Himachal Pradesh High Court
Surinder Singh vs State Of Himachal Pradesh on 17 September, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Neutral Citation No. ( 2024:HHC:8680 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Criminal Appeal No. 311 of 2007.
Reserved on: 13.09.2024.
Date of decision: 17.09.2024
Surinder Singh ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting? No For the Appellant : Mr. Ajay Kochhar, Senior Advocate with Mr. Anubhav Chopra, Advocate.
For the Respondent: Mr. I.N. Mehta, Senior Additional Advocate General with Ms. Sharmila Patial, Additional Advocate General and Mr. Raj Negi, Deputy Advocate General.
Tarlok Singh Chauhan, Judge The appellant has been convicted and sentenced by the learned Special Judge, Fast Track Court, Shimla, District Shimla, H.P., vide its judgment/order dated 12.07.2007, to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- ( One Lakh) ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 2 Neutral Citation No. ( 2024:HHC:8680 ) for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, (for short, "NDPS .
Act") and in default of payment of fine to further undergo rigorous imprisonment for a period of 3 years and aggrieved thereby, he has filed the instant appeal.
2. The prosecution case, in a brief, is that on 16.09.2006 at about 10.30 a.m., a police party consisting of Inspector Trilochan Dutt Sharma, SHO, Police Station, Theog, H.C. Subhash Kumar, H.C. Yoginder Kumar, Constable Kishori Lal, Constable Rajinder Kumar and Constable Sunil Kumar was on routine patrol and picketing duty in a official vehicle No. HP-07-5328 being driven by Constable Narinder Parkash and was present in jungle Majhrol Badhani on the Dhamandri-Tayali-Theog road. In the meantime, a white coloured Maruti Van came from Tayali side, which on signal by the police party, was stopped by its driver. The front number plate of the Van was half broken,whereas, on the rear number plate, the registration number of the Van was written as HP-02-2885. Only one person i.e. the driver was there in the van and on being asked, he disclosed his name as Surinder Singh (appellant). The van was checked and on checking a blue bag which was lying on the foot mat in front ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 3 Neutral Citation No. ( 2024:HHC:8680 ) of the front seat of the van, besides the driver seat, was recovered. The bag was opened and checked. On checking, .
a polythene envelope containing 'Charas' in the shape of sticks was recovered from it. Then, Inspector Trilochan Dutt deputed H.C. Subhash Kumar to bring the weights and scale from Tayali bazar, who, in turn, brought the scale and weights numbering 6 from 10 grams to 1 kg to the site of crime. The 'Charas' was mixed and weighed and it transpired that the appellant was carrying 2.650 kgs of 'Charas'.
3. It is further the case of the prosecution that out of the recovered contraband, two samples of 30 grams each of 'Charas' were separated, which were wrapped and sealed separately in the pieces of the cloth by affixing seal impression "T". The remaining bulk 'Charas' was put in the same polythene envelope and the bag, which was recovered from the appellant. It's parcel was prepared and sealed by affixing seal impression "T". N.C.B. form was filled in triplicate on the spot. The impression of the seal used was retained on the pieces of the cloth including Ext. PA and seal after its use was handed over to Constable Kishori Lal.
The parcel of 'Charas' and van were taken into possession ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 4 Neutral Citation No. ( 2024:HHC:8680 ) by the police vide memo Ext. PB. A copy of the seizure memo was supplied to the appellant and signatures of the .
appellant and the witnesses were taken on the 'pollindas' of 'Charas' and the memo of seal impression etc.
4. It is also the case of the prosecution that thereafter Inspector Trilochan Dutt sent a rukka Ext. P-1 through Constable Rajinder Kumar to MHC, Police Station, Theog on the basis of which FIR r Ext. PW6/A came to be registered. An endorsement Ext. PW6/B in this respect was made on the rukka. Inspector Trilochan Dutt then handed over the investigation of the case to H.C. Yoginder Kumar, who was accompanying him vide inventory Ext. PD. The SHO even directed the MHC of the Police Station on phone to send some other Investigating Officer and after some time ASI Kirpa Ram reached at the site of crime. After that H.C. Yoginder Kumar handed over the relevant documents and the investigation of the case to ASI Kirpa Ram as per the inventory Ext. PE. The appellant was interrogated and arrested by ASI Kirpa Ram and he was also informed about the grounds of arrest. The documents of the van were produced by the appellant before ASI Kirpa Ram which were taken into possession. 'Jamatalshi' of the appellant was ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 5 Neutral Citation No. ( 2024:HHC:8680 ) taken. Copies of the relevant daily diary reports were collected, site plan was prepared and the statements of the .
