Punjab-Haryana High Court
Didar Singh @ Dara vs The State Of Punjab on 13 May, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
Crl.Appeal No.906-DB of 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYA
AT CHANDIGARH
Crl.Appeal No.906-DB of 2006
DATE OF DECISION: MAY 13, 2010
Didar Singh @ Dara
.....APPELLANT
Versus
The State of Punjab
....RESPONDENT
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE JORA SINGH
---
Present: Mr. Sant Pal Singh Sidhu, Advocate,
for the appellant.
Ms. Gurveen H. Singh, Addl. Advocate General,
Punjab, for the respondent-State.
..
SATISH KUMAR MITTAL, J.
Appellant Didar Singh has filed this appeal against the judgment dated 25.10.2006 passed by the Judge, Special Court, Amritsar, whereby he has been convicted under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. one lac and in default whereof, he shall further undergo rigorous imprisonment for a period of one year.
As per the prosecution version, on 7.2.2004 at 5.00 p.m. SI Vishwa Mitter, Incharge, CIA Staff, along with other police officials, was present in the government gypsy at the bridge of canal Sultanwind, Crl.Appeal No.906-DB of 2006 -2- Amritsar, in connection with patrolling and in search of bad elements. There he received a secret information through a special informer that appellant Didar Singh, whose house was situated behind Police Station, Sultanwind, was indulging in selling of opium at large scale, and if a raid was conducted, he could be apprehended red handed and opium in heavy quantity could be recovered. On receiving the said information, the police party went towards the house of the appellant and on the way one Gurmej Singh, resident of Gurnam Nagar, Sultanwind Road, Amritsar was joined and a raid was conducted. The raiding party found that a person holding a black colour bag in his left hand was standing on the gate of the house. On seeing the police party, he tried to run towards his left side, but was apprehended. Upon enquiry, he disclosed his name as Didar Singh. The police official told him that he was suspected of having opium in his possession and his search was to be conducted. He was given option whether he wanted the search to be conducted from a Gazetted Officer or a Magistrate. He told the police officials that he wanted to get his search conducted from a Gazetted Officer. Thereupon, SI Vishwa Mitter (PW1) gave intimation to Shri Ranvir Singh, DSP on his mobile phone upon which the DSP reached the spot within seven minuteas. He disclosed his identity to appellant Didar Singh and told him that he was a Gazetted Officer and he was being suspected of having opium, therefore, his search was to be conducted. He was again given offer whether he wanted his search conducted from a Gazetted Officer or a Magistrate. Then appellant Didar Singh gave his consent to be searched in the presence of a Gazetted Officer. Thereupon, SI Vishwa Mitter (PW1) on the instructions of DSP Ranvir Crl.Appeal No.906-DB of 2006 -3- Singh, conducted search of appellant Didar Singh which led to the recovery of opium from the bag kept by him in his left hand. Two samples of 100 grams each were taken from the recovered opium and the remaining opium on weight found to be 9.800 Kgs. The same was converted into separate parcels which were sealed with seal `VM' and seal of DSP `RS'. The seal after use was handed over to ASI Gurcharan Singh. When the accused could not produce any proof of licence for keeping the opium in his possession, he was found to have committed the offence under Section 18 of the Act. After completing all the formalities, the ruqa (Ex.PG) was sent at 6.30 p.m. through HC Gurdip Singh for registration of the criminal case. On the basis of the said ruqa, the formal FIR (Ex.PH) was recorded by ASI Beant Singh on 7.2.2004 at Police Station Sultanwind at 6.50 p.m. The accused was arrested vide arrest memo Ex.PE, and Ex.PF is the site plan of the place of recovery. The police party then returned to the Police Station along with the accused. Case property with all seals intact was handed over to SI Mandip Singh, SHO, Sultanwind, who also affixed his own seal bearing impression `MS' on the case property and sample seal. On the next day the accused was produced before the Area Magistrate. Subsequently, the samples were sent to the office of Chemical Examiner, Chandigarh. As per the report of the Chemical Examiner, Ex.PK, the contents of the parcel were that of opium.
