CRl. A. 238-2000 Page 1 of 26 * THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 15.10.2009 Judgment delivered on: 05.11.2009 Crl. Appeal No. 238/2000 BHIMA @ KALE ..... Appellant Vs STATE ..... Respondent Advocates who appeared in this case: For the Appellant : Ms Charu Verma, Advocate For the Respondent : Mr Amit Sharma, Addl. Public Prosecutor CORAM :- HON'BLE MR JUSTICE RAJIV SHAKDHER 1. Whether the Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ? Yes RAJIV SHAKDHER, J 1. This is an appeal filed under Section 36B of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’) against the judgment dated 23.03.2000 and the sentence dated 24.03.2000 passed by the learned Addl. Sessions Judge, Delhi. By virtue of the impugned judgment the appellant has been convicted under Section 20 of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of four years with a direction to pay a fine of Rs 20,000/-. In default of payment of fine the appellant is required to undergo a further rigorous imprisonment for a period of one year. 2. Briefly the case set up by the prosecution is as follows: 2.1 On 09.04.1997, five police officers, namely S.I. Atma Ram, H.C. Ranbir Singh, constable Pawan, H.C. Paramjit Singh & H.C. CRl. A. 238-2000 Page 2 of 26 Mahavir Singh, who were on patrolling duty received information, through a secret informer that, at about 7:45 p.m., one person carrying ganja, would approach from the direction of F-Block, Extn., in Raghubir Nagar and proceed towards F-Block Jhuggi. Immediately thereupon, SI Atma Ram, along with his other four colleagues, set up barricades near the Masjid in F-Block. The appellant, upon reaching the barricade, was identified by the secret informer, on whose pointing out the appellant was apprehended. The appellant was confronted by the police party with the information in their possession that he was a carrier of a contraband article. Accordingly, the appellant was served a notice under Section 50 of the NDPS Act. The appellant was simultaneously informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate. The appellant, however, declined to exercise his right of search, before the Gazetted Officer or the Magistrate. Consequent thereto, his search was carried out by the police party. The search of the gunny bag, which the appellant was carrying on his head, resulted in seizure of ganja. In the meanwhile, a rukka was sent to the police station, Rajouri Garden. On receipt of the information, the offence was diarized. The Additional Station House Officer (in short ‘Addl. SHO’) R.K. Rathi reached the site of the incident; since the Station House Officer was not present at the police station. On reaching the site the Addl. SHO R.K. Rathi was informed by the police party with regard to seizure of the ganja from the appellant. 2.2 Accordingly, the seized ganja was weighed. For this purpose weights were obtained from a nearby shop. On weighing, the ganja was found to weigh 30 kg. Out of the total seized quantity of 30 kg CRl. A. 238-2000 Page 3 of 26 the police party separated 5 kg, for the purposes of preparing a sample to be sent to a chemical examiner. Both, the sample, as well as the balance quantity of ganja seized, that is, 25 kg were put in two separate packets. Both packets were sealed. Both the SI Atma Ram and Addl. SHO R.K. Rathi affixed their respective seals on the two packets. A CFSL form was filled up, at the site and the seals ‘ARS’ and ‘RK’ were affixed thereupon by the SI Atma Ram and the Addl. SHO R.K. Rathi, respectively. A seizure memo was prepared with respect to both the sealed packets as well as, the CFSL form. 2.3 Based on the rukka, the duty officer at the police station registered the FIR, while the two sealed packets along with the CFSL form were deposited with the malkhana incharge. After investigation a chargesheet was filed. 3 The trial court framed charges on 27.04.1998 under Section 20 of the NDPS Act against the appellant. Since the appellant pleaded that he is not guilty and demanded trial; a trial was conducted. Upon conclusion of the trial, the trial court came to the conclusion that the appellant was guilty of the offence, with which he was charged, and accordingly, as indicated above, convicted the appellant. 