witnesses under Section 161 Cr.P.C. were recorded. The case property was brought to the Police Station by Inspector/SHO Trilochan Dutt and deposited the same with the MHC. One part of the sample and sample seal etc. were sent by the MHC for analysis to the Chemical Examiner, C.T.L. Kandaghat and thereafter to Central Forensic Science Laboratory, Chandigarh. Thereafter, the report of the laboratory was obtained.
5. After completion of the investigation, final report as envisaged under Section 173 Cr.P.C. was presented for trial by the police before the Court.
6. Copies of challan and other relevant documents were supplied to the appellant.
7. On finding a prima facie case, charge under Section 20 of the Act was framed against the appellant, to which he pleaded not guilty and claimed trial.
8. The prosecution in order to prove its case examined as many as 13 witnesses. On completion of prosecution evidence, statement of the appellant under ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 6 Neutral Citation No. ( 2024:HHC:8680 ) Section 313 Cr.P.C. was recorded. His defence was that of total denial simpliciter.
.
9. It is argued by Shri Ajay Kochhar, Senior Advocate assisted by Shri Anubhav Chopra, Advocate, for the appellant that the findings recorded by the learned Special Judge are absolutely perverse. That apart, there are major discrepancies and contradictions in the testimonies of the official witnesses which entitle the appellant to be acquitted. Learned Senior counsel for the appellant has mainly raised following three points:
(i) Non-compliance of Section 52A of NDPS Act;
(ii) Report of CFSL Ext. PX does not connect with the contraband allegedly produced before the Court; and
(iii) Link evidence is missing.
10. On the other hand, learned Additional Advocate General would contend that the findings recorded by the learned Special Judge are absolutely correct and it is more than settled that conviction can be based on the basis of the testimonies of the official witnesses and moreover there are no inconsistencies or contradictions in the statements of the official witnesses so as to entitle the acquittal of the appellant.
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11. We have heard the learned counsel for the parties and have gone through the records of the case .
carefully.
(i) Non-compliance of Section 52A of NDPS Act;
12. It is the admitted case of the prosecution that the case property was never taken or produced before the Magistrate for certifying the list of inventory despite the fact that Section 52A was already in force at the time when the contraband was allegedly apprehended as this provision was enacted by Act of 1999 dated 29.05.1989. No plausible explanation has been placed on record by the prosecution for not complying with the provisions of Section 52A of the NDPS Act. What would be the effect of non-compliance has been considered in detail by a Coordinate Bench of this Court of which one of us (Justice Tarlok Singh Chauhan) was a member, in Criminal Appeal No.158 of 2021 titled Lalman vs. State of Himachal Pradesh, decided on 08.08.2024, wherein it was held as under:
"23. HC-Umeshwar Singh (PW10) stated that on 15.09.2018 after conducting the proceedings under Section 52A, a Committee was constituted for the destruction of the remaining contraband except the ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 8 Neutral Citation No. ( 2024:HHC:8680 ) sample. The remaining contraband was destroyed. SI-Roop Lal (PW14) stated in his cross-examination .
that the parcel, which he had prepared was not shown to him in the Court. He volunteered to say that the sample of the same was shown to him in the Court. He admitted that there was no order regarding the disposal of the case property. He volunteered to say that a separate Committee is formed for the disposal of the case property after obtaining an inventory order from the Court. He admitted that the Committee disposes of the case property after obtaining the order from the Court and he had not seen any order regarding the disposal of the case property.
24.Thus, it is apparent that the case property was not produced before the learned Trial Court as it was stated to have been disposed of as per the order of the Committee. However, no such order was produced before the Court. In Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028:
2003 SCC OnLine SC 1038 the independent witnesses turned hostile and the case property was not produced. It was held that the conviction of the accused could not be sustained. It was observed:
6. In our view, the view taken by the High Court is unsustainable. In the trial, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 9 Neutral Citation No. ( 2024:HHC:8680 ) and marked as material objects. There is no explanation for this failure to produce them.
