Punjab-Haryana High Court
Narender Son Of Randhir Singh Through ... vs State Of Haryana on 20 January, 2024
Neutral Citation No:=2024:PHHC:012638
2024:PHHC:012638
CRA-S-4199-SB-2016 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-4199-SB-2016
Reserved on: 08.01.2024
Date of Pronouncement : 20.01. 2024
Narender Son of Randhir Singh through LRs Sumitra and others
.....Appellant
Versus
State of Haryana .....Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. T.P. Singh, Advocate for the appellant
Mr. Rajiv Sidhu, DAG Punjab
*****
HARKESH MANUJA, J
1. The present appeal has been filed against the judgment of conviction dated 04.11.2016 and order of sentence dated 05.11.2016 passed by Learned Additional Sessions Judge, Jhajjar, vide which appellant has been convicted u/s 20 of The Narcotic Drugs And Psychotropic Substances, Act, 1985 ( hereinafter referred as 'the Act') and sentenced to undergo RI for a period of five years, besides fine of Rs.10,000/- and in case of default of payment of fine, to further undergo RI for six months.
2. Brief facts as culled out from the record are that on 07.04.2016, when Arvind Kumar SI/SHO P.S.Sadar, Bahadurgarh, along with co- officials (SI Subhash Chander, EASI Rajpal, EASI Devender, Ct. Ashok in official vehicle No.HR-14-L-8517 driven by the official driver Ct. Vikas) was present at village Daboda on patrol duty, a secret information was received 1 1 of 22 ::: Downloaded on - 03-02-2024 02:33:04 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) by him that ASI Narender/ appellant deputed at Police Lines, Jhajjar, who is habitual of intoxication by charas, is going towards Jhajjar from Bahadurgarh in his Swift Desire car bearing registration No.HR-13J-6837 carrying Charas. Upon this, Arvind Kumar SI/SHO laid a check-point near Daboda Bus Stand. After some time, a Swift Desire car of white colour bearing registration No.HR-13J-6837, came from the side of Bahadurgarh. Upon enquiry, the person driving the car disclosed his name as Narender son of Randhir Singh Caste Jat, resident of village Riddhau (Sonipat) and that he was posted as EASI at Police Lines, Jhajjar. SI Arvind Kumar conveyed to appellant that the police was doubtful that he is carrying charas and then served upon him notice under Section 50 of the Act. Appellant opted to get his search effected from a Gazetted Officer and so, a telephonic information was made to Sh. Dhiraj Kumar HPS, Deputy Superintendent of Police, Bahadurgarh, who reached at the spot in his official vehicle. DSP Dhiraj Kumar was briefed about the facts of the case and upon verification of particulars from appellant, search of his Car was carried out, whereby a polythene was recovered from the dash-board. Upon checking, charas weighing 490 gms was found in two kinds of scoops
- one ball shaped weighing 340 gms and another saucer shaped weighing 150 gms. Two samples of 10 gms each were separated from each of the two scoops. The samples were enclosed in separate plastic bottles and the residue charas was enclosed in a separate plastic jar. The parcels of the above enclosures were prepared and sealed by seal of inscription BS. The seal was handed over to EASI Devender No.453. The DSP also affixed his seal of inscription 'DK' on the five parcels which were taken into police 2 2 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) custody. The car bearing registration no. HR-13J-6837 was separately taken into custody vide separate memos. The parcels and the seizure memo were attested by the DSP Dhiraj Kumar and appellant was arrested. 2.1 During interrogation, appellant made a disclosure statement regarding involvement of other two accused namely, Jagmal son of Kartar Singh and Satbir son of Jugti Ram. On 07.04.2016, accused Jagmal and Satbir were also arrested and their disclosure statements were recorded. Case property was deposited in the Malkhana at serial No.546 on 7.4.2016. A detailed report under Section 57 of the Act and an inventory report was also prepared in the Court, whereby an order under Section 52-A of the Act was passed by the Court concerned and the case property was again deposited in the Malkhana. On 08.04.2016, the samples were sent to FSL Sunaria, Distt. Rohtak, vide RC No.90, for chemical examination. After completion of requisite investigation, final report under Section 173 Cr.P.C. was submitted in the Court.
