Punjab-Haryana High Court
Pargat Singh vs State Of Pb on 13 November, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:148431-DB
CRA-255-DB-2006 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
CRA-255-DB-2006 (O&M)
Reserved on :-03.10.2024
Date of Decision : 13.11.2024
Pargat Singh ....Appellant
VERSUS
State of Punjab ....Respondent
CORAM : HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Ms. Kamlesh, Advocate, for
Mr. Parminder Singh, Advocate,
for the appellant.
Mr. Kunwarbir Singh, A.A.G., Punjab,
for the respondent-State.
-.-
SUDEEPTI SHARMA, J.
The present appeal has been preferred against the judgment of
conviction and order of sentence dated 24.01.2006 passed by the learned Special
Judge, Rupnagar, whereby the appellant has been convicted in FIR No.18, dated
10.04.1994, registered at Police Station Sohana, under Sections 15 and 61 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act') and
sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of
Rs.1,00,000/- and in case of default to pay fine, he is further sentenced to undergo
rigorous imprisonment for two years.
2. The brief facts of the case are that on 10.4.1994, Police Party headed
by S.I. Didar Singh was present in the area of Village Darri. At about 11:00 A.M.,
S.I. Didar Singh received a secret information that Pargat Singh son of Kartar Singh,
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Jaswant Singh son of Gurnam Singh, Pala son of Balkar Singh and Kulwant Singh
@ Kanta @ Balkar Singh, had been smuggling poppy husk and the said persons
were coming from Uttar Pradesh in a truck bearing registration No.DIG 7027
alongwith some bags of poppy husk, which were concealed under the bags of
Taramira (Khal) and that if a naka is laid in the area of T-point Kurari, the said truck
could be apprehended. On relying upon the information, ruqa (Ex. PE) was sent by
S.I. Didar Singh to the Police Station and on the basis of said ruqa, an F.I.R. (Ex.PF)
was registered by S.I. Nirmal Singh at Police Station Sohana. Thereafter, the police
party headed by S.I. Didar Singh, laid a naka in the area of T-Point, Kurari where
one Daljit Singh son of Karnail Singh was also associated in the said police party.
3. On the next day i.e. 11.4.1994 at around 10:00 A.M., aforesaid truck
was seen coming on the road and a signal was given to stop it. When the truck was
stopped, immediately accused Kulwant Singh and Jaswant Singh, who were stated
to be sitting on the back side of the truck, immediately jumped and ran away. They
were chased by the members of the police party, but they escaped. On enquiry, the
driver of the said truck disclosed his name as Pargat Singh and the another person,
who was stated to be sitting along side the driver's seat disclosed his name as Pala
Singh. Some bags were found lying on the back side of the said truck. Accused
Pargat Singh and Pala Singh were asked by the SI Didar Singh, whether they wanted
to be searched in the presence of a Magistrate or Gazetted Officer, the said accused
stated that they be searched along with aforesaid truck in the presence of Gazetted
Officer upon which, Parshotam Singh,DSP., Mohali, was called at the spot. The said
D.S.P. reached there and disclosed his identity to both the accused and apprised them
of their legal right of search in the presence of another Gazetted Officer or any
Magistrate. However, the accused reposed their faith upon him. Then the search of
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the truck was conducted by S.I. Didar Singh on the direction and supervision of DSP
Parshotam Singh. During the search, 50 bags of poppy husk were recovered, which
were lying underneath the bags of Taramira (Khal). Each bag was found to be
containing 40 KGs. of poppy husk. Out of each bag, two samples of 250 grams each
of poppy husk were separated. 100 samples, each weighing 250 grams, and 50 bags,
each containing 39.5 K.Gs of poppy husk, were sealed by S.I. Didar Singh with his
seal bearing impressions 'DS'. Sample of seal (Ex. PB) was prepared. Thereafter,
the seal after use, was given to independent witness Daljit Singh. The above said
sealed samples, sealed bags and sample of seal were taken into possession vide
memo (Ex.PC), which was signed by S.I. Joga Singh, H.C. Avtar Singh, S.I. Didar
Singh and independent witness Daljit Singh and attested by DSP Parshotam Singh
at the spot. Aforesaid truck, its Registration Certificate and Driving Licence of
Pargat Singh alongwith 203 bags of Taramira (Khal) were taken into possession vide
memo (Ex.PH), which was also signed by S.I. Joga Singh, H.C. Avtar Singh and
Daljit Singh and attested by S.I. Didar Singh. The memos of arrest of accused Pala
Singh and Pargat Singh were prepared which are Exs. PM & PO. The personal search
memos of the said accused are Exs. PL&PN. The rough site plan of the place of
recovery (Ex.PK) was also prepared. The statements of PWs were recorded at the
spot. On return to the Police Station, the case property alongwith accused was
produced before Inspector Jagtar Singh, SHO, Police Station Sohana who verifying
the facts of the case, appended his seal bearing impressions 'JS' on the case property
and memo of entrustment (Ex.PA) was prepared and then the case property was
deposited in the Malkhana. During investigation, samples were sent to the office of
Chemical Examiner.
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4. During further investigation accused Kulwant Singh and Jaswant Singh
were also arrested.
TRIAL COURT PROCEEDINGS
5. On completion of investigation, challan was presented against the
accused in the Court of Ilaqa Magistrate.
6. On presentation of the challan, copies of the challan and other
documents annexed therewith were supplied to the accused free of costs as required
under Section 207 Cr.P.C.
7. Initially, charge for offence under Sections 15 and 61 of the NDPS Act
was framed against all the accused to which they pleaded not guilty and claimed
trial.
8. During the trial, accused Pargat Singh and Jaswant Singh jumped bail
and they were declared Proclaimed Offenders. However, accused Pala Singh and
Kulwant Singh faced trial and were convicted and sentenced to imprisonment by
learned Addl. Sessions Judge, Ropar, vide judgment and order of sentence dated
23.8.1997.
9. Subsequently, accused Pargat Singh was re-arrested in this case and
supplementary challan against him was presented in the Court. Charges under
Sections 15 and 61 of the NDPS Act, were framed against accused Pargat Singh on
4.12.2003, to which, he pleaded not guilty and claimed trial. Then the case was fixed
for prosecution evidence.
