TaxTMI 
TaxTMI 
2015 (9) TMI 670
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....secret information was conveyed to the senior officers including ACP and on the directions of the senior officers, raiding party was constituted headed by SI Hari Kishan and consisting of Ct. Ved Pal and Ct. Satish and the raiding party left the PS vide DD No.38-A alongwith secret informer in Gypsy No.DL-1C-J-4863 driven by Ct. Hans. The Gypsy was parked at Gali No.11, Krishna Puri, Tilak Nagar and driver was left in the vehicle. Thereafter, efforts by raiding team to join public witness could not succeed. 4. The raiding party took position in Gali No.10 and at about 9.25 PM one Nigerian person, whose identity was subsequently revealed as Sunday Emegha, who is appellant before this Court, was seen coming with a bag on his right shoulder from Outer Ring Road side towards Krishna Puri and on the pointing out of the informer, he was apprehended. 5. As the appellant was not conversant with Hindi, he was communicated in English about the information being received and his legal right to get the search conducted in the presence of Gazetted Officer or Magistrate and notice to this effect under Section 50 NDPS Act Ex.PW4/A was served upon him by handing over carbon copy of the notice. Th....
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....re discharging their duties. The link evidence was also considered reliable by the learned Special Judge (NDPS), thus, ruling out any tampering with the case property. Taking into consideration the commercial quantity of the heroine i.e. 1400 grams with purity of 80.1 percent, the Court ruled out the possibility of planting of the case property. Since, as per the information received by the police, the visa of the appellant had already expired on 13.03.2008 and on the date of arrest i.e. 17.04.2009 his stay in India was obviously unauthorised, he was also convicted under Section 14 of Foreigners Act. 10. On behalf of appellant, Mr.S.K.Pandey, Adv. filed brief written synopsis and also made oral submissions. I have also heard Mr.Navin Sharma, learned APP for State. 11. The main contentions raised on behalf of the appellant are that despite the place of apprehension being thickly populated area, no sincere effort was made to join the public witness which cast serious doubt regarding the manner of apprehension of the appellant and the recovery effected from him. It has been further submitted that compliance of Section 50 of NDPS Act is not a mere ritual, it is a substantial right gi....
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....nvestigating agency to ascertain the source of recovered heroine from the appellant also shows that nothing was recovered from him and he has been falsely implicated in this case after planting heroine on him. Thus, the case of prosecution being dented with so many flaws, the appellant needs to be acquitted. Learned counsel for the appellant has relied upon Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609 in support of his contentions. 14. On behalf of State, it has been submitted that it is a matter of common knowledge that public witnesses are reluctant to associate themselves, sometimes due to fear and sometimes to avoid the harassment faced by them, while appearing as a witness in the Court. It has been contended that no doubt, the investigating agency should make genuine efforts to associate public witnesses but non-joining of public witnesses in itself is no ground to discard police officials who had apprehended the appellant and effect the recovery in discharge of their official function without any animus towards the appellant. It has been contended that in this case, not only the sample was sent to FSL at the earliest but FSL result was also obtained and f....
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....stion for consideration was whether the safeguards provided by Section 50 of NDPS Act regarding search of any 'person' would also apply to any bag, briefcase or any such article or container etc., which is being carried by him. The rival contentions before the Apex Court were:- „6. What is the meaning of words „search any person‟ occurring in Sub-section (1) of Section 50 of the Act. Learned counsel for the accused has submitted that the word "person" occurring in Section 50 would also include within its ambit any bag, briefcase or any such article or container, etc., being carried by such person and the provisions of Section 50 have to be strictly complied with while conducting search of such bag, briefcase, article or container, etc. Learned counsel for the State has, on the other hand, submitted that there is no warrant for giving such an extended meaning and the word "person" would mean only the person himself and not any bag, briefcase, article or container, etc., being carried by him.' While dealing with the above contention, the Apex Court observed: „11. A bag, briefcase or any such article or container, etc. can, under no circumstance....
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....strate would cause prejudice to an accused. (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. (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 person concerned 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." 14. The above q....
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....09 but it cannot be ignored that the samples and FSL form were sealed with the seal of HK and SD. The seal of HK was given to HC Rajbir. The FSL report Ex.PW6/B specifically contains the information that two sealed parcels marked as 'A' and 'B' received with intact seals and tallied with the specimen seals as on the forwarding letter (FSL form). HC Ram Lal Meena, the MHC(M) has been examined as PW-2 by the prosecution who has produced Register No.19 and placed on record the relevant extract as Ex.PW2/A. 23. The contentions regarding discrepancy in the weight of two samples as pointed out by learned counsel for the appellant also stands answered by the result Ex.PW6/B wherein while mentioning the weight, it is also mentioned 'with polythene'. Thus, it is clear that the difference in the weight is due to the weight of the polythene in which the samples were kept and not as a result of any tampering with the case property. 24. So far as difference in weight of the samples is concerned, reference can be placed on State by CBI vs. Dilbagh (2004) 13 SCC 99, wherein one of the contentions raised was that there was a difference in weight of the sample as extracted....
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....es which were taken were sent to FSL, were examined there and further that at the time of examination, the seals were found intact and tallied with the specimen seal. So the contention of learned counsel for the petitioner to claim benefit of doubt on this ground has to be rejected. 26. No doubt, the site plan Ex.PW12/A does not show the source of light but at the same time, it cannot be ignored that point 'A' from where the appellant was apprehended is just adjacent to Outer Ring Road, thus, the light under which the writing work was done cannot be said to be so insufficient as to make the writing work of the nature required while conducting proceedings in a case under NDPS Act, to be rendered impossible. 27. The contention regarding handing over of rukka and case property to Ct. Ved Prakash has to be rejected for the simple reason that in all the documents Ct.Ved Pal alongwith his No.1997/West, PS Tilak Nagar is mentioned and it appears that due to slip of tongue or lapse of memory of PW4 HC Jagbir. Ct. Ved Pal was referred as Ct.Ved Prakash. 28. With reference to overwriting on the arrest memo Ex.PW4/C, no doubt in column No.6 while giving the date of arrest, there is....
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....n 313 CrPC had given his address in India as WZ-15/B/2, Gali No.10, Krishna Puri and it is the same address referred to by the secret informer. However, when in Question No.40, it was put to him that on 19.04.2009 in the morning he was taken to the house of Stanley at H.No. WZ-15/B/2, Street No.10, 2nd floor, Krishna Puri and the landlord produced tenant verification form in triplicate which was seized vide memo Ex.PW12/B, he denied it as incorrect. He also denied that PW-13 Meena Awasthi had rented third floor of her house to one Stanley (also a Nigerian national) for a period of six months and pleaded ignorance saying he did not know. In Question No.42 when it was put to him that he was seen by Smt. Meena Awasthi in the company of Stanley on the roof of House No.WZ-15/B/2, Krishna Puri, he admitted that he visited that place once. What is more startling in this case is that throughout the appellant has not mentioned that after his arrival in India till his date of arrest, where he was staying. This fact could be only in the special knowledge of the appellant but on the one hand, he is giving address of Meena Awasthi as his own address and on the other hand claiming that he had vi....
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....ls in itself is no ground to discard their otherwise creditworthy testimony. It was so held in the case of Ajmer Singh vs. Haryana (2010) 2 SCC (Crl.) 475 : „Testimony of official witnesses, even in absence of its corroboration by independent evidence can form basis of conviction if Court is satisfied, on careful and cautious appreciation of evidence, that it is otherwise believable.‟ 34. Effect of non-joining of public witnesses was also considered in Mahatam Parshad vs. State 63 (1996) DLT 884 and it was observed: '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 sen....