Punjab-Haryana High Court

Partap Singh vs State Of Punjab on 21 November, 2024

Author: Sureshwar Thakur

Bench: Sureshwar Thakur, Sudeepti Sharma

                            Neutral Citation No:=2024:PHHC:153368-DB




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CRA-S-2765-SB-2013 (O&M)


        In the High Court of Punjab and Haryana at Chandigarh

1.                                                CRA-D-825-DB-2013 (O&M)
                                                  Reserved on: 13.11.2024
                                                  Date of Decision: 21.11.2024

Partap Singh                                                    ......Appellant

                                         Versus

State of Punjab                                                 ......Respondent

2.                                                CRA-S-2765-SB-2013 (O&M)

Meeta Singh                                                       ......Appellant

                                         Versus

State of Punjab                                                 ......Respondent


CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
       HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present:    Mr. L.S.Sekhon, Advocate
            for the appellant(s).

            Mr. Maninderjit Singh Bedi, Addl. A.G., Punjab.
                     ****

SURESHWAR THAKUR, J.

1. Since both the appeals (supra) arise from a common verdict,

made by the learned trial Judge concerned, hence both the appeals (supra)

are amenable for a common verdict being made thereons.

2. Both the appeals (supra) are directed against the impugned

verdict, as made on 11.7.2013, upon Sessions Case No. 278 of 31.8.2010, by

the learned Judge, Special Court, Sangrur, wherethrough in respect of

charges drawn against the accused-appellants qua offences punishable under

Sections 15 and 25 of the Narcotic Drugs and Psychotropic Substances Act,

1985 (hereinafter referred to as "the Act"), the learned trial Judge concerned,

proceeded to record a finding of conviction under Section 15 of the Act,

against both the accused-appellants. Furthermore, accused-appellant Partap 1 of 14

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Singh became also convicted under Section 25 of the Act.

3. Moreover, through a separate sentencing order dated 12.7.2013,

the learned trial Judge concerned, imposed upon, the convicts-appellants

both sentence(s) of imprisonment as well as sentence(s) of fine, but in the

hereinafter extracted manner:

"x x x x Keeping in view the entire facts and circumstances, the convict Partap Singh alias Baljit Singh alias Kala and Meeta Singh are sentenced to undergo rigorous imprisonment for 10 years each and to pay Rs. 10,000/- each as fine under Section 15 of the Act. In default of payment of fine, they shall further undergo rigorous imprisonment for two years each. Accused Partap Singh alias Baljit Singh alias Kala is also sentenced to undergo rigorous imprisonment for 10 years and to pay Rs. 1,00,000/- as fine under Section 25 of the Act. In default of payment of fine, he shall further undergo rigorous imprisonmnent for two years. "

4. The period of detention undergone by the convicts, during the

investigations, and, trial of the case, was, in terms of Section 428 of the

Cr.P.C., rather ordered to be set off, from the above imposed sentence(s) of

imprisonment.

5. The accused-convicts become aggrieved from the above drawn

verdict of conviction, besides also, become aggrieved from the consequent

therewith sentences of imprisonment, and, of fine as became imposed, upon

them, by the learned convicting Court concerned, and, hence have chosen to

institute thereagainst the instant criminal appeals.

Factual Background and Investigation proceedings

6. The genesis of the prosecution case, becomes embodied in the

appeal FIR, to which Ex. PD is assigned. The narrations carried in

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Ex. PD, are that on 05.11.2009, SI Amritpal Singh while posted as SHO

P.S.Sadar, Malerkotla, along with HC Sinder Singh, HC Jasbir Singh and

HC Sharif Mohd., on official vehicle, bearing registration No.PB-13U-7894,

being driven by HC Gurmail Singh was present at T-Point Dulwan Kalan,

Sandaur in connection with patrolling duty, where ASI Simranjot Singh,

Incharge Police Post Sandaur along with HC Jagtar Singh SPO Jagroop

Singh and SPO Malkiat Singh have also come present on an official vehicle

bearing registration No.PB-13N-0446, being driven by C. Davinder Singh,

in connection with Nakabandi. They were also joined in the police party

headed by SI Amritpal Singh. They started checking of suspected persons as

well as of the vehicles. At about 7.15 P.M, a vehicle make Scorpio bearing

registration No.DL-3C-AJ-4743 from the side of village Dulman came there,

which was signaled to stop by C. Davinder Singh with the help of search

light. The above said Scorpio was stopped at a distance of 15-20 karms from

the police party. Two persons alighted from the above vehicle, and fled

away. The person who was driving the Scorpio was identified as Baljit

Singh alias Kala son of Jang Singh resident of village Jollian and the second

person was identified as Meeta Singh son of Balbir Singh, resident of village

Jhaner, by C. Davinder Singh at the spot. SI Amritpal Singh asked C.

