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:139388-DB
CRA-D-1227-DB-2014 (O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
CRA-D-1227-DB-2014 (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 6.11.2013, upon Sessions Case No. 57 of 20.5.2009, by the learned
Judge Special Court, Sangrur, wherethrough in respect of a charge drawn
against the accused qua an offence punishable under Section 22(C) 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 under Section 22 of the
Act.
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 12 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. 1,25,000/-, besides
in default of payment of fine amount, he sentenced convict-appellant to
undergo rigorous imprisonment for a period of one year.
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3. 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.
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. PE/1 is assigned. The narrations carried in Ex.
PE/1, are that on 16.1.2009, at about 10.00 A.M., ASI Satnam Singh
alongwith ASI Sudiq Ali, HC Balwinder Singh, HC Nirmal Singh, HC
Jaspal Singh and HC Siara Singh were present at drain Adamwal road
Malerkotla on private scooter/Motorcycles in connection with patrolling and
for the checking of suspected persons, where one person was seen coming
on foot from the side of city Malerkotla. Upon asking his name and address
by ASI Satnam Singh, the said person told his name Gauri Shanker s/o Raja
Ram caste Gold Smith r/o Dheera wala Mohala Malerkotla. It was about
10.00 A.M. Thereupon, a Hindu gentleman came on a scooter bearing No.
PB-28B-4999 make Bajaj of white colour carrying two heavy cartons on rear
seat of the scooter by binding the with rubber tube. On suspicion, the
investigating officer, gave him a signal and stopped him with the help of co-
officials and enquired his whereabouts, upon which he disclosed his name as
Gulshan Kumar S/o Bachan Lal caste Aggarwal near Piple Wala Pump,
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Singla, Street ward No. 23 Malerkotla. ASI Satnam Singh told him that he
suspected some intoxicant substance in the cartons lying on the rear seat of
his scooter, and, that search of the said cartons along with the search of the
scooter is to be conducted, and, apprised him his legal right to get his search
being conducted in the presence of a Gazetted Officer or a Magistrate. Upon
which, the accused reposed confidence in ASI Satnam Singh. His consent
statement memo recorded separately, which became attested by accused
Gulshan Kumar and the witnesses. Subsequently, upon search of the carton,
a heavy envelop of polythene recovered which became checked by opening
it. From the said polythene envelop, 1000 Parvon Spas capsules were
recovered. On weighment, the weight of the said capsules were found to be
of 650 grams. 10-10 intoxicant capsules became separated and were put in
two separate plastic boxes, and, sample parcels were prepared. Remaining
980 intoxicant capsules were poured in the same polythene envelop and the
same were put in a separate plastic box, and, a separate parcel was prepared.
The above sample parcel were numbered as 1/1 and 1/2 and another parcel
containing 980 intoxicant capsules was numbered as 1. The ASI sealed
both the sample parcels of intoxicant capsules and the parcel containing 980
intoxicant capsules, with his seal bearing impression 'SS' and sample seal
was prepared separately. Thereafter ASI Satnam Singh untied the rubber
tube by which the cartons were tied on the rear seat of scooter. The cartons
were checked as per rules one by one. From the first carton, 120 phials of
intoxicant medicine were recovered on which REXCOF was written. Out of
the same, two phials of intoxicant medicine were taken as sample and a
parcel was prepared separately. Both the sample parcel number marked as
2/3 and 2/4 and remaining 118 phials of intoxicant medicine were put in the
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same carton and a separate parcel was prepared which became numbered as
marked 2. Both the sample parcels and plastic bag containing 118 phials of
intoxicant medicine were sealed with the seal bearing impression SS and the
sample seal was prepared separately. Thereafter upon search of another
carton, 120 phials of intoxicant medicine of above make recovered. Out of
these phials, two phials of intoxicant medicine were taken out and a parcel
was prepared. Both the parcels were marked as 3/5 and 3/6. Thereafter
remaining 118 phials of the intoxicant medicine were put in the plastic bag
alongwith carton, and, a separate parcel was prepared. The said parcel was
marked as 3. Thereafter the ASI concerned, sealed both sample parcels and
the plastic bag parcel containing 118 Phials of intoxicant medicine, with his
seal bearing impression SS and sample seal was prepared separately.
Thereafter upon checking of the scooter, intoxicant medicine phials of
COREX make packed in carton was recovered from the front dicky of the
said scooter, which on counting came to be 20 phials of intoxicant medicine.
Out of the recovered phials, two phials of intoxicant medicine were taken
out separately and separate sample parcels were prepared, which became
numbered as 4/7 and 4/8. Thereafter the remaining 18 Phials of intoxicant
medicine were put in the same carton and a separate parcel became prepared.
Thereafter the ASI concerned, sealed both the sample parcels of intoxicant
phials and the parcel containing 18 phials of intoxicant medicine, with his
seal bearing impression SS and a separate sample seal was prepared. All the
parcels, specimen of the seal and scooter were taken into possession vide
recovery memo Ex. PC, attested by the witnesses. Seal after use was handed
over to ASI Sudiq Ali. Ruqawas prepared and sent to police station, which
led to the registration of the FIR (supra).
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6. 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
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(C) 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 ten 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.
The accused also chose to adduce defence evidence, however, he did not
lead any 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
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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.PB, the recovery of the contraband
became allegedly recovered from the site concerned. In proof of the
prosecution case, SI Satnam Singh stepped into the witness box as PW-5,
and, in his examination-in-chief, he made speakings thereins, which concur
with the contents of the appeal FIR, to which Ex. PE/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. PW6/B), 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 intoxicant substance. The said report is ad
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verbatim extracted hereinafter.
" x x x x
7. Articles received Four parcels (marked 1 to 4 in this
laboratory) each sealed with one seal
of TSB, said to contain intoxicant
material.
The seals were intact and tallied with
the specimen seal impressions.
x x x x
Report
"The capsules and the contents of the bottles contained in
parcel-1 to parcel-4 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 parcel No.
Dextropropoxyphene 64.8 - - -
Hydrocholoride
Codeine Phosphate - 9.8 9.8 9.9
Chlorpheniramine - 3.8 3.8 3.9
Maleate
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. PW6/B, 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
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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.
17. Be that as it may, sample seals Ex. MO1 to Ex. MO8 became
produced in the Court, besides bulk parcels Ex. MO9 to Ex. MO12 also
became produced in the Court. However, sample seals Ex. MO1 to Ex.
MO8 and bulk parcels Ex. MO9 to Ex. MO12 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
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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 seals Ex. MO1
to Ex. MO8 and bulk parcels Ex. MO9 to Ex. MO12, 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 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
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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."
20. Consequently, since the expostulation of law carried in verdict
(supra), remains unsatiated thereby the accused become entitled to an
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.
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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
accordingly.
23. Records be sent down forthwith.
24. The miscellaneous application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
JUDGE
October 23, 2024
Gurpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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