Punjab-Haryana High Court
Puran Mal vs State Of Haryana on 17 August, 2023
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
CRA-D-601-DB-2019 (O&M) -1- 2023:PHHC:109132-DB
In the High Court of Punjab and Haryana at Chandigarh
CRA-D-601-2019 (O&M)
Reserved on: 07.8.2023
Date of Decision: 17.8.2023
Puran Mal ......Appellant
Versus
State of Haryana ......Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. L.S.Sekhon, Advocate and
Ms. Gurpreet Kaur, Advocate
for the appellant.
Mr. Ashok Singh Chaudhary, Addl. A.G., Haryana.
****
SURESHWAR THAKUR, J.
1. The instant appeal is directed against the impugned verdict, as made on 22.4.2019, upon Sessions case (NDPS Act) bearing No. 168 of 2016, by the learned Special Judge Fatehabad, wherethrough in respect of charge drawn against the accused qua offence punishable under Section 21-C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"), the learned trial Judge concerned, proceeded to record a finding of conviction against accused-appellant. Moreover, through a separate sentencing order, drawn on 23.4.2019, the learned trial Judge concerned, sentenced the convict to undergo rigorous imprisonment for a period of twelve years for commission of an offence punishable under Section 21-C of the Act, besides also imposed, upon the convict sentence of fine, as comprised in a sum of Rs. 1,50,000/-, and, in default of payment of fine amount, he sentenced the convict to undergo rigorous imprisonment for a period of two years.
GURPREET SINGH 2023.08.22 14:03
2. The period of detention undergone by the convict, during the I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -2- 2023:PHHC:109132-DB investigations, and, trial of the case, was, in terms of Section 428 of the Cr.P.C., rather ordered to be set off from the above imposed sentence(s) of imprisonment.
3. The accused-convict becomes aggrieved from the above drawn verdict of conviction, besides also, becomes aggrieved from the consequent thereto sentence(s) of imprisonment, and, of fine as became imposed, upon him, by the learned convicting Court concerned, and, hence has chosen to institute thereagainst the instant criminal appeal, before this Court.
Factual Background
4. The genesis of the prosecution case becomes embodied in the appeal FIR, to which Ex. P9, is assigned. The narrations carried in Ex. P9 are, that on 18.9.2016, Sub Inspector Karan Singh along with EASI Hardutt No. 389 was on patrolling duty in official vehicle bearing registration No. HR-22C-7504, driven by EASI Mahender Singh No. 754, and ESI Dulara Ram was also with him in another official government vehicle bearing registration No. HR-62/1272 driven by EHC Manjeet Singh No. 674. The police party was present at Budhlada Road, Tohana Bye-pass, Ratia, and, had conducted nakabandi there. In the meantime, a Maruti Car 800 CC bearing registration No. HR-05H/8721 of white colour was seen coming from the side of Ratia, which was signaled to stop by SI Karan Singh by flashing torch light, whereupon driver of the said vehicle tried to turn the vehicle and in that process the car stopped. The car was secured by SI Karan Singh with the help of other police officials. The driver thereof alighted from the car, who disclosed his name as Puran Mal son of Jagdish Chander, caste Bishnoi, resident of village Nadhori, Police Station Bhuna. The driver was perplexed and there were two plastic bags (Katta plastic) and one plastic bag (Thaila plastic, bag with string) wherein some articles were seen lying on the GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -3- 2023:PHHC:109132-DB rear seat of the car. Some narcotic substance was suspected therein, whereupon a notice under section 50 of NDPS Act (Ex.P3) was served whereby the accused was offered that the bags lying in the car were to be searched and some narcotic substance was suspected therein, and, that he had a legal right to get the bags lying his car searched before a Magistrate or a Gazetted Officer or they could be called at the spot or he could be produced before them. The accused vide reply (Ex.P4) desired the search before a Gazetted Officer and that the said officer be called at the spot. Thereupon, investigating officer SI Karan Singh rang up Sh. Ganga Ram, ASP, Fatehabad (PW6) from his mobile No. 94162-90481 to the mobile phone of said ASP and after apprising him of the facts, he requested the ASP, Fatehabad to reach at the spot. After about 30 minutes, Sh. Ganga Ram, ASP, Fatehabad reached at the spot along with his staff in his official vehicle. The accused was produced before the ASP, who after making enquiries directed the investigating officer to carry out the search of the plastic bags. Thereupon search of the plastic bags was carried out. 225 bottles of Corex 100 ml. each were found in each of the plastic bags (Katta Plastic) and the plastic Thaila was found containing 6000 tablets of Rizolam and 1250 tablets of Carisoma in the strips. Thereafter, Sh. Vijay Kumar (PW7) SMO, Ratia was telephonically requested to reach at the spot to check the medicines so recovered. After sometime, Sh. Vijay Kumar SMO, Ratia (PW7) reached at the spot and on police application Ex.P5, he gave opinion that the Corex bottles and Rizolam tablets fall under NDPS while Carisoma tablets fall under Drugs and Cosmetic Act, 1940. 100 tablets of Rizolam were separated and on weighment same were found to be 12 gms. The weight of total 6000 tablets was accordingly quantified as 720 gms. Two bottles were separated from each of the bags containing Corex bottles GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -4- 2023:PHHC:109132-DB and two strips of Rizolam were separated as samples of one bottle and one strip each. The remaining bottles of Corex were put in the same plastic bags and were converted into sealed parcels. The remaining tablets of Rizolam were also put in the same plastic bag and all the Carisoma tablets were put in separate parcel. All the parcels were sealed with the seal bearing impression 'KS' by the investigating officer, and, the seal, after use, was handed over to EASI Dulara Ram (PW5). Sh. Ganga Ram ASP affixed his seal bearing impression 'GR' on each of the parcels. All the parcels so prepared with sample seal and Maruti car were taken into police possession vide recovery memo (Ex.P7). Ruqa (Ex.P8) was sent to the police station whereupon formal FIR (Ex.P9) was registered against the accused.
