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2008 DIGILAW 903 (DEL)

Gopal v. State

2008-09-22

SUNIL GAUR

body2008
SUNIL GAUR, J. 1. Appellant-Gopal has been convicted under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (herein after referred to as NDPS Act) for illegal possession of 1 kg and 600 gms of CHARAS and he has been sentenced to rigorous imprisonment for ten years and to pay a fine of Rs.1 lac (Rupees one lac) and in default thereof, to undergo rigorous imprisonment for six months by the Additional Sessions Judge, Shahdara, Delhi, vide impugned judgment dated 13th July 2000 and order and 15th July 2000. 2. The factual backdrop of this case, which needs to be noticed for disposal of this appeal, is as follows:- On 17th October 1999, at about 9 AM, a routine checking of the buses etc. for prevention of pick pocketing was being done at Wazirabad Road Bus Stand in front of Sant Nirankari Ashram, Delhi, by the police team comprising of Inspector S.N.Pandey, Sub Inspector Devinder Singh, Sub Inspector Lakhan Singh and others. Appellant was caught while he was coming from the side of Brijpuri Road and he was having something wrapped in a cloth under his right armpit and on seeing the police party, he turned back and on suspicion he was apprehended and searched and from the cloth bag (Potli), which was kept under his armpit, some substance in the form of sticks (batties) was recovered and it was suspected to be a narcotic substance. Before taking the search of the Appellant, Sub Inspector Devinder Singh asked four or five persons around to join the search proceedings but they declined. The recovered substance was weighed and was found to be weighing 1 KG and 600 gms and out of it, 100 gms was taken out as a sample and was seized and sealed into a parcel and after completing the spot proceedings, FIR in this case was registered. Appellant was arrested, case property was deposited and the sample was sent for chemical analysis to the laboratory and after it has tested positive for charas, charge sheet for violation of Section 20 of the NDPS Act was filed. Trial commenced. Appellant pleaded not guilty. During the trial, ten witnesses were got examined and Appellant made a statement under Section 313 of Cr.P.C. before the trial court alleging false implication and being lifted from his house, but did not lead any evidence in his defence. Trial commenced. Appellant pleaded not guilty. During the trial, ten witnesses were got examined and Appellant made a statement under Section 313 of Cr.P.C. before the trial court alleging false implication and being lifted from his house, but did not lead any evidence in his defence. After the trial, Appellant has been convicted and sentenced as reflected in the opening paragraph of this judgment. 3. Both the sides have been heard and with their assistance, the evidence on record has been scrutinised. Judgments reported in (2007) DLT (Crl.) 481; (2004) 3 SCC 609 ; (2001) 9 SCC 571 ; (2007) 6 SCC 410 ; Crl.Appeal No.460/05 Mohd. Irfan Vs. State decided by this court on 14.12.2007; Crl.A. No. 952/05 Gurdev Singh Vs. State of NCT of Delhi decided on 7.3.2008; Crl.A.No. 391/03 Mohd. Altaf Vs. State of NCT of Delhi decided on 30.11.2007; Crl.A. No. 690/00 Jawahar Vs. State decided on 23.3.2007; Crl.A. No.113/1994 Hori Lal Vs. State of NCT decided on 10.3.1995; 1994 (4) RCR Crl. 152; 1998 (2) RCR Crl.175 and 1996 Crl.Law Journal 4355, relied upon, have been perused. .4. In this appeal, conviction and the sentence imposed upon the appellant as aforesaid, has been assailed on the ground that although available, independent witnesses were not joined at the time of the alleged recovery from the appellant, which renders the alleged recovery to be suspect. Learned counsel for the Appellant has drawn attention of this court to page 12 of the impugned judgment to contend that the contradictions pointed out in the evidence have been noticed but not have been dealt with by the trial court. It is contended on behalf of the Appellant that the contradiction .regarding the size of the sticks (batties) of the recovered charas go to the root of the matter and the contradictions regarding the raiding team being in uniform or civil dress and regarding description of the weighing scale and the timings, adversely reflect upon the prosecution case and since the punishment in cases like present one is stringent, therefore, aforesaid contradiction assume importance. The evidence of the expert PW-8 who has proved the CFSL report on record is assailed on the ground that he is admitted that the percentage of the charas is not given in the report and attention of this court has been drawn to few unreported orders of this court, where the sentence has been scaled down on the basis of the percentage of chemical THC in the FSL/CFSL reports. 5. Some controversy was sought to be created by the defence by asserting that the expert PW-8 has admitted that there is no mention of receiving of CFSL form in the CFSL report Ex.PW-8/A. Much stress has been laid by the defence on the plea that vide order dated 23rd April 2008 this court had directed the trial court to send the sample of the Charas to FSL for quantitative analysis of the sample as the CFSL report received does not indicate the exact percentage of the narcotic substance found in the sample tested. A report dated 4th June 2008 from the trial court has been received, intimating that the case property of this case has been destroyed. This is a matter of record. 