Punjab-Haryana High Court
Balwinder Singh And Another vs State Of Punjab on 4 April, 2024
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
2024:PHHC:045160
In the High Court for the States of Punjab and Haryana at Chandigarh
CRA-D-11-DB-2018(O&M)
Date of Decision:- 4.4.2024
Balwinder Singh and another .........Appellants
Versus
State of Punjab ....... Respondent
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
HON'BLE MR. JUSTICE GURBIR SINGH
Present:- Mr. Jashandeep Singh Sandhu, Advocate for the appellants.
Mr. Amit Rana, Sr. DAG, Punjab.
* * * * *
GURVINDER SINGH GILL, J.
1. The appellants Balwinder Singh and Bhola Singh assail judgment and order
dated 4.9.2017 passed by learned Judge, Special Court, Bathinda vide which
the appellants have been held guilty of having committed offences punishable
under Sections 21 and 22 of the NDPS Act and have been sentenced as
under :-
Offence Imprisonment Fine In default of fine
under Section R.I. for 11 years Rs. 1,10,000/- R.I. of one year
21 of the
NDPS Act
under Section R.I. for 11 years Rs. 1,10,000/- R.I. of one year
22 of the
NDPS Act
2. It is the case of prosecution that on 2.9.2012, a police party headed by ASI
Balbir Singh (Investigating Officer) went for patrolling in the area of village
CRA-D-11-DB-2018 (O&M) (2) 2024:PHHC:045160
Jajjal. One Jagna Singh was also associated with the police party. When the
police party was present near the bridge on minor canal in the area of village
Jajjal, two persons were seen coming on foot who were carrying a white
coloured heavy plastic bag in their hands. Upon noticing the police party,
they threw away the plastic bag and tried to slip away in the fields. However,
the police party, getting suspicious, apprehended them. Upon inquiry, they
disclosed their names as Balwinder Singh and Bhola Singh. It is further the
case of prosecution that a transparent envelope could be seen lying inside the
bag which had been thrown by the accused and some intoxicant powder and
intoxicant vials of Rexcof were visible. Both Balwinder Singh and Bhola
Singh were extended an offer in terms of Section 50 of the NDPS Act but
both of them stated that they reposed confidence in the Investigating Officer
with regard to search of their bag. A sample of 50 grams of intoxicant
powder was separated and the remaining intoxicant powder was found to
weighing 250 grams. Similarly, one vial of Rexcof was taken as a sample and
the remaining were found to be 61 vials. After completing proceedings at the
spot, the case property was deposited in the Malkhana. The samples which
had been drawn at the spot were sent for analysis to FSL on 12.9.2012
through Head Constable Baldev Singh. As per the report of FSL, the
recovered intoxicant powder was found to be containing 'Methamphetamine'
and the vial were found to contain 'Codeine'.
3. Upon completion of investigation, challan was presented against the accused
on 28.4.2014.
4. The Special Court, Bathinda, initially framed charges for offence punishable
under Sections 21 of the NDPS Act on 8.5.2014. However, subsequently
CRA-D-11-DB-2018 (O&M) (3) 2024:PHHC:045160
amended charges for offences punishable under section 21 and 22 of the
NDPS Act were framed on 4.9.2017.
5. The prosecution, in order to substantiate its case, examined as many as 5
prosecution witnesses. PW-1 ASI Balbir Singh (Investigating Officer) stated
in detail with regard to the entire investigation conducted by him right from
apprehension of the accused on 2.9.2012 upto the presentation of challan. He
duly proved all the documents prepared including recovery memo, consent
memo, rough site plan etc.
6. PW-2 Head Constable Iqbal Singh, who was also comprised in the police
party when the accused had been apprehended, corroborated the prosecution
story and broadly stated in tune with the testimony of the PW-1 ASI Balbir
Singh (Investigating Officer).
7. PW-3 Head Constable Baldev Singh deposed that on 12.9.2012, ASI Darshan
Singh SHO had handed over sample parcels to him for depositing the same in
the office of FSL, Mohali which he accordingly deposited the same with FSL.
PW-4 ASI Darshan Singh stated that on 2.9.2012, he was working as ASI-
cum-officiating SHO and that ASI Balbir Singh produced before him the
accused alongwith sample parcels and the bulk parcel of recovered
intoxicants duly sealed, upon which he also affixed his seals and that the case
property was kept in safe custody. He further deposed that on 12.9.2012, he
handed over the sample parcels to Head Constable Baldev Singh for
depositing the same in the office of Chemical Examiner, Kharar which was
deposited on 13.9.2012. He stated that as long as the sample parcels
remained in his possession, the same were not tampered with. PW-5 MHC
Jagrant Singh is a formal witness who stated that on 2.9.2012, the regular
CRA-D-11-DB-2018 (O&M) (4) 2024:PHHC:045160
SHO of the Police Station namely Inspector Paramjit Singh was away in
connection with official duty and that in his absence ASI Darshan Singh was
working as officiating SHO.
