Punjab-Haryana High Court
Jagtar Singh vs Ut Of Chandigarh on 1 September, 2023
Neutral Citation No:=2023:PHHC:118586
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-2586-SB-2014 (O&M)
Date of Decision:01.09.2023
Jagtar Singh ... Appellant
Versus
State of U.T., Chandigarh ... Respondent
CORAM : HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. B.B.S. Randhawa, Advocate
amicus curiae.
Ms. Simsi Dhir Malhotra, APP, U.T. Chandigarh.
***
HARPREET SINGH BRAR, J. (ORAL)
1. The present appeal has been preferred against the judgment of conviction
and order of sentence dated 29.04.2014 passed by the learned Judge, Special
Court, Chandigarh in case bearing FIR No.214 dated 17.08.2012 registered under
Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as the NDPS Act) registered at Police Station Industrial
Area, Chandigarh whereby the appellant has been convicted for commission of
offence under Section 15 of the NDPS Act and sentenced to undergo rigorous
imprisonment for a period of 10 years with a fine of Rs.1 lakh and in default of
payment of fine to further undergo rigorous imprisonment for six months.
FACTUAL BACKGROUND
2. In brief, the version put forth by prosecution is that on 17.08.2012, SI
Malook Singh along with other police officials was present at the checkpoint
near CTU workshop depot for checking suspicious persons owing to incidents of
theft that had occurred in the city recently. At about 4:30 PM, one vehicle
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bearing registration No.HP-12-B-4448, which was being driven by the accused-
appellant, came from the side of cremation ground of village Dadua and the said
vehicle was signalled to be stopped by S.I. Malook Singh. On checking the said
vehicle, one plastic gunny bag was found lying near driver's seat and another
plastic gunny bag was recovered from the small box built behind the seat of the
driver. Both gunny bags were found to be containing poppy husk. On the asking
of the Investigating Officer, the driver of the vehicle disclosed his name as Jagtar
Singh son of Banta Singh, resident of Village Allapur, P.S. Kurali, District
Mohali. He could not produce any licence or permit for keeping the poppy husk
in his possession. The plastic gunny bags were weighed with the help of a
weighing machine and the weight came to be 50 kgs for each bag. Two samples
of 2 kgs each were taken from each of the plastic gunny bags and thereafter, they
were converted into sealed parcels by SI Malook Singh with his seal bearing
impression 'MS'. The seal after use was handed over to SI Balwinder Singh.
The sample parcels and the remaining property as well as the vehicle bearing
registration No.HP-12-B-4448 were taken into possession vide recovery memo,
which was attested by SI Balwinder Singh and Constable Balbir Singh. As the
accused appeared to have committed an offence under Section 15 of the NDPS
Act by possessing 100 kgs of poppy husk, ruqa was sent to the police station on
the basis of which FIR was registered.
3. Thereafter, ASI Amarjit Singh, second Investigating Officer reached the
spot and the accused along with entire case property was handed over to him. He
prepared a rough site plan. On return to the police station, the accused as well as
the entire case property was produced before SHO Malkiat Singh, who affixed
his own seal bearing impression 'MS' on each of the parcel and deposited the
same with MMHC.
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4. After completion of investigation, challan against the accused was
prepared and presented in the court. As per Section 207 Cr.P.C., copies of
documents as relied upon by the prosecution were supplied to the accused free of
costs.
5. After considering the rival contentions and perusing the record,
commission of offence under Section 15 of the NDPS Act was made out against
the accused and thus, he was charged accordingly. The accused-appellant
pleaded not guilty to the same and claimed trial.
6. In support of its case, the prosecution examined as many as nine witnesses
and thereafter closed its evidence.
7. Statement of the accused-appellant was recorded under Section 313
Cr.P.C. wherein he denied the charge framed against him and pleaded innocence
but he did not lead any evidence in his defence.
CONTENTIONS
8. Learned counsel appearing for the appellant argues that provisions of
Section 50 of the NDPS Act were not complied with while conducting personal
search, as the appellant was not apprised of his legal right to be searched before a
Gazetted Officer or a Magistrate. There is also a violation of provisions of
Section 52-A of the NDPS Act, as the representative sample was not drawn in
the presence of the Magistrate.
9. Learned counsel for the appellant further argues that there is an
unexplained delay of 4 days in sending the sample to FSL whereas the same
ought to have been sent to FSL within 72 hours.
