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TMI Blog2016 (3) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent witness is only that the court has to view the submission of the police or other witnesses with caution and circumspection and the veracity of the same has to be decided before placing reliance upon them for arriving at any conclusion regarding the guilt of the accused. In this case, efforts were made by the police officials to join independent witnesses but, none agreed to join the proceedings but that ipso facto is not a ground to discard the testimony of police officials who stood the test of cross-examination and nothing material could be elicited to discredit their testimony. Seeking modification of sentence order - Recovery of charas - Non-compliance of Section 42 of NDPS Act - Held that:- Section 42 is applicable only when the secret information pertains to concealment of any narcotic drug or psychotropic substance in any building, conveyance or any enclosed place and when seizure has taken place at a public place. If a search is made in a public place, the officer taking the search is not required to comply with sub-Section (1) and (2) of Section 42 of the Act. Therefore, the provisions of Section 42 of the Act were not legally required to be complied with refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied with the specimen seals as per the forwarding letter. Moreover, nothing has come on record from which it can be presumed that the sealed pullandas of the samples or the remaining case property were tampered with at any stage. Therefore, mere delay in sending the samples to FSL does not cast any dent on prosecution case. Seeking modification of sentence order - Recovery of charas - Case property deposited in the night but submitted the same in the next morning hours - Held that:- as per storeroom register, the case property was deposited on 14.07.2010 at 11.55 am. This submission, which initially seemed to be attractive, was dispelled by learned Public Prosecutor for the State by submitting that the deposit was made vide DD No. 39A, therefore, the original DD No.39A was summoned which clearly reflects that the deposit was made by Inspector Ramesh Kalsan at 11.55 pm. That being so, there is nothing on record to show that the case property was at any point of time tampered with till it reached FSL. Therefore, mere delay in sending the samples to FSL does not cast any dent on prosecution case. Seeking modification of sentence order - Recovery of charas - Non-compliance of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 Cr.P.C was also given to him. 2. Prosecution case, in nutshell, is that on 14.07.2010 at about 3.45 pm a secret information was received by ASI Bijender Singh (PW-5) in the police station that one person named Vinod Sharma resident of Himachal Pradesh who used to supply Charas in Delhi from Himachal Pradesh will come at the underpass near AIIMS Hospital i.e., under the road leading towards South Extension Part-II between 6.00 pm to 8.00 pm to supply Charas to someone. The information was conveyed by PW-5 to SHO Inspector Ramesh Kalsan (PW-2) who after satisfying himself regarding the correctness of the information, informed ACP Mehar Singh (PW-10) telephonically. DD No.20A Ex.PW- 5/A was recorded by ASI Bijender Singh in this regard and the same was sent to the ACP through the SHO who directed him to proceed further in the matter. A raiding party consisting of police officials reached the spot at about 5.00 pm. Some passersby were asked to join the raiding party but none agreed. At about 8.15 pm, accused came from the side of AIIMS hospital and was going towards South Extension Part-II by holding one rexine bag on his shoulder. He was apprehended. He was informed about the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as received at 3.45 pm whereas the appellant was apprehended at 8.30 pm. There was more than sufficient time available with the police officials to join independent witnesses, more particularly, when he was apprehended from a busy area but no independent witness was joined in the proceedings; (ii) As per the prosecution case, the secret information was received at 3.45 pm, accused was apprehended at 8.30 pm and only thereafter recovery is alleged to have been effected. However, as per testimony of PW-3, Head Constable Afsar Pasha who was working as Reader to ACP, the report under Section 42 of NDPS Act Ex.PW3/A was received in the office at about 1.30 pm. The very fact that the information was received even prior to the recovery, makes the entire case of prosecution doubtful. (iii) The initial investigation was carried out by ASI Bijender Singh, however, he being an Assistant sub-Inspector was not competent to carry out search; (iv) There was substantial delay of 15 days in sending the parcels to FSL as such, possibility of tampering with the case property cannot be ruled out. Moreover, while according to the recovery witnesses, two samples of 50 gms were taken out, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities wanted another sample then it could have been sent to FSL; (vii) As regards entries in register no. 9 of the Malkhana Moharar, reliance was placed on DD No.39A vide which the case property was deposited in the Malkhana which clearly makes a mention that it was deposited at 11.55 pm. It was submitted that all the submissions made by counsel for the appellant were duly considered by the learned Special Judge while convicting the appellant and the impugned judgment does not suffer from any infirmity calling for any interference. That being so, appeal is liable to be dismissed. 