REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL. A. NO.952/2005 % Date of Decision : 7th March, 2008. GURDEV SINGH .... Appellant. Through Mr.Naveen Gaur & Mr.Sudhir Kumar, Advocates. VERSUS STATE NCT OF DELHI .... Respondents. Through Ms. Nandani Sahni & Mr. Ujjwal Kumar, Advocates. %07.03.2008 CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? SANJIV KHANNA, J: 1. The present appeal is directed against the judgment dated 1st October, 2005 and the order of sentence dated 5th October, 2005 passed by the Additional Sessions Judge convicting the appellant Gurdev Singh under SectionS 20/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act'). By the order of sentence, the appellant has been directed to undergo rigorous imprisonment for a period of ten years and pay fine of Rs.2 lacs and in default thereof undergo simple imprisonment for two years. 2. Learned Trial Court in the impugned judgment has held that the appellant, on 16th August, 2002, at about 7.50 P.M. was found to be in unlawful possession of 2 kgs of charas, at Prem Pyao, towards Kanjhawala side, Delhi within the jurisdiction of P.S. Kanjhawala. He was apprehended while coming on motorcycle bearing No. DL7SN- 6169 by SI S.A.Farooqui, Inspector Rajinder Prasad and others who had prior information from a secret informer that a Sikh person aged about 45-50 years would be coming from the side of Village Dabas via Prem Pyao with Charas. Learned Trial Judge on the basis of the statements made by the prosecution witnesses and the reasoning given in the judgment has held that the prosecution case has been proved beyond doubt. 3. Learned counsel for the appellant has mainly urged four grounds. Firstly, CFSL form was not sent to the CFSL laboratory and there is a strong possibility that the samples were tampered. Secondly, there was violation of Section 50 of the Act as the accused was not informed of his right to be searched before a Gazetted Officer or a Magistrate. Mere option is not sufficient compliance. Thirdly, it was submitted that some of the witnesses were not examined by the prosecution. Lastly, it was pointed out that the public witness, Mr.Vinod had not supported the prosecution version and, therefore, the accused should be given benefit of doubt and conviction solely on the basis of statements made by police officers cannot be sustained. 4. Public witness, Mr.Vinod did not support the prosecution version. He appeared as PW-2 and in his examination in chief had stated that he had been called by the police at Kanjhawala and made to sign some blank papers and nothing was recovered from the accused Gurdev Singh in his presence. He was declared hostile and was allowed to be cross examined by the Additional Public Prosecutor. His statement including cross examination does not support the prosecution version. However, this itself does not entitle the appellant to be acquitted. Statements of the police officers and their cross examinations have to be carefully scrutinized by the Court to decide whether the prosecution has been able to prove its case beyond doubt. Evidence of the police officers is not un-reliable and doubtful because the public witness has not supported the case of the prosecution. Evidence of police officers is not to be dis-believed on this ground. Evidence of Police officers is admissible. In such circumstances the court is to examine evidenciary value and weight that can be given to statements made. Greater care and scrutiny is required to ensure whether the accused was falsely implicated, whether police officers were hostile or inimical to the accused and whether their evidence was shaken in cross examination. Corroboration is a rule of prudence but admissible evidence is not wiped off because of lack of corroboration. This proposition of law has been accepted by the Supreme Court in the case of State of Gujarat versus Anirudhsing reported in (1997) 6 SCC 291. The said proposition has been reiterated again in the case of Girja Prasad versus State of M.P., reported in (2007) 7 SCC 625,( at page 632) wherein it has been held asunder : 25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence. 5. The Supreme Court expressed the same opinion in the case of Kalpnath Rai versus State, reported in (1997) 8 SCC 732 in which it was elucidated as under :- “88. There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non- examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that the court must reject the prosecution version solely on the ground that no independent witness was examined. In Pradeep Narayan Madgaonkar to which one of us (Mukherjee, J.) was a party, the aforesaid position has been stated in unambiguous terms, the relevant portion of which is extracted below: (SCC p. 261, para 11) “Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony.” 89. In Balbir Singh v. State this Court has repelled a similar contention based on non-examination of independent witnesses. The same legal position has been reiterated by this Court time and again vide Paras Ram v. State of Haryana, Sama Alana Abdulla v. State of Gujarat, Anil v. State of Maharashtra, Tahir v. State (Delhi).” 