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Deepak Shamsher Thapa v. State .

Delhi High Court

Jan 8, 2019

Judgment

Subsequent
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High Court of Delhi — Crl.A. 831/2014 (Deepak Shamsher Thapa v. State)

Factual and Procedural Background

(Narrative drawn exclusively from the provided opinion.)

The appellant, a Nepali national identified as "Deepak", was intercepted on 23 June 2012 at about 11:45 AM (after secret information that he would approach the Indian Oil petrol pump near Majnu Ka Tila). The prosecution case, accepted by the Trial Court, was that he was found carrying 10 kg of hashish (charas). He was arrested and tried for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act").

The learned Special Judge (NDPS-02) convicted the appellant by judgment dated 13 May 2014 and, by order dated 24 May 2014, sentenced him to 12 years rigorous imprisonment with a fine of ₹1,00,000, and default simple imprisonment of six months. The appellant filed the present appeal challenging conviction and sentence.

Legal Issues Presented

Whether the search and seizure were vitiated by non-compliance with Section 50 of the NDPS Act (including whether Section 50 applied where recovery was made from baggage while the person was also searched).
Whether the sample custody and sealing procedures (including entrustment of seals to an independent person) raised a real possibility of tampering such as to vitiate the prosecution case.
Whether the FSL report was properly proved in evidence (including whether any official custodian from the FSL was examined).
Whether the absence of any public/independent witness or the exclusive reliance on police witnesses required special scrutiny of the prosecution case.
Whether the method of sampling (taking two 50 g samples from 10 kg of broken pieces) was faulty, affecting the evidentiary value of the samples.

Arguments of the Parties

Appellant's Arguments

The FSL report was not proved in court; no official custodian from the FSL was examined to establish custody at the FSL, undermining the report's credibility.
The seal used on the samples had not been entrusted to an independent person; PW-10 (I/O SI Sunil Jain) had handed the sealed exhibits to PW-3 HC Rajesh Kumar (a member of the raiding team), and therefore there was a possibility of tampering. Reliance was placed on judgments (Safiullah, Prem Singh, Bhola Singh, Gurjant Singh) for the proposition that the I/O must entrust the seal to an independent witness.
There was a timing discrepancy in the evidence: PW-6 testified that PW-2 reached the Crime Branch at 4:05 PM while the FIR was shown registered at 4:00 PM.
The official receipt (Ex. PW-1/A) did not record receipt of FSL forms or refer to a Road Certificate number; the Road Certificate did not show receipt or FSL seal; the official form had not been exhibited. Reliance was placed on Heera Lal.
The proceedings were initiated in violation of Section 50 of the NDPS Act; reliance was placed on the Supreme Court judgments in Arif Khan and State of Rajasthan v. Parmanand.
There were no independent/public witnesses; where evidence is only by police witnesses, such cases require careful scrutiny (relying on Krishan Chand and Rajesh Kumar).
The sampling method was faulty because two 50 g samples were taken from 10 kg comprising broken pieces adhered together; reliance was placed on Basant Rai, Gaunter Edwin Kircher, and Javed A. Bhatt.

