Punjab-Haryana High Court
Kashmir Singh vs State Of Punjab on 22 November, 2023
Neutral Citation No:=2023:PHHC:149076
CRA-S-149-SB-2014 (O&M) 2023:PHHC:149076 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-149-SB-2014 (O&M)
Pronounced on : 22.11.2023
Kashmir Singh ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MRS JUSTICE RITU TAGORE
Present: Mr. Narender Kumar Vashisht, Advocate (Legal Aid Counsel)
for the appellant.
Mr. Sandeep Vermani, Addl. AG, Punjab.
****
RITU TAGORE, J
1. Challenge in this appeal is to the judgment of conviction and
order of sentence dated 23.10.2013 passed by Judge Special Court, Mansa,
in a Sessions case bearing No.126 of 2011, emanating from FIR No.55 dated
26.12.2010, whereby appellant Kashmir Singh, has been convicted for
commission of offence punishable under Section 22 of Narcotic Drugs and
Psychotropic Substances Act, 1985 (in brevity as 'the Act') for keeping in
his conscious possession 1kg and 10 grams intoxicant powder
'Alprazolam', without any permit or licence. He has been sentenced to
undergo rigorous imprisonment for ten (10) years and to pay a fine of
Rs. One lakh (Rs.1,00,000/-), in default whereof, to further undergo rigorous
imprisonment for one year.
Prosecution case
2. The brief facts of prosecution case are as follows:
On 26.12.2010, Gurcharan Singh SI (PW-4) along with other
police officials was traveling in an official vehicle, bearing
No.PB-31C-9345 driven by Pal Singh HC for patrolling duty from village
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Dullowal via link road to village Uddat Bhagat Ram. While the police party
was one kilometer ahead of village Dullowal, they observed a person sitting
on the right side of the road, carrying a plastic bag, in his hand. He was
taking out some material from the polythene, on a piece of paper and making
pouches. Upon noticing the police party, he appeared visibly perturbed.
On suspicion, Gurcharan Singh SI (PW-4) apprehended the said
person with the help of police officials. Intoxicant powder was noticed on
the fingers of his right hand, and mouth of the polythene bag was open with
intoxicant powder stuck on it. When asked, the said person disclosed his
name as Kashmir Singh son of Gura Singh (accused-appellant). Attempts
were made to join an independent witness but nobody was available. Upon
checking the polythene bag, intoxicant powder (Alprazolam) was recovered
from the same.
Out of the aforementioned powder, 10 gram powder was
separated and placed in a small plastic box and made into a sample parcel.
Remaining powder upon weighing totaled 1 kg. The bulk powder was also
packed into another parcel. Both the sample and bulk parcel were sealed by
Gurcharan Singh SI (PW-4) with his seal bearing impression 'GS'. Sample
seal chit (Ex.P-1) and Form-29 were prepared separately. After its use, seal
was handed over to Darshan Singh HC (PW-3). Separate memo (Ex.PF)
was prepared upon taking possession of the case property. Appellant could
not produce any permit or license for keeping the above said powder, the
contraband, in his possession.
Ruqa (Ex.PJ) was sent for registration of a case under Section
22/61/85 NDPS Act and FIR (Ex.PK) was registered. A site plan (Ex.PL)
was prepared, and statements of the witnesses were recorded. Appellant was
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arrested and his personal search was conducted, and memos (Ex.PG) and
(Ex.PH) were prepared.
On return to the police station, Gurcharan Singh SI, presented
the appellant and case property before Baghel Singh ASI, an officiating
SHO, at P.S. Kot Dharmu (PW-1), who verified the case property and facts
from the investigating officer, affixed his seal bearing impression 'BS' on the
case property, attested sample seal chit (Ex.P-1) and Form No.29 and took
the case property and prepared memo (Ex.PA), and kept the case property in
his safe custody. On the next day i.e. on 27.12.2010, Baghel Singh ASI,
produced case property, Form-29, inventory report (Ex.PC), appellant and
moved an application (Ex.PD) before learned Magistrate, Mansa, who
attested the case property and passed the order (Ex.PE) and directed to send
the appellant to judicial custody. The bulk was deposited in judicial
Malkhana, while the sample was retained by Baghel Singh ASI in his safe
custody in police Malkhana, Police Station, Kot Dharmu. Special report
(Ex.PB) was sent to area DSP.