2.2 From the perusal of Final Report and other relevant documents, a prima-facie case for commission of offence under Section 20 of the Act was found to be made out against the appellant; whereas a prima-facie case for commission of offences punishable under Sections 20 and 27-A of the Act was found to be made out against the co-accused Jagmal and Satbir and they were charge-sheeted accordingly to which they did not plead guilty and claimed trial.
2.3 To prove the guilt of the accused persons, prosecution examined following witnesses:-
3
3 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) i. PW1 is EASI Devender Singh, who was a member of the police party constituted under the then SI/SHO Arvind. ii. PW2 is P/SI Arvind Kumar, the first investigating officer and the then SHO of P.S.Sadar, Bahadurgarh.
iii. PW3 is Ct. Ashok Kumar, who was also a member of the same police party by which the proceedings with respect to the arrest of the accused Narender on dr. 7.4.2016, were conducted. iv. PW4 is Hari Niwas, Criminal Ahlmad of the Court of Sh.
Pradeep Chaudhary, learned SDJM, Bahadurgarh. v. PW5 is DSP Dhiraj Kumar, who was called on the place of occurrence, after the accused opted for his search through a gazetted officer only.
vi. PW6 is Ct. Rakesh Kumar, who was acting as Malkhana Moharrir of the Police Station Sadar, Bahadurgarh on dt. 7.4.2016 and 8.4.2016.
vii. PW7 is Ct. Vikas, who carried the special reports of the present case, to the Quarters concerned, on 7.04.2016. viii. One witness SI Subhash Chander no.753 was given up by the then learned PP for the State.
ix. PW8 is Ct. Praveen, who is a witness regarding disclosure statement Ex.PW8/A, allegedly got recorded by the accused Narender on 7.4.2016 and also regarding disclosure statements Ex.PW8/B and Ex.PW8/C, allegedly got recorded by the accused Satbir and Jagmal.
x. PW9 is SI Randhir Singh, who had prepared the Final Report Ex.PW9/A in the present case.
xi. PW10 is P/SI Sunil, who had acted as the second I.O. He has also proved the formal FIR as Ex.PW10/A. 2.4 In this regard, the prosecution besides examination of ten witnesses, relied upon following documentary evidence:-
Ex.PW1/A: Notice u/S 50 of the Act, served upon the accused Narender 4 4 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) Ex.PW1/B : Reply of accused Narender Ex.PW1/C : Seizure memo regarding the charas Ex.PW1/D : Seizure memo regarding the Car No.HR-13-J-6837 Ex.P1 to Ex.P4 : Samples of the case property Ex.P5 : Residue charas Ex.P6 : Sample seal Ex.PW3/A : The ruqa sent for registration of the FIR Ex.PW4/A : Inventory report Ex.PW8/A: Disclosure statement made by the accused Narender Ex.PW8/B: The disclosure statement allegedly made by accused Satbir Ex.PW8/C: Disclosure statement made by accused Jagmal Ex.PW9/A: Final Report u/S 173 of CrPC Ex.PW10/A :The formal FIR Ex.PW10/B : The endorsement regarding registration of FIR Ex.PW10/C : Site-plan of place where accused Narender was arrested Ex.PW10/D : The application moved before the Court, for preparing the inventory report u/S 52-A of the NDPS Act Ex.PW10/E : The photograph taken at the time of preparing the inventory report, reflecting the case property, along with the accused Narender.
2.5 After that, the evidence of prosecution was closed by the learned PP for the State, vide his statement dated 21.09.2016, after tendering the Report of FSL as Ex.PA.
2.6 The accused were examined u/S 313 of Cr.P.C., whereby they denied all the incriminating evidence and pleaded their innocence. In their defence accused examined Mr. Kewal Singh Saini, Draftsman as DW1 and closed their evidence.5
5 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M)
3. After appraisal of the evidence, Ld. Additional Session Judge, Jhajjar vide judgment dated 04.11.2016 though acquitted the co-accused Jagmal and Satbir, however, convicted the appellant under Section 20 of the Act and vide order dated 05.06.2016 sentenced him to undergo RI for a period of five years, besides fine of Rs.10,000/- and in case of default of payment of fine, to further undergo RI for six months.
