Himachal Pradesh High Court
Sansar Chand vs State Of Himachal Pradesh on 6 September, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 93/2017 Reserved on: 1.9.2023 Decided on : 6.9.2023 Sansar Chand .....Appellant .
Versus State of Himachal Pradesh ....Respondent Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
of Whether approved for reporting?1 Yes For the Appellant:rt Mr. Ajay Kochhar, Sr. Advocate with Mr. Vivek Sharma, Advocate.
For the Respondent: Mr. I. N. Mehta, Sr. Additional Advocate General with Ms. Sharmila Patial, Addl. A.G., Mr. J. S. Guleria, Dy.A.G. & Mr. Rajat Chauhan, Law Offficer.
____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellant/convict has filed the instant appeal against the judgment and order dated 23.2.2017 and 2.3.2017 respectively passed by the learned Special Judge, Una, H.P., whereby he has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of 2 years under 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 06/09/2023 21:51:26 :::CIS 2
Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, "NDPS Act").
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2. The case of the prosecution, in a brief, is that on 9.3.2015, at around 11:15 AM, SIU police party headed by PW14 S.I. Hasham Ali, PW9 HC Ranjit Singh No.83, HC Vijay Kumar No. 69, PW8 HHC Jaswinder Singh No.239, PW10 HHC Subhash Chand No.146, Constable Amit Kumar No. 121, PW13 of Constable Arvind Kumar No.644 proceeded to patrolling towards the area of Police Station, Una and Bangana vide daily rt diary entry Ext.PW-1/A. They set up a nakka at 9.00 PM near Govt. Senior Secondary School Samoor Kalan towards Bangana side and while checking the vehicles, at 9:30 PM, one Tavera vehicle bearing registration No. HP-72-4236 came from Una side towards Bangana. It was stopped and checked. Name of the driver was disclosed to be Rajiv Kumar son of Sudhershan Kumar. He was found alone in that vehicle and nothing objectionable was found therein. In the meantime, an Alto car bearing registration No. HP-36-9218 came from Bangana side.
It was also stopped and on being asked, driver of the said car, who was sole occupant in the vehicle, disclosed his name to be Sansar Chand (appellant herein).
::: Downloaded on - 06/09/2023 21:51:26 :::CIS 33 On checking, no objectionable article was found inside the cabin of the car, however when boot (dicky) of the car .
was checked, a jute bag was found therein. On asking, when he failed to give satisfactory answer about the contents of that bag, the police suspected that it might be containing some stolen articles. Therefore, the aforesaid bag was opened in the presence of Rajiv Kumar, whose vehicle was already stopped at of the spot and manufactured drugs were found inside the bag.
The drugs were bottles of corex syrup, strips of Lomotil, and rt also boxes containing strips of Spasmo Proxyvon capsules. The appellant could not produce any document(s) for possession of drugs.
4 The bottles of corex, while counting, were found to be quantity of 100 ml in each, 105 in number, two strips of Lomotil, containing 60 tablets in each strip and each strip, 36 boxes each containing 6 strips and each strip having 24 capsules of Spasmo Proxyvon plus, total 5184 capsules in number were found. The batch numbers of those were noted.
Thereafter, Drugs Inspector was called for an opinion about the aforesaid drugs. When Drugs inspector, Sunny Kaushal reached at the spot, an application Ext.PW4/A was given to him and who gave his opinion Ext.PW4/B. ::: Downloaded on - 06/09/2023 21:51:26 :::CIS 4 5 Thereafter, the corex bottles, Lomotil tablets and Spasmo Proxyvon capsules were separated. The bottles of corex .
syrup and Lomotil tablets were placed in the same bag, whereas the Spasmo Proxyvon capsules were placed in a separate packet. The bag containing syrup bottles and lomotil tablets was wrapped in a separate cloth parcel and sealed with five seals each of impression 'Y'.
of 6 The NCB forms in triplicate were filled-in on the spot. The specimen of the seal was taken on a separate piece of rt cloth vide Ext.PW8/A. The seal after use was handed over to independent witness Rajiv Kumar. The parcel containing syrup bottles and Lomotil tablets along with the vehicle, its keys and the driving licence of appellant and NCB forms in triplicate were taken into possession vide memo Ext. PW8/B. Parcel containing Spasmo Proxyvon capsules was handed over to Drugs Inspector Sunny Kaushal vide Ext.PW8/C. Photographs of the spot, Ext.PW9/B to Ext. PW9/H were clicked by HC Ranjit Singh.
