Punjab-Haryana High Court
Shiv Nath vs State Of Punjab on 28 July, 2023
Neutral Citation No:=2023:PHHC:099439
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-2184-SB-2014(O&M)
Date of decision: 28.07.2023
Shiv Nath ....... Appellant
Versus
State of Punjab ...... Respondent
CORAM : HON'BLE MR. JUSTICE HARPREET SINGH BRAR
***
Present: Mr. K.B.S Mann, Advocate
for the appellant.
Mr.Iqbal Singh Maan, DAG, Punjab.
***
HARPREET SINGH BRAR, J.
1. The above mentioned appeal has been directed against the
judgment of conviction and order of sentence dated 16.10.2013 passed by
Special Court, Sri Muktsar Sahib, in FIR No. 79 dated 12.07.2011, under
Section 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985
(hereinafter referred to as 'the NDPS Act' for short), registered at Police
Station Lambi, vide which the appellant has been convicted and sentenced to
undergo rigorous imprisonment for a period of 10 years and to pay a fine of
Rs. 1,00,000/- for the commission of offence punishable under Section 22
of the Act and in default of payment of fine, he was further ordered to
undergo rigorous imprisonment for a period of 01 year.
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FACTUAL BACKGROUND
2. Brief facts of the case are that on 12.07.2011, ASI Kabul Singh
(investigating officer) along with HC Sukhjit Singh was patrolling the area
of village Killianwali towards village Lohara. The police party spotted the
accused carrying a plastic bag in his left hand at the bridge of the canal in
the area of village Lohara. The accused was stopped on suspicion of him
being in possession of intoxicating substances. He was informed of his legal
right to be searched before a Gazetted Officer or a Magistrate. The accused
reposed faith in the investigating officer and a consent memo was prepared
on which thumb impression of the accused was placed. The same was
attested by HC Sukhjit Singh and HC Tarsem Singh.
A search of the bag was conducted and 3kg of Charas was
recovered. A sample of 20g was separated and both the parcels were sealed
bearing with the impression 'KS'. A ruqa was sent to the police station for
the registration of the FIR. An arrest memo was prepared and the accused
was arrested. Both the recovery memo and the arrest memo bear the thumb
impression of the accused.
Thereafter, at the police station, the parcels were presented to
ASI/SHO Iqbal Singh who further sealed both the parcels and added a seal
bearing impression 'IS' on it. The SHO took the case property in possession
vide memo attested by the investigating officer. The case property was
produced before the Illaqa Magistrate who separated 20g of Charas as
representative sample and placed his own seal bearing impression 'HA' on
the parcel. The case property was then deposited with MHC Pritpal Singh
who handed it over to HC Lekh Raj for depositing the same in the office of
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the Chemical Examiner Punjab, Chandigarh.
3. After complying with the provisions of Section 207 Cr.P.C.,
charge was framed against the accused for the commission of offence
punishable under Section 22 of the Act, to which the accused did not plead
guilty and claimed trial.
4. In order to prove its case, prosecution examined as many as five
witnesses. Accused in their defence examined HC Surjit Singh.
5. After hearing arguments of both sides and perusing the
evidence on record, the trial Court convicted and sentenced the
appellant/accused as discussed above.
CONTENTIONS
6. Learned counsel for the appellant has relied upon a Division
Bench judgment of the Himachal Pradesh High Court in Nagender Shah vs.
State of H.P. 2010(4), RCR (Criminal) 194 and the order passed by this
Court in CRM-22440-2017 in CRA-D-163-DB-2017, Varinder Kumar vs.
State of Punjab. On the basis of these decisions, learned counsel for the
appellant contends that as per Ex.P11, the report of the Chemical Examiner,
the percentage of resin content in the sample is 24%. As such, the seized
contraband from the appellant cannot be termed as 'charas'. He has drawn
the attention of the Court towards para 25 of the judgment passed in
Nagender Shah's case (supra) which is reproduced hereasunder:-
"30. According to Parikh's Textbook of Medical Jurisprudence,
Forensic Medicine and Toxicology, in the case of bhang it is 15
per cent, in the case of ganja it is about 25 per cent and in the
case of Charas it is between 25 and 40 per cent. When the
percentage of tetrahydrocannabinol in the sample stuff is not
indicated in the report nor had any test been conducted to
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ascertain whether the stuff was Charas, that is to say resin, or
some other preparation of cannabis, it cannot be said that the
stuff was in fact Charas. As regards cystolithic hair, these being
the fibre of cannabis plant, are bound to be present in all the
products of cannabis. It is quite likely that the samples were
only of bhang, i.e. the dried leaves of cannabis plant, which is
also supposed to contain 15 per cent concentration of
tetrahydrocannabinol. Possession of only the leaves or the
seeds of cannabis plant is no offence, because it is only the
Charas, ganja or mixture, as defined in Section 2(iii) of the Act,
which is an offence, under Section 20 of the Act. Leaves and
seeds of cannabis plant are not included either in the definition
of Charas or ganja and are rather specifically excluded from
the definition of ganja, unless accompany the flowering and
fruiting tops of the plant."