6. Prosecution has led evidence of Head Constable Naresh Kumar who appeared as PW-3, Inspector Rajinder Prasad PW-4, SI S.A. Farooqui PW-5, ACP Ishwar Singh PW-7, Constable Davinder PW-9 and SI Rajinder Kumar PW-10. The said witnesses were present when the appellant-accused was arrested with charas. The said Officers have stated that on 16th August, 2002 the appellant, Mr.Gurdev Singh was intercepted near Prem Pao about 7.50 p.m, when he was coming on motorcycle and on the search, he was found to be carrying 2 kgs of charas. The statements made by the said Officers are reliable, trustworthy and have not been dented in their cross examinations. Learned counsel for the accused was not able to point out any substantial or major contradiction in their statements. All of them have stated on oath that pursuant to secret information, a raiding party was formed and Nakabandi was made. As per the secret information, a Sikh person was to come on a motorcycle from Sultanpuri road carrying charas. They have further stated that at about 7.50 p.m., Mr.Gurdev Singh came on a motorcycle and was stopped and thereafter overpowered. In the meantime, ACP, Ishwar Singh (PW-7) also reached the spot. Notice under Section 50 was given to the accused and charas was found in three pullandas, one was of big size and two others of small sizes. The weight of the single big bag was 1 kg and the two small bags were 500 gms each. Three samples of 100 gms were prepared on the spot and marked as S1, S2 and S3 and were sealed with the seal of SAF and RPA. They have also stated that CFSL form was filled on the spot and both seals were affixed thereon. Motorcycle of the accused was taken into possession and personal search of the accused was also done. The original pullandas were produced before the witnesses, who identified the seal of SAF and RPA which were found to be intact. The said pullandas were marked as Ex.PW-1, Ex.PW-2 and Ex.PW-3. Some witnesses also identified the motorcycle of the accused. The quantity recovered in the present case is substantial, 2 kgs of charas. 7. The contention of the learned counsel for the appellant that Constable Ramdhari, driver of ACP and wireless operator of ACP were not examined and therefore, the prosecution version should be disbelieved, cannot be accepted. The prosecution has examined as many as 6 witnesses who were present at the time of search on 16th August, 2002, when the accused was apprehended carrying charas. It cannot be said that their statements do not hold and should be disbelieved because prosecution could have produced other witnesses also to support their case. Multiplication of witnesses is not required, specially when substantial number of eye witnesses were examined and have been able to prove the case of the prosecution. Reliance in this regard can be placed on Chaudhari Ramjibhai Narasangbhai versus State of Gujarat reported in (2004) 1 SCC 184 and Jai Prakash versus State (Delhi Administration) reported in (1991) 2 SCC 32. 8. Learned counsel for the accused relied upon Ex.PW1/A Malkhana register and the entries made on 28th October, 2002. There are two entries of the said date. The first entry states that three samples had been handed over to Mr.Girdhari for being sent to FSL Malviya Nagar, Delhi. The second entry also of the same date states that three CFSL samples had been handed over to PW-6, Constable Rakesh for being deposited with FSL, Malviya Nagar. Both entries have been made by PW1, Head Constable Radha Kishan and bear his signature. 9. I have examined the statement of PW-1, Radha Kishan. He has stated that three samples along with CFSL form were given to Constable Rakesh to be deposited with FSL, Malviya Nagar. He was not cross examined and asked why there were two entries both dated 28th October, 2002. The only question put to Constable Radha Kishan in the cross examination was that entry dated 28th October, 2002 does not mention that CFSL form was also sent to FSL, Malviya Nagar through Constable Rakesh Kumar. Learned counsel for the appellant had also drawn my attention to Ex.PW1/B. The transport receipt mentions that three samples with seals SAF & RPA were sent through Constable Rakesh Kumar. It was pointed out that the documents signed by Constable Radha Kishan also does not mention that CFSL form was also sent along with samples. Constable Rakesh Kumar was examined as PW-6. He admitted that three samples and CFSL from were given to him to be deposited with FSL, Malviya Nagar. The said witness was not cross examined on the aspect that the samples were infact not given to him for being deposited in FSL or were given to Mr. Girdhari. Thus, Radha Kishan PW1, incharge of Malkhana who had made entries in Malkhana register and Constable Rakesh Kumar PW- 6 was not cross examined and questioned on the three samples given to PW-6 for being deposited with FSL, Malviya Nagar. To that extent, their testimonies remain completely unchallenged. Both witnesses had also stated that CFSL form was sent along with samples. It is correct that both the Malkhana register and the transport receipt (Ex.PW1/A and PW1/B) do not mention about CFSL form. However, this fact alone, I do not think dents the prosecution version so as to create a doubt in the mind of the Court that there was tempering. Mention of CFSL form may have been missed. 10. In this regard, I may refer to the CFSL report dated 29th November, 2002. The said report specifically states as under:- “The Parcel(s) three in number marked 'S1', 'S2' & 'S3' which were sealed and tallied with specimen seal impression forwarded.“ Thus, CFSL report is clear that the seals on three samples i.e. S1, S2 and S3 were tallied with the specimen seal impression forwarded to the said laboratory. The CFSL form contained the specimen seal impression. The accused never moved an application for cross examination of the Senior Scientific Officer, Forensic Science Laboratory under Section 293 Cr.P.C. Therefore, the contention of the appellant that the CFSL form was not forwarded to the laboratory and the entire prosecution version should be disbelieved on this ground cannot be accepted. I may also refer here to two judgments of this Court in Shamim Versus State of Delhi (Crl. Appeal No.161/2000) decided on 19th October, 2006 and Navin Kumar Versus State reported in 1999 (1) SCC (Delhi) 62. In the case of Shamim (supra), it was observed that when CFSL report states that the seals were intact and tallied with the specimen seals, it would indicate that the laboratory in question had received the CFSL form. In the case of Navin Kumar (supra), it was again observed that when CFSL report states that parcel seal samples tallied with the specimen seals and