Punjab-Haryana High Court
Avtar Singh vs State Of Punjab on 21 October, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
CRA-D-307-DB
DB-2005 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
CRA
CRA-D-307-DB-2005 (O&M)
Reserved on ::-01.10.2024
Date of Decision : 21.10.2024
Avtar Singh ....Appellant
VERSUS
State of Punjab ....Respondents
CORAM : HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. N.S.Sodhi, Advocate for the appellant.
Mr. Maninderjit Singh Bedi, Addl. A.G., Punjab.
-.-
SUDEEPTI SHARMA, J.
The challenge in the present appeal is to the judgment of conviction
dated 06.04.2005 and order of sentence dated 07.04.2005 passed by the learned
Special Judge, Moga, whereby the appellant has been convicted in FIR No.63,
dated 25.08.2002, registered at Police
Police Station Mehna, under Section 15
15-C
C of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’) and
sentenced to undergo rigorous imprisonment for 15 years and to pay a fine of
Rs.1,50,000/- and in case of default to pay fine, he is further sentenced to undergo
rigorous imprisonment for one year.
TRIPTI SAINI 2024.11.07 11:03 I attest to the accuracy and integrity of this document CRA-D-307-DB DB-2005 (O&M) -2- FACTUAL BACKGROUND
2. The brief facts of the case are that on 25.08.2002, SI Jasbir Singh
alongwith other police officials namely ASI Shamsher Singh, HC Hari Singh, HC
Rajinder Singh, HC Dilbagh Singh, CII Gulabh Singh, C.Gurmail Singh, C Baldev
Singh and C.Kewal in official TATA Sumo bearing registration No.PB
No.PB-29A-9692
9692
in connection with patrol duty and checking of suspected persons was going from
the side of Moga towards Bohana Mehron
Mehron villages. When the police party reached
on Moga-Baghapurana
Baghapurana bypass, Gant Singh son of Bihari Singh resident of
Sahibzada Ajit Singh Nagar, Moga met the police party who was associated in the
police party. The police party then proceeded towards Bughipur
Bughipura-Bohana
Bohana and
reached on the turn of Bughipura-Bohana
Bughipura Bohana road, where, a person gave signal to their
vehicle to stop. When SI alighted from the vehicle, a secret informer gave
information that Surjit Singh S/o Narain Singh, r/o Daulewala and Avtar Singh S/o
Hazara
ara Singh r/o Gagra P.S. Kot Ise Khan who are indulging in sale of poppy husk
for a long time, have loaded their truck bearing registration No.PB
No.PB-04-2867
2867 with
gunny bags containing poppy husk which is covered with tarpaulin and are
standing on the embankment
embankment of seepage drain on link road of village Bugipura. If
raid is conducted, then they can be apprehended with heavy quantity of poppy
husk. The information being reliable, ruqa was sent to the police station through C.