Mere oral evidence as to their features and .
production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false rcase only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and the non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched."
25. It was held in Noor Aga v. State of Punjab, (2008) 16 SCC 417: (2010) 3 SCC (Cri) 748:
2008 SCC OnLine SC 1026 the case property can be destroyed as per the order of the competent Magistrate and the non-production of the case property will create a serious dent in the prosecution case. It was observed:
"92. Omission on the part of the prosecution to produce evidence in this behalf must be linked with a second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in court. The respondents ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 10 Neutral Citation No. ( 2024:HHC:8680 ) contended that the same had been destroyed. However, on what authority it was done is not clear. The law requires that such an authority .
must flow from an order passed by the Magistrate. Such an order whereupon reliance has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that at no point of time had any prayer been made for the destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110(1-B) of the 1962 Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory, etc. The same does not contain within its mandate any direction as regards destruction.
93. The only course of action the prosecution should have resorted to is to obtain an order from the competent court of the Magistrate as envisaged under Section 52-A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic drugs containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as he may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings thereunder make an application for any or all of the following purposes:
"(a) Certifying correctness of the inventory so prepared; or
(b) Taking, in the presence of such Magistrate, photographs of substances and certifying such photographs as true; or ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 11 Neutral Citation No. ( 2024:HHC:8680 )
(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."
Sub-section (3) of Section 52-A of the Act provides that as and when such an application is made, the Magistrate may, as soon as may be, allow the application. The reason wherefore such a provision is made would be evident from sub-section (4) of Section 52-A which reads as under:
"52-A. Disposal of seized narcotic drugs and psychotropic substances.--*** (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 narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
Concededly neither was any such application filed nor was any such order passed. Even no notice has been given to the accused before such alleged destruction.
94. We must also notice a distinction between Section 110(1-B) of the 1962 Act and Section 52-A(2) of the Act as sub-section (4) thereof, namely, that the former does not contain any provision like sub-section (4) of Section 52-A. It is of some importance to notice that Para 3.9 of the Standing Order requires pre-trial disposal of drugs to be obtained in terms of Section 52-A of the Act. Exhibit PJ can be treated as nothing other than an order of authentication as it is a certificate under Section 110(1-B) of the 1962 ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 12 Neutral Citation No. ( 2024:HHC:8680 ) Act as the aspect of disposal clearly provided for under Section 52-A of the Act is not alluded to. The High Court in its judgment purported to .
have relied upon an assertion made by the prosecution with regard to the prevalence of a purported general practice adopted by the Customs Department to obtain a certificate in terms of the said provision prior to the destruction of case property, stating:
"To a specific query put to Mr Guglani by the Court with regard to the aforesaid arguments, he fairly states that the general practice adopted by the Customs Department is that before destroying the case property, a certificate is obtained under Section 110(1-B) of the Customs Act.
He states that in this regard, a sample as per the provisions contained in sub-clause
(c) to clause (1-B) is also drawn for the purposes of certification of correctness so that at a later stage, the identity of the case property is not disputed.
Maybe, in my view, some irregularities were committed in this case by the Customs Department while obtaining the order, Exhibit PJ from the court for the reason that if the case property was to be destroyed, at least a notice should have been given to the accused on the application moved under Section 110(1-B) of the Customs Act or at least a specific request in this regard should have been made in the application, but at the same time, the aforesaid irregularity cannot be said to be a vital flaw in the case of the prosecution from which the appellant can derive any benefit, especially under the circumstances when confessional statements made by the appellant are held to be made voluntarily as observed by me hereinabove.... Similarly, non-production of ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 13 Neutral Citation No. ( 2024:HHC:8680 ) cardboard carton is also not fatal to the prosecution."
.
The question which arises for our consideration is as to whether it is permissible to do so. Evidently, it is not. Firstly, because taking recourse to the purported general practice adopted by the Customs Department is not envisaged in regard to prosecution under the Act. Secondly, no such general practice has been spoken of by any witness. A statement made at the Bar as regards the existence of such a purported general practice, to say the least, cannot be a substitute of evidence whereupon only the court could rely. Thirdly, the High Court failed to take into consideration that a certificate issued under Section 110(1-B) of the 1962 Act can be recorded as a certificate of authentication and no more; authority for disposal would require a clear direction of the court in terms of Section 52-A of the Act.
