Punjab-Haryana High Court
Zorawar Singh vs State Of Punjab on 4 March, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
CRA-S-147-SB-2017 (O&M) 2024:PHHC:036017
217
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-147-SB-2017 (O&M)
Reserved on :01.12.2023
Pronounced on :04.03.2024
Zorawar Singh @ Shenty ....Appellant
Versus
State of Punjab ....Respondent
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present:- Mr. Saurabh Kapoor, Advocate
for the appellant.
Mr. Kunal Vinayak, A.A.G., Punjab.
*****
PANKAJ JAIN, J.
Present appeal is directed against judgment of conviction and
order of sentence dated 08.12.2016 passed by Special Court, Patialain case
FIR No.133 dated 28.07.2013 registered under Section 22 of N.D.P.S. Act at
Police Station Kotwali Nabha.
2. The appellant has been convicted for offence punishable under
Section 22 of N.D.P.S. Act after having been found guilty of unauthorized
possession of 400 MICROLIT Tablets and has been sentenced to undergo
rigorous imprisonment of 3 years along with fine of Rs.10,000/- or to
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undergo further rigorous imprisonment for a period of 6 months, in default
of payment of fine.
3. As per the prosecution, on 28.07.2013 the police party was
patrolling on private vehicle. Two persons including appellant who were
standing were apprehended on suspicion. Their search led to recovery of
400 MICROLIT Tablets from each of them. Both of them were tried and
stood sentenced for offence punishable under Section 22 of N.D.P.S. Act.
4. Counsel for the appellant while assailing the impugned
judgment and order has submitted that it's a case where the appellant was
apprehended on the basis of suspicion. The search memo as well as the
consent memo and notice under Section 50 of N.D.P.S. Act, all bear FIR
number. There is no explanation as to how the I.O. was in the knowledge of
FIR number even prior to searching the appellant. He has further submitted
that it remains unexplained as to how the I.O. was in the knowledge of the
contraband in possession of the appellant and other co-accused and thus
knew that FIR would be registered qua offence punishable under Section 22
of N.D.P.S. Act. This all shows that it's a planted case. He has drawn
attention of this Court to the search memo as well as the consent memo to
submit that signatures of the appellant on both the memos are not same,
which is evident from the naked eye. So far as the thumb impressions of co-
accused Lovepreet Singh are concerned, there is no mention on the consent
memo as to whether it's the left thumb impression or the right thumb
impression. He has further submitted that it has come on record that police
party was on private vehicle but neither the I.O. nor his companion could
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specify the number of the motorcycle they were riding. They could not even
specify the owner of the said motorcycle.
4.1. Lastly, he has taken the Court through statement of I.O. Manjit
Singh who appeared as PW3 to contend that admittedly there was an
objection raised by FSL regarding the samples but deliberately the said
objection was concealed not only from the appellant but also from the Court
which puts whole of the case projected by the prosecution under cloud.
5. Per contra, learned State counselhas submitted that there is a
well-reasoned judgment passed by the Trial Court. It has been proved on
record beyond doubt that the appellant was found in possession of 400
MICROLIT Tablets which is a narcotic drug and thus he has been rightly
held guilty by the Special Court. Therefore, there is no reason for this Court
to interfere in the well-reasoned judgment passed by the Special Court.
6. I have heard counsel for the parties and with the able assistance
have gone through records of the case carefully.
7. I have seen the search memo, the consent memo as well as site
plan. It is evident from the consent memo (Ex.PW3/A) as well as recovery
memo (Ex.PW3/C) that FIR number appears to have been left blank and
filed later. However, Section 22 of N.D.P.S. Act has been mentioned in all
the memos which leads the inference that though the FIR number may not
have been known to the I.O. at the time the consent memo as well as
recovery memo were prepared but he was in the knowledge of the offence
for which the appellant and the co-accused was to be booked. The I.O.
