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TMI Blog1994 (12) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... ,are that a secret informer on May 8, 1987, had given the information to the Special Staff of Morris Nagar area that a Sikh gentleman would be bringing contraband in a Jonga Jeep of gray colour on outer ring road for going to Mukherjee Nagar. A raiding party was organized by the Special Staff which comprised of Sub-Inspectors Data Ram, Jagram, Mohan Singh, Asstt. Sub-Inspectors Sujan Singh, Hari Singh, Head Constables Ramesh Kumar, Sarup Singh, Dalel Singh and Constables Nichhiter Singh, Dharamvir Singh, Karan Singh, Ranbir Singh and Brahm Pal Singh. The raiding party was headed by Inspector Raghubansh Singh Dhaiya. After joining a public witness Ashok Kumar the raiding party laid a picket at about 1.30 Pm near Pumping Station Najafgarh Lane in Mukherjee Marg. At about 2.30 Pm a Jonga Jeep was found coming which bore the registration No. DHD 5004 and was being driven by Amarjit Singh while Prem Prakash was sitting in the said Jeep and the said Jeep was apprehended and an offer was made to both the appellants that if they wanted the search of the jeep as well as of the persons of the appellants could be carried out in presence of a gazetted officer and on the appellants declining th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convincing evidence led on the record by the appellants to prove that as a matter of fact the case property did not remain intact in the Malkhana of the Police Station and rather on the following day May 9, 1987, the case property was opened and Along with the case property, the vehicle in question were allowed to be photographed by the press reporters which would show that the case property did not remain unhampered from the day it was seized and possibility of the same being changed cannot be overlooked completely in the present case. (5) The learned counsel for the State, however, has argued that Cfsl report by itself shows that the expert had received the Cfsl form and had compared the seals appearing on the samples with the specimen seals appearing on the Cfsl form and found them to be tallying and thus, there could be no occasion for the samples to have been tampered with from the day the samples were duly sealed till they were examined by the expert of the CFSL. She has also urged that mere fact that some case property has been photographed Along with a particular vehicle by the press reporter on May 9, 1987, would not show that what is appearing in the photographs is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Malkhana Register. In the entry proved from the said Register there is no mention that either the Cfsl form has been deposited or the same has been sent to Cfsl Along with samples. So, the case of Francis (supra) is distinguishable on facts. It was for the prosecution to prove that not only the case property was duly sealed with particular seals and was duly deposited in the Malkhana unhampered but it was also incumbent upon the prosecution to show that the samples which had been duly sealed remained intact till they reached the office of the CFSL. In proving these facts it was necessary for the prosecution to prove that the Cfsl form containing the specimen seals which WaS duly filled at the time of taking of the samples also remained intact and it reached the office of the Cfsl Along with the samples. Unfortunately for the prosecution, there is not an iota of evidence to show that the Cfsl form, which was allegedly filled in at the time of taking of the samples, was sent in the same condition to the office of the CFSL. We do not know as to where the said particular Cfsl form remained during all this period. (9) It is also significant to mention that although the seal use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction the Police Station Kingsway Camp came. (12) If we go through the report given in these newspapers, as given out by Smt. Kiran Bedi, it becomes evident that the story put forth by the prosecution with regard to the Jeep in question being apprehended while in possession of the appellants is not correct because what is mentioned in.. the newspaper reports based on the information given by Smt. Kiran Bedi is that Amarjit Singh-appellant was coming on a two- wheeler scooter who abandoned the scooter and then was apprehended whereas the prosecution case is that he was driving the said Jonga Jeep. It is true that normally the newspaper reports are not to be given any importance unless it is shown that they are based on some direct evidence, such reports are otherwise merely hearsay evidence. (13) However, the fact that Asi Hari Singh and Head Constable Dalel Singh were the members of the raiding party in question stands evident from the Fir of this case and Si Mohan Singh, the Investigating Officer of this case, who had effected the recovery from the appellants, admits in his cross-examination that photograph in question shows Asi Hari Singh at point X and Head Constable Dal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case property did not remain duly sealed as alleged by the prosecution from May 8, 1987, onwards. (16) It appears that not only Asi Hari Singh and Head Constable Dalel Singh but also Smt. Kiran Bedi were out to enjoy the publicity in the press with regard to the present case. There has appeared no contradiction about the contents of the Press Conference appearing in the said two papers as given by Smt. Kiran Bedi at any point of time that the contents of the said newspapers are wrong. It would be better if while investigation in serious cases is in progress, the higher officers do not to go for publicity in press unless they ensure that correct facts appear in the newspapers based on the information given by said higher officers. Sometime publicity hungry officers do spoil the case for the prosecution when the same