Delhi High Court
Attar Singh vs State (Delhi Administration) on 1 May, 1994
Equivalent citations: 1994IIIAD(DELHI)625, 1994(30)DRJ65
JUDGMENT V.B. Bansal, J.
(1) In this appeal Attar Singh has challenged his conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'Act') and the sentence of Rigorous Imprisonment for 10 years with a fine of Rs.1,000.00 or in default to undergo further Rigorous Imprisonment for two years Cr.A.129/92 vide judgment and order dated 16.7.92 by an Additional Sessions Judge, Delhi.
(2) Charge under Section 18 of the Act was framed against the appellant on 28.10.1991 that on 6.1.1991 near Woodland Park, Najafgarh Road, he was found in possession of 1 Kg. of opium.
(3) In nutshell, allegations against the appellant have been that on 6.1.1991 Asi Ranbir Singh was present with Inspector Rajinder Singh, Sho Police Station Rajouri Garden with other officials on patrol duty and reached near Taxi Stand Tagore Garden. Secret information was received at about 9.05 pm. that one person having opium would be coming from the side of Tilak Nagar and would be proceeding towards Tagore Garden via Subhash Nagar Mod. Accordingly, a raiding party was organized by Asi Ranbir Singh under the supervision of Inspector Rajinder Singh in which one Vinod from public was also joined. Attar Singh was apprehended at about 9.25 pm. at the pointing out of the informer.
(4) Inspector Rajinder Singh, disclosing his identity informed Attar Singh about the information available with him regarding his having opium and that if he so desired he could be taken before a Magistrate or a gazetted officer. This offer was, however, de p/.3 dined by Attar Singh.
(5) Inspector Rajinder Singh gave information to-ACP Vijay Malik who reached the spot and in his presence personal search of Attar Singh was taken when opium was recovered from him, which on weighing was found to be I Kg. A sample of 100 grams was separated and both the sample and the remaining opium were converted into separate parcels sealed with the seal of 'RS' of the I.O. Inspector Rajinder Singh also affixed his own seal of 'RS' on the two parcels and also on the Cfsl form, which was filled up at the spot. These were taken into possession by the 1.0. after preparing a seizure memo. A separate certificate was given by Acp Vijay Malik with regard to the proceedings taken in his presence. Asi Ranbir Singh sent the rucca to Police Station Rajouri Garden on the basis of which Fir No. 17 was recorded.
(6) The case property and the Cfsl form were taken by the Sho and he deposited the same in the Malkhana. The 1.0. recorded the statements of the,witnesses and arrested Attar Singh.
(7) The sample sealed parcel was sent to Cfsl wherefrom a report was received. Investigation revealed commission of offence under Section 18 of the Act and, thus, the challan.
(8) Attar Singh pleaded not guilty to the charge and claimed trial. In his statement recorded under section 313 of the Code of Criminal Procedure he had denied all the allegations and pleaded that he had falsely been implicated in the case and that no recovery was effected from him. He examined one witness in defense. The learned trial court after hearing arguments convicted and sentenced the appellant as referred to above.
(9) I have heard Shri K.B. Andley, learned counsel for the appellant; and Ms. Mukta Gupta, learned counsel for the State. I have also carefully gone through the record.
(10) Learned counsel for the petitioner has submitted that there has not been any reliable evidence on record with regard to the filling of the Cfsl form and about the deposit of the same with the Moharrir Malkhana. He has further submitted that there is no reliable evidence with regard to the sending of the Cfsl form Along with the sample to Cfsl and that there has been a delay in sending of the same to the Central Forensic Science Laboratory which could be indicative of the fact that the case property was tampered with. He has further submitted that there is no proper report from the Cfsl on record so as to hold that the recovery even if effected from the appellant was that of opium and, thus, prayed that the appellant be at least given the benefit of doubt and acquitted.
(11) Learned counsel for the State has, on the other hand, submitted that there are consistent statements of the prosecution witnesses to prove that the Cfsl form was filled up at the spot on which both the seals were affixed, which were used on the two parcels at the spot. She has further submitted that the case property remained in the custody of H.C. Ishwar Singh, Moharrir Malkhana, PW/1; and the sample Along with the Cfsl form was sent to the Cfsl through Constable Ram Nath, Public Witness / 7, without being tampered with by anyone. It has also been submitted that Ex.PW / 6/B is the report from the Cfsl which was exhibited in the statement of Asi Ranbir Singh, PW/6, without there being any objection and, thus, it is not permissible for the appellant to raise any objection with regard to the admissibility of this document in evidence in appeal.