On 05.01.2011, the sample along with sample seal chit was
handed over to Jagrup Singh HC (PW-2) for depositing the same in the
office of Chemical Examiner, Kharar, who after deposit on the same day
handed him the receipt. On receipt of report of Chemical Examiner (Ex.PX)
and on completion of other necessary formalities, Challan on its completion
was presented in the Court for trial.
Proceedings at the Trial
3. Copies of Challan prepared under Section 173 Cr.P.C. along
with documents attached thereto was supplied to appellant free of cost, as
envisaged under Section 207 Cr.P.C.
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4. On finding a prima facie case for commission of offence
punishable under Section 22 of the Act, charge was framed against the
appellant, to which he pleaded not guilty and claimed trial.
5. Over the course of trial, prosecution examined four witnesses
i.e. Baghel Singh, ASI (PW-1), the officiating SHO, who authenticated the
proceedings carried by the investigating officer, prepared the report under
Section 57 of the Act and conducted the proceeding under Section 52-A of
the Act; Jagrup Singh HC (PW-2) is a messenger, who took sample parcel
and deposited in the office of Chemical Examiner; Darshan Singh HC
(PW-3), a recovery witness and to whom seal was given by the investigating
officer after use; Gurcharan Singh SI (PW-4) is the investigating officer,
before whom recovery was effected and conducted recovery proceedings,
thereafter handed the appellant along with the case property and other
documents to officiating SHO (PW-1). Various documents (as detailed
above) were also tendered. Jagdeep Singh ASI and Ram Singh HC were
given up as unnecessary, thereafter, prosecution closed the evidence.
Defence version
6. Statement of the appellant was recorded under Section 313
Cr.P.C. He claimed innocence by denying all the allegations levelled against
him. He denied recovery of contraband from him. Appellant examined
Balwant Singh HC (DW-1), who proved entries of the road register
pertaining to the present case as Ex.D-1 to Ex.D-4 and, thereafter, appellant
closed his defence evidence.
Trial Court Decision
7. Learned trial Court after appreciating the evidence available on
record concluded that link evidence is complete and defence evidence failed
to dent the same, and the testimonies of the official witnesses are believable
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and coherent on the material aspect of the case and not liable to be rejected
merely on the ground that same are not corroborated by independent
witnesses. Further, concluded that entire mixture or solution of the drug
content is to be considered while determining its quantity and held recovered
quantity falls under the commercial quantity. As a result, held that
prosecution has successfully proved its case against the appellant-accused
beyond reasonable doubt, thereby convicted and sentenced the appellant-
accused, as indicated above.
8. Aggrieved with the findings of conviction and order of
sentence, the appellant-accused has preferred the instant appeal.
Contentions
9. Learned counsel for the appellant has assailed the findings of
the learned trial Court on the following grounds:-
i) Link evidence is incomplete as indicated by the
defence witness (DW-1) and learned trial Court wrongly
discarded his statement and record provided by him.
MHC, incharge of Malkhana was also not examined to
rule out any tampering with the case property;
ii) Non-compliance of provisions of Section 50,
52-A (2) (c) of the Act;
iii) Non-joining of independent witnesses in the
recovery proceedings with no cogent explanation;
iv) Prosecution's version seems improbable, and
witnesses have discrepancies regarding measuring
weights, number of seal affixed on case property and
return of seal to investigating officer;
v) Unexplained and undue delay in sending the
samples to Chemical Examiner;
vi) Complainant himself conducted the investigation
that vitiated the investigation and the recovery;
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vii) Percentage of salt is to be seen and not the entire
mixture to determine the quantity of the contraband.
10. Concluding his arguments, learned counsel for the appellant
contends that it is the fundamental duty of the prosecution to prove its case
beyond reasonable doubts. However, the material omissions and legal
infirmities as pointed above have indeed rendered the prosecution case
highly doubtful. Learned trial Court failed to appreciate these deficiencies in
the case and erred in believing the prosecution while disbelieving the
defence version of false implication. Based on these grounds, a prayer for
acquittal of the appellant has been made by setting aside the impugned
judgment of conviction and sentence.
