TMI Blog2017 (12) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... red contraband in sealed condition was brought to the police station by the police party. PW 5 had taken 2 dockets of the recovered contraband and sample seal on 19/4/2011 to Circle Officer's office and on the copies of both these dockets the Circle Officer obtained his 3 signatures each and verified/attested them. Thereafter 2 copies of dockets of contraband and sample of seal were taken by him to Forensic Science Lab, Ram Nagar, Varanasi and the same were handed over to them. The Forensic Science Lab sent its report dated 4/5/2011, admissible under section 293 Cr. P.C. which states that a bundle wrapped in cloth bearing sample seal was received by them on 19/4/2011 which contained suspected heroin weighing 347.20 grams in a polythene bag (difference in weight may have been due to weighing machine), which after being tested was found to be heroin. The Investigating Officer (PW 4) has drawn the site plan at the instance of first informant who submitted charge-sheet against accused after taking the entire evidence on record into consideration. No material contradictions are found in the statements of witnesses. Therefore no substance is found in appeal. - Jail Appeal No. 4103 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e No. 93 of 2011 under section 8/21 of NDPS Act was registered on 10/4/2011 at 6 a.m. by constable Virendra Kumar Sharma (PW 2) at police station Manduwadih, Chick F.I.R. of which is Exhibit Ka 3. He also made entry of institution of case in GD at report No. 19, time 7:30 PM on 10/4/2011. The investigation was handed over to Sub Inspector, Shri Pankaj Pandey (PW 4) who prepared the site plan (Exhibit Ka 5) at the instance of the first informant. Constable Ajay Kant Rai (PW 5) took the recovered contraband (material Exhibit - 1) and the sample seal to PS Manduwadih and deposited the same there, from where the same was sent to the Forensic Science Lab for being tested. 4. The report of FSL is paper No. 16/ C2 ( not exhibited), however under section 293 of the Cr.P.C., FSL report is admissible in evidence, the same being report of an expert. The Investigating Officer ( PW 4) after recording statement of all the witnesses and taking into consideration the documentary evidence on record found the case proved against the accused appellant and submitted charge sheet (Exhibit Ka 6) against the accused. 5. From the side of prosecution as many as 5 witnesses have been examined, they be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the provisions of section 293 of the Cr.P.C., an expert's report only is admissible in evidence; the process of sampling has also not been disclosed. The procedure as laid down under section 57 of the NDPS Act has not been complied with because within 48 hours of arrest of the accused the entire report was required to be sent by the arresting Police Party to their superior authority. 9. In rebuttal, the learned AGA has denied that there is any major material contradiction in statement of witnesses and that whatever contradictions have emerged are natural looking to the time lapse between the date of occurrence and the recording of the statements. Further it is argued that no cross examination on such contradiction has been made by the defense, hence no benefit may be given to the accused appellant for minor contradictions. The Constable Kanhaiya Lal who had brought the weighing machine was not considered to be a material witness by prosecution, hence he was not examined. The time gap between the Police Party reaching the spot and the arrest of the accused is hardly 20 minutes which is of no significance; The FSL had found the recovered Contraband in sealed condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e light of statements of these two witnesses the site plan is absolutely proved and the place of arrest would be treated to have been proved by the prosecution, hence any objection in this regard made by the learned counsel for the appellant does not hold water. 11. As regards the site plan, Kanhaiya Lal not being examined who had brought the weighing machine for measuring the quantity of the contraband recovered from the accused, the Court is of the view that whatever witnesses were found sufficient by the prosecution to prove their case were examined by them. He being not a material witness was left unexamined but that would not prejudice the case of prosecution. 12. As regards time gap of 20 minutes between police reaching the spot and arresting the accused, PW 1 has stated that the Police Party had reached the spot at 5:40 A.M and within 2 to 3 minutes they had reached near ATM located near Maduadih station. Nothing has been asked in cross examination from him as to how the arrest could be made at 6.00 A.M while they reached at 5:40 A.M on the spot. It is quite natural that when the Police Party reached the spot at 5:40A.M. and saw the accused in suspicious conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which were found thereon were of Forensic Science Lab. He identified his signature on the cloth in which the material was sealed and was marked as Exhibit 1. After opening the sealed packet, one big shining bag bearing endorsement 881 case emerged out of it, seeing which the witness stated that it was the same bag which was recovered from the accused and was marked Exhibit 2. In cross-examination it was stated by this witness that when accused told him that the said recovered material was heroin in polythene, a little part of it was opened to see therein and thereafter the same was sent for chemical examination to the Forensic Science Lab. Its weight was found to be 350 grams, but the said weight could not be written by him in the recovery memo. What was the weight of the contraband which were received by the Forensic Science Lab, he could not tell, because he omitted to mention the same in recovery memo by mistake. No question has been asked regarding this fact from the other eye witness (PW 3) of recovery. From the above facts it is apparent that the recovered contraband was sealed on the spot and the same was taken to the Forensic Science Lab in sealed condition, from where repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Punjab and Haryana Vs. Mahal Singh and another (AIR 1978 P H 341), this point came up for consideration. It was issue before this Court as to whether investigation of an offence would be considered complete in terms of Section 173 Sub-clause (2) of Cr.P.C., although police officer investigating the case had not received report of such experts as Chemical Examiner, Serologist, Ballistic Expert or Finger Print Expert etc., whose reports were made admissible in law under Section 293 of Cr.P.C., without these being proved by the said experts in witness box and whether a charge sheet excluding aforesaid documents, when submitted to a Magistrate would qualify to be termed a police report in terms of Section 190(1)(b) of Cr.P.C., and enable the Magistrate to take cognizance of offence disclosed therein. 