JUDGMENT [ENTITY], C.J.
1. The subject matter of challenge in the instant appeal is the judgment and order dated September 17, 1991 passed by the learned Special Judge, Greater Bombay, convicting the appellant under [SECTION] read with [SECTION] of the [ACT] (hereinafter referred to as 'the Act') and sentencing her to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/-, in default to suffer rigorous imprisonment for one year more.
2. According to the prosecution case, on March 2, 1987 at or about 9.15 p.m. while [ENTITY] (P.W. 3), a Sub-Inspector of Police attached to M.R.A. Marg Police Station, along with Police Head Constable [ENTITY] (P.W. 2) and other staff was on patrol duty they received an information and to work out the same they along with two panchas including [ENTITY] (P.W. 1) went to a place opposite to the Dental College on P. D'Mello Road, Bombay. There they found the appellant standing near a hut. As they found her movements suspicious and as she could not give any satisfactory explanation for her presence there they decided to search her person. Accordingly after observing all formalities P.W. 1 searched her and found a polythene bag tucked on the waist in her saree. In that bag was found 22 plastic vials with red caps and a smaller bag. Besides they found some G.C. notes along with a one rupee coin, totalling Rs. 45/-. The contents of the vials and the small plastic bag were emptied on a piece of paper and they Smelt like heroin. On weighment the contents of the two were found to be 7 grammes. Two grammes thereof was packed as sample and the remaining 5 grammes were put in another packet. The 22 plastic vials, the polythene bag and the plastic bag were separately packed in a third packet while the cash was kept in another packet. All the packets were thereafter sealed and labelled and on those labels P.Ws. 1, 2 and 3, besides the other pancha, signed. Then panchanama was drawn on the spot by P.W. 3. Along with the articles and the appellant the Police Officers went to the police station and there P.W. 2 lodged a First Information Report on which a case was registered against the appellant. In course of the investigation P.W. 3 forwarded the seized sample to the Chemical Analyser for his report along with a forwarding memo. As the Chemical Analyser opined that the sample was heroin charge-sheet was submitted against the appellant.
3. The appellant pleaded not guilty to the charge and her defence was that she had been falsely implicated in the case.
4. All the three witnesses examined by the prosecution during trial, namely, P.Ws. 1, 2 and 3 detailed the entire prosecution case and their evidence as regards the apprehension of the appellant, recovery of heroin from her and preparation of panchanama was consistent.
5. It however appears that after P.W. 1 was examined on September 6, 1991 and supported the entire prosecution case, her further examination was adjourned till September 9, 1991. On that day while being further examined by the learned Special Public Prosecutor she stated that she could not name the exact place where panchanama was drawn and that her signatures were obtained at the police station. In such circumstances the learned Prosecutor cross-examined her with the permission of the Court and at that time she further contradicted her earlier statement given in Court on September 6, 1991 by stating that she was not taken to the place of offence, that she was sleeping at home when the policemen came and took her to the police station and that her thumb impression was obtained therein.
6. Law is now well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him a unreliable witness so as to exclude his evidence from consideration altogether. In [PRECEDENT], it was observed as follows (at page 204 of Cri LJ) :-
"The prosecution could have even avoided requesting for permission to cross-examine the witness under [SECTION] of the [ACT]. But the fact that the Court gave permission to the Prosecutor to cross-examine his own witness, thus characterising him asat is described as a hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence."
Applying the above principle to the facts of the instant case we do not find any reason to disbelieve the testimony of P.W. 1 so far as it supports the prosecution case inasmuch as we find that her evidence stands corroborated by the panchanama (Exhibit 5) which clearly shows that it was prepared at the spot at the time of the search and seizure. The evidence of P.Ws. 1, 2 and 3 read with the panchanama unmistakably proves that some powder was recovered from the possession of the appellant which on chemical analysis was found to be heroin.
7. It was first contended on behalf of the appellant that as the Police Constable who, according to the prosecution, took the sample from the Police Station to the Chemical Analyser for analysis had not been examined, chance of the sample being tampered with in transit could not be excluded altogether. In support of this contention reliance was placed on an unreported judgment of this Court in the case of [PRECEDENT] disposed of on March 6, 1992). Undoubtedly the above judgment supports the contention of the appellant but then the Court specifically observed therein that in the facts of that case the in transit tampering with the sample could not be excluded as the carrier was not examined to prove exclusion of such a possibility. In our considered view, in the facts of the instant case that question does not arise inasmuch as the evidence of P.W. 3 proves that the sample packet was sent to the Chemical Analyser with a forwarding letter dated March 10, 1987; and document showing acknowledgment of receipt of the same by the Chemical Analyser was tendered in evidence and marked Exhibit 15. Besides, the report of the Chemical analyser (Exhibit 16) specifically records that one sealed packet was received by his office under the forwarding letter dated March 10, 1987 and that the seals thereon were found intact. In fact, this part of the prosecution case was not at all challenged during trial.
8. It was next contended that as P.W. 3 was a member of the raiding party he was not entitled to investigate into the case and, for that matter, submit charge-sheet. Consequently, it was submitted, the entire trial based on that investigation and charge-sheet was patently illegal. It is undoubtedly true that in the fitness of things P.W. 3 being a member of the raiding party and witness to the recovery itself should not have investigated into the case himself but then such indiscreet action on his part does not make the investigation and submission of charge-sheet pursuant thereto ipso facto illegal and ab initio void so as to affect the trial and for that matter the impugned order of conviction and sentence.
9. A similar question came up for consideration before the Supreme Court in the case of [PRECEDENT], . In that case, for offering a bribe to him a Head Constable lodged a First Information Report as the complainant and himself took up investigation of the case which ultimately ended in conviction and sentence. The Supreme Court found that this was an infirmity which was bound to reflect on the credibility of the prosecution case, more particularly when the entire case of the prosecution rested solely on the testimony of that Head Constable and four other Police Constable and there was not a single independent witness in support thereof. Investigation by an officer of the raiding party therefore might affect his credibility and, in a given case, also of the prosecution version but the legality of the investigation itself or the trial held consequent thereto is not impaired thereby. As in the instant case we find that the evidence of the Police Officers, namely P.Ws. 2 and 3, gets ample support from P.W. 1 and the contemporaneous panchanama, we do not find any reason whatsoever to disbelieve the evidence of the Police Officers also.
10. On the conclusions as above, we do not find any merit in this appeal and dismiss the same.
11. Appeal dismissed.