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IN THE HIGH COURT OF DELHI AT NEW DELHI Crl. Appeal No. 325/1999 Decided on: 11th July , 2011 ..... Appellant Mr. Jitendra Sethi, Advocate

RAMA MURTY TIWARI Through: versus STATE Through:

..... Respondent Mr. Vikas Pahwa, Additional Standing Counsel.

Coram: HON'BLE MS. JUSTICE MUKTA GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? MUKTA GUPTA, J. 1. By the present appeal the Appellant challenges the impugned judgment

dated 5th May, 1999 convicting the Appellant for offence punishable under Section 20(b) (ii) of the Narcotics Drugs and Psychotropic Substances, 1985 (in short the Act) and the order on sentence dated 12th May, 1999 awarding Rigorous Imprisonment for a period of ten years and a fine of `1,00,000/- and in default of payment of fine, to further undergo Rigorous Imprisonment for six months.

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2.

The prosecution case in brief is that on a secret information being

received that a person aged about 40 years residing at Chandrawal, Sabzi Mandi was likely to supply a huge quantity of narcotics drug to certain unknown customer at around 5:30 P.M. on 13th September, 1996 near Safdarjung Madarsa Bus Stand, the said information was reduced into writing & forwarded to the senior officer through a raiding party comprising of PW10 Sh. J.R. Koty, PW12 Sh. R.K. Sinha, PW11 Sh. B.S. Meena and other Constables was constituted. Two independent public witnesses namely Shri S.S. Narula PW6 and Shri R.K. Agarwal PW7 were joined. At about 5.00 P.M. on pointing out of the informer, the Appellant when he came to bus stop at about 5:00 P.M. carrying a small cotton bag in his right hand was apprehended by the team. PW10 asked him what he was carrying to which he replied that he was carrying charas weighing one and a half k.g. On this, PW10 informed the accused that he was a Gazetted officer of the CBI and was competent to carry out the search. He also informed that the accused had the option of having his search conducted either before a Gazetted officer or a Magistrate for which a written notice Ex. PW6/A was given to the Appellant. The Appellant consented to his search being conducted by PW10. On the search being conducted, from the cotton bag one white polythene bag was found which contained three transparent poly bags and these three poly bags

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contained 59 pieces of sticks which were in the form of dark brown blackish substance which when weighed with the field testing kit was found to be 8.14 kgs of charas. Out of this charas two representative samples of 25 gms each were drawn and kept into two poly bags and thereafter in two separate yellow coloured envelopes. These were sealed with the seal of CBI being

CBI/02/JAY. The samples were given marking A-1. The balance contraband was also sealed and three copies of the test memos were duly filled in and prepared at the spot and the facsimile of the seal was appended on them. The accused was arrested vide arrest Memo Ex.PW6/D and after completion of investigation, a charge-sheet was filed along with the report of the chemical analyst Ex. PW1/C which opined that the samples tested positive for charas. 3. Learned counsel for the Appellant challenging the conviction contends

that the mandatory requirement of complying with Section 42 of the Act has not been met in the present case, as the secret information was not shown to the two public witnesses i.e. PW6 and PW7 both of whom have stated that the secret information was not disclosed to them and thus Ex. PW10/A purporting to be compliance of Section 42(i) of the Act i.e. writing down the secret information is a fabricated document, manipulated later on. The link evidence in the present case is missing thus not ruling out the possibility of tampering. It is urged that PW4 S.I. Neelam Singh was a temporary Malkhana in-charge

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on 30th September, 1996 as Sh. B.K. Sharma the regular Malkahna in-charge was on tour. She stated that two sample parcels & case property wrapped in cream coloured cloth was deposited. However, the case property opened in the Court was found to be wrapped in a white coloured cloth & the explanation rendered by her for the same is totally false. She has admitted that the case property and other articles were handed over to Sh. B.K. Sharma who has not been examined as a witness. The samples were given to PW5 Sudarshan Pal, by PW8 ASI Ram Kumar in the absence of Sh. B. K. Sharma. The link evidence has not been placed, as no witness stated that when the samples remained in the custody in Malkhana, they were not tampered. There was no need for the defence to cross-examine the witnesses on this aspect, since the prosecution has failed to discharge its onus to prove the link evidence and the Appellant is entitled to the benefit of doubt. Moreover, no witness has stated that the case property remained in whose custody and that it was not tampered with till it was produced in the Court, especially when as per PW4, the property was deposited in a cream coloured cloth and not white colour and only in her supplementary statement recorded after one month she stated the contraband was wrapped in a white colour cloth. Relying on Valsala vs. State of Kerala 1993 SCC Crl. 1082, it is contended that it is the duty of the Court to see that the evidence adduced is sufficient to conclude

