Himachal Pradesh High Court
State Of H.P vs Puneet Chauhan on 10 September, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 208 of 2019 .
Reserved on: 06-09-2019 Date of Decision : 10th September, 2019 State of H.P. ...Petitioner.
Versus
Puneet Chauhan ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting? Yes For the petitioner : Mr. Nand Lal Thakur, Additional Advocate General.
For the respondent : Mr. Naresh K.Sharma, Advocate.
Anoop Chitkara, Judge.
Challenging the order passed by the Judicial Magistrate, Ist Class, Court No.1, Solan, Distt. Solan, H.P., dated 14-01-2019, on an application moved under Section 52-A of Narcotic Drugs & Psychotropic Substances Act, 1985 (herein after referred to as the NDPS Act), whereby the quantity of alleged heroin was found to be 0.82 grams instead of the recovered quantity of 4.48 grams, the State has come up with the present petition under Sections 397, 401 read with Sections 482 of Code of Criminal Procedure.
2. I have heard learned counsel for the parties and perused the record with utmost care.
::: Downloaded on - 29/09/2019 04:10:57 :::HCHP 23. The facts apposite to decide the present petition are that on 13-01-2019 a police party patrolling near Dhori Deewar, Solan Chandigarh .
Road, had searched the bag of the respondent and during search of the bag, one polythene bag was recovered containing white substances which was seized and weighed at the spot. Prima facie the substance was identified to be heroin and when it was weighed then it was found to be 4.48 grams. Thereafter, this substance was sealed and other formalities under NDPS Act were completed with which we are not concerned, to decide the present petition.
4. On 14-01-2019, the prosecution through Investigating Officer HC Komal Chand filed an application under Section 52-A of NDPS Act for certifying the correctness of inventory of seized drugs, before the Judicial Magistrate Ist Class, Court No.1, Solan, Distt. Solan, H.P. At this stage it is appropriate to extract the impugned order dated 14-01-2019, passed by the Judicial Magistrate Ist Class, Court No.1, Solan, H.P., which is reproduced as under:
" 14-01-2019 Present: HC Komal Chand No. 105 with police file.
Application received by way of assignment from the court of Ld. CJM, Solan. Police has moved an application for certifying the correctness of inventory of seized Drugs under Section 52-A of Narcotics Drugs & Psychotropic Substances Act, 1985 (herein after to be referred as ND& PS, Act) in case FIR No. 10/19 dated 13-01-2019, U/S 21 ND&PS Act, P.S. Sadar.
Heard. Record perused.::: Downloaded on - 29/09/2019 04:10:57 :::HCHP 3
One off white colour cloth parcel is produced before me by the Investigating Officer which is sealed with three seals impressions of letter 'H'. The seals are .
found to be intact by me. I have personally checked the aforesaid sealed cloth parcel which was intact. On opening the parcel, one clear plastic bag tied with a thread was taken out. On opening said clear plastic bag substance alleged to be Heroine was taken out. I checked the weighing machine showing zero. On weighing the substance alleged to be Heroine same was found to be 0.82 gm (weight measured without clear bag). Thereafter, the substance alleged to be Heroine was put in same plastic bag and the plastic bag was put in the same cloth parcel and the cloth parcel was sealed with four impression of court seal (seal impression being "Civil Judge-cum- Judicial Magistrate Ist Class, Solan, H.P.") Sample seal impressions of Court seal was taken in four separate piece of cloth duly signed by me. Three seal impression cloth were then handed over to I.O. and one was retained by the Court. The aforesaid cloth parcel after resealing with Court seal, have also been signed by me. The Court seal was then handed over to Reader of this Court. Accordingly, the inventory produced before me is certified to be correct as per the measurement before me and certificate is issued as per the act, as follow. Application stands disposed of. Papers after due completion be sent to concerned Court for being tagged with main case FIR."
5. Mr. Nand Lal Thakur, learned Additional Advocate General, contends that the difference in weight was not because of tampering the case property after its seizure and before the same was produced before Judicial Magistrate on the next day, but because of the fact that either of the weighing machine malfunctioned.
::: Downloaded on - 29/09/2019 04:10:57 :::HCHP 46. This matter has two limbs. The first limb is that if the weighing machine on which the contraband had been weighed on the .
spot was not giving the correct weight, then it would also lead to a domino effect, wherein all the contrabands weighed on this machine would also be erroneous and incorrect.
7. The second limb is that if the weighing machine on which Judicial Magistrate had weighed the contraband was incorrect then similarly all the inventories and all the weighments done on this machine might have led to erroneous results. Therefore, the difference in weight may not only confine to the present case but might have other consequences.
8. On this point, it is likely to create serious lacune, in more than the present case, it might lead to some incorrect weighment which would result in technical flaws, certainly favouring the accused. Therefore, to nip the evil in the bud, it would be appropriate that both these weighing machines are tested by the Forensic Science Laboratory, Junga and the contraband is weighed again on some other machine by learned Judicial Magistrate, Ist Class, Court No.1, Solan, HP. Therefore, this revision petition is allowed with the following directions:
1. The superintendent of Police, Solan shall send both the weighing machines, one on which the contraband was weighed at the spot on 13-01-2019 and second on which the Judicial Magistrate had reweighed the contraband on 14-01-2019, to Forensic Science Laboratory, Junga and a report ::: Downloaded on - 29/09/2019 04:10:57 :::HCHP 5 shall be obtained as early as possible. After receiving the report, a fresh application under Section 52-A will be filed before Judicial Magistrate for certifying .
the corrections of the case property. The said application be accompanied with the report of the Forensic Science Laboratory and a copy of this order.
2. The Investigating Officer shall reproduced the contraband before Judicial Magistrate Ist Class, Court No.1, Solan, HP. He will also produce two weighing machines which are duly certified under Standards and Measurement Act,1976 only by FSL. The Judicial Magistrate shall again weight the contraband and certify about the weight as contemplated under Section 52-A of NDPS Act, 1985.
3 Needless to say that weight now recorded would be considered as final. Judicial Magistrate shall take extreme care that the seals which were affixed on 14-01-2019 are in the same condition and have not been tempered with and order to that effect shall also be recorded. After opening the seals, the previous cloth and the contraband would be placed in a new cloth parcel and resealed with the seals of the Court.
::: Downloaded on - 29/09/2019 04:10:57 :::HCHP 6Final Order:
9. The Criminal Revision is allowed in the aforesaid terms.
.
Pending application(s), if any, also stands disposed of.
Copy Dasti.
(Anoop Chitkara) Judge 10th September, 2019 (NK) ::: Downloaded on - 29/09/2019 04:10:57 :::HCHP