11. As opposed, learned State counsel has supported the findings of
conviction and legality of the sentence. It is stated that compliance of
mandatory provisions of the Act has been made throughout from the time of
search and seizure of the contraband from the appellant. The evidence shows
that it was a chance recovery from the bag held by the appellant and,
therefore, provisions of Section 50 of the Act are not attracted. On search of
polythene bag, powder was found, regarding which he failed to produce any
permit or licence. It is stated by learned State counsel that in present case,
link evidence is complete, commencing from seizure of contraband till its
testing, which is supplemented by the testimonies of PWs and Chemical
Examiner's report (Exh.PX), proving that contraband remained intact and
safe throughout, till it was tested and found to be containing an intoxicating
powder, Alprazolam. The defence failed to impeach the testimonies of the
witnesses on any count that remained consistent. The defence witness
(DW-1) failed to create any dent in the link evidence and his evidence has
been rightly rejected by the learned trial Court. Learned State counsel further
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contended that delay in sending the sample to the office of Chemical
Examiner, as such is of no consequence and referred to 'Hardip Singh Vs.
State of Punjab' 2008 (4) R.C.R. (Criminal) 97.
12. Learned State counsel while relying upon 'Raveen Kumar Vs.
State of Himachal Pradesh' 2020 (4) R.C.R. (Criminal) 873 submitted
that statements of witnesses cannot be discarded merely on the ground that
they are official witnesses unless the witnesses appear to be biased against
the appellant-accused. The prosecution witnesses have consistently and
impeccably supported the material allegations against the appellant-accused.
By referring to a recent judgment of the Constitutional Bench of Hon'ble the
Supreme Court in 'Mukesh Singh Vs. State' (Narcotic Branch of Delhi)
2020 SCC OnLine SC 700, learned State counsel contended that if
complainant has himself conducted the investigation would not per se make
the ground to doubt the recovery unless bias is made out by the appellant,
which in the circumstances, appellant failed to make out. By placing
reliance on Hira Singh and another Vs. Union of India and another 2020
(20) SCC 272, learned State counsel stated that it is the entire mixture of
contraband that need to be considered to determine the 'quantity of
contraband' and not the percentage of the salt. It is submitted that there is
no merit in the appeal and same be dismissed.
Analysis and Reasoning
13. Having duly considered the submissions in the light of
evidence, I hold that appeal must succeed for the reasons recorded
hereinafter.
14. Law relating to degree of proof required in Narcotic Drugs and
Psychotropic Substances Act, 1985 has been settled by a Division Bench
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judgment of this Court passed in 'Didar Singh @ Dara Vs. State of
Punjab', 2010 (3) R.C.R. (Criminal) 337, in the following terms:-
"20. Under the Narcotic Drugs and Psychotropic
Substances Act, not only the very possession of the
narcotics, drugs and psychotropic substances has been
made an offence but severe punishment without
exception has also been provided. The Act also provides
for presumption of guilt emerging from possession of
Narcotics Drugs and Psychotropic Substances. In case of
commercial quantity of the narcotics, drugs and
psychotropic substances, the minimum sentence of 10
years rigorous imprisonment besides minimum fine of
Rupees one lac has been provided."
15. Hon'ble the Supreme Court in 'Noor Aga Vs. State of Punjab
and another', 2008 (3) R.C.R (Criminal) 633 has held that under the
Narcotic Drugs and Psychotropic Substances Act, the extent of burden to
prove the foundational facts on the prosecution, i.e., proof beyond all
reasonable conduct is more onerous. A heightened scrutiny test would be
necessary to be invoked. It is so because whereas, on one hand, the Court
must strive towards giving effect to the parliamentary object and intent in
the light of the international conventions, but, on the other hand, it is also
necessary to uphold the individual human rights and dignity as provided for
under the UN Declaration of Human Rights by insisting upon scrupulous
compliance of the provisions of the Act for the purpose of upholding the
democratic values. It is necessary for giving effect to the concept of 'wider
civilization'. It is further observed that while deciding such cases, the Courts
must always remind itself that it is a well settled principle of criminal
jurisprudence that more serious the offence, the stricter is the degree of
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proof. Therefore, a higher degree of assurance would be necessary to convict
an accused under the Narcotic Drugs and Psychotropic Substances Act.
16. It must be kept in mind that under the Narcotic Drugs and
Psychotropic Substances Act, it is the fundamental duty of the prosecution to
prove beyond a shadow of reasonable doubt that the investigation conducted
in the case is absolutely flawless, specifically with regard to the link
evidence, which is of utmost significant aspect. It is incumbent upon the
prosecution to prove that from the stage of affecting the recovery till the
sample reaches the Chemical Examiner, there was no chance of tampering
with it. Once the presumption is stumbling on this vital aspect, the benefit is
to be extended to the accused.