10. During the trial, the prosecution examined five witnesses i.e. PW1 DSP
Jagtar Singh, PW2 HC Mohinder Singh, PW3 HC Nikka Ram, PW4 Inspector Didar
Singh and PW5 Inspector Nirmal Singh. Besides oral evidence, documentary
evidence led in the prosecution evidence are recovery memo (Ex.PG), sample of seal
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(Ex.PB) and report of Chemical Examiner (Ex.PO) tendered by learned Public
Prosecutor and closed the prosecution evidence.
11. After closure of the prosecution evidence, statement of the accused
under Section 313 Cr.P.C. was recorded. Incriminating circumstances appearing
against the accused in the prosecution evidence were put to accused to which he
pleaded innocence and stated that he was falsely implicated in this case.
12. Accused opted to lead defence but closed his defence evidence without
examining any witness.
13. After hearing the learned counsel for the parties and perusing the whole
record, the learned Special Judge, Rupnagar, convicted the appellant Pargat Singh
under Sections 15 and 61 of the NDPS Act, and sentenced him to undergo rigorous
imprisonment for a period of 12 years and to pay file of Rs.1,00,000/- and in case of
default to pay fine to further undergo rigorous imprisonment for two years vide its
judgment and order of sentence dated 24.01.2006.
14. Hence, the present appeal.
SUBMISSION OF LEARNED COUNSEL FOR THE PARTIES
15. Learned counsel for the appellant contends that the learned Trial Court
did not appreciate the evidence on record and has wrongly convicted the appellant.
Therefore, he prays for setting aside the judgment and order of sentence dated
24.01.2006.
16. Per contra, learned counsel for the respondent-State argues on the lines
of judgment dated 24.01.2006 and contends that the appellant has rightly been
convicted and sentenced under Sections 15 and 61 of the NDPS Act.
17. We have heard the learned counsel for the appellant as well as learned
State Counsel and perused the whole record of the case in hand.
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ANALYSIS OF THE RECORD
18. Ex.PA is the memo regarding production of case property Poppy husk.
The same is reproduced as under:-
"English translation of Ex. PA in Sessions Case No. 19 dated 18-10-
2003 titled as State Vs. Pargat Singh in FIR No.18 dated 10-04-94
under Section 15/61/85 of N.D.P.S. Act Police Station Sohana decided
by Sh.Karamjit Singh Addl. Sessions Judge Rupnagar on 24-01-06.
PS Sohana District Ropar
State
Versus
1. Pargat Singh s/o Kartar Singh Jatt r/o Habbri District Kaithal
2. Pala Singh s/o Balkar Singh Jatt r/o Ajjpur P.S. (sic) UP Mujaffar
Nagar
FIR No. 18 Dated 10-04-94 u/s 15-61-85 NDPS Act PS Sohana
Memo regarding Production of case property Poppy husk
In the presence of below mentioned witnesses SI Didar Singh I/C
CIA Mohali the case property of the above mentioned case 100 parcels
sealed with his seal impression D.S. and 50 bags of poppy husk
weighing 39 1/2 sealed with his seal impression D.S. alongwith sample
seal and truck bearing no. DIG 7027 and 203 bags of straws produced
before me. They were taken into police possession vide memo and
sealed them with the seal impression J.S.
Witnesses Produced by
SI Joga Singh Didar Singh SI
CIA Mohali CIA Mohali
Sd/- Sd/-
Witnesses ЕХРА Sd/-
HC Avtar Singh Sd/- SHO PS Sohana
479 Special Judge 11-04-94
CIA Mohali 30-04-04
Sd/-
Seal"
19. Ex.PB is the special report, which is reproduced as under:-
"English translation of Ex. PB in Sessions Case No. 19 dated 18-
10-2003 titled as State Vs. Pargat Singh in FIR No. 18 dated 10-04-94
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under Section 15/61/85 of N.D.P.S. Act Police Station Sohana decided
by Sh. Karamjit Singh Addl. Sessions Judge Rupnagar on 24-01-06.
In the court of Illaqa Magistrate Kharar
PS Mohali District Ropar
Sohana
Special Report
FIR No. 18 Dated 10-04-94 u/s 15-61-85 NDPS Act PS Sohana
Respected Sir,
The description of the case is that SI Didar Singh and SI
Joga Singh used govt. Vehicle to reach the bus stand of village
Derry under the supervision of Sh. Paramraj Singh S.P. (D)
Sahib Ropar in connection with secret duty. Then SI Didar Singh
received a secret information from a informer that Pargat Singh
s/o Kartar Singh Jatt, Jaswant singh @ Jassa s/o Gurnam singh
r/o Habbri district Kaithal, Pala singh s/o Balkar Singh r/o Kala
Majri, Kulwant Singh @ Kala s/o Balkar Singh r/o Ajijpur
district Mujaffarnagar are habtual smugglers of poppy husk.
They are coming from Barelly U.P. in a truck No. DIG 7027
loading with bags of poppy husk hide in the straws. They will sell
it in the villages through link road. If the nakabandi will be
conducted then they can be arrested alongwith truck DIG 7027
and with poppy husk. SI Didar Singh sent ruqa to the police
station to register the case. After conducting continuous
nakabandi at T-Point Kurari then on 11-04-94 accused Pargat
Singh s/o Kartar Singh r/o Habbri, Pala Singh s/o Balkar Singh
Jatt r/o Kala Majra district Mujaffarnagar alonwith truck DIG
7027 in which 50 bags of poppy husk 40 kg. Each recovered. The
poppy husk was hide in the straws. Parshotam Singh DSP Mohali
recovered them. The two samples of 250 gm were taken from the
each bag and parcels were prepared. Then SI Didar Singh sealed
50 bags of rest of the poppy husk with his seal DS and taken into
police possession vide memo. Sample seal was prepared
separately. The straws were also taken into police possession
vide separate memo. The accused were arrested. SI Didar Singh
produced accused Pargat Singh and Pala Singh alongwith case
property in the police station. After checking the 50 bags of
poppy husk were sealed with my seal impression JS. The arrest
of two accused is awaited. The statements u/s 161 Cr.P.C. of the
witnesses were completed. The report is presented after getting
completed.
