Punjab-Haryana High Court
Gulshan Kumar vs State Of Punjab on 23 October, 2024
Author: Sureshwar Thakur
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:139388-DB
CRA-D-1227-DB-2014 (O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
CRA-D-1227-DB-2014 (O&M)
Reserved on: 4.10.2024
Date of Decision: 23.10.2024
Gulshan Kumar ......Appellant
Versus
State of Punjab ......Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Shubham Chandel, Advocate
for the appellant.
Mr. Kunwarbir Singh, AAG, Punjab.
****
SURESHWAR THAKUR, J.
1. The instant appeal is directed against the impugned verdict, as made on 6.11.2013, upon Sessions Case No. 57 of 20.5.2009, by the learned Judge Special Court, Sangrur, wherethrough in respect of a charge drawn against the accused qua an offence punishable under Section 22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"), the learned trial Judge concerned, proceeded to record a finding of conviction against the accused-appellant under Section 22 of the Act.
2. Moreover, through a separate sentencing order of even date, the learned trial Judge concerned, sentenced the convict-appellant to undergo rigorous imprisonment for a period of 12 years for an offence punishable under Section 22 of the Act, besides also imposed, upon the said convict- appellant sentence of fine, as comprised in a sum of Rs. 1,25,000/-, besides in default of payment of fine amount, he sentenced convict-appellant to undergo rigorous imprisonment for a period of one year.
1 of 11
::: Downloaded on - 28-10-2024 00:41:58 :::
Neutral Citation No:=2024:PHHC:139388-DB
CRA-D-1227-DB-2014 (O&M) -2-
3. The period of detention undergone by the convict, during the investigations, and, trial of the case, was, in terms of Section 428 of the Cr.P.C., rather ordered to be set off, from the above imposed sentence(s) of imprisonment.
4. The accused-convict becomes aggrieved from the above drawn verdict of conviction, besides also, becomes aggrieved from the consequent therewith sentences of imprisonment, and, of fine as became imposed, upon him, by the learned convicting Court concerned, and, hence has chosen to institute thereagainst the instant criminal appeal.
Factual Background and Investigation proceedings
5. The genesis of the prosecution case, becomes embodied in the appeal FIR, to which Ex. PE/1 is assigned. The narrations carried in Ex. PE/1, are that on 16.1.2009, at about 10.00 A.M., ASI Satnam Singh alongwith ASI Sudiq Ali, HC Balwinder Singh, HC Nirmal Singh, HC Jaspal Singh and HC Siara Singh were present at drain Adamwal road Malerkotla on private scooter/Motorcycles in connection with patrolling and for the checking of suspected persons, where one person was seen coming on foot from the side of city Malerkotla. Upon asking his name and address by ASI Satnam Singh, the said person told his name Gauri Shanker s/o Raja Ram caste Gold Smith r/o Dheera wala Mohala Malerkotla. It was about 10.00 A.M. Thereupon, a Hindu gentleman came on a scooter bearing No. PB-28B-4999 make Bajaj of white colour carrying two heavy cartons on rear seat of the scooter by binding the with rubber tube. On suspicion, the investigating officer, gave him a signal and stopped him with the help of co- officials and enquired his whereabouts, upon which he disclosed his name as Gulshan Kumar S/o Bachan Lal caste Aggarwal near Piple Wala Pump, 2 of 11 ::: Downloaded on - 28-10-2024 00:41:58 ::: Neutral Citation No:=2024:PHHC:139388-DB CRA-D-1227-DB-2014 (O&M) -3- Singla, Street ward No. 23 Malerkotla. ASI Satnam Singh told him that he suspected some intoxicant substance in the cartons lying on the rear seat of his scooter, and, that search of the said cartons along with the search of the scooter is to be conducted, and, apprised him his legal right to get his search being conducted in the presence of a Gazetted Officer or a Magistrate. Upon which, the accused reposed confidence in ASI Satnam Singh. His consent statement memo recorded separately, which became attested by accused Gulshan Kumar and the witnesses. Subsequently, upon search of the carton, a heavy envelop of polythene recovered which became checked by opening it. From the said polythene envelop, 1000 Parvon Spas capsules were recovered. On weighment, the weight of the said capsules were found to be of 650 grams. 