Baldev Singh on the basis of which formal FIR was registered at Police Station
Mehna. Special report was also sent to DSP through C Gurmail Singh to reach the
spot. Then the police party reached the disclosed place and found the truck
standing there. The police party encircled the truck and SI Jasbir Singh asked the
person sitting in the truck to dislocse his name whereupon the said person
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CRA-D-307-DB
DB-2005 (O&M) -3-
disclosed his name to be Avtar Singh. SI Jasbir Singh also disclosed his name and
rank and informed Avtar Singh that he has suspicion that there is poppy husk in the
truck and he wanted to get the search of the truck conducted. He further disclosed
Avtar Singh that he ( Avtar Singh) has right to get the search conducted in the
presence of some Gazetted Officer or Magistrate to whom he can call to the spot to
t
which Avtar Singh replied that he wanted to get the search of the truck conducted
in the presence of Gazetted Officer. His consent memo in this regard was reduced
into writing.. In the meantime, DSP Nachhatar Singh reached a
at
the spot who also disclosed his identity and rank to Avtar Singh and also apprised
him about his legal right. On consent of Avtar Singh, DSP Nachhatar Singh gave
instructions to SI Jasbir Singh to conduct the search of the truck. After removing
the tarpaulin,
paulin, 40 gunny bags of poppy husk were recovered from the body of the
truck. The said bags were weighed and each bag was containing 35 Kgs poppy
husk. Out of the recovered bags, 250 grams of poppy husk was taken as sample
and their parcels were prepared which were sealed by SI Jasbir Singh with his seal
bearing impressions “JS” and seal of DSP bearing impressions “NS”. The sample
parcels and recovered contraband bags alongwith tarpaulin were taken into
possession vide separate memos. The sample seals were also prepared. The seal
after use was handed over to Gant Singh and DSP kept his seal with him. The truck
alongwith RC, route permit, insurance certificate and driving licence of Avtar
Singh were taken into possession vide separate memo. Then Avtar Singh was
arrested and his personal search was conducted which led to recovery of currency
notes of Rs.570 from wallet of black colour kept by him in right pocket of the pant
worn by him which were taken into possession vide separate memo. The arrest and
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personall search memos were attested by the witnesses and thumb marked by
accused Avtar Singh. The DSP attested the gunny bags and sample parcels and
specimen seal at the spot.Rough site plan of the place of recovery was prepared.
Statements of the witnesses were also recorded at the spot. On return to the police
station, the case property and accused were produced before Sub Inspector
Mukhtiar Singh, the concerned SHO who verified the facts from the accused and
witnesses, affixed his seal on the case property bea
bearing
ring impressions “MS” and
thereafter deposited the same with MHC. Accused was put behind the bars.
3. On 26.08.2002, ASI Chamkaur Singh through SHO, Police Station
Mehanatook sample parcels and bulk case-property
case property parcelsfrom the MHC and
produced the same alongwith accused before the Court of Illaqa Magistrate who
remanded the accused to police custody and case property was ordered to be
deposited with the MHC concerned. After return to the police station, the case
property was deposited with MHC and accused Avtar Singh sent to lock up.
4. During interrogation accused Avtar Singh made disclosure statement
that Surjit Singh had gone to bring customers for sale of poppy husk, as such, he
could not be arrested.
5. During investigation, accused Surjit Singh had obtained anticipatory
bail from the Sessions Court, Moga. He was arrested in this present case and was
w
released on bail.
TRIAL COURT PROCEEDINGS
6. After completion of the investigation and on receipt of the report of
the Chemical Examiner, challan was presented before the Court.
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7. On presentation of the challan, copies of the challan and other
documents
ments annexed therewith were supplied to the accused free of costs as
required under Section 207 Cr.P.C.
8. Initially charge for offence under
under Section 15 of the NDPS Act was
framed against the accused to which they pleaded not guilty and claimed trial.
9. Lateron amended charge was framed against the accused for having
committed an offence punishable under Section 15 of NDPS Act re
read
ad with Section
25 of the NDPS Act to which they pleaded not guilty and claimed trial.
