Rajeev Gerwal v. State

JUDGMENT ; SUNITA GUPTA. J. For detailed judgment, see Crl.A.No.60/2011. hi'f- (SUNITA GUPTA) JUDGE MARCH 28, 2016/ra Crl.A.970/2011 Page1of1 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. * IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofDecision: ZS**" March, 2016 + CRL.A. 60/2011 & Crl. M (B) 8288/2015 RAJVEER @ MILLAR Appellant Through Mr. Narender Sharma & Mr. Siddharth Pandit, Advocates versus STATE Respondent Through Ms. Neelam Sharma, APP along with Sub Inspector Sukhbir Malik, Crime Branch. AND + CRL.A. 970/2011 i& Crl. M (B) 8287/2015 RAJEEVGREWAL Appellant Through Mr. Habibur Rehman, Advocate versus STATE Respondent Through Ms. Neelam Sharma,APP alongwith Sub Inspector Sukhbir Malik, Crime Branch. % CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA JUDGMENT ; SUNITA GUPTA. J.

¶1Vide this commonjudgment,I shall disposeof two criminalappeals bearingCrl.A.No.60/2011& Crl.A.No.970/2011filed by Rajveer@Millar Crl.A.60/2011 &Crl.A.970/2011 Page 1 of20 and Rajiv Grewal respectively challenging the common judgment dated

8.10.2010 and order on sentence dated

11.10.2010 passed by learned Additional Sessions Judge, Rohini Courts in Sessions Case No. 170/2008 whereby the appellants were convicted for offence under Section 20 NDPS Act, 1985 and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.1 lac each and in default of payment of fine to undergo rigorous imprisonment for six months.

¶2The prosecution case in nutshell, is that on 28.02.2008 at about 2PM, a secret information was received by SI Satish Rana that two persons namely appellants Rajiv and Rajveer, both residents of Bamla Village, District Bhiwani, Haryana, who indulge in supply of charas alongwith their associates Sethi and Ramesh, in Delhi and Haryana would come near Ghevara Mor at the comer of the Indane Gas plant between 4:30 PM to 5PM to supply huge quantity of charas to someone. The secret informer was produced before the SHO Insp. M.C.Katoch and on the directions of the SHO, SI Satish Rana formed a raiding party consisting of himself, Constable Sanjeev, Head Constable Om Prakash, Head Constable Jagdish Prasad and Constable Praveen. Raid was conducted. Raiding party reached the spot at about 4:15 PM and at about 4:35 PM, both the appellants were seen coming towards the Gehwara Mor and Were carrying plastic kattas on their right shoulders. Raid was conducted and both the appellants were apprehended. Mandatory provisions of NDPS Act were complied with. From possession of Accused Rajiv, 23 kg of charas was recovered and from possession of Accused Rajveer, 22 kg of charas was recovered. The required samples were taken and accused persons were thereafter arrested. The samples sealed were sent to FSL on 7.03.2008 and as per report Ex.PX, the same were found to Crl.A.60/2011& Crl.A.970/2011 9A be charas. After completionof the investigation,charge sheet was filed against the accused persons.

¶3Both the accused were charged for the offence punishableu/s 29 NDPS Act, Section 20 NDPS Act and in the alternative u/s 22 NDPS Act to whichtheypleadednot guiltyand claimedtrial.

¶4In orderto substantiateits case,prosecutionexaminedas many as 10 witnesses. Statementof both the accused persons were recordedu/s 313 Cr.P.C., wherein they denied the entire evidence and pleaded innocence. They further stated that they were lifted from their respectivehouses and were falselyimplicatedinthis case and claimedthat nothingwas recovered fromthem. However,theydidnotleadany evidenceintheirdefence.

¶5The learned Special Judge on appreciationof evidence on record convicted and sentenced the appellants,as mentioned above. Appellants were acquittedofthe chargeu/s 29 NDPS Act as no evidencewas brought on recordto prove factumof conspiracy.

¶6Counsel for the appellantssubmittedthat insteadof addressingoral arguments, they will submit written submissions. Vide order dated 25^^ February, 2016, they were directed to file written submissions within one week but till date same has not been filed. Learned Additional Public Prosecutorfor the State supportedthe judgmentpassed by the learnedTrial Court and submitted that the same does not warrant interference. I have gonethroughthe groundsof appealand will decidethe appealson the basis of the same. Crl.A.60/2011 & Crl.A.970/2011 .•s>-

¶7Broadly speaking, the impugned judgment vVas challenged, inter alia on the following grounds

(i) No effort was intentionally made by SI Satish Rana to join independent person in investigation from a stable place.

