Punjab-Haryana High Court
Mohan Singh vs State Of Pb on 22 January, 2024
Author: Karamjit Singh
Bench: Karamjit Singh
Neutral Citation No:=2024:PHHC:008257
CRA-S-1185-SB-2006 2024 : PHHC : 008257
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CRA-S-1185-SB-2006 (O&M)
Reserved on : 14.12.2023
Date of Decision: 22.01.2024
Mohan Singh ....Appellant
VERSUS
State of Punjab ....Respondent
CORAM:- HON'BLE MR. JUSTICE KARAMJIT SINGH
Present: Ms. Tanu Bedi, Advocate,
for the appellant.
Mr. Rozer Kumar Aggarwal, AAG, Punjab.
*******
KARAMJIT SINGH, J.
Present appeal has been filed by the appellant-accused against
the judgment and order dated 13.7.2005 whereby the appellant was
convicted and sentenced to imprisonment for a period of 10 years and to pay
fine of Rs.1 lakh and in default of payment of fine, to further undergo
rigorous imprisonment for a period of one year under Section 15 of NDPS
Act in criminal case having FIR No.120 dated 4.11.2003 under Section 15 of
NDPS Act, Police Station Goindwal Sahib by the Court of Judge, Special
Court, Amritsar.
2. Brief facts of the case of the prosecution are that on 4.11.2003,
the police party headed by PW4-ASI Jatinderjit Singh was on patrolling duty
and the said police official received a secret information that the appellant
was indulging in sale and purchase of poppy husk in the area of his village
Khawaspur and if raid is conducted at the house of the appellant, he could be
apprehended along with large quantity of poppy husk. Independent witness
Inderjit Singh son of Tarlok Singh was associated in the police party and
then they raided the house of the appellant. At that time, the appellant was
found sitting on two gunny bags in the Courtyard of his house and he was
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sewing the mouth of the gunny bags. PW4-ASI Jatinderjit Singh apprised the
appellant that he was suspected to be possessing poppy husk in gunny bags
and further informed the appellant of his legal right to get effect search
before him or some Gazetted Officer or Magistrate. On this, the appellant
told the said police official that search of bags be conducted by some
Gazetted Officer and to this effect, non-consent memo Ex.PC was reduced
into writing which was thumb marked by the appellant and attested by HC-
Harjinder Singh and independent witness Inderjit Singh. PW4-Jatinderjit
Singh sent wireless message to PW2-Jaswinder Singh DSP, Halqa Goindwal
Sahib who reached the spot and disclosed his identity as a Gazetted Police
Officer to the appellant and the appellant reposed confidence in him vide
consent memo Ex.PA which was thumb marked by the appellant and
attested by the aforesaid witnesses and was also signed by PW2-Jaswinder
Singh DSP. Then under the supervision of PW2, search of two gunny bags
was conducted by PW4 and poppy husk was found in both the bags. Two
samples of 250 grams each of poppy husk were separated from each bag and
the remaining bulk of poppy husk on weighment in each bag came out to be
39 kg 500 grams. The aforesaid 4 samples and the remaining bulk contained
in two gunny bags were converted into 6 separate parcels which were sealed
by PW2-Jaswinder Singh-DSP with his seal bearing impression 'JS' and also
by PW4-ASI Jatinderjit Singh with his separate seal bearing impression 'JS'.
Separate sample seal impressions were also prepared and after use, PW2
kept his seal with himself while PW4 handed over his seal to HC Harjinder
Singh. The entire case property was taken into possession vide recovery
memo Ex.PB which was also attested by the aforesaid witnesses. PW4
prepared ruka Ex.PD and dispatched the same to Police Station, upon the
basis of which, formal FIR Ex.PD/1 was registered in Police Station by
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MHC Jaspal Singh. PW4 also prepared rough site plan of the place of
recovery and the accused was formerly arrested vide memo Ex.PF and
statement of PWs were also recorded. On return to the police station, PW4
produced the accused and the entire case property before PW3-SI/SHO
Dalbir Singh who after verifying the facts of the case, appended his seal
bearing impression 'DS' on the entire case property and then the case
property was deposited in a double lock while the appellant was sent to
police lock up. On the next day, the accused and the entire case property was
produced before Illaqa Magistrate who after checking the case property,
signed the same and on return to the police station, the case property was
again kept in a double lock. Sealed sample parcels were sent for their
analysis to the office of Chemical Examiner through PW1-Constable
Sukhchain Singh. After completion of investigation, challan was presented
against the appellant.