Davinder Singh and SPO Jagroop Singh to chase them. Thereafter, SI

Amritpal Singh with the help of fellow police officials conducted search of

the above Scorpio, which led to recovery of three poly bags, mouth of which

were tied with jute thread. SI Amritpal Singh opened the above said three

bags, which led to the recovery of poppy husk. The bags were marked as Sr.

Nos.1 to 3. From each bag, two samples of 250 gms. each were separated,

and, separate parcels were prepared. On weighment, each bag was found to

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be containing 39.5 kgs of poppy husk, which were also converted into a

separate parcels. The samples were marked as Sr. Nos. 1,2,3 and 1A, 2A and

3A. Subsequently, all the sample parcels and bulk parcels were sealed by SI

Amritpal Singh with his seal bearing impression 'APS'. Specimen of the seal

Ex.P1 was prepared separately. Seal after use was handed over to ASI

Simranjot Singh. All the sample parcels along with bulk parcels, specimen

seal and Scorpio bearing registration No. DL-3C-AJ-4743 were taken into

possession vide recovery memo Ex.PB, which became attested by ASI

Simarnjot Singh, and, HC Shinder Singh. SI Amritpal Singh prepared ruqa

Ex. PC and sent the same to the Police Station concerned, on the basis of

which formal FIR Ex. PD was registered. Rough site plan of the place of

recovery Ex. PE was prepared. Report under Section 57 of the Act Ex.PF

was also prepared at the spot.

7. On return to the police station, witnesses and entire case

property were produced before officiating SHO ASI Sant Singh, who

verified the facts of the case, interrogated the accused and affixed his seal

bearing impression "SS" on the parcels as well as on sample seal chit and

attested it along with case property. Thereafter, on the directions of ASI Sant

Singh, Investigating Officer deposited case property with MHC Manjit

Singh.

8. On 06.11.2009, SI Amritpal Singh withdrew the case property

from MHC Manjit Singh and produced the same before Sh.Pushpinder

Singh, learned Judicial Magistrate Ist Class Malerkotla and moved an

application Ex.PG. The learned Magistrate after breaking the previous seals

and taken out three representative samples from the three bulk parcels and

sealed the samples as well as bulk parcels with his seal bearing impression

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PS as well as seal of Investigating Officer bearing impression APS.

Photographs of the case property was also taken in the Court and the Court

passed order Ex.PH and Ex.PJ. The investigating officer concerned, moved

an application Ex. PA to get the order of the Court of learned Chief Judicial

Magistrate, Sangrur and to deposit the case property in Judicial Malkhana

and the learned Chief Judicial Magistrate, Sangrur passed order Ex.PA/1.

Owing to paucity of space in the Judicial Malkhana, the Investigating

Officer on returning to the police Station, deposited the case with MHC. On

05.05.2010 accused Meeta Singh was arrested in this case. On 25.05.2010

ASI Bachittar Singh arrested the accused Partap Singh alias Baljit Singh

alias Kala Singh.

9. After conclusion of investigations, and, on receipt of report of

Chemical Examiner the investigating officer concerned, proceeded to

institute a report under Section 173 of the Cr.P.C., before the learned Court

concerned.

Trial Proceedings

10. The learned trial Judge concerned, made an objective analysis

of the incriminatory material, adduced before him. Resultantly, he proceeded

to draw charge against the accused-appellants, for the offences punishable

under Sections 15 and 25 of the Act. The afore drawn charges were put to

the accused-appellants, to which they pleaded not guilty, and, claimed trial.

11. In proof of its case, the prosecution examined 11 witnesses,

and, thereafter the learned Public Prosecutor concerned, closed the

prosecution evidence. After the closure of prosecution evidence, the learned

trial Judge concerned, drew proceedings, under Section 313 of the Cr.P.C.,

but thereins, the accused pleaded innocence, and, claimed false implication.


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The accused led two defence witnesses into the witness box.