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that what was seized from the Appellant was sent to the chemical examiner and the remaining material object seized was sealed properly and not tampered with till it is produced in the Court. As per the recovery memo, the sample parcel A1 was kept in a yellow colour envelope which was given a marking A1 (+). However, PW9 Sh. B.B. Dev, the Assistant Chemical Examiner mentions in his testimony only about the envelop mark A1 and states nothing about the receipt of envelop A1+ or the receipt of the test memos. This witness has not been cross-examined by the prosecution. Moreover, the resort being taken to the testimony of PW1 Dr. Y.K. Singh Rathore, Chemical Examiner who states about both the envelopes and the three tests memos, is illegal and contrary to law, as PW1 has neither received the sample nor PW9 states that when the sample parcels were received PW1 was present. Thus, his testimony is not admissible in law. Reliance is placed on Sher Singh Walia vs. State of Delhi, 2000 (2) JCC Del 538. There is noncompliance of Section 55 of the Act. Even as per the testimony of PW11 HC Bhaswan Sahai Meena and PW 12 Inspector Rakesh Sinha there is nothing on record to show that in fact sample seals were sent to CRCL. It is not clear that which sample was sent to CRCL. Relying on Thandi Ram vs. State of

Haryana, 2000 SCC (Crl) 189 it is contended that in absence of compliance of the mandatory requirement of Section 55 of the Act the Appellant is entitled

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to be acquitted. Taking support from Anup Joshi vs. State, 1992 JCC 329 it is contended that in view of the difference in the mark and weight of sample parcels, the Appellant is entitled to be acquitted. 4. It is further contended that there are material contradictions in the

statement of the witnesses which falsify the prosecution case as to how the raiding party was formed, what efforts were made to join the public witnesses and in what manner the proceedings were carried out at the spot. These material contradictions assume importance in view of the defence of the Appellant that he was picked up from his house at the night on 12 th September, 1996 and subsequently implicated in this false case. DW1 Mr. Pradeep Behl, in whose shop the Appellant worked as book-binder and DW2 Smt. Parwati Devi, the wife has been examined. They have stated about the raid conducted by the CBI on the house of the Appellant on the 12th September, 1996 when a PCR call was made by DW1 and subsequently on the next day, a letter was sent to the Director, CBI and DCP, North Delhi alleging about the illegal detention of the Appellant and apprehension of false implication. Reliance is placed on Rasam Singh vs. State, 1991 CLJ 1691. Relying on Ganesh Bhawan Patel & Anr. vs. State of Maharashtra, AIR 1979 SC 135, it is contended that since none of the statements of the witnesses was recorded at the spot, the fact that this case was manufactured against the

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Appellant by manipulating the statements has been established. It is thus prayed that the Appellant be acquitted of the charges framed against him and the impugned judgment set aside. 5. Per contra, learned counsel for the Respondent contends that there is no

violation of Section 55 of the Act. The case property was deposited with PW4 SI Neelam Singh, who was the Malkhana-in-charge on 13th September, 1996 and had received this property from PW10 J R Koty, DSP CBI. Also PW8 ASI Ram Kumar who was working as the temporary Malkhana-in-charge on 16th September, 1996 gave the case property to PW5 Sudarshan Pal who delivered it at the CRCL and deposited with PW9 B.B. Dev on the same date. As per the forwarding letter dated 16th September, 1996 accompanying the samples Ex. PW1/A the packet mark A1 was enclosed in a yellow bag mark A1 (+) along with two test memos. On a collective reading of the statements of PW4, PW5, PW8, PW9 and PW6, it is proved beyond reasonable doubt that the samples were kept in sealed condition and were received by CRCL in the same sealed condition, there being no likelihood of tampering. PW4 in her statement deposed that the case property was deposited in the Malkhana on the 13th September, 1996 at about 10:40 p.m. at night and there being insufficient light at that time, she had inadvertently noted the colour of the pullanda as cream and not white. The contention of the learned counsel for

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the Appellant that PW9 B.B. Dev has not deposed in his statement that he had received in his office an envelope duly sealed and marked as A1(+) in test memo along with sample surety is a minor inconsistency and this fact has been proved by the testimony of PW1 Dr. Y.K. Singh Rathor, the chemical examiner who has stated that on 16th September, 1996 Constable Sudarshan Pal had deposited one envelope duly sealed with Mark A1(+) along with two test memos and forwarding letter of Sh. Vivek Joshi dated 16th September, 1996. Furthermore, the decision of the Honble Supreme Court in Valsala (supra) is not applicable as the facts were entirely different in the said case and in that case there was no evidence as to what was seized had been sealed and that the same sealed property was properly stored. 6. Relying on State of Rajasthan vs. Daul@ Daulat Giri 2009 14 SCC