Sd/
seal SHO P.S. Sohana
Dated 11-04-94"
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20. Ex.PG is the memo regarding recovery of Poppy husk, which is
reproduced as under:-
"English translation of Ex. PG in Sessions Case No. 19 dated 18-10-
2003 titled as State Vs. Pargat Singh in FIR No. 18 dated 10-04-94
under Section 15/61/85 of N.D.P.S. Act Police Station Sohana decided
by Sh. Karamjit Singh Addl. Sessions Judge Rupnagar on 24-01-06.
P.S.: Sohana District: Ropar
State
Versus
1-Pala Singh s/o Balkar Singh Jatt r/o Kala Majra, district Mujaffar
nagar (UP).
2-Pargat Singh s/o Kartar Singh r/o Habbri district Kaithal (Haryana)
3-Kulwant Singh 4- Jaswant Singh
FIR No. 18 Dated 10-04-94 u/s 15-61-85 NDPS Act PS Sohana
Memo regarding recovery of Poppy husk
In the presence of below mentioned witnesses and Sh. Parshotam
Singh DSP Mohali 50 bags of poppy husk were recovered from the
possession of the accused above mentioned which they hid in the truck
bearing registration no. DIG 7027. The accused hid poppy husk into
the bags of straws. Each bag was found 40 Kg. alongwith bag on
weighing on the spot. From every bag two samples of 250 gm were
taken out and parcels were prepared. Each parcel and 50 bags were
sealed with the seal impression D.S.' Sample seal was prepared
separately. The samples alongwith 50 bags were taken into police
possession as proof. The seal was handed over to Daljit Singh PW after
use.
Witnesses: Witnesses: Sd/-
Daljit Singh s/o Karnail Singh Sd/- I/C CIA
r/o (sic) PS Sohana SI Joga Singh Mohali
Sd/- 11-4-94
Witnesses: Ex. PG
HC Avtar Singh Sd/- seal
CIA Mohali Spl. Judge
Sd/- 28-10-04"
A perusal of the record as referred to above shows that there is no
homogeneous mixing of the poppy-husk, which was in 50 bag parcels.
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21. Ex.PU is the Chemical Lab Report. The same is reproduced as under:-
"CHAMICAL LABORATORY
Report on the analysis of the samples of Poppy Head, forwarded
by, S.S.P. Ropar referred to in his endst No 17450/EACE
dated:- 28.4.94.
The exhibits marked here 209-P-April94 to 258-P-April 94 were
received on 29.4.94. with the particulars overleaf. The seals of the
exhibits were intact on arrival till the time their analysis was started
and agreed with the specimen seal sent. The exhibits remained in my
safe custody after their receipt.
The analysis of the samples marked here 209-P-April94 to 258-
P-April94 are as under.
The Analytical data is enclosed herewith.
OPINION: - The analysis indicates that the contents of the exhibits
marked are 209-P-April94 to 258-P-April94 are of PoppyHead.
Sd/-
(Sushobhita Kumari)
Seal Deputy-Chem-Exam-to, Govt.-Punjab,
Chandigarh."
A perusal of the record as referred to above shows that after chemical
examination, there is no mentioning regarding re-sealing with English alphabets and
return of the property.
22. DSP Jagtar Singh was examined as PW-1, who stated that on
11.04.1994, SI Didar Singh and SI Joga Singh, HC Avtar Singh along with case
property and accused appeared before him. The case property was consisted of 50
bags of poppy husk each containing 39.5 Kgs. puppy husk along with weight of bag,
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100 samples, sample seal bearing impressions 'DS' alongwith one truck No.DIG-
7727 and 203 bags of Terramara (Khal). He got verified the facts of the case from
SI Didar Singh and thereafter, appended his seal bearing impressions 'JS' on the
case property. Thereafter, memo of entrustment (Ex.PA) was prepared, which was
signed by SI Joga Singh, SI Didar Singh and HC Avtar Singh and he also attested
the said memo. The case property was then deposited with the MHC of Police
Station Sohana. He further stated that he had seen the truck in which 50 sealed bags
alongwith 50 samples are there, which are Ex.P1 to Ex.P50 and sample of the seal
is Ex.PB.
23. In his cross-examination, he stated that recovery was not effected in his
presence. He further stated that his statement was not recorded by the Investigating
Officer. He again submitted that it is correct that the gunny bags which were
produced were torn.
24. HC Nikka Ram was examined as PW3, who in his cross-examination
stated that case property was deposited with him on 11.04.1994, which included 50
bags containing poppy husk and 100 sealed samples of 250 grams each. On
28.04.1994, 50 sealed samples were sent through Constable Mohinder Singh to the
office of Deputy Chemical, Chandigarh. However, on that date, Constable
Mohinder Singh came back alongwith the above said samples, as objection was
raised. He further stated that again on 29.04.1994, 50 sealed samples were handed
over to Constable Mohinder Singh to take them to the office of Deputy Chemical,
Chandigarh. On that day, after depositing the said sealed samples in the office of
Deputy Chemical, Chandigarh, Constable Mohinder Singh came back to the Police
Station and he handed over the receipt to him. He further stated that in paragraph
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No.5 of Ex.PD (which is his statement on affidavit), there was no mention of handing
over of sample seal to Constable Mohinder Singh.
25. Inspector Didar Singh, SHO, Police Station Lambran, District
Jalandhar, was examined as PW4. In his cross-examination, he stated that since no
private person was available, therefore, no private person was associated. He further
stated that Pargat Singh accused was known to him as earlier also, he came to Police
Station alongwith other persons. Further stated that earlier also Kulwant Singh and
Jaswant Singh visited the Police Station before the date of occurrence. He again
stated that all the police officials had been taking out the bags from the truck and
HC Avtar Singh and Sodhi Ram driver were deputed by him to bring weighing scale
and weights. It was a big weighing scale. The weights used were of 20 Kgs., 10
Kgs., 5 Kgs., 100 grams, 200 grams, 50 grams and 500 grams. He further stated that
DSP Parshotam Singh did not seal the case property. Further stated that Daljit Singh
returned his seal after 8/10 days of the occurrence in village Sheikhan Majra.