(ii) There is no eye witness or any public witness regarding the recovery of the alleged contraband from the appellants which clearly casts a doubt on the prosecution version in submitting that the contraband was recovered from the possession of the appellants.

(iii) There is inordinate delay in registration of FIR. As per the prosecution version, the appellant was apprehended at around 4:30 to 5 PM on 28.02.2008 whereas the FIR was registered on

29.02.2008.

(iv) Learned Trial Court failed to acknowledge the contradictions in the deposition of the witnesses regarding the test of the case property. On the one hand, PWl has deposed that the test was conducted simultaneously whereas the AC? has stated that the test of samples was conducted one after the other.

(v) Samples were not taken from all the sticks and therefore it cannot be said that all the sticks allegedly recovered were of charas.

(vi) Recovery was done in an open space near Ghevara Mor which renders the application of Section 42 NDPS as inapplicable. The prosecution has failed to provide any explanation as to why no warrant or authorisation was issued before conducting the raid despite the fact that the high rank officials such as SHO and ACP were duly informed about the alleged incident. Crl.A.60/2011 &Crl.A.970/2011

(vii) Despite police remand, the police failed to bring on record as to when the contraband was to be delivered.

(viii) There were every chance of tampering with case property as sample was sent to FSL after eight days.

¶8I have given my considerable thoughts to the grounds urged in the appeals and have perused the record.

¶9PW4-SI Satish Rana was the SI at PS Narcotics, Branch. On

28.02.2008 at about 2PM, an informer came to him and gave a secret information that two persons namely Rajveer and Rajiv residents of Bhiwani District, Haryana indulged in supply of charas in Delhi and Haryana alongwith their associates Sethi and Ramesh and that on that day, these two persons would come to supply huge quantity of charas to someone near Gehvera Mor at the comer of Indane Gas plant between 4:30 to 5 PM and if raid is conducted, both the above persons with the articles can be apprehended. PW4 Satish Rana thereafter produced the secret informer before the SHO PW6 Inspector M.C. Katoch who after satisfying himself with the information conveyed the same to PW7 ACP Narcotics Sh. Mahender Sngh telephonically who directed PW4 to conduct the raid. PW4 then recorded the information vide DD no.l5A Ex.PW2/D. Factum of receiving a secret information regarding supply of huge quantity of charas by these two accused persons to someone in Ghewara Mor stands proved from the corroborative testimony of PW4 SI Satish Rana, PWl HC Om Prakash, PW6 ACP M.C. Katoch, PW7 Sh Mahender Singh and DD No. 15A Ex.PW2/D duly signed by PW6 ACP Katoch. Crl.A.60/2011& Crl.A.970/2011 ' Page5 of 20