387 and Hardeep Singh vs. State of Punjab, 2008 (8) SCC 557 it is contended that non-examination of Malkhana Officer B.K. Sharma would not in any way affect the veracity of the prosecution case as the link evidence has been proved by other witnesses. The contention of the learned counsel for the Appellant regarding the difference of weight in the sample is of no consequence as the difference is very minute and can be caused due to the quality of the weighing machine of the investigating agency and the CRCL. Relying on State through CBI vs. Dilbag, 2004 (13) SCC 99 it is contended

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that in a case where it is proved that what was sent to the CRCL is the same as that was recovered, minor difference in weight would not vitiate the trial. The contention of the Appellant that PW6 and PW7 are stock witnesses is without any basis. Neither any suggestion has been given to witnesses in the crossexamination and nor was there any ulterior motive to join the investigation and falsely implicate on the part of these witnesses. Section 42 of the Act has been complied with as the secret information was reproduced into writing vide Ex. PW10/A which was duly forwarded by PW10 J.R. Koty to his senior officer. The report under Section 57 of the Act was duly given and same has been proved as Ex. PW10/A1. Relying on Dalel Singh vs. State of Haryana, 2010 (1) SCC 149 it is contended that the transmission of the secret information by an authorized officer to his seniors even by wireless without recording it in writing is sufficient compliance of Section 42 of the Act. Contradictions and discrepancies mentioned by the learned counsel for the Appellant are minor in nature and cannot affect the case of prosecution. The defence of the Appellant in his statement recorded under Section 313 Cr. P.C. is purely an afterthought. No suggestion has been given to the witnesses that the Appellant was picked up by the police on 12th September, 1996 and shown to be arrested on 13th September, 1996. DW2, the wife of the Appellant has produced a receipt that she filed a complaint Ex. PW2/DA that the police

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authorities apprehended prior to the arrest of the Appellant and surprisingly no courier/registered A/D has been sent. Thus, there is no merit in the appeal and the same be dismissed. 7. I have heard the learned counsel for the parties and perused the record.

A perusal of testimony of PW4 Smt. Neelam Singh shows that on 13 th September, 1996 she was posted as malkhana in-charge of the office and on that day she received the seized case property from Shri J.R. Koty, D.S.P. C.B.I. According to her the seized property was found sealed with the seal impression CBI/02/JAY and the seals of the properties were intact and in good condition. She has further stated that even today she had brought the said case property to the Court and they were bearing seals in good condition. She also produced the malkhana register in which the sealed condition of the properties was mentioned. She clarified that since it was night and there was insufficient light she perceived the cloth colour as cream instead of white. This witness has been cross-examined at length and nothing material has been elicited from her cross-examination. PW5 Constable Sudarshan Pal is the witness who took the samples on 16th September, 1996 at about 11.30 AM to the CRCL. He collected the samples from Ram Kumar ASI who was the temporary malkhana incharge on that day and he has clearly stated that one envelope marked A-1 (+) duly sealed with the seal impression CBI/02/JAY

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with seals intact and good condition along with triplicate copy of test memo form No. NCB-1 containing same seal impression along with forwarding letter of S.P. CBI was taken by him to CRCL Pusa Road. This witness was further recalled for examination and cross-examination and he stated that he took the sample along with the forwarding letter and envelope Ex.P2 bearing mark A-1(+) in which samples and copies of test memos were seized. 8. Further PW8 ASI Ram Kumar stated that he was a duty officer in the

office of S.P., C.B.I. and on 13th September, 1996 PW4, who was looking after the malkhana as a temporary incharge, as Shri B.K. Sharma, ASI the regular malkhana in-charge was on official tour, handed over to him the malkhana key after duly sealing the same as per the order of the S.P. He has further stated that on the 16th September, 1996 Shri B.K. Sharma, ASI did not attend the office till 11.30 AM, as he had gone to attend some official urgent work directly from his residence and, thus, he handed over to Constable Sudarshan one sealed sample packet marked A-1(+) duly sealed with the seal of CBI/02/JAY along with the triplicate copy of NCB form (test memo) containing the specimen seal impression and signatures of witnesses therein along with the forwarding letter addressed to CRCL. He further verified the seals on the said packet and the said seals tallied with the NCB form containing the seal impression and the seals were in good and intact condition.

