Crl.
Appeal No.S-347-SB of 2003 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.
Appeal No.S-347-SB of 2003 DATE OF DECISION: 31.7.2014 Buta Singh and others ..........Appellants Versus State of Punjab ..........Respondent BEFORE:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY Present:- None for appellant No.1.
Mr.Amit Kashyap, Advocate for respondents No.2 and 4.
Mr.B.S.Sidhu, Advocate for respondent No.3.
Mr.Premjit Singh Hundal, AAG, Punjab.
**** DAYA CHAUDHARY, J.
The present appeal has been filed against the judgment of conviction and order of sentence dated 15/20.1.2003 passed by Judge Special Court, Bathinda, whereby, accused-appellants have been convicted for an offence under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentenced to undergo RI for a period of ten years each and to pay a fine of ` one lac each with default clause.
Briefly the facts of the case are that on 5.6.1999 SI Manjit Singh along with ASI Malkiat Singh and other police officials was going in Government Canter in connection with patrolling duty towards village Gehri POOJ.SHARMA201408.20 10:39 Crl.
Appeal No.S-347-SB of 2003 (2) Butter etc.One Bali Ram, independent witness was also with the patrolling party.
When the policy party was going towards Village Dhani by Kacha Path from Village Gehri Butter, the accused were found sitting under Shisham tree on the gunny bags.
On having suspicion, the Investigating Officer stopped the canter and apprehended the accused.
He asked the accused that he wanted to conduct the search of gunny bags over which they were sitting.
An option of search before some Gazetted Officer or Magistrate was given jointly.
All the accused opted to be searched from the Gazetted Officer.
A joint statement Ex.
PH of the accused was recorded, which was thumb marked by the accused and attested by PWs.
A wireless message was sent to Mr.Jaspreet Singh Sidhu, DSP(R).Bathinda, who reached at the spot.
He also gave joint offer to the accused for search before any other Gazetted Officer or Magistrate but they reposed confidence in him.
A Joint Statement Ex.
PA of accused was recorded, which was thumb marked by them and attested by PWs.
Then, on the direction of DSP, Investigating Officer searched the bags, which were 15 in numbers and all were found containing poppy husk.
250 grams of poppy husk was taken out as sample from each bag separately and the remaining bags on weighment were found to be containing 40 kgs of poppy husk in each bag.
All the 15 samples and 15 bags were sealed separately by the IO with his seal Ms.Seal impression Ex.P1 was separately prepared.
All the parcels and sample seal were taken into possession vide memo Ex.PB attested by PWs.
Personal search of the accused was conducted.
On preparing separate memos, which were attested by PWs, were sent to Police Station, on the basis of which formal FIR was registered.
Rough site plan was prepared and accused were arrested.
Statements of PWs were recorded and case property as well as accused were produced before Illaqa Magistrate and samples were sent to the Chemical Examiner.
POOJ.SHARMA201408.20 10:39 Crl.
Appeal No.S-347-SB of 2003 (3) Thereafter on completion of investigation, challan against accused persons was presented in the Court.
On appearance of the accused in Court, the copies of necessary documents, as required under Section 207 Cr.P.C., were supplied to the accused and thereafter they were chargesheeted under Section 15 of the Act, to which they pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined HC Hardev Singh (PW-1).DSP Jaspreet Singh (PW-2) and SI Manjit Singh (PW-3) and gave up Bali Ram PW as having been won over by the accused and closed the evidence after tendering report of Chemical Examiner Ex.
PN.
Statements of accused under Section 313 Cr.P.C.were recorded, wherein, they denied the allegations and pleaded innocence.
They took up the plea that they have falsely been implicated in this case as accused-Buta Singh gave an application against police officials.
In defence, the accused examined Constable Iqbal Singh (DW-1).On appreciation of evidence, the accused-appellants were found to be involved in the case and they were convicted and sentenced for an offence under Section 15 of the Act and sentenced to undergo RI for a period of ten years each and to pay a fine of ` one lac each with default clause.
The judgment of conviction and order of sentence passed by the Judge Special Court, Bathinda is subject matter of challenge in the present appeal.
It has been brought to the notice of the Court that appellant No.1-Buta Singh has expired during the pendency of appeal.
Accordingly, proceedings qua appellant No.1-Buta Singh stands abated.
