S. K. MAHAJAN ( 1 ) ON receipt of a secret information by Anti Narcotic Cell of the Delhi Police raiding party was organised which reached Delhi-Haryana Border at Badarpur at 7. 30 p. m. Four passer by were requested to join the raiding party but they left the place after showing their helplessness without telling their names and addresses. Two police officers, namely. HC Dina Nath and Constable Nakui Bedi belonging to Badarpur Police Station who were patrolling there were also joined in the raiding party. At about 8. 20 p. m. on the signal of the informer, the scooter driven by Dinesh Kumar with Manoj Kumar on the pillion seat was stopped in front of the bus stand Badarplur Border. Both. Dinesh Kumar and Manoj Kumar, were informed of the secret information and were offered to be searched in me presence of a gazetted officer or a Magistrate. Notice under Section 50 NDPS Act was served upon them separately. However, both of them refused to get themselves searched in the presence of a gazetted officer or a Magistrate. ( 2 ) ON search ot the accused, Dinesh Kumar, a bag, consisting of charas, carried by him on his snouldcr. was recovered. The recovered charas. on weighment, turned out to be 1. 440 kg. , out of which 50 gms were taken out for purposes of sample. The sample charas as well the remaining charas were then sealed by the raiding party and the packets consisting of the samples as well as remaining charas. were then sent, after having been sealed, with a RUQQA to me Malkhana with the request to SHO to deposit the sealed packets and the CFSL Form, with the Malkhana after putting his seal on the sealed packets and the CFSL Form. The petitioner is in custody since August, 1995 and the present petition has been made under Section 439 of the Code of Criminal Procedure for the grant of bail. ( 3 ) THE contention of Mr. Dmesh Mathur, Senior Advocate, appearing on behalf of the petitioner is that it is a made-up-affair and the petitioner had been falsely implicated in the case inasmuch as no recovery was made from the petitioner. In any case. according to Mr. ( 3 ) THE contention of Mr. Dmesh Mathur, Senior Advocate, appearing on behalf of the petitioner is that it is a made-up-affair and the petitioner had been falsely implicated in the case inasmuch as no recovery was made from the petitioner. In any case. according to Mr. Mathur, there was no compliance of the mandatory provisions of the NDPS Act as the documents, irciuding the notice under Section 50 of the Act, the seizure memo and the CFSL Form were all prepared subsequently which. according to him. was apparent from the fact mat the FIR number was mentioned at the top of the said documents which could not have appeared on the documents as they were all allegedly prepared before the recording ot the FIR and the mere mention of the FIR, according to him was sufficient to show that they were prepared after the registration of the FIR. ( 4 ) IT is also his contention mat the raiding party had not joined independent witnesses and this itself was sufficient to the petitioner being enlarged on bail. According to him, report under Section 57 of the Act also had an overwriting. Moreover, according to him, the secret information is alleged to have been received by ASI Dalip Kumar who is also the investigating officer and search was also made by him. This, according to Mr. Mathur, vitiated the entire investigation. ( 5 ) ELABORATING his first contention that all contemporaneously prepared documents, namely, the notice under Section 50 NDPS Act, seizure memo, etc. had the FIR number and the Section of the Act at the top, he has referred to the judgments reported as Pavan Kumar Vs. Delhi Administration 1987 Chandigarh Criminal Cases 585; Nathya Vs. State of Rajasthan 1992 Criminal Law Journal 2342; State of Himachal Pradesh Vs. Sudarshan Kumar 1989 (3) Crimes 608 and Bhim Singh Vs. State 1995 Journal of Criminal Case s 489 ( 6 ) WHILE Pavan Kumar Vs. State (Supra) was a case under Section 302 Indian Penal Code, the cases, Nathya Vs. State of Rajasthan (Supra) and State of Himachal Pradesh Vs. Sudarshan Kumar (Supra), were cases under me NDPS Act. Sudarshan Kumar 1989 (3) Crimes 608 and Bhim Singh Vs. State 1995 Journal of Criminal Case s 489 ( 6 ) WHILE Pavan Kumar Vs. State (Supra) was a case under Section 302 Indian Penal Code, the cases, Nathya Vs. State of Rajasthan (Supra) and State of Himachal Pradesh Vs. Sudarshan Kumar (Supra), were cases under me NDPS Act. In all these cases, criminal appeals were filed after the final judgment in the case and it was held mat if prosecution had not been able to explain as to under what circumstances the FIR number had been mentioned in the seizure memo