Sewa Singh vs State Of Punjab
2023 Latest Caselaw 16821 P&H

MANPREET SINGH
2023.10.03

19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment "52A. Disposal of seized narcotic drugs and psychotropic substances.

MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment ."

30. Hon'ble the Supreme Court in Mohan Lal (supra) held as under:-

MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment "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."

33. Adverting to the facts of the present case, evidently no request was

made by the I.O. to the learned Magistrate for drawing up the representative MANPREET SINGH 2023.10.03 19:07 sample. Order dated 11.11.2012 (Exh.PW-3/D) as passed by the learned I attest to the accuracy and authenticity of this order/judgment Magistrate does not show that any representative sample was drawn.

Section 52-A of the Act was inserted by Act No.2 of 1989 which

came into force w.e.f. 29.05.1989. Section 52-A (2) (c) of the Act provides for

drawing a representative sample of the seized contraband in the presence of a

Magistrate. Inventory application (Exh.PW-3/E) does not indicate any such

request was made before the learned Magistrate. A fair trial is again a human

right. Every action of the authorities under the Act must be construed having

regard to the provisions of the Act as also the right of an accused to have a fair

trial. Thus, there has been a clear violation of mandatory provisions of Section

52-A, which has rendered the prosecution case doubtful.

35. No doubt non-association of independent witnesses in the recovery

proceedings is not fatal for the case of the prosecution and would not ipso facto

entitle one to seek acquittal, though a heightened standard of care is imposed

upon the Court in such instances to scrutinize the evidence of the prosecution.

Hon'ble the Supreme Court in 'Kishan Chand Vs. State of Haryana' 2013 (2)

SCC 502 has observed that failure of investigating officer to associate an

independent witness at the time of recovery creates a dent in the case of the

prosecution.

36. Recovery in the present case has been effected from the appellant

from a busy place i.e. near Jammu Palace Kapurthala, a thoroughfare. SI

Jaswant Singh (PW-3) though stated that before conducting the search of

appellant, he tried to join independent persons from general public but none was

ready. At the same time, he also failed to give the names of the persons he MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment attempted to approach during the proceedings. ASI Harbans Singh (PW-1) on

the other hand, contrary to his earlier version given in examination-in-chief,

categorically stated in his cross-examination that no independent witness was

joined by the I.O. From the statements of the witnesses neither any earnest

effort seems to have been made to associate independent witnesses nor any

cogent explanation is forthcoming for non-joining of independent witnesses

despite their availability at the spot. An afterthought version appears to have

been given to show that an effort was made to join the witnesses from the

public. This has cast a doubt on the case of the prosecution. Ratio of the

judgment in (supra) cannot be applied with full force to the

facts of the present case being distinguishable.

37. The other primary issue debated by the counsel for the appellant is

the effect of the complainant SI Jaswant Singh (PW-3) also being the I.O. of this

case. While relying upon 'State of Rajasthan Vs. Parmanand and another'

2014 (3) SCR 522 and 'Mohan Lal Vs. State of Punjab' (2018) 17 SCC 627,

learned counsel for the appellant contended that SI Jaswant Singh (PW-3)

should have recused himself from investigating the case as it raises doubts

regarding the impartial nature of investigation, particularly when the appellant

has raised the issue of his false complicity in the case. It is stated that biasness

towards the appellant is writ large as all the prosecution witnesses have tried to

conceal the identity of the appellant as a gunman of the then SHO posted in the

Police Station, Kapurthala. Contra, learned State counsel has urged that a

Constitutional Bench of Hon'ble the Supreme Court in 'Mukesh Singh Vs.

State' (Narcotic Branch of Delhi) 2020 SCC OnLine 700 has authoritatively

settled the law on permissibility of the complainant also being the investigating

officer in NDPS cases. Learned counsel for the State submits that appellant led

MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment no evidence or circumstance to establish that complainant was biased towards

him.