Link Evidence incomplete
17. Learned trial Court noted that Balwant Singh, HC (DW-1)
acknowledged that seal of office of Chemical Examiner is affixed on road
certificate on deposit of the sample. Learned trial Court discarded the
evidence of Balwant Singh, HC (DW-1) and road certificate (Ex.D-2),
observing that absence of Chemical Examiner's seal on the road certificate,
failed to establish involvement of C. Darshan Singh in handling the sample
parcel. Learned trial Court also observed that prosecution evidence indicated
that Baghel Singh, ASI (PW-1) entrusted the sample to Jagrup Singh, HC
(PW-2), which was supplemented by the contents of chemical report
(Ex.PX), confirming presentation of sample in the office on 06.01.2011.
Consequently, learned trial Court dismissed significance of the entry
(Ex.D-2) considering as stray entry and non examination of C. Darshan
Singh as in-consequence, resultantly, held the link evidence as complete.
18. In my considered opinion, approach taken by learned trial Court
is flawed. The road certificate (Ex.D-2), proved by Balwant Singh, HC
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(DW-1), indicate that case property of this case was handled by C. Darshan
Singh. Although, learned trial Court noted that Baghel Singh, ASI (PW-1)
made the entry of handing the sample of this case to C. Darshan Singh for
submission in the office of Chemical Examiner but discarded this crucial
evidence, on the grounds narrated above. However, learned trial Court
overlooked the fact that this entry was not challenged by the prosecution as
fabricated. The appellant has proved the entry, be it stray. In the
circumstances, it was obligatory on the part of the prosecution to provide
explanation for this entry, not the appellant as incorrectly observed by
learned trial Court. In the circumstances, statement of C. Darshan Singh
becomes very material to establish that he never handled the case property.
19. Further, Baghel Singh, ASI (PW-1) deposed that case property
was deposited in the Malkhana and Gurnam Singh was the MHC.
Prosecution failed to examine MHC. His examination was material to
establish whether case property remained safe, intact and un-tampered while
it remained in Malkhana. This constitutes a serious inadequacy in the case of
prosecution.
20. Furthermore, chemical report (Ex.PX) does not indicate who
deposited the case property and whether it reached the office intact. Report
does not even indicate the description of seals, number of seals or if it
matches with the sample seal. In these circumstances, it cannot be asserted
that link evidence is complete. The evidence presented display significant
gaps in the prosecution case, casting serious doubts in the mind of the Court,
whether sample of contraband allegedly prepared from the contraband
recovered from the appellant was actually sent to the office of Chemical
Examiner for analysis or if sent whether it remained intact? Learned trial
Court overlooked these material discrepancies in the case of the prosecution,
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leading to erroneous conclusion regarding the link evidence. In given
evidence, it is reasonably concluded that in present case link evidence is
incomplete.
Non Compliance of provisions of Section 52-A (2) (c) of the Act
21. There is another material infirmity in the case of the
prosecution. The investigating officer (PW-4) did not comply with the
provisions of Section 52-A (2) (c) of the Act, which provides drawing of
sample before learned Magistrate. Evidence does not indicate that any
representative sample was drawn before the learned Magistrate as mandated
under Section 52-A (c) of the Act. Application (Exh.PD), moved by the
investigating officer (PW-4) under Section 52-A of the Act does not indicate
that any request was made before the learned Magistrate to draw sample,
neither the order (Exh.PE) passed on application (Exh.PD) provides that any
representative sample was drawn in his presence.
22. NDPS Act was amended in year 1989 and Section 52-A was
incorporated, which reads as under:-
"52-A. Disposal of seized narcotic drugs and
psychotropic substances.