4. During pendency of the appeal, appellant had expired on 07.11.2017 and vide order dated 05.12.2017, his wife Sumitra being legal representatives was allowed to pursue the appeal.
5. Learned Counsel for the appellant has contested the judgment of the trial court on multiple counts.
5.1 Firstly, he contended that no independent witness was joined at the time of alleged recovery of the contraband from the appellant. He further submitted that if this fact is seen in light with material contradictions in the statements of official witnesses regarding the alleged recovery, it goes to the root of the matter and makes the recovery highly doubtful. In support of his contentions he placed reliance upon the following judgments:
i. "Kishan Chand Vs. State of Haryana", reported as 2013 (2) RCR(Criminal) 67 (SC) ii. "Malkiat Singh Vs. State of Punjab", reported as 2009(1) RCR (Crl.)353(P&H) iii. "Jagir Singh Vs. State of Punjab", reported as 1997(1)RCR(Crl.) 9 (P&H) 5.2 Secondly, ld. counsel contended that Ex-PW1/C, i.e. recovery memo of contraband & Ex-PW1/D, i.e. recovery memo of car bears particulars of the FIR, whereas it is admitted case of the prosecution that FIR was registered subsequently on the basis of Ruka i.e. Ex-PW3/A, 6 6 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) which completely belies the case of prosecution. In support of his contentions he placed reliance upon "Nek Singh v. State of Haryana", reported as 2018 (2) RCR (Criminal) 712 (P&H).
5.3 Thirdly, learned counsel contended that recovery can also not to be believed in view of the absence of link evidence. To strengthen this argument, learned counsel submitted that PW2 Arvind SI/ IO had not handed over the seal after its use to anyone and kept the same himself when other witnesses were present at the spot. He further submitted that sample seal of PW5-DSP was not even prepared, there is no statement regarding handing over of the seal of DSP to any person. He further submitted that sample seals of PW2-Arvind Kumar and PW5-DSP were not produced before JMIC on 07.04.2016 and sample seal of PW5-DSP was also not sent to FSL. He also contended that presence of DSP was also doubtful on account of the fact that no Log Book was produced by him during his testimony regarding his visit to the spot. In support of his contentions he placed reliance upon the following judgments:
i. "Rajan Ali Vs. State (Delhi Admn.)", reported as 1999 (4) RCR(Criminal) 632 ii. "Surjit Singh Vs. State of Punjab", reported as 1997(3) RCR (Crl.)351(P&H) iii. Nek Singh's case (Supra) 5.1 Fourthly, he submitted that secret information received by PW-2 SI Arvind Kumar was not reduced into writing and sent to his superiors, which is in violation of Section 42 of the Act. Learned counsel submitted that on the other hand, even though no personal search of appellant was conducted but procedure under Section 50 of the Act was followed which 7 7 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) makes the entire recovery doubtful. He further submitted that there is violation of Section 52-A of the Act as well as samples should have been drawn in the presence of Magistrate with his permission. Concluding his arguments, he submitted that taking into consideration totality of circumstances, appellant could not have been convicted under Section 20 of the Act as consequences are penal in nature, procedure as specified under the provisions of the Act ought to have been strictly followed. In support of his contentions he placed reliance upon the following judgments:-
i. "Balbir Singh Vs. State of Punjab", reported as 1994 (1) RCR(Criminal) 736 (SC) ii. "Boota Singh Vs. State of Haryana", reported as 2021(2) RCR (Crl.)892(SC) iii. "Mohan Lal Vs. Union of India", reported as 2016(1) RCR (Crl.) 858(SC) iv. Kishan Chand's case (Supra)
6. Per contra, Learned State counsel vehemently submitted that since the recovery was made late in the night, therefore, it was not possible to join any independent witness. He further submitted that as secret information was received while police officials were already out for patrolling, it was not possible to reduce the same into writing and even in view of Surjit Singh's case (supra), only substantial compliance of Section 42 of the Act is required. He further stated that all the recovery made was duly produced before the learned Magistrate and inventory report was also prepared accordingly. He also submitted that Trial Court has rightly convicted the appellant, relying upon consistent statements of all the police officials. He further submitted that minor contradictions are bound to occure 8 8 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) due to passage of time, so the same cannot be given undue importance so as to acquit the appellant when learned Trial Court has noted that there is no material contradiction.
