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TMI Blog2006 (11) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... the spot. The appellant followed respondent's vehicle up to ITO. The learned Counsel for the appellant stressed that it is surprising to note that on such a long distance the appellant could have managed dodge to the Officers of the respondent. It was easy for him to slip away as there remains heavy traffic and a large number of red lights intervene in the way. Again, if the appellant was having the contraband, he could have thrown it out of the car during the travel of 25 kilometers with the help of Jagdeep Singh, who was accompanying him. He argued that this is a clear pointer to the fact that the appellant did not have the contraband and has been framed in this case. 3. These arguments carry no conviction. In an authority reported in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence , the facts were these. The car and truck having contraband were apprehended on 15.05.1993. The seizure of the narcotics took place between 6.00-9.00 PM at the Customs House and the statements of the accused were recorded on 16th and 17th May, 1993. The Apex Court held: It has been established that the Customs Office was about 20 kms. from the place where the truck an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lfilll the mandatory requirement. In order to bring his point home, he has drawn the attention of the court towards an authority reported in Ahmed v. State of Gujarat , wherein it was held: In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence under the Act is being committed, then for the sanctity of the search itself, the person to be searched has been affordedthe minimum right to be searched before another gazetted officer or the Magistrate and that right cannot be taken away, merely because the officer going to search happens to be a gazetted officer, who has been empowered either by the Central Government or by the State Government by a general or special order. In fact the legislature has enacted the safeguard contained in Section 50 to obviate any doubt of the illicit articles under the Act and this provision was engrafted having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ign the recovery memo. The memos were signed by S.K. Handa PW1 and B.S. Bakshi PW2. The learned Counsel stressed that the case of prosecution wallows in doubt and uncertainties. 11. These arguments lack conviction. In Nathusingh v. State of Madhya Pradesh , the case was investigated by the police. Both the public witnesses did not support the prosecution case. Reliance was placed on the testimonies of two police officers and it was held: The mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused. 12. Again, the reliance was placed upon the statements of the police officers in the cases reported in Ahir Raja Kohmia v. State of Sorashtra ; State Govt. of N.C.T. of Delhi v. Sunil Kumar 2001 (1) C.C. Cases (SC) 6. In T. Shankar Prasad v. State of Andhra Pradesh Crl. Appeal No. 909 of 1997, decided by Hon'ble Supreme Court on 12.01.2004, it was held: The Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Valuable Godown Customs, PW12, deposed that only one packet was deposited with him on 26.12.1996 and no test memo was deposited by Mr. S.K. Handa on 26.12.1996. He could not say whether Mr. Handa had come to him during morning or afternoon or in the evening. He could not recollect who had recorded the entry in the malkhana register. It was argued that when two sets of samples were taken out, one was sent to CRCL for testing and the second set which was in the custody of Mr. S.K. Handa was not deposited anywhere. 19. I see no merit in these arguments. It is not incumbent upon the Officers of the Custom Department to deposit the case property with the malkhana of the Police Station. The Officers of the department are equally empowered to deposit the case property in their own malkhana in accordance with notification No.7/85 dated 14.11.1985, which is reproduced as follows: S.O. 823 (E) - In exercise of the powers conferred by Sub-section (1) of Section 53 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985), the Central Government, after consultation with all the State Governments hereby invests the officers of the above the rank of inspector in the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that Anwar Alam and B. Kumar CA II were working under the supervision of Dr. Y.K. S. Rathore. This is not the requirement of law that every body, whosoever, has handled the sample must sign it. Again, it is well settled that the report sent by Chemical examiner is per se admissible in evidence without any formal proof. The report was proved on the record as Ex. PW8/C. This view finds support from an authority reported in State of Himachal Pradesh v. Mast Ram 2004 IX AD (SC) 57. 24. It was also argued on behalf of the appellant that one Jagdeep was also apprehended in this case. Notice under Section 50 NDPS Act was served upon him and he was served with summons under Section 67 NDPS Act. It is not understood as to why he was released in this case. It is explained that either he should have been arrayed as an accused or a witness. However, the needful was not done for the reasons best known to the prosecution. 25. The learned Counsel for the appellant kept on veering from the main topic. Although, Gurminder Singh has confessed his guilt, yet, at the same time, he has given clean chit to his companion. I have also perused the statement of Jagdeep Singh recorded under Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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