were intact, it would show that there was no tampering with the samples, unless there was some other evidence to the contrary. Judgment in the case of Safiullah Versus State (Delhi Administration) reported in 1993 (1) C.C. cases 497 (HC) of this Court relied upon by the learned counsel for the appellant is distinguishable. In the said case, the ASI who had appeared at PW-2 did not state anything about filling up of CFSL form and Moharrar Malkhana also did not state that the articles were sent to the chemical examiner along with CFSL form. In these circumstances, the Court gave benefit of doubt to the accused therein, as even the seals were also not handed over to any independent witness. Another decision of this Court in Pradeep Kumar versus State reported in 1990 (1) C.Crl.Cases 69 (HC) is also distinguishable because in the said case the SHO had not supervised sealing of the parcels and seals were not given to any independent witness. 11. Learned counsel for the accused submitted that there was difference in quantity of the three samples at the time when they were prepared and as per report of FSL. It is stated that three samples were of 100 gms each, whereas as per the report of FSL, three samples were found to be of 105 gms (sample S1), 96.7 gms (sample S2) and 96.26 gms (sample S3). It has come on record that when the samples were prepared, they were weighed on a manual scale (see, cross examination of PW3 Constable Naresh Kumar and statement of PW7, ACP Ishwar Singh). Electronic scales normally used by Forensic Science Laboratories are far more sophisticated and precise. The difference in weight is not substantial to accept the contention of the learned counsel for the appellant. Another contention raised by the appellant was that the seals were not handed over to the private witness. In the present case, three original packets Ex.P1, P2 and P3 and the three samples were sealed by seals of SAF and RPA. This has been stated by PW-3 Head Constable Naresh Kumar, PW-4 Inspector Rajinder Prasad, PW-5 SA Faruooqui PW7 Ishwar Singh and Constable Davinder PW-9. The seal of SAF belongs to SI S.A.Farooqui and the seal RPA belongs to Inspector Rajinder Parsad. PW-7 Ishwar Singh, ACP Crime Branch was also present on the spot when the sealing was done. Mere fact that the seals were not given to the public witness, does not in the facts of the present case and in view of the categorical statements of these witnesses, justify any doubt. The Officers have to use the seals for several purposes. Even if seal is given to a public witness, it is normally returned back shortly. Statement of PW-1 Radha Kishan does not create any doubt or suspicion that the samples or the pullandas were tampered with. Quantity recovered is substantial. Case of implant or false implication has not been made out on the basis of evidence on record. Reference can be made to the observations of the Supreme Court in Kalpanath Rai's case (supra) quoted above. 12. The last contention which requires consideration is on the aspect of Section 50 of the Act. In the notice under Section 50 of the Act, it was mentioned that Mr.Gurdev Singh s/o Sh. Harnam Singh R/o A-86, Wazipur, Industrial Area, Delhi was put to notice and informed that the police officers had information that he had Charas, which was punishable under the Act. He was further informed by the said notice that if he wanted he could be taken before a Gazetted Officer or a Magistrate for his personal search and as per his wishes either of them could be called at the spot. The accused has made an endorsement on the said notice in his own handwriting that he did not want his personal search before anyone. The personal search memo Ex.PW4/A is witnessed by Inspector Rakesh Kumar (PW3) and ACP Ishwar Singh (PW7) in addition to Mr.Vinod (PW2) who as already stated above has not supported the prosecution version. The short question is whether the notice satisfies requirements of Section 50 of the Act. In State of Punjab Versus Balbir Singh reported in 1994 Crl.L.J. 302, it was held that Section 50 of the Act is mandatory and important valuable safeguard. It was held that failure of the empowered officer to inform the suspect that if he so requires, he could be produced before a Gazetted Officer or a Magistrate would amount to non-compliance of Section 50. Thereafter, the Supreme Court in State of Punjab Versus Baldev Singh reported in (1999) (6) SCC 172 again examined Section 50 of the Act and held that it is the obligation and duty of the empowered officers before conducting search of the suspect on the basis of prior information to inform the suspect, that he has right to have his search conducted in the presence of a Gazetted Officer or a Magistrate. Failure to inform the suspect of his right, rather than mere choice, would render the search illegal and would amount to violation of Section 50 of the Act. The question whether Section 50 is mandatory or not, was answered by holding that it was imperative obligation and duty of the empowered Officer to ensure that the suspect was informed about existence of his right to be searched before a Gazetted Officer or a Magistrate. Though failure to inform an accused about his right might not vitiate the trial as such, but because of inherent prejudice that would be caused to an accused it would render the conviction and sentence unsustainable. It was further held that when the prosecution disregards Section 50 of the Act, it does so at it's peril. I may also note here the relevant portions of the conclusion given by the Supreme Court which are as follows:- “(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair; (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.” 13. The said judgment has been considered in Prabha Shankar Dubey Versus State of M.P. reported in 2004 (2) SCC 56. In the said case, reference was made to several other decisions. It was noticed that no prescribed form