Mahatam Parshad vs State Of Delhi
1996 Latest Caselaw 725 Del

JUDGMENT

S.K. Mahajan, J.

(1) On July 22, 1991 during patrolling, Asi Chandan Singh received secret information that a person sitting in Ram Leela Park opposite Shiv Shakti Marg eastern side was having charas in his possession. A raiding party was thereafter formed by Asi Chandan Singh and he requested 5-6 passerby to join the raiding party but they expressed their inability except that one Deep Chand was included in the raiding party. The accused was found standing on the eastern side of the park opposite Shiv Shakti Marg. He was apprehended and was informed that he was suspected to have charas. He was given an option to be searched in the presence of a gazetted officer or a Magistrate but the accused declined the option. On search 800 gms. of charas in batti form was recovered from the bag which was carried by the accused. In the meantime, Sho had also reached at the spot in the Government vehicle while patrolling. Out of the charas recovered from the accused 30 gms of. charas was taken out as sample and two parcels were prepared which were sealed with the seal of C.S.R. and S.K.S. Cfsl form was filled at the spot and specimen of the above seals were affixed thereon. On report from the Cfsl the sample was found to contain charas and a challan was, accordingly, filed in the Court under Section 20(ii) of the Narcotic Drug and Psychotropic Substances Act (in short referred to as "The Act"). After trial the appellant was convicted of the offence under Section 20(ii) of the Act and was sentenced to undergo rigorous imprisonment for 10 years and pay a fine of Rs.l,00,000.00 .or in default of payment of fine, to undergo further rigorous imprisonment for six months. Being aggrieved by the judgment of the Sessions Court, the appellant has filed this appeal mainly on two grounds, namely, i) the seal with which the samples were sealed always remained with the Sho and there Was a delay of 17 days in sending the sample to CFSL. The remaining of the seal with the Sho coupled with the fact of delay of 17 days in sending the sample to Cfsl vitiates the trial and ii) no reliance upon the prosecution evidence can be placed as the public witness who is alleged to have joined the raiding party has not been produced as a witness and all the witnesses who have been produced in Court are police officials. .

(2) The Sho has appeared as.PW-1 and has stated that on search of the bag of the accused, .charas (candle shape wrapped in polythene paper) was recovered. It was weighed and found to be 800 gms. He further stated that 30 gms was separated as sample and scaled with the seal of C.S.R. and S.K.S. and the remaining charas was kept in the same hand bag which was also converted into a parcel with the same seals of C.S.R and S.K.S. Cfsl form was filled at the spot and the specimen of the above seals were affixed on the Cfsl form. The case property was then taken into possession vide memo exhibit No.PW-1/A. He also stated that he kept his own S.K.S. seal with him and the seal of C.S.R. was given to the public witness. The case property along with Cfsl form and seizure memo were then handed over to Moharrir Malkhana at Ps Ambedkar Nagar for safe custody in the Malkhana. No suggestion was given to this witness about the Cfsl form having not been deposited with the Moharrir Malkhana. Hc Dharampal Singh, who was the Moharrir Malkhana at the relevant time, has appeared as Public Witness -4 and has stated that on 22nd July, 1991 Inspector S.K.Sharma, the then Sho Ps Ambedkar Nagar, had deposited with him two sealed parcels with the seals of C.S.R. and S.K.S. pertaining to Fir No.278/91 and one Cfsl form having the same seal impression and one copy of the recovery memo were also deposited with him. He further stated that on August 8, 1991 the samples sealed with seals C.S.R. and S.K.S. along with the Cfsl form were sent to the laboratory for Chemical analysis through Constable Rajinder Singh and so long as the case property remained with him, it was not tampered with by anyone. In the cross-examination, no suggestion was given to this witness about the Cfsl form having not been deposited with him or the same having not been given along with the sample for sending to the laboratory on August 8, 1991. Constable Rajinder Singh, appeared as a witness and stated that on 8th August, 1996 he had taken one sealed parcel and form Cfsl bearing the seals C.S.R. and S.K.S. from Moharrir Malkhan:i and deposited the same in the office of the Cfsl, Lodi Road on the same dale and so long as the sample remained with him, it was not tampered with. Again in cross-examination of the said witness, no question has been put to him about his having not taken the Cfsl form along with the sample from the Moharrir Malkhana.

