Punjab-Haryana High Court
Gurjant Singh @ Janta vs State Of Punjab on 21 March, 2024
Neutral Citation No:=2024:PHHC:042098
2024:PHHC:042098
CRA-S-3070-2019 1
240 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRA-S-3070-2019
Reserved on: 20th March 2024
Pronounced on: 21st March, 2024
Gurjant Singh @ Janta
...Appellant
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. L.S. Sekhon, Advocate
for the appellant
Mr. Rishab Singla, AAG Punjab
****
HARPREET SINGH BRAR, J. (ORAL)
1. The instant appeal is preferred against the judgment of conviction and
order of sentence dated 27.09.2019 passed by learned Judge, Special Court, Moga
in FIR No. 71 dated 22.09.2015 registered at Police Station Fatehgarh Panjtoor,
Moga, under Section 21 of the Narcotic Drugs & Psychotropic Substances Act,
1985 (hereinafter referred to as 'the NDPS Act' for short), whereby the appellant
was convicted and sentenced to undergo rigorous imprisonment for a period of six
months with a fine of Rs. 2,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for a period of 15 days.
FACTUAL BACKGROUND
2. The facts of the prosecution case, tersely put, are that on 22.09.2015, a
police party headed by PW1-SI Brij Mohan (Investigating Officer) was on
patrolling duty at the Saide Shah bridge. The appellant-accused, who was on foot
and walking towards the police party, upon spotting the police personnel, turned
back and started walking briskly. Subsequently, he was prrehended on the basis of
suspicion by PW1-SI Brij Mohan with the help of his subordinates. During enquiry
he disclosed his name as Gurjant Singh alias Janta, son of Bagicha Singh alias
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Bagga, resident of Village Daule Wala. On suspicion that the appellant was in
possession of some contraband, the police proceeded to conduct a search of the
person of the appellant-accused. The Investigating Officer also apprised him of his
legal right to get his search conducted in the presence of a Magistrate or a Gazetted
Officer but he reposed confidence in SI Brij Mohan. Accordingly, the consent
memo was prepared which was duly signed by the appellant-accused. Upon
conducting a search of the accused, Heroin wrapped in a polythene paper was
recovered from the pocket on the right side of the his pants. Out of the recovered
Heroin, 5 grams was seperated as sample and converted into a parcel and the
remaing quantity, which on being weighed came out to be 20 grams, was also
converted into a parcel. Both the said parcels were sealed by SI Brij Mohan with
his seal bearing impression 'BM'. Sample seal on form no. 29 was prepared and
the seal after use was handed over to HC Jaswinder Singh. After completion of
necessary formalities of investigation, Ruqa was sent to the police station on the
basis of which formal FIR was registered against the appellant-accused.
3. On completing the investigation, challan was presented against the
appellant. Copies of the challan was supplied to the appellant free of cost in
compliance with the provisions of Section 207 Cr.P.C. On finding a prima facie
case against the appellant, charge under Section 21 of the NDPS Act was framed
against him to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined as many as six
witnesses. Statement of the appellant under Section 313 Cr.P.C. was recorded
whereby all the incriminating evidence was put to him, to which he pleaded false
implication. However, the appellant did not examine any witness in his defence.
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5. Learned trial Court, on minutely scrutinising the evidence led by the
prosecution and going through the record of the case, held the appellant guilty and
convicted and sentenced him as discussed herein above.
CONTENTIONS
6. Learned counsel for the appellant assails the impugned judgment on
the ground that the learned trial Court has failed to appreciate that there is an
inordinate delay of 18 days in sending the sample to the FSL which remains
unexplained. Moreover, no CFSL form was filled out at the time of the alleged
recovery, nor the same was deposited with the MHC. As a result, possibility of
tampering with the case property cannot be ruled out. It is further argued that the
recovery was shown to be effected from the personal search of the accused, but the
mandatory provision of Section 50 of the Act was not complied with. The
appellant-accused is entitled to acquittal on this ground alone. Furthermore, the
police party comprised of 4 police personnel, but on all the memos only HC
Jaswinder Singh signed as a witness. This only goes to show that SI Brij Mohan
and HC Jaswinder Singh have concocted a completely trumped-up case against the
appellant-accused. Finally, no independent witness joined the police party when
the recovery was effected, despite the recovery being effected in daylight and the
place of seizure being a thoroughfare.
7. On the other hand, learned State counsel argues that merely because
no independent witness was examined, it does not take away from the veracity of
the depositions of the official witnesses, which do not suffer from any serious
infirmities. He further contends that although there was a delay in sending the
samples to the FSL, the samples were accounted for and not tampered with. The
Investigating Officer had handed over the case property including the samples to
the SHO for safekeeping. Hence, the question of non- compliance of Section 55 of
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the NDPS Act does not arise. The link evidence is complete and the learned trial
Court has arrived at a guilty verdict on correct appreciation of material on record.
