TMI Blog2010 (5) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... raid was conducted, he could be apprehended red handed and opium in heavy quantity could be recovered. On receiving the said information, the police party went towards the house of the appellant and on the way one Gurmej Singh, resident of Gurnam Nagar, Sultanwind Road, Amritsar was joined and a raid was conducted. The raiding party found that a person holding a black colour bag in his left hand was standing on the gate of the house. On seeing the police party, he tried to run towards his left side, but was apprehended. Upon enquiry, he disclosed his name as Didar Singh. The police official told him that he was suspected of having opium in his possession and his search was to be conducted. He was given option whether he wanted the search to be conducted from a Gazetted Officer or a Magistrate. He told the police officials that he wanted to get his search conducted from a Gazetted Officer. Thereupon, SI Vishwa Mitter (PW1) gave intimation to Shri Ranvir Singh, DSP on his mobile phone upon which the DSP reached the spot within seven minutes . He disclosed his identity to appellant Didar Singh and told him that he was a Gazetted Officer and he was being suspected of having opium, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 'MS' along with relevant documents, in intact condition after taking out from double lock for depositing the same in the office of Chemical Examiner, Chandigarh. He had deposited the said sample in the office of Chemical Examiner, Chandigarh and handed over the receipt thereof to SHO, Police Station, Sultanwind. He further deposed that so long as the parcel opium remained in his custody, neither he tampered with nor allowed any one to tamper the same. PW3-DSP Ranvir Singh stated that on 7.2.2004, in his presence and under his supervision, 10 Kgs. opium was recovered from the possession of the accused. He further stated that two samples of 100 grams each were drawn from the recovered opium and separate parcel of the sample and the residue was prepared and seals were also prepared bearing impressions 'RS' and that of Seizure Officer 'VM'. The seal after use was handed over to ASI Gurcharan Singh. PW4 is S.I. Mandip Singh, who was the then SHO of Police Station, Sultanwind. He stated that on 7.2.2004 SI Vishwa Mitter produced the accused along with three parcels sealed with the seal bearing impression 'VM' and 'RS'. After verifying the facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has failed to prove its case beyond reasonable doubt. In order to substantiate his arguments, learned Counsel referred to various contradictions, illegalities and infirmities in the statements of the prosecution witnesses and other documentary evidence. Learned Counsel argued that PW1- SI Vishwa Mitter in his cross-examination had stated that Form No. 29 (CFSL Form) was filled up by SHO Mandip Singh (PW4) in the Police Station. However, seals 'VM' and 'RS' were affixed on the said Form at the spot. Those seals were also prepared at the spot. Only seals were affixed at the spot and the entire other writing work on Form No. 29 was done in the Police Station by the SHO. The writing on the CFSL Form was not in his hand. It was in the hand of SHO. On the other hand, SHO Mandip Singh while appearing in the Court had stated that Form No. 29 was filled up by SI Vishwa Mitter (PW1) at the spot and when the same was produced before him, it was duly filled up at that time. He stated that he did not know in whose writing the said Form was filled up. He further stated that on receipt of the said Form along with case property he put the same in the double lock with the case pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a false case was planted on the accused, and every document was prepared in Police Station. According to the learned Counsel, Form No. 29 was forged on which the papers having three seals were pasted. 13. Learned Counsel further argued that it has been admitted by PW1- SI Vishwa Mitter and PW3-DSP Ranvir Singh that the seal after use was handed over to ASI Gurcharan Singh. In order to prove that the samples were not tampered and subsequently the said seal was not misused by any one, the prosecution did not examine ASI Gurcharan Singh in order to prove that he did not give that seal to any one. 14. Learned Counsel further argued that though one Gurmail Singh, was associated as an independent witness at the time of conducting the raid and the alleged recovery of opium from the possession of the appellant, but the said witness has not been examined by the prosecution without any reason or justification. PW1- SI Vishwa Mitter in his cross examination has stated that after effecting the recovery in the present case, he did not meet Gurmail Singh till his deposition in the Court. Learned Counsel further argued that all the memos, which were prepared at the spot, i.e. Ex.PA, Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recovered from the conscious possession of the appellant when the search was duly conducted by SI Vishwa Mitter (PW1) in presence of DSP Ranvir Singh (PW3). Learned Counsel contended that the delay in sending the sample is not fatal until and unless it is proved that due to delay some serious prejudice has been caused to the accused. In this regard, learned Counsel referred to the Division Bench decision of this Court in Baggar Singh @ Gaggi v. State of Haryana 2009 (4) RCR (Crl.) 183 and a decision of the Supreme Court in State of Orissa v. Kanduri Sahoo 2004 (1) RCR (Crl.) 196. In Baggar Singh's case (supra), where 18 days delay had occurred in sending the sample of contraband to CFSL for analysis, was held to be not fatal. Similarly, in Khanduri Sahoo's case (supra), it was held by the Supreme Court that 4 days delay in sending the sample is no ground to quash the prosecution case when the articles were in proper and safe custody. 