¶10A raiding party was thereafter organized by PW4 SI Satish Rana consisting of himself, PW3 Const Sanjeev Kumar, PWl HC Om Parkash, HC Jagdish Prasad and Const Parveen as the driver. The raiding party left the PS at about 2:45 PM vide DD No. 16A in a private vehicle no. DL3CT1624 driven by Const Parveen. PW4 carried a field testing kit, 10 bag and electronic weighing scale with him. Outside the PS, he requested four passengers at the bus stop to join the raiding party but they reftised.The raiding party reached the spot at 4:15 PM and on the way they had requested four passengers at the ISBT, four persons outside the Rohini Court complex at the bus stop and four persons at the spot to join the raiding party but none agreed. Thereafter, at about 4:35 PM, two persons carrying plastic kattas on their right shoulders were seen coming towards Gehwara. The secret informer identified the person wearing a white kurta pajama as accused Rajbir who was carrying a white colour plastic katta and the person wearing a pink colour shirt and cream colour pant as accused Rajeev who was carrying a yellow colour plastic katta. When the accused persons were getting up to leave the spot; they were apprehended by PW4 and his raiding team at about 4:45 PM. Thereafter, separate notices u/s 50 NDPS were given to both the accused persons namely Rajveer and Rajiv vide Ex.PWl/A and Ex.PWl/B respectively. Both the accused persons recorded their reftisal in their own handwriting vide Ex.PWl/C and Ex.PWl/D. Thereafter again PW4 requested four persons to join the investigation but all of them reftised. At about 5:30 PM when he was about to take the search, PW7 ACP Mahender Singh arrived at the spot and was briefed by him about the facts. ACP Mahender Singh introduced himself to both the accused persons. Thereafter, PW4 took search of accused Rajeev and checked the yellow Crl.A.60/2011 & Crl.A.970/2011 plastic colour katta which he was carrying.The mouth of the plastic was found tied with a black colour feeta. On the katta, Shri Churi chana was found printed in red ink. When he opened the mouth of the katta and checked it, he found 23 packets wrappedin brown colour tape. On removing the tape from the packets, dark brown colour cylindrical sticks in two layers were found inside a transparent polythene. On checking the brown colour substance from each packet with the field testing kit, it was found to be charas and on weighing it, each packet was found to be one kg. In total, 23 kg of charas was found. From each packet, some charas was taken out and two samples of hundred gms each were prepared which were kept in two separate transparent poythenes and were reduced into two pullandas. The case property and FSL form filled by him was seized vide Ex.PWl/E. Thereafter, PW4 checked the white colour plastic katta which was in possessionof accusedRajveer.The plastic katta was having a green colour comer and a cream colour towel piece was tied on the mouth of the katta. On checking the plastic katta, he found 22 packets wrapped in a brown colour tape. The tapes were removed and dark brown colour cylindrical sticks in two layers were found inside the transparentpolytheneunder tHe tape in 11 packets and in the rest 11 packets, four layers of dark brown colourslabswere found in transparentpolytheneunderthe tape. The brown coloursubstancefrom eachpacketwas checkedwiththe fieldtestingkit and the same was foundtobecharas.On checkingthe weightofeachpacket,the same was found to be one kg. In total, 22 kgs of charas were found. From 11 packets, containing cylindrical charas, some charas were taken out from each packetand 2 samplesof 100 gms each were preparedand reducedto two pullandas.From the other 11 packetsof slabs containingcharas, some Crl.A.60/2011&CrI.A.970/2011 Page7of20 charas were taken out from each packet and 2 samples of 100 gms each were prepared and reduced to two pullandas. Case property and the FSL form Ex.PWl/F bearing his signatures were seized. He thereafter prepared the mkka Ex.PW4/A and handed the same to Constable Sanjeev(PW6) alongwith 8 pullandas, two FSL forms and two carbon copies of seizure memo. Constable Sanjeev left the spot in the private vehicle driven by Constable Parveen at about 1:30 AM on 29.02,2008. At about 4:30 AM on

29.02.2008, SI Bhagwan Singh (PWIO) came to the spot in a government vehicle driven by Constable Parveen and PW4 handed over the documents and the custody of both the accused persons to him who inspected the site, recorded the statement of HC Om Prakash, interrogated both the accused, conducted their personal search and arrested them vide arrest memo EX.PW1/G and Ex.PWl/H at about 8AM and recorded their disclosure statements vide Ex.PWl/K and Ex.PWl/L. Thereafter, they left the spot and reached the PS at 10 AM. PW4 prepared a special report u/s 57 NDPS EX.PW4/B and submitted the same before SHO.

¶11The testimony of PW4 SI Satish Rana finds substantial corroboration from the testimony of PWl HC Om Prakash, PW3 Constable Sanjeev Kumar, PW6 ACP M.C. Katoch, PW7 ACP Mahinder Singh and PWIO SI Bhagwan Singh.