8. Upon closure of prosecution evidence, statements of accused were recorded
in terms of Section 313 Cr.P.C. wherein the entire incriminating evidence was
put to the accused/appellants to enable them to explain the same but the
appellants denied the entire prosecution case in toto and pleaded innocence
and false implication. The accused in their defence examined DW-1 Jagna
Singh, who had initially been cited as prosecution witness having been
associated with the police party on the day of the alleged recovery. DW-1
Jagna Singh stated that he had never joined the police party headed by ASI
Balvir Singh on 2.9.2012 and no recovery had been effected in his presence.
9. The learned trial Court, upon appraisal of the evidence on record, returned
findings to the effect that prosecution had duly established its case to the
effect that both the accused were in possession of contraband i.e. intoxicant
powder containing 'Methamphetamine' and the vials containing 'Codeine'
and accordingly, vide impugned judgement dated 4.9.2017, held them guilty
of having committed offences punishable under Sections 21 and 22 of the
NDPS Act.
10. The learned counsel for the appellants, while assailing the impugned
judgment, made the following submissions :-
(i) that it is a case where the appellants have been falsely implicated
and that the falsity of case of prosecution would be evident from
the fact that one of the prosecution witnesses who was given up
by the prosecution but examined by the accused categorically
CRA-D-11-DB-2018 (O&M) (5) 2024:PHHC:045160
stated that he was never associated with the police party on
2.9.2012 and that no recovery had ever been effected in his
presence;
(ii) that the alleged offer in terms of Section 50 of the NDPS Act is
admittedly a joint offer and in respect of which a joint consent
memo(Ex. P-1) had been prepared, which would be a defective
offer as has been held repeatedly by the Courts;
(iii) that the false implication and over-zealousness of the
prosecution would also be evident from the fact that two persons
are stated to be jointly carrying a bag of contraband, the total
weight of which would be barely 7 kilograms. It has been
submitted that normally a bag which has such a meager weight
would be carried by one person with one hand only but the
police in order to implicate both the accused falsely have shown
that both the accused were together carrying the bag in question;
(iv) that there is delay in sending the sample parcels for analysis and
that while the recovery was effected on 2.9.2012, the sample
parcels were sent through Head Constable Baldev Singh on
12.9.2012 and actually came to be deposited on 13.9.2012 which
creates a doubt as regards the genuineness of the sampling
process and;
(v) that no sanctity can be attached to the drawing of samples at the
spot and that as per the dictum of Hon'ble Supreme Court in
Union of India vs. Mohan Lal (2016) 3 SCC 379, the samples
ought to have been drawn only in the presence of the Magistrate.
CRA-D-11-DB-2018 (O&M) (6) 2024:PHHC:045160
11. On the other hand, the learned State counsel submitted that the instant case is
not a case of recovery from personal search of accused but is a case of
recovery of a contraband from a bag which had been thrown by the accused
on the ground and as such Section 50 of the NDPS Act would have no
application and consequently even if there is any defect in the consent memo,
the same would not be of any significance. It has been submitted that delay
in sending sample parcels ipso facto will not matter unless it is shown that the
samples had been tampered with which is not the case in hand inasmuch as
the seals on the sample parcels were found intact. The learned State counsel
further submitted that whether a bag is carried by one person or by two
persons or is thrown on the ground, both the persons can safely be attributed
conscious possession particularly in view of their conduct inasmuch as they
tried to slip away after throwing the bag containing contraband. It has also
been submitted that the testimony of DW-1 is not worth reliance and he had
apparently been won over by the accused and that his testimony can not be
held to be sufficient to demolish consistent testimonies of official witnesses
who had no axe to grind against the accused. The learned State counsel, thus,
submitted that there is no infirmity in the impugned judgment and prayed for
dismissal of the appeal.
