The delay in sending the sample to the Forensic Science Laboratory (FSL) is not fatal if the seals of the samples remained intact, and the evidence of police officials can be relied upon if genuine efforts to involve public witnesses were made.

S.P. Garg, J.

1. Challenge in this appeal is to a judgment dated 08.02.2012 of learned Special Judge (NDPS) / Addl. Sessions Judge in Sessions Case No. 07/10 arising out of FIR No. 10/10 PS Narcotics Branch by which the appellant – Deepender Kumar @ Chhotu was convicted under Section 21 (c) of the NDPS Act. By an order dated 15.02.2012, he was sentenced to undergo RI for ten years with fine Rs.1 lac.

2. Briefly stated, the prosecution case as unfolded in the chargesheet was that on 04.02.2010 at about 05.05 P.M. near Bus Stop, Metro Station – Seelampur, Delhi, the appellant was found in possession of 500 gms. of Heroin having 0.73% diacetylmorphine, a contraband, without licence or permit. During investigation, statements of the witnesses conversant with the facts were recorded. The exhibits were sent to Forensic Science Laboratory for examination. After completion of investigation, a charge-sheet was placed before the Court concerned against the appellant; he was duly charged and brought to trial. The prosecution produced ten witnesses to further its case. In 313 statement, denying his complicity in the crime, the appellant claimed his arrest at Muzzafarnagar while going to meet his aunt (Bua) without producing defence. The trial resulted in his conviction as aforesaid. Being aggrieved and dissatisfied, he has preferred the appeal.

3. Learned counsel for the appellant urged that the Trial Court did not appreciate the evidence in its true and proper perspective and erred in relying upon the testimonies of police officials alone. Despite availability of independent public witnesses, no sincere efforts were made to associate them at any stage of the investigation. Counsel emphasized that inordinate delay of fifteen days in sending the sample to FSL was fatal. Relying upon the judgment of this Court, ‘Rishi Dev @ Onkar Singh vs. State (Delhi Admn.)’, Crl.A.No.757/2000 dated 01.05.2008, he contended that the delay beyond 72 hours was not permissible and there was every possibility of tempering with the sample and contraband. Learned Addl. Public Prosecutor urged that the delay per se was inconsequential as the prosecution was able to confirm that the sample remained intact throughout. Despite various requests by Investigating Officer to many individuals to join, none of them agreed to be a witness for one or the other reason. In the absence of cogent reasons, testimonies of police officials cannot be suspected.

4. Secret information received by PW-8 (SI Bhagwan Singh) at his office at 03.45 P.M. about the arrival of Deepender Kumar @ Chhotu, R/o Neem Ka Thana, Distt. Seekar, Rajasthan, to supply smack in retail and wholesale in Delhi at Bus Stand, Metro Station Seelampur, Delhi in between 05.00 P.M. to 05.30 P.M. led to recording of Daily Diary (DD) No.23 (Ex.PW-8/A) at 04.15 P.M. SI Bhgwan Singh testified that this DD was produced before Insp.M.L.Sharma who put his signatures at point ‘B’ and on his directions, he constituted a raiding party comprising of he himself, HC Mahesh Kumar and Const.Satpal. Insp.M.L.Sharma apprised about the secret information to ACP S.R.Yadav on telephone in his office who directed to conduct a raid and to proceed in accordance with law. PW-10 (Insp.M.L.Sharma) corroborated the version given by PW-8 (SI Bhagwan Singh) in its entirety. The raiding team left for the spot in official vehicle No.DL-1CJ-3481 vide DD No.24 (Ex.PW-8/B) at 0 4.30 P.M. Compliance of provisions of Section 42 of the NDPS Act are not under challenge.

5. PW-8 (SI Bhagwan Singh), PW-4 (HC Mahesh) and PW-3 (Const.Satpal), all have deposed that on the way, SI Bhagwan Singh requested passersby standing at the Bus Stands at Pushta Road and Dharampura to join the investigation but none of them agreed. They admitted that no notice was served upon the public persons declining to participate in the proceedings and their names and addresses were not noted. It is true that no independent witness was associated in the raid. The Investiga