Sunil @ Sonu v. State NCT of Delhi

judgment.

SANGITA DHINGRA SEHGAL, J. AUGUST 21st , 2017 gr//

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 325/2012 Judgment reserved on: 18th August, 2017 Judgment pronounced on: 21st August, 2017 SUNIL @ SONU .....Appellant Through: Ms. Saahila Lamba, (Advocate) Amicus Curiae versus STATE NCT of DELHI ..... Respondent Through: Ms. Aashaa Tiwari, APP for the State with ASI Pawan Kumar, PS-Crime Branch. CORAM: HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL 1. The present appeal has been instituted under Section 374 (2) of the Code of Criminal Procedure against the impugned judgment dated 23.05.2011 and order on sentence dated 24.05.2011 by which the appellant has been convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as "NDPS"). The present appellant has been sentenced to undergo rigorous imprisonment for a period of 10 years with fine of Rs.1 Lakh, in default thereof further undergo rigorous imprisonment for a period of one year. 2. The case of the prosecution as observed by the Special Judge, NDPS is that: "2.… on 03.09.2009, at about 3.15 PM, a secret informer came to Narcotics Cell, Shakarpur, Delhi and informed SI Satyawan that one person namely Sunil, a resident of village, situated near Gohana, Haryana, who used to supply charas, would come today to supply charas in huge quantity in from of GTK Bus Depot, between 4.30 PM to 5.00 PM and if raid is conducted, he can be apprehended with contraband. On receipt of this information, SI Satyawan produced the secret informer before Ins. M.L. Sharma, who after satisfying himself, informed ACP Sh. S.R. Yadav and ACP gave instructions to proceed in accordance with law. Secret information was reduced into writing. On direction of senior officer, SI Satyawan constituted a raiding party comprising himself, HC Ramesh and Ct. Harender Singh. Raiding Team along with secret informer reached the spot. Public persons were asked to join the raiding party, but none agreed. Accused was apprehended. From his possession, four kilograms charas was recovered. Mandatory provisions of NDPS Act were complied with. Samples were taken. FSL form was filled in. Accused was arrested. After completion of the investigation, the charge sheet against the accused was filed in the Court. The copies were supplied." 3. The prosecution in all examined 10 witnesses. Statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure wherein the appellant denied all allegations and asserted that nothing was recovered from his possession and in fact the contraband was planted upon him. He further stated that he was innocent and he was lifted from the house of one Raju in Gopal Nagar, Najafgarh on 03.09.2009 at about 11.30 am. He further stated that he has been falsely implicated by Raju, after obtaining his signatures on blank papers. However, no witness was examined in his defence. 4. On appreciation of evidence and after considering the rival contentions of the parties, the learned Special Judge found that the recovery of 4 Kg. of Charas from the appellant was fully established and thus, held the appellant guilty for the offence punishable under Section 20 of the NDPS Act. 5. Ms. Saahila Lamba, Amicus Curiae contended that the prosecution had failed to join any public witnesses in the recovery of the alleged charas; that the appellant was apprehended in a public place but the prosecution did not make any sincere efforts to join any independent witnesses to the alleged recovery; that there are material discrepancies in the testimonies of PW2 and PW5 showing that the appellant was not arrested in the manner as described by these witnesses and there was no recovery from the appellant; that there is a considerable delay of 12 days by the prosecution in depositing the parcel with the FSL; that the prosecution failed to comply with the provisions of Section 50 and 55 Of the NDPS Act; that the prosecution has failed to prove its case beyond reasonable doubt. 6. Per Cont