HI6H COURT OF CHHATTISGARH §ILA5PUR m Criminal AMI No. 1213 0f 2001 Ramlal Thakur Varsus Sfu‘re of Chhuffisgarh, Pqsf for: 16.07.2007 M ‘ ‘, 7 Sdl- - ,xzi’; u ii" ‘ Sunil Kumar Smh 2/@/@ compHance of due provisions of N.D.P.5. Act, when tha «fr-bag cf fhc appallmf was sewchad, ii was fund 1m opium in qummy of 4 Kg was than. Theseim mofmsddmkuammdimpksofm seizcdmticlewmdsofdwnandfhepackctofmmplcsaswwar remaining wticle both um sedcd. Thc wumf was Mmn into custody lmdwasbroughttopoliustatimxtissmednwatthemuime. opimnwaakoseizedfromfhcpéaasionofkunuld,uldmld&w¢ym ‘for whid'l separate procadings were drm agdnsf m; The seized n mimic! m «puma in um and muff», it m sent for u i. n chemical examination to Forensic Scionco Wary, fhrough mo of n suéerimmiem of Pam dam 14.10.99 (Ex.-P/1), from whore me moon o owed 30.10.99‘(5o-P/25} ms mowed, according to which, me wok o ~- sonf for examination m impure cooguhted Juice of opium poppy (commoniy known as Afeem) containing 4.33% mwphine. (3) On trial, the Special Judge franed the dm-ges under Section 18 red with Section 5 of the N.D.P.5. Act «Id ofter oonclwion, the appellmt was convicted aid sentenc ad a oforemcntloned (4) The conviction of the appellant is bmed on the testimony of the Investigating Officer. 5th-Impector Rqieda Tiwari ?.W.-7), tddng sipport from the report-of chemical analyst. (5) Lwnedcouwelforthewpellmta‘gucdthotinviewofthcfact that both tho PM witnesses mely- Syed Sadik Ali (PAM-5) and Awded'i Mishra (P.W.-6) hale tinned hostile, the conviction on the testimony of Investigating Officer (P.W.-7) w not Justified He relied onthejudgmentoftheApexCowtrenderedinthomotterofJqdkh Vs. 5mm 4'4!” (majgsclghthesddcmeJheonly evidence on which the prosecution case depended w that the evidence of Investigating Officer, who at the relevant time um working as Sub- Inspector Nwcotics a both the Paid: witness“ hod not supported the prosecution cm and even the driver md conductor of the Bus hm also turned hostile and they also did not sipport the prosecutim case aid on analysis of fhe deposition of Investigafing Officer, tha Apex Cour? founi fhaf the Tastimony suffers from many imrmitiesnnd if would not be safe fo rely upon his sol; testimony fa hold the guiliy of the appellmf and in fhose circumslances, the appeal was allowed. (6) Principally, so for w legal position in fhls ragard is commed, if j has been settled that if the evidence of the investigating officer is found to be mmm and dcpendabie and mining mammal Has been brougm ‘ Jo discredit his evidence in the cross examination or his evidence is otherwise not unreliable the Crimind Court would be Justified in convicting the accused on the sole testimony of the investigating officer I am fortif‘ed in my Views by a decision of the Supreme Coirt rendered in the matter of hand I of aid mm;- -V:- mfj gm; 7 sci: 565 Nor-many in uses uhm‘iiw evidence ied by the prosecution as to a fact depends solely on the police Witneaes the courts seek corroboration as a matter of caution aid not as a matter of a rule Thus, it is only a rule of prudence. which makes the'oourt to seek corroboration from an independent source, in such oases while assessing the evidence of the police. But in cases where the coin-t is satisfied that the evidence of the police can be independently relied‘upon thenin such cases, there is no prohibition in law that the samecmnot be accepted without m independent mrroboration. {Pm m» m, 5mg —Vs— Shh ofKomoM. m1? 563' &. (7) In the present case, the Special Judge ha held the testimony of Investigating Officer as trustworthy and hos‘recorded the conviction on his such testimony by taking aid and assistance from supporting evidence. therefore, unless his such testimony is assailed and is fomd to be untrustworthy, the conviction of the appellant cannot be set aside merely on the ground that the Pmdi witnesses hove turned hostile and they have not supported the case of prosecution Jagdish's case referred by the counsel for the appellmt is principally distinguishable as in that case the Supreme Court recorded a finding, that in addition to the ewdence of C? CrA N¢- n13 OfZWI Pmh witnesses, who 'l‘ur-ned hostilc, the 'tcstimony of Investigating Officer had suffered from many imrmi‘iies and in thaf si‘iuaiion. the conviction was set aside. (8) For «soiling the credibility of the prosecution case, lewned counsel for the appelimt secondly a~gued that since the mpie of the seal was not sent to the FSL, Rdyur, therefore, the chances of taupering with the sealed material cannot be fully ruled out in this case. He relied *on the decisions rendered in the matter ofW 9 WI nEid ofhei J k R Vs Vs. Sink .P. 2m 1 ER 220' .. Mi Ark 1m 5c 1314 m Vs. 1 w. 2005 cue, (sq sea. (9) In Remgui é Remulal‘s case- (5upro), the prosecution has not examined the oonstwle, who had taken article for daemical examination and the sample of seal was also not deposited along with property in the Ma/khammd kept intact aid no evidence was adduced by prosecution in this rega'd. Adding to this , the