6. According to learned counsel for Appellant, in the face of the infirmities pointed out in the prosecution case, the conviction and the sentence imposed upon the Appellant is rendered illegal and therefore, the Appellant deserves to be acquitted. In the alternative, it is submitted that great prejudice has been caused to the Appellant because of lapse of the prosecution in not getting the percentage of narcotic substance determined in the sample of the charas in the first instance and therefore, the sentence of the Appellant ought to be reduced to the period already undergone by him i.e., about nine years out of the sentence of ten years. .7. Learned Additional Public Prosecutor for the State has supported the impugned judgment and the sentence imposed upon the Appellant and has submitted that the recovered charas is an organic narcotic substance and in the notification dated 16th July 1996 specifying small quantity and commercial quantity of the narcotic drugs, the chemical name of the charas is given at S.No.23 as ?extracts and tinctures of cannabis?. According to learned Additional Public Prosecutor for the State, no percentage of the .extract and tinctures of cannabis can be determined and in the unreported orders of this court, relied upon by the Appellant, what is determined is THC (Tetrahydrocannabinol) which is a separate substance shown at serial No. of the aforesaid notification and this matter regarding the determination of percentage of THC is already sub-judice in other cases and has not been conclusively determined till date. 8. As regards contradictions in the prosecution case, learned Additional Public Prosecutor submits that these are not contradictions but are trivial inconsistencies which are bound to occur due to lapse of time and are not material and from the evidence on record, apprehension of the Appellant at the spot with illegal possession of heavy quantity of charas stands fully proved and the Appellant has not led any evidence to substantiate his plea of being lifted from his house and of being falsely implicated in this case. Thus, it is submitted that there is no merit in this appeal and it deserves to be dismissed straightaway. 9. Nothing else has been urged by either side. .10. The first and foremost assault on the prosecution case by the defence is that non-joining of independent witnesses, though available, is fatal to the prosecution. This aspect has to be considered in the context of this case. Present case is not of prior information. During the routine checking, Appellant has been apprehended and from his cloth bag, heavy quantity of charas has been recovered. Checking Team Incharge, Inspector S.N. Pandey, PW-1, was questioned in this regard by the defence and his response was that Sub Inspector Devinder Singh, PW-6, member of the checking team had asked four or five public persons to join the proceedings but they did not do so and had left the spot without disclosing their names. According to the defence, this is a stereo typed response which cannot be accepted in cases like present one. No doubt, in one or two cases of the Punjab and Haryana High Court of the year 1996 and 1998, relied upon by the Appellant, in the facts of those cases, this circumstance of non- joining of independent witness was taken to be against the prosecution. No doubt, in one or two cases of the Punjab and Haryana High Court of the year 1996 and 1998, relied upon by the Appellant, in the facts of those cases, this circumstance of non- joining of independent witness was taken to be against the prosecution. However, this aspect has been considered by the Apex Court in case of State of Punjab vs. Balbir Singh, 1994 JCC 303, and it has been conclusively held that if there is no strict compliance with the provisions of Section 100 of the Cr. P.C., (mandating joining of independent witnesses) then such a search would not per se be illegal and would not vitiate the trial. However, the effect of such failure has to be borne in mind by the court while appreciating the evidence in the facts and circumstances of each case. 11. Nowadays, in metropolitan city like Delhi, public persons seldom come forward to join such proceedings. Public apathy is writ large on the face of it. In the instant case, efforts to make the public person join the search proceedings was made and therefore, it cannot be said that there was any lapse on this account on the part of the prosecution. Furthermore, since the present recovery is not on the basis of prior information, therefore, default, if any, in this regard would not be fatal to the prosecution. 12. It will not be correct to say that the discrepancy in the prosecution case as noticed by the trial court, in page 12 of the impugned judgment, have not been dealt by the trial court. They have been dealt with in para 45 at page 14 of the impugned judgment. I have no reason to differ with the view taken by the trial court regarding the inconsistencies being in the prosecution case due to lapse of considerable time. It has been rightly observed by the trial court that human memory cannot be expected to be so sharp as to remember the minute details of the incident by the police officials who routinely handle such cases in many numbers. Learned Additional Public Prosecutor for the State is right in contending that the so called shortcomings pointed out by the defence in the prosecution case are mere inconsistencies and they do not come in the category of contradictions. 