9911796707
TMI Blog2011 (3) TMI 1805X X X X Extracts X X X X X X X X Extracts X X X X ..... ruck bearing registration No. PB-08-R-6281 coming from Matili. In the meanwhile, independent witness Vinod Kumar also joined the police party. The accused Amarjit Singh was driving the above said truck. On interrogation, he disclosed his identity. The truck was seized on suspicion. In the presence of PW5-A DSP Narinderpal Singh, search was conducted and opium was recovered in the cabin of the said truck. Two sample parcels of opium each containing 10 grams were separated and converted into two sample parcels. The remainder bulk quantity which weighed 30 kgs of opium was separated and parcelled. The samples as well as the bulk parcels of the opium were separately sealed. PW3 ASI Gurdarshan Singh put his seal impression G.S. and PW5-A DSP Narinderpal Singh put his seal impression NPS on both the sample parcels and the bulk parcel. PW3 handed over his seal after its use to PW4 HC Puran Chand while PW5-A DSP Narinderpal Singh retained his seal with himself after its use. PW3 took the entire property along with sample seal chit through recovery memo Ex.P11. PW4 HC Puran Chand and independent witness Vinod Kumar also signed as witnesses. PW5-A also attested the same. On personal sear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the conscious possession of opium. 4. Shri Chandan Singh Rana, the learned Counsel appearing for the accused/appellant would submit that there was no provision under the scheme of the NDPS Act to second sample for examination. The first sample sent for chemical examination to Chemical Laboratory, Amritsar, did not contain opium. Inasmuch as the seals used for affixing on the samples as well as on the bulk contraband were not entrusted to an independent witness, there is every possibility for tampering with the bulk quantity of contraband retained in the police malkhana with a view to save the skin of the raiding police party. The stock witness Vinod Kumar who was cited as one of the prosecution witnesses for recovery of the material object was not even examined before the Court. It is his last submission that when two sets of evidence contrary to each other is available on record, the one which is favourable to the accused should be taken into consideration. 5. Ms. Manjari Nehru Kaul, the learned Additional Advocate General appearing for the State would submit that the second sample drawn from the bulk quantity of contraband was sent to the Central Forensic Science Laborato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that Vinod Kumar was a witness along with him in many criminal cases. 8. It is true that mere non-association of an independent witness in special facts and circumstances of a case would not discredit the case projected by the prosecution. But employing a stock witness to clamp an accused with a heinous crime cannot be approved by the Court of law. The aforesaid evidence of PW3 and PW5-A would go to show that he was in fact a stock witness as contended by the defence. Instead of associating a stock witness, the investigating agency could very well proceed with the investigating of the matter with its own officials, in case the independent witnesses refused to cooperate for the purpose of investigating heinous crimes. The very fact that Vinod Kumar, a stock witness was associated by the police party persuades us to deal with the evidence of prosecution with a lot of circumspection. 9. In the instant case, one of the samples originally drawn from the bulk quantity of the contraband was sent to the Chemical Laboratory, Amritsar. The said report was not projected by the prosecution during the course of trial but the said document which is found on file was marked as Ex.D1-A by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to all the procedure was sent intact to the Chemical Laboratory, Amritsar. The Chemical Examiner, Amritsar has returned a finding that there was no opium found in the sample sent for examination. Thereafter a fresh attempt has been made to establish the case as against the accused by sending another sample with the seal of approval of the Court to the Central Forensic Science Laboratory, Hyderabad. In the above special facts and circumstances, we find that there was every possibility for tampering with the bulk quantity of contraband retained in the police malkhana using the seal of PW3 ASI Gurdarshan Singh and PW5-A DSP Narinderpal Singh as the same were only with the police officials. 12. Let us now take up the fine question of law which has arisen for determination in this case. We are confronted with the question as to whether the second sample can be sent for chemical analysis on the basis of the request made by the investigating agency when the NDPS Act does not tacitly approve it. Neither the NDPS Act nor the rule framed thereunder visualize a situation where the second sample could be sent for analysis. 13. Let us now take up the relevant provisions of the Preventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticide Inspector or the Court expressing his desire to adduce evidence in contravention of the report. Unless the sample has already been analyzed in the Central Insecticide Laboratory, the Court may on its own motion, or in its discretion at the request either of the complainant or of the accused, send the sample of the insecticide for test by the Central Insecticide Laboratory. The report of the Analysis sent by the Director of Central Insecticide Laboratory shall be conclusive evidence of the facts stated therein. 16. Under the Scheme of the Insecticide Act, 1968, the report submitted by Insecticide Analyst shall become conclusive unless such a report is controverted and challenged by the accused. On the basis of the request made either by the complainant or by the accused, the Court has the discretion to send the second sample for analysis by the Central Insecticide Laboratory. If the Central Insecticide Laboratory had already analysed the sample, the question of sending the sample again to the said Laboratory would not arise. The report submitted by the Director Central Insecticide Laboratory becomes conclusive evidence. In the absence of any such provision under the NDPS A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial under the provisions of NDPS Act has no right to ask the Court to order retesting of the case property after drawing a sample from the remaining case property inasmuch as Section 293 of the Code has made the report of the forensic science experts admissible in evidence. The only right available to an accused is to rebut or demolish the said report by way of cross-examination of expert or in the alternative, produce another expert to counter the opinion given in the report or rely upon the authoritative text books to challenge the opinion given by the expert. The Division Bench judgment of the Punjab and Haryana High Court in case Joginder Kaur (supra) which was under the Opium Act squarely covers the issue as raised by the parties in this case inasmuch as the NDPS Act also does not confer any right upon an accused to send another representative sample of the contraband to the same or other public analyst for analysis and report. 7. It needs to be mentioned that Legislature wherever it intended to, confer such a right upon an accused, has specifically introduced provisions in respect thereof as in the case of Prevention of Food Adulteration Act and Drugs and Cosmetics Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution came out with an application to draw second sample for re-test on the ground that the report already submitted by the Central Forensic Science Laboratory was vague. The Delhi High Court, having found that there was no fresh material or evidence forthcoming to substantiate the plea for reinvestigating by way of fresh test of second sample after the challan was already laid, held that the prosecution cannot be allowed to improve its case after filing the challan. The above decision of the Delhi High Court would not apply to the facts of the instant case inasmuch as the second sample was sent for test even during the course of investigation before ever the challan was laid before the competent Court. Further in our considered opinion there may be certain circumstances under which second opinion could be sought by the prosecution even after the challan was laid. 19. The Hon'ble Single Judge of this Court in Jarmanjit Singh and another v. State of Punjab 2003 (2) R.C.R. (Cri.) 753 has held that the prosecution launched by the State as against the accused, based on the Central Laboratory Report obtained behind the back of the Court, ignoring the report already submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory as conclusive proof, making in roads into the domain of the Evidence Act. When the Special Act governing the narcotic offences does not speak about the relative probative value of the first result and the final result of the sample, the general law of evidence will have to be applied. 22. In the instant case it is the admitted position that the first sample was properly drawn, sealed and sent for examination. A vague allegation has been made in the application submitted by PW2 that such a negative report had come into existence on account of the connivance of the accused with the Chemical Examiner. Though the prosecution has every right to go in for second test, based on such prima facie allegation, in the absence of any specific provision to give priority only to the report submitted by the Central Forensic Science Laboratory, the prosecution is bound to completely demolish the first report which was submitted to their inconvenience before ever persuading the Court to accept the second report submitted by the Central Forensic Science Laboratory. 23. The allegations made in the application filed before the Special Judge for seeking the second sample for test was not car ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