10. During the trial, the prosecution has examined PW
PW-II ASI Chamkaur
Singh, PW2 Anu Sharma Addl. Ahlmad of JMIC, Moga, PW 3 Shri Nachhattar
Singh, DSP, Sub Division, Moga a Gazetted Officer at the relevant time, PW 4
ASI Shamsher Singh, PW-5
PW 5 Ramesh Kumar, PW
PW-6
6 SI Jasbir Singh the
Investigating Officer, PW-7
PW 7 ASI Baljinder Singh, PW
PW-8 Gurmit Singh, PW-9
9 Sub
Inspector Mukhtiar Singh, SHO of P.S.Mehna at the relevant time, PW
PW-10
10 Mahesh
Kumar, Clerk, DTO Moga. Besides oral evidence, documentary evidence led in the
prosecution evidence are: Ex.PA ruqa,
ruqa, copy of FIR EX.PA/1
EX.PA/1,, Ex.PB an application
moved before Illaqa Magistrate for getting order regarding case property, Ex.PB/1
order passed by the Illaqa Magistrate, Moga thereon, Ex.PC Recovery memo
regarding taking into possession the poppy straw, Ex.PD, recovery memo
regarding
ng taking into possession truck along with RC, copy of Insurance, permit
Part A and Part B and photostat copy of driving licence, Ex.PE personal search
memo of Avtar Singh, Ex.PF special report dated 25.8.2002, Ex.PF/1 endorsement
of DSP thereon, Ex.PF/2 photostat
photostat copy of driving licence pertaining to accused
Avtar Singh, Ex.PF/3 affidavit of C Romesh Kumar, Ex.PF/4 photostat copy of
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CRA-D-307-DB
DB-2005 (O&M) -6-
register maintained in the officer of DTO, Moga, rough site plan Ex.PG,
Ex.PG/1Special Report dated 26.8.2002, Ex.PG/2 endors
endorsement
ement of the DSP
thereon, Ex.PH grounds of arrest regarding accused Avtar Singh, Ex.PI recovery
memo regarding case property, EX.PJ Report of Chemical Examiner, Ex.PK
grounds of arrest qua Surjit Singh accused, Ex.PL affidavit of HC Gurmeet Singh,
Ex.PM consent
nsent memo of accused Avtar Singh, Ex.1 sample seal, Ex.P2 original
registration certificate of truck, Ex.P2/A relevant entry in the said registration
certification Ex.P2/B photostat copy of the register maintained in the office of
DIO, Moga, Ex.P3 Insurance
Insurance cover note, Ex.P4 original permit part B, Ex.P4/A
original permit part A.
11 After closure of the prosecution evidence, statements of the accused
under Section 313 Cr.P.C. were recorded. Incriminating circumstances appearing
against the accused in the prosecution evidence were put to accused to which they
denied and pleaded false implication.
Accused Avtar Singh had taken a plea that he was never employed as
driver on the truck No.PB-04-2867
No.PB 2867 owned by Surjit Singh son of Narain Singh
resident of village
ge Daulewala. He was taken by the police of CIA Staff, Moga from
his house on 23.8.2002 in the presence of his neighbourers namely Deep Singh son
of Thana Singh, Baldev Singh son of Pala Singh residents of village Gagra.
Nothing incriminating was recovered from him. He was illegally detained in CIA
Staff, Moga for 2/3 days and this false case of poppy straw was planted upon him
in connivance with Surjit Singh owner of truck No.PB
No.PB-04-2867.
2867. Gant Singh son of
Bihari Singh resident of Moga the alleged independe
independent
nt recovery witness is a
convenient witness of the police.
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Accused Surjit Singh took the plea that on 24.08.2002, he was
admitted in Civil Hospital, Makhu and was discharged therefrom on 27.08.2002.
Avtar Singh was driver on his truck in those days on mo
monthly
nthly salary basis.
Sometimes the truck remained in possession of Avtar Singh driver for 8/9 days
during transportation of goods. On 23.08.2002, truck was in possession of driver
Avtar Singh and in the evening he told him on telephone that he is going to his
h
sister’s village on truck to transport some articles of his sister. He came to his
knowledge that Avtar Singh alongwith his truck had been apprehended by the
police and some bags of poppy husk were also recovered. The police implicated
him in this false case. It was not in his knowledge that Avtar Singh was
transporting poppy husk in his truck.
12. Accused opted to lead evidence in their defence.
13. In defence evidence, accused examined DW1 Dr. Rajnish Jindal,
Medical Officer, Community Health Centre,
Centre, Makhu, District Ferozepur, DW2
Deep Singh, DW3 HC Chhinder Pal. Besides oral evidence, documentary evidence
in defence of the accused are: Ex. Dl statement of SI Mukhtiar Singh, Ex. D2
Statement of Mahesh Kumar, Dealing Clerk, Ex. D3 photostat copy of a register,
Ex. D4 certified copy of FIR No.59 dated 19.8.2002, Ex. D5 certified copy of
recovery memo in such FIR, Ex. D6 certified copy of statement of Gant Singh, Ex.
D7 copy of FIR, Ex.DS photostat copy of FIR NO.223, Dated 23.9.2002.