¶12The plea of the appellantsthat no effort was intentionallymade by SI Satish Rana to join any independent persons from a stable place or there is no eye witness or public witness regarding the recovery of the contraband from the appellants which clearly casts a doubt on the prosecutionversion is without substance. It has come in the testimony of the police officials Crl.A.60/2011&Crl.A.970/2011 Page8of20 namely PWl HC Om Prakash, PW3 Sanjeev Kumar, PW7 ACP Mahinder Singh and PW4 SI Satish Rana that PW4 made every effort to make public persons join the proceedings. SI Satish Rana initially asked four persons outside the PS to join the proceedings but they refused. Thereafter, when the raiding party was on the way, he asked four persons at ISBT, four persons outside Rohini Court complex and four persons at the spot to join but none of them agreed. Thereafter, before the search of the accused persons took place, he asked four more persons to join but they too reftised to join the proceedings. It is common experience that public persons are generally reluctant to join police proceedings for variety of reasons. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with investigation is harassment of public witness that takes place in the courts. Normally a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournments are given even in criminal cases on all excuses and if adjournments are not given, it is considered as a breach of the right of hearing of the accused. These adjouminents are specifically taken by counsels for accused persons, when witnesses are present, just to see that witnesses get harassed by calling them time and again. The excuses normally given in the courts are; the counsel having urgent personal work, left the court; death of some near relatives etc; the counsel being busy in arguing other matter in other court or cross examining other witness in some other court. This attitude of the courts of sending witness back is a major Cri.A.60/2011&Crl.A.970/2011 Page9of20 cause of harassment which discourages pubUc from associating in the investigationof any case. Since the police is faced with this handicap,the police cannot be blamed for not associatingpublic witness. There is no presumption that the police witnesses are not credible witnesses. The testimonyof everywitness,whetherfrom publicorpolice,has to be judged at its own merits and the court can believe or disbelievea police witness consideringthe intrinsicvalueofhis testimony.Policewitnessesare equally good witnesses and equally bad witnesses as any other witness and the testimonyof police witness cannotbe rejectedon the groundthat they are ^ officialwitnesses.

¶13Presumptionof honestyis as much availableto a policeofficerwhich isavailableto any otherofficialwitness.Thereisno presumptionthatpolice officialsare liars. The effectof non-joiningof independentwitnessis only that the court has to view the submissionof the police or other witnesses with caution and circumspectionand the veracity of the same has to be decided before placingrelianceupon them for arriving at any conclusion regarding the guilt of the accused. ^

¶14In AjmerSingh vs. State ofHaryana,(2010) 3 SCC 746, Hon'ble Supreme Court observed: "16. The learnedCounselfor the appellanthassubmittedthatthe evidenceofthe official witness cannot be relied upon as their testimony, has not been corroboratedbyanyindependentwitness. We are unableto agree with thesaid submission of the learned Counsel. It is clear from the testimony of the prosecutionwitnessesPW-3 ParamjitSinghAhalwat,D.S.P., Pehowa,PW-4 Raja Ram, HeadConstableand PW-5 MayaRam, whichisonrecord,that effortswere made by the investigatingparty to includeindependentwitnessat the time of recovery,but none was willing. It is true that a charge under the Act is serious Crl.A.60/2011&Crl.A.970/2011 Page 10 of20 and carries onerous consequences. The minimumsentence prescribed under the Act is imprisonment of 10 years andfine. In thissituation, it is normallyexpected that there should be Independent evidence to support the case of the prosecution. However, it Is not an Inviolable rule. Therefore, in the peculiar circumstancesof this case, we are satisfied that it wouldbe travestyofJustice,If the appellant is acquitted merely because no independent witness has been produced. We cannot forget that It may not be possible to find Independent witness at all places, at all times. The obligation to take public witnesses Is not absolute. If after making efforts which the court considered In the circumstances of the case reasonable, the police officerIs not able to get public witnesses to associate with the raid or arrest of the culprit,the arrest and the recoverymade wouldnot be necessarilyvitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidenceof the police Officer ^ was believableaftertakingdue careand cautionin evaluatingtheirevidence.In the present case, both the trial court and the High Courtby applyingrecognized principle of evaluation of evidence of witnesses has rightly come to the conclusionthat the appellant was arrested and Charas was recoveredfrom the possession of the appellantfor which he had no licence. Wefind no good reason to differ from that finding."

¶15Moreover,the Apex CourtinP.P. Beeran vs. StateofKerala, (2001) 9 see 571 hasheldthatthere is no mandatoryrequirementof havingpublic witnesses in an NDPS case. The Supreme Court has further held that if the evidence of the Police Officer inspires confidence, then even if it is not corroborated by any other source, it can nonetheless be made sole basis for conviction.The aforesaidjudgmenthas been relied upon by this Court in Paramjit Singh @Pammi vs. State, 154 (2008)DLT 524 and NwadikeUgo Ben vs. State, 2012 (4) JCC 180.

¶16Appreciating the evidence on record on the anvil of the aforesaid principles,there is no acceptablereason to discard the testimony of the official witnesses which is otherwise reliable and trustworthy. The prosecutioncase cannotbe disbelievedmerelyonthe groundofnon-joining Crl.A.60/2011&Crl.A.970/2011 Page 11 of20 \ "f of public witnesses if the deposition of the police witnesses are convincing and credible. A perusal of the testimony of the prosecution witnesses reveals that despite cross-examination, nothing material could be .elicited to discredit their testimony. Both the appellants are resident of District Bhiwani, Haryana and there would be no reason for the police officials to falsely implicate them in this case. Moreover, the accused persons did not allege any animosity or grudge against any of the police officials for which they would be falsely implicated in this case.