5. It is further case of prosecution that on the request of the investigating officer, second investigating officer ASI Bhup Singh (PW10) reached at the spot and took over the investigation. He prepared the rough site-plan of the spot, and, completed all other investigation formalities of recording statements of witnesses etc. On return to the police station, he produced the accused, the witnesses and the case property before SHO/Inspector Pardeep Kumar (PW8) with his report (Ex.P14) under section 55 of NDPS Act. Inspector/SHO Pardeep Kumar (PW8) verified the facts, and, affixed his seal bearing impression 'PK' on all the parcels and made his report (Ex.P-15) under section 57 of NDPS Act. The accused and the case property were produced before the Court on 19.09.2016 with application (Ex. P18) for certifying the inventory report (Ex.P19) whereupon Court of learned Sub Divisional Judicial Magistrate, Ratia passed order (Ex P20), certifying inventory. The accused was interrogated, who suffered disclosure-statement Ex.P16 on 20.09.2016 having purchased the contraband from some unknown person for a sum of Rs. 40,000/- and identified that GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -5- 2023:PHHC:109132-DB place of purchase. The sample parcels were sent to the FSL, Madhuban. Vide report (Ex.P34) of FSL, Madhuban, two samples of Corex bottles were found containing codeine phosphate 10 mg/5 ml. and chlorphineramine maleate 4 mg/5 ml. whereas Alprazolam was detected in the sample of Rizolam tablets. After conclusion of investigations, the investigating officer concerned, proceeded to institute a report under Section 173 of the Cr.P.C., before the learned Court concerned.
Trial Proceedings
6. The learned trial Judge concerned, after receiving the case for trial, made an objective analysis of the incriminatory material, adduced before him. Resultantly, he proceeded to draw charge against the accused, for an offence punishable under Section 21-C of the Act. The afore drawn charge was put to the accused, to which he pleaded not guilty, and, claimed trial.
7. In proof of its case, the prosecution examined ten witnesses, and, thereafter the learned Public Prosecutor concerned, closed the prosecution evidence, but after tendering report of the FSL concerned, and the copy of the order dated 21.2.2016, to which respectively, Ex. P-34 and Ex. P-35, is assigned. After the closure of prosecution evidence, the learned trial Judge concerned, drew proceedings, under Section 313 of the Cr.P.C., but thereins, the accused pleaded innocence, and, claimed false implication. He also chose to adduce defence evidence, and, led one witness into the witness box.
8. As above stated, the learned trial Judge concerned, proceeded to convict the accused for the charges (supra), as became drawn against him, and, also as above stated, proceeded to, in the hereinabove manner, impose the sentence(s) of imprisonment, as well as of fine, upon the convict. GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -6- 2023:PHHC:109132-DB Submissions of the learned counsel for the appellant
9. The learned counsel for the appellant has made a vigorous address before this Court that, though the FSL concerned, made examinations upon the stuff inside the sample cloth parcels, as became sent to it for examination, besides made an opinion that the stuff examined containing the prohibited narcotic drug/narcotic substance. Furthermore, he also submits that though, the examined stuff became re-enclosed in the cloth parcels, and, thereons the seal impressions of the FSL became embossed. However, apart from the report of the FSL concerned, the prosecution has not tendered into evidence the sample cloth parcels, nor obviously the examined sample cloth parcel became either produced or adduced into evidence. He further submits that the above production was necessary, as in the absence of their production, in Court, the charge against the convict would not become cogently established. Moreover, he further submits that the production, in Court, of the sample parcels after an opinion being made thereon, by the FSL concerned, is but imperative especially when they cannot be either retained, at the FSL concerned, nor if they are returned, to the police malkhana concerned, they cannot also be retained there, but are to be ensured to be produced before the learned trial Court. He submits that the production in Court of the examined stuff, as inside cloth parcels, is the primary evidence for not only supporting the report of the FSL concerned, but also for supporting the charge.
Submissions of the learned State counsel
10. The learned State counsel has however submitted while placing reliance upon Section 52-A of the Act, and, also while placing reliance, upon a notification issued by the Ministry of Finance, Department of Revenue, as drawn on 16.01.2015, that the certified inventory in respect of the seizure, as GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -7- 2023:PHHC:109132-DB made by the empowered Magistrate was rather alone required to be produced, in Court, besides it was sufficient to clinch the charge, as sub-Section 4 of Section 52-A of the Act, provisions whereof stands extracted hereinafter, declares the certified inventory to be primary evidence in respect of an offence under the Act.
[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 [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] GURPREET SINGH in any proceedings under this Act and make an application, to 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -8- 2023:PHHC:109132-DB 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 5[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.]
11. He further refers to the notification drawn on 16.01.2015, whereby in terms of the substantive provisions of Section 52-A of the Act, the Drug Disposal Committee has been constituted, and, which has made an order of destruction of the examined cloth parcels. Resultantly, he submits that when the examined sample cloth parcels, as became sent to the FSL concerned, rather became validly destroyed. Therefore, he contends that the production, in Court, of even the examined sample cloth parcels was not required, besides also he submits that the certified inventory Ex.P-19, and, Ex. P-20 does constitute primary evidence for proving the charge. Relevant paragraphs of the notification (supra), are extracted hereinafter. GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -9- 2023:PHHC:109132-DB "MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION New Delhi, the 16th January, 2015 G.S.R. 38(E) - In exercise of the powers conferred by section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, (61 of 1985), hereinafter referred to as the said Act, and in supersession of notification number G.S.R. 339(E), dated 10th May, 2007, except as respects things done or omitted to be done before such supersession, the Central Government, having regard to the hazardous nature, vulnerability to theft, substitution, and constraints of proper storage space, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, hereby specifies the narcotic drugs, psychotropic substances, controlled substances and conveyances which shall, as soon as may be after their seizure, be disposed of, the officers who shall dispose them of and the manner of their disposal.
2. Items to be disposed of. - All narcotic drugs, psychotropic substances, controlled substances and conveyances shall be disposed of under section 52A of the said Act.
3. Officers who shall initiate action for disposal. - Any officer in-charge of a police station or any officer empowered under section 53 of the said Act shall initiate action for disposal of narcotic drugs, psychotropic substances, controlled substances or conveyances under section 52A of that Act.
4. Manner of disposal - (1) Where any narcotic drug, psychotropic substance, controlled substance or conveyance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53 of the said Act or if it is seized by such an officer himself, he shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances as per Annexure 1 to this notification and apply to any Magistrate under sub-section (2) of section 52A of the said Act as per GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh Annexure 2 to this notification within thirty days from the date CRA-D-601-DB-2019 (O&M) -10- 2023:PHHC:109132-DB of receipt of chemical analysis report of seized narcotic drugs, psychotropic substances or controlled substances. (2) After the Magistrate allows the application under sub- section (3) of section 52A of the said Act, the officer mentioned in sub-paragraph (1) shall preserve the certified inventory, photographs and samples drawn in the presence of the Magistrate as primary evidence for the case and submit details of the seized items to the Chairman of the Drug Disposal Committee for a decision by the Committee on the disposal, and the aforesaid officer shall send a copy of the details along with the items seized to the officer-in-charge of the godown.