12. As above stated, the learned trial Judge concerned, proceeded to

convict the accused-appellants for the charges (supra), as became drawn

against them, and, also as above stated, proceeded to, in the hereinabove

manner, impose the sentence(s) of imprisonment, as well as of fine, upon the

convicts-appellants.

Submissions of the learned counsel for the appellants

13. The learned counsel for the aggrieved convicts-appellants has

argued before this Court, that the impugned verdict of conviction, and,

consequent therewith order of sentence, require an interference. He supports

the above submission on the ground, that it is based on a gross

misappreciation, and, non-appreciation of evidence germane to the charge.

Submissions of the learned State counsel

14. On the other hand, the learned State counsel has argued before

this Court, that the verdict of conviction, and, consequent therewith

sentence(s) (supra), as become imposed upon the convicts, is well merited,

and, does not require any interference, being made by this Court in the

exercise of its appellate jurisdiction. Therefore, he has argued that the instant

appeals, as preferred by the convicts, be dismissed.

Analysis of the case

15. Through recovery memo Ex. PB, the recovery of the contraband

became allegedly recovered from the site concerned. In proof of the

prosecution case, SI Amritpal Singh stepped into the witness box as PW-8,

and, in his examination-in-chief, he made speakings thereins, which concur

with the contents of the appeal FIR, to which Ex. PD is assigned.

16. The prosecution though has been able to lead cogent evidence,

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in proof of the recovery of the seizure, thus being effected from the crime

vehicle, at the crime site, and, the same thus being sealed with the relevant

seal impressions. Moreover, though the prosecution has also been able to

cogently establish, that the sealed cloth parcels, became deposited in the

malkhana concerned. In addition, though the prosecution has been able to

establish, that the case property travelled in an untampered condition to the

FSL concerned.

17. In addition, a reading of the report (Ex.PZ), as made by the FSL

concerned, whereto the relevant seizures became sent for an examination

being made of the stuff inside the sealed cloth parcels, though reveals, that

the examined stuff inside the sealed cloth parcels, as became sent to it for

examination, thus being the powder of poppyhead. The said report is ad

verbatim extracted hereinafter.

"x x x x The exhibit marked here 9-P Nov.-09 to 11-P Nov.-09 was received on 10.11.09 with the particulars overleaf. The seal of the exhibit was intact on arrival and agreed with the specimen seal sent. The exhibit remained in my safe custody after its receipt till the time its analysis was started.

The analysis of the sample marked 9-P Nov.-09 to 11-P Nov.-09 is as under:-

9-P-Nov.-9 Macroscopic - Light brown coarse powder of poppyhead.

             Meconic Acid          - Present
             Morphine              - Present
                                     10-P-Nov.-9
             Macroscopic           - Light brown coarse powder of poppyhead.
             Meconic Acid          - Present
             Morphine              - Present
                                     11-P-Nov.-9
             Macroscopic           - Light brown coarse powder of poppyhead.
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             Meconic Acid        - Present
             Morphine            - Present

Opinion:- The analysis indicates that the contents of the exhibit marked here 9-P Nov.-09 to 11-P Nov.-09 are of Poppyhead"

18. Be that as it may, though a reading of the report (supra) of the

FSL also discloses, that the sealed cloth parcels, became received there,

hence with the seal impressions thereons being intact. However, the

chemical examiner at the FSL concerned, after making examinations of the

stuff inside the sealed cloth parcels, and, thereafter his drawing the report

(supra), yet omits to mention in the report Ex. PZ, about his re-enclosing the

examined stuff inside the cloth parcels, and, his thereons affixing the seals of

the FSL concerned.

19. The above was required to be mandatorily done, as, thereupon

the imperatively required to be proven, thus unbroken links in the chain of

incriminatory evidence, commencing from the seizure being made from the

crime site, through recovery memo Ex.PB, and, lasting upto the production

of the case property in Court, thus therebys would become convincingly

proven, rather to remain unsnapped or unbroken. In the above event alone

the charge drawn against the accused would be concluded to become

cogently established. However, as above stated, contrarily for want of the

chemical examiner concerned, after making examination(s) of the stuff

inside, the sealed cloth parcels, thus re-enclosing the examined stuff inside

the cloth parcels, and, his further failure to emboss thereons, rather the seals'

of the FSL concerned, whereafters the examined stuff after retrievals from

the malkhana concerned, was to be produced in Court, for its being thus

shown to the investigating officer concerned, for thereby thus, on evident

surgingsforth of the above requisite primary evidence, rather the charge

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drawn against the accused, could be concluded to be convincingly proven,

rather for want supra the charge would stagger.