Respondent's (State's) Arguments

The learned APP relied on the decision in Ajmer Singh v. State of Haryana to contend that the absence of public witnesses did not vitiate search, seizure or the consequent conviction.
The learned Special Judge's findings (including rejection of various defence submissions such as discrepancies, absence of public witness, and issues concerning seals) were reiterated by the State.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Safiullah v. State (Delhi Admn.), (1993) 25 DRJ 248	Proposition that the I/O must entrust the seal of the seized article to an independent witness to prevent tampering after sealing.	Quoted by the appellant to challenge sealing/custody; the Trial Court rejected submissions based on seals; the High Court did not resolve this issue because it allowed the appeal on the Section 50 ground.
Prem Singh v. State, 1996 Cri LJ 3604	Same line as Safiullah: necessity of entrusting seal to an independent witness so as to avoid tampering.	Relied upon by appellant to argue potential for tampering; not decided by the High Court because the appeal succeeded on Section 50 infringement.
Bhola Singh v. State of Punjab, (2005) 2 RCR (Cri) 520	High Court of Punjab & Haryana decision cited on the requirement of independent custody/entrustment of seals after seizure.	Relied upon by appellant; the Trial Court had addressed seal numbers and rejected tampering suggestion; High Court disposed appeal on other ground.
Gurjant Singh v. State of Punjab, (2007) 4 RCR (Crl) 226	Similar authority from Punjab & Haryana High Court concerning entrustment/independence in sealing/custody.	Relied upon by appellant; not determinative because Section 50 violation formed the basis for acquittal.
Heera Lal v. State, (1993) (52) DLT 231	Authority cited for scrutiny of official receipt, FSL forms and Road Certificate entries when establishing chain of custody and transmission to FSL.	Relied upon by appellant to question the official receipt and Road Certificate linkage; the High Court did not resolve this as it allowed the appeal on Section 50 ground.
Arif Khan v. State of Uttarakhand, 2018 SCC OnLine SC 459	Supreme Court authority on Section 50 of NDPS Act: even if accused is informed and refuses search before a Judicial Magistrate or Gazetted Officer, Section 50 may still be violated where person is also searched during a baggage search.	The High Court held reliance on Arif Khan (together with Parmanand) to be well taken and applied its principle to hold the search and seizure vitiated, leading to acquittal.
State of Rajasthan v. Parmanand, (2014) 5 SCC 345	Supreme Court authority establishing that where recovery is effected from baggage while the person is also searched, Section 50 applies and non-compliance can vitiate proceedings.	The High Court treated Parmanand and Arif Khan cumulatively and applied them to conclude Section 50 was violated on the facts; this formed the primary basis for acquittal.
Krishan Chand v. State of Himachal Pradesh, (2018) 1 SCC 222	Authority cited for the proposition that cases relying only on police witnesses require careful scrutiny.	Relied upon by appellant to press for close scrutiny; the High Court did not decide this issue because the appeal was allowed on Section 50 non-compliance.
Rajesh Kumar v. State of NCT Delhi, (2014) 8 HCC (Del) 157	Authority cited alongside Krishan Chand regarding careful scrutiny when evidence is provided solely by police witnesses.	Raised by appellant; not determinative because the Section 50 ground sufficed for acquittal.
Basant Rai v. State, (2012) 191 DLT 403	Single Judge decision concerning faulty method of sampling (two 50 g samples taken from a larger quantity of broken pieces) and reliance on the Supreme Court in Gaunter Edwin Kircher.	Relied upon by appellant to challenge sampling methodology; the High Court did not rule on this aspect as it disposed the appeal on Section 50 non-compliance.
Gaunter Edwin Kircher v. State of Goa, (1993) 3 SCC 145	Supreme Court authority concerning sampling procedures and related evidentiary concerns.	Referenced via Basant Rai to attack sampling; not finally adjudicated by High Court due to decision on Section 50.
Javed A. Bhatt v. Union of India, 2007 Cri LJ 3145	High Court of Bombay authority on sampling and related evidentiary practice.	Relied upon by appellant through Basant Rai argument; the High Court did not address it after deciding on Section 50 issue.
Ajmer Singh v. State of Haryana, (2010) 3 SCC 746	Supreme Court decision relied on by the prosecution to argue that absence of public witnesses does not, by itself, vitiate search, seizure or conviction.	Invoked by the learned APP in support of the State's position on absence of public witnesses, but the High Court allowed appeal on the Section 50 ground and therefore did not accept Ajmer Singh as determinative in this case.
Dharambir v. State, (2018) 254 DLT 354 (Single Judge)	Decision of the same Court (referred to by the bench) noting the cumulative effect of Parmanand and Arif Khan on applicability of Section 50 where baggage and person are both searched.	The bench referred to its earlier decision to support application of Parmanand and Arif Khan; used as part of reasoning to hold Section 50 was violated on the facts.
Gurtej Singh Batth v. State, (2018) 254 DLT 551 (Single Judge)	Another of the Court's decisions referenced by the bench discussing the effect of Parmanand and Arif Khan.	Referenced by the bench to reinforce the legal proposition drawn from Parmanand and Arif Khan and applied to these facts to quash conviction.

