1989 (10) TMI 238 - HC - Indian Laws

Summary

Issues Involved:

1. Non-joining of public witnesses.
2. Alleged violation of Sections 41(2), 42, 52(3), 55, and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. Material contradictions in prosecution witnesses' statements.
4. Delay in dispatch of the sample for chemical examination.
5. Non-seizure and non-exhibition of the scooter.
6. Compliance with Section 157 of the Criminal Procedure Code.

Issue-wise Detailed Analysis:

1. Non-joining of public witnesses:
The appellants argued that the police did not include any public witnesses despite having advance information. The court noted that it was not genuinely possible for the police to join any such witness due to the urgency of the situation and the reluctance of public persons to join the raid. The court referenced previous judgments, noting that the non-joining of public witnesses does not necessarily undermine the prosecution if the police witnesses' testimony is trustworthy. The court concluded that the evidence of police witnesses in this case was credible and reliable.

2. Alleged violation of Sections 41(2), 42, 52(3), 55, and 57 of the NDPS Act:
The appellants contended that there were violations of various sections of the NDPS Act. The court found no violation of Section 55, as the case property was properly sealed and handled. Regarding Section 52(3), the court acknowledged a minor discrepancy in the prosecution's evidence but attributed it to the lapse of memory over time. For Section 57, the court held that the FIR contained a full report of the arrest and seizure, satisfying the requirement. The court also noted that even if there were some procedural lapses, the primary concern is the credibility of the recovery of the contraband, which was not in doubt.

3. Material contradictions in prosecution witnesses' statements:
The appellants pointed out contradictions in the statements of prosecution witnesses regarding the location of the recovery. The court deemed these discrepancies minor and not significant enough to affect the overall credibility of the prosecution's case. The court emphasized that such minor contradictions are expected due to the passage of time and do not undermine the prosecution's case.

4. Delay in dispatch of the sample for chemical examination:
The court addressed the issue of a 10-day delay in sending the sample for chemical examination. It found that the seal impressions on the sample parcel remained intact throughout, ensuring the integrity of the sample. Therefore, the delay did not adversely affect the prosecution's case.

5. Non-seizure and non-exhibition of the scooter:
The appellants argued that the scooter was not taken into possession or exhibited during the trial. The court found that the scooter was indeed taken into police possession, as evidenced by a memo. The lack of exhibition in court did not invalidate the prosecution's case, as the seizure was not challenged during the recording of prosecution evidence.

6. Compliance with Section 157 of the Criminal Procedure Code:
The appellants contended that there was non-compliance with Section 157 of the Criminal Procedure Code. The court found that the FIR was promptly recorded, and there was no delay in its recording. The SHO was not required to proceed to the spot after receiving the rukka and case property, as the investigation had already commenced.

Conclusion:
The court dismissed both appeals, finding no merit in the arguments presented by the appellants. The sentences awarded to the appellants were affirmed as the minimum permissible under the NDPS Act.