Fourthly, the High Court failed and/or neglected to consider that physical evidence being the property of the court and being central to the trial must be treated and disposed of in strict compliance with the law.
95. The High Court proceeded on the basis that the 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 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."
29. It was held in Union of India v. Jarooparam, (2018) 4 SCC 334 : (2018) 2 SCC (Cri) 465:
2018 SCC OnLine SC 204 that where no ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 14 Neutral Citation No. ( 2024:HHC:8680 ) application for the destruction of the case property was filed and the case property was not produced .
before the Court, the prosecution case cannot be relied upon. It was observed:
"9. From the above proceedings, it is crystal clear that the remaining seized stuff was not disposed of by the Executive Magistrate. The contraband stuff as also the samples sealed as usual were handed over physically to the Investigating Officer Harvinder Singh (PW 6). Also, the trial court in its judgment specifically passed instructions to preserve the seized property and record of the case in safe custody, as the co-accused Bhanwarlal was absconding.
The trial court more specifically instructed to put a note with red ink on the front page of the record for its safe custody. In such a situation, it assumes importance that there was nothing on record to show as to what happened to the remaining bulk quantity of contraband. The absence of a proper explanation from the prosecution significantly undermines its case and reduces the evidentiary value of the statements made by the witnesses.
10. Omission on the part of the prosecution to produce the bulk quantity of seized opium would create doubt in the mind of the Court on the genuineness of the samples drawn and marked as A, B, C, D, E, F from the allegedly seized contraband. However, the simple argument that the same had been destroyed, cannot be accepted as it is not clear that on what authority it was done. The law requires that such an authority must flow from an order passed by the Magistrate. On a bare perusal ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 15 Neutral Citation No. ( 2024:HHC:8680 ) of the record, it is apparent that at no point of time, any prayer had been made by the prosecution for the destruction of the said .
opium or disposal thereof otherwise. The only course of action the prosecution should have resorted to is for its disposal is to obtain an order from the competent court of Magistrate as envisaged under Section 52-A of the Act. It is explicitly made under the Act that as and when such an application is made, the Magistrate may, as soon as may be, allow the application (see also Noor Aga v. State of Punjab [Noor Aga v. State of Punjab, (2008) 16 SCC 417:
(2010) 3 SCC (Cri) 748] ).
r 11. There is no denial of the fact that the prosecution has not filed any such application for disposal/destruction of the allegedly seized bulk quantity of contraband material nor was any such order passed by the Magistrate. Even no notice has been given to the accused before such alleged destruction/disposal. It is also pertinent here to mention that the trial court appears to have believed the prosecution story in haste and awarded conviction to the respondent without warranting the production of a bulk quantity of contraband.
But, the High Court committed no error in dealing with this aspect of the case and disbelieving the prosecution story by arriving at the conclusion that at the trial, the bulk quantities of contraband were not exhibited to the witnesses at the time of adducing evidence."
30. This position was reiterated in Mangilal v. State of M.P., 2023 SCC OnLine SC 862 wherein it was observed:
::: Downloaded on - 17/09/2024 20:32:42 :::CIS 16Neutral Citation No. ( 2024:HHC:8680 ) "8. Before any proposed disposal/ destruction mandate of Section 52A of the NPDS Act requires to be duly complied .
with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration.
Production of seized material is a factor to establish seizure followed by recovery. One has to remember that the provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act). The procedure contemplated through the notification has an element of fair play such as the deposit of the seal, numbering the containers in seriatim wise and keeping them in lots preceded by compliance with the procedure for drawing samples....
