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TMI Blog1989 (10) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... nch at Police Headquarters when he received secret information that three persons will come on a two wheeler scooter at Shivaji Restaurant, Bhagat Singh Marg, and will deliver heroic to their respective parties at about 5.30 P.M. On the basis of the prior information as well as Secret information received that day a raiding party consisting of SI Om Prakash, SI Jagpal Singh. Hc Harbir Singh and 3-4 constables was organized by SI Surindar Singh. All of them went near Arora Pan Bhandar situated at Bhagat Singh Marg near ShivaJi Stadium. SI Surinder Singh asked 8-10 persons to join the raiding party but they declined by expressing their inability and went away. SI Sukesh Kumar and one constable of Police Station Mandir Marg also met the party there by chance. They were also apprised of the secret information and were included in the raiding party. They picketed a Nakabandi near that place in such a manner that their presence was not felt by the anybody. At about 5.30 Pm one two wheeler scooter driven by Surjit Singh, appellant arrived there. One Muni Lal and the appellant, Sunil Kumar were occupying pillion seat of the scooter. On the pointing out of the Informer they were apprehended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inder Singh was allegedly reduced into writing and sent to ACP Sh. P.S. Bhushan but no such information was brought on record during the course of the trial. In this manner there was violation of Section 41(2) and Section 42 of the Act. It is also argued that although it was admitted that some of the police officers of Police Station Mandir Marg joined the raiding party but none of them was cited as a witness in this case and that the story put forward by the prosecution was unnatural and inherently improbable because it could not be believed that three persons indulging in the same type of nefarious activities would act in concern because they were competitors in the same trade and would not travel together. Besides, there were material contradictions in the statements of various prosecution witnesses and also there was violation of Section 55 read with Section 52(3) and also of Section 57 of the Act because information was not conveyed to any of the senior officers within 48 hours as contemplated by that provision All these arguments have been countered on behalf of the State. (6) So far as the contention that inspire of the fact that the police had information a few days in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect of non-joining of public witness has been commented upon on a number of occasions by various High Courts and Hon'ble the Supreme Court. However, I would like to mention only two of those authorities which are quite recent. The first is in the case of Chander Shekhar and Others v. The State. 1986 (2) Crimes 419, a judgment of a Division Bench of this Court in which it was observed as follow ;- ONE of the greatest disadvantages of living in highly urbanized areas is that people are out of sympathy with their neighbours and fellow citizens. This is for a variety of reasons. None wants to get involved in such matters. Our experience is that in the recent past it is really becoming difficult to involve public witnesses in court cases particularly in cases of capital offences. It is common-place experience that in Delhi if an accident takes place, hardly any body feels concerned. Life is so mechanical and fast that no body has time to sympathize with a fellow citizen. We blame none for it as this is the life style growing in highly urbanized areas. Even those who feel concerned keep away for fear of their own security and getting involved in toady proceedings There is a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence of police witnesses and if their evidence is otherwise trustworthy and inspires confidence and they also do not appear to have any motive to falsely implicate the accused, there is no reason why they should not be believed. In this case the defense raised by the appellant Sunil Kumar in his statement under Section 313 Code of Criminal Procedure is that he was earning his livelihood by supply of general merchandise including imported items to various shopkeepers and also to the stall holders who put their stalls in front of the shops after the close of the market in Karol Bagh area. His uncle Ashok Bhatia DW2 had also been putting up one such stall during evenings to earn his livelihood. On that evening he had to collect ₹ 2, 000.00 from Davender Singh DW1 for the goods which he had supplied to him. Since he could not locate Davender Singh, on coming to know that he had gone to Gali No. 8. Dev Nagar, he went there to make enquiries about Davender Singh. He saw a police jeep parked there. On suspicion, he was apprehended by the police and taken to Police Station Mandir Marg. In fact he was arrested because of enmity between his uncle Ashok Bhatia Dw 2 and the polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne adjoining the Arora Pan Bhandar. As against that PW-7 Hc Harbir Singh stated that there was a small book shop at the corner of the road and Pan shop at the other corner of the road. He further stated that the Restaurant where they bad gone is after going 15-20 steps inside the road away from the road of Arora Pan Bhandar. Thus according to the learned counsel the place of alleged recovery was different according to the different prosecution witnesses. Such an argument was also advanced before the learned trial court and was not accepted as such to cast any damage to the case of