Remaining three appellants, namely, Balbir Singh, Harbans Singh, Ram Pal @ Rami are on bail as their sentence was suspended during pendency POOJ.SHARMA201408.20 10:39 Crl.
Appeal No.S-347-SB of 2003 (4) of the appeal.
Learned counsel for the appellants have challenged the judgment of conviction and order of sentence by raising various grounds.
Learned counsel contends that all family members have falsely been implicated in this case.
Appellant No.1-Buta Singh, who expired during the pendency of appeal, was 64 years of age at the time of occurrence.
Appellant Nos.2 and 3 are sons of appellant-Buta Singh and appellant No.4 is his grandson, who was aged about 18 years at the time of occurrence.
Learned counsel further submits that the judgment of conviction is not based on proper appreciation of evidence.
There is violation of Sections 52 and 57 of the Act.
An independent witness, who was present at the time of raid was not examined by the prosecution.
Learned counsel also submits that there is no evidence on record that the alleged recovery was deposited in the Court as there was no witness to the recovery.
The case of the prosecution is merely based upon the statements of three official witnesses.
There are serious contradictions in the statements of prosecution witnesses and even the owner of the land from where the recovery was effected, was not examined.
No explanation has come on record as to why case property was not deposited with the Court.
The consent obtained from the accused persons was joint and no separate consent was obtained, which is fatal to the case of prosecution.
It is also the argument of learned counsel for the appellants that only one sample was drawn from the bag, whereas, the requirement is of two samples from each bag.
Learned counsel also submits that from the statements of the witnesses, it is clear that Form No.29 was not filled up at the spot.
Even ASI Atma Ram who recorded the FIR was not examined.
Learned counsel for the appellants have also relied upon the judgments of this Court in The State of Punjab versus Bikkar Singh 1992 (3) RCR POOJ.SHARMA201408.20 10:39 Crl.
Appeal No.S-347-SB of 2003 (5) (Criminal) 245, Nimma Ram versus State of Punjab 1999 (2) RCR (Criminal) 449, Jaswinder Singh and another versus State of Punjab 2013 (1) RCR (Criminal) 257 and Malook Singh versus State of Haryana passed in Crl.
Appeal No.S-1398-SB of 2004 on 10.10.2013, in support of his contentions.
Learned counsel for the respondent-State submits that quality of statement is required not the quantity.
The question of enmity was not there as dispute between the accused-appellants and Investigating Officer was sorted out by way of compromise and the present FIR was registered after much delay.
Learned counsel further submits that minor contradictions are there but same are not fatal to the case of prosecution.
Compliance of Sections 52 and 57 of the Act is only directory and not mandatory as has been held by this Court in the case of Gurdev Singh versus State of Punjab 2002 (1) RCR (Criminal) 154.
Learned counsel also submits that a complaint was made by accused-Buta Singh against the police officials but the same was subsequent to registration of the FIR.
The case of the prosecution was fully proved against the accused-appellants and the judgment of the Court below is well reasoned and no interference is required by this Court.
Heard the arguments advanced by this Court and have also gone through the record of the trial Court and other documents available on file.
The judgment of conviction has been challenged mainly on the ground that there was no compliance of Sections 52 and 57 of the Act; accused-appellants have falsely been implicated because of the complaint made against the police officials; the independent witness was not examined and inspite of proximity of the place of occurrence to a village, no independent witness was joined except a witness who was with the raiding POOJ.SHARMA201408.20 10:39 Crl.
Appeal No.S-347-SB of 2003 (6) party and thereafter he was also not examined.
There was also delay in sending the samples as the case property remained with the Investigating Officer and the same was not produced before the Court.
It has also been argued that only one sample was drawn, whereas, the requirement is of drawing two samples from each bag.
The owner of the land from where the recovery was made was not examined.
On perusal of statement of PWs, it is clear that a joint statement/consent was obtained which was signed by all the accused.
This has been proved from the statement of Investigating Officer-Manjit Singh as well as DSP Jaspreet Singh.
The recording of joint statement has not only caused prejudice to the defence of the accused but is fatal to the case of the prosecution as has been held by this Court in the case of Paramjit Singh versus State of Punjab 1997(1) RCR (Criminal) 293, wherein, it was held that offer has to be given to the accused individually and not jointly.
The joint offer has caused prejudice to the accused-appellants.