Xxxxx The record would also indicate that an order was passed by the trial Judge permitting the prosecution to keep the seized materials within the police station, to be produced at a later point of time. This itself is a sufficient indication that the mandate of Section 52A has not been followed. There is no explanation either for the non-production of the seized materials or the manner in which they are disposed of. No order passed by the Magistrate allowing the application, if any, filed under Section 52A of the NDPS Act. P.W.10, Executive Magistrate has deposed to the ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 17 Neutral Citation No. ( 2024:HHC:8680 ) fact that he did not pass any order for the disposal of the narcotics substance allegedly seized. Similarly, P.W.12 who is in .
charge of Malkhana also did not remember any such order having been passed. On the issue of disposing of narcotic substances in derogation of the compliance contained in Section 52A of the NDPS Act"
13. In addition to the aforesaid, we may also refer to another judgment of the Hon'ble Supreme Court in Simarnjit Singh vs. State of Punjab 2023 (3) Crimes (SC) 168 wherein the facts of the case were that S.I. Hardeep Singh (PW7) along with other police officers was present at a bridge on a canal in the area of Village Balak Khurd for the purpose of patrolling, they noticed a Tempo coming from the side of Village Matran and signalled it to stop. The driver along with two occupants were apprehended. According to the case of the prosecution, search of the tempo was conducted in the presence of the District Superintendent of Police (DSP) which led to recovery of 8 bags of poppy husk which were concealed under tarpaulin. From each bag, two samples of 250 grams were taken out and made into 16 parcels and residue of poppy husk in each bag was found to be of 29.5 kgs.::: Downloaded on - 17/09/2024 20:32:42 :::CIS 18
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14. The learned counsel for the appellant therein relied upon a decision of the Hon'ble Supreme Court in .
Union of India vs. Mohanlal and another (2016) 3 SCC 379 and submitted that prosecution was vitiated as the work of drawing sample was done by PW7 without taking recourse to sub-section (2) of Section 52A of the NDPS Act.
He also pointed out that the examination-in-chief of PW7 Hardeep Singh r showed that the samples were drawn immediately after the seizure. The Hon'ble Supreme Court perused the evidence and found the contention of the appellant to be correct and thereafter after quoting para Nos. 15 to 17 of the decision in Mohanlal's case (supra), it was held as under:
"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 (2016) 3 SCC 379. 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 judgments insofar as the present appellant is concerned and quash his conviction and sentence."::: Downloaded on - 17/09/2024 20:32:42 :::CIS 19
Neutral Citation No. ( 2024:HHC:8680 )
(ii)Report of CFSL Ext. PX does not connect with the contraband allegedly .
produced before the Court; and
15. The facts in the instant case are not different as it is the prosecution case that out of the recovered contraband of 2.650 kgs of 'Charas', two samples of 30 grams each were kept and wrapped separately and sealed with seal impression "T" while the remaining bulk 'Charas' was put back in th same polythene and 'Thaila' (bag). It is further the case of the prosecution that only 30 grams of 'Charas' that was separated had been sent for analysis to the Chemical Examiner to C.T.L., Kandaghat. As per the case of the prosecution, the bulk contraband as well as samples were sealed with seal impression "T" and one part of the sample was sent to CFSL, Chandigarh, which after analysing was sent back after affixing seal of CFSL as mentioned in Ext. PX (at page 122 of the paper book).
Surprisingly, when the sample was produced before the Court, the same was not bearing the seal of FSL.
16. This assumes greater importance given the fact that out of the five witnesses PW1 H.C. Subhash Kumar, PW2 Constable Kishori Lal, PW3 Constable Rajinder Kumar, ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 20 Neutral Citation No. ( 2024:HHC:8680 ) PW10 H.C. Yoginder Kumar and PW11 SHO Trilochan Dutt Sharma, the sample part was not produced while examining .
PW1 and PW2 and only the bulk contraband which was not sent for chemical analysis was produced. It was for the first time while examining PW10 Yoginder Kumar that the sample part was produced and while examining this witness, it has been observed as under:
"At this stage, learned P.P. has produced a sealed parcel with seal impression "T" and the impression of the seal of this Court. The seals are intact. Permission sought to open the parcel. Heard. Request allowed. Sealed parcel opened."
17. There is no observation of the Court that the sample was allegedly sent to CFSL and further there is no observation of the Court that the sample part was sealed with seal of CFSL. Rather, the observation is to the contrary that the sealed parcel was sealed with seal impression "T"
only without there being any observation by the Court regarding the seal impression, if any, on the sample parts Ext.P4 and Ext.P5.
