Punjab-Haryana High Court
Sandeep Kaur vs State Of Punjab on 19 November, 2014
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Misc. No. M-22002 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
*****
Crl. Misc. No. M-22002 of 2012 (O&M) Date of decision : November 19, 2014 ***** Sandeep Kaur @ Mandeep Kaur ............Petitioners Versus State of Punjab ...........Respondent ***** CORAM: HON'BLE MS. JUSTICE RITU BAHRI ***** Present: Mr. J.S Bhatia, Advocate for the petitioner.
Mr. Gurvir Sidhu, AAG, Punjab.
***** RITU BAHRI, J Present petition has been filed under Section 482 Cr.P.C for quashing of the order dated 13.6.2012 passed by Judge Special Court, Jallandhar (Annexure P-4) vide which the application of the prosecution (Annexure P-3) for sending the sample for re-analysis has been allowed.
The facts of the FIR (Annexure P-1), in brief, are as under:
On 22.4.2012, Mandeep Singh, ASI, Model Police Station, Shahkot, Jallandhar was patrolling along with police team in a private vehicle for investigation of case No. 56 dated 21.4.2012 under Sections 392, 323, 34 IPC at Police Station Shahkot. They reached RITU 2014.11.21 16:55 I attest to the accuracy and authenticity of this document Chandigarh Crl. Misc. No. M-22002 of 2012 (O&M) 2 at house of Kulwant Singh @ Kanti R/o Rerwan at the gate and saw one man and a women coming out. Man was holding one envelope containing some article and woman was holding one purse. On seeing the police, they immediately tried to reverse. On suspicion, they were apprehended. Their names and address were asked. On asking they told their names as Kulwant Singh @ Kanti son of Satnam Singh and Sandeep Kaur @ Mandeep Kaur wife of Kulwant Singh @ Kanti Caste Jat resident of Rerwan. Mandeep Singh, ASI told them his name,rank and police station and further told them that they had suspicion that they have some intoxicant article. He further told them that they have a legal right to be searched from some Gazetted Officer or from some Magistrate. They consented for the search but refused to sign on the fard. As such ASI, Mandeep Singh gave an information to Inspector/SHO and called him at the spot. On the direction of SHO, ASI, Mandeep Singh and Lady Constable Vipanjeet Kaur searched Kulwant Singh @ Kanti and Sandeep Kaur respectively. From both of them 250 grams/250 grams totalling 500 grams heroin was recovered. Out of this recovery, two samples each weighing 5 grams were taken out. Rest of the recovered heroin was weighed which came to be 245/245 grams each. Two samples heroin weighing 05/05 grams and two envelopes heroin both 245/245 grams were sealed in two different plastic dibbies. In this background FIR No. 59 dated 22.4.2012 was registered under Sections 21, 61, 85 NDPS Act at police station Shahkot.
After the alleged recovery of the contraband both these RITU 2014.11.21 16:55 I attest to the accuracy and authenticity of this document Chandigarh Crl. Misc. No. M-22002 of 2012 (O&M) 3 samples were sent to the Chemical Examiner to find out whether the sample was the heroin or not. As per report of the Chemical Examiner, the samples which were sent by the police through his own agency does not contain the contents of the heroin i.e. (Diacetyle and Morphine). Hence it was not found to be contraband under the NDPS Act.
The petitioner thereafter was granted regular bail vide order dated 13.6.2012 (Annexure P-2). During the pendency of the bail application of the petitioner, a request was made to the Special Court that the second sample be sent to the Forensic Science Laboratory of the Central Government for fresh result. This application was allowed by the Judge, Special Court, Jalandhar vide order dated 13.6.2012 (Annexure P-4).
Counsel for the petitioner has argued that in the NDPS Act, there is no provision for sending the second sample to the Chemical Examiner. He has referred to the Division Bench judgment of this Court in the case of Amarjit Singh vs State of Punjab 2013 (4) RCR (Criminal) 524, Supreme Court judgment in the case of Thana Singh vs Central Bureau of Narcotics, 2013 (2) SCC 590 and Singh Bench judgement of this Court in the case of Karan Kakkar vs State of U.T., Chandigarh in Crl. Misc. No. M-19025 of 2013 decided on 3.10.2013.