(3) MR.K.B.ANDLEY, appearing on behalf of the petitioner, submits that as the road certificate has not been produced and the entry in the Malkhana register does not show the deposit of the Cfsl form, the only presumption that can be raised is that Cfsl form was not deposited with the Moharrir Malkhana and in the absence of the said form, the possibility of the sample having been tampered with cannot be ruled out more so when there was a delay of 17 days in sending the sample to the office of the CFSL. He further states that the Sho had not said anything about the sample having not been tampered with from the time of taking possession of the same by him till it was deposited with the Moharrir Malkhana. He has referred to the judgment reported as Ghanshyam Vs. State 1994 Jcc 240 in support of his contention that the Inspector who effected the recovery having not stated anywhere that the case property including the sample was not tampered with by any one during the time it remained in his custody, the conviction and sentence cannot be sustained.

(4) I am afraid, the argument of Mr.Andley cannot be accepted. At the lime of recovery, the sample as well as the remaining, charas was packed in parcels and the same were sealed with two seals C.S.R, and S.K.S. The Sho in his statement has said that the case property, Cfsl form and copy of seizure memo were brought to the police station and handed over to the Moharrir, Malkhana for safe custody. At the time of handing over of the sample to the Constable who had taken it to Cfsl, seals on the sample were intact. Merely because the Sho in his statement did not say that there was no tampering with the sample would not mean that there was a possibility of the sample having been tampered with. One has to see the overall evidence to find out as to whether on the basis of the material on record it could be said that there was a possibility of the sample having been tampered with. If the conclusion is that there was no such possibility, statement of the person with whom the sample remained from the time of seizure till its deposit with Malkhana that it was not tampered with during the time it remained in his custody, in my view would not make any difference.

(5) In Ghanshyam Vs. State (Supra), the Court has based its findings on the fact that Cfsl form did not appear to have been deposited with the Moharrir Malkhana and none of the witnesses including the Inspector and the Constable had stated that no one had tampered with the sealed parcels during the period I hey remained in their custody. It is not the position in the present case. Not only that immediately on the same day when it was sealed, the parcel was deposited with the Moharrir Malkhana along with the CFSL form but even at the time when the sample was handed over to the Constable for delivery to the laboratory seals were found' intact. No suggestion has been given whatsoever by the. accused to any of the witnesses either about the Cfsl form having not been deposited with the Moharrir Malkhana or the sample having been tampered with during the time it remained with the police. Moharrir Malkhana with, whom the sample remained from 22nd July 1991 till 8th August, 1991, has clearly stated in his testimony that so long as the case property remained in his custody no body tampered with the same. Mr.C.L.Bansal,Sr.Scientific Assistant, Cfsl also in his testimony before the Court states that the parcel with seals Csr and Sks were received in the laboratory with seals intact and the seals tallied with the specimen seals on the form. It is not even the case of the appellant that the seal which had been given to the public witness had been taken back from him. If that was the position, the inference might have been drawn that the possibility of tampering with the sample could not be ruled out, however, in this case one seal all along remained with the public witness and, therefore, in my opinion, there was no question of the sample having been tampered with during the time it remained in the custody of the police. The statement of all the witnesses is consistent and I have no reason to disbelieve them.

(6) The next contention of Mr.Andley is that no reasons have been given by the public analyst in giving his report on the sample. According to him, the analyst should have given reasons for arriving at the report. He in support of his contention has referred to the judgment reported as Chandrasegar Vs. State 1(1995) Cunent Criminal Reports 146. In my view, the judgment cited by Mr.Andley is not of any assistance to him in as much as in the said case the public analyst had not appeared as a witness and only his report was sought to be produced and was admitted in evidence under Section 293 of the Code of Criminal Procedure and it was in these circumstances that the Court had held that reasons should have been given by the public analyst for arriving at the findings. In the present case, public analyst has appeared as a witness and he has given reasons in his statement for arriving at the findings given in the report. The public analyst who appeared is a highly qualified man being M.Sc. in Chemistry and having passed one year certificate course in Forensic Science. He had also done diploma in Forensic Toxicology from the Institute of Criminology and Forensic Science, New Delhi. He was working with the Chemistry division of the Cfsl for the last about 20 years and had analysed 1,000 of samples of drugs and Chemicals. He clearly stated that on August 8, 1991 one sealed parcel with the seals of C.S.R. and S.K.S. intact were received in the office of the Cfsl along with the officials' specimen seal. The seals of the parcels tallied with the specimen seals on the form and on analysis of the sample it gave positive test for charas. Nothing adverse to the prosecution has been slated by him in his cross- examination. In my view, therefore, the contention of Mr.Andley that no reliance should be placed upon this report cannot be upheld.