3.1 It is important to note that the trial court in paragraph 9 of the judgment has recorded that on the date when final submissions were heard in the matter, the defence lawyer was not present in court, evidently on account of the fact that the lawyers had stuck work. The trial court, however, did not adjourn the matter, and instead heard the appellant in person. The State, however, was represented by the prosecutor. CRl. A. 238-2000 Page 4 of 26 3.2 In the appeal, filed before this court, one of the grounds which has been taken by the appellant is that on the final day, that is, the date of hearing he was not represented by a lawyer, and hence his constitutional right to fair trial has been vitiated. In this regard, reference has also been made to the provisions of Section 303, 304 and 309 of the Code of Criminal Procedure, 1973 (in short the ‘Cr.P.C.’). 4. In order to prove its case the prosecution has cited seven witnesses. The evidence of the prosecution was closed on 10.02.2000. On 15.02.2000 the statement of the appellant under Section 313 of the Cr.P.C. was recorded. The matter was posted for further proceedings to 22.02.2000 for evidence to be led by the defence. The order sheet of 22.02.2000 records that the appellant was asked as to whether he wishes to lead evidence. On his informing the trial court, in the presence of his lawyer, that he did not wish to lead evidence in defence, the trial court closed the defence evidence. Thereafter, the matter was posted on 25.02.2000; on that day the case had to be adjourned on account of the fact that the lawyer of the accused was not available on account of the fact that lawyers had struck work. Consequently, the matter was posted to 07.03.2000. The position, however, with respect to strike by lawyers, did not change on 07.03.2000. On the appellant seeking another adjournment, the trial court declined to adjourn the matter. Submissions, on behalf of the prosecution, were made by the prosecutor. The appellant was, evidently, as recorded in paragraph 9 of the impugned judgment, heard in person, and thereafter the case was reserved for orders. The case was directed to come up for orders on 15.03.2000. Due to non-availability of CRl. A. 238-2000 Page 5 of 26 stenographers it was adjourned to 23.03.2000, when the impugned judgment was delivered. 5. The circumstances, obtaining in this case, amply demonstrate that the appellant’s fundamental rights, both under Article 21 and Article 22 of the Constitution of India, have been violated. Article 21 of the Constitution of India guarantees to every person that he shall not be deprived of his life or personal liberty except according to the procedure established by law. Similarly, clause (1) of Article 22 mandates that every person, who is arrested, shall not be denied right to consult and to be defended by a legal practitioner of his choice. It is well-settled that this right extends to the persons who are charged with offences both under general law as well as special statutes. Furthermore, the rights conferred under Article 22 clause (1) to consult and to be defended by a lawyer of one’s choice obtains at the pre-trial stage, during the trial, as well as at the appellate stage. The facts obtaining in the present case suggest that both the appellant as well as the trial court was placed in peculiar circumstance. Since the lawyers had stuck work there was obviously no communication between the appellant and his lawyer. At least, the record does not show that such an opportunity was made available, which the appellant could have availed of. Similarly, the trial court could not proceed in view of the fact that the lawyer for the defence was not available. The question which arises for consideration is whether the appellant had an opportunity to exercise his right under Article 22 of the Constitution in view of the fact that on 07.03.2000 when the matter came up before the trial court for final hearing, the appellant did not have the benefit of assistance of his lawyer. This is apparent from the following: On CRl. A. 238-2000 Page 6 of 26 22.02.2000 it appears that the appellant informed the court that he does not wish to lead his evidence in defence. The matter was thereafter adjourned to 25.02.2000. On 25.02.2000 due to unavailability of the defence lawyer the matter was adjourned. On the request of the appellant, as indicated hereinabove, the matter was adjourned to 07.03.2000 for final arguments in the case. The appellant’s request on 07.03.2000 for a further adjournment was declined by the court. 