Punjab-Haryana High Court
State Chandigarh Administration ... vs Ajay Kumar on 19 March, 2024
Neutral Citation No:=2024:PHHC:040390
2024:PHHC:040390
CRM-A-11-MA-2015 1
236 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-A-11-MA-2015
Date of Decision: 19.03.2024
State Chandigarh Administration, Chandigarh
...Applicant-Appellant
Versus
Ajay Kumar
...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
***
Present: Mr. J.S. Toor, A.P.P., U.T. Chandigarh
***
Harpreet Singh Brar, J. (Oral)
1. The present application is preferred under Section 378(3) of the
Cr.P.C. against the judgment of acquittal dated 09.07.2014 passed by learned
Special Court, Chandigarh in FIR No. 470 dated 03.11.2010 registered under
Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter 'NDPS Act') at Police Station Sector 39, Chandigarh.
2. Briefly, the facts are that on 03.11.2010, the police party headed by
SI Surinder Kumar was patrolling the area of Government High School, Sector
56, Chandigarh when the respondent-accused was seen coming, with a yellow
bag in his hand. With the assistance of a passer-by, the respondent was
apprehended on suspicion. Thereafter, the yellow polythene bag carried by the
respondent was searched and 500g of charas was recovered from the same. Two
samples weighing 50g each were drawn from the bulk and kept in a plastic
container and converted into a parcel which was further sealed with the initials
'KS.' SI Surinder Kumar took all the three sealed parcels (two sample parcels and
one bulk parcel) in possession vide recovery memo which was signed by
witnesses. A ruqa was sent through Constable Satish Kumar for lodging of the
FIR in the matter. Information was also sent to the Operation Cell to send a
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second Investigating Officer, pursuant to which SI Jasbir Singh arrived at the
spot. The accused was arrested and his personal search was conducted.
Subsequently, the three parcels were handed over to Inspector Janak Singh, who
affixed his seal 'JS' on them and deposited the said parcels with the malkhana.
The parcels were then handed over to SI Jasbir Singh by MMHC, who produced
them before the Magistrate. Thereafter, the samples were sent to CFSL for
examination.
3. The prosecution examined 8 witnesses to prove its case. Statement
of the respondent-accused under Section 313 Cr.P.C. was recorded wherein he
pleaded false implication and claimed innocence. However, the accused did not
lead any evidence in his defence. On assessing all the material available on
record, the learned trial Court acquitted the respondent-accused vide impugned
judgment dated 09.07.2014.
4. Having heard the learned State counsel and after perusing the record
with his able assistance, it transpires that admittedly, personal search of the
respondent-accused was conducted without giving notice under Section 50 of the
NDPS Act. Therefore, the case in hand is a case of composite search, meaning
thereby, along with the bag/vehicle/receptacle, the person of the accused was also
searched, making Section 50 of the NDPS Act applicable to the proceedings. A
two Judge Bench of the Hon'ble Supreme Court in State of Rajasthan v.
Parmanand and another (2014) 5 SCC 345, speaking through Justice Ranjana
P. Desai has held as under:
"15. Thus, if merely a bag carried by a person is searched without
there being any search of his person, Section 50 of the NDPS Act
will have no application. But if the bag carried by him is searched
and his person is also searched, Section 50 of the NDPS Act will
have application. In this case, Respondent 1 Parmanand's bag was
searched. From the bag, opium was recovered. His personal search
was also carried out. Personal search of Respondent 2 Surajmal was
also conducted. Therefore, in the light of the judgments of this Court
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mentioned in the preceding paragraphs, Section 50 of the NDPS Act
will have application."
5. There also appear to be material discrepancies in the case of the
prosecution as initially it was claimed that samples of 50g of the alleged
contraband were drawn, however, in their respective cross-examinations, PW2-SI
Surinder Kumar, first Investigating Officer as well PW7-Inspector Jasbir Singh
have specifically admitted that 2g of samples were drawn. Moreover, PW4-HC
Sukhchain Singh had testified that the sealed parcels were produced before Ms.