3. The trial Court framed charge under Section 15 of NDPS Act
against the appellant, to which, he did not plead guilty and then the case was
fixed for prosecution evidence.
4. In order to prove its case, the prosecution examined PW4-ASI
Jatinderjit Singh who deposed with regard to receipt of secret information
and recovery of two bags each containing 40 Kg of poppy husk from the
possession of the appellant in the presence of PW2-Jaswinder Singh DSP
and he proved non-consent memo Ex.PC, consent memo Ex.PA, recovery
memo Ex.PB, ruka Ex.PD, FIR Ex.PD/1, rough site plan Ex.PE and arrest
memo Ex.PF. He also proved report of Chemical Examiner Ex.PG. PW2-
Jaswinder Singh DSP deposed that on 4.11.2003, he was posted as DSP,
Halqa Goindwal Sahib and on that day, he received wireless message from
ASI Jatinderjit Singh and then he reached the residence of the appellant
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where the police party headed by the aforesaid police official along with the
accused was present; that the appellant reposed confidence in him vide
memo Ex.PA and then the contents of two gunny bags which were lying in
the Courtyard were checked and on inspection, poppy husk was found in
both the bags. Two samples of 250 grams each were separted from each bag
and the remaining bulk on weighment in each bag was found to be 39 kg 500
grams. Then all the samples and two bags containing remaining bulk were
converted into parcels which were sealed by him with his seal bearing
impression 'JS' and the investigating officer also sealed the said parcels with
his separate seal bearing impression 'JS'. The sample seal impressions of the
used seals were also prepared at the spot and then entire case property was
taken in to possession by the police vide memo Ex.PB which was also
attested by him. PW3-SI/SHO Dalbir Singh deposed that on 4.11.2003, he
was posted as SHO, Police Station Goindwal Sahib and on that day, the
appellant along with the entire case property was produced before him and
after checking the entire case property, he appended his seal bearing
impression 'DS' on the same and then the case property was kept in a double
lock. On the next day, the entire case property was produced before the
Illaqa Magistrate and on return to the police station, the case property was
again deposited in a double lock. On 12.11.2003, he got prepared docket
from the office of SSP, Tarn Taran and on 13.11.2003, 4 sealed sample
parcels along with sample seals and docket were handed over to PW1-
Constable Sukhchain Singh with direction to get deposit the same in the
office of Chemical Examiner, Punjab, Chandigarh.
5. PW1-Constable Sukhchain Singh deposed that on 13.11.2003,
he was posted in Police Station Goindwal Sahib and on that day, SHO-
Dalbir Singh handed over to him one sealed sample parcel along with
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sample seals and docket and he deposited the same in the office of Chemical
Examiner, Punjab, Chandigarh on the same very day. The prosecution gave
up PW-Inderjit Singh being won over by the appellant and PW-HC
Harjinder Singh, PW-SI Nachhattar Pal Singh and PW-Constable Joginder
Singh being unnecessary witnesses and finally, Additional PP closed the
prosecution evidence.
6. The appellant was examined under Section 313 Cr.P.C. and the
entire incriminating evidence was put to him which was denied by him. The
appellant took plea of false implication and innocence. The appellant had not
led any evidence in his defence.
7. After hearing the State counsel and the defence counsel, the
learned trial Court found the appellant guilty and convicted and sentenced
the appellant to imprisonment and to pay fine as has been detailed in the first
paragraph of this judgment.
8. Being aggrieved, the appellant filed the present appeal.
9. I have heard the counsel for the appellant and the State counsel
and gone through the entire record of this case.
