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:139384-DB




CRA-D-34-DB-2013 (O&M)                     -1-



       In the High Court of Punjab and Haryana at Chandigarh

                                           CRA-D-34-DB-2013 (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 8.10.2012, upon Sessions Case No. 58 of 23.5.2009, 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.

2. Moreover, through a separate sentencing order of even date, the

learned trial Judge concerned, sentenced the convict-appellant to undergo

rigorous imprisonment for a period of 15 years for an offence punishable

under Section 22 of the Act, besides also imposed, upon the said convict-

appellant sentence of fine, as comprised in a sum of Rs. 1,50,000/-, besides

in default of payment of fine amount, he sentenced convict-appellant to

undergo rigorous imprisonment for a period of one year.

3. The period of detention undergone by the convict, during the

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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.

4. 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

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

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

PG/1, are that on 13.11.2008, ASI Darshan Singh while posted as Incharge

Police Post Himmatana, Police Station Malerkotla, along with HC Tarsem

Lal, HC Basheer and HC Hira Singh, in connection with patrolling duty and

checking of suspected persons were going from village Saddo Pur towards

village Mohammadgarh through metaled road. When the police party was

500 yards behind from railway crossing, within the revenue limits of village

Saddopur, then one Darshan Singh Chowkidar son of Sajjan Singh, resident

of village Fillod Khurd met the police party. He was joined in the police

Party. When ASI Darshan Singh was talking with him, then at about 5.00

P.M, a person was seen coming on scooter from the opposite side, who on

seeing the police party tried to turn back. On suspicion, he was apprehended

by ASI Darshan Singh. On inquiry, he disclosed his name as Gulshan Kumar

son of Bachan Lal, resident of Club Chowk, Ward No.24, Malerkotla. ASI

Darshan Singh told him that he (ASI Darshan Singh) suspected some

contraband in his scooter and he wanted to conduct his search as well as

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search of his scooter and apprised the accused of his right to get his search

being conducted in the presence of a Gazetted Officer or a Magistrate, who

can be called at the spot, but accused reposed confidence in ASI Darshan

Singh. Consent memo of the accused Ex.PA was recorded, signed by

accused, attested by HC Tarsem Lal and Darshan Singh Chowkidar.

Thereafter, ASI Darshan Singh conducted search of scooter bearing

registration No.PB-10BH-1587. From the front dickey of scooter, one

polythene envelope was recovered, from which 12 envelops of phenotil

tablets and 98 strips of Parvon Spas capsules were recovered. From the 12

envelops of phenotil tablets, all the tablets were taken out, and, upon

counting, those tablets were found to be 1200 in numbers. Two samples of

50-50 phenotil tablets were taken out and put into two separate plastic boxes

and converted into separate parcel. Remaining 1100 phenotil tablets and 12

empty envelops were put in a plastic box and the same was converted into a

parcel. From 98 strips of Parvon Spas Capsules, two strips were separated.

Each strip contains 10 capsules. Those capsules were taken out from the

strips. Two samples of 10-10 capsules each were put into two plastic boxes

and the same were converted into parcels. Remaining 96 strips of of Parvon

Spas capsules totalling 960 capsules along with two empty strips were put in

the same polythene envelope and put in a plastic box and converted into a

parcel. All the parcels were sealed by ASI Darshan Singh with his seal

bearing impression "DS". Sample seal was prepared. Seal after use was

handed over to HC Tarsem Lal. All the parcels, specimen of the seal and

scooter were taken into possession vide recovery memo Ex.PB, attested by

the witnesses. From the personal search of accused ₹ 3280/- and two

mobiles one make Nokia and one L.G were recovered, which were taken

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into possession vide personal search memo Ex.PC. Accused was arrested

vide memo Ex.PD and grounds of arrest were supplied to accused.

Information regarding the arrest of accused was given to his brother on on

his mobile vide memo Ex.PE, which was signed by the accused and attested

by witnesses. Ruqa Ex.PF was prepared and sent to police station, which led

to the registration of the formal F.I.R Ex.PG. Investigating Officer also

prepared rough site plan Ex.PH of the place of recovery.

6. On returning the police station ASI Darshan Singh produced the

accused, witnesses and the case property before SI/SHO Parminder Singh,

who verified the facts of recovery from the accused and the witnesses and

affixed his seal bearing impression PS on all the parcels and also on the

specimen seal and attested the same. On his direction ASI Darshan Singh

deposited case property with MHC Darshan Singh.

7. After conclusion of investigations, and, after receipt of the

report of the Chemical Examiner concerned, the investigating officer

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

before the learned Court concerned.

Trial Proceedings

8. 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.

9. In proof of its case, the prosecution examined nine witnesses,

and, thereafter the learned Public Prosecutor concerned, closed the

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

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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, however, he did not

lead any witness into the witness box.

10. 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

11. 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

12. 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

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

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

prosecution case, retired ASI Darshan Singh stepped into the witness box as

PW-1, and, in his examination-in-chief, he made speakings thereins, which

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

14. 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.

15. A reading of the report (Ex. PW5/A), 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            Two parcels (marked 1 and 2 in this
                                                    laboratory) each sealed with one seal
                                                    each of PS and DS, said to contain
                                                    intoxicant material.
                                                    The seals were intact and tallied with
                                                    the specimen seal impressions.



            x      x        x       x
                                                      Report

"The tablets and capsules contained in parcel-1 and parcel-2 referred above, have been analysed, separately, by chemical analysis. On the basis of analysis, the ingredients, along with their quantities found present in these are given below:-

Ingredient present Average Quantity in mg/tablets, or mg/capsules in parcel No. .

           Diphenoxylate                        2.4            -
           hydrochloride
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           Atropine sulphate             0.025     -
           Dextropropoxyphene              -      64.9"
           Hydrocholoride

16. 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. PW5/A, about his re-

enclosing the examined stuff inside the cloth parcels, and, his thereons

affixing the seals of the FSL concerned.

17. 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, 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,

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.

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18. Be that as it may, sample parcels Ex. MO1 to Ex. MO4 became

produced in the Court, besides bulk parcels Ex. MO5 and Ex. MO6 also

became produced in the Court. However, sample parcels Ex. MO1 to Ex.

MO4 and bulk parcels Ex. MO5 and Ex. MO6 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.

19. 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. MO1 to Ex. MO4 and bulk parcels Ex. MO5 and Ex. MO6, 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 deep

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

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

20. 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."

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

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

acquittal.

22. 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

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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

23. 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