38. The appellant has suggested to prosecution witnesses that he was

falsely implicated in the present case at the behest of Inspector Manjit Singh, the

SHO, who was irked with his (appellant) behavior on account of his habit of

consuming liquor. The appellant also suggested to the witnesses that at the

relevant time, he was posted at P.S. City Kapurthala. However, all the PWs

feigned ignorance in this regard. ASI Harbans Singh (PW-1) denied that

appellant was working as PHG (Punjab Home Guard) at Police Station,

Kapurthala. He also denied that appellant was working as a body guard of

Inspector Manjit Singh or that appellant was falsely implicated in the present

case. SI Jaswant Singh (PW-3), the Investigating Officer expressed ignorance if

the appellant was doing a duty as SPO under SHO P.S. City Kapurthala on the

day of occurrence. He also denied the suggestion that on the day of occurrence

the appellant had been working as gunman of SHO Manjit Singh or that all the

witnesses mentioned in the Challan were posted in P.S. City, Kapurthala

alongwith the appellant. He admitted that PHG Hansraj (DW-2) was also

member of the raiding party. In these circumstances, when PWs tried to

suppress the identity of the appellant, it unerringly goes to establish that they

were biased towards the appellant being colleagues of Manjit Singh (PW-5),

with whom appellant was not sharing good relations while working under him

as his gunman. The fard jamatalshi (Exh.PW-1/C), memo of consent

(Exh.PW-1/A), memo of arrest and information (Exh.PW-1/B) nowhere

discloses the identity of Sewa Singh, working as a gunman. In Mukesh Singh

(supra), it has been observed by Hon'ble the Supreme Court that there is no bar

under the Act for the informant/complainant to be an investigator. Rather, the

provisions of the Act permit the same. Whether the investigation has been MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment conducted by concerned informant was fair investigation or not, is always to be

decided at the time of the trial. Therefore, there is no reason to doubt the

credibility of the informant and doubt the entire case of prosecution solely on

the ground that informant has investigated the case. The question of prejudice or

biased has to be established and decided on the facts of each case without any

universal generalization.'

39. It is to be noticed that prior information had been received by the

I.O. Further, the office of the Magistrate was at a short distance of 2 ½ kms.

from the place of recovery. Admittedly, investigating officer did not take the

appellant for his search to the nearest Magistrate. From the facts as discussed

above, it can be safely concluded that prosecution witnesses much less the

investigating officer were biased towards the appellant. The act of the

investigating officer in opting to conduct the investigation has certainly vitiated

the investigation of the case. It must be remembered that the doctrine of bias is a

leg of principles of natural justice. If the circumstances are such that it would

create a reasonable apprehension of bias in the mind of onlookers, it is sufficient

to invoke the doctrine of bias. The test for likelihood of bias and reasonable

apprehension of bias are interchangeable and parameters for both can be

construed to be similar. An illegal search, thus, cannot entitle the prosecution to

raise a presumption under Section 54 of the Act. Such presumption can only be

raised after the prosecution has established that accused (appellant herein) was

found to be in possession of contraband in a search conducted in accordance

with mandate of Section 50 of the Act.

40. Taking upon the other submission of the counsel for the appellant

that the documents like consent memo, recovery memo, personal search memo

and arrest memo contain the particulars of the FIR, Police Station etc. SI

Jaswant Singh (PW-3) has deposed that he had incorporated the FIR number on MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment search memo, jamatalashi memo and consent memo. At the same time, he also

admitted that he did not clarify that the documents were prepared before the

registration of the FIR by leaving the space for insertion of the FIR number etc.

In the absence of any reasonable explanation forth coming with regard to

reflecting the details of the FIR etc. on the consent memo, recovery memo raises

a serious doubt over the investigation conducted by the I.O. In 'Kamaljit Singh

@ Pappu Vs. State of Punjab' 2020 (14) SCC 9, similar issue was dealt with

where the investigation was found to be suspicious on the ground that FIR

number was mentioned on the memo which were prepared much prior to the

registration of the FIR. Coordinate Bench of this Court in 'Kewal Singh Vs.

State of Punjab' 2018 (4) R.C.R. (Criminal) 580, has also discarded the

investigation on the ground of mentioning of FIR number on the memos during

investigation prior to registration of the FIR.