10. It is submitted that the alleged recovery of contraband was stated to be
effected from cabin of the truck, which was being driven by the accused-
appellant. One plastic gunny bag of 50 kgs was found lying near the seat of the
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driver and another bag of same weight was recovered from the box built behind
the seat of driver. The counsel for the appellant argues that photographs Ex.8 to
Ex.P-11 would clearly show that there is hardly any space behind the seat of
driver to accommodate a huge bag of 50 kgs. The accused-appellant has been
falsely implicated in the present case and the alleged recovery has been planted
on him. It is further argued that no independent witness was joined despite the
fact that the road from where the recovery was made caters to heavy traffic and a
workshop of Chandigarh Transport Undertaking also situated nearby.
Furthermore, the person who provided the weighing machine was also not
examined. Moreover, the complainant and the Investigating Officer in the
present case is the same person, which is against the settled proposition of law.
Even Form M-29 was not prepared at the spot.
11. Per contra, learned counsel appearing on behalf of the respondent-State
argues that provisions of Section 50 of the NDPS has no application to this case,
as the contraband was recovered from the truck being driven by the accused-
appellant and not from the person of the accused. It is further argued that
provisions of Section 52-A of the NDPS Act have been duly complied with as
after preparation of inventory, an application for attestation of the same was
moved before the learned Judicial Magistrate 1st Class on 18.08.2012 whereupon
order of even date was passed by the learned Judicial Magistrate 1st Class
certifying the inventory to be correct and the photographs of the case property
were also taken in his presence.
12. Learned State counsel further argues that the accused is not entitled to
acquittal on the sole ground that the complainant himself was the Investigating
Officer unless and until it is proved that the accused suffered the vice of
unfairness or bias, which has to be decided on a case to case basis. It is also
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argued that the delay of 4 days in sending the samples to the FSL is not fatal to
the prosecution case, as all the official witnesses supported the prosecution case
and there was no evidence produced in rebuttal that the case property was
tampered with. Even the Chemical Examination Report, which was placed on
record as Ex.PW5/A proved that the samples Exhibit 1 and Exhibit 2 were found
to be that of poppy straw.
ANALYSIS AND OBSERVATION
13. This Court has heard learned counsel for the parties and has gone through
the records with their able assistance.
14. Learned counsel for the appellant has forcefully argued that provisions of
Section 50 of the NDPS Act were not complied with, as the appellant was not
made aware of his legal right to be searched before a Gazetted Officer or a
Magistrate. The above contention of the learned counsel for the appellant, when
tested on the anvil of the facts and circumstances of the present case, finds merit.
Undisputedly, the alleged contraband was recovered from the cabin of the truck
but the search memo, which was placed on record as Ex.PH, would clearly show
that the accused-appellant was also subjected to personal search. Therefore, the
case in hand is a case of composite search, meaning thereby, when along with the
bag/vehicle/receptacle of the accused, his body is also searched, the rigor of
Section 50 of the NDPS Act would be made applicable.
15. A two Judge Bench of the Hon'ble Supreme Court in State of Rajasthan
Vs. Parmanand and another (2014) 5 SCC 345 speaking through Justice
Ranjana P. Desai has held as under:-
"15. Thus, if merely a bag carried by a person is searched without there
being any search of his person, Section 50 of the NDPS Act will have no
application. But if the bag carried by him is searched and his person is
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also searched, Section 50 of the NDPS Act will have application. In this
case, Respondent 1 Parmanand's bag was searched. From the bag, opium
was recovered. His personal search was also carried out. Personal search
of Respondent 2 Surajmal was also conducted. Therefore, in the light of
the judgments of this Court mentioned in the preceding paragraphs,
Section 50 of the NDPS Act will have application."
A three Judge Bench of the Hon'ble Supreme Court in S.K. Raju alias
Abdul Haque alias Jagga Vs. State of W.B. (2018) 9 SCC 708 speaking through
Justice Dr. D.Y. Chandrachud has held as under:-
"20. The question which arises before us is whether Section 50(1) was
required to be complied with when charas was recovered only from the
bag of the appellant and no charas was found on his person. Further, if
the first question is answered in the affirmative, whether the requirements
of Section 50 were strictly complied with by PW 2 and PW 4.