5.1 In the circumstances indicated above, which perhaps cannot be disputed, the absence of the appellant’s lawyer on 07.03.2000 had the portents of impacting his rights under Articles 21 and 22 of the Constitution of India. One of the issues before me is: would it render the judgment of the court unsustainable? I shall deal with this aspect of the matter in the latter part of my judgment. 6. As indicated hereinabove, the prosecution, in order to prove its case, has cited seven witnesses. The appellant, on the other hand, chose not to lead any evidence in defence. The trial court, however, has recorded the statement of the appellant under Section 313 of the Cr.P.C. It would thus be important to note the relevant part of the testimony of each of the witnesses of the prosecution, in order to ascertain as to whether the prosecution has been able to establish its case against the appellant beyond a reasonable doubt. 7. H.C. Dhirender Pal (PW1), who was the malkhana incharge, proved that on 09.04.1997 he was posted at police station Rajouri Garden. On that day Addl. SHO R.K. Rathi had deposited a gunny bag containing ganja duly sealed; with seals ‘ARS’ and ‘RK’, affixed on it. Apart from this, another packet containing sample of ganja was also delivered with the aforesaid seals on it. He deposed that CRl. A. 238-2000 Page 7 of 26 the two packets were accompanied by the CFSL form bearing the said seals. He also testified that on 14.05.1997 the said two packets, with the seals duly intact, along with the CFSL form, were sent to the Central Forensic Science Laboratory through constable Tulsi Ram. He also testified that said samples and the CFSL report were received by him on 26.11.1997 through constable Satish Kumar. The entries to that effect in the malkhana register were proved by him. In the cross-examination there was no suggestion that the seals of the packets had been tampered with. 7.1 H.C. Ranbir Singh (PW2) reiterated the events of 09.04.1997 with regard to the fact that he along with his colleagues SI Atma Ram, constable Pawan Kumar, constable Mahavir Singh, and H.C. Paramjit Singh were on a patrol near the Masjid in F-Block, Rajouri Garden, when they received secret information with regard to the fact that one person, who would be coming from the direction of F- block extn., would be carrying ganja. He testified that this information was disclosed by him to five or six persons who were members of the public so that they could be witnesses to the arrest, if any. However, the said persons left the site without giving their names or addresses. He testified that about 7.55 p.m. the appellant came from the direction of F-block carrying a gunny bag on his head, whereupon on the pointing out of the informer the appellant was arrested. He also deposed that the appellant was informed that the police had information about the fact that he was carrying ganja, and in that connection they wanted to subject him to a search. He further stated that the appellant was informed that his search could be taken before the Gazetted Officer or a Magistrate. The appellant, however, declined the offer and confessed his guilt. CRl. A. 238-2000 Page 8 of 26 He further stated that at the say so of SI Atma Ram, he went to the police station to inform the S.H.O about the incident. Since the SHO R.S. Dahiya was not available the incident was disclosed to Addl. SHO R.K. Rathi. On reaching the site of the incident along with Addl. SHO R.K. Rathi, the ganja, which was discovered on the carrying out of search of the appellant, was weighed. He stated that it was found that the total weight of the ganja was 30 kg. A sample of 5 kg was separately made out. The remaining ganja was put in a separate packet. Both the packets were sealed with the seals of the ‘ARS’ and ‘RK’. The seal affixed by SI Atma Ram was ‘ARS’ and that by Addl. S.H.O was ‘RK’. He also stated that CFSL form was filled and said seals were affixed on the form. He also testified that the seals were handed over to him and the seizure memo (Ex. PW2/A) was prepared with respect to both the sealed packets as well as the CFSL form. He proved his signatures at point ‘A’ on the said seizure memo (Ex. PW2/A). He further stated that the I.O., i.e., SI Atma Ram prepared a rukka and sent it to the police station through constable Mahavir Singh. He stated that the CFSL form was handed over to Addl. SHO R.K. Rathi, while the sealed parcels were taken by him and the I.O. to the police station. He stated that he had deposited the sealed packets with the malkhana incharge, as they were handed over by the I.O. He also proved the personal search memo (Ex.PW2/B) of the appellant and his signatures appended on it. In court, PW2 identified the gunny bag (which was completely torn) to be the one which was found with the appellant, with the ganja in it, on the date of the incident. 