(1) The Central Government may, having regard to the
hazardous nature, vulnerability to theft, substitution,
constraint of proper storage space or any other relevant
consideration, in respect of any narcotic drugs,
psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette,
specify such narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of narcotic
drugs, class of psychotropic substances, class of
controlled substances or conveyances, which shall, as
soon as may be after their seizure, be disposed of by such
officer and in such manner as that Government may,
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from time to time, determine after following the
procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic
substances, controlled substances or conveyances has
been seized and forwarded to the officer-in-charge of the
nearest police station or to the officer empowered under
section 53, the officer referred to in sub-section (1) shall
prepare an inventory of such narcotic drugs,
psychotropic substances, controlled substances or
conveyances containing such details relating to their
description, quality, quantity, mode of packing, marks,
numbers or such other identifying particulars of
the narcotic drugs, psychotropic substances, controlled
substances or conveyances or the packing in which they
are packed, country of origin and other particulars as the
officer referred to in sub-section (1) may consider
relevant to the identity of the narcotic drugs,
psychotropic substances, controlled substances or
conveyances in any proceedings under this Act and make
an application, to any Magistrate for the purpose of -
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such Magistrate,
photographs of such drugs, substances or conveyances
and certifying such photographs as true; or
(c) allowing to draw representative samples of such
drugs or substances, in the presence of such Magistrate
and certifying the correctness of any list of samples so
drawn.
(3) Where an application is made under sub-section (2),
the Magistrate shall, as soon as may be, allow the
application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court trying an
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offence under this Act, shall treat the inventory, the
photographs of narcotic drugs, psychotropic substances,
controlled substances or conveyances and any list of
samples drawn under sub-section (2) and certified by the
Magistrate, as primary evidence in respect of such
offence."
23. Hon'ble the Supreme Court in Union of India Vs. Mohanlal
and another, 2016 (3) SCC 379 while speaking on Section 52-A (2) (c)
observed as under:-
"15. It is manifest from Section 52-A (2) (c) (supra) that
upon seizure of the contraband the same has to be
forwarded either to the officer in-charge of the nearest
police station or to the officer empowered under Section
53 who shall prepare an inventory as stipulated in the
said provision and make an application to the Magistrate
for purposes of (a) certifying the correctness of the
inventory (b) certifying photographs of such drugs or
substances taken before the Magistrate as true and (c) to
draw representative samples in the presence of the
Magistrate and certifying the correctness of the list of
samples so drawn.
16. Sub-section (3) of Section 52-A requires that the
Magistrate shall as soon as may be allow the application.
This implies that no sooner the seizure is effected and the
contraband forwarded to the officer in charge of the
Police Station or the officer empowered, the officer
concerned is in law duty-bound to approach the
Magistrate for the purposes mentioned above including
grant of permission to draw representative samples in his
presence, which samples will then be enlisted and the
correctness of the list of samples so drawn certified by
the Magistrate. In other words, the process of drawing of
samples has to be in the presence and under the
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supervision of the Magistrate and the entire exercise has
to be certified by him to be correct.
17. The question of drawing of samples at the time of
seizure which, more often than not, takes place in the
absence of the Magistrate does not in the above scheme
of things arise. This is so especially when according to
Section 52-A (4) of the Act, samples drawn and certified
by the Magistrate in compliance with sub-section (2) and
(3) of Section 52-A above constitute primary evidence for
the purpose of the trial. Suffice it to say that there is no
provision in the Act that mandates taking of samples at
the time of seizure."
24. In 'Simarnjit Singh Vs. State of Punjab' 2023 SCC OnLine
SC 906, Hon'ble the Supreme Court while acquitting the accused relied
upon Mohan Lal (supra) and held that mandate of Section 52-A of the Act
was not complied with, and made the following observations in para No. 10
and 11 :-
"10. Hence, the act of PW-7 of drawing samples from all
the packets at the time seizure is not in conformity with
the law laid down by this Court in the case of Mohanlal.
This creates a serious doubt about the prosecution's case
that substance recovered was a contraband.
11. Hence, the case of prosecution is not free from
suspicion and the same has not been established beyond
a reasonable doubt. Accordingly, we set aside the
impugned judgments insofar as the present appellant is
concerned and quash his conviction and sentence."
25. Hon'ble the Supreme Court in 'Mangilal Vs. State of Madhya
Pradesh' 2023 SCC OnLine 862, while acquitting the accused, has
observed that mandate of Section 52-A of the Act has to be complied with
by observing that:-.
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"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 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
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."
26. It is a case where no sample was drawn in the presence of
Magistrate in compliance of mandatory provisions of Section 52-A (2) (c) of
the Act. Learned trial Court failed to notice this material infirmity in case of
the prosecution and fell into grave error, in recording conviction to the
appellant. Rather, benefit of same should have gone to the appellant.
