9911796707
TMI Blog1996 (3) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... et informer pointed towards the appellant to be that person. Pursuance of which appellant was apprehended. Before searching him option was given to be searched either before Gazetted Officer or the Magistrate, but appellant declined. Notice under S. 50 of the Narcotic Drugs and Psychotropic Substances Act (in short the 'Act') was served. S.H.O. in the meantime also came at the spot. It is the case of the prosecution that from the right side pocket of appellant's pant a match box 'Homelight' containing smack wrapped in a paper was recovered. On being weighed it turned out to be 4 gms. One gram was taken out as sample. The remaining was converted into Pullandas and duly sealed. Thus, the case property and the sample were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sealed with the seals of DPJ and HLM, as per the SHO (P.W. 1). CFSL. Form was also filled. Notice Ex. P. W. 7/A under S. 50 of the Act was given. Seal after use was handed over to the said public witness. Seizure Memo has been proved as Ex. P.W.-1/A. Rukka also proved. It was sent to the Police Station through Constable Ramesh Kumar. Site plan is Ex. P. W.-7/B. Personal search memo is Ex. P.W.-3/A. CFSL report is Ex. P. W.-7/C. Inspector Harbans Lal (P.W. 1) deposed that he kept the seal with him after affixing the same on the case property, on sample as well as on the CFSL form. So far as P.W. 2 ASI Satpal Singh is concerned, he could only prove that he made FIR Ex. P. W. 2/A, on the basis of the Rukka brought by Ramesh Kumar. There is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er appellant was apprehended proved copy of the notice under S. 50 of the Act as Ex. P. W. 7/A. He stated that seals after use were handed over to public witness. Pullanda and CFSL form were seized vide Ex. P. W. 1/A. There were handed over to the SHO. He admitted that no other person of the locality was asked to associate the raiding party. Investigating Officer took back the seals from the public witness when he met him by chance near Chandni Chowk. 3. As I have already discussed above, the attack is primarily on the ground of the missing link and avoiding to associate public witness. The alleged public witness Mr. Santosh Kumar was the S.P.O. of the area and hence cannot be called an independent witness. Further more, there are contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.P.O. of the area who was known to him from before and made him member of the raiding party. No Explanation given why persons who had gathered there were not asked to join. This shows that no independent witness was associated. Santosh Kumar (P.W. 5) S.P.O. of the area was made to join in order to cover the lapse and challenge that public witness had not been associated. This was done in order to fill up the lacunae. By no stretch of imagination (P.W. 5) can be called an independent witness. Admittedly, there can be cases where public witnesses are not available, for that the Explanation must be there. But in this case, no efforts were made to associate any public witness. It cannot be one of those cases where public witness could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Inspector Harbans Lal (P.W. 1) admitted that he only deposited the Pulanda with the Moharar Malkhana. He nowhere states that CFSL form was also deposited. This points to the fact that police could tamper with the sample. In the absence of CFSL form, the seals on sample could not be compared. 5. The incident is of 6th March, 1990. The sample was sent to the CFSL office on 8th March, 1990. The same was deposited in the office of the CFSL on 9th March, 1990 as per Ex. P. W.-7/C. The sample was taken and sent to the office of the CFSL through Constable Ashok Kumar. The said Constable Ashok Kumar has not been adduced. He was given the sample for deposit in the CFSL office on 8th March, 1990. He kept it with him till 9th March, 1990. He depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that things did not happen the way the prosecution wants this Court to believe. Why Constable Ashok Kumar through whom the sample was sent to the CFSL had not been produced. Material witnesses had been withheld allowing the doubt to creep in. There are material contradictions in the testimonies of witnesses with regard to handing over of the seals, filling up of the form, deposit of the case property and sample with Malkhana and joining of independent witness and of course of the use of the seals. For these reasons I am of the considered view that the appellant has been successful in creating a dent in the case of the prosecution. On the basis of the evidence which has come on record it cannot be ruled out that sample could not be tamp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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