Punjab-Haryana High Court

Gulshan Kumar vs State Of Punjab on 23 October, 2024

Author: Sureshwar Thakur

Bench: Sureshwar Thakur, Sudeepti Sharma

                            Neutral Citation No:=2024:PHHC:139390-DB




CRA-S-1527-SB-2012 (O&M)                    -1-



        In the High Court of Punjab and Haryana at Chandigarh

                                            CRA-S-1527-SB-2012 (O&M)
                                            Reserved on: 4.10.2024
                                            Date of Decision: 23.10.2024

Gulshan Kumar                                                   ......Appellant

                                         Versus

State of Punjab                                               ......Respondent

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

Present:     Mr. Shubham Chandel, Advocate
             for the appellant.

             Mr. Kunwarbir Singh, AAG, Punjab.
                      ****

SURESHWAR THAKUR, J.

1. The instant appeal is directed against the impugned verdict, as

made on 14.1.2012, upon Sessions Case No. 168 of 9.1.2005, by the learned

Judge Special Court, Sangrur, wherethrough in respect of a charge drawn

against the accused qua an offence punishable under Section 22 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 against the accused-appellant. Moreover, through a

separate sentencing order of even date, the learned trial Judge concerned,

imposed upon, the convict both sentence(s) of imprisonment as well as

sentence(s) of fine, but in the hereinafter extracted manner:

               "Name of accused Under Section           Sentence
               Gulshan Kumar             22 NDPS Act    To undergo rigorous
                                                        imprisonment for a period
                                                        of 10 years and also to
                                                        pay fine to the tune of Rs.
                                                        1 lac.      In default of
                                                        payment of fine to further
                                                        undergo           rigorous
                                                        imprisonment for one
                                                        year."
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2. The period of detention undergone by the convict, 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.

3. The accused-convict becomes aggrieved from the above drawn

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

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

him, by the learned convicting Court concerned, and, hence has chosen to

institute thereagainst the instant criminal appeal.

Factual Background and Investigation proceedings

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

appeal FIR, to which Ex. PG/1 is assigned. The narrations carried in Ex.

PG/1, are that on 9.10.2005 S.I Bhupinder Singh along with other police

officials H.C Avtar Singh, H.C Sukhdev Singh, C. Gurmit Singh and PHG

Lachhman Singh were going on scooters, motor cycles in connection with

patrolling duty. The police party was going on the mettled road towards

Truck Union, Malerkotla and when they reached near the gate of Punjab

State Tubewell Corporation, thereupon a person was seen coming on foot

from the front side. He was carrying a plastic bag on his head and on seeing

the police party, he became nervous and stopped all of a sudden. It was at

about 11.00 A.M. Thereafter S.I Bhupinder Singh along with the other

police officials nabbed the said person. On inquiry, he disclosed his name as

Gulshan Kumar son of Bachan Lal Caste Mahajan resident of Club Road,

Singla Street, Ward No. 16 Malerkotla. His physical appearance was that, he

was of the aged 35 years, height 5'2" having a cut mark on his forehead. He

was with his hair cut and his beard was also trimmed. In the meantime, a 2 of 11

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person namely Lal Singh son of Ujaggar Singh resident of Singh Sabha

Colony, Malerkotla came over there. He was joined in the police party. SI

Bhupinder Singh in the presence of the said witness and the police officials

told the said person that he suspected that he was was carrying some

contraband in the plastic bag and he also made him aware qua his legal right

for getting his search being conducted in the presence of a Gazetted Officer

or a Magistrate. Gulshan Kumar expressed that he reposed confidence in

him and he wanted the search to be conducted by him (the I.O). The consent

statement was recorded, which was signed by Gulshan Kumar and the

witnesses i.e Lal Singh and H.C Avtar Singh. The plastic bag was taken

down from the head of Gulshan Kumar. On opening the same, it was found

to be containing two cardboard boxes. One cardboard box was found to be

containing intoxicating injections without any label or mark. From each of

the box, 5 injections were taken as sample. The remaining injections were

counted and it came out to be 4090 injections. The same were put in the said

box itself. From the second cardboard box, it was found that it was

containing intoxicating injections mark G-Norphine, which were 27 small

boxes and containing 270 injections of G-Norphine, from which 5-5

injections were taken as samples and the remaining injections were put into

the same box. 248 strips of tablets mark Momolit were recovered, which

were 17360 tablets on counting. Two samples from each of the strips were

taken. Each strip was containing 70 tablets. The remaining tablets were

counted, which came out to be 17220 tablets. 143 strips of intoxicating

tablets make Lomotil were recovered and each strip was containing 70

tablets and the total tablets were 10010 tablets, out of which, two samples of

each strip were separated and converted into parcels.