21. As evidenced by Ext. 3, a first option was given to the appellant. PW 2
informed him that it was his legal right to be searched either in the
presence of a Magistrate or in the presence of a gazetted officer. The
appellant was then asked to give his option by indicating whether he
wanted to be searched by a Magistrate or a gazetted officer. The appellant
indicated that he wanted the search to be carried out in the presence of a
gazetted officer. When PW 4 arrived, he was introduced to the detainee as
a gazetted officer. As evidenced by Ext. 4, PW 4 then gave the appellant a
second option. He inquired of him again, whether he wanted to be
searched in the presence of a gazetted officer or in the presence of a
Magistrate. The appellant reiterated his desire to be searched in the
presence of a gazetted officer. Before the search of the appellant
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commenced, the gazetted officer asked the appellant whether he wanted to
search PW 2 before his own search was carried out by PW 2. The
appellant agreed to search PW 2 before the latter carried out his search.
On conducting the search, only personal belongings of PW 2 were found
by the appellant. On the search of the appellant in the presence of the
gazetted officer, a biscuit-coloured jute bag was recovered from the
appellant, and Rs 2400 cash in the denomination of 24 notes of Rs 100
each was found in the left pocket of the appellant's trouser. When the bag
was opened, a black polythene cover containing nineteen rectangular
broken sheets of a blackish/deep brown colour weighing 1.5 kg was
recovered. The sheets were tested and were found to be charas.
22. PW 2 conducted search of the bag of the appellant as well as of the
appellant's trousers. Therefore, the search conducted by PW 2 was not
only of the bag which the appellant was carrying, but also of the
appellant's person. Since the search of the person of the appellant was
also involved, Section 50 would be attracted in this case. Accordingly, PW
2 was required to comply with the requirements of Section 50(1). As soon
as the search of a person takes place, the requirement of mandatory
compliance with Section 50 is attracted, irrespective of whether
contraband is recovered from the person of the detainee or not. It was,
therefore, imperative for PW 2 to inform the appellant of his legal right to
be searched in the presence of either a gazetted officer or a Magistrate.
From Ext. 3, it can be discerned that the appellant was informed of his
legal right to be searched in the presence of a Magistrate or a gazetted
officer. The appellant opted for the latter alternative. Ext. 4 is a record of
the events after the arrival of PW 4 on the scene. After the arrival of PW 4,
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the appellant was once again asked by him, whether he wished to be
searched in the presence of a gazetted officer or a Magistrate. This was
the second option which was presented to him. When he reiterated his
desire to be searched before a gazetted officer, PW 4 inquired of the
appellant whether he wished to search PW 2 before his own search was
conducted by PW 2. The appellant agreed to search PW 2. Only the
personal belongings of PW 2 were found by the appellant. It was only after
this that a search of the appellant was conducted and charas recovered.
Before the appellant's search was conducted, both PW 2 and PW 4 on
different occasions apprised the appellant of his legal right to be searched
either in the presence of a gazetted officer or a Magistrate. The options
given by both PW 2 and PW 4 were unambiguous. Merely because the
appellant was given an option of searching PW 2 before the latter
conducted his search, would not vitiate the search. In Parmanand, in
addition to the option of being searched by the gazetted officer or the
Magistrate, the detainee was given a "third" alternative by the
empowered officer which was to be searched by an officer who was a part
of the raiding team. This was found to be contrary to the intent of Section
50(1). The option given to the appellant of searching PW 2 in the case at
hand, before the latter searched the appellant, did not vitiate the process
in which a search of the appellant was conducted. The search of the
appellant was as a matter of fact conducted in the presence of PW 4, a
gazetted officer, in consonance with the voluntary communication made by
the appellant to both PW 2 and PW 4. There was strict compliance with
the requirements of Section 50(1) as stipulated by this Court
in Vijaysinh ."
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16. In the present case, there is not an iota of evidence produced on record by
the prosecution to prove that the accused-appellant was made aware of his right
to be searched by a Gazetted Officer or a Magistrate at the time of his personal
search and that an offer of search was given to him as enshrined under Article 50
of the NDPS Act. Rather PW-1 SI Malook in his cross-examination stated that 'it
is correct that no notice under Section 50 was served upon the accused since it
was a chance recovery.'