20. Be that as it may, sample parcels Ex. MO8 to Ex. MO13

became produced in the Court, besides bulk parcels Ex. MO14 to Ex. MO16

also became produced in the Court. However, sample parcels Ex. MO8 to

Ex. MO13 rather cannot be related to the results of the examinations, as

became made on the parcels, as became sent to the laboratory concerned.

The reason for stating so, becomes comprised in the trite factum, that since

after examination(s) of the stuff inside the sealed cloth parcels, the same

never became re-enclosed in the cloth parcels, nor the seal impression of the

FSL concerned, became made thereovers. Resultantly, therebys it may be

concluded that neither the same sample parcels were ever sent to the

laboratory concerned, and/or if they became sent, they for the above stated

infirmity, cannot be declared to be related to the supra results of the

examinations, as became made thereovers. Therefore, benefit of doubt is to

be assigned to the appellants.

21. Resultantly, reiteratedly when scope is, thus left for an

inference qua either the case property, thus not relating to the report (supra)

of the FSL concerned, and/or to the enclosures inside Ex. MO8 to Ex.

MO13, being introduced therein, thereby the report of the FSL (supra),

rather looses its evidentiary vigour. A further scope is also left, thus to infer

that the case property, if any, became tampered with. Moreover, much scope

is also left for the drawing of an inference, that the case property other than

the one related to the charge drawn against the accused, thus became

produced in Court. As but a natural corollary, when the primary evidence for

proving the charge drawn against the accused, does come under a cloud of

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deep suspicion. Resultantly, this Court is constrained to conclude, that the

charge drawn against the accused did not come to be cogently established.

22. Lastly, since this Court while answering the substantial question

of law sent to the larger Bench of this Court, in case No. CRA-S-5190-SB-

2015 titled as "Deepak Kumar V. State of Punjab", thus has thereins

expostulated that; 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.

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, 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, 10 of 14

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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 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, taking place be it borne in packets, containers or be it being carried in different vials, besides when only a part or the fragment or portion of the seizure or only one or two of the vials, becoming extracted from the bulk, yet the said extracted fragment when 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.

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25. Conspicuously when for the drawing of an effective conclusion, that the charge drawn against the accused qua 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."

23. Moreover, when evidently in the instant case, there is no

mentioning of takings place of homogeneous mixing of the entire bulk

seized from the offending bulk, before taking sample parcels therefroms,

hence the charge drawn against the accused appertaining to the weight of the

entire seizure, de hors affirmative results being made in respect of the stuff

inside the residue sample parcels, as, sent to the laboratory concerned, thus

is not cogently proved.

24. Moreover, 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, thus becomes spelt the imperative

sine qua non, rather requiring to become cogently proven hence for therebys

the charge drawn against the accused becoming declared to become

unflinchingly proven. However, since after the examination(s) being made of

the stuff inside the sample parcels, thus by the FSL concerned, rather the

latter did not re-enclose them in the sealed cloth parcels, hence carrying

thereons the seals' of the FSL concerned. Moreover, when the said sample

parcel(s) became never returned to the office wherefrom they generated nor

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when they became produced in Court.

"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."

25. Consequently, since the expostulation of law carried in verdict

(supra), remains unsatiated thereby the accused become entitled to an

acquittal.

26. The said view is also supported by a judgment rendered in case

titled as "Gaunter Edwin Kircher V. State of Goa, Secretariat Panji, Goa",

Criminal Appeal No.642 of 1991, decided on 16.03.1993, relevant

paragraph whereof becomes extracted hereinafter.

"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."

Final order

27. The result of the above discussion, is that, this Court finds merit

in both the appeals, and, is constrained to allow them. Consequently, both

the appeals are allowed. The impugned judgment convicting, and,

sentencing the appellants, and, as becomes recorded by the learned trial

Judge concerned, is quashed, and, set aside. The appellants are acquitted of

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the charges framed against them. The fine amount, if any, deposited by

them, be, in accordance with law, refunded to them. The personal, and,

surety bonds of the accused shall stand forthwith cancelled, and, discharged.