Judgment:
CRA-S-2605-SB of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRA-S-2605-SB of 2009 (O&M) Date of decision:
08. 05.2014 Surjit Singh ........ Appellant Versus State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH1 Whether Reporters of the local papers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the digest?. Present: Mr. P.K.S. Phoolka, Advocate for the appellant. Mr. Mehardeep Singh, DAG, Punjab. R.P. NAGRATH, J.
This is an appeal against conviction of the appellant for offence under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'). Being the commercial quantity, appellant was sentenced to undergo rigorous imprisonment for ten years and to pay fine of ` 1 lac, in default of payment of fine to further undergo rigorous imprisonment for one year .
2. The prosecution story as emerged during trial is that on 11.01.2007, a police party headed by PW-1 SI Harpal Singh Station House Officer (SHO) of Police Station Sadar, Mansa was present at bus-stand of village Bhaini Bagha for patrolling. Kartar Jitender kumar 2014.05.19 16:50 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2605-SB of 2009 (O&M) -2- Singh son of Karnail Singh resident of village Khukhar Kalan met the police party and was associated. The police party thereafter proceeded towards village Burj Hari on the track of canal minor. They spotted two persons sitting on gunny bags in the pits at a distance of half a kilometer from the Canal Rest House. One of those culprits managed to escape whereas the appellant was apprehended at the spot. The culprit who fled from the spot was identified by HC Gurdip Singh as Dheera Singh.
3. PW-1 told appellant that some intoxicating substance was suspected in the gunny bags which were required to be searched. The appellant was offered whether he wanted the search to be made from a gazetted officer or a Magistrate. The appellant opted the search to be made in the presence of a gazetted officer. Consent memo Ex. P-1 of appellant was prepared which was thumb marked by him and attested by Kartar Singh the independent witness and ASI Gurbachan Singh.
4. A message was flashed to Police Station Sadar, Mansa for sending some gazetted officer at the spot. It is testified by PW- 1 that after one hour DSP Wazir Singh (PW-3) reached the spot and disclosed his identity to the appellant. PW-3 also gave option to the appellant for search to be made before him or magistrate but the appellant reposed confidence in the DSP. Again the consent memo Ex. P-2 was prepared by the DSP.
5. PW-1 further stated that each of the gunny bag was Jitender kumar found containing 30 kgs. of poppy-husk. He separated 100 gms. of 2014.05.19 16:50 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2605-SB of 2009 (O&M) -3- poppy-husk from each of the gunny bag as samples and converted the same into separate parcels. The sample parcels and the remaining gunny bags were sealed with seal 'HS' of PW-1 and sample impression of the seal is Ex. P-2. According to PW-1 and PW-3, the seal after use was handed over to Kartar Singh the independent witness. The case property was taken into possession by preparing memo Ex. P-3 and rough site plan Ex. P-4 was also prepared.
6. PW-1 sent ruqa Ex. P-7 to the police station and FIR Ex. P-8 was registered. It is also the prosecution story as testified by PW-1 that special report in writing (Ex. P-8) was sent to senior officers in compliance of Section 57 of the Act. On receipt of report of Chemical Examiner, the charge-sheet was presented before the Judge, Special Court.
7. The prosecution initially examined investigating officer as PW-1 and the trial was fixed for remaining evidence. In the meanwhile Dheera Singh co-accused was arrested and supplementary challan presented. Thereafter, fresh charge under Section 15 of the Act was framed by trial Court against the appellant and his co-accused.
8. The prosecution examined three witnesses in supports of its case. PW-2 HC Baljit Singh was entrusted with seven sample parcels to be deposited in the office of Chemical Examiner and he tendered his affidavit Ex. P-11 in this regard. Jitender kumar 9. The appellant and his co-accused denied all the 2014.05.19 16:50 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2605-SB of 2009 (O&M) -4- incriminating circumstances appearing in prosecution evidence against them in their examination under Section 313 Cr.P.C.
10. Learned trial Court granted benefit of doubt to Dheera Singh co-accused and acquitted him of the said charge. The appellant was held guilty and sentenced as aforesaid.
11. I have heard learned counsel for the appellant, the State counsel and the record of trial Court has also been perused with their able assistance.
12. The appellant's counsel challenged the conviction of appellant inter alia on the grounds:- (i) That the evidence of prosecution comprises only of official witnesses and the only independent witness allegedly joined was not produced; (ii) that the link evidence is not free form suspicion; and (ii) that there is non-compliance of Sections 50 and 55 of the Act.
13. On the other hand, learned State counsel has supported the findings of the trial Court. It was submitted that there was no ulterior motive with the police officials to falsely implicate the appellant in a case of heavy recovery of poppy-husk. It is also submitted that the non-examination of independent witness would not be of significance because the witness was given up as having been won over by the accused. Jitender kumar 14. With regard to applicability of Section 50 of the Act is 2014.05.19 16:50 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2605-SB of 2009 (O&M) -5- concerned the learned trial Court has properly dealt with this controversy to rebut the contention of appellant. It has been found that since the recovery was made from the pits and not on search of the person, Section 50 would not be attracted.
