Punjab-Haryana High Court
Dharambir vs Stat Eofhy on 9 September, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:118353-DB
CRA-D-439-DB-2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-439-DB-2005
Reserved on: 30.08.2024
Date of decision: 09.09.2024
DHARAMBIR
...Appellant
Versus
STATE OF HARYANA
...Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Jitender Dhanda, Advocate
for the appellant.
Mr. P.P. Chahar, Sr. DAG, Haryana.
****
SURESHWAR THAKUR, J.
1. The instant appeal is directed against the verdict made on
01.03.2004, upon Session Case No.25 NDPS of 1999, by the learned Addl.
Sessions Judge, Fatehabad, wherethrough he convicted the accused for a charge
drawn qua an offence punishable under Section 15(c) of the Narcotic Drugs and
Psychotropic Substances Act (hereinafter referred to as "the Act"). Moreover,
through a separate sentencing order of 03.03.2004, he proceeded to impose upon
the convict the substantive sentence of rigorous imprisonment for a period
lasting upto 12 years, besides imposed upon him, sentence of fine of
Rs.1,50,000/-, and in default of payment of fine amount, he sentenced the
convict to undergo rigorous imprisonment for a period of three years.
2. The accused-convict became aggrieved from the above drawn
verdict of conviction, and, also the consequent therewith sentence(s) (supra), as
became imposed. Resultantly, he instituted thereagainst the instant appeal
bearing No.CRA-D-439-DB-2005.
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FACTUAL BACKGROUND
3. The genesis of the prosecution case is that, on 21.07.1998 when
Bhim Singh, ASI of Police Station Rattia along with police party was present on
a road leading to Bhundar was near a brick kiln of Gora Lal, in the area of
Rettangarh for patrolling. At about 3:00 a.m., one TATA truck-608 was seen
coming from the side of Rattangarh. The truck was signaled to stop but the driver
of the truck took his vehicle to the side of the road towards brick kiln. After
stopping the vehicle, all the three occupants of the vehicle fled away. I.O. along
with other police officials tried to apprehend them but all the occupants of the
vehicle ran away taking benefit of darkness. After that, Investigating Officer
checked the vehicle bearing registration No.HR-20B-2333 and on suspicion, he
gave information through C. Ramesh Kumar requesting D.S.P. Fatehabad to
witness the recovery. After some time D.S.P. Charanjit Singh reached along with
his staff at the spot. D.S.P. Malvinder Singh @ Vazir, Vice-Sarpanch of Village
Rattangarh was also called at the spot. Thereafter, I.O. conducted the search of
the truck TATA 608 before the D.S.P. Sh. Charanjit Singh and Malvinder Singh,
Vice Sarpanch of village Rattangarh. 39 Bags of poppy straw were found
concealed beneath the 40 bags of stone chips. Accordingly, after removing the
bags of the stone chips, 39 bags of the poppy husk were recovered. The sample
of 100 grams each out of each of the bag was separated and was converted into
39 parcels and sealed with the seal of CS. On weighment the reminder poppy
husk was found 39 Kg. 900 grams in all 39 bags and all those 39 bags were also
sealed with the seal of CS of DSP. All the sealed samples along with case
property including residue, truck along with its documents, i.e. R.C., D.L. and
Insurance were taken into police possession vide separate recovery memo Ex.P3
and Ex.P5, which were attested by Charanjit Singh DSP and Malvinder Singh.
The Investigating Officer also prepared the rough site plan of the place of
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recovery with correct marginal notes. Thereafter, the I.O. recorded the statement
of the witnesses under Section 161 Cr.P.C. All the three accused were arrested by
May Ram S.I. CIA Staff, Hisar from Village Niana. After completing the
investigation at the spot, on return to the Police Station, the Investigating Officer
handed over the case property with the MHC.
Trial Court Proceedings
4. On completion of investigation, challan was filed in the learned trial
Court against the accused. On their appearance before the learned trial Court, all
the accused persons were charge sheeted for the commission of an offence
punishable under Section 15 of the Act. The said charge was read over and
explained to the accused in simple Hindi, to which they pleaded not guilty and
claimed trial.
5. Subsequently after the recordings of depositions of nine witnesses,
the learned public prosecutor closed the prosecution evidence but after tendering
the report of the FSL, to which Ex.P12 is assigned. After the closure of the
prosecution case, the learned trial Judge drew proceedings under Section 313
Cr.P.C., whereins, the accused pleaded innocence, and, claimed false implication.
However, they did not led any witness in their defence evidence.
Submissions of learned counsel for the convict-appellant
6. The learned counsel for the aggrieved convict-appellant has argued
before this Court, that the impugned verdict of conviction, and, the consequent
thereto order of sentence, thus 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.
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Submissions of the learned State counsel
7. Learned State counsel has argued that the impugned verdict of
conviction, and, consequent thereto sentence (supra), as became imposed upon
the convict by the learned trial Judge concerned, is meritworthy, as the same
does not suffer from any taint of any gross mis-appreciation or non-appreciation
of any evidence germane to the charge. Therefore, he contends that the impugned
verdict of conviction and consequent thereto sentence be maintained, and,
affirmed by this Court.