 (7) The next contention of Mr.Andley is that in the absence of any public witness having been examined in Court, the appellant should not have been convicted merely on the testimony of the police officials without any corroboration from any independent source. He has referred to me the decision in Munilal Vs. State 1995 Jcc 110. In Munilal Vs. State (Supra, it was held by this Court that :-    "THERE is distinction in basing the conviction on the confession recorded by the Police and conviction recorded on the basis of Police witnesses examined in Court. At the same time, when we analyze the well settled and time tested principles of Evidence Act and criminal jurisprudence, the conclusion becomes irresistible that no conviction should be made solely on the testimony of the Police officials without any corroboration from any independent source. In the instant case, the conviction by the trial Court has been recorded solely on the testimony of the police officials and more so when even the mandatory notice under Section 50 Ndps Act has not been given in writing."   

 (8) It is no doubt true that the Court should always be reluctant in convicting a person solely on the basis of the testimony of the police officials, however, we have also to keep in view that the prosecution case cannot be thrown out or doubted on that ground alone. One cannot ignore the handicap with which the investigating agency discharge their duties as there is a general apathy in the public to come forward and appear as witness in Court cases. Even in this case one independent witness was associated at the time of search of the appellant and one seal was also kept with him, however, when the summons were sent to him, it was found that he had left the address where he was living as a tenant. The prosecution has done everything within its power to have the statement of the independent witness recorded in Court, however, in case for some reason the said witness has not been produced in the Court, in my opinion, the conviction of the appellant cannot be set aside merely on that ground. It is in the statement of the witnesses that many public independent witnesses were asked to join the raiding party, however, they refused. What the police should have done in these circumstances? No doubt it public witnesses decline to cooperate without any reasonable cause, they would be deemed to have committed an offence under Section 187 of IPC. However, we must also keep in view the ground realities in the sense that public witnesses, normally, do not want them to be associated in cases where they are asked to appear in Courts. In this regard it will be appropriate to notice the following observations of the Supreme Court in Appabhai and Another Vs. State of Gujarat  :-    "IT is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in villages, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubling the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with .due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witness at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."   

(9) This Court in Horilal Vs. State 1996 Jcc 410 has also held that the testimony of a witness should not be disbelieved merely on the ground that he happened to be an official witness. In Sudarshan Vs. State, it has been again held by this Court that "after all there was some urgency in organising the raiding parly so that the raid may not fall with I.O. spending more time in making efforts to join some more public witnesses. It is evident that if I.O. had proceeded to make efforts to join shopkeepers and persons from the offices, the same would have taken a considerable time and thereby would have allowed the opportunity to apprehend the culprit slipped from his hand". In case, the police officials had proceeded' to book those persons who had refused to join the raiding party so as to prosecute them under Section 187 of the Ipc, they would have not been able to apprehend the real culprits. It depends upon the facts and circumstances of each case as to when and how a person should be prosecuted under Section 187 Indian Penal Code for his having refused to join the raiding party. In the present case, the information was received by the 1.0. while he was on petrol duty and he could not have, therefore, lost any time in organising the raiding party and I, therefore, do not find any infirmity in the investigation or trial merely because independent witness could not be associated in the raid. In my opinion, it cannot be laid down as broad proposition of law that if public witnesses are not joined in the raiding party, the recovery effected by the police is always' doubtful or that the accused should not be convicted merely on their statement. It has not been even suggested nor has been pointed out to me or to the trial Court that the police had any enmity with the appellant or there was any motive in their implicating him. The testimony of the witness in my view would not he doubted or discarded merely on the ground that he happens to be an official witness. I have gone through the statement of all the witnesses and I do not find any reason as to whey they should be disbelieved. There is no infirmity in the statement of any of the prosecution witnesses and I have no hesitation in accepting their testimony.

(10) For the foregoing reasons I do not find any ground to set aside the judgment of the trial Court. I maintain the conviction and sentence of the appellant and dismiss this appeal.