15. The present seems to be basically a one man show and various safeguards supposed to have been adopted were given a complete go-bye. It must be remembered that the offences under the Act prescribe minimum harsh punishment. It is the settled principle that stringent the punishment, stricter the proof.
16. Otherwise in the absence of ulterior motive the prosecution version cannot be discarded simply on the ground that only the official witnesses were examined. However, the case as set up by the prosecution on the face of it becomes difficult to be accepted.
17. PW-1 stated that on return to the police station he kept the case property with himself. But being the investigating officer himself, there should have been semblance of compliance of Section 55 of the Act, even if it is stated that this provision is only directory not mandatory. On return to the police station the case property could either be deposited with the MHC of police station to rule out any tampering or the same should have been produced before Incharge/SHO who could have put his own seal over it.
18. Section 55 of the Act says that an officer-in-charge of a police station shall take charge of and keep in safe custody, Jitender kumar pending the orders of the Magistrate, all articles seized under this 2014.05.19 16:50 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2605-SB of 2009 (O&M) -6- Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. (emphasis laid).
19. In certain cases it has been held that if the parcel is bearing seal of investigating officer and also the DSP who had come to the spot and puts his seal on the case property, there is substantial compliance of the provisions of Section 55 of the Act as DSP is an officer much senior in rank to the SHO of the Police Station. But in the present case, the DSP has not put his seal on the case property for unexplained reasons.
20. In Thandi Ram vs. State of Haryana, (2000) 1 SCC318before the Hon'ble Supreme Court, there was non-compliance of Sections 55 and 57 of the Act and the conviction of accused was set aside. In Gurbax Singh vs. State of Haryana, (2001) 3 SCC28 Hon'ble Supreme Court held that it is true that provision of Sections 52 and 57 are directory and violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. It was admitted in that case that Jitender kumar the seal which was affixed on the muddamal article was handed 2014.05.19 16:50 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2605-SB of 2009 (O&M) -7- over to the witness (PW-1) and was kept with him for 10 days. It was also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The prosecution also did not lead evidence whether the Chemical Analyser received the sample with proper intact seals. It was found as a matter of fact that investigating officer had not followed the procedure prescribed under Section 57 of the NDPS Act by making full report of all particulars of arrest and seizure to his immediate superior officer. In the facts of the said case and faulty investigation by the prosecution, it was found not safe to convict the appellant for a serious offence of possessing poppy- husk.
21. The above proposition would assume importance in the instant case because of serious contradiction that has appeared on record. As per prosecution story the seal after use on the parcels was handed over to Kartar Singh the independent witness at the spot. On return to the police station the case property was kept by the investigating officer/SHO in his own custody. PW-1 stated that on the next day he produced the case property before the Magistrate by submitting written application Ex. P9 and preparing the inventory Ex. P-10. The seal on the bags were broken and the representative samples of 100 gms. each of poppy-husk were separated from each gunny bag and these were again prepared Jitender kumar into sealed parcels by Ilaqa Magistrate with his seal bearing 2014.05.19 16:50 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2605-SB of 2009 (O&M) -8- impression 'SS' and also the seal impression 'HS' of PW-1. The Ilaqa Magistrate also signed on the sample seal. This is apparent from the form No.29 bearing signatures of Chief Judicial Magistrate and it is this form No.29 that was sent alongwith the sample parcels to be deposited in the office of Chemical Examiner. The sample seal impression/form No.29 is Ex. P-2. If the seal bearing impression 'HS' of PW-1 after use was handed over to Kartar Singh PW at the spot how could the same seal be used before the Ilaqa Magistrate on the representative samples when the case property was produced. This would bring serious doubt in the story of prosecution.
22. The present is undoubtedly a case where the version was that 100 gms. of the poppy-husk was prepared into seven sample parcels. However, the report of Chemical Examiner Ex. P-X relates to the test of sample containing 250 gms. of brown coloured material. Learned trial Court has found this to be a typographical mistake which was not the possible view in the absence of any explanation coming from the prosecution. Learned State counsel, however, submitted that in the form No.29 it is clearly stated that each sample parcel is containing 100 gms. of commodity and that was accepted by the laboratory as such without any objection and the learned trial Court was quite right in observing this to be a typographical mistake. This contention though attractive yet it cannot be accepted in view of the Jitender kumar suspicious factors noticed above. 2014.05.19 16:50 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2605-SB of 2009 (O&M) -9- 23. Learned appellant's counsel also contended that as per prosecution story the co-accused was identified by HC Gurdip Singh but HC Gurdip Singh was neither cited in the list of witnesses nor examined. That seems to have weighed the learned trial Court in finding the charge against co-accused to be doubtful.
24. From the above discussion, I find that the charge against the appellant could not be possibly held as established beyond doubt. As a sequel thereto the instant appeal is allowed, setting aside the judgment of conviction passed by learned trial Court, as a result of which the appellant stands acquitted of the charge framed against him. The appellant be set at liberty forthwith if not required in any other case. May 08, 2014 ( R.P. NAGRATH ) jk JUDGE Jitender kumar 2014.05.19 16:50 I attest to the accuracy and integrity of this document Chandigarh