Court's Reasoning and Analysis

The High Court reviewed the trial record, the testimony of prosecution witnesses (PW-1 to PW-11), and the submissions advanced on behalf of the appellant and the State. The Court highlighted the following points of analysis (expressed strictly as in the judgment):

The Court accepted the appellant's primary submission based on the Supreme Court decisions in State of Rajasthan v. Parmanand and Arif Khan (supra). The Court explicitly stated that reliance on those decisions is "well taken" and that the appellant was entitled to succeed on that ground alone, making it unnecessary to consider the other contentions in detail.
The Court explained the legal principle (derived from Parmanand and Arif Khan and reiterated in the Court's prior decisions Dharambir and Gurtej Singh Batth): (i) where recovery is effected from the baggage of an accused during a search operation in which the person of the accused is also searched, Section 50 of the NDPS Act applies; and (ii) even where the accused refuses the offer to have his search conducted before a Judicial Magistrate or a Gazetted Officer, the raiding party is nonetheless bound to comply with Section 50, failing which Section 50 stands infringed.
The Court found that these principles applied "on all fours" to the facts of the case because the alleged recovery of charas was effected from the baggage of the appellant at a time when the person of the appellant was also searched by the I/O.
Resultantly, the Court held that the search, seizure and recovery, and all proceedings thereafter, were vitiated due to the infringement of Section 50. Having reached this conclusion, the Court observed that it was unnecessary to examine other grounds urged by the appellant (such as alleged tampering of seals, absence of FSL custodian testimony, sampling methodology, or absence of public witnesses).
The Court accordingly concluded that the appellant was entitled to be acquitted and directed that the impugned conviction and sentence be quashed and set aside, ordering the appellant's release unless required in any other case.

Holding and Implications

Holding: The appeal is allowed and the appellant is acquitted of the charge under Section 20 of the NDPS Act. The impugned judgment dated 13 May 2014 and the order on sentence dated 24 May 2014 are quashed and set aside. The appellant is directed to be released forthwith unless required in another case. Trial court record to be returned and a copy of the judgment to be provided to the Jail Superintendent for compliance.

Implications: The direct consequence is the immediate acquittal and release of the appellant and the quashing of trial court orders. The Court's decision rests upon its application of the Supreme Court authorities Parmanand and Arif Khan concerning the scope and mandatory application of Section 50 of the NDPS Act where baggage and person are searched together. The opinion does not purport to lay down a new principle of law; rather it applies existing Supreme Court authority to the facts and does not adjudicate the alternative arguments (seal custody, FSL proof, sampling, absence of public witnesses) because the Section 50 ground was dispositive.

Show all summary ...

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 21^st July, 2018 Pronounced on: 8^th January, 2019

+ CRL.A. 831/2014 DEEPAK SHAMSHER THAPA ..... Appellant Through: Mr. Yogesh Saxena, Mr. Sikander Azam Khan and Mr. Aditya Vikram (DLSA),

Advs.

versus

STATE ..... Respondent

Through Ms. Meenakshi Chauhan, APP for the State

ASI Yasin Khan, PS Crime

Branch in person

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

% J U D G M E N T

1. This appeal assails judgment, dated 13^thMay, 2014, whereby the learned Special Judge (NDPS-02) convicted the appellant for the offence punishable under Section 20(C) of the Narcotics, Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act"), as well as the consequent order, dated 24^thMay, 2014, whereby the learned Special Judge sentenced the appellant, for the said offence, to undergo 12 years rigourous imprisonment with fine of ₹1 lakh, and default simple imprisonment of 6 months.