26. This Court in CRA-S-5190-SB-2015 titled as "Deepak Kumar Vs.
State of Punjab" along with other connected appeals, decided on 18.09.2024, held
as under:-
"6. Before proceeding to render an answer to the substantial
question of law (supra), the making of allusion(s) to the standing order
No.1/89, as drawn by the Government of India, Ministry of Finance
(Department of Revenue), is of utmost importance. In clause 2.3 and
2.4 thereof, clauses whereof becomes extracted hereinafter, it becomes
elucidated that the quantity to be borne in each sample, thus for a
chemical test becoming made thereons at the laboratory concerned,
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shall not be less than 5 grams in respect of all narcotic drugs and
psychotropic substances.
"2.3 The quantity to be drawn in each sample for
chemical test shall not be less than 5 grams in respect of
all narcotic drugs and psychotropic substances save in the
cases of opium, ganja and charas (hashish) where a
quantity of 24 grams in each case is required for chemical
test. The same quantities shall be taken for the duplicate
sample also. The seized drugs in the packages/containers
shall be well mixed to make it homogeneous and
representative before the sample (in duplicate) is drawn.
2.4 In the case of seizure of a single package/container,
one sample in duplicate shall be drawn. Normally, it is
advisable to draw one sample (in duplicate) from each
package/container in case of seizure of more than one
package/container."
7. However, it has been further elucidated therein, that if seizure of
opium, ganja and charas (hashish) takes places, thereupon the sample
to be derived from the bulk is to be weighing 24 grams, thus for the
same becoming sent for testings to the laboratory concerned. Similarly,
for the duplicate sample also, the same or similar quantities become
envisaged thereins. Moreover, the seized drugs in the
packages/containers, become thus prior to the samples (supra)
becoming drawn from the bulk, rather ordained to become well mixed
or being homogeneously mixed. However, in case of the seizure taking
place of a single package or container, thereupon it is contemplated in
the above extracted provisions, that only one sample in duplicate shall
be drawn.
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8. Furthermore, the Government of India, Ministry of Finance
(Department of Revenue), has issued a notification, on 23.12.2022,
whereins, in Chapters II and III thereof, certain provisions are carried
in Clauses 4 to 11 thereofs. The said clauses become extracted
hereinafter.
"4. Designation of godowns. - (1) The godowns for
storage of narcotic drugs, psychotropic substances,
controlled substances, conveyance and other articles
seized under the Act shall be designated by,-
(a) the department and agencies of the Central
Government whose officers have been delegated powers of
an officer-in-charge of a police station under section 53 of
the Act;
(b) The State Police and the department and agencies of
the State Government whose officers have been delegated
powers of an officer-in-charge of a police station under
section 53 of the Act.
(2) Godowns referred to in sub-rule (1) shall be identified
taking into consideration the security aspect and
juxtaposition to court of law and such godowns shall be
placed under the over-all supervision and charge of an
officer of Gazette rank of the department and agencies
referred to in sub-rule (1).
5. Deposit in godowns. - (1) All seized materials referred
to in sub-rule (1) of rule 3, after seizure under the Act shall
be deposited by the seizing officer in the nearest godown
designated under rule 4 within forty-eight hours from the
time of seizure alongwith a forwarding memorandum in
Form-1:
Provided that the said time period may be relaxed by
further twenty-four hours after providing of reasonable
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justification by the officer to whom the seized material has
been forwarded under sub-section (3) of Section 52 of the
Act.
(2) The officer in-charge of a godown, before giving an
acknowledgement of receipt in Form-2, shall satisfy
himself that the seized materials are properly packed,
sealed and in conformity with the details mentioned in
Form-1.
(3) The officer, who had seized the material, shall hand
over the acknowledgement of receipt of seized material in
Form-2, along with all other documents relating to the
seizure, to the Investigating Officer for further
proceedings.
6. Storage of seized material in godown. - (1) After
receipt of the seized material, the officer in-charge of the
godown shall ensure that the seized material is properly
arranged, case-wise, for quick retrieval.
(2) The officer in-charge of a godown shall maintain a
register of material received in the godown in Form-3.
(3) All seized material, excluding the conveyances, shall
be stored in safes and vaults with double lock.
7. Inspection of godown. - (1) The department and
agencies referred to in rule 4 and the State Police shall
designate an Inspecting Officer for each godown, who
shall be higher in rank to that of the officer in-charge of
the godown.
(2) The Inspecting Officer referred to in sub-rule (1) shall
make periodical inspection of the godown, at least once in
every quarter, and shall record his remarks in the godown
register in Form-3 with respect to security, safety and
early disposal of the seized material.
(3) The departments and agencies, referred to in rule 4
and the State Police shall maintain periodical reports and
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returns to monitor the safe receipt, deposit, storage,
accounting and disposal of seized materials under the Act.
8. Application to Magistrate. - After the seized material
under the Act is forwarded to the officer-in-charge of the
nearest police station or to the officer empowered under
section 53 of the Act or if it is seized by such an officer
himself, he shall prepare an inventory of such material in
Form-4 and apply to the Magistrate, at the earliest, under
sub-section (2) of section 52A of the Act in Form-5.
9. Samples to be drawn in the presence of Magistrate.
- After application to the Magistrate under sub-section (2)
of section 52A of the Act is made, the Investigating Officer
shall ensure that samples of the seized material are drawn
in the presence of the Magistrate and the same is certified
by the magistrate in accordance with the provisions of the
said-sub-section.
10. Drawing the samples. - (1) One sample, in duplicate,
shall be drawn from each package and container seized.
(2) When the packages and containers seized together are
of identical size and weight bearing identical marking and
the contents of each package give identical results on
colour test by the drugs identification kit, conclusively
indicating that the packages are identical in all respects,
the packages and containers may carefully be bunched in
lots of not more than ten packages or containers, and for
each such lot of packages and containers, one sample, in
duplicate, shall be drawn:
Provided that in the case of ganja, poppy straw and
hashish (charas) it may be bunched in lots of not more than
fourty packages or containers.
(3) In case of drawing sample from a particular lot, it shall
be ensured that representative sample in equal quantity is
taken from each package or container of that lot and mixed
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together to make a composite whole from which the
samples are drawn for that lot.
11. Quantity to be drawn for sampling. - (1) Except in
cases of opium, ganja and charas (hashish), where a
quantity of not less than twenty-four grams shall be drawn
for each sample, in all other cases not less than five grams
shall be drawn for each sample and the same quantity
shall be taken for the duplicate sample.
(2) The seized substances in the packages or containers
shall be well mixed to make it homogeneous and
representative before the sample, in duplicate, is drawn.
