2008 (5) TMI 643 - HC - Indian Laws

Summary

Issues Involved:
1. Compliance with Section 42 NDPS Act.
2. Compliance with Section 50 NDPS Act.
3. FIR number on documents before FIR registration.
4. Link evidence concerning seal movement.
5. Non-association of independent witnesses.
6. Delay in sending samples to CFSL.

Issue-wise Detailed Analysis:

1. Compliance with Section 42 NDPS Act:
The appellants argued that the secret information received on 15th January 2000 was not reduced to writing and forwarded to a superior officer, thereby violating Section 42 of the NDPS Act. However, the court noted that the search and seizure took place in a public place, specifically the roof of Palika Bazar car parking, making Section 43 applicable instead of Section 42. The court found that both pieces of information received on 15th and 18th January 2000 were reduced to writing, thus complying with the mandatory requirements. The court cited the Supreme Court's decision in Narayanaswami Ravishankar v. Asst. Directorate of Revenue Intelligence to support its conclusion.

2. Compliance with Section 50 NDPS Act:
The appellants contended that the notices under Section 50 were manipulated as they contained the FIR number, which should not have been available at the time of the search and seizure. The court clarified that the recovery was from a bag and not from the person of the accused, thus Section 50 did not apply. The court referred to several Supreme Court judgments, including State of Himachal Pradesh v. Pawan Kumar, which held that Section 50 does not apply when the recovery is from a bag. The court also noted that the mere writing of the FIR number on the arrest and search memos does not entirely falsify those documents, citing Radhey Shyam v. State of Haryana.

3. FIR Number on Documents Before FIR Registration:
The appellants argued that the FIR number on the documents prepared at the time of the search and seizure indicated manipulation. The court found that no specific question was put to the officers concerned in their cross-examination about the FIR number. The court concluded that the writing of the FIR number was likely for cross-verification of details and did not vitiate the case of the prosecution.

4. Link Evidence Concerning Seal Movement:
The appellants claimed that the link evidence concerning the movement of the seal was not established, suggesting possible fabrication of evidence. The court examined the evidence and found that the seals were handed over to SI Anil Kumar and that the CFSL Form and the samples were intact. The court noted that the defense did not cross-examine the witnesses on the receipt of the CFSL Form, leading to the conclusion that the form was indeed sent with the parcels. The court rejected the appellants' contention regarding the link evidence.

5. Non-association of Independent Witnesses:
The appellants argued that the failure to associate independent witnesses for the arrest and seizure rendered the prosecution's evidence unreliable. The court referred to Supreme Court judgments, including P.P. Beeran v. State of Kerala and M. Prabhu Lal v. DRI, which held that non-association of independent witnesses is not fatal if efforts were made to associate them. The court found that every effort was made to associate public witnesses and that the raid had to be organized in a very short time, thus rejecting the appellants' contention.

6. Delay in Sending Samples to CFSL:
The appellants contended that the 13-day delay in sending the samples to the CFSL was unacceptable and raised doubts about the authenticity of the samples. The court examined the evidence and found that the samples were kept in a safe environment in the Malkhana during this period. The court referred to Supreme Court judgments, including Valsala v. State of Kerala, which held that the delay in sending samples is not material if the samples were in proper custody and form. The court concluded that the delay did not affect the case of the prosecution.

Conclusion:
The court found no legal infirmity in the impugned judgment and order of the learned trial court and dismissed the appeals. The court upheld the conviction and sentencing of the appellants under Sections 21 read with 29 of the NDPS Act.