10. Counsel for the appellant has come up with a plea that in the
present case, alleged recovery of contraband was effected in violation of the
mandatory provisions of Section 42 of NDPS Act. She has submitted that as
per prosecution version, PW4 received secret information but the same was
not reduced into writing nor copy thereof was sent to the superior officer by
the investigating officer immediately after receipt of the said secret
information. Thus, there was total non-compliance of the mandatory
provisions of Section 42 of NDPS Act and the appellant deserves acquittal
on this sole ground. In support of her contention, counsel for the appellant
has placed reliance upon judgments passed by Hon'ble Supreme Court in
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Karnail Singh v. State of Haryana (2009) 8 SCC 539, Sukhdev Singh v.
State of Haryana (2013) 2 SCC 212, Darshan Singh v. State of Haryana
(2016) 14 SCC 358 and Dharamvir Parshad v. State of Bihar (2020) 12
SCC 492.
11. Another plea taken by the counsel for the appellant is that in the
present case, there was also violation of the provisions of Section 52-A of
the NDPS Act as no inventory certified by the concerned Illaqa Magistrate
was prepared and that even during trial, no such inventory, photographs or
case property was produced or proved.
12. Counsel for the appellant has further argued that the entire case
is based on the depositions of police officials; that as per prosecution
version, independent witness-Inderjit Singh was associated during the
recovery proceedings but the prosecution did not examine said independent
witness by simply saying that he was won over by the appellant. It has been
further argued that seals which were used for sealing of the case property,
throughout, remained with the police officials and the sample parcels were
not sent to the office of the Chemical Examiner within the stipulated period
of 72 hours of the recovery as per instructions issued by NCB; that thus, in
the present case, the prosecution has failed to prove to the hilt that the case
property/samples remained intact from the point of recovery till samples
reached the office of Chemical Examiner.
13. Counsel for the appellant has further argued that in view of
above, the prosecution has miserably failed to prove its case against the
appellant and thus, the appellant deserves to be acquitted in the present case.
14. State counsel, while supporting the impugned judgment and
order, has submitted that the entire recovery proceedings were conducted in
accordance with the statutory provisions as provided in NDPS Act. It is
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further submitted that recovery in the present case was effected on the basis
of secret information; that it has come on record that after receipt of secret
information, independent witness-Inderjit Singh was associated in his police
party by the investigating officer and then the house of the appellant was
raided where the appellant was found present in the Courtyard and two
gunny bags were also found lying there on which the appellant was sitting.
On the basis of the non-consent memo Ex.PC, Gazetted Police Officer
namely PW2-DSP Jaswinder Singh was called at the spot and the appellant
reposed confidence in the said Gazetted Officer as is evident from consent
memo Ex.PA; that the contents of the aforesaid bags were examined by the
Investigating Officer in the presence of the said Gazetted Police Officer and
on checking, both the bags were found to be containing poppy husk. State
counsel has further contended that there is further evidence available on
record that two samples of 250 grams each of poppy husk were separated
from each of the bag and the remaining bulk on weighment in each bag
came out to be 39 kg 500 grams and the said 4 samples and the remaining
bulk contained in 2 bags were sealed by PW2 and PW4 with their respective
seals having impressions 'JS' and the said seal impressions were also
appended on Form M-29 and the entire case property was taken into
possession by the police vide memo Ex.PB, which also bears attestation of
PW2 and PW4. State counsel has further submitted that in order to prove
link evidence, the prosecution examined PW1 and PW3 and it stands fully
proved that aforesaid 4 sealed samples reached the office of Chemical
Examiner in their intact condition and on analysis, they were found to be
that of poppy heads as per the report of Chemical Examiner Ex.PG.
15. State counsel has further argued that the case property was
destroyed as per provisions of Section 52-A of the NDPS Act after getting
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order in this regard from the Court of Sub Divisional Judicial Magistrate,
Tarn Taran which is dated 3.1.2004.
16. I have considered the submissions made by the counsel for the
parties.