¶17Regarding the ground of inordinate delay in lodging the FIR as the ^ appellantswereapprehendedbetween4:30-5PM on 28.02.2008whereasthe FIR was registered on 29.02.2008, the same is satisfactorily explained from the testimony of the police officials. It is clear Jfrom the testimony of prosecution witnesses and the evidence on record that the raiding party reached the spot at about 4:15 PM and took their positions. At about 4:35 PM, both the appellants were seen coming towards the spot. Thereafter, both the appellants were apprehended and at about 5:30 PM, when PW4 SI Satish Rana was about to take the search of the appellants, PW7 ACP Mahender Singh arrived at the spot and thereafter search was taken of both the "K appellants.Sampleswere prepared,FSL form was filled, case propertywas seized and rukka was prepared vide Ex.PW4/A. PW3 Constable Sanjeev thereafter left the spot with Constable Parveen at about 1:30 AM and reached the PS at about 3 AM after which he handed over the rukka to PW2 HC Ramesh Chand on the basis of which PW2 recorded the present FIR vide Ex.PW2/A. Therefore, the submission of delay in lodging FIR does not hold water as course of event in registering the FIR is well explained by the prosecution witnesses. Crl.A.60/2011 & Crl.A.970/2011

¶18The plea regardingcontradictionsin the testimonyof the prosecution witnesses is again without merit. It was submitted that while PWl HG Om Prakash stated that the test was conducted simultaneouslywhereas PW7 ACP Mahender stated that the test was conducted one after the other. PWl HC Om Prakash in his cross examination has clearly stated that small quantity i.e. equivalent to the tip of the matchstick was taken out from the comer of each packet for testing and the test was conductedone by one. PW7 ACP Mahender also stated in his cross-examination that the test was conductedone afterthe other i.e. afterthe result of firsfpacketwas obtained. From the testimony of the prosecutionwitnesses, it is proved that first the search of appellant Rajeev took place whereby the test was conducted, contents were weighed, samples were prepared, remaining sticks were converted into a parcel and the parcels along with FSL were seized vide memo Ex.PWl/E. Only thereafter, search of appellant Rajveer was taken and the whole process was again followed. Therefore,the questionof the test being conductedsimultaneouslydoes not arise whichis clearlystatedin the testimony of PWl HC Om Prakash. Moreover, minor contradictions do not throw away the case of prosecution which is otherwise consistent.

¶19It was also submitted in the appeal that samples were not taken from all the sticks and thereforeit cannot be stated that all the sticks allegedly recovered were charas. It is clear from the testimony of PWl, PW3, PW4 andPW7 that fieldtestingkit was carriedto.the spot. Whenthe plastickatta of appellantRajeevwas checked,it contained23 packetswrappedin brown colour tape. On removing the tape from the packets, dark brown colour cylindricalsticks in two layers were found inside a transparentpolythene. Crl.A.60/2011& Crl.A.970/2011 Page 13 of20 < On checking the brown colour substancefrom each packet with the field testingkit, it was found to be charas and on weighingit, each packetwas found to be one kg. In total, 23 kg of charaswas found. From each packet, some charas was taken out and two samples of hundred gms each were prepared which were prepared in two separate transparentpoythenes and was reduced into two pullandas. Thereafter, on checking the plastic katta of appellant Rajveer, 22 packets wrapped in a brown colour tape were found. The tapes were removed and dark brown colour cylindricalsticks in two layers were found inside the transparentpolythene under the tape in 11 packets and in the rest 11 packets, four layers of dark brown colour slabs were found in transparent polythene under the tape. The brown colour substancefrom each packet were checkedwith the field testing kit and the same was found to be charas. On checkingthe weight of each packet, the same was found to be one kg. In total, 22 kgs of charas were found. From 11 packets, containing cylindrical charas, some charas were taken out from each packet and 2 samples of 100 gms each were prepared and reduced to two pullandas. From the other 11 packets of slabs containingcharas, some charaswere taken out from eachpacketand 2 samplesof 100gmseachwere prepared and reduced to two pullandas. It is clear that each packet found in the kattas of both the appellantswere checkedwith the field testing kit and the same were found to be charas. Thereafter some charas was taken out from each packet and 2 samples of 100 gms were prepared. Therefore, it cannot be said that samples were not taken from all the sticks.