18. Learned Counsel further argued that non-examination of the independent witness and handing over the seal to him, do not consider to be fatal in the NDPS case in view of the Full Bench decision of this Court in Piara Singh v. The State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt that the investigation conducted in the case is absolutely flawless specifically with regard to the link evidence which is of most significant aspect. It is incumbent upon the prosecution to prove that from the stage of effecting the recovery till the sample reach the Chemical Examiner, there was no chance of tampering with it. Once the presumption is stumbling, on this vital aspect the benefit is to be extended to the accused. 22. In the present case, Form No. 29 was neither prepared at the spot nor it was deposited with the Incharge of the Malkhana. Even the sample seal was handed over to the police official, who was part of the investigating team, and the same was also not deposited in the Malkhana or kept in the independent hand. In this regard, there are major contradictions in the statements of PW1-SI Vishwa Mitter, PW3-DSP Ranvir Singh and PW4-SHO Mandip Singh. These major contradictions in their statements create serious doubt in the prosecution version about recovery of the alleged opium from the possession of the accused. According to PW1- SI Vishwa Mitter, Form No. 29 was not filled up by him at the spot. It was filled up by SHO Mandip Singh (PW4) in the Police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29, whereas the seals were subsequently pasted on three seal impressions. Therefore, the prosecution has failed to proved beyond a reasonable doubt that the sample of the contraband, which was examined by the Forensic Science Laboratory, was the same which was alleged to have been recovered from the appellant at the time of the alleged recovery. 23. Learned Counsel for the State, while referring to the decision of the Supreme Court in Khet Singh v. Union of India MANU/SC/0205/2002MANU/SC/0205/2002 : (2002) 4 SCC 380 argued that there is no statutory requirement for preparing the Seizure mahazar or CFSL Form No. 29 at the spot. Even if some Standing Instructions require the preparation of this document at the spot, the same does not have any statutory force, and if there is any violation for such Instructions or Guidelines, that itself does not make the prosecution case doubtful. She argued that such a document could have been prepared at a later stage while recording the reasons. Learned Counsel also referred to some observations made by the Supreme Court in State by CBI v. Dilbagh MANU/SC/1255/2003MANU/SC/1255/2003 : (2004) 13 SCC 99 where it was observed that merely because t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at CFSL Form No. 29 should be prepared by the Investigating Officer at the spot and be deposited in the Malkhana along with sealed contrabands. It has been further held that after sealing the sample parcel of the contraband as well as remaining contraband, the seal should be handed over to the independent person so that till the case property had been deposited to the Forensic Science Laboratory, the same should not be available to the prosecuting agency. This is necessary to safeguard the possibility of the sealed contraband and the sample being tampered with by the police official. It was further held that CFSL Form should not only be prepared and sealed by the officer making seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO, to whom the sample and the case property is handed over and deposited in the Malkhana along with the sample parcel. It should accompany the sample to Chemical Examiner. In another case, titled as Gurcharan Singh v. State of Punjab 2005 (4) RCR (Crl.) 681 the accused was acquitted on the grounds that the seal affixed on seized opium was given to the Head Constable and not an independent witness. The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aling with similar situation has observed that two inferences could be drawn from such situation, i.e., either the FIR was registered prior to the alleged recovery of the contraband or number of FIR was inserted in the document after its registration. But in both situations, it seriously reflects upon the integrity of the prosecution version. While relying upon several other decisions, it was held that such serious lapses in the prosecution case create a doubt to the prosecution theory. 30. However, we do not find any force in two contentions raised by the learned Counsel for the appellant, firstly, that there was delay in sending the sample; and secondly that the safeguard provided under Section 42 of the Act has not been followed by the Seizing Officer. 31. As far as delay is concerned, it has been held by the Division Bench of this Court in Baggar Singh @ Gaggi's case (supra) and the Supreme Court in State of Orissa v. Kandhuri Sahoo's case (supra) that the delay in sending the sample of contraband to CFSL for analysis is not fatal and on this ground the prosecution case cannot be brushed aside. So far as the second contention of the learned Counsel for the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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