being in the knowledge of the charging section even prior to recovery of the
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contraband at the time he obtained consent of the suspect does not augur
well with the fairness expected from the prosecution. Reference can be
made to Division Bench judgment of this Court in the case of Didar Singh
@ Dara Vs. The State of Punjab, 2010 (3) RCR Criminal 337 wherein it
was observed that:-
"....29. There is another infirmity on the record which further
creates a doubt about the entire prosecution case. As per the
prosecution, at the time of the recovery, various documents
were prepared. Those documents are Ex.PA, Ex.PB, Ex.PC,
Ex.PD, Ex.PE and Ex.PF. All these memos bear the FIR
number of the case. It is admitted case of the prosecution that
when these documents were prepared, the FIR was not
registered and FIR No. was not available as the same was
registered later on, on the ruqa sent by the police. It has not
been explained how all these memos contained the FIR number,
which was not existing at the time when these memos were
prepared. In Ajay Malik &Ors. v. State of U.T., Chandigarh,
2009(3) RCR (Criminal) 649, this Court while dealing with
similar situation has observed that two inferences could be
drawn from such situation, i.e., either the FIR was registered
prior to the alleged recovery of the contraband or number of
FIR was inserted in the document after its registration. But in
both situations, it seriously reflects upon the integrity of the
prosecution version. While relying upon several other
decisions, it was held that such serious lapses in the
prosecution case create a doubt to the prosecution theory....."
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8. The other thing that this Court finds fatal to the case of
prosecution emanates from testimony of I.O. Manjeet Singh I.O. appeared
as PW3. Relevant portion of his statement reads as under:-
"....The date of sending the samples to the chemical lab on
31.07.2013 the same was returned back on account of
objection. It is wrong to suggest that the samples were not
properly sealed or that on account of this objection was raised
by the FSL Mohali. The kind of objection raised by FSL was
not mentioned on any document attached with the challan and I
had not read the objection. Only one time the objection was
raised by the FSL Mohali. It is correct that the form of the
objection by the FSL not attached with the challan as well as
not delivered to SSP Patiala. I have seen the form of objection
on the same day. But I cannot tell the form of the objection or
where the document was attached....."
9. From the aforesaid admission made by I.O., it is evident that
the sample sent to the Forensic Lab met with an objection. The said
objection has been kept under wraps. Prosecution opted not to revealthe
nature of objection(s) raised by the Forensic Lab. I.O. remains secretive
even while deposition.
10. The object of investigation is not subject of debate.
Investigating agency can not hide proceedings from the Court. The onus
upon the investigating agency is to investigate the crime and not to ensure
that the accused is punished. After all, the quest is for the truth. Thefairness
of investigation is expected from the prosecution not only quathe stand of
the prosecution but also from the point of view of the defence. In the trials
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involving narcotic drugs and psychotropic substance, the sampling as well
as forensic report are crucial. Once there was an objection by the Forensic
Lab, it was duty of the prosecution to come clean on the said objection.
Concealment of this vital fact from the accused is fatal to the prosecution
and defeats the whole object of the fair trial.
11. Fairness of trial demands that the accused must be made aware
of all the circumstances against him. Keeping of objections raised by
FSLveiledfrom the Court and the accused leads to the conclusion that the
appellant has not been tried fairly.
12. I am guided by following observations made by the Supreme
Court in Habeeb Mohammad Vs. State of Hyderabad, AIR 1954 Supreme
Court 51:-
"xxx xxx xxx
In a long series of decisions the view taken in India was, as was
expressed by Jenkins C.J. in - 'AIR 1915 Calcutta 545 that the purpose
of a criminal trial is not to support at all costs a theory but to
investigate the offence and to determine the guilt or innocence of the
accused and the duty of a public prosecutor is to represent not the
police but the Crown, and this duty should be discharged fairly and
fearlessly with a full sense of the responsibility attaching to his position
and that he should in a capital case place before the court the
testimony of all the available eye-witnesses, though brought to the
court by the defence and though they give different accounts, and that
the rule is not a technical one, but founded on common sense and
humanity.
xxx xxx xxx"
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13. In view of above, this Court finds that the present appeal
deserves acceptance and the same is accepted. Impugned judgment of
conviction and order of sentence dated 08.12.2016 is set aside. Appellant is
acquitted.
14. Appeal stands allowed.
15. Pending application(s), if any, shall also stand disposed of.
( PANKAJ JAIN )
JUDGE
March 04, 2024
ashish
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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