OBSERVATIONS AND ANALYSIS
8. Having heard learned counsel for the parties and perused the paper-
book with their able assistance, it transpires that the prosecution has made a
glaring omission in the investigation of the case by not complying with Standing
Order No. 1 of 1988 dated 15.03.1988. As per the Standing Order, 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. A perusal of the
record indicates that the alleged recovery was effected on 22.09.2015 and the same
was produced by the Investigating Officer (PW-1) before the SHO/ASI Kashmir
Singh (PW-4). Thereafter, it was produced before the learned Magistrate on
23.09.2015, whereby the representative sample was drawn. Following this, the
case property was deposited in the police Malkhana. Finally, on 09.10.2015 i.e. 18
days after the day of recovery, the sample was sent for chemical examination.
Hence, the samples were deposited with the FSL after the lapse of 18 days from
seizure, for which no reasonable explanation has been provided, in direct violation
of the Standing Order No. 1 of 1988 dated 15.03.1988, which would tantamount to
a serious flaw in the investigation and suffocate the prosecution case completely.
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 [(2004) 10 SCC 1] held that statutory
instructions are mandatory in nature.
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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."
9. On a careful reading of the deposition of the Investigating Officer, it is
discovered that the Form no. 29 as well as the recovery memo were completed
first. This was followed by the preparation of the ruqa which was sent through
Constable Manjit Singh to the police station and it was recorded in the ruqa that
the FIR be registered. However, a perusal of the recovery memo (Ex. P3) and
Form no. 29 (Ex. P2) shows that they bear the FIR Number '71'. It is the case of
the prosecution that ruqa was sent after preparing the consent memo and filling out
Form no. 29 and the contraband was recovered from a polybag and the same was
taken into possession vide the recovery memo (Ex. P3). The samples were drawn
and other formalities were done at the spot. However, there is no explanation by
any of the witnesses as to how the FIR number came to be reflected on the
recovery memo and Form no. 29 when admittedly the FIR was lodged later in
time. The above aspect raises a serious suspicion on the investigation conducted by
the investigating officer. In the absence of any rational explanation by the
prosecution with regard to the reflection of the FIR number on Form no. 29 as well
as on the recovery memo, which, according to the case of the prosecution, was
prepared at the first instance before registration of the FIR creates a serious dent in
the story of the prosecution.
10. The Hon'ble Supreme Court in Kamaljit Singh @ Pappu v. State of
Punjab, 2020(14) SCC 9 dealt with a similar issue where the investigation was
found to be suspicious on the ground that the FIR number was mentioned on the
memos which were prepared much prior to the registration of FIR. Similarly, this
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High Court has also discarded the investigation on the ground of mentioning of
FIR number on the memos prepared during investigation prior to registration of the
FIR. A reference is made to Sunny alias Siti v. State of Punjab, Crl. Appeal No.
3730-SB of 2016 decided on 05.12.2022, Netar Pal v. State of Haryana, 2010 (8)
RCR (Criminal) 352 and Kewal Singh v. State of Punjab 2018(4) RCR
(Criminal) 580.
11. The Investigating Officer SI Brij Mohan (PW-1) is also the
complainant of the case. The Hon'ble Supreme Court in State by Inspector of
Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu v. Ranjangam
2010(15) SCC 369, has opined that since the arrest and search is made by the
complainant, he should not involve himself with the investigation of the case. Such
an officer leading the investigation would forthrightly raise questions as to the
fairness and impartiality of the said investigation process.
12. Another conspicuous omission on the part of the Investigating Officer
was that the recovery memo (Ex.P3) did not bear the signature of the accused-
appellant.
13. Furthermore, a perusal of the impugned judgment indicates that no
independent witness was joined in the investigation when the recovery was
effected from the accused. This lapse on the part of the investigation team becomes
even more prominent, given that the place of recovery was a public place and it
was day time. 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 had
acquitted the accused and held that the case of the prosecution cannot be entirely
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based upon the statements of the official witnesses when no independent witness
has been joined in the investigation.
CONCLUSION
14. In view of the above discussion, the present appeal is allowed. The
judgment of conviction and order of sentence dated 27.09.2019 passed by learned
Judge, Special Court, Moga is set aside. The appellant, namely Gurjant Singh alias
Janta, is acquitted of the charges framed against him. His bail bonds and surety
bonds stand discharged.
15. Pending miscellaneous application(s), if any, shall also stand disposed
of.
16. The case property, if any, may be dealt with as per rules after the
expiry of period of limitation for filing the appeal(s). Record of the case be sent
back to the Court below.
(HARPREET SINGH BRAR)
JUDGE
March 21, 2024
Ajay Goswami
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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