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TMI Blog2008 (5) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... d Assistant Sub Inspector (ASI) Hari Ram. They were directed to develop the information with the help of their associates. According to the prosecution on 18th January 2000 a secret informer came to the office of Special Cell, Lodhi Colony, New Delhi and informed SI Bhagwan Singh and SI Inderjeet Singh that at 6.30 pm Ramesh Kumar, the Appellant in Criminal Appeal No. 755 of 2004, a resident of Fatehpur, Delhi would deliver narcotics drugs in large quantity to a person named Mack from Bombay at the roof of the Palika Car Parking in Connaught Place, New Delhi. This information was reduced to writing by SI Bhagwan Singh. Thereafter, he along with SI Inderjeet Singh informed the ACP Shri L.N. Rao who further telephonically informed the Deputy Commissioner of Police ( DCP ) and directed SI Inderjeet Singh to take necessary action. SI Inderjeet Singh along with the other members of the team and Constable Bhudev constituted a raiding party and left for the spot along with the secret informer. It is claimed that on the way SI Inderjeet Singh tried to associate certain public witnesses in the raiding party but none joined. The raiding party then moved towards Connaught Place and again atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Abdullah and that he could get some more smack by ordering the same through mobile phone. It is stated that in the meanwhile, ACP Shri L.N. Rao also reached the spot and interrogated the accused persons. The Appellants were arrested, arrest memo and search memo were prepared and their disclosure statements recorded. It is stated that Abdullah was subsequently arrested but he escaped and was declared a proclaimed offender. The trial against Abdullah was, therefore, separated. A charge sheet was filed and by an order dated 5th January 2001 charges were framed against the Appellants for the offences under Section 21 and Section 21 read with 29 NDPS Act. 7. The prosecution examined 15 witnesses. The accused Ramesh Rajput examined ASI Kishan Singh as DW1 and Om Pal Singh as DW-2. At the conclusion of the trial, the learned ASJ delivered the impugned judgment and order as described in para 1 of this judgment. 8. The submissions of Mr. Tanveer A.Mir and Ms. Hiteshi Arora, learned Counsel appearing on behalf of the Appellants Makrand Prabhakar Sabnis and Ramesh Kumar Rajput respectively were as under: (i) The secret information received on 15th January 2000 by the police was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FSL form in the record is fatal to the case. The prosecution is unable to demonstrate that the sample which was sent for testing by the CFSL was kept in safe and secure environment and was not capable of being tampered. Therefore, the authenticity of the sample collected and sent for testing is a serious doubt. Reliance is placed on the judgment in Satnam Singh v. State of Punjab 1997 Crl.L.J. 2067, Pradeep Kumar v. State 1989 Crl.L.J. 2438, Dudnath v. State 1997 Crl.L.J. 2050 and Balwinder Singh v. State 2001 Drugs Cases 197. (vii) The requirement of expeditious dispatch of the sample to the CFSL for testing was mandatory. The delay of 13 days in sending the samples for testing was unacceptable since there was no valid reason for the delay. Reliance is placed upon the judgment in Tej Singh v. State 1996 (1) Crimes 192 (HC), Valsala v. State of Kerala 1993 SCC (Crl) 1082, State of Rajasthan v. Gurmail Singh 2005 SCC (Crl.) 641 and Subhash Chand Mishra v. State 2002 (2) JCC 1379. (viii) Relying on the judgment in State of West Bengal v. K. Babu Chakraborty , it is submitted that the failure to associate independent witnesses for the arrest and seizure would in the circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d even on 16th January 2000. This falsified his plea that he was not in Delhi at the time of the arrest, that he never knew Ramesh and therefore was not a part of the conspiracy. (g) No question was put to the FSL expert in cross examination about not receiving the FSL Form or the samples of the seals. It appears that the FSL Form was in fact handed over to the expert although it may have not come back into the case record which was placed before the trial court. No violation of any mandatory provision has taken place. (h) No specific question was put in the cross-examination to the IO regarding the incorporating the FIR Number on the seizure memos. This is any event does not vitiate the case of the prosecution. Reliance is placed on the decision in Radhey Sham v. State of Haryana . (i) The delay of 13 days in sending the samples which were kept deposited in the Malkhana was not material since the record shows that the samples were preserved in a safe environment during this period. The judgments in State of Orissa v. Kanduri Sahoo and State of Gujarat v. Ismail U Haji Patel (2003) 12 SCC 291 are referred to. The road certificates which have been marked as exhibits prove