undergoes a trial as it had happened in the present case. In order to derive cheap popularity through such publicity in the newspapers in getting themselves photographed with the case property, the prosecution case has been thrown overboard by such ill-advised acts of the police officials. (17) Report of the Cfsl expert Ex. PA has been tendered in evidence in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him as a witness. Various Single Bench decisions have been brought to our notice which have taken this view such as Heera Lal Vs. State (Delhi), 1994 (2) C.C.C 300, Nizamuddin Vs. The State, 1994 4 AD 50, Attar Singh Vs. State (Delhi Admn.), 1994 3 AD 626, and Islam Vs. The State (Delhi Admin.), 1994 3 AD 1495; 56(1994)DLT49 . It is true as held in these judgments that only the reports of the experts mentioned in Section 293 of the Code could be tendered in evidence without the experts being examined in court to prove such reports. However, if the report is of any other expert, it is evident that unless that expert appears in the witness box and proves his report, the same should not be allowed to be taken in evidence. (19) Under Section 45 of the Indian Evidence Act, an opinion of an expert on science or art etc. is relevant piece of evidence. Sh.Bansal although not falling in categories of the officers enumerated in Section 293 of the Code yet he is an expert in science being Senior Scientist in Chemistry and thus, his opinion would be relevant piece of evidence in view of Section 45 of the Indian Evidence Act. It is to be emphasized here that this report Ex.PA was allowed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial. This ratio laid down by the Supreme Court is in consonance with the ratio laid earlier in P.C.Purushothama Reddiar Vs. S.Perumal, [1972]2SCR646 , Bhagat Ram Vs. Khetu Ram Another, Air 1929 Pc 110,and K.Latchayya Subudhi Vs. V.Seetammayya Others, Air 1925 Mad 257. The Calcutta High Court, the Madras High Court and Orissa High Court have also taken similar view in the cases of Goswami Malti Vahuji Maharaj Vs. Purushottam Lal Poddar, AIR1984Cal297 , A.V.S.Perumal Vs. Vadivelu Asari, AIR1986Mad341 , and Sailendra Kishore Patnaik Vs. Harekrushna Satpathy Others, AIR1978Ori125 . These judgments were not brought to the notice of the court in the case of Attar Singh(supra). The learned counsel for the appellants, however, sought some support from some observation made in para 13 in the case of Chaman Lal Vs. State of Punjab, 1970CriLJ1266 , and urged that such an objection regarding mode of proof can be raised at any stage: THE appellant cannot rely on Exhibit D.B. dated 27th August, 1962 to establish good faith in writing the letter dated 1st August, 1962. Furthermore, Exhibit D.B. which is alleged to have been written' by the residents of Sunajpur was not proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the Ndps Act would not be attracted and the question of complying with the requirements there under would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Ndps Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the Ndps Act. It is also laid down by the Supreme Court in para 27(5) as follows: ON prior information, the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided there under. It is obligatory on the part of such officer to inform the person to be searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions of important facts, affecting the probabilities of the case, are relevant under Section Ii of the Evidence Act in judging the veracity of the prosecution case. So, we hold that the Additional Sessions Judge was not right in holding that in the present case the prosecution has been able to prove that mandatory provisions of Section 50 of the Act have been complied with. (29) The learned counsel for the State has, however, argued that as the recovery of the contraband has been effected from the vehicle there was no necessity of the police officials to have complied with the provisions of Section 50 of the Act as the said provisions only contemplated of giving an offer to the accused for being searched before a gazetted officer or a Magistrate if his personal search was to be effected. She has argued that in the present case, no personal search of the appellants was to be carried out for making any recovery of the contraband and thus, there was no violation of mandatory provisions of Section 50 of the Act. The provisions of Section 50 of the Act have been introduced by the Parliament keeping in view the heavy penalties and imprisonments provided in the statute for the offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is prior information with the authorities with regard to possibility of a suspect being in possession of contraband drugs. (32) The learned counsel for the State has drawn our attention to power of seizure, search pertaining to contraband concealed in any building, conveyance or enclosed place, contained in Section 42 of the Act and has contended that personal search contemplated in Section 50 of the Act would not be similar as the search being carried out of a building, conveyance or enclosed place. We fail to understand as to how Section 50 becomes inapplicable keeping in view the provisions of Section 42 of the Act. (33) We are of the view that if a particular suspect or accused is physically present in a conveyance or in a house at the time of the search, in our view, the compliance of mandatory provisions of Section 50 of the Act must be made because the purpose of introducing Section 50 is to ensure that fair investigation is being carried out and recovery being effected remains without any suspicion or doubt. Obviously, if accused in such a situation wants presence of a gazetted officer or a Magistrate before being searched and such a search is carried out in pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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