(3) In case where seized quantities is less than that
required for sampling, the whole of the seized quantity
may be sent."
9. Tritely put, in the above extracted statutory provisions, it has
been mandated, that the representative sample to be derived from the
bulk rather is required to be so drawn only after the entire seized bulk
becoming homogeneously mixed. Moreover, thereins also exist, thus
provisions relating to the apposite quantities becoming enclosed in the
sealed cloth parcels, besides exist provisions with respect to prompt
dispatches being made of the apposite samples for therebys testing
being made at the laboratory concerned. Moreover it also becomes
ordained therein, that expeditious testings, thus are required to be
made by the Chemical Examiner concerned, vis-a-vis the stuff enclosed
in the samples parcels, as become sent to him, for analyses thereons
becoming made. Imperatively also thereins becomes underlined the
necessity of remnants of samples becoming returned with reference to
the test memo, to the office from where the samples were received, but
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within three months after analysis becoming made thereovers at the
Laboratory concerned.
10. However, immediately after acceptance of the test report by the
Court of the Magistrate, the duplicate sample held by the Investigating
Officer becomes ordained to become deposited in the godown referred
to in Rule 5 along with the remnants of the sample.
11. The inference(s) is to be drawn therefroms are that, the said
above extracted provisions, relate to the inventory becoming drawn in
terms of Section 2 of Section 52A of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as "the
Act"), thus in the presence of the Magistrate, by the investigating
officer concerned. The said provisions becomes extracted hereinafter.
"[52A. Disposal of seized narcotic drugs and
psychotropic substances.--[(1) xxx
(2) Where any [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 [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 [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 [narcotic drugs, psychotropic substances,
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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 [such drugs, substances or
conveyances] and certifying such photographs as
true; or
(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 1[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.]"
12. Though, the said reference does not cover the subject relating to
the creation of storage facilities in the police malkhana concerned, nor
the subject reference relates to prompt dispatches being made of the
samples to the laboratories concerned, rather for ensuring that the stuff
enclosed therein becoming promptly examined nor also though the
subject appertains to expeditious testings being made vis-a-vis the stuff
inside the sample parcels. Moreover, though the subject at hand also
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does not relate to the return of the tested sample to the office wherefrom
it became received nor does it deal with the said returned parcels, thus
enclosing thereins the stuff examined, becoming produced before the
Court concerned along with the test report.
13. Nonetheless, even if the above aspects do not fall within the
subject reference, but the alluded to (supra) provisions existing in the
notification (supra) do beget striking conclusion qua:
a) There being an imperative necessity of testings being
made of the stuff inside the sample parcels.
b) The inventory as becomes prepared in the presence of
Magistrate concerned, in terms of Section 52A of the Act, but without
testings of the stuff enclosed in the sample parcels, thus being made at
the laboratory concerned, rather per se not acquiring the utmost
evidentiary vigor.
14. Moreover, thereins as an obligation becomes cast upon the
police department concerned, to ensure the creations of adequate
storage facilities in the malkhanas concerned, as well, as an obligation
becomes cast upon the investigating agencies, to make prompt
dispatches of the samples to the laboratories concerned, so that, the
enclosed thereins stuff becomes examined.
15. Tritely also the return, of the examined stuff inside the said
parcels, to the police malkhana concerned, thus subsequent thereto
apposite production in Court along with the test report becomes
enshrined therein, to be an imperative obligation made upon all
concerned, whereafters, thus on conclusion of trial the produced in
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Court case properties is to be ordered to be deposited in the godown
concerned.
16. In paragraph 35 of the judgment rendered by the Hon'ble Apex
Court in "Noor Aga V. State of Punjab and another" Criminal
Appeal No.1034 of 2008, decided on 09.07.2008, paragraph whereof
becomes extracted hereinafter, it has been enshrined that the alluded
to (supra) necessities are the required to be proven sine qua non, thus
for the charge drawn against the accused becoming declared to become
unflinchingly proven.
"35. The High Court proceeded on the basis that non-
production of physical evidence is not fatal to the
prosecution case but the fact remains that a cumulative
view with respect to the discrepancies in physical evidence
creates an overarching inference which dents the
credibility of the prosecution. Even for the said purpose
the retracted confession on the part of the accused could
not have been taken recourse to."
17. Now the above referred to notification(s) issued by the
Government of India, appear to also become aprobated by the Hon'ble
Apex Court, in a judgment rendered case titled as "Gaunter Edwin
Kircher V. State of Goa, Secretariat Panji, Goa", Criminal Appeal
No.642 of 1991, decided on 16.03.1993. The above appears to be in
tandem with the verdict rendered by the Hon'ble Apex Court in "Noor
Aga V. State of Punjab and another" Criminal Appeal No.1034 of
2008, decided on 09.07.2008, relevant paragraph whereof becomes
extracted hereinafter.
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"J. Narcotic Drugs and Psychotropic Substances Act,
1985, Sections 52A and 53 - Customs Act, 1962, Section
110(IB) - Physical evidence - Case Property - Recovery
of heroin from accused - Case property destroyed and not
produced - Physical evidence relating to three samples
taken from the bulk amount of heroin were also not
produced - Bulk quantity was destroyed the samples were
essential to be produced and proved as primary evidence
for the purpose of establishing the fact of recovery of
heroin as envisaged under Section 52A of the Act."
18. The ire point relating to the unneccessity, of laboratory testing
being made of the entire recovered stuff, but is grooved in the factum,
that the hereinabove alluded to provisions as carried in the notification
(supra), do cast an obligation upon all concerned, to ensure that only
after the entire seizure becoming homogeneously mixed, qua
thereafters from the bulk rather residue samples becoming drawn but
in the mode, manner and quantities detailed hereinabove.
19. It appears that given the immensity of the weight of the apposite
bulk seizure, that therebys after the concerned, thus homogeneously
mixing the bulk seizure, hence evidently of an immense weight,
whereafters the concerned become enjoined to draw samples from the
bulk. Reiteratedly, the immensity of the weight of the apposite seizure
is curable by the drawings of residue samples from the bulk, but only
when prior thereto rather the entire bulk becomes homogeneously
mixed. Consequently, therebys the constraining factor of inadequacy of
spaces within the laboratory concerned, wherebys the laboratory
concerned, may on account of shortage of spaces there, thus may
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become precluded to examine the entire bulk, thus appears to become
eased. As such, to avoid the immense load of the entire bulk seizure
travelling to the laboratories concerned, that derivative samples from
the bulk are envisaged but only after such derivation taking place
rather from the bulk but only after all concerned, reiteratedly
homogeneously mixing the entire bulk seizure, otherwise not.
