Dalip Singh And Another vs State And Others
2023 Latest Caselaw 924 j&K

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                   LADAKH AT JAMMU


                                       CRA No. 44/2014


                                              Reserved on: 04.05.2023
                                            Pronounced on: 11 .05.2023

Dalip Singh and another

                                       ...appellants
                          Through: - Mr.Rohan Nanda Advocate.

Vs.

State and others
                          Through: -   Mr. Dewakar Sharma Dy.AG


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1 The appellants have challenged the judgment dated 08.07.2014

passed by the Special Judge, Kathua (hereinafter referred to as the

'Special Judge') whereby they have been convicted for offences under

Sections 8/15 of Narcotic Drugs and Psychotropic Substances Act,

1985 (hereinafter referred to as the 'NDPS Act'). Challenge has also

been thrown to order dated 09.07.2014 passed by the Special Judge

whereby in proof of aforesaid offences, the appellants have been

sentenced to rigorous imprisonment of five years each and to pay a fine

of Rs.50000/- each. In default of payment of fine, the appellants have

been directed to undergo a further imprisonment for six months each.

2 Briefly stated the prosecution case is that, on 23.08.2010

at about 6.45 pm, a Truck bearing registration No. HR46C-3136 that

was loaded with apples reported at export yard of Toll Post, Lakhanpur.

The said Truck was subjected to physical checking by the Excise

Guards PWs Mohd Bashir and Sat Pal under the supervision of

Inspector Excise Task Force Gulrez Haq Malik. Upon physical

checking of the truck, a bag, containing poppy straw (bhukki) hidden

beneath the apple boxes, was detected. The appellants were questioned

and detained at the Toll Post. At about 7.25 pm, PW Girdhari Lal ETO

informed the complainant PW Arun Kumar, Inspector Excise

Sub Range Kathua, who, vide his letter dated 23.08.2010 requested

Tehsildar Kathua to depute Executive Magistrate First Class to Toll

Post Lakhanpur. PW Krishan Lal Sharma, Naib Tehsildar reached spot

at 8.15 pm and the complainant PW Arun Kumar also reached over

there and started investigation of the case.

3 The contraband was seized on spot and the appellants were

arrested. The seized contraband was found to be weighing 9 kgs and

100 gms inclusive of packing. Out of the seized contraband, two

samples weighing 50 gms ach were drawn and the same were sealed

with white cloth and marked as 'B'and 'C'. The rest of the contraband

was sealed and marked as 'A'. The samples as well as the remaining

contraband were sealed with a brass seal in presence of Executive

Magistrate First Class, Kathua and thereafter the samples were resealed

by the said Executive Magistrate First Class, Kathua with his official

seal. In this regard, a certificate was issued by the Executive Magistrate

to the Director FSL Jammu authorising him to break open the seal of

the samples for chemical analysis. As per the complaint, the sample

marked as 'B' was sent to the Director FSL Jammu vide letter dated

27.08.2010 along with a resealing certificate issued by the Executive

Magistrate First Class and the same was deposited with Director, FSL

Jammu by Sh. Bishamber Singh Driver Excise Range, Kathua. The

receipt of sample dated 1.09.2010 was obtained from the FSL. As per

report of the FSL dated 13.10.2010 presence of morphine was found in

the sample drawn from the seized poppy straw (bhukki). Thus,

according to the complainant, offences under Sections 8/15 of NDPS

Act were found established against the appellants.

4 Vide order dated 01.11.2010, the Special Judge framed

charges for offences under Section 8/15 of NDPS Act against the

appellants who denied the charges and claimed trial. Accordingly, the

complainant was directed to produce the witnesses in support of its

case.

5 The complainant examined PWs Girdhari Lal Shamra,

Gulrez Haq, Rohit Koul, Ravi Kumar, Sat Pal, Mohd Bashir, Krishan

Kumar Sharma and Arun Kumar as witnesses in support of its case.

After completion of the complainant's evidence, the incriminating

circumstances appearing in the evidence were put to the appellants to

seek their explanation and their statements under section 342 of J&K

Cr.P.C were recorded on 29.06.2013. In their statements, both the

appellants claimed that they have been falsely implicated in the case

and that no contraband was recovered from their possession. However,

they did not lead any evidence in defence.

6 The learned Special Judge, after hearing the parties and

after appreciating the evidence on record, came to the conclusion that

the seized contraband was recovered from the conscious possession of

the appellants while the same was being carried in a Truck in question

along with the load of apples. It was concluded by the Special Judge

that the samples drawn from the seized contraband contained the

prohibited substance morphine and it belonged to poppy plant (Papaver

somniferum). On the basis of aforesaid conclusions, the Special Judge

held that offences under Sections 8/15 of NDPS Act are proved against

the appellants and, accordingly, they were convicted of the said

offences and sentenced to rigorous imprisonment of five years each and

a fine of Rs.50000/- each.