provisions of Sections 52‘, 55 and 57 were dso not complied with md in thatlsituation, the High Cowt held that the prosecution evidence was full of inoomistencies md the occused/appellmt was acquitted. In the said Judgment itself. a reference has been made to Dailotram's mse (m. in which, the Apex Cow-t held that when the samples of opium changed several hands before reaching public analyst md yet none of those in whose custody the sample remdned, were examined by the prosecution to prove that while in their custody the seds of sample were not tanpered with, the inevitable fact of omission was that the prosecution faiied to rule out the possibility of the samples to be changed or tunpered with during the period in question which was d fact which had to be proved affirmatively by the prosecution and consequentiy the accused could not be convicted. (10) In Gurmail Singh‘s case (sips-o). it m observed by the Apex Cart that no sanpie of the seal was sent along with the sample of articie to the \ concerned Excise Laboratory for the purpose of oompa‘ing with the seal \ ) \ \ \ x-A I‘M A313 QJ C PWW Wrgonthclebtleswfhmwevidemopmc saiisfactoriwmatfhesaahfomdwminfactfhemmkasm put on the sampleboffias immediofaly affar seure of the commbm and onmese loopholes,judgm¢nfofcequiffalncorded iheigCou was uheld. (11) In this we, mph my en for daemicnl exmi to me i, Ra'pu- vid: mum of r superintendent of Palm dared 14.1.99 (Ex.- ua/l). A wusdofme manownMd M if has notbeanmnfionc in if 1m? with the sample o 1hc seizo a-iicle which was seale, a mph of s2chsealwgsscnffoifwhborahmmmdmmlfwfhe appellmf insisjed upon in old mar since no sampi ooai um sent ong wifh 2 packzfs as i- is not mentioned i emo of innndon f Poiice, hanc of tmperin wa there. The document Ex—P/l would show at it was sent thmugh Constnbie mngopai hann. 10 was «mined as P.W.-l. He has deposed Vida Pam-1 of his xanim‘tion-in-daif tha on 14.10.99, he had tdten samples o this crime number dong with sam o the senldso. Thereis mermexmttnatonthispointthathad not token thesanpleofteseolwhodtdwnonlytho ien pocketstothe FSL. Moreover, in the F5L report (Ex-W25), it ha been mentioned in tho first line that 2 sealed packets-were received by thosoid Laboratory md theseolswhiohworeputonttm,werefoundtobesauonoompwison oswos thereinthesampleofseoland thefigureofthesenlhosolsobeen sketched in the report. Besides We, the contents of Wmregister has also been proved as 5c-P/5C, in which it has been mentioned that along with seizedarticle aid themple,osanpleofseol walso there aid the sane um also deposited in mllwmaon the relevant date. In this wd Mai/diam Molnrir Urmila Prmad Pmdey (P.W.-4) has 9 been exanined by the prwecution, din has stated that on 12.10.99, hehadreaeivodthedepositsofthesealedpacketsofseized article relating to Crime Na. 435/99 dong with mple of the seal and had made entries in the said register. therefore, anew-«won. it cannot be said that the mpieofseal wasnotsenttothe \ \ \ mpofdasmt iz d byHhm p s? m F m 0 M ed f d d w£ h c fs d 1 n the m mt o a ce g s th R Sa M ee t f ple f imc‘h h m \ CpA. No. 1213 01'2001 F5L and, only ‘rhe samples of seized ar+icie were sem- ‘ro Them. Norr- men‘rianing of the fact regwding sending 1h: sanple of sea! in 'rhe memo of 5upeninfenden1' _of Police Ex.»P/I appews 1'0 be m omission which cmnof be held lo be felal lo 'rho prosocufion in lighf of alher evidence available on record. Another- impor‘l'anl facl' is thol if we campwe The ‘ sketch of the seal mentioned in the F5L report (Ex-P/25) with the original seals put on seizure memos Ex.-P/10 d: Ex.-P/11,. if would appear Thai all the seals are similw. This further rules out The pmibili‘ly that *‘i'l-ie sample of seal was noi sen? 'lo fhe FSL. The argumenfs advmced by nae Iemd‘counsei for m appellant in this regard cannot be accepted. ‘ If has been mnblish by the prosecution that in fact, the articles were sealed at the time of seizure and they were deposited in the Ala/khan in intact condition. along with sample of the seal also and were sent for chemical examination to the F5L along with sanple of seal, whid'i was also found to be intact md ultimately, the wticle sent for cx'anination was found to be opium and on the omission wont mentioning of sending of sample of seal in the memo of superintendent of Police in light of other ewdence the prosecution story cannot be discarded (12) Learned counsel for the wpeliant then argued about the procedural safeguards especially with reference to Section 50 of the N.D.P.5. Act. There is no doibt that the procedurai safeguwd particularly as provided under Section 50 of the N.D.P.5. Act requires strict compliance. The legislature ha deposed confidence on the gazette officer and has recognized the provisions as right of the accused, who has allegedly committed an offence under the N.D.P.5. Act. This is an indication that the offence is of serious md grave nature and the procedural safeguardgsome of which are mmdatoimare to be strictly complied with by the Investigating Agency. (13) So fw as Section 50 of the NDPS Act is concerned the Supreme Court in the matter of Mada» La/ and mfber -Vs- 5m of r \ H F (200.?) 