7. I have heard learned counsel for the parties and gone through the records of the case. I find substance in the arguments made by the learned counsel for the appellant.
7.1. It has consistently come out from the statements of all the police officials that during the recovery process, no independent witness was joined. Though, it is well settled law that the testimony of a witness is not to be doubted or looked up with suspicion merely because he happens to be a police official, but, at the same time, in such circumstances, a very well recognised rule of caution has to be adopted by the courts. 7.2. A perusal of record clearly shows that recovery memos of contraband (Ex-PW1/C) & car (Ex-PW1/D) bears particulars of the FIR. It can be gathered from the testimonies of the prosecution witnesses that the FIR was registered subsequently on the basis of Ruka i.e. Ex-PW3/A, while the recovery was effected earlier. These recovery memos are handmade and prepared in a single flow ruling out any possibility that details of FIR were inscribed subsequently, which creates serious doubt in the prosecution version. Reliance in this regard can be placed upon the Division Bench judgment of this Court in "Didar Singh @ Dara vs. State of Punjab", reported as 2010(3) RCR (Criminal) 337, the relevant para of which is reproduced below:-
"29. There is another infirmity on the record which further creates a doubt about the entire prosecution case. As per 9 9 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) the prosecution, at the time of the recovery, various documents were prepared. Those documents are Ex.PA, Ex.PB, Ex.PC, Ex.PD, Ex.PE and Ex.PF. All these memos bear the FIR number of the case. It is admitted case of the prosecution that when these documents were prepared, the FIR was not registered and FIR No. was not available as the same was registered later on, on the ruqa sent by the police. It has not been explained how all these memos contained the FIR number, which was not existing at the time when these memos were prepared. In Ajay Malik & Ors. v. State of U.T., Chandigarh, 2009(3) RCR (Criminal) 649, this Court while dealing with similar situation has observed that two inferences could be drawn from such situation, i.e., either the FIR was registered prior to the alleged recovery of the contraband or number of FIR was inserted in the document after its registration. But in both situations, it seriously reflects upon the integrity of the prosecution version. While relying upon several other decisions, it was held that such serious lapses in the prosecution case create a doubt to the prosecution theory."
7.3. As argued by the learned counsel for the appellant that neither from the records of the case nor from the statement of any police official, it has come on record that secret information received by SI Arvind Kumar / PW-2 was reduced into writing and sent to superior police officials. On that count, there is complete non-compliance of mandatory provisions of Section 42 of the Act. This non-compliance gain further significance on account of the fact that after putting up the naka and till arrival of appellant at the spot, admittedly, there was a time gap of about 15 minutes in between. The Hon'ble Apex Court in Kishan Chand's case (Supra), while interpreting Section 42 of NDPS Act in light of "Karnail Singh v. State of 10 10 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) Haryana", (2009)8 SCC 539, observed that though in view of exigencies of the circumstances, delayed compliance of Section 42 of the Act could be permissible, but complete non-compliance would per se amount to prejudice to the accused. Relevant paras are reproduced below:-
"21. When there is total and definite non-compliance of such statutory provisions, the question of prejudice loses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance.
22. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance of these provisions in their entirety, the Court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevancy. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance of the provision.
23. Reverting to the facts of the present case, we have already noticed that both the Trial Court and the High Court have proceeded on the basis of substantial compliance and there being no prejudice to the accused, though clearly recording that it was an admitted case of total non-compliance. The statement of PW7 puts the matter beyond ambiguity that there was 'total non-compliance of the statutory 11
11 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) provisions of Section 42 of the Act'. Once, there is total non-compliance and these provisions being mandatory in nature, the prosecution case must fail.
24. Reliance placed by the learned counsel appearing for the State on the case of Sajan Abraham (supra) is entirely misplaced, firstly in view of the Constitution Bench judgment of this Court in the case of Karnail Singh (supra). Secondly, in that case the Court was also dealing with the application of the provisions of Section 57 of the Act which are worded differently and have different requirements, as opposed to Sections 42 and 50 of the Act. It is not a case where any reason has come in evidence as to why the secret information was not reduced to writing and sent to the higher officer, which is the requirement to be adhered to 'pre-search'. The question of sending it immediately thereafter does not arise in the present case, as it is an admitted position that there is total non-compliance of Section 42 of the Act. The sending of report as required under Section 57 of the Act on 20th July, 2000 will be no compliance, factually and/or in the eyes of law to the provisions of Section 42 of the Act. These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Sections 42, 50 and 57 of the Act. They are neither inter-linked nor inter-dependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases."
7.4. Additionally, it is also admitted position that four samples were prepared by police officials at the time of recovery and not in the presence 12 12 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) of the Magistrate as stipulated under Section 52-A of the Act. It was held by the Hon'ble Apex Court in Mohanlal's case (Supra) that drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not arise in the above scheme of things and any sample taken after seizure would be in conflict with Section 52-A of the Act. Relevant paras thereof are reproduced below:-
"15. It is manifest from Section 52-A(2)include (supra) that upon seizure of the contraband the same has to be forwarded either to the officerin-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer- in-charge of the police station or the officer empowered, the officer concerned is in law duty- bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the 13
13 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with subsections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure." Relying upon Mohanlal's case (supra), recently the Hon'ble Supreme Court in "Simarnjit Singh V. State of Punjab", reported as 2023 Cri. L.R. (SC) 1502 observed that in case of non-compliance of Section 52- A of the Act, it cannot be said that case of the prosecution is free from suspicion, paras 9 & 10 thereof being relevant, are reproduced hereunder:-
"9. Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
10. Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt. Accordingly, we set aside the impugned judgements insofar as the present appellant is concerned and quash his conviction and sentence."14
14 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) 7.5 In the present case, even link evidence has not been proved so as to reasonably ascertain that the chemical report on record belongs to the sample collected from the appellant. Sample seal of DSP Dhiraj Kumar was not even prepared as admitted by him while appearing as PW-5 and there is no record with respect to his seal being delivered to any person for safe keeping. However, Constable Rakesh Kumar while appearing as PW- 6 stated that sample seal of SI Arvind Kumar as well as DSP Dhiraj Kumar was kept in the malkhana. From the report of the forensic lab also, it is evident that the sample seal of 'DK' was not present with said sample so as to ascertain the identity of the sample. Even there are contradictory statements with respect to the deposition of recovered contraband in the malkhana. As per the case of prosecution, subsequent investigation after recovery was conducted by SI Sunil Kumar/ PW-10. PW2 SI Arvind Kumar and PW-10 / SI Sunil Kumar have deposed that recovered material was deposited in the malkhana by PW-10 SI Sunil Kumar. However, Rakesh Kumar, who was Malkhana Muharrir, in his testimony as PW-6 stated that material was deposited in the malkhana by PW2 -SI Arvind Kumar. Also from the records, it can be seen that there is no preparation of Form- 29, nor the report of the lab finds any mention of this form. Thus link evidence in the present case has not been reasonably proven. Case of the appellant is also supported by Didar Singh's case (supra). Relevant paras from Didar Singh's case are reproduced below:-
"21. Thus, under the Narcotic Drugs And Psychotropic Substances Act, it is the fundamental duty of the prosecution to prove beyond a shadow of reasonable doubt that the investigation conducted in the case is 15 15 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) absolutely flawless specifically with regard to the link evidence which is of most significant aspect. It is incumbent upon the prosecution to prove that from the stage of effecting the recovery till the sample reach the Chemical Examiner, there was no chance of tampering with it. Once the presumption is stumbling, on this vital aspect the benefit is to be extended to the accused.
22. In the present case, Form No. 29 was neither prepared at the spot nor it was deposited with the Incharge of the Malkhana. Even the sample seal was handed over to the police official, who was part of the investigating team, and the same was also not deposited in the Malkhana or kept in the independent hand. In this regard, there are major contradictions in the statements of PW1-SI Vishwa Mitter, PW3-DSP Ranvir Singh and PW4-SHO Mandip Singh. These major contradictions in their statements create serious doubt in the prosecution version about recovery of the alleged opium from the possession of the accused. According to PW1-SI Vishwa Mitter, Form No. 29 was not filled up by him at the spot. It was filled up by SHO Mandip Singh (PW4) in the Police Station. However, according to him, seals 'VM' and 'RS' were affixed on the said Form at the spot. On the other hand, SHO Mandip Singh (PW4) while appearing in the Court has stated that Form No. 29 was filled up by SI Vishwa Mitter (PW1) at the spot and the same was produced before him. He has categorically denied that he had filled up the Form in the Police Station and the said Form bears his writing. On the other hand, DSP Ranvir Singh (PW3) stated in the Court that CFSL Form was filled up by SI Vishwa Mitter (PW1) in his presence. He further stated that he had affixed his seal on Form No. 29 at 16 16 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) the spot. He is very categoric that he did not affix his seal on any of the blank papers nor he had handed over the same to SI Vishwa Mitter. These contradictory statements of all the three witnesses not only create a serious doubt in the prosecution version but a close examination of Form No. 29, placed on record by the prosecution as original one, further deepens the doubt about its execution at the time of effecting recovery from the accused. We have seen the said Original Form available on the record. On the face of it, this document appears to be forged one. On this Form, three small papers having seals after cutting to the size of the seal, have been pasted at three different places. These seals are of 'VM', 'RS' and 'MS'. On one hand, PW1-SI Vishwa Mitter stated that he had put his seal on the original CFSL Form and he had not filled the said Form. According to him, it was filled up by SHO Mandip Singh (PW4). On the other hand, SHO Mandip Singh (PW4) stated that he did not fill up Form No. 29. The said Form was produced before him duly filled by SI Vishwa Mitter. He affixed his seal on the same as well as on the sample. PW3- DSP Ranvir Singh stated that Form No. 29 was filled up at the spot by SI Vishwa Mitter and he affixed his seal on the same. In our opinion, none of the seal has been affixed on the Original Form No. 29. All the three seals appear to have been subsequently pasted on the Original Form, which has been produced on the record. From these contradictions, the entire prosecution case becomes doubtful. From these facts, the possibility of sending the changed sample to Forensic Science Laboratory cannot be ruled out. The Forensic Science Laboratory had compared the seals on the sample from the forged 17 17 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) Form No. 29, whereas the seals were subsequently pasted on three seal impressions. Therefore, the prosecution has failed to proved beyond a reasonable doubt that the sample of the contraband, which was examined by the Forensic Science Laboratory, was the same which was alleged to have been recovered from the appellant at the time of the alleged recovery.
23. Learned counsel for the State, while referring to the decision of the Supreme Court in Khet Singh v. Union of India, 2002(2) RCR (Criminal) 277 : (2002) 4 SCC 380, argued that there is no statutory requirement for preparing the Seizure mahazar or CFSL Form No. 29 at the spot. Even if some Standing Instructions require the preparation of this document at the spot, the same does not have any statutory force, and if there is any violation for such Instructions or Guidelines, that itself does not make the prosecution case doubtful. She argued that such a document could have been prepared at a later stage while recording the reasons. Learned counsel also referred to some observations made by the Supreme Court in State by CBI v. Dilbagh, 2006(1) Apex Criminal 441 : 2006(2) RCR (Criminal) 76 :
(2004) 13 SCC 99 where it was observed that merely because the CFSL Form was not prepared triplicate, does not in any way reflect on the fact that the sample which was extracted, was the sample which reached the Chemical Analyser with the seal intact.
Therefore, the same cannot be taken as a serious lapse on the part of the prosecution.
24. We do not find any force in the aforesaid contention of the learned counsel for the State. In decision of Khet Singh's case (supra) itself, it has been observed by the Supreme Court that such non- 18
18 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) preparation of seizure mahazar at the spot and preparation of the same in Customs Office, where accused remained present throughout, will be admissible. But, if search and seizure was in complete defiance of the law and procedure and there was possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not admissible in evidence. In the present case, as indicated above, there is a tampering and interpolation on the FSL report, therefore, the decision cited by the learned State counsel will not help her.
25. Similarly, in State by CBI v. Dilbagh's case (supra), it was observed that non-preparation of CFSL Form at the spot will not be fatal, if the prosecution has been careful enough to prove that the same sample was sent to the Chemical Analyser with the seal intact. In the present case, there are serious doubts about the fact that the same sample was sent to the Chemical Analyser which was taken into possession from the seal intact. Therefore, the said judgment will also not help the prosecution case.
26. The second flaw in this case is that SI Vishwa Mitter (PW1) handed over his seal after use to ASI Gurcharan Singh, who was one of the member of the police party. He did not hand over the seal to Gurmej Singh, independent witness, who was present at the spot, on the pretext that he had refused to accept the seal on account of chances of loss. ASI Gurcharan Singh has not been examined to prove that he did not hand over the seal to the Seizing Officer and the same was not misused by any person. But the fact remains that the seal of SI Vishwa Mitter (PW1) remained with the police and the chance of changing 19 19 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) the sample by tampering the seal or refixing it, cannot be ruled out.
27. In Bhola Singh v. State of Punjab, 2005(2) RCR (Criminal) 520, this Court has held that CFSL Form No. 29 should be prepared by the Investigating Officer at the spot and be deposited in the Malkhana along with sealed contrabands. It has been further held that after sealing the sample parcel of the contraband as well as remaining contraband, the seal should be handed over to the independent person so that till the case property had been deposited to the Forensic Science Laboratory, the same should not be available to the prosecuting agency. This is necessary to safeguard the possibility of the sealed contraband and the sample being tampered with by the police official. It was further held that CFSL Form should not only be prepared and sealed by the officer making seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO, to whom the sample and the case property is handed over and deposited in the Malkhana along with the sample parcel. It should accompany the sample to Chemical Examiner. In another case, titled as Gurcharan Singh v. State of Punjab, 2005(4) RCR (Criminal) 681, the accused was acquitted on the grounds that the seal affixed on seized opium was given to the Head Constable and not an independent witness. The Seizing Officer failed to prepare CFSL Form on the spot, which creates a further doubt about the credibility of the entire prosecution exercise."
7.6 Absence of independent witness is aggravated from the fact that there are material contradictions in the statements of official 20 20 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M) witnesses. While in general it is the case of prosecution that search and seizure proceeding were carried around 12-1am and market was closed; whereas EASI Devendra Singh while appearing as PW-1 stated in his testimony that proceeding were carried between 8 to 9 p.m. and the market was open. Constable Ashok Kumar while appearing as PW-3 stated that Charas was recovered in one bag which was of black colour, is also in contradiction with recovery memo (PW1-C) and statement of PW5 Dhiraj Kumar, as per which, it was yellow in colour. It is relevant to note here that EASI Devendra Singh and constable Ashok were witnesses of the recovery made from the appellant. Even with respect to mode of documentation there are different versions of each witness.
As per PW1- Devender Singh, documents were prepared in the pole lights, as per PW2- SI Arvind Kumar, documents were prepared in the light of vehicle as per PW-5 DSP Dhiraj Kumar they were prepared on bonnet of car in light of battery and as per PW-10 SI Sunil Kumar it was done on metalled Road under street light.
Though under ordinary circumstances, certain differences are bound to occur in the statement of witnesses, however, in the present case, it cannot be ignored that while the recovery is dated 07.04.2016, statement of witnesses were recorded between 20.07.2016 to 10.08.2016, i.e. within a period of 3-4 months and the time gap was not as high as generally observed in other cases.
21
21 of 22 ::: Downloaded on - 03-02-2024 02:33:05 ::: Neutral Citation No:=2024:PHHC:012638 2024:PHHC:012638 CRA-S-4199-SB-2016 (O&M)
8. In view of the discussion made above and on the basis of conjoint consideration of all aspects, in my humble opinion, prosecution has failed to prove its case beyond reasonable doubts, therefore, present appeal is allowed and appellant is acquitted of the charges leveled against him.
9. Pending miscellaneous application(s), if any, shall also stand disposed of.
January 20, 2024 [HARKESH MANUJA]
sanjay JUDGE
Whether speaking/reasoned yes
Whether reportable? yes
Neutral Citation No:=2024:PHHC:012638 22 22 of 22 ::: Downloaded on - 03-02-2024 02:33:05 :::