(SHORT NOTE)
2007(2) Crimes 261 (Del.)
DELHI HIGH COURT
Shiv Narayan Dhingra, J.
Siddiqua - Appellant
versus
Narcotics Control Bureau - Respondent
Crl. Appeal No. 284 of 2002
Decided on 12-12-2006

IMPORTANT POINT
Merely because panch witness remembered facts after seeing documents which were prepared on spot, it would not mean witness became hostile.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 21(c) - Recovery of 5kg of heroin from possession of accused - Conviction by trial Court - Appeal - One of the panch witnesses joined by police was taxi driver and contention that he was not reliable - Merely because witness refreshed his memory by seeing documents would not mean, he became hostile - Contention that witness had not supported the case was not acceptable.

       Held : It is not expected of an independent witness to remember each and every thing about the case when he appears in the witness box. If material details are given by him, supporting the prosecution case and the witness does not remember some of the things, he is not a hostile witness. A witness can be asked to refresh his memory by looking into documents bearing his signatures or his writing to refresh his memory. The public prosecutor could have shown the documents to the witness even in examination-in-chief and asked him to explain the circumstances under which documents were prepared. The law permits a witness to refresh his memory by seeing the documents prepared at the spot. Merely because the witness remembered the things after seeing the documents, prepared in his presence on the date of incident, the witness does not become hostile witness. Such a witness is completely reliable witness, I find no force in the arguments advanced by the learned Counsel for the Appellant that independent witness had not supported the prosecution case or that the panch witness (PW 9) was not reliable.

       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 21(c) Recovery of 5 kg of heroin from possession of accused - Conviction - Appeal - Contention that seal after use was not given to independent witness and could be misused - Samples in the case were sent to CRCL on very next day - Any possibility of tampering the seal stood ruled out - Contention had no merit.

       Held : The next argument advanced by learned counsel for the Appellant is that the seal after use was not given to an independent witness and the seal could be misused. It has to be noted that there was no provision under the NDPS Act for handing over of the seal by the investigating officer after use to some independent witness. An investigating officer has to do investigation day out and day in, in several cases. It is not that after every recovery, a new seal has to be got prepared by the investigating officer and the old seal is to be discarded. Counsel for the Appellant submitted that the seal movement register has not been produced by the prosecution to show the movement of the seal after used in the case. However, learned Counsel for the Appellant failed to show any statutory rule under which any seal movement register is to be maintained by the prosecution. The Court cannot consider some imaginary doubts as the basis of attack on a judgment. It is not the stand of the counsel for the Appellant that the seal was misused by the investigating officer after sealing of the samples and the case property. No such suggestion has been given to any of the prosecution witness. The only stand is that the seal was not given to an independent witness and there was possibility of misuse. Mere possibility of a thing does not cast doubt on the prosecution case. In this case, the samples and the case property were sealed with paper slips, containing the signatures of the panch witnesses. These papers slips were found intact by the learned trial Court when the case property was produced in the Court. Similarly, when the samples were received by the CRCL, the seals were found intact with the paper slips. There is another factor. The samples in this case were sent to CRCL on the very next day i.e. 26th March, 1998. Any possibility of tampering the seals, therefore, stands ruled out.

       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 21(C) - Recovery of 5 kg of heroin from possession of accused - Conviction - Appeal - Non preparing of test memo on spot - Would not vitiate trial or conviction.

       Held : The Court has to adopt a pragmatic approach while considering the spot investigations. Fair and impartial investigation is no doubt sacrosanct, but rituals of investigation cannot be insisted upon unless strict compliance of such rituals is prescribed by statutes. There is no rule of evidence or procedural laws under Cr.PC or NDPS Act that every document must be prepared on the spot of recovery. The learned counsel for the Appellant has failed to show any rule framed under the NDPS Act which requires that the Test Memo has to be prepared at the spot. While sealing of case property/samples etc. should be done at the spot if practical, test memo can be prepared by the investigating agency after coming to office. It is not the requirement of law that the entire investigation must be completed on the spot and no part of writing work can be done by the investigating agency in the office or at any other place. Instruction No. 2.9 relied upon by the Appellant’s Counsel does not say that Test memo is to be prepared at the spot of recovery of drugs. The guidelines, issued by the department are advisory in nature and have no legal sanctity. Only statutory laws made by Parliament or rules made under delegated legislators/power as conferred by the Statute, have legal force. Circulars, administrative orders or executive instructions, issued without any statutory powers are not binding in nature. They are instructions of prudence. Merely because instructions/guidelines have been followed by an investigating officer, the Court cannot hold that the statutory provisions and rules have been complied with compliance. The statutory provisions and rules made under the Act has to be looked upon independent of the departmental instructions.

       Learned counsel for the Appellant failed to point out any piece of evidence to show that the samples got tampered by not preparing test memo at the spot and preparing the same in the office. He also failed to show any prejudice to the Appellant. I find no force in the argument.

       (iv) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 21(C) - Recovery of 5 kg of heroin from possession of accused - Conviction - Appeal Non-production of Malkhana Register in evidence - Effect in context of Section 91 and 92 of Evidence Act - Provision of Evidence Act would not deal with official register maintained at Malkhana - Official who deposited case property in malkhana appeared in Court - Mere non production of Malkhana Register could not create doubt about case property remaining intact in Malkhana.

       Held : A perusal of above Sections of Evidence Act would show that no mileage can be drawn by the learned counsel for the Appellant out of the above two Sections. These two Sections deal with altogether different kinds of documents and do not deal with the official registers, maintained at store room or Malkhana. Considering hypothetical, can mere entry in Malkhana register be considered sufficient to prove the depositing of a case property in Malkhana? The answer is emphatic “No”. The entry can be made in Malkhana register without actually depositing the samples. Unless either the person who deposited the case property or MHCM/store incharge do not prove the deposit of samples, mere production of Malkhana register with the entries about deposition of samples, in the Court is of no use. Malkhana Register is maintained in Malkhana as a stock register. It is not a concrete proof of deposit of the property. In the instant case, the official who deposited the case property in Malkhana deposed in the Court about it. The evidence on record shows when the case property was deposited, when the samples were taken out of Malkhana for sending to the laboratory. The case property duly sealed was produced from Malkhana in the Court in intact condition. Mere non-production of Malkhana Register cannot create doubt about the case property remaining intact in the Malkhana.

       (v) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 57 - When information recorded in writing in original is sent to senior officer who makes an endorsement on same, it would be compliance of Section 57 of the Act.

       Held : I consider that Section 57 of the NDPS Act only ensures that the information, which is recorded, is made known to the superior officer. Sending a copy is only a mode of doing this. If original is sent to the senior officer, who makes an edorsement on the same, it is more than sufficient compliance of Section 57 of the NDPS Act.

       Result : Appeal dismissed.