Rukka Ext.PW14/A was prepared and sent through HC Ranjit Singh, for registration of an F.I.R. Site plan Ext.PW14/B was prepared. Statements of witnesses were recorded. Before arresting the appellant his search was conducted vide memo Ext. PW8/E and he was arrested after informing him about the ::: Downloaded on - 06/09/2023 21:51:26 :::CIS 5 grounds of arrest, and his legal rights qua his kith and kin being informed of his arrest, vide memo Ext. PW8/D. .
7 The case property, along with N.C.B Forms in triplicate, specimen of seal, F.I.R and the custody of the accused was handed over to PW6 SI/SHO Sanjay Kumar vide Rapat No. 6, Ext. PW7/A. The S.H.O, after completing the codal formalities, like filling up the relevant columns of N.C.B forms of etc., resealed the case property with seals of impression 'R' and handed over certificate Ext. PW6/E to the Investigation Officer.
rt Special report as required under section 57 of the NDPS Act, Ext. PW5/A, was sent to S.P. Una, through HHC Jaswinder Singh. Upon receipt of the report from forensic laboratory and completion of investigation, final report was filed in the court.
8 The appellant was charged with aforesaid offences, to which they pleaded not guilty and claimed trial.
9 In order to prove its case, the prosecution examined as many as 16 witnesses. Thereafter, statement of the appellant was recorded under Section 313 Cr.P.C., wherein he claimed to be an innocent and examined three witnesses in his defence.
10 The learned trial court, after recording the evidence and evaluating the same, convicted and sentenced the appellant, as aforesaid.
::: Downloaded on - 06/09/2023 21:51:26 :::CIS 611 Mr. Ajay Kochhar, learned Senior Advocate, assisted by Mr. Vivek Sharma, Advocate, has vehemently argued that .
the prosecution has miserably failed to establish the link evidence to connect the report of the SFSL, Junga, with the case property. He has further argued that going by facts of the instant case, it is not possible to rule out that the case property was tampered with.
of
12 On the other hand, Mr. J. S. Guleria, learned
Deputy Advocate General,
rt would argue that the aforesaid
contentions are clearly a figment of imagination of the appellant as the prosecution has duly established on record its case linking, the recovery of huge contraband from the appellant and also established that the case property was in the safe custody and was not tampered with.
13 We have heard the learned counsel for the parties and have also gone through the records of the case.
14 In order to appreciate rival contentions of the respective parties, we may refer to certain judicial precedents on the subject.
15 In State of Rajasthan vs. Daulat Ram, AIR 1980 (SC) 1314, the Hon'ble Supreme Court held that when sample ::: Downloaded on - 06/09/2023 21:51:26 :::CIS 7 changed several hands, the entire chain needs to be established with utmost clarity.
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16 In Valsala vs. State of Kerala, 1993 Supp. 3 SCC 665, it was held by the Hon'ble Supreme Court that the prosecution was required to establish that during the entire period, when samples were lying with the prosecution, it were lying with whom and whether it were in safe custody. The of Officer in-Charge was required to be examined. The safe custody of samples for the entire duration was required to be rt established.
17 In State of Gujarat vs. Ismail U Haji Patel, 2003 (12) SCC 291 emphasized that in a prosecution relating to the NDPS Act, the question as to how and where the samples had been stored or as to when they had been dispatched or received in the laboratory is a matter of great importance and a non-
compliance thereof could also result in the trial being vitiated.
It shall be apt to reproduce the relevant observations as contained in paras 5 and 6 of the judgment, which read as under:-
"5. We find that there was really no material brought on record to show as to where the seized articles were kept. The High Court after analysing the evidence on record came to hold that the identity of the articles sent for ::: Downloaded on - 06/09/2023 21:51:26 :::CIS 8 analysis was not established and it was not established that the articles seized were in fact sent for chemical examination. In view of the judgment of this Court in .