17. Firstly, I am taking up the plea taken by the counsel for the
appellant with regard to violation of the mandatory provision of Section 42
of NDPS Act. As per testimony of PW4, he received secret information
against the appellant on 4.11.2003 and thereafter, the police party headed by
PW4 raided the house of the appellant and recorded non-consent memo
Ex.PC of the appellant and then PW4 sent wireless message to local DSP
and on receipt of the said message, PW2 Jaswinder Singh DSP posted at
Goindwal Sahib reached the spot and the appellant reposed confidence in
PW2 vide consent memo Ex.PA and thereafter, entire recovery proceedings
were conducted under the supervision of PW2. Admittedly, upon receiving
the secret information, it was not reduced into writing by the Investigating
Officer nor it was communicated to his senior officer immediately after its
receipt before raiding the house of the appellant.
18. Sub-section 2 of Section 42 was amended with effect from
2.10.2001. Undoubtedly, recovery in the present case was effected after
coming into force of the aforesaid amendment. Un-amended provision of
Sub Section 2 of Section 42 of NDPS Act reads as under : -
"42. Power of entry, search, seizure and arrest
without warrant of authorisation--
(1) X X X
(2) Where an officer takes down any information in
writing under sub-section (1) or records grounds for his belief
under the proviso thereto, he shall forthwith send a copy thereof
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to his immediately official superior."
After amendment of this sub section, word, "forthwith" stood
amended by the words, "within 72 hours". The amended provision of sub-
section 2 of Section 42 of NDPS Act reads as under : -
"42. Power of entry, search, seizure and arrest
without warrant of authorisation--
(1) X X X
(2) Where an officer takes down any information in
writing under sub-section (1) or records grounds for his belief
under the proviso thereto, he shall within seventy-two hours
send a copy thereof to his immediately official superior."
19. So, in light of the aforesaid amended provision of Section 42(2)
of NDPS Act, the officer concerned was to sent intimation regarding receipt
of secret information to the superior officer within 72 hours from the time of
receipt of information. In the given circumstances, as it is evident that in the
present case, after raiding the house of the appellant, PW4 sent wireless
message to his superior officer (PW2) and further copies of the FIR were
also sent to the superior officers within the aforesaid statutory period of 72
hours, this Court is of the view that there was adequate or substantial
compliance of the provision of Section 42 of NDPS Act. Only total non-
compliance with requirements of Section 42 of NDPS Act is impermissible.
Delayed compliance with satisfactory explanation about the delay (if any) as
is in the present case is acceptable compliance with Section 42 of NDPS Act
as has been held by Hon'ble Supreme Court in Karnail Singh's case (supra)
and Sukhdev Singh's case (supra).
20. The another plea taken by the counsel for the appellant is
regarding violation of provision of Section 52-A of NDPS Act which is
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relating to drawing of samples and disposal of seized contraband. Section
52-A of NDPS Act reads as follows:-
"1[52A. Disposal of seized narcotic drugs and
psychotropic substances.-- 2[(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, from time to time, determine after
following the procedure hereinafter specified.]
(2) Where any 3[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 3[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 3[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 3[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 4[such drugs, substances or conveyances] and certifying
such photographs as true; or
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(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 1972) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court trying an offence
under this Act, shall treat the inventory, the photographs of
5[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.]
21. Section 52-A of NDPS Act is a very important provision.
Narcotic Drugs and Psychotropic Substances are vulnerable to misuse.
When huge quantities of contraband are seized, it is not possible to keep
them safely in the malkhanas and there may be a chance of pilferage or the
narcotic substances falling in wrong hands. Therefore, the aforesaid Section
52-A was inserted in NDPS Act. The Hon'ble Supreme Court in Union of
India Vs. Mohan Lal (2016) 3 SCC 379 while enumerating scope of Section
52-A of NDPS Act held that there is no provision in the NDPS Act that
mandates taking of samples at the time of seizure. The Hon'ble Supreme
Court further observed as follows:-
"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
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presence and under the supervision of the Magistrate and
the entire exercise has to be certified by him to be correct."
22. Recently, Hon'ble Supreme Court in Simranjit Singh v. State
of Punjab, 2023 SCC Online SC 906, while placing reliance upon its earlier
decision in Mohan Lal's case (supra) held that mandate of Section 52-A of
the NDPS Act was not complied with and consequently, acquitted the
accused while making the following observations :
"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 the 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."
