JUDGMENT
S. Muralidhar, J.
1. This appeal is directed against the judgment and order dated 14th September, 1992 passed by the learned Additional District and Sessions Judge (ASJ), Delhi in S.C. 1139 of 1991 convicting the appellant in FIR No. 78/90 under Section 21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), sentencing him to ten years rigorous imprisonment and a fine of Rs. 1,00,000 failing which to undergo for a simple imprisonment for a further period of one year.
2. This appeal has had an unfortunate history of long pendency for reasons not attributable to the appellant but which undoubtedly has caused him irreversible hardship. Notice was first issued in this appeal on 12th November 1992. Thereafter on more than one occasion the appellant kept applying for interim bail and for suspension of sentence, both of which were declined. The appeal was however directed to be expedited by an order dated 21st July 1995.
3. Thereafter when the appeal was still not taken up for hearing, orders granting interim bail to appellant for short periods were passed. The appeal was not heard even six years after it was filed. The following order was passed on 29th October 1998:
29.10.98 Present : Mr. NJS Dhillon for the petitioner.
Ms. Seema Gulati for the State.
Crl. M. No. 6469/97 in Criminal Appeal No. 205/92
By this application the appellant prays for either suspension of the remaining part of the sentence or early hearing of his appeal, which was admitted on 15 January 1993.
The appellant was convicted on 14 September 1992 under Section 21 of the NDPS Act and he was sentenced to undergo RI for a period of ten years and to pay a fine of Rs. 1 lac failing which he was directed to undergo simple imprisonment for a period of one year.
The nominal roll of the appellant was called for and as per the said roll, appellant has already undergone sentence of more than eight and a half years. The unexpired period of sentence as on 17 March 1998 was one year four months and twenty-one days.
Having regard to the fact that the appellant has already undergone substantial part of the sentence awarded to him and bearing in mind the fact that his appeal is not likely to be heard in a short span of time, I feel that it is a fit case for suspension of remaining sentence awarded of the appellant.
Accordingly, while suspending the sentence awarded to the appellant it is directed that he will be admitted to bail on his furnishing personal bond in the sum of Rs. 10,000/- with one surety in the amount to the satisfaction of the court concerned.
The application stands disposed of.
What is apparent from the above order is that as on 29th October 1998, the unexpired period of the appellant’s sentence was just one year and four months and 21 days.
4. Thereafter, on 23rd March 1999 the following order was passed:
22.03.1999
Present : Mr. NJS Dhillon for the appellant.
Ms. Mukta Gupta for the State.
Crl. M. 1746/99 in Cr.A. 205/92
The appellant was admitted to regular bail vide order dated 29.10.1998 but when the case came up for final hearing no one has appeared and as such non-bailable warrants were issued against him.
Learned Counsel for the appellant has contended that by now the petitioner has undergone sentence over 9 years and that the non-appearance was not intentional and the counsel could not appear because he had met with an accident.
In these circumstances, appellant is readmitted to bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the court concerned.
Cr.Appeal 205/92
This appeal pertains to the year 1992 and is quite old.
Be listed for final disposal on 12th April, 1999.
Thus as on 23rd March 1999 the Appellant had already undergone nine years of imprisonment and yet his appeal had not been heard.
5. For some reason or the other in the last nine years since then the appeal could not be listed for hearing. Therefore, when the appeal was listed before this Court for final hearing on 22nd January 2008 the learned APP for the State was requested to ascertain if the Appellant was still in jail. On 28th January 2008, the learned APP informed the Court that the Appellant had been finally released in December 2007 after completion of entire sentence. The unfortunate consequence is that that the Appellant served out his entire sentence even before the present appeal against his conviction could be heard.
6. Mr. Manish Shukla, the learned Advocate appeared on behalf of the Appellant at the instance of the High Court Legal Services Committee. He assisted the Court admirably. One of the points urged by him is that the statement of the witnesses were recorded by the police nearly two years after the arrest of the appellant and that this by itself vitiates the entire trial. He relied upon the judgment of the Supreme Court in Dilawar Balu Kurane v. State of Maharashtra for this purpose.
7. A perusal of the judgment of the trial court shows that the entire conviction was based on the evidence of PW.6 Dharam Pal who was stated to have been an independent public witness to the recovery. However, in an affidavit sworn to by Dharam Pal and produced before the trial court, it was stated that nothing had been recovered from the possession of the Appellant in the presence of the said witness and that no seal had been entrusted with him by the police officials.