5. Drug Disposal Committee.-The Head of the Department of each Central and State drug law enforcement agency shall constitute one or more Drug Disposal Committees comprising three Members each which shall be headed by an officer not below the rank of Superintendent of Police, Joint Commissioner of Customs and Central Excise, Joint Director of Directorate of Revenue intelligence or officers of equivalent rank and every such Committee shall be directly responsible to the Head of the Department.
6. Functions. - The functions of the Drug Disposal Committee shall be to-
(a) meet as frequently as possible and necessary;
(b) conduct a detailed review of seized items pending disposal;
(c) order disposal of seized items; and
(d) advise the respective investigation officers or supervisory officers on the steps to be initiated for expeditious disposal.
7. Procedure to be followed by the Drug Disposal Committee with regard to disposal of seized items. (1) The officer-in- charge of godown shall prepare a list of all the seized items that have been certified under section 52A of the said Act and submit it to the Chairman of the concerned Drug Disposal Committee.
(2) After examining the list referred to in sub-paragraph (1) GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh and satisfying that the requirements of section 52A of the said CRA-D-601-DB-2019 (O&M) -11- 2023:PHHC:109132-DB Act have been fully complied with, the members of the concerned Drug Disposal Committee shall endorse necessary certificates to this effect an thereafter that Committee shall physically examine and verify the weight and other details of each of the seized items with reference to the seizure report, report of chemical analysis and any other documents, and record its findings in each case.
8. Power of Drug Disposal Committee for disposal of seized items.-The Drug Disposal Committee can order disposal of seized items up to the quantity or value indicated in the Table below, namely:-
1 2 3
Sr. No. Name of item Quantity per consignment
1 Heroin 5 Kg
2 Hashish (Charas) 100 Kg
3 Hashish oil 20 Kg
4 Ganja 1000 Kg
5 Cocaine 2 Kg
6 Mandrax 3000 Kg
7 Poppy straw Upto 10 MT
Other narcotic Up to the value of Rs. 20 lakh:
drugs, psychotropic
substances,
controlled
substances or
8. conveyances
Provided that if the consignments are larger in quantity or of higher value than those indicated in the Table, the Drug Disposal Committee shall send its recommendations to the Head of the Department who shall order their disposal by a high level Drug Disposal Committee specially constituted for this purpose.
9. Mode of disposal of drugs.-(1) Opium, morphine, codeine and thebaine shall be disposed of by transferring to the Government Opium and Alkaloid Works under the Chief Controller of Factories.
(2) In case of narcotic drugs and psychotropic substances other GURPREET SINGH 2023.08.22 14:03 than those mentioned in sub-paragraph (1), the Chief I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -12- 2023:PHHC:109132-DB Controller of Factories shall be intimated by the fastest means of communication available, the details of the seized items that are ready for disposal.
(3) The Chief Controller of Factories shall indicate within fifteen days of the date of receipt of the communication referred to in sub-paragraph (2), the quantities of narcotic drugs and psychotropic substances, if any, that are required by him to supply as samples under rule 67B of the Narcotic Drugs and Psychotropic Substances Rules, 1985.
(4) Such quantities of narcotic drugs and psychotropic substances, if any, as required by the Chief Controller of Factories under sub-paragraph (3) shall be transferred to him and the remaining quantities of narcotic drugs and psychotropic substances shall be disposed of in accordance with the provisions of sub- paragraphs (5), (6) and (7).
(5) Narcotic drugs, psychotropic substances and controlled substances having legitimate medical or industrial use, and conveyances shall be disposed of in the following manner.
(a) narcotic drugs, psychotropic substances and controlled substances which are in the form of formulations and labeled in accordance with the provisions of the Drugs and Cosmetics Act, 1940 (23 of 1940) and rules made thereunder may be sold, by way of tender or auction or in any other manner as may be determined by the Drug Disposal Committee, after confirming the composition and formulation from the licensed manufacturer mentioned in the label, to a person fulfilling the requirements of the Drugs and Cosmetics Act, 1940 (23 of 1940) and the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and the rules and orders made thereunder, provided that a minimum of 60% of the shelf life of the seized formulation remains at the time of such sale;
GURPREET SINGH2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh
(b) narcotic drugs, psychotropic substance and controlled CRA-D-601-DB-2019 (O&M) -13- 2023:PHHC:109132-DB substances seized in the form of formulations and without proper labeling shall be destroyed;
(c) narcotic drugs, psychotropic substances and controlled substances seized in bulk form may be sold by way of tender or auction or in any other manner as may be determined by the Drug Disposal Committee, to a person fulfilling the requirements of the Drugs and Cosmetics Act, 1940 (23 of 1940) and the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), and the rules and orders made thereunder, after confirming the standards and fitness of the seized substances for medical purposes from the appropriate authority under the Drugs and Cosmetics Act, 1940 (23 of 1940) and the rules made thereunder,
(d) controlled substances having legitimate industrial use may be sold, by way of tender or auction or in any other manner as may be determined by the Drug Disposal Committee, to a person fulfilling the requirements of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and the rules and orders made thereunder.
(e) seized conveyances shall be sold off by way of tender or auction as determined by the Drug Disposal Committee.
Narcotic drugs, psychotropic substances and controlled substances which have no legitimate medical or industrial use or such quantity of seized items which is not found fit for such use or could not be sold shall be destroyed.
Destruction referred to in sub-paragraph (b) shall be by incineration in incinerators fitted with appropriate air pollution control devices, which comply with emission standards and such incineration may only be done in places approved by the State Pollution Control Board or where adequate facilities and security arrangements exist and in the latter case, in order to ensure that such incineration may not be a health hazard or polluting, consent of the State GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh Pollution Control Board or Pollution Control Committee, as CRA-D-601-DB-2019 (O&M) -14- 2023:PHHC:109132-DB the case may be, shall be obtained, and the destruction shall be carried out in the presence of the Members of the Drug Disposal Committee.
10. Intimation to Head of Department on destruction.-The Drug Disposal Committee shall intimate the Head of the Department regarding the programme of destruction at least fifteen days in advance so that, in case he deems fit, he may either himself conduct surprise checks or depute an officer for conducting such surprise checks and after every destruction operation, the Drug Disposal Committee shall submit to the Head of the Department a report giving details of destruction.