As per requirement of standing order No.1/89 dated 13.6.1989 issued by Government of India, Ministry of Finance (Department of Revenue).it has been made mandatory that two samples must be drawn from the recovered substance, failing which, the whole recovery procedure will be vitiated.
It has further been provided in the said circular that quantity to be drawn in each sample for chemical analysis should not be less than 5 gms in case of poppy husk.
Section II of Standing order No.1/89 is reproduced as under:- "Section II General Procedure for Sampling, Storage, etc.2.1.
Sampling and classification, etc.of drugs.
All drugs shall be properly classified carefully weighed and sampled on the spot of seizure.
2.2.
Drawal of samples.
All the packages/containers shall be serialy numbered and kept in lots for sampling.
Samples from the narcotic drugs and psychotropic substances seized, shall POOJ.SHARMA201408.20 10:39 Crl.
Appeal No.S-347-SB of 2003 (7) be drawn on the spot of recovery, in duplicate, in the presence of search witnesses Panchas and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.
2.3.
Quantity to be drawn for the sampling.
- The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and pyschotropic substances save in the cases of opium, ganja and charas (hanish) where a quantity of 24 grams in each case is record for chemical test.
The same quantities shall be taken for the duplicate sample also.
The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.
2.4.
Method of drawl : (a) Single container/package.
- In the case of seizure of a single package/container, one sample in duplicate shall be drawn.
Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than package/container.
2.5.(b) Bunch of packages/containeRs.- However, when the packages/containers seized together are identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/containers except in the case of ganja and hashish (charas).where it may be bunched in lots of 40 such packages/containeRs.For each such lot of packages/containeRs.one sample (in duplicate) may be drawn.
2.6 Bunching for, (i) Hashish and ganja.
- Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need to be drawn.
2.7 (ii) Other Drugs.
- If such remainder is 5 or more in the POOJ.SHARMA201408.20 10:39 Crl.
Appeal No.S-347-SB of 2003 (8) case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.
2.8.
Drawal of representative samples.
- While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.
2.9.
Storage of samples-procedure.
- The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe.
The plastic bag container should be kept in a paper envelope should may be sealed property.
Such sealed envelope may be marked as original and duplicate.
Both the envelopes should also bear the S.No.of the package (s)/container(s) from which the sample has been drawn.
The duplicate envelope containing the sample will also have a reference of the test memo.
The seals should be legible.
This envelope along with test memos should be kept in another envelope which should also be sealed and marked 'secret- drug sample/Test memo', to be sent to the chemical laboratory concerned.
3.0.
Despatch of samples for testing - To whom to be sent.
- The seizing officers of the Central Governments Departments, viz., CustoMs.Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence, etc.should despatch samples of the seized drugs to one of the Laboratories of the Central Revenues Control Laboratory nearest to their offices depending upon the availability of test facilities.
The other Central Agencies like BSF, CBI and other Central Police Organizations may send such samples to the Director, Central Forensic Laboratory, New Delhi.
All State Enforcement Agencies may send samples of seized drugs to the Director/Deputy Director/Assistant Director of their respective State Forensic Science Laboratory.
3.1.
Preparation of inventory.
- After sampling, detailed intentory of such packages/containers shall be prepared for POOJ.SHARMA201408.20 10:39 Crl.
Appeal No.S-347-SB of 2003 (9) being enclosed to the panchnama.
Original wrappers shall also be preserved for evidentiary purposes.
Admittedly, it has been stated by DSP-Jaspreet Singh (PW-2) and Investigating officer-Manjit Singh (PW-3) that only one sample was drawn from each bag, whereas, at least two samples should have been drawn.
The second argument of learned counsel for the appellants is that a joint statement was got signed by all the accused, whereas, separate statement was to be obtained from each accused.
This view has been affirmed by this Court in Paramjit Singh’s case (supra).It has been admitted by the Investigating officer that a joint offer was made to all the accused as to whether they wanted to be searched before a Gazetted Officer or a Magistrate.
This act of giving joint offer is not permissible and is against the provisions as enshrined under Section 50 of the Act.
There is a delay in sending the samples and the said delay has not been explained.
In case of delay in sending the samples, there can be a possibility of false implication and moreover no plausible explanation has come in the statements of prosecution witnesses.
As per the statements of PWs, serious contradictions and discrepancies are there, which creates doubts in the prosecution version.
As per statement of DSP Jaspreet Singh (PW-2) there was Dhani in between village and place of recovery, which was at a distance of 200 or 250 meters from the place of recovery but none was joined as independent witness from Dhani or from the field.