the prosecution. It may be noted that the two places about which the discrepancy is alleged are within a range of 15 to 20 steps. The raiding party consisted of a number of police officials. One can visualise that the different members of the raiding party cannot stand at one point and they must have spread out within a distance of 15 to 20 steps at least. Therefore, the alleged place of recovery in any case being within 15 or 20 steps, it cannot be said that there is any material contradiction in the prosecution evidence regarding the place of recovery. Therefore, much importance cannot be given to any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 55 and 52(3) of the Act is concerned, I am of the view .that in the first instance there does not seem to be any violation of Section 55. After his apprehension at the spot, the contraband article was seized from the appellant. After separating a sample of 10 grams both the sample and the remaining heroin were separately sealed with the seal of the Investigating Officer. The case property was then forwarded to the police station where the Sho, PW3 Inspector Prem Singh Patwal was entrusted with the same by Hc Harbir Singh. He has deposed that both the packets were sealed with the seal of JPS. He then affixed his own seal impression Psp upon both these parcels and entrusted them to Malkhan Moharar for deposit in the Malkhana. The appellant was apprehended at about 5.30 P.M. whereas the case property was brought to PW3 at about 6.50 PM. So within almost one hour and 20 minutes of the recovery of the case property, it was produced before the officer-in-charge of the Police station. There is no cross examination of either of the witnesses to indicate that the case property was tempered with on the way from the spot to the police station. Otherwise in view of the statement of the Sho a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from the spot. In this respect, there is some minor discrepancy in the prosecution evidence. PW4 SI Om Parkash has stated in cross-examination that after the completion of the proceedings of the investigation at the post all the three Investigating Officers including himself had taken the accused persons to police station Mandir Marg. PW8 Jagpal Singh SI who is the Investigating Officer of this case stated that he had gone to Police Station Tilak Marg from the spot whereas the other two investigating officers Surinder Singh and Om Prakash had gone for the search of the house of the other two accused Surjit Singh and Muni Lal. Om Prakash also corroborates that the houses of Surjit Singh and Muni Lal were searched. Therefore, there is minor discrepancy between the statement of these two witnesses. However, it may be noted that the statements of the witnesses were recorded after about 1 years of the occurrence and such minor discrepancy can arise due to lapse of memory. Otherwise the broad features of the case are not different according to both these witnesses because both of them have deposed about the search of the houses of Surjit Singh and Muni Lal. It was then contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused then the recovery of the articles may be vitiated. I have already found above that the only defense of the appellant that he had been implicated because of enmity of his uncle with the police, is not worthy of credit. So I do not find any reason to disbelieve the recovery of heroin from the appellant because in that respect the evidence of the witnesses is cogent, convincing and trustworthy. The appeal, Therefore, has no merit. Crl. A. No. 166/89 (16) Learned counsel for the appellant in this appeal contended that no public witness in this case was Joined, that the scooter allegedly seized from the appellant was not exhibited during evidence, that there was delay in the dispatch of the sample of ten days for Chemical examination, that there was non-compliance with the provisions of Section 57 of the Act and also there was non-observance of the provisions contained in Section 57 of the Code of Criminal Procedure. (17) So far as the contentions regarding non-joining of public witnesses and the violation of Section 57 of the Act are concerned, same have been discussed in detail in Crl. A. No. 23/89 and found to have no force. (18) So far as non-seizure of the scooter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the relevant facts to the knowledge of the officer-in-charge of the police station. The Sho, Therefore, was not required under Section 157 of the Code to proceed to the spot after he received the rukka and the case property in the police station. Therefore, question of non-observance of the provisions of Section 157 of the Code does not arise. (19) The contention that the sample was sent to Cfsl after 10 days for Chemical examination does not seem to cast any doubt on the case of the prosecution The fact remains that the sample parcel at the time of deposit in the Malkhana bore the seal impressions of both the investigating officer as well as the Officer-in-charge of the police station. PW2 Ram Daras Constable took this sample parcel to Cfsl after obtaining it from the Moharar Malkhana of Police Station Mandir Marg. He has deposed that at that time the seal impressions Op and Psp were intact and so long as it remained in his custody, it was not tampered with Therefore, the seal impressions on the sample parcel having remained intact up to the time it was deposited in Cfsl, the delay of 10 days in sending it to Cfsl has no adverse effect on the case of the prosecution. I, There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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