¶20Regarding the submission that since the recovery of the contraband was done from an open place, Section 42 NDPS is not applicable and prosecution has failed to provide any explanation as to why no warrant or Crl.A.60/2011& Crl.A.970/2011 Page14of20 authorizationwas issued before conductingthe raid is, without merit. It is clear from the testimony of the prosecutionwitnesses and the evidenceon record that after the secret informer informed PW4 SI Satish Rana about the supply of huge quantity of charas to someone near Gehvera Mor at the comerof IndaneGas plantbetween4:30 to 5 PM, PW4 producedthe secret informer before the SHO Inspector M.C. Katoch who after satisfying himself with the information conveyed the same to ACP Narcotics Sh. Mahender Sngh telephonically who directed PW4 to conduct the raid. PW4 then recorded the informationvide DD no.l5A Ex.PW2/D. It is rightly allegedthat Section42 NDPS is not applicablein this case as the recovery was done in an openplacei.e. at GhevaraMor nearthe IndaneGas plant.In the present case, Section43 is applicable.

¶21Section 43 of NDPS Act states: "43. Power of seizure and arrest in public places. Any officer of any of the departments mentioned in section 42 may-

(a) Seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along withsuch drug or substance, any animal or conveyance or article liable to confiscation under this Act, any documentorotherarticlewhich he has reasonto believemayfurnishevidenceof the commissionof an offencepunishableunder ChapterIV relatingto such drug or substance;

(b) detain and search any person whom he has reason to believe to have committed an offencepunishable under Chapter IV, and if such person has any narcotic drug or psychotropicsubstance in his possession and such possession appears to him to be unlawful,arrest him and any other person in his company Explanation.'^Forthe purposes of this section, the expression "public place" includesany publicconveyance,hotel, shop, or other place intendedfor use by, or accessible to, the public.

¶22Section 43 NDPS nowhere states that a warrant or a authorization is required before search is done in an open place. In Ramesh Kumar Crl.A.60/2011&Crl.A.970/2011 Page 15 of20 Rajpui@Khan v State, Crl.A.755/2004 decided on 2.05.2008, this Court held:

¶13As regards the argument that the requirement of Section 42 NDPSAct was not complied with since the secret information received on 15th January 2000 was not reduced to writing, the learned Counselfor the Respondent appears to be right that the applicable Section is Section 43 and not Section 42 since the search, arrest and seizure took place in a public place i.e. the roof of Palika Bazar car parking. Nevertheless the DD entry 21 (exhibitPW12/A) and DD entry 29 (exhibitPW12/D) show that the information received constitute sufficient compliance of reducing that information into writing. The decision in Narayanaswami Ravishankar v. Asst. Directorate of Revenue Intelligence 2003CriU27 applies on the facts of the present case. There the Court held (SCC pp. 8-9): ^ In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the Airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 43 of the NDPSAct was not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant It was explained in Abdul Rashid Ibrahim Mansuri v. State of Gujarat (supra) that the mandatory requirement of reducing the information to writing applied when the information is that the narcotic substance is kept or concealed in any building, conveyance or enclosed place. Asfar as the present case is concerned, the arrest, search and seizure having been made on the roof of the Palika car "X parking, undoubtedlya public place, the requirementofSection42 does not apply. Therefore the contention of the appellants in this regard is rejected.

¶23In the present case, PW4 SI Satish Rana duly produced the secret informer before the SHO Insp. M.C. Katoch who after being satisfied, telephonically informed ACP Mahender Singh. Thereafter PW4 SI Satish Rana reduced the information in writing as DD no.l5A vide Ex.2/D. Section 43 NDPS Act does not require a warrant or authorization when seizure or Crl.A.60/2011 & Crl.A.970/2011 arrestis done in an open place. Therefore,this submissionof the appellants is also without any merit.