14. After hearing the learned Addl. Public Prosecutor and counsel for the
accused and perusing the whole record, the learned Special Judge, Moga, acquitted
the accused Surjit Singh whereas he convicted accused Avtar Singh under Section
15(c) of the NDPS, vide its judgment dated
dated 06.04.2005 and sentenced him to
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CRA-D-307-DB
DB-2005 (O&M) -8-
undergo RI for 15 years and to pay fine of Rs.1,50,000/
Rs.1,50,000/- and in case of default to
pay fine to further undergo RI for one year vide order of sentence dated
07.04.2005.
15. Hence the present appeal.
appeal
SUBMISSION OF LEARNED
LEARNED COUNSEL FOR THE PARTIES
16. Learned counsel for the appellant contends that mandatory provisions
of the Act were not complied with and even the sample seal alongwith sample
parcels was not sent to the office of chemical examiner. He further contends that
tha
no independent witness was joined by the prosecution when the alleged place of
recovery is shown to be the bridge of seepage drain at Bughipura to Buhana link
road and the abadi from the place of recovery is not far away. Therefore, he prays
for setting aside of judgment of conviction dated 06.04.2005 and order of sentence
dated 07.04.2005.
17. Per contra, learned counsel for the respondent
respondent-State
State argues on the
lines of judgment dated 06.04.2005 and contends that the appellant has been
rightly convicted and
a sentenced.
18. We have heard the learned counsel for the appellant as well as learned
State Counsel and perused the whole record of the case in hand.
ANALYSIS OF THE RECORD
19. On 26.08.2002, SHO P.S.Mehna deposited the case property in the
Judicial Malkhana, details of the same is reproduced as under:
under:-
“State Vs. Avtar Singh s/o Hazara Singh Cas
Castee Mazbi Sikh r/oGaggrh, P.S Kot Ise Khan
FIR No.63, dated 25.08.2002 of Police SStation Mehna
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CRA-D-307-DB
DB-2005 (O&M) -9-Subject:
Subject:- For depositing the case property in the Judicial
Malkhana.
Sir,
It is submitted that 40 gunny bag parcels each containing
34 Kg-750
Kg grams of poppy-husk,
husk, and 40 sample parcels eachweighing 250 grams, duly sealed with seals J.S & N.
N.S. and M.S,
Mrecovered from the accused in the aforesaid case, alongwith the
specimen seal, personal search of accused, are produced before you
in the Court. This case property may kindly be ordered to be
deposited in the Judicial Malkhana. Truck No.PB
No.PB-04-2867
867 andtarpaulin are also sent along.
Forwarded please. Sd/- (in Punjabi)
26.08.2002 S.H.O P.S. Mehna.
26.08.02
Present:
Present:- Mr. Rattan Singh APP for State with ASI Chamkaur
Singh, P.S.Mehna.
The police has produced 40 bags of jute bags each
containing 34 Kgs 750 gm of poppy husk and 40 sample parcels each
containing 250 gm, duly sealed with seals int
intact
act bearing letters JS, NSand MS.
M Thee same has been seen and initial
initialed
ed by me. The caseproperty is ordered to be kept in the Ma
Malkhana
lkhana of Police StationMehna, under rules.
Sd/-
J.M.I.C Moga
26.08.02″
20. Ex.P/C is the recovery memo of poppy
poppy-husk.
husk. The same is reproduced
as under:-
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CRA-D-307-DB
DB-2005 (O&M) -10-
“State Versus Avtar singh and another.
FIR No.63 dated 25.8.02.
.02.
Police station Mehna.
U/s 15/61/85 of the NDPS Act.
Recovery Memo of Poppy Husk.