12. This Court has considered rival submissions addressed before this Court.
13. As far as the contention of the appellants regarding a defective offer in terms
of Section 50 of the NDPS Act is concerned, the position stands settled by
Hon'ble Supreme Court in State of Rajasthan vs Parmanand and another
2014(5) SCC 345 that a joint offer is a defective offer. However, it needs to
be borne in mind that the instant case is a case of recovery from a bag and not
CRA-D-11-DB-2018 (O&M) (7) 2024:PHHC:045160
from personal search of accused. As a matter of fact, the bag had also been
thrown on the ground by the accused. Under these circumstances, Section 50
of the NDPS Act was infact not even required to be complied with by the
police and thus, defect, if any, would be inconsequential. While the
contention of delay in sending samples for chemical examination is indeed
borne out from the record but it is well settled that the delay ipso facto will
not lead to throwing out the case of prosecution. It is not the case that the
samples had either been tampered with at any stage or that the seals were not
found intact by the Chemical Examiner. Rather, a perusal of the testimonies
of HC Baldev Singh and ASI Darshan Singh Singh show that the samples
were not tampered with. Similarly, a perusal of the report of the FSL also
shows that the Chemical Examiner had found the seals to be intact. In the
absence of any such circumstance which could be suggestive of tampering
with the samples, the delay in the present case cannot be said to be fatal to the
case of prosecution.
14. In the present case, this Court finds that the police party had associated one
Jagna Singh as an independent witness when the police party went out for
patrolling. However, the said witness was not examined by the prosecution
but came to be examined by the accused. The testimony of said witness is
reproduced herein-under :-
"I am working at police station Rama from the last 10 years as a
sweeper, to wash the vehicles of the police officials and to serve
tea etc. to the police official and the visitors. I do not know the
accused persons present in the court today. I never join the
police party headed by ASI Balvir Singh on 02.09.2012 nor any
recovery was effected in my presence. Police official used to
take my thumb impression on the papers. I am illiterate person.
CRA-D-11-DB-2018 (O&M) (8) 2024:PHHC:045160
I cannot read the contents of Ex.P3, Ex.P4, Ex.P1 and Ex.P7.
Police use to took my thumb impression on papers regularly.
Police has also kept me as a witness in a case registered under
NDPS Act at PS Rama."
15. Although, the aforesaid witness was cross-examined at length by the
prosecution but nothing substantial could be elicited during the course of
cross-examination. The said factum needs to be borne in mind while
evaluating the evidence led by prosecution, particularly as regards the
veracity of the case of prosecution.
16. Interestingly, as per the case of prosecution both the appellants are alleged to
have been seen by the police while carrying the bag in their hands. The
relevant translated gist of the FIR, as also stated by the Investigating Officer
is reproduced herein-under :-
".........after taking him along, reached at bridge minor canal in
the area of village Jajjal then two clean shaven young men were
seen coming by feet from opposite side who held white colour
heavy plastic bag in their hands.............."
17. In the present case, the recovered intoxicant powder (Methamphetamine) was
found to weigh 300 grams. The 61 vials containing 100 ml each of Rexcof
would contain the total of 6.1 liters of Rexcof in liquid form. By a vague
estimation, it can safely be said that the same would be weighing about 6
kilograms. In any case, the total recovered contraband would not be more
than 7 kilograms. During the course of cross-examination, the Investigating
Officer admitted that the recovered contraband can be carried easily by a
person in one hand. The relevant extract from his cross-examination is
reproduced herein-under :-
CRA-D-11-DB-2018 (O&M) (9) 2024:PHHC:045160
".........The bag was not weighed, the weight of powder was 300
gram and 61 vials of Rexcof, 100 gram each. I am not aware
that the weight amount to 7 Kg., of Rexcof. It is correct that
the alleged contraband can be carried by a person easily in
one hand by one person................."
18. Evidently, the story of prosecution that two persons were jointly carrying one
bag which weighed less than 7 kilograms does not sound very convincing.
Further, the aforesaid version, coupled with the fact that even the independent
witness who has been examined by the defence has negated the case of
prosecution regarding recovery, puts this Court at caution particularly in view
of the fact that a stringent punishment is provided under the Act. Hon'ble
Apex Court in Mousam Singha Roy v. State of West Bengal, (2003) 12 SCC
377, held that it is a settled principle of criminal jurisprudence that more
serious the offence, stricter the degree of proof required to convict the
accused.
19. Under these circumstances, we are of the opinion that the prosecution has not
fully been able to substantiate its case which rather smirks of doubt. The
impugned judgment, thus, cannot sustain and is hereby set aside. Both the
accused are acquitted of all the charges framed against them. Their release
warrants be issued.
20. Appeal stands accepted accordingly.
( GURVINDER SINGH GILL )
JUDGE
4.4.2024 ( GURBIR SINGH )
kamal JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
