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TMI Blog1996 (9) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... were sealed with the seal of C.S.R. and S.K.S. Cfsl form was filled at the spot and specimen of the above seals were affixed thereon. On report from the Cfsl the sample was found to contain charas and a challan was, accordingly, filed in the Court under Section 20(ii) of the Narcotic Drug and Psychotropic Substances Act (in short referred to as The Act ). After trial the appellant was convicted of the offence under Section 20(ii) of the Act and was sentenced to undergo rigorous imprisonment for 10 years and pay a fine of Rs.l,00,000.00 .or in default of payment of fine, to undergo further rigorous imprisonment for six months. Being aggrieved by the judgment of the Sessions Court, the appellant has filed this appeal mainly on two grounds, namely, i) the seal with which the samples were sealed always remained with the Sho and there Was a delay of 17 days in sending the sample to CFSL. The remaining of the seal with the Sho coupled with the fact of delay of 17 days in sending the sample to Cfsl vitiates the trial and ii) no reliance upon the prosecution evidence can be placed as the public witness who is alleged to have joined the raiding party has not been produced as a witness and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n put to him about his having not taken the Cfsl form along with the sample from the Moharrir Malkhana. (3) MR.K.B.ANDLEY, appearing on behalf of the petitioner, submits that as the road certificate has not been produced and the entry in the Malkhana register does not show the deposit of the Cfsl form, the only presumption that can be raised is that Cfsl form was not deposited with the Moharrir Malkhana and in the absence of the said form, the possibility of the sample having been tampered with cannot be ruled out more so when there was a delay of 17 days in sending the sample to the office of the CFSL. He further states that the Sho had not said anything about the sample having not been tampered with from the time of taking possession of the same by him till it was deposited with the Moharrir Malkhana. He has referred to the judgment reported as Ghanshyam Vs. State 1994 Jcc 240 in support of his contention that the Inspector who effected the recovery having not stated anywhere that the case property including the sample was not tampered with by any one during the time it remained in his custody, the conviction and sentence cannot be sustained. (4) I am afraid, the argument o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the laboratory with seals intact and the seals tallied with the specimen seals on the form. It is not even the case of the appellant that the seal which had been given to the public witness had been taken back from him. If that was the position, the inference might have been drawn that the possibility of tampering with the sample could not be ruled out, however, in this case one seal all along remained with the public witness and, therefore, in my opinion, there was no question of the sample having been tampered with during the time it remained in the custody of the police. The statement of all the witnesses is consistent and I have no reason to disbelieve them. (6) The next contention of Mr.Andley is that no reasons have been given by the public analyst in giving his report on the sample. According to him, the analyst should have given reasons for arriving at the report. He in support of his contention has referred to the judgment reported as Chandrasegar Vs. State 1(1995) Cunent Criminal Reports 146. In my view, the judgment cited by Mr.Andley is not of any assistance to him in as much as in the said case the public analyst had not appeared as a witness and only his repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een given in writing. (8) It is no doubt true that the Court should always be reluctant in convicting a person solely on the basis of the testimony of the police officials, however, we have also to keep in view that the prosecution case cannot be thrown out or doubted on that ground alone. One cannot ignore the handicap with which the investigating agency discharge their duties as there is a general apathy in the public to come forward and appear as witness in Court cases. Even in this case one independent witness was associated at the time of search of the appellant and one seal was also kept with him, however, when the summons were sent to him, it was found that he had left the address where he was living as a tenant. The prosecution has done everything within its power to have the statement of the independent witness recorded in Court, however, in case for some reason the said witness has not been produced in the Court, in my opinion, the conviction of the appellant cannot be set aside merely on that ground. It is in the statement of the witnesses that many public independent witnesses were asked to join the raiding party, however, they refused. What the police should have d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spending more time in making efforts to join some more public witnesses. It is evident that if I.O. had proceeded to make efforts to join shopkeepers and persons from the offices, the same would have taken a considerable time and thereby would have allowed the opportunity to apprehend the culprit slipped from his hand . In case, the police officials had proceeded' to book those persons who had refused to join the raiding party so as to prosecute them under Section 187 of the Ipc, they would have not been able to apprehend the real culprits. It depends upon the facts and circumstances of each case as to when and how a person should be prosecuted under Section 187 Indian Penal Code for his having refused to join the raiding party. In the present case, the information was received by the 1.0. while he was on petrol duty and he could not have, therefore, lost any time in organising the raiding party and I, therefore, do not find any infirmity in the investigation or trial merely because independent witness could not be associated in the raid. In my opinion, it cannot be laid down as broad proposition of law that if public witnesses are not joined in the raiding party, the recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X
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