17. The answer to the said issue has been given in paragraphs 16 and 20 of the judgment as follows:- In paragraph 16 and 20, the court has held as below:- 16. In view of the above conclusion the accused would be on still a weaker ground in canvassing that the report, which did not include the report of the experts, such as Chemical Analyst, Serologist, Ballistic Except, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 5th October 1949 would not necessarily vitiate the first. All that Section 173 (1)(a) requires is that as soon as the police investigation under Chapter XIV of the Code is complete, there should be forwarded to the Magistrate, a report in the prescribed form, setting forth names of the parties, the nature of information and the names of the persons who appear to be acquainted with the circumstances of the case . All that appears to have been done in the report of 2nd October, 1949, which the police called their incomplete challan. The witnesses named in the second Challan of the 5th October, 1949 were not witnesses, who were acquainted with circumstances of the case. They were merely formal witnesses on other matters. So also in this supplementary Challan of the 19th. The witnesses named are the first class Magistrate, Amritsar, who recorded dying declaration and the Assistant Civil Surgeon. They are not witnesses who were acquainted with the circumstances of the case . Accordingly, the challan which the police called an incomplete Challan was, in fact a complete report of the kind which Section 173(1)(a) of the Code contemplates. There is no force in this argument and we ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complied with, it would be pertinent to reproduce Section 57 so as to know what does it command. The Section 57 of the Act reads as follows:- Section 57- Report of Arrest and Seizure- whenever any person makes any arrest of seizure under this Act within 48 hours next, after such arrest or seizure may make full report of all the particulars of such arrest or seizure to his immediate official superior. 23. The above Section has been interpreted in Union of India Vs. Satrohan (2008) 8 SCC 313 by Hon'ble Supreme Court and the following is held:- 5. It is pointed out that section 50 is not applicable to the case. Additionally, under section 57 secret information has to be sent and the particulars of seizure and arrest have to be sent. The records, if asked for could have been produced. In the instant case there is no evidence led and not even any question was asked about absence of records. In the alternative, the inspector was a Gazetted Officer and, therefore, even if it is conceded for the sake of argument that there is any incorrect reference, the acts are covered under section 41 and not under section 42. 12. So far as the fulfillment of the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wwar Ansari Vs. Union of India 1997, (AIR 35, ACC 675), wherein this Court has held as follows in paragraph 32 of the judgment:- 32. In these days, totally unconcerned people do not dare to appear against criminals as they have a lot of financial as well as political patronage available to them. Such smugglers are invariably armed and then can take revenge against such public persons without hesitation. That is why, finally, the public witnesses avoid to support the prosecution case. If at all they agree at the time of raid, search etc., they try to resile from the same in trial Court as is evident from the statement of Sri K.D. Sharma, PW 2. The departmental witnesses cannot be seen with an eye of suspicion specially, when they have no anterior enmity with the accused and they are doing their official duties. If such a cynical view is taken every person shall become interested and the departmental witnesses will have to be thrown away without any rhyme or reason. This is not law of the land. The law is that the departmental witnesses per se are no got up witnesses and their evidence cannot be discarded simply because they are people of the department. Doing ones official duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's office and on the copies of both these dockets the Circle Officer obtained his 3 signatures each and verified/attested them. Thereafter 2 copies of dockets of contraband and sample of seal were taken by him to Forensic Science Lab, Ram Nagar, Varanasi and the same were handed over to them. The Forensic Science Lab sent its report dated 4/5/2011, admissible under section 293 Cr. P.C. which states that a bundle wrapped in cloth bearing sample seal was received by them on 19/4/2011 which contained suspected heroin weighing 347.20 grams in a polythene bag (difference in weight may have been due to weighing machine), which after being tested was found to be heroin. The Investigating Officer (PW 4) has drawn the site plan at the instance of first informant who submitted charge-sheet against accused after taking the entire evidence on record into consideration. No material contradictions are found in the statements of witnesses. Therefore no substance is found in appeal. 28. No infirmity has been found in the judgment of court below. This appeal deserves to be dismissed, and is accordingly, dismissed. 39. Before parting this Court would like to place on record the appreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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