17. A glaring omission on the part of the Investigating Officer is the non-
compliance of Section 52-A of the NDPS Act. The mandate of Section 52-A of
the NDPS Act requires the representative sample to be drawn in the presence of
the Magistrate but in the present case, no such exercise was done, which would
render the case of the prosecution highly doubtful. A two Judge Bench of the
Hon'ble Supreme Court in Union of India vs. Mohanlal and another, 2016 (1)
RCR (Criminal) 858, speaking through Justice T.S.Thakur has held as under:-
"20. To sum up we direct as under:
(1) No sooner the seizure of any Narcotic Drugs and Psychotropic and
controlled Substances and Conveyances is effected, the same shall be
forwarded to the officer in-charge of the nearest police station or to
the officer empowered under Section 53 of the Act. The officer
concerned shall then approach the Magistrate with an application
under Section 52A(ii) of the Act, which shall be allowed by the
Magistrate as soon as may be required under Sub-Section 3 of Section
52A, as discussed by us in the body of this judgment under the heading
'seizure and sampling'. The sampling shall be done under the
supervision of the magistrate as discussed in paras 13 and 14 of this
order."
18. 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
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observed that the mandate of Section 52-A of the NDPS 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 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."
19. Admittedly, the sample was sent after a delay of 4 days for chemical
examination to CFSL, Sector 36-A, Chandigarh. As per instructions issued vide
Standing Order No.1 of 1988 dated 15.03.1988 by the Narcotics Control Bureau,
the representative sample is required to be sent to the Chemical Examiner within
72 hours. The Standing Orders are mandatory in nature and the omission on the
part of the Investigating Officer with regard to non-compliance of Section 52-A
of the NDPS Act coupled with the violation of Standing Order No.1 of 1988 ibid
in sending the sample after a delay of 4 days would tantamount to be a serious
flaw in the investigation, which suffocates the prosecution case completely. 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
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Supreme Court in Noor Aga vs. State of Punjab, 2008 (16) SCC 417, where a
two Judge Bench, speaking through Justice S.B.Sinha, has 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 BachaoAndolan [(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. The delay of 4 days in sending samples to the Chemical Examiner also
makes the ratio of law in Union of India Vs. Bal Mukund and others 2009 (2)
RCR (Criminal) 574, Malkiat Singh alias Kala Vs. State of Punjab 2009 (1)
RCR (Criminal) 353 and State of Rajasthan Vs. Gurmail Singh 2005 (2) RCR
(Criminal) 58 applicable to the present case.
21. Another conspicuous omission on the part of the Investigating Officer was
with regard to ensuring safe custody of the bulk as well as the representative
sample. In the manner in which the bulk and representative sample were
handled, possibility of tampering with both the sealed parcels cannot be ruled
out. Form M-29 was not prepared. The person from whom the weighing
machine was arranged was not examined. PW1 SI Malook Singh stated in his
cross-examination that 'no mobile phone was recovered from the possession of
accused' whereas Ex.PH i.e. the search memo, which bears signature of SI
Malook Singh depicts that one mobile phone make Micromax was recovered
from the accused. PW3 HC Balbir, who took ruqa to the police station for
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registration of FIR in his cross-examination stated that one mobile phone was
recovered from the accused. Therefore, there is a stark contradiction in the
statements of official witnesses, who were signatories to the search memo
Ex.PH. Further, no explanation is forthcoming with regard to non-joining of any
independent witness during the course of investigation, even though the recovery
was made from a road, which is frequently visited by the general public.
22. It is well 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. A two Judge Bench of 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.
23. There are gaping holes and inadequacies in the prosecution evidence and
the link evidence is completely missing. The prosecution has miserably failed to
knit together the chain of circumstances which point towards the hypothesis of
the complicity of the appellant beyond a reasonable shadow of doubt.
Resultantly, the appeal is allowed. The judgment of conviction and order of
sentence dated 29.04.2014 passed by the learned Judge, Special Court,
Chandigarh are set aside. The appellant-Jagtar Singh is acquitted of the charge
framed against him. His bail bonds and surety bonds stand discharged.
24. Pending miscellaneous application(s), if any, shall also stand disposed of.
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25. The case property, if any, may be dealt with as per rules after expiry of
period of limitation for filing the appeal(s). Record of the case be sent back to the
Court below.
(HARPREET SINGH BRAR)
JUDGE
September 01, 2023
Pankaj*
Whether speaking/reasoned Yes
Whether reportable Yes
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