Valsala v. State of Kerala the view of the High Court is in order. It is not the delay in sending the samples which is material. What has to be established is that the seized articles were in proper custody, in proper and the samples sent to the Chemical Analyst related to the seized articles form of
6. Further, there was nothing brought on record to show as to under f whose directions the samples were sent for chemical examination. The High Court relied on Section 55 of the Act to hold that the absence of such information rt also vitiates the proceedings. Section 55 of the Act provides that the officer in charge of the police station has to take charge of and keep in safe custody the seized articles pending orders of the Magistrate. Since there is no material to show that there was any order of the Magistrate as to where g the seized articles were to be kept, and there was no material to show that there was safe custody as is required under Section 55 of the Act, the view of the High Court is in order. Judgment of the High Court does not warrant any interference in our hands and the appeal is dismissed".
18 In State of Rajasthan vs. Gurmail Singh, 2005 (3) SCC 59, the Hon'ble Supreme Court found the link evidence adduced on behalf of the prosecution to be unsatisfactory and on the basis of such evidence was pleased to uphold the acquittal.
::: Downloaded on - 06/09/2023 21:51:26 :::CIS 919 The issue of safe custody of contraband goods assumes significant and seminal importance has been .
appropriately dealt in State of Rajasthan vs. Tara Singh, 2011 (11) SCC 559, where the Hon'ble Supreme Court succinctly observed as under:-
"6. We must emphasize that in a prosecution to the Act the question as to how and where the samples had been of stored or as to when they had despatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters. The High rt Court was, therefore, in our view, fully justified in holding that the sanctity of the samples had been compromised which cast a doubt on the prosecution story. We, accordingly, feel that the judgment of the High Court on the second aspect calls for no interference. The appeal is, accordingly, dismissed. The respondent is on bail. His bail bonds stand discharged."
20 In State of Uttar Pradesh vs. Hansraj alias Hansu (2018) 18 SCC 355, it was held by the Hon'ble Supreme Court that there is delay in producing the samples of the contraband substance in the court and when the evidence is that the same were kept in the police station, the prosecution has to adduce evidence to show that as to how and in what condition, samples were preserved at the police station.
::: Downloaded on - 06/09/2023 21:51:26 :::CIS 1021 In Vijay Pandey vs. State of U.P., 2019 (SC) 3569, the Hon'ble Supreme Court held that mere production of a .
laboratory report that the sample tested from contraband substance cannot be a conclusive proof by itself and that the sample seized and one tested have to be correlated. It shall be apt to reproduce relevant observations as contained in paras 8 and 9 of the judgment, which read as under:-
of "8. The failure of the prosecution in the present case to relate the seized sample with that seized from the rt appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself.
The sample seized and that tested have to be corelated. The observations in Vijay Jain vs. State of Madhya Pradesh, (2013) 14 SCC 527, as follows are considered relevant :
"10. On the other hand, on a reading of this Court's judgment in Jitendra's case, we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence ::: Downloaded on - 06/09/2023 21:51:26 :::CIS 11 under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in the case of Ashok (supra), this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial .
court as material exhibit and there was no explanation for its nonproduction and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant."
9. In Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123, it was observed:
of "12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial court as a material exhibit rt and once again there is no explanation for its nonproduction.
There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused."
22 It is admitted case of the prosecution that on 9.3.2015, the case property, after seizure, was produced before PW6 on 10.3.2015 at 2.15 A.M. PW6, in turn, resealed the case property with seals of Mark "Y" and handed over the same to PW3 MHC Pradhan Singh, who then deposited the case property in the malkhana and made entries in malkhana register, Ext. PW-3/A. 23 It is further case of the prosecution that provisions of Section 52-A of the NDPS Act were not complied with in the instant case and straightway on 10.03.2015 the entire case ::: Downloaded on - 06/09/2023 21:51:26 :::CIS 12 property was sent for chemical examination to SFSL Junga vide RC No. 49/2015 through PW10. The case property along with .
report was received back on 31.3.2015 through PW13.