Palwinderjit Kaur, JMIC, Chandigarh whereas, PW7-Inspector Jasbir Singh
deposed that they were produced before Mr. Ranjiv Kumar, JMIC, Chandigarh.
Finally, PW2-SI Surinder Kumar had stated that he did not pass any information
regarding arrest of the respondent but his mother was informed when she came to
the spot herself, which contradicts the stand taken by PW7-Inspector Jasbir Singh
who had claimed to have informed the mother of the respondent regarding his
arrest from the police station.
6. Furthermore, the alleged recovery took place on 03.11.2010,
however, the samples were deposited with the FSL on 10.11.2010 i.e. after a
delay of 7 days. As per procedure prescribed in Standing Order No. 1 of 1988
dated 15.03.1988, representative sample of any contraband after seizure and
deposit in the Malkhana or with the concerned SHO is required to be sent to the
FSL within 72 hours. The sanctity of the instructions contained in Standing Order
No.1 of 1988 came up for consideration before the Hon'ble Supreme Court in
Noor Aga v. State of Punjab and another, 2008 (16) SCC 417 and it was held
that these statutory instructions are mandatory in nature and the following was
observed:
"32. Recently, this Court in State of Kerala & Ors. v. Kurian
Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582], following the earlier
decision of this Court in Union of India v. Azadi Bachao Andolan
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[(2004) 10 SCC 1] held that statutory instructions are mandatory in
nature.
Logical corollary of these discussions is that the guidelines
such as those present in the Standing Order cannot be blatantly
outed 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 these 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."
The case of the respondent-accused is also covered by the ratio of
law laid down in Union of India v. Bal Mukund and others, 2009(2) RCR
(Criminal) 574 and State of Rajasthan v. Gurmail Singh, 2005 (2) RCR
(Criminal) 58 on account of the sample being sent after the stipulated period of
72 hours.
7. A perusal of the record also indicates that no independent witness
was joined in the investigation. It is settled law that non-examination of an
independent witness is not fatal for the case of the prosecution but in the instant
case neither any effort was made to associate any independent witness nor any
explanation is forthcoming for not doing so. The Hon'ble Supreme Court in
Krishan Chand v. State of H.P. AIR 2017 (SC) 3751 has laid down the ratio that
the failure of the investigating officer to associate an independent witness at the
time of recovery creates a dent in the case of the prosecution. A two Judge Bench
of the Hon'ble Supreme Court in Gorakh Nath Prasad v. State of Bihar, 2018(1)
RCR (Criminal) 108 has acquitted the accused holding that the case of the
prosecution cannot be entirely based upon the statements of the official witnesses
when no independent witness has been joined in the investigation.
8. The power of the Appellate Court to unsettle the order of acquittal on
the basis of re-appreciation of the evidence is subject to the settled law that where
two views are possible and out of the two, one points towards the innocence of
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the accused, the view which favours the accused should prevail over the other
pointing towards his guilt. Furthermore, the trial Court has the additional
advantage of closely observing the prosecution witnesses and their demeanour,
while deciding about the reliability of the version of prosecution witnesses. (See
H.D. Sundara and others Vs. State of Karnataka, Criminal Appeal No.247 of
2011 decided on 26.09.2023; Kali Ram v. State of H.P., 1973 (2) SCC 808 and
Chandrappa and others v. State of Karnataka, (2007) 4 SCC 415). A Division
bench of this Court in the judgment passed in State of Haryana Vs. Ankit and
others passed CRM-A No.3 of 2022 decided on 06.07.2023 has held that
presumption of innocence further gets entrenched on the acquittal of accused by
the trial Court.
9. In view of the facts and circumstances of the case, this Court finds
that learned State counsel has failed to point out any perversity or illegality in
findings recorded by the learned trial Court which warrants interference by this
Court. As such, there is no merit in the present application and hence, the leave to
appeal is denied.
(HARPREET SINGH BRAR)
JUDGE
19.03.2024
Ajay Goswami
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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