In the presence of the below-noted
below noted witnesses, Sh. Nachattar SinghDSP(SD) Moga, while disclosing his identity, told Avtar Singh
aforesaid that he was posted as DSP in sub Division Moga and was a
Gazetted Officer. Then with the consent of Avtar Singh and in the
presence of the DSP and on his directions, I the SI conducted the
search of gunny bags, lying under the tarpaulin, in the body of truck
no. PB-04-2867,
PB under the rules. 40 gunny bags containing the poppyhusk were recovered. Each recovered bag was weighed on weighing
machine and each bag came to be 35 Kg. The recovered bags were
marked serial number from 1 to 40. From each of the gunny bag, 250
grams of poppy husk was taken out as sample with the help of
weighing scale made of iron, and separate parcels from 1 to 40 were
prepared. The bags containing the poppy husk were also made into
separate parcels and the bags and the sample parcels were sealed by
me the SI with my seal bearing letters JS and by the DSP with his seal
bearing letters NS and taken into police possession vide this memo
along with the tarpaulin. The specimen seal was separately prepared.
I handed over my seal after use to PW Gant Singh. The DSP kept his
seal with him. The DSP attested the specimen seal, the sample parcels
and the recovered bags containing poppy husk.
TRIPTI SAINI 2024.11.07 11:03 I attest to the accuracy and integrity of this document CRA-D-307-DB DB-2005 (O&M) -11- Witness Sd/- Jasbir Singh, SI Sd/ Sd/- CIA Moga, Shri Nachattar Singh 25.08.02. DSP (SD) Moga" Moga
21. Ex.P/F is the statement of C Ramesh Kumar, which is reproduced as
under:-
“State Versus Avtar singh and another.
FIR No.63 dated 25.8.02.
Police station Meh
Mehna.
U/s 15/61/85 of the NDPS Act.
In the Court of Muneesh Arora, JMIC Moga.
Affidavit of C. Ramesh Kumar 873/Moga, Police Station
Mehna.
1. I. C. Ramesh Kumar No.873/
No.873/Moga police station Mehna dosolemnly affirm and declare that on 22-9-02,
2, I was posted on generalduty in Police Station Mehna.
Mehna
2. I, C Ramesh Kumar no.873, do solemnly affir
affirmm and declarethat on 2-9-02
2 MHC Gurmit singh no. 140 had handed over to me 40parcels containing poppy husk, weighing 250 grams each, duly sealed
with seal M.S. N. S., J.S. along with the specimen seal, for depositing
them in the office of Chemical Examiner, Punjab Cha
Chandigarh,
ndigarh, aftertaking them out from the Malkhana of the po
police
lice station, vide roadno.202/02, with the direction to get, at first, the docket dispatched
no.202/02,from the office of SSP Moga and then to deposit in the office of
Chemical Examiner, Punjab, Chandigarh
3. I, C Ramesh Kumar no.873, do solemnly affirm and declare
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that as per the direction of MHC Gurmit Singh no, 140, I had got the
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CRA-D-307-DB
DB-2005 (O&M) -12-docket dispatched
dispatched from the office of SS
SSP
P Moga and then I haddeposited the 40 parcels of the aforesaid case, containing poppy husk,
weighing 250 grams each, duly sealed with seal MS,NS and JS in
intact condition, on 3-9-2002,
3 2002, in the office of Chemical Examiner,Punjab, Chandigarh and on return I ha
had
d handed over the receipt toMHC Gurmit Singh, which he had placed on record.
4. I,, C Ramesh Kumar No.873, do solemnly affirm and declare
that so long as the samples of the aforesaid case remained in my
possession, I did not tamper with them nor allowed anyone else to do
so.
Sd/- Ramesh Kumar C/873.
Deponent.
09.09.03
I, C Ramesh Kumar No.873 do solemnly affirm and
declare that the contents of para No
Nos.1,2,3
.1,2,3 and 4 of this affidavit aretrue and correct to the best of my knowledge. Nothing has been kept
concealed therefrom nor any part of it is false.
Sd/- Ramesh Kumar C/873.
Deponent.
09.09.03
I know the deponent personally
who
ho has signed in my presence
Sd/-
A.D.A Moga
9.9.03 Sd/-
JMIC., Moga
9.9.03″
Constable Ramesh Kumar was examined as PW
PW-5.