20. Conspicuously, the hereinabove extracted respective standing
order and notification become declared by a judgment rendered by the
Hon'ble Apex Court in case titled as "Noor Aga V. State of Punjab
and another" Criminal Appeal No.1034 of 2008, decided on
09.07.2008, to be holding a mandatory character and also become
ordained therein to be requiring completest adherence. Contrarily on
breach thereof becoming made, therebys may be the accused would
become entitled to an acquittal.
21. Furthermore, in case the entire bulk is homogeneously mixed
and derivative samples are derived therefroms, resultantly the effect
thereof would be that, the incriminatory finding as become recorded on
the stuff inside the sample parcels as sent to the laboratory concerned,
thus would acquire a presumption of truth, irrespective of the fact that
the entire bulk wherefrom the derivative samples are borrowed, but
after the entire seizure becoming homogeneously mixed, rather not
becoming sent for analyses thereovers, being made at the laboratory
concerned. Contrarily, in case the entire bulk seizure remains not
homogeneously mixed, thereupon the charge drawn against the
accused appertaining to the weight of the entire weight of the seizure,
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de hors affirmative results being made in respect of the stuff inside the
residue sample parcels, as, sent to the laboratory concerned, rather
would come under a cloud of doubt, whereupon benefit thereof would
accrue to the accused.
22. As an illustration, if the 08 packets were allegedly recovered
from the appellant and only two packets were having contraband
substance and rest 6 packets did not have any contraband; though all
may be of the same colour, when we mix the substances of all 8 packets
into one or two; then definitely, the result would be of the total quantity
and not of the two pieces. Therefore, the process adopted by the
prosecution creates suspicion. In such a situation, as per settled law,
the benefit thereof should go in favour of the accused. It does not matter
the quantity, but proper procedure has to be followed, without which
the results would be negative.
23. Reiteratedly, in case, the derivative samples from the bulk are
drawn but without the entire bulk seizure becoming homogeneously
mixed, thereupon the laboratory examination of the stuff inside the
sample cloth parcels rather would not prove the charge relating to the
weight of the entire bulk seizure taking place, at the crime site, thus
from the alleged conscious and exclusive possession of the accused.
24. Contrarily, in case the entire bulk seizure is not homogeneously
mixed or when the narcotic drug(s) or psychotropic substance, does
become carried in different vials or in different packets, besides upon
the said mode(s) of carryings of (supra), becomes not homogeneously
mixed, thereupons, even if a fragment or a portion thereof becomes
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extracted from one vial or only from one packet, thus for creating a
residue parcel, it would beget the ill consequence of the accused
becoming entitled to an acquittal. Resultantly, when despite the evident
absence of apposite homogeneous mixings of the entire bulk, be it borne
in packets, containers or be it being carried in different vials, besides
when only a part of the fragment or portion of the seizure or only one
or two of the vials, yet the said extracted fragment becomes sent for
examination to the laboratory concerned, but the apposite affirmative
laboratory examination as becomes made vis-a-vis the stuff inside the
sample parcels, rather would not make the charge drawn against the
accused, thus for his allegedly exclusively and consciously possessing,
the entire seizure, thus also becoming efficaciously proven.
25. Conspicuously when for the drawing of an effective conclusion,
that the charge drawn against the accused for his allegedly consciously
and exclusively possessing, the entire bulk, but requires that only after
homogeneous mixing of the bulk seizure, taking place, be it of
psychotropic substance, in vials or in any other mode or be it with
respect of narcotic drugs carried in whatsoever mode, rather residues
therefroms becoming drawn, whereafter an affirmative finding on the
stuff inside the residues, is required to be made by the Chemical
Examiner concerned.
Sample procedure in respect of psychotropic substance
26. In case no batch number is mentioned, in the recovered
psychotropic substance, thus carried in the form of tablets/strips,
thereupon at least one of the tablets from all the relevant strips rather
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is to be extracted, as residue sample and the same is required to be sent
for testings being made thereovers, at the laboratory concerned.
However, in case batch number is mentioned in all the recovered bulk
strips, thereupon only one of the tablets in the entire haul is required to
be sent for testings being made thereovers, at the laboratory concerned.
However, the quantity of the sample to be derived from the bulk is to be
in terms of the provisions (supra), but with a further safeguard that not
only vis-a-vis the entire bulk but also vis-a-vis the sample parcel, the
relevant batch number is required to be made on the covers of each of
the sealed cloth parcels.
27. Therefore, the sampling procedure in respect of bulk seizure of
the apposite psychotropic substance, ordains that the making of the
bulk seizure, besides derivation of a sample parcel, therefroms would
be vitiated unless adherence becomes made to the hereinafter extracted
underlined canons.
