Punjab-Haryana High Court
Amandeep Singh vs State Of Punjab on 20 April, 2024
Author: Manjari Nehru Kaul
Bench: Manjari Nehru Kaul
Neutral Citation No:=2024:PHHC:055998
2024 : PHHC : 055998
518
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. CRA-S No.1184-SB of 2016
Amandeep Singh
... Appellant
Versus
State of Punjab
... Respondent
2. CRA-S No.1232-SB of 2016
Manoj Kumar @ Sabbi
... Appellant
Versus
State of Punjab
... Respondent
Date of decision: 20th April, 2024
CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL
Present: Ms. Nidhi, Advocate
Amicus Curiae for the appellants.
Mr. Navdeep Singh, Dy. Advocate General, Punjab
for the respondent/State.
MANJARI NEHRU KAUL, J.
1. The appellants in both the appeals detailed hereinabove,
have challenged the judgment and order dated 21.01.2016 passed by
the Court of learned Judge, Special Court, Fatehgarh Sahib vide which
they were convicted under Section 22 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as, 'the
Act') and sentenced to undergo rigorous imprisonment for a period of
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ten years and to pay a fine of `1.00 lakh each, in default of payment of
fine to pay to further undergo rigorous imprisonment for one year.
2. Since both these appeals emanate from a common
judgment of conviction and order of sentence, they are thus being taken
up together for disposal by way of this common judgment.
3. Learned Amicus Curiae appearing on behalf of the
appellants has contended that the impugned judgment, on the face of it,
is inherently flawed and deserves to be set aside, as the trial Court had
erred in discarding crucial evidence on record. She has additionally,
inter alia contended as follows:
(i) That as per the case of the prosecution, the appellants
were apprehended near Canal Rest House, Khamano, a
public thoroughfare, and neither any information was
sent to any superior officer by the police party nor any
independent witness was joined to corroborate the case
of the prosecution, significantly undermining its
credibility.
(ii) That there was a violation of the mandatory provisions
of Section 50 of the Act as neither the personal search
of the accused was carried out nor was the alleged
recovery affected from the accused in presence of a
Magistrate or a Gazetted Officer. Rather, the manner in
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which the entire recovery proceedings were conducted,
it created a serious dent in the case of the prosecution.
(iii) That the handling of the samples by the police officials
and the failure to draw them in the presence of a
Magistrate constituted non-compliance with the
provisions of Section 52A of the NDPS Act.
(iv) The withdrawal of the samples by the police party even
before it reached the Magistrate was clearly violative of
the provisions of Section 52A of the Act.
In support, learned counsel has placed reliance
upon 'Yusuf @ Asif vs. State' 2023 LiveLaw SC 890,
wherein Hon'ble the Supreme Court held that in such
like cases where there had been non-adherence to the
provisions of Section 52A of the NDPS Act, conviction
of an accused was liable to be set aside.
(v) That the trial Court failed to appreciate that the
Investigating Officer was required to draw samples
from all the seized bottles which were allegedly
recovered from the possession of the appellants.
However, it was a matter of record that only two bottles
each out of the 60 seized bottles of Recodex (35 bottles
recovered from appellant Manoj Kumar @ Sabbi and
25 bottles recovered from appellant Amandeep Singh)
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had been drawn as sample parcel. Additionally, only
one bottle out of the 60 bottles of Recodex allegedly
recovered was sent to the Forensic Science Laboratory
(FSL) for examination. Not only this, neither any batch
number nor the name of the manufacturer was
mentioned, coupled with the fact that all the recovered
bottles were not even sent to the FSL; remaining
recovered bottles of Recodex in the circumstances,
would thus be kept at the same pedestal as the samples
which had been sent to the FSL.
(vi) That despite the alleged recovery having been affected
on 05.04.2010, there was a significant delay of more
than seven days in sending the samples to the FSL,
which were dispatched only on 13.04.2010.
(vii) That the trial Court failed to appreciate that the seal
after use remained with the police officials, raising a
serious concern about potential tampering.
Furthermore, the illegible impression on the seal
exacerbated doubts.
4. Learned Amicus Curiae thus, vehemently argued that in the
aforementioned facts and circumstances, serious doubts were cast on
the case of the prosecution. Even if it was assumed that some narcotic
substance had been recovered from the appellants, the contents of a
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single bottle sent to the FSL thus suggesting some narcotic substance
would only classify the alleged recovery as falling under non-
commercial quantity. Consequently, a prayer has been made for
acceptance of the instant appeals and setting aside of the impugned
judgment and order.