24 It is further not disputed that the case property for the first time was produced in the Court on 1.2.2016 as is evident from deposition of PW8 and it is then that the same was exhibited as Ext. P-1 to Ext. P-109. When the case property of was produced before the Court, it was observed that there were two strips of lomotil tablets Ext. P-3 & P-4 to be containing 48 rt tablets each with some empty slots from where tablets had been extracted. The bag Ext. P-2 was also containing 105 bottles of syrup Corex and two of the bottles had their seals broken and were empty. These bottles were exhibited as Ext. P-5 and P-6 and rest of the bottles Ext. P-7 to P-109.
25 It would be noticed that there is neither any documentary nor oral evidence on record to show as to who had brought the said case property to the court that was exhibited in the instant case.
26 The case of the prosecution is that the case property was transferred to the District Malkhana, from where it was produced and in this regard, the prosecution has examined PW-
16, who, in his examination-in-chief, deposed that:
::: Downloaded on - 06/09/2023 21:51:26 :::CIS 13"On 26.9.2015, I received the case property of this case from M.H.C Police Station Malkhana and deposited the same in District Malkhana. On .
28.9.2015, the case property was produced before the Hon'ble Court by me. During the period the case property remained in my custody no tampering was done with the same and the seals were intact. After depositing the case property in the District Malkhana | incorporated the entry in this regard in register No. of 19 at serial No. 2121. The extract of Malkhana register is Ext. PW16/A, which is correct as per original register brought by me. On Ext. PW15/A, I rt identify my signatures in circle A, which I had appended at the time of receiving the case property of this case."
27 Even though this witness (PW16) would claim that on 28.9.2015, the case property was produced before the Court, however this is not even the case of the prosecution and more over, there was no occasion for him to have produced the case property on 28.9.2015 as the prosecution's evidence was yet to commence on the said date and as a matter of fact, statement of the first witness i.e. PW1 was recorded only on 29.9.2015.
::: Downloaded on - 06/09/2023 21:51:26 :::CIS 1428 A close scrutiny of the testimony of PW16 would reveal that this witness, in his entire deposition, has nowhere .
claimed that he produced the case property on 1.2.2016.
29 The record otherwise is conspicuously silent as to who had produced the case property on the said date. Further, there is no reference either in the statement of PW8 as to who had brought the case property nor is there any DDR showing of movement of the case property from the District Malkhana to the Court on 1.2.2016.
rt 30 Once there is no evidence as to who produced the case property on 1.2.2016, then it remains a mystery that which property was produced before the learned Special Judge during the examination of PW8.
31 However, learned Deputy Advocate General, while interjecting, would argue that the case property in fact had not been deposited in the District Malkhana, but kept in the Malkhana of Police Station Sadar, Una, as clarified by PW15 in his examination-in-chief, when he deposed that after receipt of case property from FSL Junga on 31.3.2015, he incorporated entry in register No.19, extract whereof is Ext. PW15/A and on 26.92015, the case property was handed over to PW16, who took the case property to District Malkhana and later on, in his ::: Downloaded on - 06/09/2023 21:51:26 :::CIS 15 cross-examination, voluntarily stated that while making entry, it was inadvertently written as District Malkhana, whereas the .
case property was kept in Malkhana of Police Station Sadar, Una itself.
32 It needs to be noticed that this witness in his cross-
examination clearly stated that there was no road certificate qua transfer of the case property from Malkhana of Police of Station to District Malkhana, but a daily diary report was made.
33 Now, in case the daily dairy report is perused, the rt same falsifies stand of the prosecution that the case property was sent to District Malkhana on 26.9.2015 as claimed by PW15 and PW16.
34 The daily dairy report that was placed on record pursuant to direction of the learned Special Judge is Ext. DX.
PW15/A and reads as under:-
Daily Station Diary DISTRICT UNA Police UNA SADAR Station GD Number 042 GD Date 2015-00-14 16:09:45 Name of Writer Duty Officer Officer Rank HC (Head Constable) GD Type Malkhana Inspection General Diary इस समय दज है िक मुकदमा नं0 53/15 िदनां क 9-3- Description ::: Downloaded on - 06/09/2023 21:51:26 :::CIS 16 15 जैर धारा 21- 6185 एन0डी0ए पी०एस० ए थाना सदर उना का मान मुकदमो रिज र न र 19 की मद न र 1338 / 15 है िजसम एक अंदर कपड़ा .