Un-explained delay in sending sample to Chemical Examiner
27. Dealing with the submission of delay of 10 days in sending the
sample to the Chemical Examiner. The recovery is dated 26.12.2010 and
according to the statement of Baghel Singh, ASI (PW-1), he handed the
sample parcel and sample chit along with Form-29 to Jagrup Singh, HC
(PW-2) on 05.01.2011 for deposit in the office of Chemical Examiner and as
per the statement of Jagrup Singh, HC (PW-2), he deposited on the same
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day. Jagrup Singh, HC (PW-2) was confronted with his statement (Ex.DA)
where factum of handing over Form-29 is not mentioned.
28. A representative sample of any contraband after its seizure and
deposit in Malkhana or with concerned SHO is required to be sent to
Chemical Examiner within 72 hours as per the instructions issued vide
standing order No.1 of 1988 dated 15.03.1988 issued by Narcotics Control
Bureau. The sanctity of the instructions came up for consideration in Noor
Aga (supra) wherein it was observed as under:-
"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 the
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."
29. The investigating officer is obliged to follow the procedural
safeguards as provided in the instructions as long as they do not override the
provisions of the NDPS Act and supplement the procedural protection given
in the Act. In 'State of Punjab Vs. Baldev Singh' (1999) 6 SCC 172, it was
stated:
"It must be borne in mind that severer the punishment,
greater has to be the care taken to see that all the
safeguards provided in a statute are scrupulously
followed."
30. This Court in 'Malkiat Singh @ Kala Vs. State of Punjab'
2009 (1) R.C.R. (Criminal) 353, while relying upon the observations made
by Hon'ble the Supreme Court in 'State of Rajasthan Vs. Gurmail Singh'
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2005 (2) R.C.R. (Criminal) 58, with regard to delay in sending the samples
to Chemical Examiner, observed that:-
"11. It was next submitted by the Counsel for the
appellant, that though the alleged recovery was effected
on 03.07.1997, yet the samples were sent to the office of
the Chemical Examiner on 08.07.1997 and, thus, the
delay of 5 days, in sending the same to the office of the
Chemical Examiner, remained unexplained and, as such
the possibility of tampering with the same, until the same
reached the Laboratory, could not be ruled out. No
explanation, whatsoever, was furnished, as to why the
samples were not sent to the office of the Chemical
Examiner, for about 05 days. Had any explanation been
furnished, the matter would have been considered, in the
light thereof, but in the absence of any explanation,
having been furnished, in this regard, the Court cannot
coin any of its own. In Gian Singh v. State of Punjab,
2006(2) R.C.R. (Criminal) 611 (P&H), there was a
delay of 14 days, in sending the sample to the office of
the Chemical Examiner. Under these circumstances, it
was held that the possibility of tampering with the
sample, could not be ruled out, and the link evidence was
incomplete. Ultimately, the appellant was acquitted, in
that case. In 'State of Rajasthan vs. Gurmail Singh'
2005 (2) R.C.R. (Criminal) 58 : 2005(1) Apex Criminal
521 (SC)., the contraband remained in the Malkhana for
20 days. The malkhana register was not produced, to
prove that it was so kept in the malkhana, till the sample
was handed over to the Constable. In these
circumstances, in the aforesaid case, the appellant was
acquitted. In Ramji Singh v. State of Haryana, 2007(3)
RCR (Criminal) 452 (P&H), the sample was sent to the
office of the Chemical Examiner after 72 hours, the seal
remained with the police official, and had not been
handed over to any independent witness. Under these
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circumstances, it was held that this circumstance would
prove fatal to the case of the prosecution. No doubt, the
prosecution could lead other independent evidence, to
prove that none tampered with the sample, till it reached
the office of the Forensic Science Laboratory. The other
evidence, produced by the prosecution, in this case, to
prove the link evidence, is not only deficient, but also
unreliable. In the instant case, the principle of law, laid
down, in the aforesaid authorities, is fully applicable to
the facts of the present case. The delay of 05 days, in
sending the samples to the office of the Chemical
Examiner, and non-strict proof, by the prosecution, that
the same was not tampered with, till it was deposited, in
that office, must prove fatal to the case of the
prosecution, as the possibility of tampering with the
same, could not be ruled out. The submission of the
Counsel for the appellant, in this regard, being correct,
is accepted."