5. Learned State counsel, on the other hand, has controverted
the submissions and prayer made by learned Amicus Curiae, by
submitting:
(i) That the appellants were apprehended by the police
party on suspicion; on their search the following
recovery was affected from them:
Manoj Kumar @ Sabbi : 35 bottles of Recodex
Amandeep Singh : 25 bottles of Recodex
(ii) That regarding the non-compliance of the provisions of
Section 50 of the Act, recovery of contraband was
affected from a basket attached to the right side of the
motorcycle, on which both the appellants were riding,
and from a bag which accused Amandeep Singh was
carrying. No personal search of the appellants was
carried out; moreover, the appellants were duly
informed of their statutory right to be searched in the
presence of a Gazetted Officer, however, they reposed
confidence in the police party, as is evident from the
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consent memos Ex.PA and Ex.PB. Despite there not
being any independent witness, all the prosecution
witnesses supported the case of the prosecution in its
entirety, thereby undermining the arguments raised by
the learned Amicus Curiae that non-joining of the
independent witness discredited the version of the
prosecution.
(iii) That although only two bottles of Recodex out of the
entire recovery affected from the appellants were sent to
the FSL, the FSL report confirmed the presence of
'Codeine Phosphate' in the samples so sent. Thus, the
learned trial Court had rightly inferred that the
remaining bottles, not sent to the FSL, also would have
contained the same substance.
(iv) That mere delay in sending the samples to the FSL
would not warrant any adverse inference against the
appellants as it was received in an intact condition by
the FSL. Furthermore, regarding the argument of
illegible impression on the seals, prosecution witnesses
testified that it had been on account of fire which had
erupted in the judicial Malkhana, as a result of which the
case property lying there had been affected.
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(v) That no doubt, the samples were not drawn in the
presence of a Magistrate, however, after the samples
were extracted, the sealed case property was presented
before the Magistrate concerned.
6. Learned State counsel has, thus, contended that the case of
the prosecution was proved beyond reasonable doubts against the
appellants and thus, the impugned judgment and order could not be
faulted with.
7. I have heard learned counsel for the parties and perused the
relevant material on record.
8. Case of the prosecution in brief maybe noticed as thus:
On 05.04.2010, at about 5.15 PM police officials headed by
ASI Balwinder Singh chanced upon the appellants while the latter were
riding their motorcycle, who, upon noticing the Police, the appellants
turned their two-wheeler towards Khamanon Kamli. On the basis of
suspicion, appellants were stopped by the police party near canal rest
house, Khamanon department, who then disclosed their names as
Manoj Kumar @ Sabi (driver) son of Roop Kumar and the pillion rider
disclosed his name as Amandeep Singh son of Avtar Singh. The
investigating officer ASI Balwinder Singh duly gave an offer to the
appellants to get their search effected by a Gazetted Officer or a
Magistrate, however, the appellants reposed confidence in the ASI and
also got their consent memos (Ex.PA) and (Ex.PB) recorded and
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signed. Thereafter, the basket (tockry) affixed on the right side on the
motorcycle was searched from which, the recovery of 35 bottles of
Recodex was effected and on search of the bag carried by Amandeep
Singh, 25 bottles of Recodex were recovered. As per the provisions of
NDPS Act, two bottles out of the 35 bottles recovered and two bottles
out of the 25 bottles recovered of Recodex were separated from the
recovered contraband. The samples after being separated and the bulk,
were then converted into parcels and duly sealed by IO with his seal of
"BS". Sample chit (Ex.PC) was separately prepared, recovered
contraband was taken into police possession vide recovery memo
(Ex.PD) and the motorcycle no. PB-49-7112, was also taken as case
property as per memo (Ex.PG). Thereafter, ruqa (Ex.PE) was sent to
the police station concerned on the basis of which FIR (Ex.PF) came to
be registered against the appellant by ASI Ajaib Singh. Both the
accused were arrested and the information about the arrest was duly
communicated vide arrest memos Ex.PH and Ex.PI. On return to the
police station, ASI Balwinder Singh produced both the accused as well
as the entire case property to SI Kamaljit Singh, SHO, who then,
verified the facts and quantum of recovery from the accused further
affixing his seal of "KS" on the case property and sample chit EX.PC.
On 13.04.2010, only two bottles out of the 60 bottles of Recodex
recovered bearing seal impression BS/KS, were sent to FSL.