etc. when the FIR had been recorded subsequent to the seizure memo. the Court can presume that the investigation was not above board. ( 7 ) IN my opinion, these judgments will not be of am assistance to the petitioner as the evidence in the present case has yet to start and it will be for the prosecution to explain as to why the FIR number has been mentioned in the seizure memo and notice under Section 50 of the Act even before the recording of the FIR. If no explanation is given during trial, the court may draw an adverse inference against prosecution. ( 8 ) THE contention of Ms. Gulati. appearing for the State, is that at the time of preparation of the documents, while FIR number and the Section number are left blank, all other things are written and it is only after recording of the FIR that the FIR number and the Section of the Act are filled in these documents There appears to be force in the arguments of Ms. Gulati inasmuch as the perusal of the documents, prima facie, shows that the FIR number and Section of the Act mentioned on the documents which had been prepared carlier to the recording of the FIR appear to be in a different handwriting However, it will not be proper, at this stage, to make any comments thereupon as it is for the prosecution to explain during the course of the trial as to how me FIR number and the Section of the Act have come to be written in me documents which admittedly had been prepared earlier to the recording of the FIR ( 9 ) IN Bhim Singh Vs. State (Supra ). Justice J. K. Mehra. State (Supra ). Justice J. K. Mehra. on a perusal of the documents, was of the opinion that the ink and pen used in writing the endorsement of the FIR number at top was me same as me rest of the documents. Even then. J. K. Mehra. J. held that in any event. I need not dwell on this any further and such questions can be dealt with at the time of trial. In my opinion, therefore, in view of the fact that. prima facie, there appears to be some difference in the handwriting and the pen and me ink with which the FIR number and the Section of the Act have been written in the seizure memo and me notice, the petitioner cannot take any benefit from the same and it will be, at the time of trial, for the prosecution to explain as to how the same had been written, but this by itself, in my opinion, will not entitle me petitioner to the grant of bail. ( 10 ) THE next contention of Mr. Mathur is that no independent witnesses have been joined in the raiding party. His contention is that in case the version of the police is taken to be correct, they had the power to prosecute those persons who had refused to join as a member of me raiding party. According to him, no reliance can be placed upon me testimony of me police officials and, in any case. the same creates a doubt about the recovery having been made by the raiding party. ( 11 ) IN support of his contention, he has placed reliance upon Rattan Lal Vs. State 32 (1987) DLT 1; Sunari @ Chamari Vs. State 34 (1988) DLT 134; Md. Shamim Vs. State 40 (1990) DLT 103; Dinesli Kumar Vs. State 1993 JCC 88 and Munni Lal Vs. State 1995 JCC 110. ( 12 ) ALL the cases cited by Mr. Mathur are cases where the accused were finally convicted by the trial courts and it was held by this court mat in the absence of any public witness being joined me statements of me police officials were required to be scrutinised with due care and caution in order to see whether the offence was brought home beyond reasonable doubt. Mathur are cases where the accused were finally convicted by the trial courts and it was held by this court mat in the absence of any public witness being joined me statements of me police officials were required to be scrutinised with due care and caution in order to see whether the offence was brought home beyond reasonable doubt. In the case in hand, the statements of witnesses have not yet been recorded and the question of scrutinising the statements of the police officials, at this stage, will net arise. At the time of grant of bail, it will not be proper, to go into all these questions. ( 13 ) D. P. WADHWA. J. in Sunari Vs. State has held that "witnesses of the public were not associated for reasons best known to me investigating agency. I am not prepared to believe that the witnesses were not available. All this leads me to me conclusion that the recovery of opium and heroin, as alleged, is not free from doubt. I will not. therefore, rely on the sole testimony of the police officers regarding the recovery of opium and heroin from the appellant. " It is also held by Malik Sharief-Ud-din, J. in Rattan Lal Vs. State that "if a witness declines to cooperate without reasonable cause in