पुिल ा िजसके अ र एक बोरी सेवा ब है बोरी सेवा के अ र 105 सीसी ा क कौरब व दो प े लोमोिटन िजसमे 60x2 - 120 गोिलया ब है पुिल ा पागोर की - पी मोहरों से रसील िकया गया है िजसको मन एम०एस०सी० ारा आन चैक िकया गया। िजसम पाया िक of उपरो पुिल ा मे ब ान कॉरे की शीिशयो का रसाव आ है और उसमे बरसात के कारण नमी आ गई rt है । िजसको आज धूप मे सुखाया गया तथा सुरि त जमा [िजला मालखाना िकया गया। अत- रपट दज है।
Signature of Reporting Officer/Reporting Person Reporting Officer: Rajeev Kumar Date 2015-09-14 16:09:45 35 A bare perusal of the aforesaid document goes to indicate that the case property of the FIR had been deposited in the District Malkhana on 14.9.2015 and the documents placed on record appear to be manipulated to show that the case property was transferred to District Malkhana on 26.9.2015.
::: Downloaded on - 06/09/2023 21:51:26 :::CIS 1736 In this respect, the document placed on record, Ext.
PW16/A, shows that the same contains overwriting on the .
date 26.9.2015 and the dates prior to this entry and subsequent thereto, also there appears to have overwriting, but without any initials to indicate that as to who had made the overwriting(s).
37 In view of the evidence that has come on record, of possibility of tampering with the case property cannot be ruled out and secondly, there is rt no explanation on record as to where the case property remained from 14.9.2015 to 26.9.2015.
38 Here, it shall be fruitful to extract relevant portion of the statement of PW15 in his examination-in-chief, which reads as under:-
As per record on 31.3.2015, the case property was deposited in Malkahna which was received from F.S.L. Junga. An entry in this regard is incorporated in register No. 19, the extract of which is Ext. PW-15/A and is correct as per the original register brought by me today in the Court. On 26.9.2015, the case property was handed over to HHC Subhash Chand No. 243, who took the case property to District Malkhana."
39 From the aforesaid cumulative circumstances, possibility of case property produced in the court being different of what was sent to FSL Junga cannot be ruled out, especially ::: Downloaded on - 06/09/2023 21:51:26 :::CIS 18 when the entries have been manipulated by the investigation agency.
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40 The court cannot be unmindful of the fact that the case property in the instant case was never produced before the concerned Illaqua Magistrate for certification of inventory, as envisaged under Section 52-A of the NDPS Act.
41 Section 52-A of the NDPS Act is a very important of safeguard, which ensures that the samples are drawn by a magistrate, which are further sent to forensic science laboratory rt under seal of the Court to rule out the possibility of false implication.
42 In the instant case, the Investigating Officer, for reasons best known to him, has failed to adopt the procedure as prescribed by the statute and in the given facts and circumstances, it creates a serious doubt about veracity of the prosecution case, especially in view of the fact that samples, which were sent to SFSL Junga, had only seal impression of Police officials and the seal remained with the police throughout the investigation. Therefore, there was total non-compliance of provisions of Section 52-A of the NDPS Act, which, in the given facts and circumstances, cannot be viewed very lightly.
::: Downloaded on - 06/09/2023 21:51:26 :::CIS 1943 In view of the aforesaid discussions, impugned judgment and order of conviction and sentence passed by the .
learned Special Judge, which suffer from patent illegality and being legally un-sustainable, are set aside. Consequently, the appellant, in the instant case, is ordered to be released immediately, if not required in any other case.
44 The Registry is directed to prepare release warrant of of the appellant. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish a personal bond in the sum rt of Rs.25,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, 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.
45 The instant appeal is allowed in the aforesaid terms.
Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) 6.9.2023 Judge (pankaj) ::: Downloaded on - 06/09/2023 21:51:26 :::CIS