"(v) It has also come in the evidence that there was no
batch number, name of manufacturer or other details
given on the bottles of Rexcof syrup and therefore, the
sample of one bottle taken, was also not in accordance
with the procedure laid down under the aforesaid standing
order. In view of the judgment of this Court in Harjinder
Singh (supra), the sealed sample cannot be held to be a
representative parcel of the entire bulk allegedly recover
from the appellant"
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27. Relevant portion of the judgment dated 24.01.2006 is reproduced as
under:-
"11. The Ld. Addl. PP for the State argued that on 10.4.94 Police
Party headed by S.I. Didar Singh received secret information regarding
the accused who were traveling in truck No.DIG-7027 alongwith poppy
husk concealed under the bags of Khal. On the basis of said secret
information, ruga was sent to the Police Station and then F.I.R. Ex. PF
was registered. That the Police Party laid naka at the disclosed place
and independent witness Daljit Singh was associated in the Police
Party. That from the perusal of testimony of PWs, it is evident that on
11.4.1994 at about 10.00 A.M. truck No. DIG-7027 which came from
the side of Village Sheikhan Majra was apprehended by the police and
at that time Kulwant Singh and Jaswant Singh escaped from the said
truck while Pargat Singh and Pala Singh were apprehended and the
said truck was found to be carrying 50 bags each containing 40 KGs of
poppy husk and the said bags were lying concealed under the bags of
Khal. That before effecting the search of the truck Parshotam Singh,
D.S.P. Mohali was
called at the spot, who disclosed to the accused about their legal right
of search. From any other Gazetted Officer of Magistrate. However,
accused reposed confidence in him. The Ld. Addl. PP for the State
further submitted that out of each bags two samples of 250 Grams each
of poppy husk were separated at the spot. The said samples and the
bags were sealed by S.I. Didar Singh with his seal bearing impression
'D.S.' and separate sample of seal, Ex.PB, was prepared. The said
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poppy husk was taken into possession vide memo, Ex. PG while truck
was taken into possession vide memo, Ex.PH. Both the accused were
formally arrested. That on return to the Police Station the case property
was produced before S.H.O. Jagtar Singh who also appended his seal
on the case property. That in order to prove the link evidence
prosecution examined PW2 & PW3 who proved their affidavits Exs.PC
& PD. The Ld. Addl. PP for the State submitted that subsequently
independent witness joined hands with the accused and, as such, he has
been given up by the prosecution. That the report of Chemical
Examiner is Ex.PU. The Ld. Addl. PP for the State submitted
that prosecution has been able to prove its case beyond doubt against
Pargat Singh.
12. On the other hand, the Ld. Defence counsel submitted that
compliance of provisions of Section 42 N.D.P.S. Act was not made by
the Investigating Officer. It is further submitted that even otherwise
prosecution story, seems to be highly doubtful. As per prosecution
version secret information was received at about 11-00 A.M. on
10.4.1994 and then the naka was laid, while the truck was apprehended
at 10-00 AM. On 11.4.1994. It is highly improbable that two of the
occupants of the truck, namely, Kulwant Singh and Jaswant Singh
succeeded in running away in presence of about 9/10 police officials,
that too during day time. The Ld. defence counsel further submitted that
prosecution has failed to prove link evidence in order to establish that
samples remained intact till the time they reached the office of
Chemical Examiner. That PW2 stated that the samples were taken on
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28.4.1994, whereas as per his affidavit the samples were taken to the
office of Chemical Examiner on 29.4.1994. The Ld. defence counsel
further submitted that PW2 failed to disclose as to which part of his
affidavit, Ex.PC, is correct as per his belief and which part is correct
as per his knowledge. The Ld. defence counsel further submitted that
PW1 Jagtar Singh kept his seal with him after use and even otherwise,
seals on the case property are illegible. The Ld. defence counsel
submitted that there is no independent corroboration to the prosecution
version. That ownership of the truck has not been proved and no
C.F.S.L. form was filled at the spot. That as per prosecution version
D.S.P. Parshotam Singh was called at the spot. However, the case
property is not bearing his seal impression. That even otherwise, no
offer in writing was made to accused by D.S.P. at the spot. That even
otherwise, there are material discrepancies in the statements of PWs
regarding the manner in which bags were weighed. That PW4 stated
that accused reposed confidence in him. On the other hand, PW6 stated
that accused opted for the search in presence of the Gazetted Officer.
The Ld. defence counsel further submitted that co-accused Kulwant
Singh who was convicted by the Ld. trial Court filed appeal which was
accepted by the Hon'ble High Court vide order dated 25.1.2001. That
in these circumstances, prosecution has failed to prove its case against
accused Pargat Singh who deserves to be acquitted.
13. I have considered the submissions made by the Ld. Addl. P.P. for
the State and Ld. defence counsel during arguments.
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14. It was a case of secret information. It has come into evidence that
immediately on the receipt of secret information ruqa was sent to the
police station by the Investigating Officer and then special reports were
sent to Ilaga Magistrate and Higher Police Officials. The concerned
D.S.P. was also called at the spot by the Investigating Officer. So, it
cannot be said that provisions of section 42 N.D.P.S. Act were not
complied with in the case in hand. It is evident that D.S.P. Mohali,
namely, Parshotam Singh reached the place of recovery after getting
information. It has come into evidence that said D.S.P. gave option to
the accused to have search of truck from him or any other Gazetted
Officer or Magistrate. The said option even if oral was good enough
under the law. Even otherwise, such an option/offer was not required
under law as it was not a case of personal search of
the accused. The recovery of poppy husk was effected in presence of
independent witness Daljit Singh. The said independent witness was
given up by the prosecution being won over by the accused. It is
generally seen that in such like cases witnesses from the public show
reluctance to appear in the Court against the criminals due to fear. In
the case in hand, the said independent witness was not examined by the
accused in his defence. Even otherwise, the search of the truck was
conducted in presence of Gazetted Police Officer namely, D.S.P.
Parshotam Singh. So, it is immaterial if independent witness Daljit
Singh, has not been examined by the prosecution.
15. The statements of PW4, PW6 & PW7 are quite consistent and
trust worthy with regard to recovery of 50 bags of poppy husk. The Ld.
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defence counsel failed to put any dent in their statements. The
statements of the said police officials cannot be discarded merely
because they are from Police Department. It is evident that the search
of the truck No.DIG-7027 was conducted by the Investigating officer in
presence of D.S.P. Parshotam Singh. From the perusal of testimony of
PW4, PW6 and PWT, it is evident that 50 bags each containing 40 KGs,
of poppy husk were recovered from the said truck. Two samples of 250
Grams each were separated out of each of the said 50 bags. It is also
evident that the said samples and each bag containing 39.5 KGs of
poppy husk were sealed by the Investigating Officer with his seal
bearing impression 'D.S.'. After use the seal was handed over to
independent witness and the said poppy husk was taken into possession
vide memo, Ex. PG which bears attestation of D.S.P. Parshotam Singh.
It hardly matters if D.S.P. had not appended his seal on the case
property at the spot. The arrest memos of accused Pargat Singh and
Pala Singh, are also proved on the record. From the perusal of
testimony of PWl, it is evident that on return to the Police Station, case
property was produced before S.H.. of the concerned Police Station his
seal bearing impression 'J.S.' on the case property and then the case
property was deposited in the Malkhana. PWl also proved memo of
entrustment of case property, Ex. PA.