7.2 Since PW2 had turned hostile, he was called for cross- examination by the prosecution. In his examination by the learned CRl. A. 238-2000 Page 9 of 26 APP, which was permitted by the court, he stated that in his statement, recorded under Section 161 of the Cr.P.C. by the I.O., he had not stated that the appellant was given an option of his search being taken before either the Gazetted Officer or Magistrate. He reiterated that in his said statement he had only referred to the Gazetted Officer. In his cross-examination by the learned APP, in the first instance, he stated that the two sealed packets, the CFLS form and the copy of the seizure memo, were handed over to him by the SHO for depositing in the malkhana. On a further cross- examination by the learned APP he submitted that there was no contradiction between his statement made in-chief and that which was made in cross-examination, as he had deposited the said items on the directions of the Addl. SHO. 7.3 In the cross-examination of PW2 by the defence he more or less confirmed what he had stated in his examination-in-chief. He, however, confirmed the fact that at the time, when the gunny bag was seized, it was not torn but was in a perfect condition. 8. H.C. Chanderpal Singh (PW3) proved the registration of the FIR. He deposed that he was working as duty officer at police station Rajouri Garden. On 09.04.1997 at about 9.25 p.m. he received a rukka from SI Atma Ram, sent through constable Mahavir Singh. He proved the original FIR (Ex. PW3/B). He also stated that as per the DD register S.I. Atma Ram had departed from the police station for patrolling duty at 7.20 p.m. In that regard he relied upon DD No. 13A. He further stated that ASI Atma Ram returned to the police station at about 11.30 p.m. In that regard he referred to DD entry 19A. These entries were proved by him. He also proved the departure of Addl. SHO R.K. Rathi from the police CRl. A. 238-2000 Page 10 of 26 station. According to him, Addl. SHO had left the police station at 8.10 p.m. and he had returned to the police station at about 11.30 p.m. The DD entries, with respect to the same, were also proved by him. 9. Constable Tulsi Ram (PW3A) proved the fact that he had collected the two sealed packets with seal intact along with CFSL form from the malkhana incharge on 14.05.1997 and that he had deposited the same with CFSL, Chandigarh on 15.05.1997. He testified that the seals, on the two packets, were not tampered. Importantly, no cross-examination of the said witness was conducted by the defence. 10. Constable Mahavir Singh (PW4) reiterated the events of 09.04.1997. He testified to the effect that on 09.04.1997 at about 7.55 p.m. the appellant was apprehended near the Masjid in Raghubir Nagar, while carrying a gunny bag, full of ganja, on his head. He also testified to the effect that S.I. Atma Ram had served a notice under Section 50 of the NDPS Act to the appellant and informed him about his right to be searched in the presence of a Gazetted Officer or a Magistrate. He stated that the accused had refused to exercise any of the options, which were put forth to him. In his statement he also reiterated what was said by the other witnesses as regards the weight of the ganja recovered and the fact that they were split into two packets, and sealed by the S.I. Atma Ram as well as Addl. SHO R.K. Rathi. On being shown the gunny bag (Ex.PW2) and the ganja (Ex. P1), in court, he testified that the said exhibits were the ones which were recovered from the possession of the appellant on the date of incident. He also identified the remanants of sample (ExP3), which were returned by CRl. A. 238-2000 Page 11 of 26 the CFSL. Importantly, PW4 stated that the rukka, which was prepared by S.I. Atma Ram, was carried by him to the police station, on the basis of which, FIR was registered by the duty officer, in this case. In his cross-examination he reiterated the fact that the appellant was apprehended at 7.55 p.m.; and that the place, at which the appellant was apprehended; was a busy public thorough fare. He deposed that none of the persons from the public were asked to join the proceedings after the appellant had been apprehended or during the time the proceedings were carried on at the spot, at which the appellant was