7. Learned counsel for the appellant has vigorously argued that
according to the report of Chemical Examiner, the seized contraband from
the appellant is not 'charas'.
8. Learned counsel for the appellant has pointed out various
shortcomings in the case of the prosecution. According to PW1-HC Sukhjit
Singh, the scales for weighing the recovered contraband were arranged from
neighbouring village Lohara whereas, as per the prosecution case, the
recovery of the contraband is made from the road which connects village
Killianwali and Lohara. The time of recovery is 4.00 p.m. and the police
party remained at the spot for four hours. Learned counsel for the appellant
asserts that in spite of recovery from a busy road, no independent witness
was joined. PW1-HC Sukhjit Singh, has admitted in his cross examination
that it is correct that the place of recovery is a thoroughfare and the public
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was passing from there but he could not tell the names of those persons to
whom the investigating officer had asked to become witnesses. He has
further assailed the case of the prosecution on the ground that there is a 7
days delay in dispatching the sample to the office of the Chemical Examiner
and that the prosecution has not been able to prove that till the sample was
dispatched, it remained in the safe custody. It has further been pointed out
that there is a total non-compliance of Section 50 of the NDPS Act as the
investigating officer himself has made the alleged recovery without
informing the appellant of his legal right to be searched before a Gazetted
Officer or a Magistrate. He further argues that the investigating officer
himself is the complainant. As such, the entire investigation stands vitiated
and he prays for acquittal of the appellant.
9. Per contra, learned State counsel has supported the case of the
prosecution by arguing that the conscious possession of the seized
contraband has been duly proved and that all the procedural safeguards
provided under the NDPS Act have been duly complied with. Even the
compliance of Section 52-A of the NDPS Act was also made. The case
property was produced before the concerned Magistrate and a representative
sample was also drawn in his presence.
OBSERVATION AND ANALYSIS
10. This Court has heard learned counsel for the parties and has
perused the record with their able assistance.
11. Evidently, as per the report of the Chemical Examiner (Ex.P11),
the content of tetrahydrocannabinol(THC) in the resin was found to be 24%.
A Division Bench of the Himachal Pradesh High Court in Sunil Vs. State of
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Himachal Pradesh, 2011(5) RCR (Criminal) 726, after taking into
consideration the definition of cannabis as provided under Section 2(iii) of
the NDPS Act, acquitted the appellant on the ground that the percentage of
tetrahydrocannabinol(THC) was not mentioned in the report of the Chemical
Examiner, since the determinative factor for arriving at a conclusion that the
recovered contraband falls within the definition of Bhang, Ganja or Charas
is the percentage of THC in it i.e. 15% in the case of Bhang, upto 25% in
Ganja and between 25-40% in the case of Charas. A Full Bench of the
Himachal Pradesh High Court in State of H.P. vs. Mehboon Khan, 2014(2)
RCR(Criminal) 447, on reference by the Division Bench in this regard, has
considered the various decisions on this issue and while holding that the
Division Bench of the Himachal Pradesh High Court has erred in taking into
consideration the percentage of THC, observed as follows:-
" xxxx
c. In view of the detailed discussion hereinabove, the
Division Bench while deciding Sunil's case supra has definitely
erred in taking note of the percentage of tetrahydrocannabinol
in three forms of cannabis i.e. Bhang, Ganja and Charas and
hence, concluded erroneously that without there being no
reference of the resin contents in the reports assigned by the
Chemical Examiners in those cases, the contraband recovered
is not proved to be Charas, as in our opinion, the Charas is a
resinous mass and the presence of resin in the stuff analyzed
without there being any evidence qua the nature of the neutral
substance, the entire mass has to be taken as Charas.
d. There is no legal requirement of the presence of
particular percentage of resin to be there in the sample and the
presence of the resin in purified or crude form is sufficient to
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hold that the sample is that of Charas. The law laid down by the
Division Bench in Sunil's case that `for want of percentage of
tetrahydrocannabinol or resin contents in the samples analyzed,
the possibility of the stuff recovered from the accused persons
being only Bhang i.e. the dried leaves of cannabis plant,
possession of which is not an offence, cannot be ruled out', is
not a good law nor any such interpretation is legally possible.