13. Learned Additional Public Prosecutor for the State is right in contending that the so called shortcomings pointed out by the defence in the prosecution case are mere inconsistencies and they do not come in the category of contradictions. 13. Simply because there is variation in the measurement of the size of the sticks (batties) given by the checking team members PW-4 and PW-7, and that too after lapse of much time, it will not be fair to discard the prosecution case by magnifying about the variation in the size of sticks of the recovered charas. Similarly, inconsistency inter se the evidence of Inspector S.N. Pandey, PW-1 and Sub Inspector Lakhan Singh, PW-4, regarding the description of weighing scale having plate or katory size is not of much consequence. Likewise, if one witness has given the time of leaving the spot as 12.45 PM and another witness as 1.15 PM, this to my mind, will not be a material variation. What has been pointed out by the defence is that one member of the checking team, i.e., PW-4 has given the distance of the appellant as 30 paces away from where the team was stationed and another witness, PW-6, has given the said distance as 15 or 20 paces. These are inconsequential variations. Even if one team member has stated that they were in uniform, whereas another team member has stated that they were in civil dress, still nothing material turns on it. 14. Having said that about the aforesaid discrepancies, now I proceed to deal with the evidence of the expert, PW-8, on which much emphasis was laid by the defence during the course of the arguments. Regarding no mention of receiving of the CFSL form in the report, there is evidence of the expert PW.8 to the effect that the CFSL form, which was received by him is on record as Ex.PW.8/B and it bears the endorsement and his signatures. In view of this, nothing more needs to be said. According to the defence, expert, PW-8 cannot get away by simply saying that the percentage of the charas is not mentioned in the report. Until and unless, the expert, PW-8, is further grilled on this aspect, no benefit accrues to the Appellant. It has not been asked from the expert, PW-8 as to why percentage of charas in the report is not given. Until and unless, the expert, PW-8, is further grilled on this aspect, no benefit accrues to the Appellant. It has not been asked from the expert, PW-8 as to why percentage of charas in the report is not given. Had he been so asked, then perhaps, he would have given the plausible answer to it. Nothing further is required to be said on this aspect as there is no effective cross examination of the expert, PW-8 on this material aspect. Therefore, the substantial question raised by Additional Public Prosecutor for the State regarding there being no percentage being determined in the sample of charas, with reference to the notification dated 16th July 1996 is left open to be considered in an appropriate case. 15. Since the determination of percentage of narcotic substance i.e. charas is a moot point, which yet remains to be determined and answered conclusively, therefore, it cannot be said that there is any lapse on the part of the prosecution in this case in not getting the percentage of the charas determined. Appellant kept silent about it during the trial and after a decade, Appellant belatedly made a request to this court to get the percentage of charas determined, and vide order dated 23rd April 2008, this court speaking through S. Muralidhar, J, granted the aforesaid request and directed the trial court to draw a sample from the case property and send it to the FSL for this purpose. On 4th June 2008, trial court reported that the case property of this case has been destroyed. When learned Additional Public Prosecutor was asked as to how this has been done during the pendency of this appeal, he responded by stating that unless and until, there is a direction by any court to retain the case property, it is destroyed after the trial, as per the rules. In any case, Appellant cannot derive any benefit if he sleeps over his rights for an inordinate period of about ten years. .16. After a detailed scrutiny of the evidence on record, I find that nothing worthwhile has come out in the cross examination of the material witnesses of the prosecution to dislodge the presence of the Appellant at the spot. .16. After a detailed scrutiny of the evidence on record, I find that nothing worthwhile has come out in the cross examination of the material witnesses of the prosecution to dislodge the presence of the Appellant at the spot. .Appellant has not led any evidence nor brought out anything in cross of witnesses to probablise his being lifted from his house by the checking team of this case or of planting of such a heavy recovery. It is not shown to this court as to why the checking team would do so. No evidence has been led by the Appellant to show as to why the evidence of police officer of the rank of the Inspector should be disbelieved when it is otherwise reliable. No reason is forthcoming as to why the Appellant would be falsely implicated in this case and as to why such a heavy recovery of charas would be planted upon the Appellant. 17. In view of the aforesaid, I hold that the conviction and the sentence imposed upon the Appellant by the trial court is well merited and calls for no interference by this court. The present appeal is without any merit and is dismissed as such.