16. To prove the link evidence prosecution examined PW2 and PW3
who tendered their affidavits Exs. PC & PD respectively. From the
perusal of said affidavits, it is evident that 50 sealed samples were sent
to the office of Chemical Examiner on 28.4.1994 through Constable
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Mohinder Singh but objection was raised and said samples were
returned and then after the removal of objection the said samples were
again taken to the office of Chemical Examiner on 29.4.1994 and
deposited there. The above stated affidavits are duly verified and
attested as per the provisions of law. Even as per report of Chemical
Examiner, Ex.PU, it is clear that said samples were received in the
office of Chemical Examiner on 29.4.1994. After analysis the Chemical
Examiner gave is opinion that the said samples are of poppy heads.
There is nothing on the record to show that the samples were tampered
with at any stage, till they reached the office of Chemical Examiner. In
these circumstances, it hardly matters, if no C.F.S.L. form was filled at
the spot. It is natural that seals on the case property became illegible
or had been broken during the period of ten years as the recovery was
effected in 1994 whereas the evidence was recorded in the year 2004-
2005. It is also natural that minor discrepancies are bound to occur in
the testimony of PWs after the passage of time of ten years. There is
nothing unnatural in the prosecution story. Two of the occupants,
namely, Jaswant Singh and Kulwant Singh jumped from the truck and
escaped. Later on, Kulwant
Singh was arrested. There is ample evidence on the record that at the
time of recovery Pargat Singh was driving the truck while Pala Singh
was sitting with him near the driver's seat. From the perusal of record
it appears that the said truck was owned by Balwinder Singh son of
Kartar Singh, resident of village Havri, District Kaithal (Haryana).
From the perusal of judgment dated 23.8.1997 passed by the Court of
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Ld. Additional Sessions Judge, Rupnagar, it is evident that on
completion of trial accused Kulwant Singh and Pala Singh were
convicted under Section 15/51/85 N.D. P.S. Act. Aqainst the said
judament both of them filed appeal in the Hon'ble High Court. Appeal
filed by Kulwant Singh was accepted and he was acquitted on the
ground that prosecution failed to prove his identity. However, the
appeal filed by Pala Singh was dismissed as far his conviction was
concerned, however, his sentence of imprisonment was reduced. Thus,
accused Pargat Singh cannot take any benefit of the judgment dated
25.1.2001 passed by the Hon'ble High Court whereby Kulwant Singh
has been acquitted.
17. Accused Parqat Singh has taken plea that he has been falsely
implicated in this case. It is quite unbelievable that such a huge quantity
of poppy husk (50 bags weighing 40 KGs. Each), would be falsely
implanted on the accused. In this context reference be made to Jarnail
Singh & Others Vs. State of Punjab, 2002 (2) RCR (Criminal), Page
360 (Punjab & Haryana).
18. In the light of above discussion, it is held that prosecution has
proved its case beyond shadow of doubt against accused Pargat Singh.
Accused Pargat Singh is hereby convicted under Section 15/61/85
N.D.P.S. Now I am going to hear him on the quantum of sentence."
28. Learned trial Court has totally ignored the contradictions in the
examination of witnesses; that DSP did not seal all the case property; that the
property was sent to Chemical Examiner and there was no tampering. Further the
return of the samples from the Chemical Examiner in seal bearing English alphabet.
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29. A perusal of the record as referred to above shows that there is no
homogeneous mixing of the poppy-husk, which were 100 parcels sealed with his
seal impressions 'DS'.
30. There is no compliance of Section 52(A) of the Narcotic Drugs and
Psychotropic Substances Act, 1985. Section 52(A) of NDPS Act is reproduced as
under:-
"52A. Disposal of seized narcotic drugs and psychotropic
substances.-- [(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
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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
(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."
31. After perusing the whole record of this case, this Court finds the
following discrepancies/lack of investigation as per the statutory provisions and law
laid down by this Court as well as by the Hon'ble Supreme Court:-
i) Ex.PA is memo regarding production of case property i.e.
poppy husk, which is produced by SI Didar Singh (PW4) before
the Special Judge, wherein, it is stated that 203 bags of straws
were produced before him. SI Didar Singh, who was examined
as PW4, in his statement, stated that 50 bags of poppy husk were
recovered from the truck, which were concealed under the bags
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of Khal. All the said bags were weighed and their weight was 40
Kgs. each. From every bag, two samples each of 250 grams were
separated. The said 100 samples were converted into parcels and
they were sealed by him with his seal bearing impressions 'DS'.
In the same statement, he further stated that 50 bags each
containing 39.5 Kgs. of poppy husk were also sealed by him with
his seal bearing impressions 'DS', whereas, HC Avtar Singh,
who was examined as PW6, in his statement, stated that there
were total 253 bags lying in the truck, which is contradictory.
ii) A perusal of the record as referred to above shows that
there is no homogeneous mixing of the poppy-husk, which was
in 40 bag parcels.
iii) There is no compliance of Section 52(A) of the Narcotic
Drugs and Psychotropic Substances Act, 1985
iv) A perusal of FSL report as referred to above does not
reveal the number of seals and number of sample receipts and
there is no return by chemical examiner by further sealing it with
English alphabet.
v) Further, there is non-production of parcel containing
residue as separated from the bulk, at the crime site before the
learned Trial Court along with FSL report.
Since there are grave lapses in the prosecution case, therefore, the
benefit of doubt is liable to be given to the accused/appellant.
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FINAL ORDER
32. In view of the above discussion this Court finds merit in the present
appeal and is constrained to allow it. Consequently, the present appeal is allowed.
Impugned judgment and order of sentence dated 24.01.2006 convicting and
sentencing the appellant by learned trial Court are quashed/set-aside. The appellant
is acquitted of the charges framed against him. The fine amount, if any, deposited
by him, be in accordance with law, refunded to him. The personal and surety bonds
of the accused shall stand forthwith cancelled and surety stands discharged. The
case property be dealt with in accordance with law, but after the expiry of period of
limitation for filing of an appeal or revision if any and records of the learned trial
Court be sent down forthwith.
33. The appellant, if in custody, and, if not required in any other case, be
forthwith set at liberty. Release warrants be prepared accordingly.
34. Pending applications, if any, also stand disposed of.
(SURESHWR THAKUR) (SUDEEPTI SHARMA)
JUDGE JUDGE
13.11.2024
adhikari
Whether speaking/non-speaking : Speaking
Whether reportable : Yes
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