The percentage of resin contents in the stuff analyzed is not a
determinative factor of small quantity, above smaller quantity
and less than commercial quantity and the commercial quantity.
Rather, if in the entire stuff recovered from the accused, resin of
cannabis is found present on analysis, whole of the stuff is to be
taken to determine the quantity i.e. smaller, above smaller but
less than commercial and commercial, in terms of the
notification below Section 2 (vii a) and (xxiii a) of the Act.
e. xxxxxx
f. We are also not in agreement with the findings recorded
by the Division Bench in Sunil's case that "mere presence of
tetrahydrocannabinol and cystolithic hair without there being
any mention of the percentage of tetrahydrocannabinol in a
sample of charas is not an indicator of the entire stuff analyzed
to be charas" for the reason that the statute does not insist for
the presence of percentage in the stuff of charas and mere
presence of tetrahydrocannabinol along with cystolithic hair in
a sample stuff is an indicator of the same being the resin of
cannabis plant because the cystolithic hair are present only in
the cannabis plant. When after observing the presence of
tetrahydrocannabinol and cystolithic hair, the expert arrives at
a conclusion that the sample contains the resin contents, it is
more than sufficient to hold that the sample is of charas and the
view so expressed by the expert normally should be honoured
and not called into question. Of course, neutral material which
is not obtained from cannabis plant cannot be treated as resin
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of the cannabis plants. The resin rather must have been
obtained from the cannabis plants may be in `crude' form or
`purified' form. In common parlance charas is a hand made
drug made from extract of cannabis plant. Therefore, any
mixture with or without any neutral material of any of the forms
of cannabis is to be considered as a contraband article. No
concentration and percentage of resin is prescribed for `charas'
under the Act."
12. In view of the pronouncement of the full Bench of Himachal
Pradesh High Court in Mehboon Khan (supra), the issue involved with
regard to the percentage of THC is settled and it is made clear that the nature
of contraband has to be seen as per the definition provided under Section
2(iii) of the NDPS Act. The said Section is reproduced as follows:-
" Section 2 (iii) cannabis (hemp) means
(a) charas, that is, the separated resin, in whatever form
whether crude or purified, obtained from the cannabis
plant and also includes concentrated preparation and
resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering of fruiting tops of the
cannabis plant (excluding the seeds and leaves when not
accompanied by the tops), by whatever, name they may
be known or designated; and
(c) any mixture, with or without any neutral material, of
any of the above forms of cannabis or any drink prepared
therefrom;"
13. A perusal of the definition of Section 2(iii)(a) of the
NDPS Act clearly indicates that charas is the resin in whatever form,
whether crude or purified, obtained from the cannabis plant. The
legislature in its wisdom has not provided any distinction between crude,
purified or liquid concentrated form. As such, the different percentage
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of the resin would not be the determinative factor for holding that the
seized contraband is not charas.
14. Further, a perusal of Form 29 (Ex.P6) indicates that the
sample was dispatched on 18.07.2011 whereas the recovery was made
on 12.07.2011. The sample was admittedly dispatched beyond the
prescribed period of 72 hours as envisaged in the Standing Order No.1
of 1988 dated 15.03.1988 issued by the Narcotics Control Bureau.
