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TMI Blog2017 (12) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... near Hanuman temple. He disclosed his name to be Shaukat Ali and told that because he was possessing 350 grams of heroin, he wanted to avoid arrest but was caught. On his such disclosure he was apprised about his legal right to be searched in presence of a Gazetted Officer or a Magistrate, but he expressed that he had already told them that he possessed heroin hence, they could take his search and that he had full faith in them. The written consent (Exhibit Ka 1) was obtained from him for being searched by the police party. Thereafter the accused was searched and from a bag being carried by him in his right-hand heroin was recovered. He stated that he was to go to Mau to sell the said contraband by train. The recovered heroin was weighed and was found to be 350 grams, but he could not show any license to possess the same. He was told that he had committed an offence under section 8/21 NDPS Act and had to be arrested and was taken into custody at 6 AM. The recovered contraband was sealed on the spot and sample of seal was also prepared. Many people were passing by but none of them came forward to be a witness of this recovery to avoid incurring enmity. The recovery memo (Exhibit Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the accused appellant is stated to have been made at 6.00 A.M while the witnesses are shown to be present at 5:40 A.M hence there is no explanation of the difference of 20 minutes period; the seized contraband remained in police custody from 10.4.2011 to 19.4.2011, during this period there was enough scope of the said Contraband being tampered; no independent witness of recovery has been examined by the prosecution; it is the prosecution's case that the recovered seized Contraband was got received at police station at 7.30 a.m. but the register of Malkhana was not produced in evidence to prove that the said material was got deposited in Malkhana by that time; the FSL report is alleged to have been dispatched on 25.5. 2011 while the same was sent to the Lab on 19.4.2011, it is not explained as to why 8 days delay took place when FSL was located in Varanasi itself. The charge sheet has been submitted in this case on 19.4.2011 while the FSL report was received on 25.5.2011 which indicates predisposed mind of Investigating Officer because it was not possible for him to know as to whether the FSL would come to the conclusion that the alleged recovered contraband would be found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts pertaining to site plan, the evidence on record needs to be looked into. In cross examination PW 1 has stated that he had seen the accused in front of ATM located near Maduwadih Railway Station who was coming from the side of Kukurmutta. There may have been a distance of 60 steps between him and accused at that time when he had seen him first. The accused was on the other side of Maduwadih station towards Kukarmutta about 65 steps away from him and he was coming from the south to north. When they had suspicion about him he was arrested after he had run about 115 steps. He had caught hold of him first and with him two other Constables also simultaneously reached there. PW 2 has stated in cross examination in this regard that while doing patrolling about 6.00 A.M in the morning, coming from the side of Mahmoorganj towards Kukurmutta when he reached near SBI ATM located near Maduwadih station the accused coming from the side of kukurmutta stopped and tried to run in reverse direction; he was caught near Hanuman temple. Thus after having gone through the statements recorded above of these two eyewitnesses of recovery and arrest of the accused, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and after accused having given in writing that he would not like to be searched in presence of any such officer, rather had full faith in the Patrolling Party to be searched by them, his search was made and 350 grams of heroine was recovered from the bag being held by him, for possessing which, he had no licence. The said Contraband was weighed also on the spot by sending Constable Kanhaiya Rai to bring weighing machine and thereafter it was found to be 350 grams. Pursuant to that he was arrested at 6.00 A.M and after the said recovered item having been sealed on the spot and the sample of seal having been prepared, he was taken to the police station where the case was registered under the aforesaid sections. 14. PW 1 has supported the said version as given in the recovery memo and in cross-examination he has stated that the recovered contraband was sealed on the spot in the same bag which was recovered, which was to be sent to the Forensic Science Lab for being tested. The said recovered material was presented in his presence before Court, on the cloth of which 881 case was endorsed along with name of the accused with parentage and his own signature was also identifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered material to FSL. The learned Amicus Curiae has relied upon State of Rajasthan vs Gurmail Singh, 2005 (3) SCC 59, in which the seals of the seized articles were found to be disputed and the Malkhana register was also not produced, hence the acquittal order was passed. He has also relied upon Prem Singh vs State of U.P., 1996 Cr LJ 3604, in which the Delhi High Court held that the defense was successful in creating dent in the case of prosecution because on the basis of evidence it could not be ruled out that the sample could not be tampered or the case property were the same. It was found