spite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187 Indian Penal Code and the same had been clearly spelt out in sub-Section 8 of Section 100 Criminal Procedure Code. The Hon ble Judge, therefore, did not believe the version of the police and acquitted the accused. ( 14 ) AS I have already held. in this case the evidence has yet to be recorded and the prosecution may give a plausible explanation as to why the public witnesses were not associated in the raiding party. At this stage, I find that the case of the prosecution is that the public witnesses: though were asked to Join, had refused. I cannot disbelieve the version of the police at this stage. I may in this context refer to the observations of the Supreme Court in Appabhai and Another Vs. At this stage, I find that the case of the prosecution is that the public witnesses: though were asked to Join, had refused. I cannot disbelieve the version of the police at this stage. I may in this context refer to the observations of the Supreme Court in Appabhai and Another Vs. State of Gujarat AIR 1988 Supreme Court 696, where it was held by the Apex Court - "it is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This land of apathy of the general public is indeed unfortunate, but it is there everywhere whether in villages, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witness at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. " ( 15 ) AGAIN in Hari Lal Vs. State, 1996 JCC 410, this Court held that testimony of a witness should not be disbelieved merely on me ground that he happened to be an official witness. ( 16 ) IN view of the clear dictum of the Supreme Court, I am unable to agree with Mr. " ( 15 ) AGAIN in Hari Lal Vs. State, 1996 JCC 410, this Court held that testimony of a witness should not be disbelieved merely on me ground that he happened to be an official witness. ( 16 ) IN view of the clear dictum of the Supreme Court, I am unable to agree with Mr. Mathur that merely because there was no public witness, I should at this stage itself not believe the version of the police and enlarge the petitioner on bail. ( 17 ) IT is next contended by Mr. Mathur that the investigation was conducted by the officers of the Anti Narcotic Cell of the Delhi Police and at the relevant time the Cell had not been declared a police station and it was for this reason that the offence was registered with the Police Station Badarpur. The contention, therefore, is that the officers of the Anti Narcotic Cell of the Delhi Police could not investigate the matter after registration of the FIR and the entire investigation having not been done by an incompetent officer, me same would vitiate the trial. ( 18 ) THOUGH Ms. Gulati has submitted that even at the relevant time Anti Narcotic Cell of the Delhi Police had been declared a police station, however, even assuming that the same was not declared a police station, in my opinion, any irregularity in the investigation, by itself, will not vitiate the trial unless the investigation was done contrary to the mandatory provisions of law or any prejudice was caused to the accused. . pl 12" ( 19 ) A Division Bench of the Bombay High Court in Joseph Fernundes Vs. State of Goa 1 (1996) CCR 214 has held that "it is true that it is only a police officer. Incharge of a police station, who can investigate. the cases within his jurisdiction, as provided in Section 156 (1 ). Criminal Procedure Code. but we cannot ignore the specific provision in sub-Section 2 of Section 156 which clearly says that no proceedings of a police officer shall be called in question at any stage on the ground that he had no right to investigate". In my opinion, therefore. it cannot be said that the investigation in this case was vitiated only because the Anti Narcotic Cell of the Delhi Police had not been declared a police station at the relevant time. In my opinion, therefore. it cannot be said that the investigation in this case was vitiated only because the Anti Narcotic Cell of the Delhi Police had not been declared a police station at the relevant time. ( 20 ) MR Mathur has also tried to refer to overwriting in the date in the report sent under Section 57 of the NDPS Act In my opinion, at this stage, it will not be relevant to refer to the said overwriting because even assuming that the same has any significance, the prosecution may have to explain the same during the course of the trial. ( 21 ) FOR all the foregoing reasons and keeping in view me provisions of Section 37 of the Act, I am of the view that the petitioner is not entitled to the grant of bail. ( 22 ) THE petition is, therefore, dismissed. ( 23 ) AM observation made in this order will not afreet the merits of the case.