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This witness in his cross-examination has clarified that in the absence of incharge malkhana the duty officer takes over the charge of malkhana temporarily. He has also stated about the entries in the malkhana. 9. Thus a conjoint reading of PW1, PW4, PW8, PW5 and PW9 proves

that the samples of the case property along with test memos were deposited by PW10 J.R. Koty, with PW 4 Neelam Singh, malkhana in-charge on the said date. Merely describing the colour of the cloth bag as cream instead of white is a minor abrasion and cannot demolish the prosecution case. 10. Though, Sh. B.B. Dev, PW9 in his testimony has not stated that the

samples were received in sample parcels A-1 (+) with the test memos however, he admits his signature at point A on the receipt Ex.PW1/B. He states that these samples envelops were also accompanied by a forwarding letter and as a token of receiving, the sample he appended his signature at point A on Ex. PW1/B which was a receipt in the prescribed proforma filled in by a clerk. This witness has stated that he appended his signature only after verifying the details. Merely because PW9 has not stated about the presence of PW1, the testimony of PW1 will not be washed away who has stated that on 16th September, 1996 PW 5 deposited one envelop duly sealed and marked as A-1(+) along with two test memos and forwarding letter of Shri Vivek Joshi, S.P., CBI dated 16th September, 1996. The test memos were inside the

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above envelop sealed with the seal of CBI/02/JAY having marks on the envelops as A-1 (X) (RC) 04(E)/96-SIU-11. On opening of the said envelop which was received by PW9 in the presence of PW1, there was another envelop duly sealed with 7 lac seal bearing impression of CBI/02/JAY and also marked as A1 along with copies of test memo and NCB form duly filled in and signed by witnesses. This witness PW1 has been cross-examined at length and he has stated that the receipt was given after opening the envelop A1+ and the same was mentioned in the forwarding letter Ex. PW1/A at point A. The endorsement by point A given by PW9 at Ex.PW1/A was a detailed one describing the envelope having seal of CBI/02/JAY having marking A1+ giving the R.C. Number. It also states that on opening this envelope there were three other envelopes with seven seals CB/02/JAY marking A1 together with two copies of test memos. Merely because PW9 has not stated that PW1 was present when he received the samples would not bely the version of PW1 about the receipt of the samples, checking them and giving of a detailed endorsement. Moreover, it was PW1 who had carried out the test and rendered his opinion that the samples gave positive of charas. Thus, I find the link evidence to the extent it was received intact in the CRCL to be trustworthy.

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11.

Therefore, the link evidence of keeping the samples and sending it to

the CRCL and Keeping the case property till it was received in the Court intact has been proved by the prosecution beyond reasonable doubt. The reliance of the Appellant on the decision in the case of Valsala (supra) is misconceived as facts in the said case were totally different. As held in State of Rajasthan (supra) if the seals are found to be intact and matching with the specimen seal, no adverse inference can be drawn merely on the ground that the person in whose custody the contraband was kept has not been examined or that there was delay in sending the samples to the CRCL. In the light of the decision rendered in Dilbag (supra) minor difference in the weight of the samples as in this case 4.5 grms is of no consequence and the Prosecution case cannot be thrown out on this count. 12. I also do not find any merit in the contention of the learned counsel for

the Appellant that since the secret information reduced in writing Ex. PW 10/A was neither signed by the public witnesses nor shown to them before conducting the raid the same demonstrates that the mandatory requirement of compliance of Section 42 has not been done. Moreover, in the present case, the recovery was from an open place, i.e. a public road and thus there was no necessity of compliance with Section 42 of the Act and in the fact of the case Section 43 of the Act was applicable.

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13.

However the most crucial issue is having proved the link evidence

whether it can be said that the prosecution has proved the charge against the Appellant beyond reasonable doubt in the facts of the present case. Undoubtedly, Section 35 of the Act raises a presumption that if a person is found in possession of the contraband then a presumption is raised regarding the existence of such a mental state. Firstly, this presumption is rebuttal and secondly, even to raise the presumption the prosecution has to prove that the Appellant was found in possession of the contraband. Whether the Appellant was found in possession of the contraband is required to be examined in the light of the defence of the Appellant. The finding of the learned trial Court that the defence of the Appellant is an afterthought taken after three years as no such suggestion was given to the witnesses is a finding contrary to the record. The relevant witnesses PW12 Inspector R.K. Sinha and PW13