11. Certificate of destruction.-A certificate of destruction (in triplicate) containing all the relevant data like godown entry number, gross and net weight of the items seized, etc., shall be prepared and signed by the Chairman and Members of the Drug Disposal Committee as per format at Annexure 3 and the original copy shall be pasted in the godown register after making necessary entries to this effect, the duplicate to be retained in the seizure case file and the triplicate copy shall be kept by the Drug Disposal Committee.
12. Details of sale to be entered in godown register. As and when the seized narcotic drug, psychotropic substance, controlled substance or conveyance is sold by way of tender or auction or in any other manner determined by the Drug Disposal Committee, appropriate entry indicating details of such sale shall be made in the godown register.
13. Communication to Narcotics Control Bureau.-Details of disposal of narcotic drugs, psychotropic substances, controlled substances and conveyances shall be reported to the Narcotics Control Bureau in the Monthly Master Reports."
Inventory
12. The inventory drawn in pursuance to the provisions of Section GURPREET SINGH 52-A of the Act, is comprised in Ex.P-19, its contents are reproduced 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -15- 2023:PHHC:109132-DB hereinafter. The learned State counsel submits that the inventory report (Ex. P-19), clinches the charge, given it being primary evidence in respect thereof.
"x x x x x
1. Contraband seized: Bottle Corex, Tablet Rizolam 0.5 MG and tablet Carisoma 2 Quantity: Borrlw Xoewz 450, Tablet Rizolam 0.5 MG 6000 and tablet Carisoma 1250.
3. Sample- 4 samples drawn all bottles corax in which 1/1/ bottle corax and 2 sample drawn all tablet rizolam 0.5 mg in which one/one pata 10/10/ tablets rizolam 0.5 mg. 4 Residue: 2 parcel bottle corex in white plastic bags in which 223/223 bottles corex and 1 parcel white plastic bag in which 598 pate 5980 tablets Rizolam 0.5 mg and 1 parcel white plastic bag in which 125 pate 1250 tablets Carisoma. 5 Mode of Packing:- 2 parcel bottle corex in white plastic bags in which 223/223 bottles corex and 1 parcel white plastic bag in which 598 pate 5980 tablets rizolam 0.5 mg and 1 parcel white plastic bag in which 125 pate 1250 tablets Carisoma of each three seals seals of KS and one seal of GR and one seal of PK and 4 white cloth parcel in which 1/1/ bottel corax and 2 white cloth parcels in which one/one pata 10/10 tablets rizolam 0.5 mg of each three seals of KS and one seal of GR and one seal of PK. Four sample seals on white cloth one/one KS and GR and PK and one car Maruti 800 CC No. HR05H-
8721.
6 Mark:- KS and GR and PK."
Analysis of the certified inventory
13. A reading of the above drawn inventory with respect to the seizure of the contraband discloses that, after the extraction of four representative sample parcels from the bulk, that upon each, seals' bearing 'KS', 'GR' and 'PK' becoming embossed. Subsequently, as mandated by the provisions (supra), the learned SDJM, Ratia on 19.9.2016, made an order Ex. P-20, thus certifying the correctness of the inventory drawn by the SHO of the police station concerned, and, to which P-19 is assigned. The contents of Ex.P-20 are also extracted hereinafter.
GURPREET SINGH2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh "Accused named above produced before me in custody. An CRA-D-601-DB-2019 (O&M) -16- 2023:PHHC:109132-DB application seeking police remand of accused for two days is moved. Heard. Since the custodial Interrogation of the accused is necessary for Nishandehi of the place where he had purchased the corex botals, rizolam tablets and carisoma tabelts, in pursuance of the disclosure statement allegedly suffered by him during his interrogation, his police remand for two days is granted. His safe custody be entrusted to IO who will produce him before the Court on 21.9.2016. Last zimni, seen, signed and returned. Alleged disclosure statement of accused also seen and returned. Before proceedings on police remand, accused be got medico-legally examined at State expenses.
An application certifying the Inventory prepared by the Investigating Officer is also moved. As per prosecution version, 450 bottles of Corex, 6000 tablets Rizolam and 1250 tablets Carisoma were recovered from the possession of accused Puran Mal. Out of which two samples of 2 Corex botals 100 ml. each and 2 samples of tablets of Rizolam 10 tablets each were separated. Case property and samples were containing three seals of KS, one seal of GR and one seal of P.K. The seals are found intact. Vehicle bearing registration No. HR-05H-8721 has also been produced before this Court. The inventory is certified accordingly and all parcels alongwith sample seals signed by me. Case property be dealt with as per rules.
Copy of this order be given to the Investigating Officer, free of costs, for getting the needful done.
A copy of this order be sent to the office of Ld. CJM, Fatehabad as per the provisions of section 167 Cr.P.C. for information."
14. Thereafter, in pursuance to the above empowerment vested in the notification (supra), thus the case property was destroyed by the authorized Drug Disposal Committee, as, constituted under Section 52-A of the Act, and, the certificate regarding the destruction of case property, becomes embodied in Annexure P-35.
15. The sample cloth parcels carrying thereons the above seal impressions became sent on 21.9.2016 through EASI-Krishan Kumar-485, to the FSL concerned. The report of the chemical examiner concerned, as GURPREET SINGH was made on three sealed, and, which are stated in the said report, to which 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -17- 2023:PHHC:109132-DB Ex. P-34, is assigned, to be carrying thereon seals, which were intact, and, also details that the seal impressions tallied with the specimen seal, as became sent to the chemical examiner concerned. The said report of the FSL concerned, is extracted hereinafter.
"x x x x x Description of parcels and condition of seals Three sealed cloth parcels. The seals were intact and tallied with the specimen seal as per forwarding authority's letter.
Description of articles contained in parcels
Parcel No. and seal Description of articles/samples
No. impression
1. 3-KS Sample marked here as -N- 1192/16(1)
1-PK Sample-1 : 100 ml of Corex make cough syrup,
1-GR Mfd. By PFIZER Ltd. Batch No. 620-13040 O,
labeled to contain codeine phosphate 10 mg/5ml
and chlorphineramine maleate 4 mg/5ml.
