2017 (12) TMI 618 - HC - Indian Laws

Offence under sections 8/21 of the NDPS Act - Held that - The prosecution has been able to prove on the basis of evidence on record of two eye-witnesses i.e. PW 1 and PW 3 that the accused was arrested on 10/4/2011 at 6.00 AM in front of Maduwadih station near SBI ATM just before Hanuman temple because of his suspicious conduct and when he disclosed that he had illegal heroin, the police party apprised him that he had a right to be searched before Magistrate/Gazetted Officer if he so wanted, in compliance with section 50 of NDPS Act, but he declined and gave a written consent to be searched by the police party itself. Thereafter illegal heroin weighing 350 grams was recovered from the bag carried by him, for which he was not having any license to possess. The recovered contraband (heroin) was sealed on the spot and a sample of seal was also prepared. Recovery memo was also prepared on the spot. Whereafter PW 2 registered F.I.R. against him under section 8/21 of NDPS Act at PS Maduwadih the same day i.e. on 10/4/2011 at 7 30 AM as Case Crime No. 93 of 2011, when the accused along with the recovered contraband in sealed condition was brought to the police station by the police party. PW 5 had taken 2 dockets of the recovered contraband and sample seal on 19/4/2011 to Circle Officer s office and on the copies of both these dockets the Circle Officer obtained his 3 signatures each and verified/attested them. Thereafter 2 copies of dockets of contraband and sample of seal were taken by him to Forensic Science Lab, Ram Nagar, Varanasi and the same were handed over to them. The Forensic Science Lab sent its report dated 4/5/2011, admissible under section 293 Cr. P.C. which states that a bundle wrapped in cloth bearing sample seal was received by them on 19/4/2011 which contained suspected heroin weighing 347.20 grams in a polythene bag (difference in weight may have been due to weighing machine), which after being tested was found to be heroin. The Investigating Officer (PW 4) has drawn the site plan at the instance of first informant who submitted charge-sheet against accused after taking the entire evidence on record into consideration. No material contradictions are found in the statements of witnesses. Therefore no substance is found in appeal.

Summary

Issues Involved:
1. Legality of the site plan and arrest timing.
2. Examination of material witnesses.
3. Custody and potential tampering of the seized contraband.
4. Submission of charge sheet prior to the receipt of the Forensic Science Laboratory (FSL) report.
5. Compliance with Section 57 of the NDPS Act.
6. Absence of public witnesses during the search and seizure.

Issue-wise Detailed Analysis:

1. Legality of the Site Plan and Arrest Timing:
The defense argued that the site plan was not proven due to contradictory statements by the witnesses and questioned the 20-minute gap between the witnesses' arrival and the arrest. The court found that the statements of PW 1 and PW 2 were consistent regarding the location and sequence of events, thus proving the site plan. The 20-minute gap was deemed reasonable as it accounted for the time taken to chase and arrest the accused.

2. Examination of Material Witnesses:
The defense highlighted that Constable Kanhaiya Lal, who brought the weighing machine, was not examined. The court held that the prosecution had examined sufficient witnesses to prove their case, and the non-examination of Kanhaiya Lal did not prejudice the prosecution's case.

3. Custody and Potential Tampering of the Seized Contraband:
The defense claimed that the contraband remained in police custody from 10/4/2011 to 19/4/2011, allowing for potential tampering. The court noted that the contraband was sealed on the spot and the seal was found intact by the FSL, negating the possibility of tampering. The court distinguished this case from others where tampering was proven due to disputed seals and missing Malkhana registers.

4. Submission of Charge Sheet Prior to the Receipt of the Forensic Science Laboratory (FSL) Report:
The defense argued that submitting the charge sheet before receiving the FSL report indicated a predisposed mind of the Investigating Officer. The court referred to precedents, stating that the investigation is considered complete once the material is dispatched for expert opinion, and the charge sheet's validity is not affected by the pending FSL report. The court found no prejudice to the accused as the FSL report confirmed the substance was heroin.

5. Compliance with Section 57 of the NDPS Act:
The defense contended that the police did not comply with Section 57, which requires reporting the arrest and seizure to a superior officer within 48 hours. The court noted that no questions were raised during cross-examination regarding this non-compliance. The court cited precedents indicating that Section 57 is directory, not mandatory, and non-compliance does not vitiate the trial unless it causes prejudice to the accused. The court found belated compliance with Section 57 as the Circle Officer attested the signatures related to the contraband on 19/4/2011.

6. Absence of Public Witnesses During the Search and Seizure:
The defense argued that no independent public witnesses were examined. The court acknowledged that public witnesses often avoid involvement due to fear of enmity. The court held that the absence of public witnesses does not invalidate the testimony of police witnesses, provided their statements are evaluated cautiously. The court found the police witnesses' statements credible and consistent.

Conclusion:
The court concluded that the prosecution successfully proved the charges against the accused under Section 8/21 of the NDPS Act. The appeal was dismissed, and the judgment of the lower court was upheld. The court also appreciated the efforts of the Amicus Curiae and ordered compensation for his work.