Punjab-Haryana High Court
State Of Punjab vs Sahil Alias Sunny And Another on 1 August, 2022
CRM-A-20-2021
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-A-20-2021.
Decided on: August 1, 2022.
State of Punjab
.. Applicant-appellant
VERSUS
Sahil @ Sunny & another
.. Respondents
***
CORAM: HON'BLE MR.JUSTICE G.S. SANDHAWALIA
HON'BLE MR.JUSTICE VIKAS SURI
***
PRESENT Mr.Ajay Pal Singh, DAG, Punjab
G.S. SANDHAWALIA, J. (ORAL)
Present application for leave to appeal has been filed by
the State under Section 378 (3) of the Code of Criminal Procedure, against
the judgment of acquittal passed by the Special Court, Shaheed Bhagat
Singh Nagar, in FIR No.85 dated 3.7.2018, registered under Sections 22 and
29 of the NDPS Act decided on 12.12.2019.
The acquittal has been recorded on the ground that the
provisions of Section 50 of the NDPS Act, have been violated while
referring to the Constitution Bench judgment of the Hon'ble Apex Court in
State of Punjab Vs. Baldev Singh, (1990) 6 SCC 172 and Vijaysinh
Chandubha Jadeja Vs. State of Gujarat, 2011 (1) SCC 609 and Arif Khan
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@ Agha Khan Vs. State of Uttarakhand, 2018 (2) RCR (Criminal) 931.
It is not disputed that the recovery of 15 injections/glass
ampules of buprenorphine containing 2 ml each were recovered on the
search of respondent No.1. The respondent No.2 was proceeded against on
the basis of disclosure statement suffered by the first respondent. The trial
Court found that apart from the disclosure statement of the first respondent,
there is no independent, substantive and corroborative evidence against
respondent No.2. As per the settled position by the Constitution Bench in
Tofan Singh Vs. State of Tamil Nadu, (2021) 4 SCC 1, the proposition of
law has been clarified that any confessional statement made cannot be taken
into consideration in order to convict accused under the NDPS Act.
Therefore, we do not see any reason as to why there has to be any
interference regarding the acquittal of respondent No.2, as nothing else was
brought forth in the evidence and as noticed by the trial Court, no further
recovery was effected. The only allegation was that contraband has been
received from him to distribute by the first respondent. Apparently, the
police failed to even trace the source of the original contraband and did not
take the investigation to its logical end to the extent that wherefrom
respondent No.2 was sourcing the said contraband.
Regarding respondent No.1, the discrepancies in the
search conducted vitiated the seizure in view of the settled proposition of
law as discussed above and is also not liable to be interferred with as there
is no perversity in the order against which leave to appeal is sought. The
trial Court has noticed that the consent memo Ex.P-1 shows that consent
was recorded and the signatures were taken of Sunny Sahil and mentioning
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of the same in the main text or body of the application shows that signatures
of the accused could have been obtained on blank papers. It was also
noticed that the personal search memo Ex.P-9 showed that he had signed
only as Sahil in Punjabi whereas in the consent memo he had signed as
Sunny Sahil. It has also been noticed that there are cuttings in Ex.P-1 and
therefore, the two kind of signatures which were obtained on the same day
from the said accused could not be explained by the prosecution especially
when there is overwriting on the signatures in Ex.P-1. It was also noticed
that the recovery was made from a public road where there was traffic and
there was no independent witnesses nor any member of Panchayat or
Lamberdar or respectable person had been joined.
Therefore, keeping in mind the principle that prosecution
under the NDPS Act provides for stringent punishment, we are of the
considered opinion that the view which has been taken and keeping in view
the fact that the provisions of Section 50 of the NDPS Act, had not been
complied with the recovery is vitiated. The perusal of the record would also
go on to show that search had been conducted of the person, which is clear
from the statement of PW.2 HC Dharam Chand and even PW-1 SI Manjit
Lal has also stated that the recovery of plastic bag was from the right back
pocket of the capri which the accused was wearing. He admitted in cross-
examination that the accused was not taken before any gazetted Officer or
Magistrate and in such circumstances, the principles laid down by the
Constitution Bench of the Hon'ble Apex Court in Baldev Singh, Vijaysinh
Chandubha Jadeja and Arif Khan @ Agha Khan (supra) would come into
play.
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It is also to be noticed that the samples were only sent
after a period of 2 days to the FSL which would be clear from the report
Ex.P-19 which shows that one parcel sealed with two seals 'ML' and 'SPS'
had been received on 6.7.2018. A perusal of the record would also go on to
show that on 5.7.2018, the sealed parcel had been produced before the
Magistrate which had been sealed by him and handed over to the
investigating officer with a direction to deposit with the chemical examiner
for analysis. The said parcel was never got opened by the Magistrate for
perusal as to whether it contained the narcotics which had been recovered. It
is also to be noticed that the sample which had been received in the FSL
only contained the seals of the police officials and therefore, we are of the
considered opinion that the benefit of doubt has to be granted to respondent
No.1.
Thus, in the absence of any perversity in the impugned
judgment, we are of the considered opinion that there is no scope for
interference in the well reasoned order passed by the trial Court. Moreso, on
the principle that now a double presumption of innocence has arisen in
favour of the respondents, we feel that no case is made out for grant of
leave. Resultantly, the application for leave to appeal is dismissed.
(G.S. SANDHAWALIA)
JUDGE
August 1, 2022. (VIKAS SURI)
raj arora JUDGE
Whether speaking / reasoned Yes / No
Whether reportable Yes / No
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