On notice, a reply has been filed by the Deputy Superintendent of Police, Shahkot, Sub Division, Jalndhar (Rural) on behalf of the respondent-State. As per the reply, the petitioner and RITU 2014.11.21 16:55 I attest to the accuracy and authenticity of this document Chandigarh Crl. Misc. No. M-22002 of 2012 (O&M) 4 her husband Kulwant Singh @ Kanti were found in possession of 600 grams of heroin which was taken into possession as per law by ASI Mandeep Singh on 22.4.2012. One parcel of the sample was sent to Examiner which gave negative report. Thereafter the second sample was sent to the office of Chemical Examiner with the permission of the Special Court, Jalandhar vide its order dated 13.6.2012 (Annexure P-4). After getting the report from the Chemical Examiner, the investigation was completed and a challan was presented on 9.7.2012. The charges have been framed and the petitioners and the co-accused are facing a trial in the Courts of Additional Sessions Judge, Jalandhar. On 25.9.2014, this Court was informed by State counsel on instructions from ASI, Sarabjit Singh that the officer who conducted the examination of sample has since been arrested and FIR No. 14 dated 11.11.2013 has been registered against him. In this regard, the State counsel was directed to file a better affidavit. In compliance of the order dated 25.9.2014, an affidavit has been filed by the Deputy Superintendent of Police, Jalandhar on 5.11.2014. In paragraph 3 of this affidavit, the information has been given as under:
3. That it is respectfully submitted that pursuant to the registration of the case/FIR No. 59 (Surpa), two samples (5 gms each) of the contraband recovered from the petitioner and her husband were sent for its chemical examination at the Forensic Science Laboratory, Kharar on 30.4.2012. Thereafter, the RITU 2014.11.21 16:55 I attest to the accuracy and authenticity of this document Chandigarh Crl. Misc. No. M-22002 of 2012 (O&M) 5 report dated 24.5.2012 of the office of the Chemical Examiner to the Punjab Govt., Kharar was received wherein it was observed that the both the samples were not heroin. It is pertinent to mention here that the samples were examined by Shingara Ram, Assistant Chemical Examiner, Kharar.
Pursuant to the order dated 13.6.2012 passed by the Court of Special Judge, Jalandhar, the second sample was sent for its chemical examination to the Forensic Science Laboratory, Punjab on 15.6.2012. Thereafter the report of the second sample dated 28.6.2012 was received at Police Station Shahkot wherein it was stated that the samples sent for chemical examination were positive and contained about 65% of Diacetyl morphine i.e., heroin.
It is further stated in the affidavit that FIR No.14 dated 11.11.2013 under Sections 20/467/468/471/218/201/120-B IPC 7/13 (1)(d) r/w 13(2) PC Act, 1988 was registered against Rajwinderpal Singh, Assistant Chemical Examiner Kharar, Shingara Ram, Assistant Chemical Examiner, Jagdeep Singh, Laboratory Attendant, Gurjant Singh, Laboratory Technician, Rajesh Kumar Mishra, Clerk, Charanjit Singh, Class-IV Civil Hospital, Kharar, Sandeep Singh, Constable Ashwini Kumar No. 2465/Btl, Constable Rakesh Kumar No. 3299/Jal., Harish Ahuja, Advocate, Praveen Arora Computer Operator, Chemical Examiner, Punjab Kharar and Nekh Raj, Chemical Lab Attendant (Technician) on the complaint of Smt. V. Neerja, IPS, Director Vigilance Bureau, Punjab Chandigarh for failing RITU 2014.11.21 16:55 I attest to the accuracy and authenticity of this document Chandigarh Crl. Misc. No. M-22002 of 2012 (O&M) 6 the samples sent to the Forensic Science Laboratory, Kharar for chemical examination by taking extraneous consideration. The report under Section 173 Cr.P.C stands presented in case FIR No. 14 on 7.3.2014 and the charges in the said case were framed on 27.8.2014. The case is now pending adjudication before the Court of Additional Sessions Judge, Mohali and is fixed for prosecution evidence on 17.11.2014. In the above background, the second report of the chemical examiner received on 28.6.2012 resulting positive is a trustworthy report unlike the first report dated 24.5.2012.