apprehended. He further stated, in his cross-examination, that he returned with the copy of the FIR and rukka to the spot, where the appellant was apprehended, at about 9.15 p.m. 11. SI Atma Ram (PW5), who was the I.O. in the case, reiterated in detail the facts with regard to receipt of information from a secret informer at about 7.45 p.m. on 09.04.1997. He stated that on receipt of information the same was recorded in writing, being Ex. PW5/A. He also stated that he had asked five or six persons to join the raiding party. However, since the members of the public had expressed their inability, they left the place. He stated that due to shortage of time he did not serve any notice on these persons. He proved the fact that the appellant was apprehended carrying a gunny bag, containing ganja, near the Masjid, while approaching from F-block extn. in Raghubir Nagar at about 7.55 p.m., on being pointed out by the informer. He testified the fact that he served a notice under Section 50 of the NDPS Act to the appellant, and also informed him of his right of being searched in the presence of a Gazetted Officer or a Magistrate. He proved the notice (Ex. PW5/B) CRl. A. 238-2000 Page 12 of 26 under Section 50 of the NDPS Act and the reply (Ex. PW5/C) of the accused. He also proved the thumb impression of the accused at point ‘A’ & ‘B’ and his signatures at point ‘C’ & ‘D’. He also stated that he had sent the same information (Ex. PW5/A) to the SHO through H.C. Ranbir Singh at about 8.30 a.m. He stated that on receipt of information Addl. SHO reached the spot along with H.C. Ranbir Singh. He testified to the effect that he explained the events to Addl. SHO R.K. Rathi. He also testified that on opening the gunny bag it was found that it contained ganja. The contraband, i.e., ganja was weighed. He stated that the total weight of the ganja was 30 kg. He further testified that a sample, equivalent to 5 kg, was drawn, whereupon the sample and the remaining ganja was sealed in two separate packets, on which, he stated that both he and the Addl. SHO had affixed their respective seals, that is, ‘ARS’ and ‘R.K’ respectively. He also testified to the effect that CFSL form was filled by him at the spot where the appellant was apprehended. He testified that the two packets, CFSL Form, samples seals and the copy of the recovery memo was handed over to the Addl. SHO; after they were seized vide seizure memo (Ex. PW2/A). He testified that he had prepared the rukka (Ex. PW5/D), which was sent by him to the police station through constable Mahavir Singh. He also proved the site plan (Ex. PW5/E). He stated that he arrested the appellant after conducting his personal search vide memo bearing Ex. PW2/B. He testified that, as required under Section 57 of the NDPS Act, information with regard to offence was sent to the senior officer; a carbon copy of which being Ex. PW5/F; was also proved by him. He testified the receipt of the CFSL report (Ex. PW5/G), as also the fact that after CRl. A. 238-2000 Page 13 of 26 investigation, a challan was prepared and filed in court. He proved that the ganja (Ex. PW1), gunny bag (Ex. P2), as also the remanants (Ex. P3) of the sample received from the CFSL were seized from the appellant. Importantly, no cross-examination whatsoever was conducted by the defence of this crucial witness. 12. Insp. R.K. Rathi (PW6), who, at the relevant time, was the Addl. SHO at police station Rajouri Garden, testified that on receipt of communication through SI Atma Ram with regard to secret information (Ex. PW5/A), he along with H.C. Ranbir Singh proceeded to the spot, i.e., F-Block, Raghubir Nagar after making the necessary endorsements on the said written communication at Ex. PW6/A. He testified that the information was received by him at about 8.15 p.m., and that he reached at the spot at about 8.30 p.m. On reaching the spot the appellant was presented before him, and he was informed about the fact that the appellant had been apprehended with a gunny bag. He stated that he made enquiries from the appellant; whereupon the gunny bag was opened and it was found to contain ganja. He stated that ganja was weighed; it was found that the total weight of the ganja, recovered from the gunny bag, was 30 k.g. He also stated that a sample of about 5 kg was prepared. The said sample of 5 kg and the remaining ganja were put in two separate packets and sealed. He stated that he had affixed his seal ‘RK’ on the two packets which was similarly replicated by