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5. From the second cardboard box, another small plastic box was

recovered, which was found to be containing intoxicating powder, out of

which two samples of 20 gms each were taken. The remaining quantity was

weighed, which came out to be 2kgs and 210 gms. The intoxicating powder

was again put into the same plastic box. The intoxicating injections, the

tablets and the powder were duly sealed by the Investigating Officer with his

seal bearing impression 'BS'. Specimen of seal was prepared separately. The

seal after use was handed over to Lal Singh. The case property was taken

into possession vide recovery memo and the I.O has sent the ruqa for

lodging of the case under section 20/61/85 of Narcotic Drugs and

Psychotropic Substances Act though H.C Sukhdev Singh. The case property

was deposited with the M.H.C Gurmej Singh. Then on 10.10.2005, the case

property along with the accused were produced before the learned Illaqa

Magistrate. After passing of the order by the learned Illaqa Magistrate, the

case property was deposited in the Judicial Malkhana.

6. After conclusion of investigations, the investigating officer

concerned, proceeded to institute a report under Section 173 of the Cr.P.C.,

before the learned Court concerned.

Trial Proceedings

7. 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, for an offence punishable under Section

22 of the Act. The afore drawn charge was put to the accused, to which he

pleaded not guilty, and, claimed trial.

8. In proof of its case, the prosecution examined six witnesses,

and, thereafter the learned Public Prosecutor concerned, closed the

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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.

The accused also chose to adduce defence evidence, and led one witness into

the witness box.

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

convict the accused for the charge (supra), as became drawn against him,

and, also as above stated, proceeded to, in the hereinabove manner, impose

the sentence(s) of imprisonment, as well as of fine, upon the convict.

Submissions of the learned counsel for the appellant

10. The learned counsel for the aggrieved convict-appellant 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

11. 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 convict, 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

appeal, as preferred by the convict, be dismissed.

Analysis of the case

12. Through recovery memo Ex.PD, the recovery of the contraband

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

prosecution case, SI Bhupinder Singh stepped into the witness box as PW-3,

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

with the contents of the appeal FIR, to which Ex. PG/1 is assigned.

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

in proof of the recovery of the seizure, thus being effected 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.

14. A reading of the report (Ex. PO), 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 intoxicating substances. The said report is ad

verbatim extracted hereinafter.

            "x     x        x       x
             6.        Articles received           Five parcels each sealed with two
                                                   seals of B.S and HS alleged to contain
                                                   intoxicating material.
                                                   Seals on the parcels were intact and
                                                   tallied with the specimen seal
                                                   impressions.


            x      x        x       x
            8.     Identification and tests:-
           Ingredient present               Quantity (mgs) per ml/tablet/% in parcel
                                            No.
                                             1            2         3       4       5
           Oxytodis Units                         5           -         -    -       -
           Buprenorphine                          -       0.12          -    -       -
           hydrochloride
           Diphenoxylate                          -           -     1.2     1.1      -
           hydrochloride

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            Atropine sulphate                -             -   0.01   0.01    -
            Acetaminophene                   -             -    -      -     50%


                                                  Report

The contents of all the parcels No. 1 to 5 under reference have been analysed separately by chemical analysis. On the basis of analysis different ingredients along with their quantity present in these have been given at Sr. No. 8 (Identification and tests) of this report."

15. 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. PO, about his re-enclosing the

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

the FSL concerned.

16. 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. PD, and, lasting upto the production

of the case property in Court, thereby thus 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, 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, whereafter the examined stuff was to be produced in Court, 7 of 11

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for its being shown to the investigating officer concerned, for thereby thus,

on evident surging-forth of the above requisite primary evidence, rather the

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

proven.

17. Be that as it may, sample parcels Ex. P-2 to Ex. P-6 became

produced in the Court, besides bulk parcel Ex. P-7 also became produced in

the Court. However, sample parcels Ex. P-2 to Ex. P-6 and bulk parcel

Ex. P-7 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 appellant.

18. 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 sample parcels Ex. P-2

to Ex. P-6 and bulk parcel Ex. P-7, 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

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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 deep suspicion. Resultantly, this

Court is constrained to conclude, that the charge drawn against the accused

did not come to be cogently established.

19. 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

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."

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

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

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acquittal.

21. 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

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

in the appeal, and, is constrained to allow it. Consequently, the appeal is

allowed. The impugned judgment convicting, and, sentencing the appellant,

and, as becomes recorded by the learned trial Judge concerned, is quashed,

and, set aside. The appellant is acquitted of the charge 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, discharged. The case property be dealt with, in

accordance with law, but after the expiry of the period of limitation for the

filing of an appeal. The appellant, if in custody, and, if not required in any

other case, be forthwith set at liberty. Release warrants be prepared