(12) I would take up first the submission with regard to the question of the tampering of the case property. Prosecution has examined Inspector Rajinder Singh, PW/2; Acp Vijay Malik, PW/4; Vinod Kumar, PW/5; and Asi Ranbir Singh, Pw /6 with regard to the recovery of opium from the appellant. If has specifically been stated by all these witnesses that opium was recovered from Attar Singh, which, on weighing, was found to be 1 Kg. They are also consistent in their statements about separating a sample of 100 grams and sealing of sample and the remaining opium with the seal of 'RS' by 1.0. and another seal of 'RS' by S.H.O. They have also made consistent statement about the filling of the Cfsl form and taking into possession of the same by the 1.0. after preparing seizure memo, Ex.PW/2/A. H.C. Ishwar Singh, PW/1, was working as Moharrir Malkhana, Police Station Rajouri Garden, who has made a categorical statement that the case property having two seals of 'RS' and Cfsl form were deposited with him by Inspector Rajinder Singh on 6.1.1991 and that the sample parcel Along with the Cfsl form were sent to Cfsl through Constable Ram Nath, without being tampered with by anyone. He has, during cross-examination, admitted that in the relevant entries in the Register Malkhana there was no mention about the deposit of the Cfsl form and admitted that in his statement under section 161, Cr.P.C. he had not stated about the deposit of the form with him. Inspector Rajinder Singh, Public Witness /2, has also claimed having deposited the case property Along with the Cfsl form with the Moharrir Malkhana. He has denied that the Cfsl form was not deposited by him in the Malkhana. Acp Vijay Malik has made a categorical statement with regard to the filling up of the Cfsl form; affixing of two seals of 'RS' on it as also the preparing of two sealed parcels at the spot. Vinod Kumar, who is a witness from the public, has also made a categorical statement with regard to the filling up of Cfsl form at the spot. Asi Ranbir Singh, 1.0. has deposed with regard to the filling up of the Cfsl form and giving the same to Inspector Rajinder Singh Along with the case property and about having collected the report from the CFSL. -he has denied that the Cfsl form was not deposited with Moharrir Malkhana. Constable Ram Nath has made a categorical statement about the filling up of the Cfsl form at the spot and with regard to his having taken' the sealed sample parcel and the Cfsl form from Moharrir Malkhana had having deposited the same with the Cfsl without being tampered with by anyone.
(13) There is no doubt that in the statements of the witnesses recorded by the 1.0. there has not been any mention with regard to the deposit of the Cfsl form with Moharrir Malkhana. However, they all have made categorical statements with regard to the filling of the Cfsl form at the spot and there is clear, cogent and convincing evidence of the witnesses, viz. Inspector Rajinder Singh, Asi Ranbir Singh, Head Constable Ishwar Singh and Constable Ram Nath to indicate that the Cfsl form was deposited with Moharrir Malkhana wherefrom it was sent to the Cfsl Along with the sample. It appears that there has been an omission in the statements under section 161 with regard to the deposit of the Cfsl form. This would, however, not be sufficient to disbelieve the testimony of these witnesses which could not be shattered during cross-examination. This very point came up for discussion in case Mohd.Asif Vs. State([)elhi Administration) 1991 (2)Gandhinagar Criminal Case (17) High Court, wherein it was observed: "HOWEVER,this could be an omission either on his part or on the part of the Investigating Officer but there is nothing on record to disbelieve him in his claim that the Cfsl form was also deposited in the'Malkhana along with the case property especially when his statement stands corroborated from the testimony of constable George Topno (Public Witness /8) about having taken the samples and the Cfsl form with road certificate and depositing the same in the Cfsl without being tampered with."
(14) In these circumstances, I am clear in my mind that it cannot be said that the Cfsl form was not filled up or that it was not deposited with Moharrir Malkhana. It has clearly been proved by the prosecution that the sealed parcel Along with the ' Cfsl form were prepared at the spot and were deposited with the Moharrir Malkhana wherefrom the sample and the Cfsl form were sent to Cfsl, without being tampered with.
(15) Learned counsel for the appellant has submitted that a perusal of the report Ex.PW/6/B makes it clear that it is a report by Shri C.L. Bansal, Sr.Scientific Assistant (Chemistry), Central Forensic Science Laboratory, Central Bureau of Investigation, Lodhi Road, New Delhi, and that Shri C.L. Bansal is not an officer covered by Section 293 of the Code of Criminal Procedure and, thus, this report is not admissible in the absence of the aforesaid officer being examined in Court. He has, thus, submitted that the report in question cannot be read in evidence and in the absence of this report there is nothing on record to prove that the recovery alleged to have been made by the police from the appellant was that of opium and on this short ground he is entitled to be acquitted. He has placed reliance upon the Judgment of this Court in Hira/ Vs. State . Learned counsel for the respondent has, however, submitted that there has not been any objection by the appellant before the trial court when the aforesaid report was exhibited or even thereafter and in these circumstances, it is not permissible for the appellant to raise such an objection in this Court for the first time. Reliance in this regard is placed upon the judgment Phool Kumar Vs. Delhi Administration .