2. The case of the prosecution, as upheld by the learned Special Judge, is that the appellant, a Nepali national, was intercepted, on 23^rd June, 2012, at about 11:45 AM, and was found to be carrying 10 kg of hashish (charas), which constituted an offence under Section 20 of the NDPS Act. The appellant was arrested and, on his pleading not guilty, was tried for the said offence and, vide the impugned judgment and order, convicted and sentenced therefor.

The Evidence

3. The prosecution examined 11 witnesses, PW-1 to PW-11.

4. The MHC (M), PS Crime Branch, HC Jagnarain, deposing as PW-1, confirmed that three pullandas had been handed over, to him, by PW-6 Inspector C.R. Meena, on 23^rdJune, 2012, and that the pullandas were sealed with the seals of the Narcotics Bureau. He confirmed the depositing of the said samples in the Malkhana and, later, handing over the pullanda marked 'A', along with the FSL Form to PW-5 HC Manoj Kumar, as well as being handed over the result of the FSL (Ex. PW-1/A) by HC Manoj Kumar (PW-5), after deposit of the said samples. PW-1 further confirmed having received the official report on 29^thAugust, 2012, and handed over the same to the I/O.

5. PW-2 HC Yogesh confirmed, in his examination-in-chief, being part of the raiding party organised by PW-10 SI Sunil Jain, which consisted of PW-10, himself and HC Rajesh (PW-3) on 23^rdJune, 2012. He also confirmed that the raiding party had been constituted

consequent to receipt of secret information that one person, named Deepak, who was a Nepali national, would be approaching the Indian Oil petrol pump, near Majnu Ka Tila, for supplying hashish (charas). He confirmed intercepting and overpowering the appellant (whom he recognised in court). He further deposed that notice, under Section 50 of the NDPS Act was served on the appellant, informing him of his legal right to be searched in the presence of a Gazetted Officer or a Magistrate, but that the appellant refused to exercise the said right, which was recorded as Ex. PW-2/B, on the body of the notice (Ex. PW-2/A). He further deposed that passers-by, though requested to join the raiding party, did not oblige. Thereafter, PW-2 deposed, search, of the bag carried by the appellant, was conducted by the I/O, which disclosed that it contained a polythene pouch with solid material in it which, on being tested using the Field Testing Kit carried by the raiding party, was found to be charas, weighing 10kg. He further deposed that, from the said 10 kg charas, two samples of 50g each were separated and kept in separate pullandas, marked 'A' and 'B'. The remaining charas was kept in a bag, which was marked 'C'. He deposed, further, that the I/O affixed the seal of the Narcotics Bureau on the FSL form and on the said three pullandas, whereafter the seal was handed over to PW-3 HC Rajesh. The property was seized by the I/O, vide seizure memo Ex. PW-2/C.

6. PW-2 further deposed taking the rukka, prepared by the I/O to the Police Station where, on the basis thereof, FIR was registered. He confirmed handover of the samples, by the SHO, to the MHC (M). PW-2 identified, in court, the various exhibits.

7. The testimony of PW-2 was supported by PW-3 HC Rajesh Kumar and the I/O SI Sunil Jain, who testified as PW-10. One significant difference, in the statement of the I/O PW-10 SI Sunil Jain, as compared to the statements of PW-2 and PW-3, is, however, that PW-10 testified that he "conducted cursory search of accused and during his search one badami colour rexine bag was recovered and the same was checked" and found to contain charas, whereas PW-2 and PW-3 made no reference to conducting of the search of the petitioner. PW-10 SI Sunil Jain, the I/O, also testified to having prepared the special report under Section 57 of the NDPS Act (Ex. PW-7/C) and submitting the same to PW-9 Inspector Kuldeep Singh, for onward transmission to higher officers. PW-10 further confirmed being the recipient of the information conveyed by the secret informer, on the basis thereof the raiding party, which later apprehended the appellant, was constituted.