2. 3-KS Sample marked here as -N- 1192/16(2)
1-PK Sample-2 : 100 ml of Corex make cough syrup,
1-GR Mfd. By PFIZER Ltd. Batch No. 620-13040 O,
labeled to contain codeine phosphate 10 mg/5ml
and chlorphineramine maleate 4 mg/5ml.
3. 3-KS Sample marked here as -N- 1192/16(3)
1-PK Sample-3 : 10 tablets of RIZOLAM-0.5 make
1-GR mktd. By RIYA Pharmaceuticals, Batch No. TPT-
0741 labeled to contain Alprazolam-0.5 mg/tab.
Analytical Techniques Applied:-
Chemical test, TLC and UV Spectrophotometer techniques. Based upon the above examination the results obtained are as under/ Results of Analysis
1. Codeine and chlorphineramine were detected in the sample (1 & 2).
2. Alprazolam was detected in the sample (3). Notes:-
1. The opinion relates to the analyzed sample only.
2. After examination the remnants of the sample along with its original wrapper were sealed with the seal of AD General FSLH."
16. On a reading of the above report, it is unraveled, that after examining the stuff inside the sealed parcels, the chemical examiner GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and concerned, re-enclosed the remnants of the examined stuff along with its authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -18- 2023:PHHC:109132-DB original wrapper in the sealed clothes whereons seal AD of General FSLH, became embossed. However, though the report of the chemical examiner became tendered into evidence, but the sealed cloth parcels carrying the seals of AD General FSLH, did not come to be produced, before the learned trial Judge concerned. Since only on the production of the said cloth parcels, thus carrying the seal(s) AD of General of the FSL concerned, rather a conclusion would be made that the result of the examinations (supra), as became made by the chemical examiner concerned, of the stuff inside the sealed cloth parcels, as became sent to him for examinations, thus was invincibly relatable to the case property. However, for the lack of production of the said sealed cloth parcels before the learned trial Judge concerned, assuredly thus a cloud of doubt percolates into the result of the examinations (supra).
17. As above stated, the above examined sample cloth parcels were never returned to the Court nor were produced there, despite their production in Court being imperative, thus to assign evidentiary vigour to the report (supra), given the said production, rather comprising primary evidence, to sustain the charge. However, as stated (supra) the cloth parcels whereons the above opinion was made by the FSL concerned, rather became destroyed by the Drug Disposal Committee concerned, as, became constituted under the above referred notification, through re-coursing(s) to the mandate of Section 52-A of the Act. Consequently, when the said destruction is inapt for all the reasons disclosed hereinabove, resultantly no dependence can be made upon the report of the FSL concerned, thus without production in Court of the cloth parcels, whereins, becomes re-enclosed the stuff, after examination thereof being made by the chemical analyst concerned.
18. In the wake of the above, the following questions arise for GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -19- 2023:PHHC:109132-DB determination:
a) Whether the destruction of the examined sample cloth parcels was made within the ambit of the provisions of Section 52-A of the Act, besides was in pursuance to the notification (supra) as made through an empowerment vested under the provisions contained in Section 52-A of the Act?
b) Whether there was an imperative necessity for the production in Court of the examined sample cloth parcels, hence for sustaining the charge drawn against the convict.
c) Whether even without the production of the examined sample cloth parcels, in Court, the report of the FSL concerned, when is supported by a certified inventory Ex.P-19, and, Ex. P-20, thus drawn within the ambit of sub-Section 4 of Section 52-A of the Act, rather becomes the apt primary evidence, to sustain the charge drawn against the convict, besides renders redundant the production of the examined sample cloth parcels, in Court. Importantly given Ex.P-19, and, Ex. P-20 comprising the statutorily mandated primary evidence.
Analysis of statutory provisions
19. A deep reading of Section 52-A of the Act makes emergences, that the relevant parameters rather to be prevailing upon the statutorily constituted Drug Disposal Committee, for the latter ably ordering for the disposal of seizure, hence becoming comprised in:
a) the hazardous nature, vulnerability to theft, substitution thereof;
b) constraint of proper storage space or any other relevant GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh consideration;
CRA-D-601-DB-2019 (O&M) -20- 2023:PHHC:109132-DB
19. Moreover, sub-Section 2 of Section 52-A of the Act assigns leverage to the authorized officer concerned, to prepare an inventory in respect of the seizure, as, relating to all description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars thereof, and/or, the packing in which they are packed, country of region, and, other particulars, as the officer may consider relevant to identify the seizure.
20. However, the above drawn inventory by the empowered officer, makes it incumbent upon him, to yet move an application before the jurisdictionally empowered Magistrate for the purposes of-
a) certifying the correctness of the inventory so prepared; or
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.
21. Only when the above statutorily mandated certification, is made hence by the jurisdictionally empowered Magistrate, on the inventory prepared by the authorized police officer, then only the inventory derives the relevant statutory leverage. In addition, though sub-Section 4 of Section 52- A of the Act, assigns to the certified inventory the high pedestal of its constituting primary evidence in respect of the offences under the Act. Moreover, the above assigning of a high pedestal of primary evidence, to a valid certified inventory drawn under Section 52-A of the Act, is not only in respect of the inventory but is also in respect of the photographs, substance, controlled substance or conveyances, besides is in respect of any list of representative samples drawn under sub-Section 2 of Section 52-A of the Act.
GURPREET SINGH2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh Inferences from the above provisions, and, answers to the above CRA-D-601-DB-2019 (O&M) -21- 2023:PHHC:109132-DB formulated questions of law
22. Be that as it may, the preparation of a certified inventory, and, to which the pedestal of primary evidence is assigned in respect of an offence under the Act, does not however yet assign any empowerment, in the Drug Disposal Committee constituted under the notification (supra), to yet destroy, even the examined sample cloth parcels, nor even in the face of destruction of the apposite bulk, as made under the orders of a statutorily constituted Drug Disposal Committee, can yet exempt the prosecution from ensuring the production of the examined sample cloth parcels before the learned trial Judge concerned. The reason for making the above conclusion becomes rested upon the factum, that clause (c) of sub-Section 2 of Section 52 of the Act, assigns jurisdiction in the Magistrate to allow the authorized officer, to draw representative samples of such drugs or substances, but in his presence. Subsequently not only the inventory, but also the list as drawn in respect of the derivations of representative samples from the bulk of such drugs, or substances, is also required to be certified by him, to be correctly drawn.