After completion of the investigation, challan was filed against the accused. He was charge-sheeted under Section 18 of the NDPS Act to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined only four Crl.Appeal No.906-DB of 2006 -4- witnesses, i.e., PW1-SI Vishwa Mitter, Seizing and Investigating Officer, PW2-Constable Baljit Singh, who proved his affidavit Ex.PJ, according to which, on 12.2.2004 SI Mandip Singh, SHO, Sultanwind handed over to him one parcel of sample of the instant case weighing 100 grams opium duly sealed with seals `VM', `RS' and `MS' along with relevant documents, in intact condition after taking out from double lock for depositing the same in the office of Chemical Examiner, Chandigarh. He had deposited the said sample in the office of Chemical Examiner, Chandigarh and handed over the receipt thereof to SHO, Police Station, Sultanwind. He further deposed that so long as the parcel opium remained in his custody, neither he tampered with nor allowed any one to tamper the same. PW3-DSP Ranvir Singh stated that on 7.2.2004, in his presence and under his supervision, 10 Kgs. opium was recovered from the possession of the accused. He further stated that two samples of 100 grams each were drawn from the recovered opium and separate parcel of the sample and the residue was prepared and seals were also prepared bearing impressions `RS' and that of Seizure Officer `VM'. The seal after use was handed over to ASI Gurcharan Singh. PW4 is S.I. Mandip Singh, who was the then SHO of Police Station, Sultanwind. He stated that on 7.2.2004 SI Vishwa Mitter produced the accused along with three parcels sealed with the seal bearing impression `VM' and `RS'. After verifying the facts, he put his seal bearing impression `MS' on those parcels and he retained the case property in his custody in double lock. On 12.2.2004, one sample parcel was sent along with sample seal to the office of Chemical Examiner, Chandigarh and on his return he handed over the receipt to him. The case property was not tampered with Crl.Appeal No.906-DB of 2006 -5- during the period it remained in his custody and on receipt of the report of the Chemical Examiner (Ex.PK), the challan was presented under his signatures by SI Davinder Singh, the then SHO whose signatures were identified on the challan.
After closing of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. in which he claimed innocence and stated that he was falsely implicated in this case. Nothing incriminating was recovered from him. He was having enmity with Joginder Singh at whose instance he was lifted by the police officials from his house and later on falsely implicated in the present case.
In defence, the accused examined SI Malkiat Singh as DW1. He stated that as per the entry in DDR, on 7.2.2004 SI Vishwa Mitter (PW1) came to Police Station along with accused and the case property at 10.20 p.m. As per the entry in register No.19, two sample parcels of 100 grams each and a bulk parcel of 9.800 Kgs. along with Rs.740/-,on personal search, were deposited by SI Vishwa Mitter. There is no entry with regard to deposit of Form No.M-29. The case property was taken out of double lock on 8.2.2004 at 1.40 p.m. and an entry has been made in this regard at serial No.14. The case property was deposited in CIA Staff on 23.4.2004. The sample parcel was sent to Chemical Examiner through Constable Baljit Singh on 12.2.2004.
The trial Court after appreciating the evidence available on the record and believing the testimony of the prosecution witnesses, held that the prosecution has successfully proved its case against the accused, beyond the shadow of reasonable doubt, and convicted and sentenced the accused under Section 18 of the Act, as indicated above.
Crl.Appeal No.906-DB of 2006 -6-
We have heard the arguments of the learned counsel for both the parties.
