DELHI HIGH COURT
P.K. Bahri and SD. Pandit, JJ.
Amarjit Singh & Anr. - Appellants
versus
State (Delhi Admn.) - Respondent
Criminal Appeal No. 91-92
Decided on 2.12.1994
Counsel for the parties:
For the Appellants - S.K. Aggarwal with Jatinder Sarin and L.R. Luthra, Advocates.
For the Respondent - Ms. Mukta Gupta, Advocate.

IMPORTANT POINTS
1. Once a document is properly admitted the contents of the document would stand admitted in evidence and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal.
2. Even when the recovery of the contraband has been affected from the vehicle, the mandatory provisions of section 50 of the ND.P.S. Act has to be complied with if there is prior information with the authorities with regard to possibility of a suspect being in possession of contraband drugs.
3. It would be better if while investigation, in serious cases is in progress, the higher officers do not go for publicity in press unless they ensure that correct facts appear in the newspapers based on the information given by the said higher officers.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20 - Prosecution for offence punishable under. Alleged recovery of charas - Copy of entries in Malkhana Register proved - No evidence about any CFSL form being filled up and handed over alongwith sealed parcels - No mention in entry in Malkhana Register that either CFSL form has been deposited or same has been sent to CFSL alongwith samples - Held, case property did not remain duly sealed and un-tampered.

       Held: As far as the evidence led by the prosecution in the present case is concerned, P.W. 1 Head Constable Ved Singh, who was Incharge of the Malkhana, Police Station Kingsway Camp at the relevant time, had proved on record a copy of the entries made in the Malkhana Register. A perusal of the said copy of the entries made in the Malkhana Register Ex. P.W. l/A-l to P.W. l/A-8 does not show that any CFSL form filled in respect of the case in question had been deposited in the Malkhana along with the case property. In court also Head Constable Ved Singh did not say anything about the CFSL form. Constable Brahm Pal Singh P.W. 8 is stated to have been handed over the nine sealed parcels containing the samples on May 12, 1987 which he is stated to have deposited intact with the office of the CFSL and he deposed that the samples remained un-tempered but he does not say on oath that any CFSL form had been handed over to him containing the specimen seals alongwith the said sealed parcels or he had handed over any such CFSL from at the office of the CFSL at any time. So, we do no know exactly from the evidence led by the prosecution that the CFSL form which finds mention in the report of the CFSL Ex. P A was the same CFSL form or not which is stated to have been filled in by the Investigating Officer at the time the samples were converted into scaled parcels and the specimen of the two seals used on the said parcels had been affixed on such CFSL form. (Para 5)

       Further Held: It was for the prosecution to prove that not only the case property was duly sealed with particular seals and was duly deposited in the Malkhana un-tempered but it was also incumbent upon the prosecution to show that the samples which had been duly sealed remained intact till they reached the office of the CFSL. In proving these facts it was necessary for the prosecution to prove that the CFSL form containing the specimen seals which was duly filled at the time of taking of the samples also remained intact and it reached the office of the CFSL alongwith .the samples. Unfortunately for the prosecution, there is not an iota of evidence to show that the CFSL form, which was allegedly filled in at the time of taking of the samples, was sent in the same condition to the office of the CFSL. We do not know as to where the said particular CFSL form remained during all this period. (Para 7)

       Consequently Held: In order to prove that the case property did not remain duly sealed as averred by the prosecution, the defence has examined D.W. 1 from the office of Hindustan Times and proved on record copy of the newspaper dated May 10, 1987, which contains not only the news item pertaining to the recovery made in this case but also a photograph showing ASI Hari Singh and Head Constable. Dalel Singh handling the nine parcels being taken out from the Jonga Jeep and those parcels are open and charas is shown to be taken out from some of the parcels. (para 9)

       In case the Jonga Jeep in question had remained in Malkhana of Police Station Kingsway Camp after it was seized on May 8, 1987, it is not understood how the same could be got photographed on May 9, 1987, alongwith with ASI Hari Singh and Head Constable Dalel Singh in Morris Nagar from the press photographers. None of the police witnesses, particularly the SHO and SI Mohan Singh had given any clarification as to how this Jonga Jeep in question came to be taken out from the Mall0ana of Kingsway Camp Police Station and came to be photographed alongwith ASI Hari Singh and Head Constable Dalel Singh.(para 11)