6. I have given my considerable thoughts to the respective submissions of learned counsels for the parties and have perused the record. 7. As regards the first limb of argument regarding non-joining of independent witnesses it has come in the testimony of PW-5 ASI Bijender Singh that after forming the raiding party when they left the police station and reached the spot, on the way near South Extension Part-II near bus stop and also on the spot, he asked 4-5 passersby to join the raiding party but none agreed and went away after giving their reasonable excuses. Even after apprehension of the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he counsel being busy in arguing other matter in other court or cross examining other witness in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police is faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whether from public or police, has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of police witness cannot be rejected on the ground that they are official witnesses . 9. Presumption of honesty is as much available to a police officer which is available to any other official witness. There is no presumption that police officials are liars. The effect of non-joining of independent witness is only that the court has to view the submission of the police or other witnesses with caution and circumspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r:- 42. Power of entry, search, seizure and arrest without warrant or authorization. - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officer taking the search is not required to comply with sub-Section (1) and (2) of Section 42 of the Act. Reference in this regard can be made to Directorate of Revenue and Anr. vs. Mohd. Nisar Holia (2008) 2 SCC 370, State, NCT of Delhi vs. Malvinder Singh (2007) 11 SCC 314 and Mohan Lal vs. State of Rajasthan 2015 V AD (SC) 581. In view of the above, the provisions of Section 42 of the Act were not legally required to be complied with. 12. However, it has come on record that the secret information received by PW-5 was got reduced by him in writing vide DD No. 20A attested carbon copy of which is proved as Ex.PW5/A. Another attested copy of the information was proved as Ex.PW3/A and the same was put up by PW-5 before the SHO concerned i.e., PW-2 Inspector Ramesh Kalsan. The same was also forwarded by him to ACP concerned Mr.Mehar Singh and it was duly received in the office of ACP vide entry no. 4073 of dak register dated 14.07.2010. Head Constable Afsar Pasha who was working as Reader to the ACP has proved the relevant entry Ex.PW3/C and deposed that the same was put up to ACP which was seen and endorsed by him. There is force in the submission of learned Public Prosecut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IV of the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place within the Metropolitan Area of Delhi between sunrise and sunset, to:- (a) Enter into and search any such building, conveyance or place, (b) In case of resistance, break open any door and remove any obstacle to such entry, (c) Seize such drug or substance and all material used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the said Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV of the said Act, relating to such drug or substance, and (d) Detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV of said Act relating to such drug or substance. Provided, that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed thereon. Thereafter, PW-8 Head Constable Sanjeev Kumar took the sealed pullandas alongwith FSL form and copy of the seizure memo and handed over the same to SHO/PW-2 who affixed his seals of RK on the parcels as well as form FSL. All the sealed pullandas alongwith documents were deposited by PW-2 with MHC(M)/PW-4 Lallu Ram in the Malkhana vide entry No.1881 of Register No.19. PW-4 has specifically deposed about the seals of BS and RK found affixed on these pullandas and the form FSL. FSL result Ex.PX also goes to show that the above description of the seal were found to be mentioned and that the seals affixed on the sample pullandas were found to be in intact condition and it tallied with the specimen seals as per the forwarding letter. Moreover, nothing has come on record from which it can be presumed that the sealed pullandas of the samples or the remaining case property were tampered with at any stage. 16. Heavy emphasis was laid by learned counsel for the appellant for submitting that as per storeroom register Ex.PW-4/A, the case property was deposited on 14.07.2010 at 11.55 am. This submission, which initially seemed to be attractive, was dispelled by learned Public Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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