15. Another conspicuous fact which is discernible from
Ex.P6 is that the sample which was sent for chemical analysis was
sealed with the impressions 'IS' and 'KS' of the seals of PW5-ASI Iqbal
Singh and PW2-ASI Kabul Singh respectively. Statement of PW5-ASI
Iqbal Singh further reveals that the appellant was produced along with
the entire case property in the Court of the concerned Magistrate and one
representative sample weighing 20g of charas from the bulk parcel was
separated and the representative sample was sealed with the seal of the
Court bearing impression 'HA' and the seal of the investigating officer
bearing impression 'KS'. A perusal of Ex.P19, the order passed by the
learned SDJM, Malout on 13.07.2011, also indicates that the
representative sample weighing 20g was taken in the Court and same
had been signed and sealed with the seal of the Court bearing impression
'HA' along with the seal of the investigating officer bearing impression
'KS' whereas a perusal of Form 29 (Ex.P6) shows that the sample which
was taken at the spot, was sent to Chemical Examiner and it did not bear
the seal of the Court bearing impression 'HA' and that of the
investigating officer 'KS'. Rather, it bore the impression of the seal of
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ASI Iqbal Singh-PW5 and ASI-Kabul Singh-PW2 which shows that the
representative sample drawn in the presence of the concerned Magistrate
was not sent to the Chemical Examiner. It is not merely an empty
formality to draw the representative sample in the presence of the
Magistrate. Such lapse would tantamount to non-compliance of Section
52-A of the NDPS Act. A three Judge Bench of the Hon'ble Supreme
Court in Tofan Singh vs. State of Tamil Nadu, 2021(1)
RCR(Criminal) 1, speaking through Justice R.F. Nariman, has held as
follows:-
"57. On the basis of the reasoning and discussion above, the
following conclusions arise:
xxxx
(4) That there is indeed need to protect society from criminals.
The societal intent in safety will suffer if persons who commit
crimes are let off because the evidence against them is to be
treated as if it does not exist. The answer, therefore, is that the
investigating agency must follow the procedure as envisaged by
the statute scrupulously and the failure to do so must be viewed
by the higher authorities seriously inviting action against the
concerned official so that the laxity on the part of the
investigating authority is curbed. In every case the end result is
important but the means to achieve it must remain above board.
The remedy cannot be worse than the disease itself. The
legitimacy of judicial process may come under cloud if the
court is seen to condone acts of lawlessness conducted by the
investigating agency during search operations and may also
undermine respect for law and may have the effect of
unconscionably compromising the administration of justice.
That cannot be permitted. An accused is entitled to a fair trial.
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A conviction resulting from an unfair trial is contrary to our
concept of justice. The use of evidence collected in breach of
the safeguards provided by Section 50 at the trial, would render
the trial unfair."
16. Neither the MHC Pritpal Singh, in-charge of the Malkhana
where the bulk and the sample was kept, was produced as a witness nor
Register No. 19 was produced to establish the safe custody of the sample till
it reached the Chemical Examiner. As such, the possibility of tampering
cannot be ruled out. Reliance in this regard is place on Narcotics Control
Bureau vs. Ajmer Kumar and another, 2016 ILR (HP) 1090 and
Jitendra Singh Rathore vs. State of U.P., 2014(5) RCR(Criminal) 462
wherein on the basis of above lapse, the accused were acquitted.
17. The sample was dispatched beyond the period of 72 hours from
the date of recovery. As such, the case of the appellant is fully covered by
the ratio of law laid down in Union of India vs. Bal Mukund and others,
2009(2) RCR (Criminal) 574 and State of Rajasthan vs. Gurmail Singh,
2005(2) RCR(Criminal) 58 with regard to delay in sending the sample to
the Chemical Examiner resulting in the acquittal of the accused.
18. Admittedly, a sample of 20g of charas was drawn whereas the
Standing Order No.1 of 1988 makes it mandatory that a minimum of 24g
should be drawn as sample for chemical examination. Relevant provision of
the Standing Order No. 1 of 1988 is reproduced hereasunder:-
"Quantity of different drugs required in the sample - The
quantity to be drawn in each sample for chemical test should be
5 grams in respect of all narcotic drugs and psychotropic
substances except in the cases of Opium Ganga and
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Charas/Hashsish where a quantity of 24 grams in each case is
required for chemical test. The same quantities should be taken
for the duplicate sample also."
19. The procedure prescribed in the Standing Order is required to
be mandatorily adhered to. The sanctity of the statutory instructions
contained in the Standing Orders issued by the Narcotics Control Bureau
came up for consideration before the Hon'ble Supreme Court in Noor Aga
vs. State of Punjab, 2008 (16) SCC 417, where a two Judge Bench,
speaking through Justice S.B.Sinha, held as under:-
"32. Recently, this Court in State of Kerala & Ors. v. Kurian
Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582], following the
earlier decision of this Court in Union of India v. Azadi Bachao
Andolan [(2004) 10 SCC 1] held that statutory instructions are
mandatory in nature.