Learned counsel for the appellant argued that in the instant case the appellant was falsely implicated by the police. No recovery was effected from him by SI Vishwa Mitter (PW1) in presence of DSP Ranvir Singh (PW3), and the prosecution has failed to prove its case beyond reasonable doubt. In order to substantiate his arguments, learned counsel referred to various contradictions, illegalities and infirmities in the statements of the prosecution witnesses and other documentary evidence. Learned counsel argued that PW1- SI Vishwa Mitter in his cross-examination had stated that Form No.29 (CFSL Form) was filled up by SHO Mandip Singh (PW4) in the Police Station. However, seals `VM' and `RS' were affixed on the said Form at the spot. Those seals were also prepared at the spot. Only seals were affixed at the spot and the entire other writing work on Form No.29 was done in the Police Station by the SHO. The writing on the CFSL Form was not in his hand. It was in the hand of SHO. On the other hand, SHO Mandip Singh while appearing in the Court had stated that Form No.29 was filled up by SI Vishwa Mitter (PW1) at the spot and when the same was produced before him, it was duly filled up at that time. He stated that he did not know in whose writing the said Form was filled up. He further stated that on receipt of the said Form along with case property he put the same in the double lock with the case property. He further stated that when the CFL Form was produced before him, he put his signatures and affixed his seal on it. When it was produced before him, SI Vishwa Mitter (PW1) had not written anything on Form No.29 in his presence. It was produced duly filled Crl.Appeal No.906-DB of 2006 -7- up. In this regard, learned counsel further referred to the statement of PW3- Ranvir Singh, DSP. He stated that CFSL Form was filled up in his presence by SI Vishwa Mitter (PW1). He can identify his handwriting. He further stated that he had affixed his seal on Form No.29 and except that he did not affix the seal on any blank paper nor handed over the same to SI Vishwa Mitter. Learned counsel while referring to the original CFSL Form available on the record, argued that on CFSL Form No.29, the paper having three seals after cutting to the size of the seal, has been pasted. According to the learned counsel, all these contradictions made in Form No.29 clearly indicate that the appellant has been falsely implicated in this case.
Learned counsel further argued that no recovery was effected by PW1-SI Vishwa Mitter from the appellant in presence of DSP Ranvir Singh (PW3). In support of his contention, he referred to the part of the statement of the prosecution witnesses. According to PW1- SI Vishwa Mitter, on his telephonic call, DSP Ranvir Singh reached the spot within seven minutes. When it was asked to him what was his and the DSP mobile numbers, he could not give the numbers of both the mobile phones. PW3- DSP Ranvir Singh stated that on receiving the information, he reached the spot on a vehicle. However, he did not remember the name of the driver or registration number of the vehicle which was used by him on the day of recovery. He also did not remember as for how long the driver, who accompanied him on the date of recovery, remained posted with him. Learned counsel further pointed out that this witness had stated that Form No.29 was filled up in his presence by PW1-SI Vishwa Mitter and he put his seal on the same. But, according to the documents available on the Crl.Appeal No.906-DB of 2006 -8- record and the statement of PW1- SI Vishwa Mitter, Form No.29 was not filled up by him and it was filled up in the Police Station by SHO. These contradictions create doubt about the presence of DSP Ranvir Singh on the spot and also indicate that no recovery was effected by SI Vishwa Mitter in presence of DSP Ranvir Singh, and a false case was planted on the accused, and every document was prepared in Police Station. According to the learned counsel, Form No.29 was forged on which the papers having three seals were pasted.
Learned counsel further argued that it has been admitted by PW1- SI Vishwa Mitter and PW3-DSP Ranvir Singh that the seal after use was handed over to ASI Gurcharan Singh. In order to prove that the samples were not tampered and subsequently the said seal was not misused by any one, the prosecution did not examine ASI Gurcharan Singh in order to prove that he did not give that seal to any one.
Learned counsel further argued that though one Gurmail Singh, was associated as an independent witness at the time of conducting the raid and the alleged recovery of opium from the possession of the appellant, but the said witness has not been examined by the prosecution without any reason or justification. PW1- SI Vishwa Mitter in his cross examination has stated that after effecting the recovery in the present case, he did not meet Gurmail Singh till his deposition in the Court.
Learned counsel further argued that all the memos, which were prepared at the spot, i.e. Ex.PA, Ex.PB, Ex.PC, Ex.PD, Ex.PE and Ex.PF bear the FIR number, whereas these documents were prepared prior to registration of the FIR. This also indicates that everything was falsely Crl.Appeal No.906-DB of 2006 -9- prepared subsequently in Police Station and a false case was registered against the appellant.