t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pprehending the accused. According to him the CFSL Form was filled up by him at 7.30 pm and prepared in duplicate. He retained only the carbon copy and handed it over to SI Bhagwan Singh before 9.30 pm. The original CFSL Form was handed over to ASI Hari Ram at about 9 pm. ASI Hari Ram left the spot before the arrival of ACP L.N. Rao. 11. PW-15 ASI Hari Ram more or less corroborated what was said by PW-2 about the recovery of the smack from appellant Makrand Prabhakar after handing over the packet to appellant Ramesh Rajput. He also speaks about SI Inderjeet Singh affixing the seal of ISB on three pullandas, filling up three forms and the seizure memo and the rukka. He confirms that the pullandas, CFSL Form and seizure memo were handed over to him along with the rukka. He then states that both accused persons were brought to the Lodhi Colony Special Cell. He states that he reached at police station at about 9 pm. 12. The cross-examination of ASI Hari Ram also did not yield much apart from his admitting that he signed on the notices as well as the seizure memos. He further stated that in his presence the notices under Section 50 and the seizure memos and the CFSL Forms were pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the spot at 6.30 pm. It was contended that these interpolations in the documents vitiated the entire recovery and that the trial court erred in holding that the compliance with Section 50 was not mandatory. In the first place it requires to be noticed that the recovery was not from the person of the accused but from a bag being carried by him. In a large number of cases the Supreme Court has held that the bag does not come within the definition of person as contemplated under Section 50 NDPS Act. The compliance in substance and not in form has been insisted upon by the Supreme Court in Krishna Kanwar v. State of Rajasthan and Prabha Shankar Dubey v. State of M.P. . Further in State of Himachal Pradesh v. Pawan Kumar the Supreme Court has held that Section 50 would not apply when the recovery is from a bag and not from a person. 15. In any event the law as explained by the Supreme Court is that the mere writing of the FIR number on the arrest and search memos cannot entirely falsify those documents. Significant among the decisions is Radhey Shyam v. State of Haryana . Also, there is merit in the contention of the Respondent that there was no specific question put to the officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The case of the appellants is that if indeed the CFSL Form was drawn up, it should form part of the case record but it does not. The only inference therefore is that the sample which was sent for testing was not the same sample which was drawn at the time of the arrest. It is also stated that the link evidence is not established in as much as the movement of the seal was not spoken to by the witnesses. It is submitted that the evidence does not speak of the seal being handed over to any superior officer which meant that PW- 2 and PW-13 had the seals with them and use it subsequently to fabricate the evidence. PW-10 Dr. Madhulika Sharma only mentions receiving the parcels bearing the seals of BS and VSP and not with the seal of ISB and therefore what was sent for testing is not what was recovered. Further, it is contended that this strengthens the submission that the delay of 13 days in sending the samples for testing was fatal to the case of the prosecution. 19. This Court has examined the evidence on this aspect. PW-2 speaks of the seals being handed over by him to SI Anil. The rukka also corroborates this. PW-8 speaks of finding both the pullandas and Form CFSL was prepared by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Gujarat v. Ismail U Haji Patel where it was held in para 5 as under: (SCC @ p. 292) 5. We find that there was really no material brought on record to show as to where the seized articles were kept. The High Court after analyzing the evidence on record came to hold that the identity of the articles sent for analysis was not established and it was not established that the articles seized were in fact sent for Chemical examination. In view of the judgment of this Court in Valsala v. State of Kerala the view of the High Court is in order. It is not the delay in sending the samples which is material. What has to be established is that the seized articles were in proper custody, in proper form and the samples sent to the Chemical Analyst related to the seized articles. 21. No doubt there is a gap of 13 days in sending the samples but as explained in the above decisions and Kanduri Sahoo, what is to be seen is whether the samples were in fact in safe custody in Malkhana during that period and were not tampered. The evidence of PWs 2, 13 and 15 when scrutinized carefully do not give rise to any doubt that the samples in this case were not in a secure environment in the Malkh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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