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TMI Blog2006 (12) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediate superior officer, Deputy Director Mr. Mukesh Khullar, who directed him to organize a surveillance and take action on the basis of information. Mr. Shrama instructed Sh. D.C. Mishra, Superintendent, NCB to organize a team and reach the Zoo and mount surveillance. Mr. D.C. Mishra constituted a team consisting of himself, Lady Intelligence Officer Ms. Suman Kumari and 3-4 other officials of NCB and reached the gate of Zoological Garden and mounted surveillance. At around 2.30 pm a lady, as per the description given in the secret information, was seen standing outside the Zoo, having a black leather bag and white polythene bag in her hands. She waited for about half an hour and then took an Auto Richshaw and started moving towards the Delhi Public School, Mathura Road. The NCB Team followed that auto rickshaw and intercepted it near Sunder Nagar. The auto rickshaw with passenger was taken to nearby taxi stand. The auto driver and one independent witness from the taxi stand were associated in the proceedings and the NCB officials disclosed their identity to the appellant and disclosed about the information with them and told her that if she wished to get herself searched before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n proved as Ex.PW4/A. The seizure memo as Ex.PW4/B. The receipt issued by the CRCL is Ex.PW4/C. The samples were tested at CRCL and Mr. K.S. Rathore, Sr. Analyst proved the Chemical analysis report as Ex.PW5/A. The samples were found to contain diacetyle morphine(heroin). PW6 Mr. A. Alam of CRCL testified about receipt of five samples, each sample having lakh lach seals of NCB, the seals being intact and tallying with the specimen of sample seals. PW9 Mr. Rajender Yadav, a panch witness, supported the prosecution case of recovery of five polythene packets and testing of contents of each polythene packet by the staff of NCB with Field Testing Kit and the finding that it was heroin. He also testified about the weight of heroin recovered from the appellant being 5 kg and sending of each sample and packet. He identified the case property as well as his signatures on the documents. His testimony was silent about some facts and, therefore, he was cross examined by the Public Prosecutor and in his cross examination, he admitted five paper slips Ex.PW1/K to PW1/O, having been affixed on five packets with seal of NCB and also sealing of sample pouches vide paper slips which bore his signatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 67 of the NDPS Act, was retracted by the appellant on 5.5.1998, when she got opportunity to retract. (xi).The prosecution committed breach of guidelines issued by Narcotic Control Bureau and that these guidelines had statutory force. (xii). There was non compliance of Section 52A and 57 of the NDPS Act. 5. There were two panch witnesses in this case, one was the taxi driver. The prosecution examined the taxi driver as PW9. He supported the prosecution case in material aspects. He testified that he was present at his taxi stand when NCB Officials came to the taxi stand of Sunder Nagar along with a lady, who was carrying polythene bag and the officials of NCB informed that the lady was to be searched. The officers of NCB offered that lady that if she so desired, she could be searched before some other officers but the lady refused. On search of the polythene bag carried by that lady, 5 polythene packets were recovered, each contained heroin. Contents of each packet were tested on a machine and on testing each sample changed its colour and the officials told that the packets contained heroin. The weight of packets was 5 kg. The samples were drawn from each packet. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NCB Officials from before or he had appeared as a witness in any other case or that search of the lady was not taken in his presence or recovery were not made in his presence. In fact, the independent witness has fully supported the case of NCB and the plea taken by the appellant's counsel that there were contradictions in the statement of independent witness or that he had not supported the prosecution case, does not stand anywhere. It is not expected of an independent witness to remember each and every thing about the case when he appears in the witness box. If material details are given by him, supporting the prosecution case and the witness does not remember some of the things, he is not a hostile witness. A witness can be asked to refresh his memory by looking into documents bearing his signatures or his writing to refresh his memory. The public prosecutor could have shown the documents to the witness even in examination in chief and asked him to explain the circumstances under which documents were prepared. The law permits a witness to refresh his memory by seeing the documents prepared at the spot. Merely because the witness remembered the things after seeing the docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the testimony of witnesses. The remnants of the samples were found intact with the seal of CRCL when produced in the court. The seal was opened in the Court and the envelop which was sent by CRCL to prosecution contained the remnants of the samples. The plea that the remnants samples were not accounted for, thus fails. The other plea taken is that the the Test Form was not filled up on the spot. It is submitted by counsel for the appellant that filling of test form on the spot was mandatory. He relied upon the Standing Instructions No. I/88 issued by the NCB. Relevant instruction reads as under: The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelops should also bear the S.No. of the package (s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelop along with test memos should be kept in another envelope which should also be