Learned counsel also argued that in the instant case there is a delay in sending the sample for examination. The sample was taken on 7.2.2004 and it was sent to the Forensic Science Laboratory on 12.2.2004. Therefore, there was a delay of 5 days. According to the learned counsel, the sample was to be sent to the Forensic Science Laboratory for examination within seventy-two hours. Therefore, this fact also creates a doubt in the prosecution version.
Learned counsel further argued that in the instant case SI Vishwa Mitter (PW1) while conducting raid on the secret information did not comply with the provisions of Section 42 of the Act. Learned counsel referred to the statement of SI Vishwa Mitter where he had stated that he did not send any information in writing about the secret information to the higher authority. He further stated that the house of the accused was at a distance of one Kilometer from the spot where the secret information was received, and after associating the independent witness Gurmail Singh, they went to the house of the appellant in order to search and seizure. Learned counsel argued that even subsequent to the raid and recovery, the Seizing Officer did not record it in writing in the concerned register and send a copy of the same to the superior officer. Thus, the requirement of Section 42(2) of the Act was not complied with. Therefore, according to the learned counsel, the conviction of the appellant is not sustainable and the same is liable to be set aside.
On the other hand, learned counsel for the respondent-State Crl.Appeal No.906-DB of 2006 -10- argued that in the instant case the prosecution has fully established the case against the appellant beyond a reasonable doubt. She submitted that there was no requirement to prepare the CFL Form No.29 at the spot. Therefore, if the said Form was not prepared at the spot, it does not cause any prejudice to the appellant and prove fatal to the prosecution case. Learned counsel further argued that the statements of both the material witnesses are consistent and from their testimonies it has been fully established that 10 Kgs. of opium was recovered from the conscious possession of the appellant when the search was duly conducted by SI Vishwa Mitter (PW1) in presence of DSP Ranvir Singh (PW3). Learned counsel contended that the delay in sending the sample is not fatal until and unless it is proved that due to delay some serious prejudice has been caused to the accused. In this regard, learned counsel referred to the Division Bench decision of this Court in Baggar Singh @ Gaggi v. State of Haryana, 2009(4) RCR (Crl.) 183 and a decision of the Supreme Court in State of Orissa v. Kanduri Sahoo, 2004 (1) RCR (Crl.) 196. In Baggar Singh's case (supra), where 18 days delay had occurred in sending the sample of contraband to CFSL for analysis, was held to be not fatal. Similarly, in Khanduri Sahoo's case (supra), it was held by the Supreme Court that 4 days delay in sending the sample is no ground to quash the prosecution case when the articles were in proper and safe custody.
Learned counsel further argued that non-examination of the independent witness and handing over the seal to him, do not consider to be fatal in the NDPS case in view of the Full Bench decision of this Court in Piara Singh v. The State of Punjab, 1982 PLR 244. Learned counsel further argued that the provision of Section 42 is not applicable in the instant case. Crl.Appeal No.906-DB of 2006 -11- This provision is applicable only when the search is being conducted at the residential premises after sunset and before sunrise. She argued that when the search is conducted on a public place, then the provision of Section 42 is attracted. In view of these submissions, learned counsel argued that there is no illegality or infirmity in the impugned judgment and the trial Court has rightly convicted the appellant.
We have considered the various submissions and gone through the record.
Under the NDPS Act, not only the very possession of the narcotics, drugs and psychotropic substances has been made an offence but severe punishment without exception has also been provided. The Act also provides for presumption of guilt emerging from possession of Narcotics Drugs and Psychotropic Substances. In case of commercial quantity of the narcotics, drugs and psychotropic substances, the minimum sentence of 10 years rigorous imprisonment besides minimum fine of Rs. one lac has been provided. The Hon'ble Supreme Court in Noor Aga v. State of Punjab, 2008(3) RCR (Crl.) 633 has held that under the NDPS Act the extent of burden to prove the foundational facts on the prosecution, i.e., proof beyond all reasonable conduct is more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but on the other hand, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights but insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the Crl.Appeal No.906-DB of 2006 -12- democratic values, it is necessary for giving effect to the concept of wider civilisation. It is further observed that while deciding such cases, the Courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. Therefore, a higher degree of assurance would be necessary to convict an accused under the NDPS Act.