As per statement of SI Manjeet Singh (PW-3).there was no Dhani near the place of recovery, however, the same was at the distance of one kilometer from the place of occurrence.
He POOJ.SHARMA201408.20 10:39 Crl.
Appeal No.S-347-SB of 2003 (10) further stated that the accused were sitting under a Shisham tree, whereas, as per stand of DSP-Jaspreet Singh (PW-2) in his cross-examination, Narma crop was sown in the fields, which was 10 inces away from the place of recovery.
He has also stated that he has not put any date under his signature on Ex.
PD.
On perusal of Form No.29 also, it is clear that it was not filled up at the place of occurrence and all formalities were completed while sitting in the office.
Non-filing up of form No.29 at the place of occurrence also doubts the presence of DSP.
From the perusal of statements of PWs and also as per discussion above, it is clear that material contradictions are there in the statements of prosecution witnesses.
Even there is delay in sending sample, which has not been satisfactorily explained.
The independent witness who was alleged to have been joined at the time of recovery was not examined by the prosecution.
It has been held in various judgments of Hon'ble the Apex Court as well as of this Court that the prosecution is to prove affirmatively right from the stage of seizure till the sample reaches in the hands of Chemical Analyst, that there is neither any possibility of change nor tampering with the material or the sample.
The burden is always upon the prosecution to prove that during the period the sample remained intact with Moharrir Malkahana and was not tampered with.
In case of such failure, the benefit of reasonable doubt goes to the accused and not to the prosecution.
In the present case neither the mandatory provisions of Section 50,52 and 57 of the Act have been complied with nor there is any explanation as to why the case property was not deposited with the Court and why the samples were sent with delay.
In case of judgment of Raghbir Singh and another versus State of Punjab 2008 (1) RCR (Criminal) 510, the samples were sent to Chemical Examiner after a delay of 18 days of seizure and delay was not POOJ.SHARMA201408.20 10:39 Crl.
Appeal No.S-347-SB of 2003 (11) explained which was found to be fatal to the prosecution story and accused was acquitted of the charge.
In another case of Kaur Singh versus State of Punjab 2007 (2) RCR (Crimina) 630, the independent witness was not examined and samples were given to ASI and it was held that there were material flaws in the prosecution version and prosecution case could not be proved beyond reasonable doubt and accordingly the accused was acquitted of the charge by giving benefit of doubt.
The Hon'ble Supreme Court in Abdul Rashid Ibrahim Mansuri v.
State of Gujarat 2000(1) RCR (Crl.) 611, in regard to noncompliance of Section 42 of the Act has held :- “When the same decision considered the impact of non- compliance of Section 50 it was held that “it would affect the prosecution case and vitiate the trial”.But the Constitution Bench has settled the legal position concerning that aspect in State of Punjab v.
Balbir Singh (supra).the relevant portion of which has been extracted by us earlier.
We do not think that a different approach is warranted regarding non-compliance of Section 42 also.
If that be so, the position must be the following: If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior.
The action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone.
Nonetheless the resultant position would be one of causing prejudice to the accused.”
.
POOJ.SHARMA In State of West Bengal and others versus Babu Chakraborty, 2014.08.20 10:39 Crl.
Appeal No.S-347-SB of 2003 (12) AIR2004Supreme Court 4324, the Hon'ble Supreme Court again has gone into the aspect of violation of the provisions of Section 42 of the Act and came to conclude as under:- “Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act.
This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution.
This Court also held that failure to comply with S.42(1).proviso to S.42(1) and S.42(2) would render the entire prosecution case suspect and cause prejudice to the accused.”
.
From the above discussion as well as the settled position of law, it can safely be said that the judgment of the trial Court is not based on proper appreciation of evidence and as such the prosecution has failed to prove its case beyond reasonable doubt and benefit of doubt goes in favour of appellants.
Accordingly, by extending the benefit of doubt, the appellants are acquitted of the charge and as such, the appeal is allowed.
The impugned judgment of conviction and order of senence passed by the trial Court are set aside.
The bail/surety bonds, if any furnished, shall stand discharged.
The appellants are already on bail as their sentence was suspended by this Court during the pendency of the appeal.
31.7.2014 (DAYA CHAUDHARY) pooja JUDGE POOJ.SHARMA201408.20 10:39