8. The fact of collection of the samples, storage thereof in the malkhana and transmission, of the samples, to the FSL, were also proved by the statements of PW-5 HC Manoj Kumar and PW-6 Inspector C.R. Meena.

9. The appellant, in his statement under Section 313 of the Code of Criminal Procedure (hereinafter Cr.P.C), completely denied all the allegations against him, and asserted that there had been no recovery from him and that the case property had been planted on him. He alleged that he had been forcibly taken to the Narcotics Cell where, under pressure and threat, his signatures were obtained on various

blank papers. He first stated that he would lead defence evidence but, thereafter, submitted that he did not wish to lead any evidence in defence.

10. The report, dated 17^thAugust, 2012, of the FSL (Ex. PW-11/D), certified that Ex. 'A', was found to contain charas. However, no witness, from the official, was examined, to prove the said report.

The impugned judgment

11. Various submissions were advanced, on behalf of the appellant, before the learned Special Judge, of which the only submission which has been pressed by learned counsel for the appellant, before this Court, is that, as PW-10 (the I/O SI Sunil Jain) had handed over the seal, after sealing the exhibits, to PW-3 HC Rajesh Kumar, and had admitted, in cross-examination, that he had three seals with him, the chances of the sample having been tampered, before it reached the FSL, could not be ruled out. The learned Special Judge has rejected this submission on the ground that there were two sets, of three seals each, in the possession of PW-10 and PW-11 SI Satyavan, of which the three seals in the possession of PW-10 started with the number '3', whereas the three seals in the possession of PW-11 started with the number '7'. PW-10 having confirmed, in cross-examination that, after sealing the alleged contraband, he had handed over the sealed samples to PW-3 HC Rajesh Kumar, and had obtained the seal back only after five to six days, the possibility of tampering was ruled out, as no other seals were used on the samples. Other submissions advanced by, and

on behalf of, the appellant, before the learned Special Judge, such as the existence of minor discrepancies in the testimonies of various witnesses, the absence of any public witness, and absence of any connection between the Road Certificate and Memo number mentioned on the official receipt of the FSL, have been rejected by the learned Special Judge, on cogent grounds. These submissions, it may be noted, were not advanced before this Court.

Rival contentions before this Court

12. Learned counsel appearing for the appellant has advanced the following submissions, before this Court:

(i) The FSL report was not proved. Neither was the custody of the samples, at the FSL, proved by any official custodian. In the absence of any evidence having been led, of any official, the report of the FSL lost credibility.

(ii) The seal used on the samples had not been handed over to any independent person. PW-10 SI Sunil, had handed over the seal, after a fixation thereof, to PW-3 HC Rajesh Kumar. HC Rajesh Kumar could not be regarded as an independent person, as he was a part of the raiding team. It was well settled, in law, that the I/O had, necessarily, after sealing the contraband article, to entrust the seal to an independent witness, so as to avoid the possibility of tampering. Reliance was placed, in this regard, on the judgments of this Court in Safiullah v. State (Delhi Admn.) ., (1993 25 DRJ

248 and Prem Singh v. State, 1996 Cri LJ 3604 and of the High Court of Punjab and Haryana in Bhola Singh v. State Of Punjab, (2005) 2 RCR (Cri) 520 and Gurjant Singh v. State Of Punjab, (2007) 4 RCR (Crl) 226.

(iii) PW-6 Inspector C.R. Meena had deposed that PW-2 HC Yogesh had reached the Crime Branch with the case property at 4:05 PM, whereas the FIR was shown to have been registered at

4 PM.

(iv) The official receipt (Ex. PW-1/A) did not record receipt of the FSL forms or other documents. Neither did it make any reference to the Road certificate number. The Road certificate, too, did not bear any details of receipt or seal of the FSL. The official form had not been exhibited in evidence either. These facts were put to PW-5 HC Manoj Kumar in cross-examination. Reliance was placed, for this purpose, on the judgment of a learned Single Judge of this Court in Heera Lal v. State ., 1993

(52) DLT 231.