Thus, under the NDPS Act, it is the fundamental duty of the prosecution to prove beyond a shadow of reasonable doubt that the investigation conducted in the case is absolutely flawless specifically with regard to the link evidence which is of most significant aspect. It is incumbent upon the prosecution to prove that from the stage of effecting the recovery till the sample reach the Chemical Examiner, there was no chance of tampering with it. Once the presumption is stumbling, on this vital aspect the benefit is to be extended to the accused.
In the present case, Form No.29 was neither prepared at the spot nor it was deposited with the Incharge of the Malkhana. Even the sample seal was handed over to the police official, who was part of the investigating team, and the same was also not deposited in the Malkhana or kept in the independent hand. In this regard, there are major contradictions in the statements of PW1-SI Vishwa Mitter, PW3-DSP Ranvir Singh and PW4-SHO Mandip Singh. These major contradictions in their statements create serious doubt in the prosecution version about recovery of the alleged opium from the possession of the accused. According to PW1- SI Vishwa Mitter, Form No.29 was not filled up by him at the spot. It was filled up by SHO Mandip Singh (PW4) in the Police Station. However, according to Crl.Appeal No.906-DB of 2006 -13- him, seals `VM' and `RS' were affixed on the said Form at the spot. On the other hand, SHO Mandip Singh (PW4) while appearing in the Court has stated that Form No.29 was filled up by SI Vishwa Mitter (PW1) at the spot and the same was produced before him. He has categorically denied that he had filled up the Form in the Police Station and the said Form bears his writing. On the other hand, DSP Ranvir Singh (PW3) stated in the Court that CFSL Form was filled up by SI Vishwa Mitter (PW1) in his presence. He further stated that he had affixed his seal on Form No.29 at the spot. He is very categoric that he did not affix his seal on any of the blank papers nor he had handed over the same to SI Vishwa Mitter. These contradictory statements of all the three witnesses not only create a serious doubt in the prosecution version but a close examination of Form No.29, placed on record by the prosecution as original one, further deepens the doubt about its execution at the time of effecting recovery from the accused. We have seen the said Original Form available on the record. On the face of it, this document appears to be forged one. On this Form, three small papers having seals after cutting to the size of the seal, have been pasted at three different places. These seals are of `VM', `RS' and `MS'. On one hand, PW1-SI Vishwa Mitter stated that he had put his seal on the original CFSL Form and he had not filled the said Form. According to him, it was filled up by SHO Mandip Singh (PW4). On the other hand, SHO Mandip Singh (PW4) stated that he did not fill up Form No.29. The said Form was produced before him duly filled by SI Vishwa Mitter. He affixed his seal on the same as well as on the sample. PW3-DSP Ranvir Singh stated that Form No.29 was filled up at the spot by SI Vishwa Mitter and he affixed his seal on the same. In our Crl.Appeal No.906-DB of 2006 -14- opinion, none of the seal has been affixed on the Original Form No.29. All the three seals appear to have been subsequently pasted on the Original Form, which has been produced on the record. From these contradictions, the entire prosecution case becomes doubtful. From these facts, the possibility of sending the changed sample to Forensic Science Laboratory cannot be ruled out. The Forensic Science Laboratory had compared the seals on the sample from the forged Form No.29, whereas the seals were subsequently pasted on three seal impressions. Therefore, the prosecution has failed to proved beyond a reasonable doubt that the sample of the contraband, which was examined by the Forensic Science Laboratory, was the same which was alleged to have been recovered from the appellant at the time of the alleged recovery.
