State By Cbi v. Dilbagh .

Order

1. This appeal is filed against the judgment of the Delhi High Court dated 9-3-2001. Briefly stated, the facts are as follows:

On 21-5-1993 secret information was received in the Office of SP/CBI/SIU, XI, New Delhi that the respondent in connivance with others was indulging in the activity of supplying and selling huge quantity of charas to a number of persons in Najafgarh area and in Haryana also. The information was that he was likely to supply a huge quantity to an unknown party on 22-5-1993 at 3 p.m near Dhansa Bus-Stand, Najafgarh, New Delhi. This information was registered in the Office of CBI and the case was entrusted to the Deputy Superintendent of Police, Mehar Singh.

2. On 22-5-1993 the secret informer again contacted the Deputy Superintendent of Police and confirmed the information. Accordingly, the Deputy Superintendent of Police Mehar Singh discussed the matter with the SP and a raiding party was organised under the supervision of Mehar Singh which consisted of the following persons:

Mr Dilbagh Singh,

Mr Phool Kumar,

Mr Jagdish Chand,

Mr Jaibir Singh,

Mr Rajinder Saxena, and

Mr Ajay Singh.

3. The raiding party reached the spot at about 2 p.m After parking the vehicle at a safe place, a nakabandi was organised. At 2.45 p.m the respondent arrived carrying a white cloth bag in his hands. The secret informer pointed out the respondent to the raiding party and left. Thereafter, the Dy. Superintendent of Police Mehar Singh approached the respondent, disclosed his identity and identity of the members of the raiding party and told him that as per their secret information he was carrying narcotic substances. On this the respondent threw down the bag and attempted to run away but he was apprehended by the raiding party. After he was apprehended, the respondent was informed, not just by the Dy. Superintendent of Police but also by PW 1 Rajinder Saxena (who was an independent witness) that if he so desired, he could be searched in the presence of a gazetted officer or be taken to the nearest Magistrate. He was also informed that both PWs 1 and 3 were gazetted officers. The respondent declined to be searched in the presence of a Magistrate and/or a gazetted officer and agreed to be searched by the gazetted officers present. Before the respondent was searched he was also told that he could search the Dy. Superintendent of Police and other members of the raiding party, if he so desired. He again declined the offer. On opening the bag which the respondent had thrown away, it was found that the bag contained twenty slabs of dark brownish-coloured substance. Contents of each of the slabs were tested with the help of field testing kit and gave positive results for charas. On being weighed it was found that each slab was approximately 250 grams and the total weight of the charas came to be 5 kg. Thereafter, two representative samples, each weighing “about 50 grams” were drawn out in two small polythene bags. These bags were sealed with CBI seal bearing impression JS/4 and were marked A-1 and A-2. The independent witnesses, Dy. Superintendent of Police and the other persons signed thereon. The remaining charas was kept back in the white cloth bag which was also sealed and marked as ‘A’.

4. The trial court, after considering the evidence and the relevant material, convicted the respondent under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to 10 years' rigorous imprisonment and a fine of Rs 1 lakh.

5. The appeal filed by the respondent has been allowed by the High Court on two grounds viz. (a) that there is non-compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and (b) that the samples taken were weighing 50 grams, but according to CFSL what was received by them was 55.5 grams. It was held that because of this it could not be said with certainty that it was the same sample, which had been alleged to be taken, which had been sent to CFSL.

6. In our view, neither of the reasons given by the High Court can be sustained. It is to be noted that the charas was found not from the person of the accused but from the bag which the accused had thrown on the ground. This Court has in the case of Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257 held that the requirements of informing the accused about his rights under Section 50 comes into existence only when the person of the accused is to be searched. It is held that if the substance is recovered from the bag of the accused, it cannot be said that it is recovered from his person. Similar view has also been taken by this Court in the case of Kanhaiya Lal v. State of M.P (2000) 10 SCC 380 As in the present case, charas was recovered from the bag and not from the person of the respondent, Section 50 would not be applicable at all. The High Court was, thus, wrong in acquitting the accused on this ground.