(v) The entire proceedings were initiated for violation of Section 50 of the NDPS Act. For this purpose, reliance was placed on the judgment of the Supreme Court in Arif Khan v. State of Uttarakhand, 2018 SCC OnLine SC 459 and State of Rajasthan v. Parmanand, (2014) 5 SCC 345

(vi) There were no independent witnesses. Cases, where the only available evidence was by way of the testimonies of police

witnesses, had to be scrutinised with great care. Reliance was placed, in this regard, on Krishan Chand v. State of Himachal Pradesh, (2018) 1 SCC 222 and Rajesh Kumar v. State of NCT Delhi, (2014) 8 HCC (Del) 157.

(vii) The method of sampling was faulty, as two samples, 50g each, had been retrieved from a total quantity of 10 kg which consisted of broken pieces adhered together. Reliance was placed, for this proposition, on the judgment of a learned Single Judge of this Court in Basant Rai v. State ., (2012) 191 DLT 403 which, in turn, relied on the judgment of the Supreme Court in

Gaunter Edwin Kircher v. State of Goa, (1993) 3 SCC 145 and the judgment of the High Court of Bombay in Javed A. Bhatt v. UOI, 2007 Cri LJ 3145.

13. Learned APP, arguing per contra, reiterated the findings of the learned Special Judge and relied on the well-known decision of the Supreme Court in Ajmer Singh v. State Of Haryana ., (2010) 3 SCC 746, to contend that the absence of public witnesses did not vitiate the search or the seizure, or the consequent conviction of the appellant.

14. Having heard learned counsel and perused the material on record, I am of the opinion that the reliance, by the learned Counsel appearing for the appellant, on the judgments of the Supreme Court in

Parmanand (supra) and Arif Khan (supra), is well taken, and that the appellant is entitled to succeed even on that ground, so that it becomes unnecessary to enter into other aspects of the controversy.

15. I have already considered, in my earlier decisions in Dharambir

v. State, (2018)254 DLT 354 and Gurtej Singh Batth v. State ., (2018)254 DLT 551, the above decisions. I have noted, in these decisions, that the cumulative effect of the judgments of the Supreme Court in Parmanand (supra) and Arif Khan (supra) is that (i) where recovery, though effected from the baggage of the accused, is effected during a search operation in which the person of the accused is also searched, Section 50 of the NDPS Act would apply and (ii) even where the accused refuses the offer to have his search conducted by a Judicial Magistrate or a Gazetted Officer, the raiding party would, nevertheless, be bound to do so, failing which Section 50 of the NDPS Act would stand infracted. I have also observed that, in Arif Khan (supra), a specific contention had been raised, by the prosecution, before the Supreme Court, that the accused had been apprised of his rights under Section 50, but had refused the offer to have a search conducted before a Judicial Magistrate or by a Gazetted Officer, but that the Supreme Court held, nevertheless, that Section 50 stood violated, and acquitted the accused in the said case.

16. The said principle applies, on all fours, to the facts of the present case as well, as the alleged recovery of the charas was effected from the baggage of the appellant, whose person was also searched at the same time, by the I/O himself.

17. The search, seizure and recovery of the alleged contraband, and all proceedings, thereafter, accordingly stand vitiated. The appellant is entitled to be acquitted of the charges against him.

Conclusion

18. In view of the above discussion, the appeal succeeds and is allowed. The appellant is acquitted of the charge, against him, of having committed the offence contemplated by Section 20 of the NDPS Act. The impugned judgment, dated 13^thMay, 2014, and order on sentence, dated 24^thMay, 2014 are, therefore, quashed and set aside.

19. The appellant is, accordingly, directed to be released forthwith, unless required to be detained in any other case.

20. Trial Court record be sent back, forthwith. A copy of this judgment be also served on the concerned Jail Superintendent, for compliance.

C. HARI SHANKAR, J

JANUARY 08, 2019