10-10 intoxicant capsules became separated and were put in two separate plastic boxes, and, sample parcels were prepared. Remaining 980 intoxicant capsules were poured in the same polythene envelop and the same were put in a separate plastic box, and, a separate parcel was prepared. The above sample parcel were numbered as 1/1 and 1/2 and another parcel containing 980 intoxicant capsules was numbered as 1. The ASI sealed both the sample parcels of intoxicant capsules and the parcel containing 980 intoxicant capsules, with his seal bearing impression 'SS' and sample seal was prepared separately. Thereafter ASI Satnam Singh untied the rubber tube by which the cartons were tied on the rear seat of scooter. The cartons were checked as per rules one by one. From the first carton, 120 phials of intoxicant medicine were recovered on which REXCOF was written. Out of the same, two phials of intoxicant medicine were taken as sample and a parcel was prepared separately. Both the sample parcel number marked as 2/3 and 2/4 and remaining 118 phials of intoxicant medicine were put in the 3 of 11 ::: Downloaded on - 28-10-2024 00:41:58 ::: Neutral Citation No:=2024:PHHC:139388-DB CRA-D-1227-DB-2014 (O&M) -4- same carton and a separate parcel was prepared which became numbered as marked 2. Both the sample parcels and plastic bag containing 118 phials of intoxicant medicine were sealed with the seal bearing impression SS and the sample seal was prepared separately. Thereafter upon search of another carton, 120 phials of intoxicant medicine of above make recovered. Out of these phials, two phials of intoxicant medicine were taken out and a parcel was prepared. Both the parcels were marked as 3/5 and 3/6. Thereafter remaining 118 phials of the intoxicant medicine were put in the plastic bag alongwith carton, and, a separate parcel was prepared. The said parcel was marked as 3. Thereafter the ASI concerned, sealed both sample parcels and the plastic bag parcel containing 118 Phials of intoxicant medicine, with his seal bearing impression SS and sample seal was prepared separately. Thereafter upon checking of the scooter, intoxicant medicine phials of COREX make packed in carton was recovered from the front dicky of the said scooter, which on counting came to be 20 phials of intoxicant medicine. Out of the recovered phials, two phials of intoxicant medicine were taken out separately and separate sample parcels were prepared, which became numbered as 4/7 and 4/8. Thereafter the remaining 18 Phials of intoxicant medicine were put in the same carton and a separate parcel became prepared. Thereafter the ASI concerned, sealed both the sample parcels of intoxicant phials and the parcel containing 18 phials of intoxicant medicine, with his seal bearing impression SS and a separate sample seal was prepared. All the parcels, specimen of the seal and scooter were taken into possession vide recovery memo Ex. PC, attested by the witnesses. Seal after use was handed over to ASI Sudiq Ali. Ruqawas prepared and sent to police station, which led to the registration of the FIR (supra).
4 of 11
::: Downloaded on - 28-10-2024 00:41:58 :::
Neutral Citation No:=2024:PHHC:139388-DB
CRA-D-1227-DB-2014 (O&M) -5-
6. After conclusion of investigations, and, after receipt of the report of the Chemical Examiner concerned, the investigating officer concerned, proceeded to institute a report under Section 173 of the Cr.P.C., before the learned Court concerned.
Trial Proceedings
7. The learned trial Judge concerned, made an objective analysis of the incriminatory material, adduced before him. Resultantly, he proceeded to draw charge against the accused, for an offence punishable under Section 22(C) of the Act. The afore drawn charge was put to the accused, to which he pleaded not guilty, and, claimed trial.
8. In proof of its case, the prosecution examined ten witnesses, and, thereafter the learned Public Prosecutor concerned, closed the prosecution evidence. After the closure of prosecution evidence, the learned trial Judge concerned, drew proceedings, under Section 313 of the Cr.P.C., but thereins, the accused pleaded innocence, and, claimed false implication. The accused also chose to adduce defence evidence, however, he did not lead any witness into the witness box.
9. As above stated, the learned trial Judge concerned, proceeded to convict the accused for the charge (supra), as became drawn against him, and, also as above stated, proceeded to, in the hereinabove manner, impose the sentence(s) of imprisonment, as well as of fine, upon the convict.
Submissions of the learned counsel for the appellant
10. The learned counsel for the aggrieved convict-appellant has argued before this Court, that the impugned verdict of conviction, and, consequent therewith order of sentence, require an interference. He supports the above submission on the ground, that it is based on a gross 5 of 11 ::: Downloaded on - 28-10-2024 00:41:58 ::: Neutral Citation No:=2024:PHHC:139388-DB CRA-D-1227-DB-2014 (O&M) -6- misappreciation, and, non-appreciation of evidence germane to the charge.