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(iii)Link Evidence missing.
.
18. As per the prosecution, the sample part was sent on 18.09.2006 to C.T.L. Kandaghat, but there official/officer refused to receive the sample because of workload which appears to be highly improbable given the fact that no record of such refusal has been produced by the prosecution nor any official/officer r from C.T.L., Kandaghat has been examined. Why this would assume greater relevance and importance is that there is no entry in the 'Malkhana' register regarding re-deposit of the sample part after such refusal.
19. If this was not enough, the link evidence of sending the case property to the CFSL, Chandigarh, is also missing as there is no entry whatsoever in the 'Malkhana' register to this effect. It shall be apt to reproduce the relevant portion of statement of H.C. Man Dev, who had (at page 20 of the paper book) stated as under:
"Entries qua sending the sample part to Chandigarh laboratory have not been made by me in the malkhana register. Self-stated a note in this regard was given on the backside of the road certificate. Road certificate is issued on the same day on which ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 22 Neutral Citation No. ( 2024:HHC:8680 ) the sample part is sent. Kandaghat laboratory returned the sample by writing on the docket. On .
18.09.2006, when C. Naresh Kumar re-deposited the sample part etc. with me, entries to that effect were not made in the malkhana register. Self stated a rapat in this regard was entered in the Rapat Roznamcha register. As and when the case property is deposited in the malkhana, its entries are made in the malkhana register."
20. Unfortunately, the learned Special Judge has failed to consider all these vital aspects of the case.
Suspicion, howsoever, strong cannot take the place of proof.
It is settled that gravity of offence cannot over-weigh the legal proof and conviction cannot be based on suspicion. It is the duty of the Court to have ensured that conjectures and surmises do not take place of legal proof. Further, greater the charge, stricter should be the standard of proof and higher in quality and probity than the incriminating evidence led by the prosecution.
21. In view of the aforesaid discussion and for the reasons stated here-in-above, we find merit in this appeal and the same is allowed. The impugned judgment and order passed by the learned Special Judge convicting and sentencing the appellant on 12.07.2007 are set aside. The ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 23 Neutral Citation No. ( 2024:HHC:8680 ) appellant is acquitted of the charge framed against him.
22. It needs to be noticed that the instant appeal .
had earlier been allowed by this Court vide its judgment dated 11.12.2009, without examining the merits of the appeal, on the ground that the report rendered by the experts only found tetrahydrocannabinol but did not indicate percentage thereof. Therefore, it could not be held that the stuff recovered from the appellant was 'Charas'.
23. However, the State filed an appeal against the aforesaid judgment vide Criminal Appeal No.2207 of 2010 and the same was allowed by the Hon'ble Supreme Court vide judgment dated 09.02.2022 on the basis of the judgment rendered by the Hon'ble Supreme Court in Hira Singh and another vs. Union of India and another (2020) 20 SCC 272 wherein it was held as under:
"12. In view of the above and for the reasons stated above, Reference is answered as under:
12.1. The decision of this Court in the case of E. Micheal Raj v. Narcotics Control Bureau (2008) 5 SCC 161 taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 24 Neutral Citation No. ( 2024:HHC:8680 ) narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a .
good law.
12.2. In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;
12.3. Section 21 of the NDPS Act is not stand- alone provision and must be construed along rwith other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001.
12.4. Challenge to Notification dated 18.11.2009 adding "Note 4" to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed."
24. The effect of the aforesaid judgment is that the quantity of the neutral substance is not to be excluded and to be taken into consideration along with the actual content of the weight of the offending drug while determining small and commercial quantities.
25. Since, the appellant has already been released in this case pursuant to the judgment earlier passed by this ::: Downloaded on - 17/09/2024 20:32:42 :::CIS 25 Neutral Citation No. ( 2024:HHC:8680 ) Court on 11.12.2009, therefore, he is directed to furnish a personal bond in the sum of Rs.50,000/- with one surety of .
the like amount to the satisfaction of the learned Trial Court in view of the provisions of Section 437A Cr.P.C., which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
26. Records be sent back forthwith.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) September 17 ,2024 th Judge (krt) ::: Downloaded on - 17/09/2024 20:32:42 :::CIS