed the case property in the custody of the SHO. It is indeed, not disputed that the SHO is the incharge of the Malkhana of the Police Station and any case property which is deposited in the Malkhana is deemed to be in the custody of the SHO. It cannot be held that the provisions of Section 55 of the NDPS Act have been violated in any manner by the prosecution in the present case.

8. The learned counsel for the appellant has argued that it was suggested to PW4 in the cross-examination that the appellant had requested him to join certain public witnesses before whom the search could be carried out and had suggested to PW5 in cross-examination that the appellant wanted that his search should be carried out in presence of any gazetted officer. So, he has argued that it was the appellant who was keen to have the salutary provisions contained in the NDPS Act complied with and still they were violated by the police officers. The mere fact that certain suggestions had been given to the witnesses, which were denied by the witnesses, would not lead to any inference that in fact, such suggestions were made by the appellant at the time the recovery was affected from him.

9. No other point has been urged before me.

10. In view of the above discussion, I find that conviction of the appellant is well based as nothing has come out in cross-examination of the main witnesses to suggest that the case against the appellant is false. There is no earthly reason for not believing the straight-forward and convincing statements of the three police officials in the present case.

11. I maintain the conviction and sentences of the appellant and dismiss the appeal.

Appeal Dismissed.