sealed and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement of law that the entire investigation must be completed on the spot and no part of writing work can be done by the investigating agency in the office or at any other place. Instruction No. 2.9 relied upon by the appellant's counsel does not say that Test memo is to be prepared at the spot of recovery of drugs. The guidelines, issued by the department are advisory in nature and have no legal sanctity. Only statutory laws made by Parliament or rules made under delegated legislators/power as conferred by the Statute, have legal force. Circulars, administrative orders or Executive instructions, issued without any statutory powers are not binding in nature. They are instructions of prudence. Merely because instructions/guidelines have been followed by an investigating officer, the court cannot hold that the statutory provisions and rules have been complied with compliance. The statutory provisions and rules made under the Act has to be looked upon independent of the departmental instructions. 9. Learned Counsel for the appellant failed to point out any piece of evidence to show that the the samples got tampered by not preparing test memo at the spot and preparing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all have regard to the degree of formality of the document. Proviso (3).-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contact, grant or disposition of property, may be proved. Proviso(4).-The existence of any distinct subsequent oral agreement to rescind or modify any such contact, grant or disposition of property, may be proved, except in cases in which such contact, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5).-Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved.; Provided that the annexing of such incident would not be repugnant, to, or inconsistent with, the express terms of the contract. Proviso(6). -. Any fact may be proved which shows in what manner the language of a document is related to existing facts. 11. A perusal of above Sections of Evidence Act would show that no mileage can be drawn by the learned Counsel for the appellant out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re were contradictions in the statements of witness examined by the prosecution in the court. A perusal of the statements of the prosecution witnesses would show that on material aspects, there were no contradictions. A small contradiction here and there about the timings or preparation of Test Report, could not make the testimonies of the witnesses doubtful. In my opinion, where the witnesses do not make any contradictions and all witnesses, parrot like repeat the same statement, one after another, such statements would not be natural statements. It has now been scientifically proved that if ten persons watch one incident and if they are all asked to describe the same incident after some time, each person shall give a description of the incident which will not match in minute details with the description of the other. Minor discrepancies are very natural to occur in testimony of different witnesses and the testimony of a witness cannot be rejected on the ground that there were minor discrepancies or contradictions. 13. The next argument of the appellant's counsel is that the confessional statement of appellant recorded under Section 67 of the NDPS Act was not admissible bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n given by the appellant in her confessional statement under Section 67 of the NDPS Act. 14. Learned Counsel for the appellant has tried to draw mileage from the name of lady given secret information, as Siddika. Counsel for the appellant submitted that the name of the appellant was 'Siddiqua' and not 'Siddka' and the lady by the name of Siddka has been let off and the appellant has been falsely implicated because of similarity in name. This argument must fail. No suggestion was given to any of the witnesses any other woman named Siddika was arrested or recovery was made from Siddika. Moreover, 'Siddiqua' and 'Siddika' have similar phonetics and the informer might have not heard the name properly and gives it as 'Siddika' and not 'Siddiqua'. This rather proved the truthfulness of the case of the prosecution and shows hollowness of the arguments of the appellant. 15. The appellant's counsel also laid emphasis that there was no compliance of Section 57 of the Act. The copy of the report, as required under Section 57 of the NDPS Act was not sent to the superior officer. This argument has also been turned down by the learned Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant cannot lift one sentence from here and another sentence from there and ask the Court that the case should depend upon that sentence in the testimony. It is only after considering the entire statement of a witness that the court has to come a conclusion that the witness was credit worthy or not. The court has to silt grains from the chaff. It is well recognized that minute details of incident, with the passage of time, go out of memory. In all such cases, the Court has to see whether the overall testimony of the the witness was truthful and whether the incident, as claimed by the prosecution, had happened or not. The proof beyond reasonable doubt, only means that he Court should see that all the material ingredients of the offence have been proved by cogent evidence. The prosecution agency is also a human agency and the Court should except accuracy standards only to the extent which can be expected from a normal human being. The court should not except super human standards from the prosecution agency in all aspects. What the court has to see is that the investigation has been done in a fair and proper manner and there is no false implication of the accused. Here, in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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