After going through the facts of the case, judgments referred to by the petitioner can be examined. First of all in Thana Singh's case (supra), Hon'ble Supreme Court in para 25 of the judgment has observed with regard to the retesting as under:
25. Therefore, keeping in mind the array of factors discussed above, we direct that after the completion of necessary tests by the concerned laboratories, results of the same must be furnished to all parties concerned with the matter. Any requests as to retesting/re-sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge.
An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/re-sampling shall be RITU 2014.11.21 16:55 I attest to the accuracy and authenticity of this document Chandigarh Crl. Misc. No. M-22002 of 2012 (O&M) 7 entertained thereafter. However, in the absence of any compelling circumstances, any form of re-testing/re- sampling is strictly prohibited under the NDPS Act. The Division Bench of this Court in the case of Amarjit Singh's case (Supra) was considering the case where the second sample was sent to the Chemical Examiner after taking the necessary permission of the Special Court even though there was no provision under the NDPS Act for sending the second sample for retesting. In paragraph 22, it has been observed as under:
22. Even though the Narcotics Drugs And psychotropic Substances Act does not have any provision pertaining to the second test of the sample, at the instance of the prosecution, there may arise an occasion which would warrant recourse to second test. It may be a case where the sample contraband sent for examination was lost in transit or could not be traced before ever the test was embarked upon by the Laboratory.
The sample would have been subjected to damage during transit or at the Laboratory. There may be a case where the found affixed on the sample does not match with the sample seal sent along therewith for comparison by the Chemical Examiner before ever opening the sample for test. Though the Narcotics Drugs And RITU 2014.11.21 16:55 I attest to the accuracy and authenticity of this document Chandigarh Crl. Misc. No. M-22002 of 2012 (O&M) 8 Psychotropic Substances Act not recognize the right of the prosecution to go in for second test, the aforesaid contingencies warrant second test in the interest of justice. Negation of the plea for second test even in such contingencies would definitely lead to miscarriage of justice. But at the same time the prosecution cannot simply come with an application for re-test of the sample already collected or drawn afresh from the bulk quantity just because it was not satisfied with the report submitted at the first instance by the Chemical Examiner. In case the sample itself was tampered with at the instance of the accused or at the instance of the Chemical Examiner, of course, the prosecution can pray for fresh test by another Laboratory of the sample already kept or the sample draw from the bulk of the quantity. Under such circumstances two sets of opinion, may emerge in a particular case. Under the PFA Act and the Insecticides Act, the ultimate report submitted by the Analyst has been termed as conclusive proof. But in the Narcotic Drugs And Psychotropic Substances Act there is no such provision to term the report ultimately submitted by the Central Forensic Science Laboratory as RITU 2014.11.21 16:55 I attest to the accuracy and authenticity of this document Chandigarh Crl. Misc. No. M-22002 of 2012 (O&M) 9 conclusive proof, making in roads into the domain of the Evidence Act. When the Special Act governing the narcotic offenses does not speak about the relative probative value of the first result and the final result of the sample, the general law of evidence will have to be applied. The ratio of the above two judgments is that only in exceptional circumstances, in the interest of justice, where a prayer is being made for sending the sample for retesting, the Court can exercise its jurisdiction to allow such an application but the caution has been given that an application should not be allowed just to prolong and delay the proceedings of trial. The examination should be made within 15 days of the first report of the Chemical examination. Delhi High Court has allowed retesting of the samples of contraband in the interest of justice in a number of cases. Reference can be made to a judgment of Delhi High Court in Nihal Khan vs State (Govt. of NCT of Delhi), 2007 (3) RCR (Criminal) 850 and a judgement of this Court in Resham Singh alias Pappu vs State of Haryana, 2006 (4) RCR (Criminal) 545.
In the facts of the present case as per the affidavit filed, Shingara Ram, Asistnat Chemical Examiner, Forensic Science Laboratory, Kharar who had conducted the chemical examination of the first sample is facing trial in FIR. This circumstance is sufficient in the interest of justice to carry out the Chemical Examination of second sample of the contraband so recovered on. RITU 2014.11.21 16:55 I attest to the accuracy and authenticity of this document Chandigarh Crl. Misc. No. M-22002 of 2012 (O&M) 10
No ground is made out to interfere with the order dated 13.6.2012. Present petition is dismissed.
November 19, 2014 ( RITU BAHRI )
ritu JUDGE
RITU
2014.11.21 16:55
I attest to the accuracy and
authenticity of this document
Chandigarh