(16) In order to appreciate the aforesaid submission of the learned counsel for the parties, it would be appropriate to quote Section 293 of the Criminal Procedure Code, which reads as under:- 293. Reports of certain Government Scientific experts.- (i) Any document purporting to be a report under the hand of a Govern- ment scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) the Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely:- (a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Inspector of Explosives; (c) the Director of the Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay; (e) the Director, Deputy Director or Assistant Director of a Central .Forensic Science Laboratory or a State Forensic Science Laboratory; (f) the Serologist to the Government.
(17) A bare reading of this Section .makes it abundantly clear that the reports of Chemical Examiner or Assistant Chemical Examiner to Government, Director of the finger print Bureau and Director, Deputy Director or Assistant Director of a Central-Forensic Science Laboratory or a State Forensic Science Laboratory are admissible parse without they being formally proved by the person who has made the same. However, a discretion has been left with the Court to summon and examine any such expert as to the subject matter of his report if it thinks fit. Shri C.L. Bansal was only Senior Scientific Assistant (Chemistry) and, thus, is not covered by any of the categories of the experts in Section 293(4) whose reports are admissible per se. There can, thus, possibly be no dispute that.it was incumbent upon the prosecution to prove this report Ex.PW/6/B by summoning the officer- who has given this report and in the absence to such proof it cannot be read in evidence.
(18) The only question now to be considered is as to whether it is permissible for the accused to take up this point for the first time in appeal without agitating the same in the trial court. Learned Counsel for the State has placed reliance upon the following observations in case phool Kumar- Vs. Delhi Administration (Sufira): "THE clinching evidence against the- appellant was his thumb impression on the kunda of the cash box. It was conclusively proved to be his on the opinion of the expert by the prosecution without examining him in Court. Neither the court thought it fit nor the prosecution or the accused filed any application to summon and examine the expert as to the subject matter of his report. The court was bound to summon the expert if the accused would have filed any such application for his examination. That not having been done the grievance of the appellant apropos the report of the expert being used without his examination in court made in the High Court and repeated in this Court had no substance."
(19) A perusal of the aforesaid judgment indicates that the finger prints were lifted from the spot, which, Along with the specimen finger prints of Phool Kumar were sent to the Director and a report was received that the disputed impressions and the admitted specimen were of the same person. This was an appeal from the judgment of this Court in case Phool Kumar VR. Delhi Administration, Cr.A.No.87/ 69 decided on 23.10.1969. I have gone through the aforesaid judgment which clearly shows that the report EX.PW/18/B was received from the Director, Finger Print Bureau, Fillore, to the effect that the photographed impression on the thumb impression was. identical with that portion of thumb impression of Phool Kumar, accused, which were lifted from the spot. It is, thus, clear that the aforesaid report was of the Director of Finger Print Bureau, Phillore, which was admissible per se in terms of Section 510 of the Criminal Procedure Code before its amendment. It is, thus, clear that the aforesaid judgment is to the effect that if a report which is admissible per se according to the provisions of Section 510 Criminal Procedure Code before its amendment corresponding to Section 293, Code of Criminal Procedure, 1973,and is once exhibited, no objection with regard to its admissibility can be taken in appeal for the first time. This judgment, in my view, is quite distinguishable and not applicable to the facts of this case.
(20) As already discussed, Shri C.L. Bansal is not an officer covered under section 293 of the Code of Criminal Procedure and, thus, his report could not be tendered , in evidence by the 1.0. Since it could not be read in evidence without being proved by the person concerned, I find no material on record to hold that the recovery effected from the appellant was that of opium. There is no doubt that the witnesses claimed that opium was recovered from the appellant but there is no material on which it could be said to be opium. The only material evidence in this regard could be the report of Cfsl, which is not admissible, as discussed above. It is (he cardinal principle of criminal justice that the benefit of doubt, if any, has to be given to the accused and not to the prosecution. In this case also it is the appellant who has to get the benefit of doubt.
(21) In view of my aforesaid discussion the appeal is accepted and the conviction and sentence of the appellant recorded by the learned Additional Sessions Judge on 17.7.1992 are set aside. Giving him the benefit of doubt, Attar Singh is acquitted. He shall be released forthwith, if not required in any other case.