23. If so, even if in sub-Section 4 of Section 52-A of the Act, there is a speaking that any certified list of samples, as drawn under clause (c) of sub-Section 2 of Section 52-A of the Act, hence becomes primary evidence in respect of such offence. However, yet it cannot be concluded, that either per-se the list, besides also per-se the report of the Chemical Analyst concerned, rather comprising the apt primary evidence to clinch the charge, especially without the examined sample cloth parcel concerned, becoming produced in Court. The reason for drawing the above inference becomes rested in the factum, that the list of representative samples, though is declared by sub-Section 4 of Section 52-A of the Act, to constitute primary GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -22- 2023:PHHC:109132-DB evidence in respect of the disclosures occurring therein. However, the above is only for the Chemical Analyst concerned, who receives them at the laboratory concerned, becoming enabled to make the apposite matchings in respect of the numbers of seal impressions, the English alphabets carried thereon besides his becoming also enabled to ensure the intactness of the seals, as made on the sample cloth parcels, rather through his referring to the descriptions as are carried in the apposite road certificate. Necessarily the above assigning of a pedestal of primary evidence, to the certified list drawn in respect of representative samples, is but only to the above limited effect. Any opinion to the contrary would result in the prosecution being entitled to prove the charge not through production in Court of the examined sample cloth parcels but through its tendering in Court, only the report of the Chemical Analyst concerned, as made upon the stuff inside the sample cloth parcels, and, that too, only because the certified list drawn in respect of the sample cloth parcels ipso facto speaking about yet the laboratory untested stuff enclosed inside the representative cloth samples, containing traces of the prohibited psychotropic substance, and/or, of the narcotic drug. If per-se the tendering of the certified inventory before the learned trial Judge concerned, along with the report of the FSL concerned, is construed to be primary evidence in respect of a charge under the Act, it would bring the hereafter ill-consequence(s).
I. Qua even without testing of the stuff inside the representative cloth parcels, the Courts of law being led to conclude that the relevant stuff rather containing traces of the prohibited substance or of the narcotic drug.
II. The Act despite not excluding the laboratory testings of the GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh relevant stuff inside the representative cloth parcels, yet CRA-D-601-DB-2019 (O&M) -23- 2023:PHHC:109132-DB evidentiary vigor being assigned to the certified list. Therefore without the laboratory testings of the stuff inside the representative parcels, does not render, the certified list to per- se become primary evidence. If so without the apposite report of the Chemical Analyst concerned, the charge drawn against the accused in respect of an offence cannot be proved nor can the prosecution become exempted from also producing the examined cloth parcels before the learned trial Judge. Resultantly, the list per-se reiteratedly, is not primary evidence rather the opinion of the Chemical Analyst concerned, as, made in respect of the stuff inside the representative cloth parcel, as sent to it, becomes the primary evidence, but subject to the examined sample cloth parcels also along with the report of the Chemical Analyst becoming produced in Court.
III. Thus without the apposite laboratory testing being done at the stage of preparation of certified inventory. (IV) The provisions of Section 45 of Indian Evidence Act, beside of Section 293 of Cr.P.C., remaining intact. The effect of the above is that the expert evidence has to be proven through production in Court of the examined sample parcels. Moreover, since a rebuttable presumption of truth is assigned to the report of the Chemical Analyst concerned, by the provisions of Section 293 of Cr.P.C. Thus the accused is to be given an opportunity to rebut the presumption of truth.
24. Emphasizingly in the above situation the productions (supra), GURPREET SINGH before the learned trial Judge, becomes the primary evidence to support the 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -24- 2023:PHHC:109132-DB charge under the Act. The reason being that, excepting the laboratory testings of the stuff inside the cloth parcel, at the FSL concerned, which but is the relevant trite scientific evidence to prove the charge drawn against the accused in respect of NDPS offences, rather there is no other best scientific evidence to prove it. Therefore only if at the phase of the drawings of the certified inventory by the learned Magistrate, that the stuff inside the representative cloth parcels, becomes subjected to laboratory testings, that then only would the certified inventory gather evidentiary vigor. Therefore also, the certified list per-se does not obviously become primary evidence nor exempts from production in Court, of the report of the FSL concerned, nor also exempts the production in Court, of the examined sample cloth parcels. Consequently, the assigning of the pedestal of primary evidence, to the certified list drawn in respect of the representative samples, is but at the above phase, unless then the apposite laboratory testings are also done, rather limited to the authenticity of the makings of seals thereon, besides for ensuring the intactness of the seals' made thereons, at the time of the drawings of representative parcels in the presence of the Magistrate, besides also only for excluding the possibility of tamperings being done with the representative cloth parcels, upon theirs travelling to the Chemical Analyst concerned. However, the above assigning of the high pedestal of primary evidence, to the certified list reiteratedly, as above stated rather can ever exempt the production of the examined sample cloth parcels in Court. The reason as stated (supra), is but simple that at the stage of drawings of the representative cloth parcels by the Magistrate from the bulk, and, which leads him to make the statutory certificate, rather there is no laboratory testings done of the stuff inside the representative parcels. If the above testing is done at the above phase, then only the statutory certificate would GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -25- 2023:PHHC:109132-DB become the primary evidence, to sustain the charge under the Act, otherwise not. However in the instant case at the time of drawings of the representative parcels before the learned Magistrate concerned, rather there was no laboratory testings done of the stuff inside the representative parcels, thus, there arose a necessity for the production in Court of the examined cloth parcels hence along with the report of the FSL. The reason being that both provisions of Section 45 of Indian Evidence Act besides the provisions of Section 293 of Cr.P.C., then remained intact. The further consequence thereof is that the Expert's report made on the examined cloth parcels is to be proven through the production in Court of the said parcels. Moreover an opportunity to the accused to rebut the presumption of truth, attached to the Chemical Analyst concerned, is also to be granted to him.