Thereafter, challan was presented and prosecution in its favour
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examined the following 6 witnesses PW1- ASI Balwinder Singh, PW2-
ASI Manjit Singh, PW3- ASI Harbhajan Singh, PW4- Inspector
Kamlajit Singh, PW5-Ajit Singh, PW6- ASI Nirmal Singh.
Subsequently, statement of the accused under section 313 was recorded
and all the incriminating material was put to him. On the basis of the
evidence led and material produced, the appellants were convicted and
sentenced to undergo imprisonment which already stands detailed in
the opening para of this order.
9. With respect to the arguments raised by learned Amicus
Curiae regarding the alleged non-compliance of the provisions of
Section 50 of the Act, this Court does not find any merit in the
contentions. The contraband was recovered from a basket of the
motorcycle driven by appellant Manoj Kumar @ Sabbi and from a bag
carried by appellant Amandeep Singh, not as a result of their personal
search. Furthermore, as per the settled law, the absence of an
independent witness would not discredit the case of the prosecution; the
credibility of the official witnesses is pivotal and in case it inspires
confidence, it can be safely relied upon. However, it remains
undisputed by the prosecution that only two bottles out of the 60 seized
bottles of Recodex from the appellants, were sent to the FSL for
examination, while rest of the recovered substance in the remaining
bottles was destroyed. Additionally, there was no documentation
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regarding the batch numbers or the other relevant details related to the
recoveries effected.
10. It would be apposite here to refer to the following
observations made by Hon'ble the Supreme Court in Yusuf @ Asif's
case (supra):
"13. Notwithstanding the defence set up from the
side of the respondent in the instant case, no evidence has
been brought on record to the effect that the procedure
prescribed under subsections (2), (3) and (4) of Section
52A of the NDPS Act was followed while making the
seizure and drawing sample such as preparing the
inventory and getting it certified by the Magistrate. No
evidence has also been brought on record that the samples
were drawn in the presence of the Magistrate and the list of
the samples so drawn were certified by the Magistrate. The
mere fact that the samples were drawn in the presence of a
gazetted officer is not sufficient compliance of the mandate
of subsection (2) of Section 52A of the NDPS Act.
XXXX XXXX XXXX
XXXX XXXX XXXX
16. In the absence of any material on record to
establish that the samples of the seized contraband were
drawn in the presence of the Magistrate and that the
inventory of the seized contraband was duly certified by the
Magistrate, it is apparent that the said seized contraband
and the samples drawn therefrom would not be a valid
piece of primary evidence in the trial. Once there is no
primary evidence available, the trial as a whole stands
vitiated."
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11. A perusal of the FSL report Ex.PP in the present case,
reveals that two parcels marked 1 and 2, each sealed with two seals,
one from "BS" and the other from "KS", purportedly containing
intoxicant material were sent to the FSL. As per the case of the
prosecution itself, the seal "BS" belongs to PW-1 SI Balwinder Singh
and seal "KS" belongs to PW-4 Inspector Kamaljeet Singh, thus,
prosecution itself has admitted that the samples sent to the FSL were
not drawn in the presence of a Magistrate; as neither of the seal is of the
Magistrate.
12. The prosecution failed to demonstrate as to how the
remaining substances not sent to the FSL and which admittedly were
not examined for their ingredients, could be assumed to contain specific
narcotic substance, such as Codeine Phosphate. The manner in which
the contraband was sampled, a crucial aspect in such like cases, raises a
significant concern in the present case. Serious doubts arise regarding
the manner in which the recovered contraband was sampled,
particularly, considering the non-compliance with the provisions of
Section 52A of the NDPS Act. The samples sent to the FSL by the
police officials were admittedly not drawn in the presence of a
Magistrate, which without doubt undermines the case of the
prosecution. Furthermore, the prosecution witnesses provided no
plausible, let alone convincing explanation as to why only two samples
out of the seized contraband were sent for examination to the FSL. It is
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evident, thus, that the Investigating Agency did not adhere to the
provisions of the NDPS Act in the present case with respect to the
sampling of the recovered contraband.
13. As a sequel to the above, this Court has no hesitation to
observe that the prosecution failed to prove the case against the
appellants beyond shadow of reasonable doubt, for which they deserve
to be given the benefit of doubt. Both the appeals are allowed, the
impugned judgment of conviction and order of sentence are set aside
and the appellants acquitted of the charges.
(MANJARI NEHRU KAUL)
JUDGE
April 20, 2024
rps
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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