7. Even presuming that Section 50 of the NDPS Act was applicable, in our view, the requirements of Section 50 of the NDPS Act had been fully complied with. Both PW 1 (who was an independent witness) as well as PW 3 have deposed that they had informed the accused that if he so desired, he could be examined in the presence of a gazetted officer or in the presence of a Magistrate. It has been held by a Constitution Bench of this Court in the case of State of Punjab v. Baldev Singh (1999) 6 SCC 172 that such information need not be in writing. It has been held that orally conveying such information is sufficient. It has also been held in the case of Krishan Mohar Singh Dugal v. State of Goa (1999) 8 SCC 552 as well as in the case of Sajan Abraham v. State of Kerala (2001) 6 SCC 692 that what is required is substantial compliance and thus informing the accused that if he wants the search to be carried out in the presence of a Magistrate or a gazetted officer is sufficient compliance with Section 50 of the NDPS Act. We find from the impugned judgment that apart from stating that the mandate of Section 50 of the NDPS Act had not been carried out in letter and spirit, the High Court has not stated as to how this mandate had not been carried out. Therefore, the view of the High Court that Section 50 of the NDPS Act had not been complied with cannot be sustained.

8. The other ground on which the High Court has acquitted the respondent is that there was a difference in weight. In such cases what has to be ensured is that what has been recovered is what has to be sent for chemical analysis. In case there is any doubt that what was received by the Chemical Analyser is not the same, then the benefit of that doubt could be given to the accused. But in cases where it is proved that what was sent to the Chemical Analyser is the same as what was recovered, minor differences in weight would not vitiate the trial.

9. It must be noted that the weight of the samples was “about 50 grams”. “About 50 grams” necessarily means not exactly “50 grams”. The weight could be a little less or more. The deposition of PW 3 shows that the samples were sealed with CBI seal bearing impression “JS/4”. PW 3 has further deposed that samples, on being sealed, were sent to malkhana. PW 5 i.e ASI Ram Kumar deposed that he was in charge of the malkhana. He deposed that he had received the samples in a sealed condition and they remained with him in the sealed condition. He has deposed that one of the samples was given by him to ASI B.K Sharma to be taken to the Chemical Analyser along with a forwarding letter. ASI B.K Sharma was examined as PW 4. He deposed that he received the sample in a sealed condition and that he delivered the sample to the Chemical Analyser. He deposed that while the sample was in his possession it was not tampered with. The Chemical Analyser was examined as PW 2. He deposed that he received the sample with the seal intact along with the forwarding letter. The forwarding letter had been marked as PW 3.F. The forwarding letter does not contain any weight. It was only when the Chemical Analyser weighed the sample that the exact weight was found to be 55.5 grams. At this stage it must be noted that not a single question was put to any of the above witnesses, in the cross-examination, that the seal had been tampered with. All that is asked of PW 4 is that CFSL form in triplicate was not prepared or sent to the Chemical Analyser. Merely because no such form was prepared or sent, does not in any way reflect on the fact that the sample which was extracted, was the sample which reached the Chemical Analyser with the seal intact. In this case the prosecution has been careful enough to prove that the same sample was sent to the Chemical Analyser with the seal intact. It is thus established by evidence that the sample which was extracted was what was sent to the Chemical Analyser. We are thus unable to uphold the reasoning of the High Court.

10. Mr Sheikh Israr Ahmad, learned counsel for the respondent relied upon the case of Valsala v. State of Kerala 1993 Supp (3) SCC 665. In that case there was no evidence that what was seized had been sealed. There was no evidence that what was sealed had been properly stored. Some substance was sent to the Chemical Analyser three months after the seizure. There was no proof that what was seized was what was sent. On those facts this Court held that there was doubt whether what was received by the Chemical Analyser was what had actually been seized. Thus on facts the accused had been acquitted. This case has no relevance. In the present case, it has been proved by evidence that what was seized was properly sealed and stored and that the same was sent to the Chemical Analyser in a sealed condition. Reliance was also placed on the case of Jasbir Singh v. State of Punjab (1998) 8 SCC 525, JT (1998) 2 SC 292. In this case also there was lack of evidence. It was not proved that the seized article was sealed and/or the same had been sent. Thus the benefit of doubt was given to the accused. Such cases can be of no assistance to the respondent.

11. It was next urged that in view of the difference in weight, this Court should give benefit of doubt to the respondent. It was urged that difference in weight supports the respondent that he has been falsely implicated in this case. In view of the evidence, including the evidence of the independent witnesses it is not possible to accept this submission. In our view, the defence taken appears to be highly improbable.

12. Under the circumstances, we set aside the impugned judgment, restore the conviction as imposed by the trial court. The appeal is accordingly allowed.

13. The respondent is on bail. His bail bonds shall stand cancelled. He be taken into custody forthwith.