Rajmal, Inspector CBI have been given suggestions that the Appellant was lifted from his house in the night intervening 12-13, September, 1996 which they have simply denied. DW1 Pradeep Behl with whom the Appellant was working as a book-binder, has deposed that about 11.15 p.m. on 12th September, 1996 wife of the Appellant came to his residence and told him that 5-6 persons have come to her residence. On this when he went he asked the officers whether they had any search warrant, on which they got annoyed and

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thereafter illegally took away the Appellant forcibly. Thereafter he made a phone call to the police at 100 Number. who came to the spot and on inquiry stated that this is a CBI matter and they would not interfere. This PCR entry has not been exhibited. However, DW2 Parvati Devi, wife of the Appellant not only states about the incident of 12th September, 1996, but also states that she also went to the house of DW1 who was residing at a distance of 10-15 houses from their house and called him who inquired about the matter from CBI officials and they stated that they wanted to search the house. DW1 had also asked them about the search warrant but they said they will conduct the search even without warrants. Nothing incriminating was recovered from the house. Thereafter the CBI people dragged her husband (i.e. the Appellant) outside the house. DW1 then inquired from them that where the Appellant was taken, CBI officials told them that after making inquiries from the Appellant they will let him off. Thereafter DW1 called the PCR. She has also exhibited complaints written by her to the Director, CBI and DCP, North as Ex.DW2/DA and copies of UPCs Ex. DW2/DB and DW2/DC from postoffice Kamla Nagar at about 10 AM on 13th September, 1996. 14. Be that as it may. The case of the prosecution is that the Appellant was

apprehended about 5:30 PM on the 13th September, 1996. Ex. DW2/DB and DW2/DC bear the endorsement of post office Kamla Nagar dated 13th

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September, 1996. The post-office would in any case be closed after 5:00 P.M. in the evening and thus the complaints by UPCs have been sent prior to the time of apprehension of the Appellant. The post office from which the

complaints by UPCs have been sent is at a distance and admittedly even as per the prosecution case, the Appellant had no means to communicate with his wife at that time. The complaint mentions the name of PW10 Shri Kotty. This defence of the Appellant is further strengthened by the discrepant and contradictory testimonies of the witnesses as regards the constitution of the raiding party and the manner in which the proceedings were carried out at the spot. It is stated that though the Appellant was found alighting from bus and thereafter crossing over to the Jorbag side, however no bus ticket was found and strangely the Appellant who was at a far of distance from his house was not in possession of any money as the personal search memo of the Appellant Ex.PW6/D showed nothing. As per PW6, the Appellant alighted from a blue line bus while PW7 states that he saw the accused crossing towards Jorbag side bus stop. PW10, PW11 and PW12 apprehending that they would be confronted with the factum of absence of Recovery of any ticket and money with the Appellant denied having seen the Appellant alighting from the bus. As per PW6 the bag was taken from the Appellant immediately after his apprehension, however, he shows his ignorance about the author of the notice

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Section 50 of the NDPS Act. Whereas as per PW10, the Appellant was apprehended at about 5:00 P.M. but notice was given only at about 5:45 PM and thereafter the bag was taken from him. PW6 in his cross-examination states that the accused was thoroughly interrogated with regard to the possession of charas and he repeatedly replied that the said charas did not belong to him. PW12 states that when the Appellant was asked by PW10 as to why and how he was sitting at the spot, then the suspect replied reluctantly that he was carrying 1.5 k.g. of charas. This version is highly improbable. 15. There are further inconsistencies in the testimony of the witnesses

regarding the apprehension of the Appellant and the proceedings carried out at the spot. As per PW6 Shri S.S. Narula the entire proceedings were conducted while sitting in a park for about three hours, whereas as per the site plan the proceedings were conducted at point B-2 which is a service road. As per PW7 Shri Rakesh Kumar the proceedings were conducted on a footpath whereas PW12 states that they were conducted at Jorbag bus stop. Further, though the witnesses have stated that the accused had brought this charas to be handed over to someone, however, neither any other person was apprehended nor any investigation carried out in this regard. Even the Police custody remand of the Appellant was not sought to trace out the other accused to whom supply was to be made but no other person is either arrested or charge-sheeted.

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16.

Thus, the testimony of the witnesses regarding the alleged recovery at

the spot does not inspire confidence. These contradictions may not go to the root of the matter, however assume importance in view of the fact that the complaint had already been sent by DW2 about the apprehension of the Appellant from the house on the night of 12 th September, 1996. I find that a reasonable doubt is cast on the veracity of the prosecution version, the benefit of which should extend to the Appellant. The Appellant is thus acquitted of the charges framed. The Appeal is allowed. The bail bond and the surety bond are discharged.

(MUKTA GUPTA) JUDGE JULY 11, 2011 ga

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