that likelihood of sample being tampered, so long as it remained in the custody of Ashok Kumar, could not also be ruled out and consequently acquittal order was passed. But in both these rulings, the facts were entirely different from the facts of the present case. 15. Next important point raised by learned counsel for the appellant is with regard to submission of charge sheet prior to the receipt of FSL report. The contention of the learned counsel for the appellant is that it shows that the Investigating Officer in the present case had already pre-decided in mind to hold the accused gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigating officer, when he submitted his report in terms of sub-section (2) of S. 173 of the Code to the Magistrate, still awaited the reports of the experts or by some chance, either inadvertently or by design, he failed to append to the police report such documents or the statements under S. 161 of the Code, although these were available with him when he submitted the police report to the Magistrate." 18. In the above case, the Punjab and Haryana High Court has taken an assistance of the position of law laid down by Hon'ble Supreme Court in Tara Singh Vs. Sate, AIR 1951 SCC (441), in which in paragraph 13 of the judgment, the following is held:- "12. I need not express any opinion about this because, in my opinion, the challan which the police referred to as an incomplete challan, namely, the one of 2nd October, 1949, was in fact a complete report within the meaning of section 193(1) (b), criminal procedure code, read with section 173(1)." 13. When the police drew up their challan on 2nd October, 1949 and submitted it to the Court on 3rd October, 1949, they had in fact completed their investigation except for the report of the imperial serologist and the drawing of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is concerned, that is over the moment he collects the material exhibits and the dispatches the same for the information of CFSL and this position remains un-altered even though he relies upon CFSL report in his report. In this view of the matter, it will not be correct to say that the police report which did not include the CFSL report would not be the complete police report as envisaged in sub-section (2) of Section 173 of the Code which is prepared and forwarded to the Magistrate only after the conclusion of the investigation." 21. Based on above position of law, in the case at hand it may be mentioned that charge sheet submitted by police under Section 173 Cr.P.C. shall be considered to be not incomplete report merely because it did not contain the Forensic Science Laboratory's report in respect of contraband recovered from the accused, because it had not been received by the time the charge-sheet was submitted. It may further be mentioned that no prejudice is caused to the accused by delayed submission of FSL's report which contains the finding that the sample sent for testing was found to be heroin. There is no denying the fact that if the said sample was not foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent that in the case it hand from perusal of the statement of witnesses, it is clear that no question has been asked in cross-examination by the learned counsel for the accused/appellant regarding non-compliance of the provisions under Section 57 of the NDPS Act. It is apparent from the above cited position of law that this provision is not mandatory rather it is directory. Hence, trial will not vitiate unless it is shown that its non-compliance has caused any prejudice to the accused. From the statement of PW 5 it is apparent that the Circle Officer, Bhelupur was approached on 19/4/2011, who is a Gazetted Officer, immediate senior to the police party which arrested the accused, regarding attestation of the signatures of PW 5 for carrying the recovered contraband from the accused to Forensic Science Lab for being tested, which would amount to an information given by the police to their higher authority, though belatedly. Therefore, it may be safely stated that there was belated compliance of section 57 NDPS Act as well. 25. As regards the objection that no public witnesses were taken by the police party while making search of the accused, it has come on record that there had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of such witnesses need to be evaluated very cautiously. 27. A perusal of the judgment would show that the prosecution has been able to prove on the basis of evidence on record of two eye-witnesses i.e. PW 1 and PW 3 that the accused was arrested on 10/4/2011 at 6.00 AM in front of Maduwadih station near SBI ATM just before Hanuman temple because of his suspicious conduct and when he disclosed that he had illegal heroin, the police party apprised him that he had a right to be searched before Magistrate/Gazetted Officer if he so wanted, in compliance with section 50 of NDPS Act, but he declined and gave a written consent to be searched by the police party itself. Thereafter illegal heroin weighing 350 grams was recovered from the bag carried by him, for which he was not having any license to possess. The recovered contraband (heroin) was sealed on the spot and a sample of seal was also prepared. Recovery memo was also prepared on the spot. Whereafter PW 2 registered F.I.R. against him under section 8/21 of NDPS Act at PS Maduwadih the same day i.e. on 10/4/2011 at 7:30 AM as Case Crime No. 93 of 2011, when the accused along with the recovered contraband in sealed condition was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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