31. As noticed above, the witnesses have not furnished any
explanation for the delay in sending the sample to the Chemical Examiner.
If any explanation had been furnished by the witnesses, the matter would
have been considered in light thereof. However, in absence of any
explanation of delay of ten days in sending the samples to the office of
Chemical Examiner and further with no clarity in the statements of the
witnesses about deposit of Form-29 in the office of Chemical Examiner,
possibility of tampering of the sample cannot be ruled out under these
circumstances. In view of the peculiar facts of the case, as noted above, the
observations made in Hardip Singh (supra) cannot be taken as parallel to
this case as in aforesaid case, delay of 40 days in sending the sample to
Chemical Examiner was held not fatal, where seals were found intact on the
sample parcel when handed over to Chemical Examiner. In the
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facts, where link evidence is incomplete, the delay in sending the sample to
Chemical Examiner assumes importance and is certainly fatal to the
prosecution.
Non-joining of independent witness
32. As regards the submission of non-joining of independent
witnesses in the recovery proceedings carried against the appellant, it is
settled that non-examination of an independent witness is not per se fatal to
case of the prosecution, yet, this aspect gains relevance and importance in
case where other available material on record creates suspicion. Nonetheless,
such an omission casts an added duty on the Courts to adopt a greater degree
of care while scrutinizing the testimonies of the police officials.
33. Admittedly, in present case no independent witness was joined
in the recovery despite the place of recovery being a thoroughfare. Darshan
Singh HC (PW-3), recovery witness, deposed that investigating officer did
not go to nearby village nor sent any one to call any independent person
from the village. He also stated that no Sarpanch or Panch was called from
village Dullowal. The investigating officer, Gurcharan Singh, SI (PW-4)
stated that he tried to join independent witness but no one was available at
that time. However, admitted that no respectable person was called from
village Dullowal. The time of recovery is somewhat between 12.30 a.m. to
1.30 p.m. as I.O. stated that he handed the seal after use to Darshan Singh,
HC (PW-3) at 1.30 p.m. The place of recovery was a link road and
thoroughfare. According to the witnesses, they stayed at the spot till 5.30
p.m. and village Dullowal is at a distance of 1kms and village Uddat Bhagat
Ram 3 kms. from the spot. It is highly improbable that in winter season,
during day time, no person crossed the road. That being so, independent
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witness could be associated at least to provide some semblance of fairness in
the proceedings.
34. I am aware that in chance recovery, subsequent inclusion of
independent witness will not be material, however, to attach fairness to the
recovery proceedings being done at the spot, the requirement of independent
witness cannot be undermined especially in the facts of present case.
Evidence shows that no earnest effort was made to join an independent
witness to the recovery proceedings. In the circumstances, where
prosecution case is riddled with infirmities, as detailed herein above, the
non-association of public witnesses has gained relevance and importance.
Hon'ble the Supreme Court in 'Krishan Chand Vs. State of Himachal
Pradesh' 2017 AIR (SC) 3751 held that the failure of the I.O. to associate
an independent witness at the time of recovery creates a dent in the case of
the prosecution. In 'Gorakh Nath Prasad Vs. State of Bihar' 2018 (1)
R.C.R. (Criminal) 108, Hon'ble the Supreme Court, while acquitting the
accused held that case of prosecution cannot be entirely based upon the
statements of official witnesses when no independent witness has been
joined in the investigation.
35. Furthermore, prosecution case appears quite improbable. A
person having contraband would not sit on the roadside a thoroughfare, in
day time, that too in open noticeable to all and prepare pouches of
contraband. No person would commit any criminal activity in open. A
natural tendency of an offender is to commit such illegal acts in secrecy and
under cover. Further, witnesses (PW-3 & PW-4) are discrepant about the
types of measuring weights possessed by the I.O. Darshan Singh, HC
(PW-3) stated that I.O. possessed all types of weights; whereas he stated he
had weights of 10 gm and I Kg only. Gurcharan Singh, SI (PW-4), the
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investigating officer stated that he affixed seals five times and took the seal
from Darshan Singh, HC (PW-3) on the next day. Darshan Singh, HC (PW-
3) stated that I.O. used seals 5 to 6 times and he returned the seal on same
day after deposit of the case property. These discrepancies coupled with
other infirmities in the case of prosecution, assumes importance.