       There is no reason for the court to disbelieve the testimony of D.W. 2 Sharad Saxena which is duly supported by the negatives and photographs and also finds corroboration from the news reports appearing alongwith the said photographs in the newspapers mentioned above, particularly when SI Mohan Singh has vouchsafed the correctness of the photograph by identifying ASI Hari Singh and Head Constable Dalel Singh in the aforesaid photograph and also the Jonga Jeep in question. If that is so, it becomes evident that the case property did not remain duly sealed as alleged by the prosecution from May 8,1987, onwards.

       (Para 12)

       (ii) Evidence - Criminal Procedure Code, 1973 - Section 293 - Recovery of charas - Report of CFSL expert - Whether admissible in evidence without expert being examined?

       Held: This report is given by Sh. C.L. Bansal, Senior Scientific Assistant (Chemistry), Central Forensic Science Laboratory. The said officer is not designated Chemical Examiner or Asst. Chemical Examiner to the Government. The reports of the certain officers of the CFSL have been made admissible in evidence without the experts being examined in clause (e) referred above. They are Director and Deputy Director or Assistant Director. Shri Bansal is not shown to be anyone of them. It is, hence, evident that Section 293 was not applicable to this part. If that is so, his report could not have been proved without calling him as a witness. (Para 15)

       (iii) Evidence Act, 1872 - Section 45 When a document allowed to be proved and exhibited without objection being raised by defence - Can Court entertain any such objection regarding mode of proof at any later stage of case? - (No, such an objection ought to be raised by defence at time document is sought to be tendered in evidence). (Paras 18 to 21)

       (iv) Nareotic Drugs and Psychotropic Substances Act - Section 50 - Compliance of mandatory provisions - Words 'personal search' - When recovery of contraband effected from vehicle - Whether Police officials should comply with provisions of Section 50? - (Yes)

       Held: The words 'personal search' appearing in Section 50 of the Act would, in our view, mean that if accused is in possession of the drug, may be on his body or may be on a particular vehicle in which he is found to be in possession or may be having the contraband in his bags which he may be carrying of which he was in physical possession at the relevant time, the provisions of Section 50 of the Act have to be complied with if there is prior information with the authorities with regard to possibility of a suspect being in possession of contraband drugs. (Para 26)

       Further Held, that if a particular suspect or accused is physically present in a conveyance or in a house at the time of the search, in our view, the compliance of mandatory provisions of Section 50 of the Act must be made because the purpose of introducing Section 50 is to ensure that fair investigation is being carried out and recovery being effected remains without any suspicion or doubt. Obviously, if accused in such a situation wants presence of a gazetted officer or a Magistrate before being searched and such a search is carried out in presence of a gazetted officer or a Magistrate and some contraband drug is recovered, that would strengthen the prosecution case and there would remain very less suspicion with regard to recovery being effected from a particular accused in such a situation. (Para 28)

       (v) NDPS act - Sections 20 & 50 - Conviction under - Non-compliance of mandatory provisions of Section 50 - Omission in F.I.R. that no option was given to appellants that there search could be carried out in presence of a Magistrate - Conviction recorded not sustainable. (Paras 23, 28)

       (vi) Investigation - Offences under NDPS Act - More efficient investigation on scientific lines required to be carried out.

       Held, that more efficient investigation on scientific lines by some experienced and trained police officers in the science and art of investigation is required to be carried out in more heinous and grave offences like the offences under the NDPS Act. This case reveals that the investigation has been, to say the least, shoddy. There has been lapses on very material aspects of the case which cannot be looked with any equanimity. We have already highlighted the various lapses which had occurred in this case because of immature investigation carried out by the Investigating Officer. We think this is a fit case where the Commissioner of Police should institute a probe in order to take action against the defaulting officials. It is necessary for the Police Commissioner to find out as to how and why such grave lapses have taken place at the level of not only Investigating Officer but even at the level of Deputy Commissioner of Police which have unfortunately resulted in acquittal of the appellants who were allegedly found to be in possession of huge quantity of charas. (Para 29)

       Result: Appeal allowed.