41. Apart from the above ambiguity in the case of the prosecution, the

documents such as consent memo (Exh.PW-1/A), jamatalashi memo

(Exh.PW-1/C), arrest and information memo (Exh.PW-1/D) have been attested

by a single witness ASI Harbans Singh (PW-1), whereas recovery memo

(Exh.PW-1/B) which is hand written document unlike the above typed

documents, shown to have been attested by two witnesses. All the above

documents were shown to have been prepared and attested at the spot. The

above said deviation creates doubt regarding the authenticity of these documents

and having prepared in the manner alleged. Furthermore, the recovery memo

(Exh.PW-1/B) a material document is not shown to be attested by the appellant,

whereas the other documents like consent memo, arrest memo, personal search

memo, jamatalashi memo are shown to be attested by the appellant. This again

raises a doubt about the manner of preparation of recovery memo, which is a

document of effecting recovery of the alleged contraband from the appellant. MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment Coordinate Bench of this Court in 'Sandeep Kumar Vs. State of Punjab' 2019

(4) R.C.R. (Criminal) 741, has taken the above circumstance as doubtful

alongwith other inadequacies of the prosecution case while acquitting the

accused-appellant.

42. Dealing with the submission of delay of 10 days in sending the

sample to the Chemical Examiner, Kharar. The contraband was allegedly

recovered from the appellant on 10.11.2012. According to the statement of ASI

Arjan Singh (PW-4) MHC, he handed over the sealed parcel weighing 10 gram,

bearing seals impression 'JS/MS' alongwith the docket to HC Ranjit Singh

(PW-2) on 20.11.2012 for depositing in the office of Chemical Examiner,

Kharar. HC Ranjit Singh (PW-2) in his affidavit (Exh.PW-2/A) stated that on

20.11.2012, he took the sample duly sealed with the seal of 'JS/MS' alongwith

Form No.M-29 and deposited in the office of Chemical Examiner, Kharar.

Affidavit of Arjan Singh (PW-4) MHC, nowhere mentions that he had handed

over Form No.M-29 and sample seals to HC Ranjit Singh. On the contrary, HC

Ranjit Singh has stated that Form No.M-29 and sample seals were also given to

him. The aforesaid discrepancy has remained irreconcilable, thereby making

their statements unreliable. Furthermore, SI Jaswant Singh (PW-3) failed to give

cogent explanation for the delay in sending the sample to the office of Chemical

Examiner. Similarly, ASI Arjan Singh (PW-4) MHC was unable to give the

reasons for withholding the samples with him for a period of ten days. 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:-

MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment "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."

43. 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."

44. This Court in 'Malkiat Singh @ Kala Vs. The 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' 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 MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this sent to the office of the Chemical Examiner, for about 05 order/judgment 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 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, MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted."

45. 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 (HC Ranjit Singh and

Arjan Singh, MHC) about deposit of the sample seal 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.

46. Insofar as the contention of non-compliance of Section 57 of the

Act is concerned, learned counsel for the appellant failed to show that report of

the arrest of the appellant was not made to his superior officer by the

investigating officer as required under the Act. The statement of SI Jaswant

Singh (PW-3) indicates that after effecting recovery of contraband from the

appellant, he sent ruqa (Exh.PW-3/A) to the police station. Furthermore, the

provisions of Section 57 have been held to be directory, and its non-compliance

has not taken to have such consequences so as to vitiate the proceedings, as held

in 'Gurmail Chand Vs. State of Punjab' 2020 SCC OnLine SC 738, decided

on 23.01.2023. The investigating officer, SI Jaswant Singh (PW-3), has deposed

that he was having the weighing scale with him at the time of recovery.

Therefore, his statement with respect to the precise weight of the contraband

cannot be doubted with.

MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment

The findings of

the trial Court, holding the appellant guilty, cannot be sustained in the eyes of

law and are liable to be set aside.

MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment MANPREET SINGH 2023.10.03 19:07 I attest to the accuracy and authenticity of this order/judgment