GULAM MOHD. Vs. STATE

JUDGEMENT

(1.) On secret informa­tion being received by Sub- Inspector Om Prakash that a person who is in possession of Charas would be coming from the Rail­way Station side towards Chandni Chowk, SI Shri Om Prakash organised a raiding party consisting of Constable Kaushal Singh and Man Mohan. They were on patrolling duty in the area near Jubilee Cinema alongwith ASI Sharan Chand on 17th Sep­tember, 1988. Mr. Suresh Kumar an inde­pendent person was also made member of the raiding party. Nakabandi was made near Jubilee Cinema. On the pointing of in­former, the appellam was stopped. He was asked whether he would like to be searched before the Gazetted Officer or a Magistrate. Notice under Section 50 of the Act was served on him, but he declined to get sear­ched before either. Thereafter the for­malities were completed namely sending of Rukka, weighing the smack and then con­verting it into the Pulandar. separating the smack for the purpose of sample and sealing the same. CFSL form was filled up and fascimel of the seal was affixed on it. The property alongwith sample were deposited with Moharrar Malkhana. Thereafter sample was taken by Constable Dalbir Singh to the office of CFSL. On the report being received the challan was. filed.

(2.) SIX witnesses were examined by the prosecution. After analysing their tes­timonies, the learned trial Court by the im­pugned order dated 8th April, 1994 con­victed and sentenced the appellant to un­dergo rigorous imprisonment for ten years with fine of Rs. 1 lakh in default of payment to undergo further simple imprisonment for two years.

(3.) IN order to appreciate his contention it was confronted to the Counsel for the State to indicate why the independent wit­ness Suresh Kumar was not examined there­by depriving- the valuable right of the appel­lant Mr. H.J.S. Ahluwalia appearing for the State contended that in para 36 of the judg­ment of trial Court has given the explana­tion for not examining the independent wit­ness. Unfortunately, the reasoning given by the learned Additional Sessions Judge in para 36 of the judgment is not borne out from the record. Suresh Kumar, as per record of the trial Court, attended the Court but his testimony was not recorded on that date. Subsequently, for the reasons best known and which have not come on the record, Investigating Officer closed the prosecution evidence on 18th March, 1994 without examining this independent wit­ness. The observations of the learned Addi­tional Sessions Judge are contrary to the record and hence cannot be sustained. There is no material on record to prove that this witness Suresh Kumar was not trace­able rather notices issued by the Court were served upon him and he did appear in the Court but his testimony was not recorded. On the notice issued under Section 250 Cr. P.C. the service was still awaited when the Investigating Officer closed the evidence of this witness without any reason. Therefore, this part of the observation of the learned trial Court appears to be figmentation of his own imagination and cannot be sustained.