Learned counsel for the State, while referring to the decision of the Supreme Court in Khet Singh v. Union of India, (2002) 4 SCC 380, argued that there is no statutory requirement for preparing the Seizure mahazar or CFSL Form No.29 at the spot. Even if some Standing Instructions require the preparation of this document at the spot, the same does not have any statutory force, and if there is any violation for such Instructions or Guidelines, that itself does not make the prosecution case doubtful. She argued that such a document could have been prepared at a later stage while recording the reasons. Learned counsel also referred to some observations made by the Supreme Court in State by CBI v. Dilbagh, (2004) 13 SCC 99 where it was observed that merely because the CFSL Form was not prepared triplicate, does not in any way reflect on the fact that the sample which was extracted, was the sample which reached the Crl.Appeal No.906-DB of 2006 -15- Chemical Analyser with the seal intact. Therefore, the same cannot be taken as a serious lapse on the part of the prosecution.
We do not find any force in the aforesaid contention of the learned counsel for the State. In decision of Khet Singh's case (supra) itself, it has been observed by the Supreme Court that such non-preparation of seizure mahazar at the spot and preparation of the same in Customs Office, where accused remained present throughout, will be admissible. But, if search and seizure was in complete defiance of the law and procedure and there was possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not admissible in evidence. In the present case, as indicated above, there is a tampering and interpolation on the FSL report, therefore, the decision cited by the learned State counsel will not help her.
Similarly, in State by CBI v. Dilbagh's case (supra), it was observed that non-preparation of CFSL Form at the spot will not be fatal, if the prosecution has been careful enough to prove that the same sample was sent to the Chemical Analyser with the seal intact. In the present case, there are serious doubts about the fact that the same sample was sent to the Chemical Analyser which was taken into possession from the seal intact. Therefore, the said judgment will also not help the prosecution case.
The second flaw in this case is that SI Vishwa Mitter (PW1) handed over his seal after use to ASI Gurcharan Singh, who was one of the member of the police party. He did not hand over the seal to Gurmej Singh, independent witness, who was present at the spot, on the pretext that he had refused to accept the seal on account of chances of loss. ASI Gurcharan Crl.Appeal No.906-DB of 2006 -16- Singh has not been examined to prove that he did not hand over the seal to the Seizing Officer and the same was not misused by any person. But the fact remains that the seal of SI Vishwa Mitter (PW1) remained with the police and the chance of changing the sample by tampering the seal or re- fixing it, cannot be ruled out.
In Bhola Singh v. State of Punjab, 2005(2) RCR (Crl.) 520, this Court has held that CFSL Form No.29 should be prepared by the Investigating Officer at the spot and be deposited in the Malkhana along with sealed contrabands. It has been further held that after sealing the sample parcel of the contraband as well as remaining contraband, the seal should be handed over to the independent person so that till the case property had been deposited to the Forensic Science Laboratory, the same should not be available to the prosecuting agency. This is necessary to safeguard the possibility of the sealed contraband and the sample being tampered with by the police official. It was further held that CFSL Form should not only be prepared and sealed by the officer making seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO, to whom the sample and the case property is handed over and deposited in the Malkhana along with the sample parcel. It should accompany the sample to Chemical Examiner. In another case, titled as Gurcharan Singh v. State of Punjab, 2005(4) RCR (Crl.) 681, the accused was acquitted on the grounds that the seal affixed on seized opium was given to the Head Constable and not an independent witness. The Seizing Officer failed to prepare CFSL Form on the spot, which creates a further doubt about the credibility of the entire prosecution exercise.