Further reasons for drawing the above inferences
25. Even otherwise, if the report of the Chemical Analyst concerned, is rendered insignificant, which it would become, in case without any laboratory examination(s) being made of the stuff inside the sample cloth parcels, yet the certified list of inventory becoming primary evidence, whereupon rather all the laboratories concerned, would become dysfunctional. Moreover, thus the certified list of representative parcels, even without laboratory examinations being made of the stuff inside them, conspicuously, at the time of their preparation before the Magistrate, would yet become unbefittingly construable to be containing traces of the banned psychotropic substances or the banned narcotic drug. The above situation is not contemplated by the statute. Therefore, even if sub-Section 4 of Section 52-A of the Act, opens with a non-obstante clause, hence ousting the provisions of Section 293 of Cr.P.C., besides ousts the provisions of Section GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and 45 of Indian Evidence Act. Moreover, even though the above ouster is valid, authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -26- 2023:PHHC:109132-DB besides is workable, but is subject to at the time of drawings before the Magistrate of the list appertaining to the derivations of representative parcels from the bulk, that yet necessarily then the apposite laboratory testings being done by/in the presence of the Magistrate. The apposite laboratory testings at the above phase can be done either through the Magistrate concerned forthwith travelling with the representative parcels to the laboratory concerned, or his deputing a responsible officer of the Court to carry the representative samples to the laboratory concerned. Only if the above laboratory testing is done, and, that too at the time of derivations of representative samples from the bulk, but obviously before the Magistrate, that then only the above non-obstante (supra), occurring in sub-Section 4 of Section 52-A of the Act would become enlivened, or would not become redundant, otherwise not.
26. However, in the instant case there is no evidence suggestive, that at the time of drawings of representative samples, from the bulk hence in the presence of the learned Magistrate concerned, his ensuring that the said representative parcels, became tested at a laboratory adjoining the Court premises. Therefore, when only in the above event of the relevant apposite laboratory testings being done, that the mandate of sub-Section 4 of Section 52-A of the Act would have the fullest play, otherwise not. However, if without the apposite laboratory testings being done, more particularly at the stage of preparation of certified inventories or the preparation of the certified list of representative parcels, rather then, the mere preparation of certified inventories or of certified list of representative parcels, cannot be construed to be per-se resulting in a conclusion, that the unexamined stuff inside the representative parcels contained traces of banned psychotropic substance, GURPREET SINGH and, of banned narcotic drug. In sequel, there was an imperative necessity 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -27- 2023:PHHC:109132-DB for the production of the examined sample cloth parcels in Court along with the report of the FSL. Therefore, in the instant case, in wake of the above discussion, the mere production in Court of the certified inventory or the mere production of the report of the FSL concerned, is rather per-se not sufficient to clinch the charge drawn against the accused. The effects of purposive interpretation to the mandate of sub-Section 4 of Section 52-A of the Act
27. The effect of the above purposive interpretation being made to the mandate of sub-Section 4 of Section 52-A of the Act, is that, it is also required to be given the fullest effect, as only on its being given the fullest effect, hence the legislative intent of its incorporation in Section 52-A of the Act, would become fully achieved. As above stated it opens with a non- obstante clause, and, excludes the operation(s) of Section 45 of Indian Evidence Act, besides excludes the operation of Section 293 of Cr.P.C. Section 45 of Indian Evidence Act relates to expert evidence being collected, and, also the expert evidence being tendered besides proven before Courts of law. Moreover, Section 293 of Cr.P.C., relates to the reports made at the FSL concerned, and, to which a rebuttable presumption of truth is assigned. The non-obstante clause in sub-Section 4 of Section 52-A of the Act would yet remain enliven, but only when lab testing facilitates are re-coursed by the learned Magistrates concerned, pointedly at the phase of theirs deriving representative samples from the bulk besides when they thereafter make an order certifying the correctness thereof. In case the learned Magistrates concerned, at the time of certifying the correctness of the apposite inventory, and, to which the high pedestal of primary evidence is statutorily assigned, proceed to also then personally forthwith travel along with the representative samples, to the laboratory concerned, for the relevant testings being made GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and there, or depute a responsible gazetted officer for the above purpose, then authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -28- 2023:PHHC:109132-DB the assigning of the high pedestal of primary evidence to the statutory inventory, would never become rendered redundant rather would remain ever enlivened. Moreover, the above is also subject to the laboratory testings of the stuff inside the representative parcels, also may be, if deemed fit becoming mentioned in the certified inventory, or in some other document appended therewith. If at the initial phase of the learned Magistrate concerned, certifying the correctness of the statutorily made inventory, the above mentionings are made, in the certified list or through his appending with the certified inventory the report of the FSL concerned. Consequently, if the above is then done, thus the certified inventory would enjoy the completest sanctity. Moreover, it would also result in the legislative intent hence excluding the provisions of Section 45 of Indian Evidence Act, besides excluding the provisions of Section 293 of Cr.P.C., rather becoming completely enlivened. Moreover then there would be no necessity, for thereafters qua apposite lab testings being done nor would there be any necessity of the examined sample cloth parcels along with the report of the FSL being produced in Court, as primary evidence, to sustain the charge, otherwise not.
28. Since in the instant case at the time of his certifying the correctness of the entries made in the apposite inventory, the learned Magistrate concerned, did not then ensure the apposite laboratory testing being done nor mentioned them then in his certified inventory nor ensured the appendings therewith of the apposite opinion of the FSL concerned. Thus, per-se the certified inventory does not become primary evidence. Consequently, there was a dire necessity on the part of the prosecution to produce, in Court, both the examined cloth samples, and, also the report of GURPREET SINGH the FSL. However, the above has not been done.
2023.08.22 14:03I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -29- 2023:PHHC:109132-DB
29. In consequence, the argument of the learned State counsel that per-se the certified list of the representative parcels, is primary evidence becomes rejected, and, accordingly an answer is meted to the corresponding above formulated question of law.
Analysis of the notification
30. Since this Court has drawn the above inference, that in the above situation, for establishing a charge drawn under the Act, the prosecution is necessarily required to produce in Court, the examined sample cloth parcels. However, the learned State counsel argues that since the bulk of the seizure besides the examined sample cloth parcels are destroyed by the authorized Drug Disposal Committee, as, constituted under Section 52-A of the Act. Therefore, he has not only validated the destruction, but has also contended that the certified list of representative parcels, is yet rather primary evidence, in respect of the charge drawn under the Act. However, the above submission has been for reasons (supra), already rejected.
Reasons for rejecting the destruction order made by the Drug Disposal Committee
31. Be that as it may, even the destruction of the examined representative parcels, by the Drug Disposal Committee cannot be validated by this Court. The reason being, that the disposal of the seizure by the Drug Disposal Committee, is to be well rested, upon the statutory parameters as appertaining, to hazardous nature of the seizure, vulnerability of theft of the seizure, substitution of the seizure, and, constraints of proper storage space or any other relevant considerations. Therefore, if the apposite destruction is to be validated, there was an imperative requirement qua existences before the Drug Disposal Committee, of sufficient evidence to support the above GURPREET SINGH parameters. Thereafter, it may hence become led to make a tenable reasoned 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -30- 2023:PHHC:109132-DB order, but with disclosures therein that the above statutory parameters (supra), rather becoming fully established. However, the document containing the relevant speaking order, as made by the Drug Disposal Committee, has not been placed on record. Therefore, prima-facie it cannot be concluded that the above relevant evidence for the relevant purpose hence was existing before the Drug Disposal Committee. Consequently, the apposite destruction may not be appropriate.
