PREM SINGH Vs. STATE

JUDGEMENT

(1.) Prem Singh, petitioner herein was apprehended on 6th March, 1990 by the Investigating Officer, S.I. Durga Prasad of Police Station Town Hall. Prosecution case is based on secret information received by SJ. Durga Prasad informing therein that a person sitting near Hardayal Municipal Chambery possessed smack. On receipt of this information, S.I. Durga Prasad arranged a raiding party consisting of Constables Ramesh Kumar and Raj Kumar and one Santosh Kumar a public independent witness. The secret informer pointed towards the appellant to be that person. Pursuance to which appellant was apprehended. Before searching him option was given to be searched either before Gazetted Officer or the Magistrate, but appellant declined. Notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act (in short the Act) was served. S.H.O. in the meantime also came at the spot. It is the case of the prosecution that from the right side pocket of appellant's pant a match box 'Homelight' containing smack wrapped in a paper was recovered. On being weighed it turned out to be 4 gms. One gram was taken out as sample. The remaining was converted into pullandas and duly sealed. Thus, the case property and the sample were sealed with the seal of DPJ& HLM. CFSL form was also filled. The seals after use were handed over to the public witness. Thereafter Pullanda, CFSL form and the sample were deposited with the Moharar Malkhana. Sample was sent to the office of the CFSL for analysis. On receipt of expert report Ex.Public Witness 7/C the challan was filed. Prosecution examined as many as seven witnesses. After considering the facts which came on record the learned Trial Court convicted the appellant and sentenced him to undergo rigorous imprisonment for 10 years and a fine of Rs. 1 lac, in default of payment of fine to further undergo simple imprisonment for one year.

(2.) The impugned Judgement has been assailed by the appellant, primarily on the ground that there was no proof of deposit of Pullandas and sample with the Moharar Malkhana. The person who is alleged to have taken the sample with CFSL form to the office of the CFSL has not been examined. Hence in the absence of linking evidence the chances of tampering with the sample cannot be ruled out. Case property was neither produced nor proved. However, if the property as was produced is believed to be the case property then it must have been tampered with. In order to appreciate the contention of Mr.Mukesh Kalia, Amicus Curiae we must have to evaluate the evidence properly. On 6th March, 1990 at about 5.15p.m. when appellant was apprehended on search being conducted 4 gms. of smack on his person was found. The sample and the case property was sealed with the seals of DPJ and HLM, as per the SHO (Public Witness-1). CFSL Form was also filled. 'Notice Ex.Public Witness-7/A under Section 50 of the Act was given. Seal after use was handed over to the said Public Witness. Seizure Memo has been proved as Ex.Public Witness-1/A. Rukka also proved. It was sent to the Police Station through Constable Ramesh Kumar. Site plan is Ex.Public Witness-7/B. Personal search memo is Ex.Public Witness-3/A. CFSL report is EX.Public Witness-7/C. Inspector Harbans lal (Public Witness-1) deposed that he kept the seal with him after affixing the same on the case property, on sample as well as on the CFSL form. So far as Public Witness-2 ASI Satpal Singh is concerned, he could only prove that he made FIR Ex.Public Witness-2/A, on the basis of the Rukka brought by Ramesh Kumar. There is clear contradiction in the testimony of Public Witness-1 and Public Witness-2 on the point of initials of the Seal. Constable Raj Kumar (Public Witness-3) testified that sample of smack and remaining smack was converted into two pullandas and were sealed with the seals of DP and HLM. Whereas according to Inspector Harbans Lal (Public Witness-1), the seal affixed were of DPJ and HLM. Similarly, Head Constable Mohd. Haroon (Public Witness-4), Moharar Malkhana of the relevant time testified that 2 Pullandas were sealed with the seals of DP & HLM. These were deposited vide Serial No.491 of the Property Register. He admitted that CFSL form was not deposited with the sample. Sample for analysis was given to Constable Ashok Kumar on 8th March, 1990 for depositing in the office of CFSL. Santosh Kumar public witness (Public Witness-5) admitted that he was the SPO of the area. He knew the police party from before. He further admitted that the Investigating Officer did not request anybody to join the raiding party, though there was a large crowd near the place of the incident. Beside the crowd gathered, there were "rehriwala" and shopkeepers at a nearby place. But the I.O. did not try to contact them nor called them to become witness. Constable Ramesh Kumar (Public Witness-6) stated that seals on the Pullanda and sample were affixed with the seals of DPJ and HLM. He further stated that except Santosh Kumar no one else w as asked to join the raiding party. SI Durga Prasad Investigating Officer (Public Witness-7) after giving details of the formalities completed after appellant was apprehended proved copy of the notice under Section 50 of the Act as Ex.Public Witness-7/A. He stated that seals after use were handed over to public witness. Pullanda and CFSL form were seized vide Ex.Public Witness-1/A. These were handed over to the SHO. He admitted that no other person of the locality was asked to associate the raiding party. Investigating Officer took back the seals from the public witness when he met him by chance near Chandni Chowk.

(3.) As I have already discussed above, the attack is primarily on the ground of the missing link and avoiding to associate public witness. The alleged public witness Mr. Santosh Kumar was the S.P.O. of the area and hence cannot be called an independent witness. Further more, there are contradictions with regard to the seals used. Material witnesses have not been examined. From the testimony of Constable Raj Kumar (Public Witness-3), it is clear that he was not aware what scales were used. He stated that seal with the seal of DP & HLM were used whereas actually seals with DPJ and HLM were used. This shows Constable Ram Kumar (Public Witness.3) may not have witnessed the occurrance. Inspector Harbans Lal (Public Witness. 1) testified that the case property was sealed with the seal of DPJ & HLM whereas in Court when the case property was opened it had the seal of CFSL meaning thereby the sealed Pulanda which was opened in the Court having seals of CFSL could not be the same which was sealed with the seal of DPJ and HLM. If that be so, then what happened to the case property. It would not be wrong to assume that the case property was tampered with. Had it not been tampered then it would have the seals of DPJ and HLM. But that was not so. Hence Ex.P. 1 and P.2 cannot be called considered case property as the same were tampered with and resealed with another seal.