8. In relation to the public witness PW.6 Dharam Pal, the trial court observed as under:
3. The case of the prosecution revolves round the evidence of the following witnesses. Dharam Pal public witness, PW 6, the forefront of this case, has supported the prosecution case in the main. He testifies that the above said smack weighing 50 grams had been recovered from the possession of the accused in his presence. However, in his cross-examination the following points are noteworthy. He admitted that affidavit Ed. DX/X. is signed by him. This affidavit reveals that it was sworn by this witness on 24th April, 1991. In this affidavit, he has admitted that he had been cited as a witness in this case. He explained that he had signed some papers on 3rd July 1990 at the behest of the police, persuant to the threat extended by the police. He explained that nothing had been recovered from the possession of the accused in his presence. He also stated that no seal had been entrusted with him by the police officials. However, in the dock he explained that he had affixed his signatures on this affidavit due to the threat given to him by the relatives of the accused. He deposed that he had lodged a complaint with the police in this regard. He explained that he does not know English language and was not aware as to what was written in Ex. DW/X. It may be mentioned that this affidavit also bears the signatures of Shri P.L. Anand, the learned defense counsel, the witness deposed that he had signed this affidavit in the way and in the absence of Shri P.L. Anand Advocate. The witness further alleged that the said relatives of the accused had been visiting his house and threatened him time and again but he did know their names.
9. It is surprising that despite the above witness PW.6 actually being plainly unreliable in view of the affidavit given by him, the trial court proceeded to accept his evidence on the basis that it was supported by the depositions of two police officers: Sub-Inspector Pran Nath PW 5 and Inspector Gyan Chand PW 4. It is inconceivable how the evidence of a public witness to the recovery, which is the lynchpin of the prosecution case, can on being shown to be untrustworthy, be salvaged with the aid of police witnesses. If the crucial aspect of recovery of the substance in question from the Appellant is in itself in doubt, any amount of evidence concerning the test report of the quality and quantity of the substance loses all meaning.
10. The trial court has sought to accept the evidence of PW 6 despite the obvious contradictions by dismissing the affidavit as “waste paper.” In para 8 of the impugned judgment the trial court observed:
8. For the following reasons, I see no weight in his arguments. The public witness has given lucid and clear explanation as to why he had been compelled to sign affidavit Ex. DW/X. His explanation clears the air of doubt about his evidence. The statement made by the witness outside the court carries no value in the eyes of law. The explanation given by the public witness reduces this document to be waste paper. It is value is exiguous in the yes of a law. Consequently, I am unable to pin much value with this innocuous and innoxious (sic) piece of paper. The public witness supported the prosecution case from `A’ to `Z’ and I see no reason to reject the entire version. He has withstood the test of cross-examination. Nothing of importance has elicited during his long drawn examination. He seems to have no guile. He is a man to trust. His presence on the spot adds steal to the prosecution case. I see no reason to reject his evidence. His Lordship Mr. Justice P.K. Bahri, of our Own High Court was pleased to make observations in the celebrated authority of Ram Khilawan v. The State 41 (1990) DLT 146 that:
It is not possible to believe that the police would unnecessarily foist a false case on the appellant after joining the public witness.
11. This Court finds the above conclusion of the trail court contradictory to the trail courts own finding in para 3 as extracted hereinabove. There the trial court noted that the contradictions stemming from the affidavit of PW 6 had been brought forth during cross-examination. The explanations by the witness that he was threatened by the accused into giving such an affidavit was not only weak considering that he never complained to the police about it but certainly it had the effect of rendering the witness untrustworthy. The accolades heaped on the witness by the trial court to the effect that “he seems to have no guile; he is a man to trust” is not borne out by the record. Where the public witness is himself untrustworthy, the reliance by the trial court on the observations of this Court in the decision in Ram Khilawan was clearly misplaced. In the absence of any other independent witness that could have supported the case of the prosecution it was unsafe to base the conviction of the accused on the evidence of the police officers.
12. Further, despite noticing in para 10 that “the accused was apprehended on 6th July 1990” and that “statements of the eye witnesses were recorded in the moths from April to September 1992” the trial court appears to have completely missed the obvious factor of delay of two years in recording the statements of the witnesses by the police. A delay of ten months in recording the statements of witnesses was held to be unacceptable by the Supreme Court in Dilawar Balu Kurane (supra).
13. For the aforementioned reasons, the impugned judgment dated 14th September 1992 of the learned ASJ in S.C. 1139 of 1991 is hereby set aside. The appellant is acquitted of the offence under Section 21 NDPS Act and the appeal is accordingly allowed. However, since the Appellant has already been released after serving out the entire sentence, no further directions in that regard are issued.
14. The Registry will, after ascertaining his present address, deliver a copy of this judgment to the appellant within a period of ten days.