8. Through Ex.P3 recovery of poppy husk was made from the
offending vehicle Tata-608 bearing registration No.HR-20B/2333. Therefore,
thereby there was no requirement for the investigating officer concerned, to
beget compliance with the mandatory statutory provisions, as embodied in
Section 50 of the Act.
9. The contents of recovery memo (Ex.P3) become extracted
hereinafter.
"In the presence of the following witnesses, search of the vehicle
Tata-608 No.HR-20B/2333 has been conducted. The vehicle is loaded
with 40 bags of plastic containing pieces of white chips and below
them, 39 filled gunny bags have been recovered. Each bag of which on
checking by opening their mouth was found containing chura post. 100
gram of chura post as sample has been taken from each bag and
prepared 39 parcels and the remaining 39 bags when weighed with
spring weighing scale, each bag was found containing 39 kg 900
grams including the bag. After scaling the mouth of all the 39 bags, all
the bags and all the 39 parcels containing samples have been sealed
with the seal of CS by taking it from Sh. Charanjit Singh, DSP and the
seal after use and after retaining the sample seal, has been handed
over to Sh. Charanjit Singh, DSP. The 39 parcels of sample of chura
post, 39 bags containing residue duly sealed with the seal of CS and 40
bags of chips along with the vehicle Tata 608 No.HR-20B/2333, have
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been taken into police possession as a piece of evidence. Signatures of
the witnesses have been obtained on the memo."
10. A reading of the recovery memo thus reveals that, DSP (PW-4) put
his seal bearing impression 'CS' on the sample parcels, as well as, on the residue
parcel, but the numbers' of seal impressions embossed on such parcels rather
remains unspoken thereins.
11. Though the DSP concerned, also stepped into the witness box as
PW-4, but in his examination-in-chief he has only spoken that he had embossed
his seal impressions 'CS' on the parcels, but he yet omitted to speak qua the
numbers' of such embossed seals impressions, rather on the apposite cloth
parcels.
12. However, a reading of the report of the FSL concerned, as becomes
enclosed in Ex.P12, contents whereof are extracted hereinafter, though rather
vividly reveals, that the 39 sealed cloth parcels as became forwarded there by
DSP (H.Q.) Fatehabad, thus became received there. Though it is further
expressed therein that each became sealed with 3 seals of 'CS'. However, the
above made narrations in the report of the FSL concerned, do not completely
tally with the speakings, as made by the prosecution witnesses concerned, thus in
respect of the numbers' of the seal impressions, as became made on the apposite
cloth parcels, especially when the numbers of the seal impressions, as made on
the cloth parcels concerned, remain unspoken by the prosecution witnesses
concerned, nor became spoken in the recovery memo (supra). Therefore, but
obviously it cannot to be concluded, that the enclosed residue in the cloth
parcels, which became removed from the bulk, for examinations thereons being
made, by the FSL concerned, becoming completely related or being compatible,
to the numbers' of the seal impression, as purportedly made thereons, as the said
apposite numbers become spoken only in the report of the FSL concerned, but
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remains unspoken either by the PWs concerned, nor become spoken in the
recovery memo Ex.P12.
Xxx
DESCRIPTION OF SEAL(S)
Thirty nine 39 sealed cloth/paper parcel(s) each with 3 seals of C.S.
and ____________ containing the exhibit 1 to 39.
xxx
RESULTS
Qualitative Tests:- Ex-1 to Ex-39
Meconic Acid: Present Thebaine: Present
Morphine: Present Tapaverine: Present
Codeine: Present Narcotine: Present
Quantitative Tests:-
Morphine Percentage: ___
Weight of the Sample Returned: Approx. 80 gram (Ex.-1 to Ex.-21)
OPINION: The samples (Ex.-1 to Ex-39) were identified as poppy
straw (chura post) of (illegible).
Note: After exam, the exhibits have been sealed with the seal of SSO
(illegible)/FSL.
Sd/-
S.K. NAGPAL
Senior Scientific Officer (General)
cum-ex-officio Asstt. Chemical
Exminer to the Govt; of Haryana,
Forensic Science Laboratory
Madhuban (Karnal)"
13. The underlined hereinabove expressions occurring at the top of the
report of the FSL (Ex.P12), whereins, occur speakings about the numbers' of
seals, as made on the cloth parcels concerned.
14. Reiteratedly the hereinabove underlined expressions, as occur at the
top of the report of the FSL, but for lack of (supra) inter se synchronicity, with
the incriminatory examination, as made on the stuff inside the cloth parcels,
therebys does not make the accused to be inculpable and/or rather therebys there
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occurring snappings of apposite inter se complete connectivity inter se the
descriptions made on the recovery memo with the ones, as become made in the
hereinabove underlined portion of report of the FSL.
15. Reiteratedly, therebys the prosecution has failed to prove the charge
which was completely dependent upon the result of the examination made on the
stuff enclosed in the residue cloth parcel, as became sent to the FSL, for
examination.
Final Order
16. 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
become 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 accordingly.
17. Records be sent down forthwith.
18. The miscellaneous application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR)
JUDGE
09.09.2024 (SUDEEPTI SHARMA)
Ithlesh JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable: Yes/No
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