Informant himself is the investigator
36. Constitutional Bench of Hon'ble the Supreme Court in Mukesh
Singh (supra), observed that investigation would not suffer the vice of
unfairness or bias if informant itself is the investigator. Also, observed that
in such like NDPS cases where there is reverse burden of proof, the burden
shall be on the prosecution to prove that no prejudice is caused to the
accused in the investigation of the case conducted by the
complainant/informant and at the same time accused has to establish bias
and/or unfair investigation by the investigator. The appellant has raised the
plea of false complicity. After scrutinizing the infirmities in the case of the
prosecution, mentioned above, when tested in t`he light of the observations
made above, it becomes clear that the investigating officer failed to conduct
a proper investigation. This failure has not only prejudiced the appellant but
has also undermined the prosecution's case.
Non-compliance of provision of Section 50 of Act
37. The argument advanced by learned counsel for appellant
regarding non-compliance of provision of Section 50 of the Act is
concerned, same is not tenable in the facts of the case. PWs stated that no
offer was given to appellant as required under Section 50 of the Act.
Admittedly, recovery in present case is a chance recovery, from polythene
bag being carried by appellant-accused and not from the personal search of
the accused. Therefore, Section 50 of the NDPS Act is not applicable. It is
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only in case of recovery of contraband from the person of accused,
compliance of provision of Section 50 of the NDPS Act is mandatory as
settled by Constitutional Bench of Hon'ble the Supreme Court in the case of
'Vijaysinh Chandubha Jadeja Vs. State of Gujarat' (2011) 1 SCC 609
observing that in a case of personal search only the provision of Section 50
of the NDPS Act is required to be complied with. Same principle was
reiterated in case titled 'Rajesh Dhiman and others Vs. State of Himachal
Pradesh' and 'Gulshan Rana Vs. State of Himachal Pradesh' reported as
(2020) 10 SCC 740.
Whether percentage of the salt of contraband or the entire quantity of
recovered contraband is determinable for qualifying the quantity under
the Act
38. Insofar as the contention of learned counsel for the appellant for
considering the percentage of the salt of the contraband and not the entire
quantity of recovered contraband for determining the culpability under the
Act is concerned, same stand answered by Hon'ble the Supreme Court in
Hira Singh (supra) observing that it is the total quantity of the contraband
and not the percentage of the salt to be considered while considering the
guilt of the accused. Learned counsel for the appellant was unable to bring to
the notice of this Court any observation to the contrary. The aforesaid
argument thus cannot be countenanced.
39. It is the bounden duty of the prosecution to establish its' case
beyond reasonable doubt by bringing cogent and qualitative evidence. It is
settled principle of criminal jurisprudence that more serious the offence,
stricter the degree of proof. Under the NDPS Act, the extent of burden to
prove the foundational facts on the prosecution are more onerous for such
type of cases, a higher degree of assurance thus would be necessary to
convict a person under the NDPS Act.
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40. In view of the discussion above and the cumulative effect of the
infirmities, the prosecution has failed to prove its case against the appellant-
accused beyond a shadow of reasonable doubt. The learned trial Court
overlooked significant deficiencies discussed herein above, in the
prosecution case and fell in error in holding the appellant guilty.
41. No other argument was urged.
42. As an upshot of the aforesaid discussion, appeal is allowed. The
judgment of conviction and order of sentence dated 23.10.2013 passed by
Judge Special Court, Mansa, is hereby set aside. Appellant is acquitted of the
charge.
43. The appellant is on bail on account of suspension of his
sentence vide order dated 04.03.2016 passed by Coordinate Bench. In view
of the provisions of Section 437-A of Cr.P.C. 1973, appellant is directed to
execute bonds within a period of 30 days from receiving the certified copy
of this judgment, to the satisfaction of learned trial Court/successor Court,
which shall remain in force for six months in terms of Section 437-A Cr.P.C.
Copy of this judgment along with trial Court record be sent forthwith to
learned trial Court and one copy of this judgment be also sent to Legal Aid
Counsel representing the appellant. A copy of judgment, if applied for, be
made available to the appellant. The case property, if any, may be dealt with
as per rules after expiry of period of limitation of filing the appeal.
44. Pending miscellaneous applications, if any, stand disposed of
accordingly.
(RITU TAGORE)
JUDGE
Pronounced on: 22nd November, 2023
Manpreet/Rimpal
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:149076
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