Similarly, in Gurjant Singh v. State of Punjab, 2007(4) RCR Crl.Appeal No.906-DB of 2006 -17- (Crl.) 226, it was held by this Court that where the seal remained with the police official after use and the CFSL Form was not prepared at the spot, it creates a serious doubt in the prosecution case as filing of such Form is a very valuable safeguard to ensure that the sealed sample is not tampered with till the contraband is analyzed by the Forensic Science Laboratory. It was further held that the seal not given to the independent witness but kept with the Investigating Officer or with the raiding party, is also fatal to the prosecution case as in that situation, the possibility of the sealed contraband and the sample being tampered with, cannot be ruled out. On the similar lines, in Dayal Singh and another v. State of Punjab, 2007(2) RCR (Crl.) 596, the benefit of non-filing of Form No.29 at the spot while effecting recovery was given to the accused. But in the present case not only CFSL Form No.29 was not prepared at the spot and it was deposited in Malkhana, but this Form was also tampered with by affixing the seals on a separate paper and then pasted on the same. In such situation, the changing of the samples of the contraband taken from the accused cannot be ruled out. In the present case, it has not been established by the prosecution that the same samples, which were taken at the time of recovery, were sent to the Chemical Examiner and the report (Ex.PK) of the Chemical Examiner pertains to those samples.
There is another infirmity on the record which further creates a doubt about the entire prosecution case. As per the prosecution, at the time of the recovery, various documents were prepared. Those documents are Ex.PA, Ex.PB, Ex.PC, Ex.PD, Ex.PE and Ex.PF. All these memos bear the FIR number of the case. It is admitted case of the prosecution that when these documents were prepared, the FIR was not registered and FIR No. was Crl.Appeal No.906-DB of 2006 -18- not available as the same was registered later on, on the ruqa sent by the police. It has not been explained how all these memos contained the FIR number, which was not existing at the time when these memos were prepared. In Ajay Malik & Ors. v. State of U.T., Chandigarh, 2009(3) RCR (Crl.) 649, this Court while dealing with similar situation has observed that two inferences could be drawn from such situation, i.e., either the FIR was registered prior to the alleged recovery of the contraband or number of FIR was inserted in the document after its registration. But in both situations, it seriously reflects upon the integrity of the prosecution version. While relying upon several other decisions, it was held that such serious lapses in the prosecution case create a doubt to the prosecution theory.
However, we do not find any force in two contentions raised by the learned counsel for the appellant, firstly, that there was delay in sending the sample; and secondly that the safeguard provided under Section 42 of the Act has not been followed by the Seizing Officer.
As far as delay is concerned, it has been held by the Division Bench of this Court in Baggar Singh @ Gaggi's case (supra) and the Supreme Court in State of Orissa v. Kandhuri Sahoo's case (supra) that the delay in sending the sample of contraband to CFSL for analysis is not fatal and on this ground the prosecution case cannot be brushed aside. So far as the second contention of the learned counsel for the appellant is concerned, it is admitted fact that provision of Section 42 of the Act is not applicable because in this case the recovery was effected from the appellant from an open public place, and for such recovery, the provision of Section 43 of the Act is applicable which does not contain any such provision. Under Section Crl.Appeal No.906-DB of 2006 -19- 43 of the Act, the Seizing Officer has the power of seizure of the articles and arrest of a person, who is found to be in possession of any drug or psychotropic substance in a public place where such possession appears to him to be unlawful. In the instant case, on receiving the said information, a raid was conducted. When the police party reached the spot, at that time the appellant was standing on the gate of his house having a bag in his left hand, from which 10 Kgs. opium was recovered. Therefore, in the instant case, it cannot be said that the seizure was effected from the house of the appellant. Therefore, in our opinion, the provision of Section 42 of the Act is not applicable in the present case. However, we find force in the other contentions raised by the learned counsel for the appellant, as referred to above. Under the NDPS Act, the extent of burden to prove the foundational facts on the prosecution is more onerous. A heightened scrutiny test would be necessary to be invoked. For such type of cases, a higher degree of assurance, thus, would be necessary to convict an accused under the NDPS Act. Thus, after applying the above principles of law, we find that in this case the prosecution has failed to prove the case against the appellant beyond reasonable doubt.
In view of the aforesaid discussion, the appeal is allowed and the impugned judgment of conviction and order of sentence passed by the Judge, Special Court, Amritsar are set aside. The appellant, who is in custody, be set at liberty forthwith, if not required in any other case.
(SATISH KUMAR MITTAL)
JUDGE
May 13, 2010 ( JORA SINGH )
vkg JUDGE