7 56? Wheld that the language of section 50 is implicitly \ X \ cm, No. 1213 ¢r20¢1 clear fhaf the sewch has to be in relafion fo a person as confrasted fo search of premises, vehicles or wiicles, fherefore, if is chm» that when a search of article like a “bag" ws to be made, it was not messwy for the Police Officer to comply with the provisions of section 50 md in such search and seizure the trial would not be vitiated for nonvcompliance of section 50 or for want of proper and effective compliance of section 50 of the NDPS Act t $3) Moreover, in the present case, a perusal of the judgment vide Para-14 onwmds would show that the Investigating Ofhcer has complied with this provision oiso and after compliance of the said provisions, the search of theibog of the accused was made. Therefore, the wguments regarding non-compliance of statutory safeguard of Section 50, vitiating the conviction of the appellant, can also not be accepted. (15) Lastly, learned counsel’for the appellmt submitted that the seized article (Opium) was not produced before the Special Court at the time of trail, therefore, the accused has been prejudiced and the conviction in such situation is not sustainable. He referred to the decision rendered in the matter of hmm and Mother -Vs— 5m” of If!“ 2003 SAR (WM 9m. In the said case, the Patch witnesses had turned hostile and the Investigating Officer was also not examined and the contr¢and allegedly seized was also not produced before the Cowt and in the said circumstances, the Apex Court said that in the trial, it was necesswy for the prosecution to establish by the cogent evidence that the alleged quantities of chm and ganja were seized from the possession of the accused. For which the best evidence would have been the seiled materials which ‘ought to have been produced during the trial md mwked as material objects. Mere orat evidence as to their featwes and production of Pane/mono does not discharge the heavy burden which lies on the prosecution pa-ticulwiy where the offence is punish¢le with a stringent sentence as under the NDPS Act The Court smd that since Ponchos have turned hostile the Pmdtorma is nothing but a document \ \ t £ @653 cm, No, 1213 otml writfen by the concerned police officer and fha sugges‘rion made by The defem in cromxamimfion is wor'lhy of notice. As mentioned supra, The said view taken by the Apex Couri in the aforesaid Judgment was in a ease ‘ where after fuming the Punch witnesses hostile, even the Investigaiing i Officer was mi exanined and agdnst fhis background, the convicfion was sef aside observing iha‘i 1he non-produciion of moterioi object/seized x \ ' material was n01- a mere procedth‘d irregulwiiy but it caused prejudice to the accused In the present case Investigating Officer has been exammed and his testimony has been found to be trustworthy Therefore oniy on the ground that the seized contMand m not produced before ‘ the‘ Court, the entire prosecution case cannot be thrown out and the judgment of the Apex Court is distinguish¢le on this point. This argument raised by lea-tied ooumel for the @pellunt oannot be accepted. (16) Now the question wises wout testimony of Investigating Officer, kqiesh Tiwari (P.W.-7). He has deposed that when he had left the police station for a particulw place after getting certain information rega‘ding mamif, relevmt entry was mode in Rosnam¢mmand when he wasin bus stand wee, he could come to know that some persons we there in suspicious condition holding bags. They were located by him and ultimately, after complying the provisions of Section. 50 of N.D.P.5. Act (though it was not required in this case) as also other provisionsin this regard, he made the search of bag of the appellmt, in which opium in qumtity of 4 Kgs. was there. To] Pmdmnana and seizure .Pma were prepared and the seized a~ticle along with sample of mticles and the sample of seal wereprepmed and the accused was taken into custody. After returning to the police station, the artistes were deposited in the Ma/kham making relevuit entn/ in the Ma/khma register proved as Ex.- P/EC. Thereafter, the sample of wticie along with sample of seal were x sent for chemical examination to the F5L through the memo of \ Superintendent of Police (Ex —P/1) md the report (Ex -P/25) ws \ received according to which the seized «ticle was opium \ \ Q Cr.A. No. 1213 (#2001 (17) Afi‘er going ihrough 1he tvidence of fhe Invcsfigafing Officar as also fhe evidznce of other witnesses, as discussed above, I do noi- find any discrepmcy in his such evidence and The conviction on such evidence was possible. The special Count has commmed no error of la” by i depending on 1'he sole fes‘rimony of the Invesiigafing Officer, kqjesh Tiwari (P.W.-7) and 'rhe convicfion based upon such tesfimony cannof be faulied wifh. €18) There is no merif in the appeal, the smie is accordingly dismissed. a Sdl- va'iti sunil Kumar Sinlra Judge v