7 Although the appellants have urged a number of grounds

in assailing the impugned judgment of conviction and order of

sentence, yet, during the course of arguments, learned counsel for the

appellants has focussed his attention on the ground that, from the

evidence on record, it has not been established that sample drawn from

the seized contraband was sent to FSL and that the report of FSL

pertains to the sample of the contraband drawn from the seized

substance.

8 I have heard learned counsel for the appellants and learned

Dy.AG appearing for the respondents/State. I have also gone through

the grounds of appeal, the impugned judgment and the trial Court

record including the evidence led before the trial Court.

9 If we have a look at the evidence and the documents on

record of the trial Court, it is revealed that the prosecution has

succeeded in establishing that the appellants were travelling in the

Truck bearing No. HR46C 3136 and that the said truck was subjected

to physical checking at Toll Post, Lakhanpur. It is also established that

vide seizure memo EXTP-2, certain substance weighing 9 kgs and 100

gms was recovered from the Truck in question. This substance,

according to the complainant's story is bhukki. As per the statements of

the witnesses to the seizure memo, PW Ravi Kkumar, PW Sat Pal, PW

Gulrez Haq and the complainant PW Arun Kumar, two samples

weighing 50 gms each were drawn from the recovered substance and

the same were sealed and marked as 'B' and 'C' respectively. It has

also come in the evidence on record that remaining seized substance

was also sealed and the same was marked as 'A'. The seal used in the

sealing process was kept on the spurdnama of one Razi Ahmed who

has not been examined as a witness by the prosecution.

10 We have also on record a letter EXTP-7/4 written by PW

Arun Kumar, the complainant to the Executive Magistrate First Class

Kathua on 23.08.2010, the contents whereof are reproduced as under:

"Kindly find enclosed herein 01 Bag (HDPE Bag) of alleged Poppy Straw (Bukki) marked as A which is sewn in white cloth after taking two samples from the bag which are marked as B and C with the help of Excise Staff and sealed under my direct supervision with a seal bearing impression.

You are requested to seal the same and authorise the Director FSL to break open the seal for chemical analysis of the sample B which is of 50 gms".

11 From a perusal of the aforesaid letter, it is clear that PW

Krishan Lal Sharma Naib Tehsildar (Executive Magistrate First Class),

Kathua was requested to reseal the samples marked as 'B' and 'C' as

also the remaining substance marked as 'A' and to authorise Director

FSL to break open the seal for chemical analysis of sample 'B'.

12 There is yet another document EXTP- 6 on record which

has been issued by PW Krishan Lal Sharma Naib Tehsildar (Executive

Magistrate First Class) Kathua. It is a certificate and the same reads as

under:

"Certified that the Inspector Excise Sub Range Kathua Sh. Arun Kumar produced before me 02 packets of alleged poppy straw (Bhukki) duly sewn and sealed in white cloth marked B and C (samples of 50 gms each) and the said seals on the packets are intact in the case of State vs. Dalip Singh S/o Sh. Bahadur Singh R/o Muradpur District Hosiarpur and Rajinder Singh S/O Sh. Run Singh R/o Kamahi Devi P.O Mukerian District Hosiarpur (seized

from Truck No. HR46C-3136) under Sections 15 of NDPS Act in Report No. 242/ERK dated 23.08.2010.

The above packets of alleged poppy straw are sealed by me on 23.08.2010 and the Director FSL Jammu is authorised to break open the seal of packet B to analyse the same. The impression of the sale is given below".

13 From a perusal of the aforesaid document, it is revealed

that before the Executive Magistrate 1st Class, Kathua, only the sealed

samples marked as B and C were produced and the remaining

substance from which the samples were drawn, which was marked as

'A' was not produced before the Magistrate for resealing. The

certificate further shows that the Executive Magistrate has authorised

the Director FSL to break open the seal of packed B only for analysing

the contents thereof.

14 Another document which is crucial in the context of the

argument raised by learned counsel for the appellants is the report of

FSL EXPW-RK. As per this report, one sealed packed was received in

the office of FSL on 01.09.2010 under covering letter No. 391/ERK

dated 24.08.2010 of complainant PW Arun Kumar through Driver

Bishamber Singh, Excise Department, Sub Range, Kathua. The report

further indicates that the exhibit was found sealed with two seals intact

which tallied with the specimen seal impression forwarded and the

sealed packet was marked as sample A. PW Rohit Koul, the author of

the document EXPW-RK has confirmed these facts in his statement

recorded before the trial Court.