Submissions of the learned State counsel
11. On the other hand, the learned State counsel has argued before this Court, that the verdict of conviction, and, consequent therewith sentence(s) (supra), as become imposed upon the convict, is well merited, and, does not require any interference, being made by this Court in the exercise of its appellate jurisdiction. Therefore, he has argued that the instant appeal, as preferred by the convict, be dismissed.
Analysis of the case
12. Through recovery memo Ex.PB, the recovery of the contraband became allegedly recovered from the site concerned. In proof of the prosecution case, SI Satnam Singh stepped into the witness box as PW-5, and, in his examination-in-chief, he made speakings thereins, which concur with the contents of the appeal FIR, to which Ex. PE/1 is assigned.
13. The prosecution though has been able to lead cogent evidence, in proof of the recovery of the seizure, thus being effected at the crime site, and, the same thus being sealed with the relevant seal impressions. Moreover, though the prosecution has also been able to cogently establish, that the sealed cloth parcels, became deposited in the malkhana concerned. In addition, though the prosecution has been able to establish, that the case property travelled in an untampered condition to the FSL concerned.
14. A reading of the report (Ex. PW6/B), as made by the FSL concerned, whereto the relevant seizures became sent for an examination being made of the stuff inside the sealed cloth parcels, though reveals, that the examined stuff inside the sealed cloth parcels, as became sent to it for examination, thus being the intoxicant substance. The said report is ad 6 of 11 ::: Downloaded on - 28-10-2024 00:41:58 ::: Neutral Citation No:=2024:PHHC:139388-DB CRA-D-1227-DB-2014 (O&M) -7- verbatim extracted hereinafter.
" x x x x
7. Articles received Four parcels (marked 1 to 4 in this
laboratory) each sealed with one seal
of TSB, said to contain intoxicant
material.
The seals were intact and tallied with
the specimen seal impressions.
x x x x
Report
"The capsules and the contents of the bottles contained in parcel-1 to parcel-4 referred above, have been analysed, separately, by chemical analysis. On the basis of analysis, the ingredients, along with their quantities found present in these are given below:-
Ingredient present Average Quantity in parcel No. 1 2 3 4 Dextropropoxyphene 64.8 - - -
Hydrocholoride
Codeine Phosphate - 9.8 9.8 9.9
Chlorpheniramine - 3.8 3.8 3.9
Maleate
15. Be that as it may, though a reading of the report (supra) of the FSL also discloses, that the sealed cloth parcels, became received there, hence with the seal impressions thereons being intact. However, the chemical examiner at the FSL concerned, after making examinations of the stuff inside the sealed cloth parcels, and, thereafter his drawing the report (supra), yet omits to mention in the report Ex. PW6/B, about his re-
enclosing the examined stuff inside the cloth parcels, and, his thereons affixing the seals of the FSL concerned.
16. The above was required to be mandatorily done, as, thereupon the imperatively required to be proven, thus unbroken links in the chain of 7 of 11 ::: Downloaded on - 28-10-2024 00:41:58 ::: Neutral Citation No:=2024:PHHC:139388-DB CRA-D-1227-DB-2014 (O&M) -8- incriminatory evidence, commencing from the seizure being made from the crime site, through recovery memo Ex.PB, and, lasting upto the production of the case property in Court, thereby thus would become convincingly proven, rather to remain unsnapped or unbroken. In the above event alone the charge drawn against the accused would be concluded to become cogently established. However, as above stated, for want of the chemical examiner concerned, after making examination(s) of the stuff inside, the sealed cloth parcels, thus re-enclosing the examined stuff inside the cloth parcels, and, his further failure to emboss thereons, rather the seals of the FSL concerned, whereafter the examined stuff was to be produced in Court, for its being shown to the investigating officer concerned, for thereby thus, on evident surging-forth of the above requisite primary evidence, rather the charge drawn against the accused, could be concluded to be convincingly proven.
17. Be that as it may, sample seals Ex. MO1 to Ex. MO8 became produced in the Court, besides bulk parcels Ex. MO9 to Ex. MO12 also became produced in the Court. However, sample seals Ex. MO1 to Ex. MO8 and bulk parcels Ex. MO9 to Ex. MO12 rather cannot be related to the results of the examinations, as became made on the parcels, as became sent to the laboratory concerned. The reason for stating so, becomes comprised in the trite factum, that since after examination(s) of the stuff inside the sealed cloth parcels, the same never became re-enclosed in the cloth parcels, nor the seal impression of the FSL concerned, became made thereovers. Resultantly, therebys it may be concluded that neither the same sample parcels were ever sent to the laboratory concerned, and/or if they became sent, they for the above stated infirmity, cannot be declared to be related to 8 of 11 ::: Downloaded on - 28-10-2024 00:41:58 ::: Neutral Citation No:=2024:PHHC:139388-DB CRA-D-1227-DB-2014 (O&M) -9- the supra results of the examinations, as became made thereovers. Therefore, benefit of doubt is to be assigned to the appellant.
18. Resultantly, reiteratedly when scope is, thus left for an inference qua either the case property, thus not relating to the report (supra) of the FSL concerned, and/or to the enclosures inside sample seals Ex. MO1 to Ex. MO8 and bulk parcels Ex. MO9 to Ex. MO12, being introduced therein, thereby the report of the FSL (supra), rather looses its evidentiary vigour. A further scope is also left, thus to infer that the case property, if any, became tampered with. Moreover, much scope is also left for the drawing of an inference, that the case property other than the one related to the charge drawn against the accused, thus became produced in Court. As but a natural corollary, when the primary evidence for proving the charge drawn against the accused, does come under a cloud of deep suspicion. Resultantly, this Court is constrained to conclude, that the charge drawn against the accused did not come to be cogently established.
19. Moreover, in paragraph 35 of the judgment rendered by the Hon'ble Apex Court in "Noor Aga V. State of Punjab and another"
Criminal Appeal No.1034 of 2008, decided on 09.07.2008, paragraph whereof becomes extracted hereinafter, thus becomes spelt the imperative sine qua non, rather requiring to become cogently proven hence for therebys the charge drawn against the accused becoming declared to become unflinchingly proven. However, since after the examination(s) being made of the stuff inside the sample parcels, thus by the FSL concerned, rather the latter did not re-enclose them in the sealed cloth parcels, hence carrying thereons the seals' of the FSL concerned. Moreover, when the said sample parcel(s) became never returned to the office wherefrom they generated nor 9 of 11 ::: Downloaded on - 28-10-2024 00:41:58 ::: Neutral Citation No:=2024:PHHC:139388-DB CRA-D-1227-DB-2014 (O&M) -10- when they became produced in Court.
"35. The High Court proceeded on the basis that non-production of physical evidence is not fatal to the prosecution case but the fact remains that a cumulative view with respect to the discrepancies in physical evidence creates an overarching inference which dents the credibility of the prosecution. Even for the said purpose the retracted confession on the part of the accused could not have been taken recourse to."
20. Consequently, since the expostulation of law carried in verdict (supra), remains unsatiated thereby the accused become entitled to an acquittal.
21. The said view is also supported by a judgment rendered in case titled as "Gaunter Edwin Kircher V. State of Goa, Secretariat Panji, Goa", Criminal Appeal No.642 of 1991, decided on 16.03.1993, relevant paragraph whereof becomes extracted hereinafter.
"J. Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 52A and 53 - Customs Act, 1962, Section 110(IB) - Physical evidence - Case Property - Recovery of heroin from accused - Case property destroyed and not produced - Physical evidence relating to three samples taken from the bulk amount of heroin were also not produced - Bulk quantity was destroyed the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52A of the Act."
Final order
22. The result of the above discussion, is that, this Court finds merit in the appeal, and, is constrained to allow it. Consequently, the appeal is allowed. The impugned judgment convicting, and, sentencing the appellant, and, as becomes recorded by the learned trial Judge concerned, is quashed, and, set aside. The appellant is acquitted of the charge framed against him.
10 of 11
::: Downloaded on - 28-10-2024 00:41:58 :::
Neutral Citation No:=2024:PHHC:139388-DB
CRA-D-1227-DB-2014 (O&M) -11-
The fine amount, if any, deposited by him, be, in accordance with law, refunded to him. The personal, and, surety bonds of the accused shall stand forthwith cancelled, and, discharged. The case property be dealt with, in accordance with law, but after the expiry of the period of limitation for the filing of an appeal. The appellant, if in custody, and, if not required in any other case, be forthwith set at liberty. Release warrants be prepared accordingly.
23. Records be sent down forthwith.
24. The miscellaneous application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR) JUDGE (SUDEEPTI SHARMA) JUDGE October 23, 2024 Gurpreet Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 11 of 11 ::: Downloaded on - 28-10-2024 00:41:58 :::