TMI Blog2011 (1) TMI 1401X X X X Extracts X X X X X X X X Extracts X X X X ..... s found containing charas wrapped in a sky blue colour polythene and six idols wrapped in another polythene bag. From the second boy whose name came to be known as Mohd. Maqbool, a black and orange colour bag was found. On checking the bag it was found containing smack wrapped in a polythene bag. The SHO was informed on the wireless, who reached the spot and on verification asked whether the accused wanted to be searched before a Gazetted Officer, so that the Gazetted Officer can be called. However, the two boys refused. Three or four passerby were requested to join the proceedings but none agreed. The charas recovered from Bilal Ahmed on weighing was found to be 5 Kg out of which two samples of 100 grams each were taken out and converted into separate pulanda and sealed with a seal of R.K. The FSL form was also filled up. Six idols were also separately converted into pulandas. The investigation of the two cases was handed over separately to two different officers and as against the Appellant, FIR No. 262/99 under Section 20 NDPS Act and Section 30 of Antiques Monuments Act was registered. On completion of the investigation, a charge sheet was filed. The Appellant was charged for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he arrest, the Appellant was tortured and thus, he was got medically examined on the directions of the Court. Learned counsel contends that the Appellant has been falsely implicated in the present case and prays that the appeal be allowed and the Appellant be acquitted of the charges framed against him. 5. Per contra learned APP for the State submits that the link evidence has been proved by the prosecution beyond reasonable doubt. Form FSL was filled on the spot and deposited with the Moharar Malkhana on 2 nd May, 1999 itself which is evident from the Ruqqa Ex. PW3/DA, FIR No. 262/1999 Ex. PW1/A, seizure Memo Ex.PW3/A and the Register No. 19 Ex.PW9/A. Moreover PW3, Inspector Jeevan Singh, PW5 HC Baljeet Singh, PW6 SI Banwari Lal, PW7 SI Rakesh Kumar, have also deposed about the filling up of the form FSL at the spot. The fact that the form FSL was sent to CFSL, Chandigarh is proved by the statement of PW9 and corroborated by the CFSL report Exhibit PX which states that seals were intact and tallied with the specimen seals impression . It is stated that without the form FSL which has the specimen seal impressions, the seals on the sample cannot be tallied, and thus, even if in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on Sunil Kumar vs. State, 1990 CrLJ 414, Appabhai and Anr. Vs. State of Gujrat, 1998 (supp.), SCC 24; P.P. Beeran vs. State of Kerala, 2001 (9) SCC 571; M. Prabhulal vs. The Assistant Director, DRI, 2003 (8) SCC 44; State of Harayana vs. Mai Ram, 2008 (8) SCC 292 and Jawahar vs. State, 2007 (IV) AD (Del.) 210, it is contended that the public is reluctant to join in such cases and in the absence of public witness, the police witness can be relied upon. 7. Relying on Sorabkhan Gandhkhan Pathan and Anr. Vs. State of Gujarat, 2004 (13) SCC 60 and Babubhai Odhariji Patel Ors. vs. State of Gujarat, 2005 (8) SCC 125, it is further contended that this was a case of chance recovery and Section 42 of the Act was not applicable. Moreover, the secret information was about terrorist activity and not about an offence under NDPS Act. Since the recovery was from the baggage and was also a chance recovery, Section 50 of the Act has no application. The non-production of road certificate is not fatal as the seals on the samples were found to be intact by the CFSL report. Reliance in this regard is placed on Mahatam Parshad vs. State of Delhi, 63 (1996) DLT 884. Sections 52, 55 and 57 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of his report. Thus it is not mandatory for the Court to examine the expert whose report is used as evidence in any inquiry, trial or other proceedings, nor is it obligatory for the Court to ask the accused if he wants to summon the expert. The order sheet of the trial court dated 17 th November, 2000, when the CFSL report was tendered by the learned APP and exhibited as Ex.PX, records the presence of the accused. While recording the statement of the learned APP the Court was not required to again note the presence of the Appellant. Moreover, this report was put to the Appellant in his statement recorded under Section 313 Cr.P.C. and in case any prejudice was caused to the Appellant by the non-examination of the expert and that it was tendered in his absence, the Appellant ought to have stated the same in reply to the said question. The reliance of the Appellant on Keshav Dutt(supra) is misconceived. In the said case, the Hon‟ble Supreme Court was dealing with the report of the handwriting expert which is not per se admissible under Section 293 Cr.P.C. Thus in the present case the Appellant having not objected to the CFSL report being exhibited as Ex. PX, no objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the prosecution version. The High Court came to an attempt and unsustainable conclusion that because Jamnalal was not examined possibility of the sample having been tampered with could not be ruled out . The conclusion is unsustainable in view of the FSL report which clearly stated that the seals were intact and matched with the specimen seals. 11. In Hardip Singh vs. State of Punjab 2008 (8) SCC 557 it was held: 16. So far as the question of delay in sending the samples of opium to the Forensic Science Laboratory (FSL) is concerned, the same in our opinion has no consequence for the fact that the recovery of the said sample from the possession of the appellant stands proved and established by cogent and reliable evidence led in the trial. PW 5 has categorically stated and asserted about the recovery of opium from the possession of the appellant, which fact is also corroborated by a higher officer, namely, SS Mann, DSP who was also examined at length during the trial. The said recovery was effected in the presence of the said SS Mann, DSP, as senior police officer, who also put his seal on the said parcels of opium. 17. The then Station House Officer, Inspector Baldev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he explanation, this objection is unsustainable as the relevant documents i.e. the report has not been put to the witness. In State of U.P. vs. Nahar Singh 1998 (3) SCC 561 it was held: 13. It may be noted here that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross- examination on the explanation of delay, the evidence PW-1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned: (1) to test his veracity. (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. 14. The oft quoted observation of Lord Herschell, L.C. in Browne v. Dunn, (1893) 6. The Reports 67 clearly elucidates the principle underlying those provisions. It reads thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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