15 From the above, it is clear that, what was received in the

FSL was the packet marked as 'A'. However, as per the case of the

complainant, the samples were marked as B and C. The document

EXPW- 7/4 which is a communication issued by the complainant bears

a request to the Executive Magistrate First Class, Kathua to authorise

the Director, FSL to break open the seal of sample 'B' for its chemical

analysis and vide certificate EXTP-6 issued by the Executive

Magistrate First Class, Kathua, the Director, FSL Jammu has been

authorised to break open the seal of packet 'B'. Thus, the sample,

which according to the complainant, was forwarded to the FSL was

marked as 'B', but the sample that was actually examined by the FSL

bears mark 'A'.

16 As per the case of the complainant, mark 'A' was given to

the bag containing remaining portion of the recovered substance, but,

as per the certificate issued by the Executive Magistrate First Class,

Kathua EXTP- 6, only samples marked as 'B' and 'C' were produced

before the Magistrate for their resealing and the said certificate does not

bear any reference to bag marked as 'A' meaning thereby that the bag

marked as 'A' was not resealed by the Magistrate and obviously, the

same was not sent to the FSL for its examination. The bag, in which the

remaining portion of the contraband was stored, if the complainant's

case is to be believed, contained around 9 kgs of bukki, but the sample

marked as 'A' which was analysed by the FSL as per the report,

weighed only 50 gms. This rules out the possibility of contents of

sealed bag marked as 'A' having been analysed by the FSL. The

identity of the sample marked as 'A' which weighed 50 gms that was

examined by the chemical Analyst has, therefore. remained shrouded in

mystery. The sample as per the complaint's case was delivered with

FSL by Driver Bishamber Singh. The said Driver has not been

examined as a witness by the complainant so as to unravel this mystery.

The said witness would have been in a position to explain as to what

was actually delivered by him to the office of Director FSL Jammu,

but, unfortunately, he has not been examined as witness by the

prosecution.

17 Learned counsel for the respondents/State has contended

that it may be a case of typographical error and, instead of sample B

sample 'A' has been written either by the author of the report EXPW-

RK or by the person who has put marks on the samples and the

remaining part of recovered contraband substance. That may be one of

the possibilities, but, there can also be another possibility. The

complainant may have either deliberately or inadvertently delivered

some other sample unconnected with the instant case to the FSL. Thus,

both the eventualities are possible, but, one thing is clear that

reasonable doubt has arisen as to whether or not, the sample drawn

from the substance recovered from the possession of the appellants has

actually reached the FSL for its chemical analysis.

18 The material on record shows that the samples from the

recovered substance were drawn on 23.08.2010 and the same were

resealed by the Executive Magistrate First Class on the same date, but

were delivered in the office of FSL on 01.09.2010 i.e after nine days.

The complainant has not produced either the Malkhana register or the

In-charge of the Malkhana to prove the safe custody of the samples

during the aforesaid period of nine days. Ordinarily, once the seals of

the sample are found intact by the chemical examiner, non production

of Malkhana register or In-charge Marlkhana as a witness may not have

any adverse impact on the prosecution case, but, in the instant case, the

sample that has been delivered to FSL is shown to be different from the

one that was resealed by the Executive Magistrate. In these

circumstances, non production of the Malkhana register and non

examination of In-charge Malkhana as a witness has an adverse impact

on the prosecution case as the prosecution has failed to rule out the

possibility of tampering of the sample that was examined by the FSL.

19 Unless, it is proved beyond any reasonable doubt that the

sample drawn from the substance recovered from the possession of the

appellants was a contraband substance, the possession whereof is

prohibited under the provisions of NDPS Act, the charge for offence

under Section 8/15 of the Act cannot be stated to have been established

against the appellants. Unfortunately, the Special Judge has either

ignored the aforesaid aspect or the same has not been brought to his

notice, as a result of which, he has erroneously returned a finding that

the substance recovered from the possession of the appellants is a

contraband substance the possession whereof is prohibited under the

provisions of the NDPS Act, without actually the said fact having been

established by the complainant. The impugned judgment of the Special

Judge for this reason cannot sustain and is, as such, liable to be set

aside.

20 For the foregoing reasons, the appeal is allowed and the

impugned judgment of conviction and order of sentence passed against

the appellants by the Special Judge, Kathua is set aside. The appellants

are acquitted of the charges and their bail and surety bonds are

discharged.

Record of the Special Judge, Kathua along with a copy of this

judgment be sent back.

(Sanjay Dhar) Judge

Jammu 11 .05.2023 "Sanjeev, PS"

                Whether the order is speaking:      Yes
                Whether the order is reportable:    Yes