¶24It was pleaded that the police failed to bring on record as to when the contrabandwas to be delivered.There is no requirementthat for conviction under Section 20 NDPS, the police is suppose to furnish any information regarding when and where the contrabandis being delivered. Section 20 NDPS Act states: "20. Punishment for contravention in relation to cannabis plant and cannabis. Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder-

(a) Cultivates any cannabis plant; or

(b) Produces, manufactures, possess, sells, purchases, transports, imports inter-State, exports interstate or uses cannabis, shall be punishable, -[(i) Where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) Where such contravention relates to sub-clause (b),-

(A)XX

(B)xx

(C) And involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees." 25, Appellants Rajiv Grewal and Rajveer were found in possession of 23kg and 22kg of charas and were convicted under Section 20(b) NDPS Act by the Learned Trial Court for being in possession of commercial quantity of charas. Therefore the question of where and to whom the same was to be delivered is irrelevant. Crl.A.60/2011& Crl.A.970/2011 Page 17of 20

¶26As regards last limb of ground of attack regarding possibility of tamperingwith casepropertyhavingbeen sent after sevendays of recovery, same is devoid of merit. It has come in the statement of PW4 SI Satish Rana that the samples as well as remaining contraband were sealed with the seal of '6APSNBDELHI'. Form FSL was filled in and on that also same seal was affixed. The samplepulanda,case propertyalong with FormFSL were sent through PW3-HeadConstableSanjeevKumar who producedthe aforesaid articles before SHO Inspector M.C. Katoch who affixed his seal of '1SHO/N.BR.DELHI'on all pullandasand form FSL. He depositedthe case property with PW9-Head Constable Vijay Pal who was working as MHC(M) at Police StationNarcoticsBranch on that day and he made entries' in the register No.19,Ex.PW9/A. Thereafter on March, 2008, he handed over sealed pulandas duly sealed to PW8-Head Constable Mahesh vide RC 185/21 fordepositingthe sameat FSL, Rohiniand asper depositionofHead Constable Mahesh, he deposited the articles duly sealed at FSL, Rohini. Both these witnesses have deposed that nobody tampered with the case property till the same remained in their possession. The same went un-rebutted and unchallenged as no cross-examination was effected on this point. As per reportof FSL Ex.PX,three clothparcelsduly sealedwiththe seal of '1SH0/N.BR.DELHI' and '6APSNBDELHI' were received in FSL andit talliedwiththe specimensealsas perthe forwardingletter.Therefore, mere factthat thereis a delayof sevendays in sendingsamplesto FSL does not raise any presumptionthat the case property was tampered with. In Ramesh Kumar Rajput @ Khan vs. The State of NCT of Delhi Manu/DE/0786/2008delay of 13 days in sendingthe samplepullandas to FSL was not considered to be fatal keeping in view the fact that there was Crl.A.60/2011& Crl.A.970/2011 Page 18 of20 -f- /] V nothing on record to suggest or to infer that the samplepullandas were tamperedin the Malkhana.Similarly,mAhmad vs. State 2011 III AD (Crl.)

(DHC) 293 delay of 59 days in sending samples was not considered to be fatal in the absence of any evidence or inference of tampering with the samplepullandas on the basis of record. In Mohan Lai (supra)againa plea was taken that the seized articles were not sent immediately for chemical examination. Supreme Court relied upon Hardip Singh vs. State ofPunjab,

(2008) see 557 where a two-Judge Bench while dealing with the question of delay in sending the samples of Opium to the FSL opined that it was of no consequence for the fact that the recovery of the said sample from the possession of the appellanthad been proven and establishedby cogent and reliable evidence and that apart, it had also come in evidence that till the dateparcelsof sampleswerereceivedby the chemicalexaminer,the sealput on that parcelswas intact. Underthe circumstances,the delayof sevendays in sending sampleto FSL is immaterialand would not dent the prosecution case. .

¶27No other grounds were urged in the grounds of appeal.

¶28After meticulously examining the entire material on record, the learned Trial Court has convicted the appellants u/s 20 of the NDPS Act which does not call for any interference.

¶29Accordingly, both the appeals are dismissed. Pending applications also stand disposed of. Crl.A.60/2011 & Crl.A.970/2011 Trial Court record along with copy of the judgment be sent back. Appellants be informed through the Superintendent Jail. (sunit5uJi!^a) JUDGE MARCH 28, 2016/r5 Crl.A.60/2011& Crl.A.970/2011 Page20of20

b » IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: IS**" March, 2016 + CRL.A. 970/2011 & Crl. M (B) 8287/2015 RAJEEV GREWAL Appellant Through Mr. Habibur Rehman, Advocate versus STATE Respondent Through Ms. Neelam Sharma, APP along with Sub Inspector Sukhbir Malik, Crime Branch. % CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA