Punjab-Haryana High Court
Gurmukh Singh And Anr vs State Of Punjab on 14 November, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:148742-DB
CRA-D-237-DB-2005 (O&M)
CRA-D-327-DB-2005 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
CRA-D-237-DB-2005 (O&M)
Gurmukh Singh and another ....Appellants
Versus
State of Punjab ....Respondent
CRA-D-327-DB-2005 (O&M)
Soma Singh ....Appellant
Versus
The State of Punjab ....Respondent
Reserved on :- 03.10.21024
Date of Decision : 14.11.2024
CORAM : HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Harsh Manocha, Advocate
for appellant No.1 (in CRA-D-237-DB-2005).
Mr. Satnam Singh Gill, Advocate,
for the appellant (in CRA-D-327-DB-2005)
Mr. Kunwarbir Singh, AAG, Punjab,
for the respondent-State.
-.-
SUDEEPTI SHARMA, J.
1. By this common judgment, we shall dispose of two appeals i.e. CRA-D-
237-DB-2005 and CRA-D-327-DB-2005 as in both the appeals, the appellants are challenging the judgment of conviction and order of sentence dated 02.03.2005 1 of 40 ::: Downloaded on - 23-11-2024 11:34:29 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -2- passed by the learned Judge, Special Court, Barnala, whereby the appellants have been convicted in FIR No.123, dated 12.10.1996, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act') registered at Police Station Tapa, District Barnala, and sentenced to undergo rigorous imprisonment for 11 years each and to pay a fine of Rs.1,00,000/- each and in case of default to pay fine, they are further sentenced to undergo rigorous imprisonment for one year each. However, for the sake of brevity, the facts are being taken from CRA-D-237-DB-2005.
2. The brief facts of the case are that on 12.10.1996, SI Nachhatar Singh along with ASI Harbhajan Singh, C-II Avtar Singh, C. Sukhjeet Singh, SPO Sukhwinder Singh, SPO Baldev Singh were present on the bridge of minor canal heading on the road of Tajoke to Pakho Kalan on Government Vehicle bearing registration No.PB-13B-4337 driven by C-II Gurnam Singh in connection with patrolling in the area of Village Pakho Kalan. One person came from the side of Village Pakho Kalan. On enquiring about his whereabouts, he disclosed his name as Inder Singh son of Chanda Singh. In the meantime, a truck bearing registration number PNC-8011 came from the side of Village Pakho Kalan, which was stopped by the police party. On seeing the police party, the truck halted all of a sudden and the driver of the said truck tried to fled away after opening the window. On the basis of suspicion, the driver of the said truck was apprehended with the help of members of the police party. On asking of his whereabouts, he (driver) disclosed his name as Gurmukh Singh son of Sampuran Singh. Two persons were also found sitting on the paddy chaff loaded in the said truck. On asking of their whereabouts, one of them told his name as Soma Singh @ Goli son of Arjan Singh and another 2 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -3- as Shamsher Singh @ Kaka son of Bachan Singh. SI Nachhatar Singh told all the aforesaid persons (Soma Singh, Shamsher Singh and Gurmukh Singh) that he has suspicion that some illegal substance lying underneath the paddy chaff loaded in the said truck and he wanted to get the search of the truck conducted. SI Nachhatar further disclosed aforesaid persons that they have right to get the search conducted in the presence of some Magistrate or Gazetted Officer, to which, they replied that they wanted to get the search of the truck conducted in the presence of some Gazetted Officer. Their consent memos (Ex.PA to Ex.PC) in this regard were reduced into writing. The aforesaid persons put their thumb marked on the aforesaid memos, which were attested by Inder Singh, ASI Harbhajan Singh and C-
II Avtar Singh. Thereafter, through wireless, SI Nachhatar Singh informed the Police Station Tapa, in this regard. In the meantime, DSP Darshan Singh alongwith his gunman reached at the spot and disclosed his identity and rank to the aforesaid persons and also apprised them about their legal right. Then DSP Darshan Singh gave instructions to SI Nachhatar Singh to conduct the search of the truck. After unloading the paddy chaff from in the truck, 10 bags of poppy husk were recovered and marked them as Serial Nos.1 to 10. Out of the recovered 10 bags, two samples of 250 grams each were taken as sample. Remaining bags of poppy husk weighed and found to contain 39.500 Kgs. each. All the samples and bags containing poppy husk were sealed by SI Nachhatar Singh with his seal bearing impression 'NS' and seal of DSP Darshan Singh bearing impression as 'DS'. Specimen of the seals were prepared. The seal of SI Nachhatar Singh was handed over to ASI Harbhajan Singh after its use and DSP kept his seal with him. All the above said sealed articles were taken into police possession vide recovery memos (Ex.PD) by SI 3 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -4- Nachhatar Singh, which were attested by witnesses i.e. Inder Singh, ASI Harbhajan Singh and C-II Avtar Singh and DSP. The aforesaid truck was taken into police possession from accused Gurmukh Singh vide recovery memo (Ex.PE), which was got attested by aforesaid witnesses. Then ruqa (Ex.PF) was sent to the Police Station, on the basis of which formal FIR (Ex.PF/1) was registered against the aforesaid persons i.e. Soma Singh, Shamsher Singh and Gurmukh Singh. All the aforesaid accused were arrested. On their personal search, Rs.300/- were recovered from Gurmukh Singh, Rs.50/- were recovered from Shamsher Singh and Rs.250/-
were recovered from Soma Singh and were taken into police possession vide separate personal search memos i.e. Ex.PG, Ex.PH and Ex.PJ, respectively. The arrest and personal search memos were attested by the aforesaid witnesses and thumb marked by the concerned accused. The DSP also attested the aforesaid bags, sample parcels and specimen seal at the spot. Rought site plan (Ex.PK) of the place of recovery was prepared. Statements of the witnesses were also recorded at the spot. On return to the Police Station, the case property was deposited with MHC Tapa and the accused were put behind the bars.
3. On 26.08.2002, ASI Chamkaur Singh through SHO, Police Station Mehana took sample parcels and bulk case-property parcels from the MHC and produced the same alongwith accused before the Court of Illaqa Magistrate who remanded the accused to police custody and case property was ordered to be deposited with the MHC concerned. After returning to the police station, the case property was deposited with MHC and accused were sent to lock up.
4. During investigation, affidavit was produced by Gurpartap Singh, owner of the aforesaid truck, which was taken into possession vide recovery memo Ex.PL.
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5. After completion of the investigation and on receipt of the report (Ex.PY) of the Chemical Examiner, challan was presented before the trial Court.
6. On presentation of the challan, copies of the challan and other documents annexed therewith were supplied to the accused free of costs as required under Section 207 Cr.P.C.
7. Initially charge for offence under Section 15 of the NDPS Act was framed against the accused to which they pleaded not guilty and claimed trial.
8. Lateron amended charge was framed against the accused for having committed an offence punishable under Section 15 read with Section 25 of the NDPS Act, to which they pleaded not guilty and claimed trial.
9. During the trial, the prosecution has examined PW-1 HC Jagtar Singh, PW-2 SI Nachhatar Singh, PW-3 ASI Harbhajan Singh, PW-4 DSP Darshan Singh, PW-5 Sukhjit Singh, Clerk DTO office, Sangrur, PW-6 Constable Gurmit Singh.
Besides oral evidence, documentary evidence led in the prosecution evidence are:
Ex.PA i.e. affidavit of MHC Jagtar Singh, Ex.PA i.e. Memo of non-consent statement of accused Soma Singh, Ex.PB i.e. Memo of non-consent statement of accused Shamsher Singh, Ex.PC i.e. Memo of non-consent statement of accused Gurmukh Singh, Ex.PD i.e. recovery memo of poppy husk, Ex.PE i.e recovery memo of truck No.PNC-8011, Ex.PF & Ex.PF/1 i.e. Ruqa and FIR respectively, Ex. PG i.e. personal search memo of accused Gurmukh Singh, Ex. PH i.e. personal search memo of accused Shamsher Singh, Ex. PJ i.e. personal search memo of accused Soma Singh, Ex.PK i.e. Rough Site Plan, Ex.PL i.e. Recovery Memo of affidavits, Ex.PI i.e. Sample Seal, Mark A i.e. Copy of Form No.29 (statement 5 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -6-
showing details of suspected articles), Ex.PY i.e. Chemical Laboratory Report and Ex.PX i.e. Affidavit of Constable Gurmit Singh.
10. After closure of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. Incriminating circumstances appearing against the accused in the prosecution evidence were put to accused to which they denied and pleaded false implication and innocence.
11. Accused Gurmukh Singh had taken a plea that on 12.10.1996, he was coming from Rajasthan in a truck bearing registration No.PNC-8011 loaded with Gypsum. He was signalled to stop the truck, but he did not stop it and sped away.
He halted the truck at Punjabi Dhaba Handiaya for taking meals. The police officials came there and took him alongwith Soma Singh and Shamsher Singh to the Police Station in the present of Paramjit Singh and Jagga Singh alongwith truck and falsely implicated him in this case.
12. Accused Soma Singh had taken a plea that when he was sitting at Punjabi Dhaba at Handiaya, then ASI Harbhajan Singh came there and took him along with Gurmukh Singh and his truck to the Police Station in the presence of Paramjit Singh and Jagga Singh and they have been falsely implicated in the case as they had a quarrel with the said ASI Harbhajan Singh. Similar plea had been taken by accused Shamsher Singh.
13. Accused opted to lead evidence in their defence.
14. In defence evidence, accused examined DW1 Paramjit Singh, DW-2 Girdhari Singh, DW-3 Inder Singh and DW-4 C.Sukhvinder Singh, Clerk from the office of SSP, Police District, Barnala. Besides oral evidence, documentary evidence in defence of the accused are: Ex. DA i.e. Affidavit of Constable Gurmit 6 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -7- Singh, Mark A i.e. Affidavit of Gurpartap Singh, Ex.D1 i.e. Copy of receipt, Ex.DW4/A i.e. Record of Police, Ex.DA/1 i.e. Copy of Challan Form, Ex.DB & Ex.DC i.e. Copies of Challan Form, Ex. DD i.e. Copy of judgment dated 30.01.2004 passed by JMIC, Barnala and Ex.DG i.e. Copy of Challan Form.
15. After hearing the learned Addl. Public Prosecutor and counsel for the accused and perusing the whole record, the learned Judge, Special Court, Barnala, acquitted the accused Gurmukh Singh of the charge framed against him under Section 25 of the NDPS Act, but he along with other two accused i.e. Soma Singh and Shamsher Singh were convicted under Section 15 of the NDPS, vide its judgment and order dated 02.03.2005 and sentenced them to undergo rigorous imprisonment for 11 years each and to pay a fine of Rs.1,00,000/- each and in case of default to pay fine, they were further sentenced to undergo rigorous imprisonment for one year each.
16. Hence, the present appeal.
SUBMISSION OF LEARNED COUNSEL FOR THE PARTIES
17. Learned counsel for the appellants contends that mandatory provisions of the NDPS Act were not complied with and even the sample seal alongwith sample parcels was not sent to the office of Chemical Examiner. Therefore, he prays for setting aside the judgment of conviction and order of sentence dated 02.03.2005.
18. Per contra, learned counsel for the respondent-State argues on the lines of judgment dated 02.03.2005 and contends that the appellants have rightly been convicted and sentenced.
19. We have heard the learned counsel for the appellants as well as learned State Counsel and perused the whole record of the case in hand.
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20. HC Jagtar Singh was examined as PW-1. His statement and his cross-
examination are reproduced as under:-
"PW1 HC Jagtar Singh No.132, P.S. Mehal Kalan on S.A.: -
On 13.10.96 I was posted in P.S. Tapa as MHC. My evidence is of formal nature. I tender into evidence my affidavit Ex. PA, which is correct and signed by me and is fully sworn by me before JMIC, Barnala. It may be read as part of my statement.
XXXXXXXXXXXXXXXXXX XX XX by the counsel for the accused-
Ex. PA is not in my hand. It was recorded by ASI Harbhajan Singh at my direction. The case property was deposited with me on 13.10.96. at 5-30 A.M. I did not produce the case property before the Ilaqa Magistrate. I got the affidavit attested form SDJM, Barnala Sh. G.S.Saran on 5.12.96. It is incorrect to suggest that the case property was not deposited with me. It is also incorrect to suggest that I had not handed over the case property to C.Garmit Singh. It is also incorrect to suggest that I have tendered false affidavit into evidence.
I do not remember that on 5.12.1996. I had made any entry in the DDR regarding my departure from the P.S. for getting the affidavit attested from the court at Barnala. At the time of the case property the specimen seal impression chit was also deposited with me, but CFSL from Mark-A was not deposited with me on that day.
Sd/-
RO&AC Special Judge,
Sd/- 23.4.99."
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Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -9- A perusal of the cross-examination of aforesaid PW-1 HC Jagtar Singh shows that the case property was deposited with him on 13.10.1996 at 05:30 A.M. and he did not produce the case property before the Illaqa Magistrate.
21. SI Nachattar Singh was examined as PW-2. His statement and his cross-
examination are reproduced as under:-
"PW.2. Statement of S.I. Nachattar Singh, SHO, Police Station, Tapa.
On S.A. On 12.10.96, I was posted as SHO Tapa on that day I alongwith ASI Harbhajan Singh, CII Avtar Singh, C. Sukhjant Singh and other officials was present in the official Allwayan Nissan bearing No. PB-13B-4337 at the bridge of canal minor in the area of Pakho Kalan which is situated on Tajo Ke to Pakho Kalan road. In the meantime, Inder Singh PW came there on a cycle and was joined. In the meantime, truck No. PNC-8011 came from the side of village Pakho Kalan and halted at once on seeing the police party. The driver of the truck tried to slip away but was apprehended on the suspicion and his name was enquired by me. The driver was accused Gurmukh Singh present in the court. The Paraly paddy (chaff) was loaded to the rear portion of the said truck. Accused Soma Singh Shamsher Singh present in the Court were sitting on the said parali in the rear portion of the truck. I enquired their names and parents alongwith address. I then told all the accused that there appears to be some illicit article under paraly lying in the truck which was required to be searched a and that if the accused so desired, then some Magistrate or G.O. (Gazetted Officer) could be summoned there. The accused then opted for the search before the Gazzetted Officer. Statements of the accused were separately recorded in this 9 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -10- regard which are ExPA, ExPB, and ExPC, respectively belonging to Soma Singh and Shamsher Singh and Gurmukh Singh. It was read over to all the accused, and were thumb marked by accused Soma Singh and Shamsher Singh and was, signed by Gurmukh Singh in token of its correctness. All the statements were attested by ASI Harbhajan Singh and Inder Singh PW. I then sent a wireless message to P.S. Tapa for summoning G.O. (Gazzetted Officer) disclosing my location etc. in the message. After some time DSP Darshan Singh of Tapa came there on his official Gypsy alongwith staff. I narrated the matter to him. The said DSP gave introduction to the accused as G. Officer and at his direction I conducted search of the aforesaid truck which was recovered from the accused and therefrom 10 heavy bags were recovered from under the aforesaid paraly loaded in the truck. Each bag was marked with no.1 to 10 and was checked and it was found to contain poppy husk. Two samples each weighing 250 grams were drawn from each of the gunny bag and 20 samples parcels were prepared in the process, each bag was then weighed and was found to contain 39.500 grams poppy husk which was kept in the same bag. All the bags referred above the parcels referred above were then seal by me with my seal bearing impression NS and with the seal of DSP specimens of the seal were prepared and the seal after used was handed over to ASI Harbhajan Singh. The case property was taken into possession i.e. the bags of poppy husk and samples and specimens of seal vide memo Ex. PD which was attested by Inder Singh and ASI Harbha jan Singh, CII Avtar Singh and DSP Darshan Singh. The paraly and the truck No. PNC-3011 were taken into possession vide memo Ex. PE which was attested by all the aforesaid witnesses. I dictated ruqa Ex. PF 10 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -11- to ASI Harbhajan Singh and signed the same and sent it to the police Station though MHC Jagtar Singh on the basis of which formal FIR Ex. PF/1 was recorded again said the ruqa was taken by C. S. Sukhjant Singh and the FIR was recorded by MHC Jagtar Singh who signature I identified there on and I have been seeing him signing and writing. Upon personal search of the accused, a sum of Rs.300/- was recovered From Gurmukh Singh, a sum of Rs.50/-was recovered from Shamsher Singh and a sum of Rs. 250/- was recovered from accused Soma Singh which were taken into possession vide memos Ex.PC, Ex.PE and Ex.PJ respectively, which were thumb marked by Gurmukh Singh and Shamsher Singh and Soma Singh and attested by all the aforesaid PWs and the DSP. I also prepared rough Site plan Ex..PJ in my hand with correct marginal notes. I recorded the statements of the witnesses and arrested the accused after discliding grounds to arrest to them and after returning to the police station I deposited all the case property alongwith specimen of seal with MHC Jagtar Singh with seal intact. Nobody tempered with the seal of the case property in any manner till it remained in my possession at that time. Upon completion of investigation the accused by Challaned by Parshan Singh S.I. S.HO. One of the set of sample parcel is Ex. P2 to Ex. P11, the bags containing residue poppy husk are Ex. P12 to Ex P21, The truck has not been produced by the sapurdar today in the court. XXXXXXX XXXX by Sh. J.S.Dhillon, Adv. on behalf of accused Gurmukh Singh and Shamsher Singh.
We had reached at the place of occurrence at about 5.45 P.M. I do not remember as to whether the Sun had already set when we reached that place or not. The accused came in the said truck after about 15 minutes of our reaching that spot.
11 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -12- Inder Singh PW was not known to me earlier. I do not remember if Inder Singh had been cited as a prosecution witness in other cases of PS. Tapa also by me. Which were registered prior to the case in hand. I do not remember at random as to whether said Inder Singh had been arrayed as a witness in one case titled as State Vs. Bhanta Singh under the Arms Act, of PS Tapa. It is wrong that Inder Singh was stock witness of our police station and was known to me earlier. Inder Singh appeared to be 50 years of age. He was wearing Kurta Pajama and was supporting a parna. He had joined us about 10 minutes earlier to the arrival of the accused. The place of recovery is about 8 Km away from the police Station and towards southern side from the police station. Head lights of the truck were not on when it was spotted by us. I do not remember as to whether on that day, a case pertaining to accident between a tanker and a bus was registered at PS Tapa or not. I do not remember as to what proceedings I had carried out on that prior to departure or reaching in this case at the spot. I do not remember as to whether I had left the police station for any other purpose on that day prior to leaving the police station in connection with patrol of this case. Gurmukh Singh was about run and was just alighting from the truck when he was apprehended. His one foot had touched the ground and the other foot was on the footrest near the mudguard of driver's side while he was apprehended. He was alone in the driver champer. I did not have a direct contact with the DSP on wireless on that day. It is correct that it is mentioned in the ruqa that all the accused appended their respective thumb impressions on the or statements. Volunteered it was inadvertently mentioned that the accused had thumb marked as per the ruqa, but in fact they had signed 12 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -13- and thumb marked i.e. two had thumb marked and one had signed the statements. It is correct that I had never made mention of my volunterred statement anywhere in the record. Accused Soma Singh had thumb marked his statement and out of other two one had signed and one had thumb marked their statements, but now I do not remember as to who had signed and who had thumb marked the statements. Beside accused Soma, I cannot tell as to which of rest of the accused had signed or thumb marked the other documents. DSP reached at the spot at about 7.00 p.m from the side of police station from the northern side. DSP did not record any statements of the accused I do not whether DSP Darshah Singh ORP at that. I do not know whether Darshan Singh DSP was not drawing the salary of DSP. When the DSP came, the accused were standing behind the truck. The truck at that time was facing northern side. When truck came at the spot our vehicle was parked in northern side from the truck. We were standing at the spot in connection with patrolling. The flow of the water of the canal was from north to south, but I do not know whether the water was running at that time. I was standing towards the Tajo side from the village and if one comes from village Tajo, I was on the left side of the road.
Q. On which side of the direction of the bridge of canal minor the truck was stopped or signalled to stop? Ans. The truck at that time was on the eastern side of the bridge of canal minor.
I did not hand over the consent memos of accused to DSP on his arrival.
Weights, scale and the bags (Guthlian) were brought by the official. However, I was holding a small scale and small weights with me. The. official who had gone to bring weights 13 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -14- and scale had brought Farshi Kanda and weights of the denomination of 20 Kg. and 10 kg. The Farshi Kanda was Installed by me for weighing the incriminating substance. 30kg. weight was put on the scale, there after it was to be adjusted as per the weight. As per scale 20 kg was represented by 20 kg on the scale and similarly 10 kg was represented by 10kg. The scale was brought on the vehicle by the police party. The official had gone to bring the scale at 7.00 P.m. and reached back at 7.30 p.m. I do not know the owners of the field surrounding the place of recovery. DSP remained at the spot at about up to 1.30 a.m. Ruqa wala had gone after the departure of DSP. Official of ruqa had gone on cycle and came back on cycle. It was revealed by the accused interrogation that they had load the Incriminating substance in the truck. It was never revealed from where the chaff and the incriminating substance was loaded but it was told that the chaff and the incriminating substance had brought from Rajasthan. I did not raid the fat place of loading of the truck Inder Singh remained at the spot at about 5.00 a.m. He had gone from us towards Tajo Vill. We returned to the police station at 5.30 a.m. The writing work was done in the head lights of Allwyan Nissan while sitting on the bridge of canal minor. Arrest of the accused was recorded in the papers at about 4:00 a.m. On our way back, the truck was driven by CII Avtar Singh and I had sat by his side. I do not remember by whom the accused were produced before the Magistrate. I cannot tell whether I had brought the accused to court personally or not. The accused were produced before the magistrate on 13.10.96. I do not remember if I had filed any application for seeking police remand of the accused. The accused were however remanded to police custody by the Magistrate on 13.10.96. I do not remember as to on which next 14 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -15- date the accused were produced before the Court. I do not remember if the accused were ever produced before the magistrate by me. The personal search memo were prepared by 10.30 p.m. on 12.10.96. DSP has also signed those memos. The seal after use again said the seal was returned to me on the following day i.e. on 13.10.96. to me, but I do not remember the exact time. It was returned to me after noon. I have not seen the sample seal today in the court file. My seal was square in shape and was made in silver, again said I have seen specimen of seal in the court file and it was inadvertently stated by me in the earlier part of my cross examination. It is incorrect that Gurmukh Singh accused had loaded 10 tonnes of zipson Sava town of Rajasthan on 11.10.96. I do not know if the accused had got a builty issued from said place regarding the above said consignment. I do not remember if ASI Harbhajan Singh was investigating an accident case in the area of Tapa on 12.10.96. prior to our alleged departure from the police station and the said accident was being investigated by him Bathinda Barnala Road near the petrol pump. It is incorrect that Gurmukh Singh got his truck filled with petrol from that petrol pump. It is wrong that ASI Harbhajan Singh tried to stop the accused but the accused did not stop. It is incorrect that the accused alongwith his said truck was taken back by ASI Harbhajan Singh from Handiaya where the accused was at Punjabi Phaba. It is wrong that the accused taken away from the said place in the presence of Paramjit Singh @ Pammi son of Raghbir Singh and Jagga Singh, both rs/o Dhuri. It is wrong that Shamsher Singh was sitting in that truck at that time being cleaner of the truck. It is wrong that we disposed of zipson of the accused and involved them in this case. It is wrong that no recovery of poppy husk was effected 15 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -16- from the accused. It is wrong to say that the papers of bilty of zipson were destroyed by us. It is wrong that DSP Darshan Singh's signature were obtained from his office.
XXXXX XXXXX XX by Sh. Jagsir Singh Adv. proxy counsel for accused Soma.
It is wrong that accused Soma was not arrested as claimed by me. It is wrong that I have deposed falsely. It is incorrect that the seals of the bags are broken and the same do not bear any identification mark of the case particular.
RO & AC Sd/-
Sd/- JSC, 22.3.2002."
A perusal of the above statement of PW-2 SI Nachattar Singh shows that 10 heavy bags were recovered under lying the paddy chaff (parali) loaded in the truck. Each bag was marked with No.1 to 10 and was checked and it was found to contain poppy husk. Two samples each weighing 250 grams were drawn from each of the gunny bag and 20 samples parcels were prepared in the process. Each bag was then weighed and was found to contain 39 Kgs. 500 grams poppy husk, which was kept in the same bag. All the bags were then sealed by him with his seal bearing impression 'NS' and with the seal of DSP, specimens of the seal were prepared and the seal after use was handed over to ASI Harbhajan Singh. This shows that no homogeneous mixing of the poppy husk was done before taking samples.
In his cross-examination, he stated that he along with other police officials reached at the place of occurrence at about 5:45 P.M., whereas, DSP reached at the spot at about 7:00 P.M. He further stated that the DSP did not record 16 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -17- any statement of the accused. Further stated that he did not know whether the DSP Darshan Singh was ORP at that time and whether the said DSP Darshan Singh was drawing the salary of DSP or not? He further stated that he did not remember that by whom the accused were produced before the Magistrate and whether he had brought the accused to the Court personally or not? He again submitted that he did not remember whether the accused were ever produced before the Magistrate by him or not?
22. ASI Harbhajan Singh, CIA Staff, Barnala, was examined as PW-3, who in his cross-examination stated that the contents of poppy husk were not made homogenous before drawing the samples, which were drawn from the place of recovery. He further stated that he did not produce the accused or the case property before the Magistrate.
23. DSP Darshan Singh, Sub-Division, Ferozepur, was examined as PW-4, who in his cross-examination stated that neither consent memos were produced before him nor did he signed the same.
24. Ex.PY is the Chemical Laboratory Report, which is reproduced as under:-
"Copy of Ex. PY /29.4.04.
2821-Ex 6-11-96.
CHEMICAL LABORATORY Report on the analysis of the samples of Poppy head, forwarded by, S.S.P, Barnala referred to in his endst No.516/EXB dated:- 14.10.96.
17 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -18- The exhibits marked here 48-P-Oct-96 to 57-P-Oct-96 were received on 15.10.96 with the particulars overleaf. The seals of the exhibits were intact on arrival and agreed with the specimen seal sent. The exhibits remained in my safe custody after its receipt, till the time its analysis was started. The analysis of the samples marked here 48-P-Oct-96 to 57-P- Oct-96 are as under.
The analytical data is enclosed here with.
OPINION: - The analysis indicates that the contents of the exhibits marked here 48-P-Oct-96 to 57-P-Oct-96 are of PoppyHead.
Sd/-
(Hargobind Singh) M.Sc. Ph.D,
( ) Public Analyst-Cum-Asstt-Chem-Exam-to,
Stamp Govt-Punjab - Chandigarh.
SEAL Sd/-28.10.96.
OF
Ex. PY
Sd/-
JSC, 29.4.04."
A perusal of aforesaid Chemical Examiner report shows that it does not reveal the number of seals and number of sample receipts and there is no proper return by chemical examiner by further sealing it with English 'alphabet'.
25. This Court in CRA-S-5190-SB-2015 titled as "Deepak Kumar Vs. State of Punjab" along with other connected appeals, decided on 18.09.2024, held as under:-
"6. Before proceeding to render an answer to the substantial question of law (supra), the making of allusion(s) to the standing 18 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -19- order No.1/89, as drawn by the Government of India, Ministry of Finance (Department of Revenue), is of utmost importance. In clause 2.3 and 2.4 thereof, clauses whereof becomes extracted hereinafter, it becomes elucidated that the quantity to be borne in each sample, thus for a chemical test becoming made thereons at the laboratory concerned, shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances.
"2.3 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 psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required 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 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 one package/container."
7. However, it has been further elucidated therein, that if seizure of opium, ganja and charas (hashish) takes places, thereupon the sample to be derived from the bulk is to be weighing 24 grams, thus for the same becoming sent for testings to the laboratory concerned. Similarly, for the duplicate sample also, the same or similar quantities become envisaged thereins. Moreover, the seized drugs in the packages/containers, become thus prior to the samples (supra) becoming drawn from the bulk, rather ordained to become well mixed or being homogeneously mixed. However, in case of the seizure taking place of a single package or container, thereupon it is 19 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -20- contemplated in the above extracted provisions, that only one sample in duplicate shall be drawn.
8. Furthermore, the Government of India, Ministry of Finance (Department of Revenue), has issued a notification, on 23.12.2022, whereins, in Chapters II and III thereof, certain provisions are carried in Clauses 4 to 11 thereofs. The said clauses become extracted hereinafter.
"4. Designation of godowns. - (1) The godowns for storage of narcotic drugs, psychotropic substances, controlled substances, conveyance and other articles seized under the Act shall be designated by:-
(a) the department and agencies of the Central Government whose officers have been delegated powers of an officer-in- charge of a police station under section 53 of the Act;
(b) The State Police and the department and agencies of the State Government whose officers have been delegated powers of an officer-in-charge of a police station under section 53 of the Act.
(2) Godowns referred to in sub-rule (1) shall be identified taking into consideration the security aspect and juxtaposition to court of law and such godowns shall be placed under the over-all supervision and charge of an officer of Gazette rank of the department and agencies referred to in sub-rule (1).
5. Deposit in godowns. - (1) All seized materials referred to in sub-rule (1) of rule 3, after seizure under the Act shall be deposited by the seizing officer in the nearest godown designated under rule 4 within forty-eight hours from the time of seizure alongwith a forwarding memorandum in Form-1:
Provided that the said time period may be relaxed by further twenty-four hours after providing of reasonable justification by 20 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -21-
the officer to whom the seized material has been forwarded under sub-section (3) of Section 52 of the Act.
(2) The officer in-charge of a godown, before giving an acknowledgement of receipt in Form-2, shall satisfy himself that the seized materials are properly packed, sealed and in conformity with the details mentioned in Form-1. (3) The officer, who had seized the material, shall hand over the acknowledgement of receipt of seized material in Form-2, along with all other documents relating to the seizure, to the Investigating Officer for further proceedings.
6. Storage of seized material in godown. - (1) After receipt of the seized material, the officer in-charge of the godown shall ensure that the seized material is properly arranged, case- wise, for quick retrieval.
(2) The officer in-charge of a godown shall maintain a register of material received in the godown in Form-3.
(3) All seized material, excluding the conveyances, shall be stored in safes and vaults with double lock.
7. Inspection of godown. - (1) The department and agencies referred to in rule 4 and the State Police shall designate an Inspecting Officer for each godown, who shall be higher in rank to that of the officer in-charge of the godown. (2) The Inspecting Officer referred to in sub-rule (1) shall make periodical inspection of the godown, at least once in every quarter, and shall record his remarks in the godown register in Form-3 with respect to security, safety and early disposal of the seized material.
(3) The departments and agencies, referred to in rule 4 and the State Police shall maintain periodical reports and returns to monitor the safe receipt, deposit, storage, accounting and disposal of seized materials under the Act.
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8. Application to Magistrate. - After the seized material under the Act is forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53 of the Act or if it is seized by such an officer himself, he shall prepare an inventory of such material in Form-4 and apply to the Magistrate, at the earliest, under sub-section (2) of section 52A of the Act in Form-5.
9. Samples to be drawn in the presence of Magistrate. - After application to the Magistrate under sub-section (2) of section 52A of the Act is made, the Investigating Officer shall ensure that samples of the seized material are drawn in the presence of the Magistrate and the same is certified by the magistrate in accordance with the provisions of the said-sub- section.
10. Drawing the samples. - (1) One sample, in duplicate, shall be drawn from each package and container seized. (2) When the packages and containers seized together are of identical size and weight bearing identical marking and the contents of each package give identical results on colour test by the drugs identification kit, conclusively indicating that the packages are identical in all respects, the packages and containers may carefully be bunched in lots of not more than ten packages or containers, and for each such lot of packages and containers, one sample, in duplicate, shall be drawn:
Provided that in the case of ganja, poppy straw and hashish (charas) it may be bunched in lots of not more than fourty packages or containers.
(3) In case of drawing sample from a particular lot, it shall be ensured that representative sample in equal quantity is taken from each package or container of that lot and mixed together 22 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -23-
to make a composite whole from which the samples are drawn for that lot.
11. Quantity to be drawn for sampling. - (1) Except in cases of opium, ganja and charas (hashish), where a quantity of not less than twenty-four grams shall be drawn for each sample, in all other cases not less than five grams shall be drawn for each sample and the same quantity shall be taken for the duplicate sample.
(2) The seized substances in the packages or containers shall be well mixed to make it homogeneous and representative before the sample, in duplicate, is drawn.
(3) In case where seized quantities is less than that required for sampling, the whole of the seized quantity may be sent."
9. Tritely put, in the above extracted statutory provisions, it has been mandated, that the representative sample to be derived from the bulk rather is required to be so drawn only after the entire seized bulk becoming homogeneously mixed. Moreover, thereins also exist, thus provisions relating to the apposite quantities becoming enclosed in the sealed cloth parcels, besides exist provisions with respect to prompt dispatches being made of the apposite samples for therebys testing being made at the laboratory concerned. Moreover it also becomes ordained therein, that expeditious testings, thus are required to be made by the Chemical Examiner concerned, vis-a-vis the stuff enclosed in the samples parcels, as become sent to him, for analyses thereons becoming made. Imperatively also thereins becomes underlined the necessity of remnants of samples becoming returned with reference to the test memo, to the office from where the samples were received, but within three months after analysis becoming made thereovers at the Laboratory concerned.
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10. However, immediately after acceptance of the test report by the Court of the Magistrate, the duplicate sample held by the Investigating Officer becomes ordained to become deposited in the godown referred to in Rule 5 along with the remnants of the sample.
11. The inference(s) is to be drawn therefroms are that, the said above extracted provisions, relate to the inventory becoming drawn in terms of Section 2 of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"), thus in the presence of the Magistrate, by the investigating officer concerned. The said provisions becomes extracted hereinafter.
"[52A. Disposal of seized narcotic drugs and psychotropic substances.--[(1) xxx (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-
section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared; or 24 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -25-
(b) taking, in the presence of such magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of 1[narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.]"
12. Though, the said reference does not cover the subject relating to the creation of storage facilities in the police malkhana concerned, nor the subject reference relates to prompt dispatches being made of the samples to the laboratories concerned, rather for ensuring that the stuff enclosed therein becoming promptly examined nor also though the subject appertains to expeditious testings being made vis-a-vis the stuff inside the sample parcels. Moreover, though the subject at hand also does not relate to the return of the tested sample to the office wherefrom it became received nor does it deal with the said returned parcels, thus enclosing thereins the stuff examined, becoming produced before the Court concerned along with the test report.
13. Nonetheless, even if the above aspects do not fall within the subject reference, but the alluded to (supra) provisions existing in the notification (supra) do beget striking conclusion qua:
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a) There being an imperative necessity of testings being made of the stuff inside the sample parcels.
b) The inventory as becomes prepared in the presence of Magistrate concerned, in terms of Section 52A of the Act, but without testings of the stuff enclosed in the sample parcels, thus being made at the laboratory concerned, rather per se not acquiring the utmost evidentiary vigor.
14. Moreover, thereins as an obligation becomes cast upon the police department concerned, to ensure the creations of adequate storage facilities in the malkhanas concerned, as well, as an obligation becomes cast upon the investigating agencies, to make prompt dispatches of the samples to the laboratories concerned, so that, the enclosed thereins stuff becomes examined.
15. Tritely also the return, of the examined stuff inside the said parcels, to the police malkhana concerned, thus subsequent thereto apposite production in Court along with the test report becomes enshrined therein, to be an imperative obligation made upon all concerned, whereafters, thus on conclusion of trial the produced in Court case properties is to be ordered to be deposited in the godown concerned.
16. 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, it has been enshrined that the alluded to (supra) necessities are the required to be proven sine qua non, thus for the charge drawn against the accused becoming declared to become unflinchingly proven.
"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 26 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -27- 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."
17. Now the above referred to notification(s) issued by the Government of India, appear to also become aprobated by the Hon'ble Apex Court, in a judgment rendered case titled as "Gaunter Edwin Kircher V. State of Goa, Secretariat Panji, Goa", Criminal Appeal No.642 of 1991, decided on 16.03.1993. The above appears to be in tandem with the verdict 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, 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."
18. The ire point relating to the unneccessity, of laboratory testing being made of the entire recovered stuff, but is grooved in the factum, that the hereinabove alluded to provisions as carried in the notification (supra), do cast an obligation upon all concerned, to ensure that only after the entire seizure becoming homogeneously mixed, qua thereafters from the bulk rather residue samples becoming drawn but in the mode, manner and quantities detailed hereinabove.
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19. It appears that given the immensity of the weight of the apposite bulk seizure, that therebys after the concerned, thus homogeneously mixing the bulk seizure, hence evidently of an immense weight, whereafters the concerned become enjoined to draw samples from the bulk. Reiteratedly, the immensity of the weight of the apposite seizure is curable by the drawings of residue samples from the bulk, but only when prior thereto rather the entire bulk becomes homogeneously mixed. Consequently, therebys the constraining factor of inadequacy of spaces within the laboratory concerned, wherebys the laboratory concerned, may on account of shortage of spaces there, thus may become precluded to examine the entire bulk, thus appears to become eased. As such, to avoid the immense load of the entire bulk seizure travelling to the laboratories concerned, that derivative samples from the bulk are envisaged but only after such derivation taking place rather from the bulk but only after all concerned, reiteratedly homogeneously mixing the entire bulk seizure, otherwise not.
20. Conspicuously, the hereinabove extracted respective standing order and notification become declared by a judgment rendered by the Hon'ble Apex Court in case titled as "Noor Aga V. State of Punjab and another" Criminal Appeal No.1034 of 2008, decided on 09.07.2008, to be holding a mandatory character and also become ordained therein to be requiring completest adherence. Contrarily on breach thereof becoming made, therebys may be the accused would become entitled to an acquittal.
21. Furthermore, in case the entire bulk is homogeneously mixed and derivative samples are derived therefroms, resultantly the effect thereof would be that, the incriminatory finding as become recorded on the stuff inside the sample parcels as sent to the laboratory concerned, thus would acquire a presumption of truth, irrespective of the fact that the entire bulk wherefrom the derivative samples are 28 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -29- borrowed, but after the entire seizure becoming homogeneously mixed, rather not becoming sent for analyses thereovers, being made at the laboratory concerned. Contrarily, in case the entire bulk seizure remains not homogeneously mixed, thereupon the charge drawn against the accused appertaining to the weight of the entire weight of the seizure, de hors affirmative results being made in respect of the stuff inside the residue sample parcels, as, sent to the laboratory concerned, rather would come under a cloud of doubt, whereupon benefit thereof would accrue to the accused.
22. As an illustration, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity, but proper procedure has to be followed, without which the results would be negative.
23. Reiteratedly, in case, the derivative samples from the bulk are drawn but without the entire bulk seizure becoming homogeneously mixed, thereupon the laboratory examination of the stuff inside the sample cloth parcels rather would not prove the charge relating to the weight of the entire bulk seizure taking place, at the crime site, thus from the alleged conscious and exclusive possession of the accused.
24. Contrarily, in case the entire bulk seizure is not homogeneously mixed or when the narcotic drug(s) or psychotropic substance, does become carried in different vials or in different packets, besides upon the said mode(s) of carryings of (supra), becomes not homogeneously mixed, thereupons, even if a fragment 29 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -30- or a portion thereof becomes extracted from one vial or only from one packet, thus for creating a residue parcel, it would beget the ill consequence of the accused becoming entitled to an acquittal. Resultantly, when despite the evident absence of apposite homogeneous mixings of the entire bulk, be it borne in packets, containers or be it being carried in different vials, besides when only a part of the fragment or portion of the seizure or only one or two of the vials, yet the said extracted fragment becomes sent for examination to the laboratory concerned, but the apposite affirmative laboratory examination as becomes made vis-a-vis the stuff inside the sample parcels, rather would not make the charge drawn against the accused, thus for his allegedly exclusively and consciously possessing, the entire seizure, thus also becoming efficaciously proven.
25. Conspicuously when for the drawing of an effective conclusion, that the charge drawn against the accused for his allegedly consciously and exclusively possessing, the entire bulk, but requires that only after homogeneous mixing of the bulk seizure, taking place, be it of psychotropic substance, in vials or in any other mode or be it with respect of narcotic drugs carried in whatsoever mode, rather residues therefroms becoming drawn, whereafter an affirmative finding on the stuff inside the residues, is required to be made by the Chemical Examiner concerned.
Sample procedure in respect of psychotropic substance
26. In case no batch number is mentioned, in the recovered psychotropic substance, thus carried in the form of tablets/strips, thereupon at least one of the tablets from all the relevant strips rather is to be extracted, as residue sample and the same is required to be sent for testings being made thereovers, at the laboratory concerned. However, in case batch number is mentioned in all the recovered bulk strips, thereupon only one of the tablets in the entire 30 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -31- haul is required to be sent for testings being made thereovers, at the laboratory concerned. However, the quantity of the sample to be derived from the bulk is to be in terms of the provisions (supra), but with a further safeguard that not only vis-a-vis the entire bulk but also vis-a-vis the sample parcel, the relevant batch number is required to be made on the covers of each of the sealed cloth parcels.
27. Therefore, the sampling procedure in respect of bulk seizure of the apposite psychotropic substance, ordains that the making of the bulk seizure, besides derivation of a sample parcel, therefroms would be vitiated unless adherence becomes made to the hereinafter extracted underlined canons.
"(v) It has also come in the evidence that there was no batch number, name of manufacturer or other details given on the bottles of Rexcof syrup and therefore, the sample of one bottle taken, was also not in accordance with the procedure laid down under the aforesaid standing order. In view of the judgment of this Court in Harjinder Singh (supra), the sealed sample cannot be held to be a representative parcel of the entire bulk allegedly recover from the appellant"
26. Relevant portion of the judgment dated 02.03.2005 is reproduced as under:-
"21. I have given my thoughtful consideration to the arguments advanced by the Ld. Addl. P.P. for the State and the Counsel for the accused. As regarding the non-examination of Inder Singh PW by the prosecution and his appearance in defence is concerned, the statements of such like unscrupulous persons should not be given any due weight, because the smugglers and illegal traders, who are involving in this illegal trade of poppy husk used to influence and over power the private witnesses by their muscle and money poser.
31 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -32- A tendency has developed in the society to criticize the Law Courts and law enforcing agencies, that is why no body from the public would like to assist the law. In reply to the authorities cited by the Id. Counsel for the accused about the appearance of Inder Singh in defence being a prosecution witness, the ld. Addl. P.P. for the State cited latest authorities reported in 1999 (2) R.C.R. (Cril) - 803, 2000 (1) R.C.R. (Cril)- 541, 2003(2) R.C.R. (Cril)- 256 - DB all of our Hon'ble High Court as well as 1999 (3) R.C.R. (Cril) - 499 AND 2004 (1) R.C.R. (Cril) 81, both of Apex Court of India. So these authorities cited by the ld. Addl. P.P. for the State have given a befitting reply to the authorities cited by the ld. Counsel for the accused, with regarding to the appearance of PW Inder Singh in defence as DW 3.
22. As regarding non-preparation of report U/s 57 of the ND & PS Act is concerned, it is directory in nature only and not mandatory at all. On this point Id. Addl. P.P. for the State has relied upon 2001 (3) R.C.R. (Cril) - 808 AND 2003(2) R.C.R. (Cril) 256 (DB), both of our Hon'ble High Court. These authorities have given a very good reply to the arguments advanced by the ld. Counsel for the accused in non-preparation of report U/s 57 of the ND & PS Act, is concerned. It is further pertinent to mention here that Section 50 of the ND & PS Act will not be applicable in this case, because the poppy husk was recovered from the truck and not from the personal search of the accused. On this point I am fortified by the latest authorities of the Hon'ble Supreme Court of India reported in 2004 (2) R.C.R. (Cril) 960 AND 2003(4) R.C.R.(Cril)-100.
23. As regarding the non-production of case property by SI Nachhatar Singh before the SHO, is concerned, it is pertinent to mention here that SI Nachhatar Singh was himself SHO at the time of recovery and he was the only Senior Officer in the police station, he was not supposed to produce the case property and the witnesses 32 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -33- before any junior officer to him. On this point, I am fortified by the authority of our Hon'ble High Court, which is latest in time reported as 2004 (3) R.C.R. (Cril) 274, further reported in 2004(1) R.C.R. (Cril) 96 (Supreme Court).
24. As regarding the discrepancies pointed out by the ld. Counsel for the accused are concerned, such like minor discrepancies are bound to occur with the passage of time. The recovery was effected from the accused in the year 1996, while the prosecution evidence concluded in this case in the month of year 2004. So, with the lapse of these 7 to 8 years time, human memory is bound to fade. Moreover, such like minor discrepancies in case of heavy recovery, have no ground to disbelieve the prosecution witnesses. Ld. Addl. P.P. for the State on this point in reply to the authorities cited by the Id. Counsel for the accused, relied upon 1999(2) R.C.R. (Cril) 848, 2000(3) R.C.R. (Cril) 337, both of our Hon'ble High Court.
25. As regarding the non-Gaz. Rank of DSP Darshan Singh on 12.10.1996 is concerned, DW 4 in his cross - examination, admitted that if any police personnel is promoted in the policy of Own Rank Pay, he is supposed to exercise the power of the rank for which he has been promoted. Said DSP Darshan Singh was drawing the salary of DSP, on the day of recovery of contra-band from the accused. Moreover, an authority of our Hon'ble High Court reported in 1999 (4) R.C.R. (Cril) 127 is on the same point. In this authority, it was a case of ND & PS Act convicted by the Addl. Sessions Judge, Barnala. In this case, the Gaz. Officer was DSP Darshan Singh, who is also a Gaz. Officer in this case. That recovery was in the year 1995 and our Hon'ble High Court held that DSP Darshan Singh, was a Gaz. Officer on the day of recovery. Similar is the position in the instant case. So this authority has given a good reply to the arguments advanced by the learned Counsel for 33 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -34- the accused with regard to the alleged non- Gazetted status of DSP Darshan Singh on 12.10.1996.
26. As regarding the charge against accused Gurmukh Singh U/s 25 of the ND & PS Act, 1985, that he being the owner of the truck No. PNC 8011 used the truck for carrying poppy husk is concerned, the prosecution has failed to prove on the file that Gurmukh Singh accused is the owner of truck No. PNC 8011, because as per the statement of PW 5 Sukhjit Singh, Registration Clerk, from the office of DTO, Sangrur, in the record of DTO Sangrur, truck No. PNC 8011 is owned by Gurpartap Singh and Gursewak Singh sons of Nirbhai Singh residents of Barnala. The prosecution has relied upon affidavit Mark- A to connect Gurmukh Singh with the truck, but the deponents of Mark - A namely Gurpartap Singh and Gursewak Singh owners of the truck, has not been examined by the prosecution, though they were cited as witnesses. It is settled law that a marked document, cannot be read into evidence. So accused Gurmukh Singh stands acquitted of the charge framed against him U/s 25 of the ND & PS Act.
27. From the totality of the discussion, held above, and by relying upon the authorities with regards, cited by the ld. Addl. P.P. for the State and the ld. Defence Counsel. I came to the conclusion that the prosecution has been able to prove its case against all the accused U/s 15 of the ND & PS Act, 1985. Accordingly they are convicted there under. They be taken into custody. Let they be heard on the quantum of sentence."
27. A perusal of the record as referred to above shows that there is no homogeneous mixing of the poppy-husk, which was in 10 bag parcels.
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28. There is no compliance of Section 52(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 52(A) of NDPS Act is reproduced as under:-
"52A. Disposal of seized narcotic drugs and psychotropic substances.-- [(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.] (2) Where any 3[narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such 3[narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the 3[narcotic drugs, psychotropic substances, controlled substances] or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the 3[narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an 35 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -36-
application, to any Magistrate for the purpose of--(a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of 4[such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of 5[narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
29. After perusing the whole record of this case, this Court finds the following discrepancies/lack of investigation as per the statutory provisions and law laid down by this Court as well as by the Hon'ble Supreme Court:-
i) A perusal of the record as referred to above shows that there is no homogeneous mixing of the poppy-husk, which was in 10 bag parcels.
ii) A perusal of the cross-examination of SI Nachattar Singh shows that he along with other police officials reached at the place of occurrence at about 5:45 P.M., whereas DSP Darshan Singh reached at the place of occurrence at about 7:00 P.M. and he conducted the search of the truck, which was recovered 36 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -37-
from the accused at the directions of DSP Darshan Singh.
There is nothing on record to show that there is a compliance of Section 42 of the NDPS Act since no search warrant was ever obtained by police officials for conducting the search of the truck.
For reference, Section 42 of the Act is reproduced as under:-
42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (i) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept 37 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -38-
or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub- inspector:
Provided further that] if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed 38 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -39-
place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy- two hours send a copy thereof to his immediate official superior.]
iii) There is no compliance of Section 52(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
iv) A perusal of Chemical Examiner report as referred to above does not reveal the number of seals and number of sample receipts and there is no return by chemical examiner by further sealing it with English alphabet.
v) Further, there is non-production of parcel containing residue as separated from the bulk, at the crime site before the learned Trial Court along with Chemical Examiner report.
Since there are grave lapses in the prosecution case, therefore, the benefit of doubt is liable to be given to the accused/appellant.
FINAL ORDER
30. In view of the above discussion this Court finds merit in the present appeals and is constrained to allow them. Consequently, the present appeals are allowed. Impugned judgment and order dated 02.03.2005 convicting and sentencing the appellants by learned trial Court are and set aside. The appellant No.1 i.e. Gurmukh Singh in CRA-D-237-DB-2005 and appellant-Soma Singh in CRA-D-327-DB-2005 are acquitted of the charges framed against them. The fine 39 of 40 ::: Downloaded on - 23-11-2024 11:34:30 ::: Neutral Citation No:=2024:PHHC:148742-DB CRA-D-237-DB-2005 (O&M) CRA-D-327-DB-2005 (O&M) -40- amount, if any, deposited by them, in accordance with law, be refunded to them.
The personal and surety bonds of the accused shall stand forthwith cancelled and surety stands discharged. The case property be dealt with in accordance with law, but after the expiry of period of limitation for filing of an appeal or revision, if any, and records of the learned trial Court be sent down forthwith.
Since Shamsher Singh, appellant No.2 in CRA-D-237-DB-2005 had unfortunately expired, therefore, proceedings qua him were abated, vide order dated 03.10.2024, by this Court.
31. The appellants, if in custody, and, if not required in any other case, be forthwith set at liberty. Release warrants be prepared accordingly.
32. Pending applications, if any, also stand disposed of.
(SURESHWR THAKUR) (SUDEEPTI SHARMA)
JUDGE JUDGE
14.11.2024
adhikari
Whether speaking/non-speaking : Speaking
Whether reportable : Yes/No
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