32. Since as above stated this Court, has only for reasons (supra), concluded that, hence the deficit certified list of representative sample, is not, primary evidence to prove the charge. Therefore, the prosecution is not exempted from proving the report of the FSL concerned, nor is exempted from producing, in Court, rather along with the report of the FSL concerned, the apposite examined sample cloth parcels. Emphasizingly, the above necessity has arisen only because at the time of presentation of the inventory before the learned Magistrate concerned, by the empowered police officer, rather his omitting to, before his certifying the correctness of the inventory, or immediately thereafter hence ensuring that then, the apposite lab testings being done. The above may have been ensured through his either personally forthwith ensuring apposite laboratory testings, or through his deputing some responsible gazetted officer to, along with the empowered police officer, travel to the lab concerned, for the relevant testings being made of the stuff inside the representative parcels. Subsequently, if he had in the inventory certified by him, hence referred to the stuff inside the representative parcels hence being put to laboratory testing or had appended with the certified inventory the report of the FSL concerned. Resultantly, then the non-obstante excluding the mandate of Section 45 of Indian GURPREET SINGH Evidence Act, besides the mandate of Section 293 of the Cr.P.C., would 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -31- 2023:PHHC:109132-DB become fully enabled and alive, besides would give the fullest effect to the legislative wisdom, in its being engrafted in Section 52-A of the Act. However, in the instant factual situation, for all the above reasons yet the provisions of Section 45 of Indian Evidence Act, besides the provisions of Section 293 of Cr.P.C., remain fully intact. Therefore, it was incumbent upon the Drug Disposal Committee, to yet ensure that the apposite examined stuff inside the sample cloth parcels yet being ensured to become retained either at the FSL concerned, or with the in-charge of the malkhana concerned, for thus ensuring that thereafters the examined sample cloth parcels become produced in Court. If the above destruction has happened, it may not be appropriate.
33. Furthermore, the certificate of destruction, as mentioned in paragraph 11 of the notification, is also to be carrying all the relevant data appertaining to godown entry number, gross net weight of the item seized, but the above certification has not been placed on record. Therefore, also the apposite destruction becomes inappropriate. All the above formulated questions of law are answered accordingly.
Summarization of principles
34. (I) The laboratory testings of the stuff inside the representative parcels referred in the certified inventory drawn under Section 52-A of the Act, is but imperative, as, only on laboratory testings being done of the stuff inside the representative parcels, that then it can be concluded that the charge drawn with respect to an offence under the Act is proven.
GURPREET SINGH 2023.08.22 14:03 (II) The mere production of the certified inventory in Court, I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -32- 2023:PHHC:109132-DB may not become primary evidence, but would become so only when at the time of drawings of the representative parcels before the learned Magistrate concerned, the apposite laboratory testings are then done, either through the learned Magistrate personally travelling along with the representative parcels, to the laboratory or his deputing a gazetted officer along with an empowered police officer to travel to the laboratory for the relevant testings being made there.
(III) If the above testings are also referred in the certified inventory or the report of the FSL is appended therewith or a reference to the report of the FSL is made in any document appended with the certified inventory, then the mere production of the certified inventory in Court, becomes primary evidence, and, per-se on its production in Court, the charge under the Act becomes proven.
(IV) However, if at the time of drawings of the representative parcels or if at the time of makings of the statutory certification qua correctness of the inventory, the Magistrate concerned, does not ensure the apposite laboratory testings being done, then the laboratory testings of the stuff inside the representative cloth parcels, is yet to be done at the laboratory concerned. If so, not only the report of the FSL concerned, but also the examined relevant cloth parcels are to be produced in Court, as both comprise primary evidence, for proving a charge under the Act. GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh Importantly, when in the above relevant factual situation, CRA-D-601-DB-2019 (O&M) -33- 2023:PHHC:109132-DB the provisions of both Section 45 of Indian Evidence Act, and, of Section 293 of Cr.P.C., remain intact.
(V) The Drug Disposal Committee as constituted through a notification (supra), made by the Central Government, is to bear in mind all the relevant parameters (supra), as appertaining to destruction of representative parcels, besides is to ensure that clinching evidence in respect of the above parameters is adduced before it.
(VI) If clinching evidence in respect of the above, is produced before the Drug Disposal Committee, then only through a valid speaking order any destruction/disposal of the bulk can be validly made even during the pendency of an inquiry or trial.
35. The Registry is directed to circulate a copy of this verdict to the Secretary Home, Government of Punjab, and, to the Secretary Home, Government of Haryana. The reason being that storage capacities in the police malkhanas concerned, in the above States being ensured to be increased within six months hereafter, and, with an intimation to this Court.
Final order
36. The result of the above discussion, is that, this Court finds merit in the appeal, and, is constrained to allow it. Consequently, the appeal is allowed. The impugned judgment and order convicting, and, sentencing the appellant, and, as recorded by the learned trial Judge concerned, are quashed, and, set aside. The appellant is acquitted of the charges framed against him. The fine amount, if any, deposited by him, be, in accordance GURPREET SINGH 2023.08.22 14:03 with law, refunded to him. The personal, and, surety bonds of the accused I attest to the accuracy and authenticity of this order/judgement Chandigarh CRA-D-601-DB-2019 (O&M) -34- 2023:PHHC:109132-DB shall stand forthwith cancelled, and, discharged. The case property, if any, if not required, be dealt with, in accordance with law, but after the expiry of the period of limitation for the filing of an appeal. The appellant, if in custody, and, if not required in any other case, be forthwith set at liberty.
37. Records be sent down forthwith.
38. The miscellaneous application(s), if any, is/are, also disposed of.
(SURESHWAR THAKUR) JUDGE (KULDEEP TIWARI) JUDGE August 17, 2023 Gurpreet Whether speaking/reasoned : Yes/No Whether reportable : Yes/No GURPREET SINGH 2023.08.22 14:03 I attest to the accuracy and authenticity of this order/judgement Chandigarh