23. Admittedly, in the present case, the seals used by the
prosecution witnesses remained in possession of the police officials. PW2-
Jaswinder Singh DSP kept his seal with him while PW4-Jatinderjit Singh
ASI handed over his seal after use to HC Harjinder Singh who was not
examined by the prosecution during the trial. Even SHO/SI who appeared in
the witness box as PW3 kept his seal with him after its use. PW2 and PW4
have not specifically deposed that at the time of recovery, Form M-29 was
also prepared or that sample seal impressions were affixed on the same. Both
these PWs simply stated that separate sample seal impressions were
prepared. Further, in this case, the prosecution has also failed to prove that
any inventory was prepared and got certified from the Magistrate concerned,
by the investigating officer as per provisions of Section 52-A of the NDPS
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Act. Further, nothing is there on the record to prove that any representative
sample was separated and photographs were taken in presence of the
Magistrate concerned on 05.11.2003, when the case property was produced
before him, as per the mandate of Section 52-A of NDPS Act. The
prosecution also failed to produce on record any application submitted to the
Magistrate for the purpose of certifying the correctness of the inventory so
prepared or that any photographs of the case property were taken and
certified by the Magistrate as true. Thus, the prosecution is unable to prove
that any representative sample was drawn from the bulk in presence of the
Magistrate, as per the provision of Section 52-A of NDPS Act.
24. As per prosecution version, recovery of poppy husk was
effected on 4.11.2003 whereas the samples were sent to the office of
Chemical Examiner on 13.11.2003. As per instructions issued by Narcotic
Control Bureau vide Standing Order No.1 dated 15.3.1988, such samples are
required to be sent to the Chemical Examiner within 72 hours of their
seizure. This Court in Malkiat Singh @ Kala v. State of Punjab, 2009(1)
RCR (Criminal) 353, while relying upon the judgment of Hon'ble Supreme
Court in State of Rajasthan v. Gurmail Singh 2005(2) RCR (Criminal) 58
held that as there was unexplained delay of 5 days in sending the sample to
the office of Chemical Examiner, the possibility of tampering with the same,
until it reached the laboratory could not be ruled out. In the given
circumstances, as in the instant case, the seals after use remained with the
police officials, unexplained delay of 9 days in sending the samples in the
present case beyond the stipulated period of 72 hours has definitely put dent
in prosecution case. Further, from the perusal of the report of Chemical
Examiner Ex.PG, it appears that 4 samples i.e. 2 samples from each bag
were sent for analysis. However, the police official who was deputed by the
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Investigating Officer to take the concerned samples to the laboratory while
appearing in the witness box as PW1 stated that only one sample parcel was
handed over to him on 13.11.2003 with direction to deposit the same in the
office of Chemical Examiner, Punjab, Chandigarh. It being so, the
prosecution has failed to prove beyond doubt that the samples which were
separated at the spot of recovery, throughout remained intact, till they
reached the office of Chemical Examiner.
25. From the perusal of the evidence led by the prosecution, it
appears that two sealed bags containing remaining bulk of the case property
were not produced during the trial. The prosecution has also not offered any
explanation for non production of the aforesaid case property. The
prosecution witnesses have not stated anything regarding destruction of the
case property and even no such order passed by the Magistrate was tendered
into evidence by the prosecution.
26. 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. The Hon'ble Supreme Court in Mangi Lal v.
State of M.P. 2023 SCC Online SC 862, while acquitting the accused has
observed that:-
"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
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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."
27. In view of the settled position of law and the cumulative effect
of the infirmities as discussed above, the prosecution has failed to prove its
case against the appellant accused beyond shadow of reasonable doubt.
28. Consequently, the appeal is allowed. Judgment of conviction
and order of sentence dated 13.7.2005 passed by Judge, Special Court,
Amritsar are hereby set aside. The appellant is acquitted of the charge.
29. The appellant is on bail on account of suspension of his
sentence vide order dated 31.8.2012. His surety stands discharged.
( KARAMJIT SINGH )
JUDGE
22.01.2024
Paritosh Kumar/yogesh
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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