Logical corollary of these discussions is that the guidelines
such as those present in the Standing Order cannot be blatantly
flouted and substantial compliance therewith must be insisted
upon for so that sanctity of physical evidence in such cases
remains intact. Clearly, there has been no substantial
compliance of these guidelines by the investigating authority
which leads to drawing of an adverse inference against them to
the effect that had such evidence been produced, the same
would have gone against the prosecution."
20. A perusal of the record shows that the contraband was
recovered from a plastic bag which the accused was carrying in his left hand
alongwith his personal search. The Hon'ble Supreme Court in State of
Rajasthan vs. Parmanand and another 2014(2) RCR (Criminal) 40, has
categorically held that Section 50 of the NDPS Act will be applicable
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mandatorily in cases where personal search is conducted alongwith recovery
of contraband. The communication of the right of the accused to be searched
before a Gazetted Officer or a Magistrate is not ceremonial. Hence, the
communication has to be made individually, in an unambiguous manner.
Joint communication of the said right would defeat the purpose of Section
50 of the NDPS Act. The communication of the right must be made to the
accused even if it is of little significance to him as he should not suffer for
the want of knowledge of the same.
A Larger Bench of five Judges of the Hon'ble Supreme Court in
Vijaysinh Chandubha Jadeja vs. State of Gujarat, 2010(4)
RCR(Criminal) 911, has held that an endeavour must be made to produce
the accused before the nearest Magistrate at the first instance to bestow
impartiality, authenticity, transparency and creditworthiness to the
prosecution case as the Magistrate commands more confidence of the public
than a police officer. Mere enquiry by the police officer in this regard will
not serve the purpose of the mandate of Section 50 of the NDPS Act. The
accused must be made aware that it is his legal right to be searched before a
Gazetted Officer or a Magistrate.
21. Recently, a two Judge Bench of the Hon'ble Supreme Court in
Mangilal vs. The State of M.P., Crl. Appeal No. 1651 of 2023 decided on
July 12, 2023, speaking through Justice M.M.Sundresh, while acquitting the
accused, has observed that the mandate of Section 52-A of the Act has to be
duly complied with. The following was observed:-
"8. Before any proposed disposal/destruction mandate of
Section 52A of the NPDS Act requires to be duly complied with
starting with an application to that effect. A Court should be
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satisfied with such compliance while deciding the case. The
onus is entirely on the prosecution in a given case to satisfy the
Court when such an issue arises for consideration. Production
of seized material is a factor to establish seizure followed by
recovery. One has to remember that the provisions of the NDPS
Act are both stringent and rigorous and therefore the burden
heavily lies on the prosecution. Non-production of a physical
evidence would lead to a negative inference within the meaning
of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter
referred to as the Evidence Act). The procedure contemplated
through the notification has an element of fair play such as the
deposit of the seal, numbering the containers in seriatim wise
and keeping them in lots preceded by compliance of the
procedure for drawing samples."
22. It is settled law that non-examination of an independent witness
is not fatal to the case of the prosecution but in the instant case, neither any
effort was made to associate any independent witness nor any explanation is
forthcoming for not doing so. The Hon'ble Supreme Court in Krishan
Chand vs. State of H.P AIR 2017 (SC) 3751 has laid down the ratio that
the failure of the investigating officer to associate an independent witness at
the time of recovery creates a dent in the case of the prosecution. A two
Judge Bench of the Hon'ble Supreme Court in Gorakh Nath Prasad vs.
State of Bihar, 2018(1) RCR (Criminal) 108 has acquitted the accused
holding that the case of the prosecution cannot be entirely based upon the
statements of the official witnesses when no independent witness has been
joined in the investigation.
CONCLUSION
23. In view of the above discussion, the aforesaid appeal is
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allowed. The judgment of conviction and order of sentence dated 16.10.2013
passed by Special Court, Sri Muktsar Sahib are set aside. Appellant namely
Shiv Nath is acquitted of the charges framed against him. His bail bonds and
surety bonds stand discharged.
24. Pending miscellaneous application (s), if any, shall also stand
disposed of.
25. The case property, if any, may be dealt with as per rules after
the expiry of period of limitation for filing the appeal. Record of the case
be sent back to the Court below.
(HARPREET SINGH BRAR)
JUDGE
28.07.2023
sunita
Whether speaking/non speaking : Yes/No
Whether reportable/non reportable : Yes/No
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