5. His statement and
his cross-examination
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examination are reproduced as under:-
under:-
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CRA-D-307-DB
DB-2005 (O&M) -13-“PW On S.A.
“PW-5Statement of Sh. Ramesh Kumar, Constable No.873, P.S. Mehna.
I tender into evidence my duly attested affidavit Ex.P.F. It may
be read as part of my evidence.
Xxxxxxxx Sh. K.S.Bath, Adv. Counsel
Counsel for Surjit Singh.
I took to analysis laboratory 40 sample parcels and 40 sample
seals of different cases. I did not get myself checked samples and
sample seal in office of SSP to any police officer. All sample parcels
were in the form of bulk tied in piece of cloth. It is wrong to suggest
that I have sworn false affidavit.
Xxxxxxx
xxxxxx Sh. Arjan Singh, Adv, for
for Avtar Singh.
Nil opportunity given.
RO&AC Sd/-
14.11.2003 Special Judge, Moga
Sd/- (English)
Sd/
C. Ramesh Kumar"
22. Ex.PG/1 is the special report u/s 57 of the N.D.P.S Act, which is
reproduced as under:-
under:
“State Vs. Avtar Singh s/o Hazara Singh r/o Gagg
Gaggrh
rh andSurjit Singh s/o Narain Singh r/o Daulewala.
FIR No.63 dated 25.8.2002 Police Station Mehna, U/s 15/61/85 of the
NDPS Act.
Special Report u/s 57 of the N.D.P.S. Act
Act.
It is submitted that on 25-8-02 I the SI along- with ASI
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Shamsher Singh, ASI Balwinder Singh and other police officials, on
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CRA-D-307-DB
DB-2005 (O&M) -14-Govt. Tata sumo was going towards Bughipara, Bahona, Mehr
Mehron
on etc.in connection with patrolling and search of suspected persons. When
the police party reached Ludhiana bbye-pass
pass at Moga, Gant Singh s/oBihari
hari Singh, r/o sahibzada Ajit Singh
Singh Nagar, Moga met us and afterjoining him in the party, I proceeded further. When the police party
reached on the turning of link road, Bahona in village Bughipura, a
reachedspecial secret informer got the vehicles stopped and informed that
Avtar Singh s/o Hazara singh resident of V
V-Gagarh
Gagarh and Surjit Singhs/o Narain Singh r/o Daulewala deal in the sale of poppy husk in
heavy quantity and on that day also, they are standing with their truck
No.PB
No.PB-04-2867
2867 on the embankment, near the bridge of seepage drainin the area of village Bahona, in which gunny bags of poppy husk are
loaded and if the raid is conducted immed
immediately,
iately, they can beapprehended with the poppy husk. The information being reliable, I
the SI sent ruqa to the police station Mehna for the registration of a
case u/s 15/61/85 NDPS Act against Surjit Singh and Avtar Singh. I
sent a separate special report in respect of the secret information, to
the Halqa DSP. Then I the SI along with the co
co-officials
officials conducted theraid on the stated place and found that truck no. PB
PB-04-2867
2867 waslying parked on the southern embankment of the seepage drain, on the
Eastern side
side of the road, with face on the Eastern side of thedirection, in the body of which a person was sitting in the tarpaulin.
After surrounding him, I the SI asked him his name and address. He
disclosed his name as Avtar Singh aforesaid. I the SI told him th
that
at the
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CRA-D-307-DB
DB-2005 (O&M) -15-truck in his possession was suspected to contain the poppy husk bags
and to keep them in possession a legal offence, and he had right under
the law to get his search and that of his truck conducted in the
presence of a Magistrate or a Gazetted Offic
Officer.
er. Then Avtar Singh
replied that he wants to get his search and that of his truck conducted
in the presence of a Gazetted officer. Upon this the consent memo was
waprepared. Then Sh. Nachattar Singh, DSP SSub
ub Division Mogareached the spot, on receipt of information.
information. He disclosed his identity
to Avtar Singh and told him that he was a gazetted officer. Then with
the consent of Avtar Singh and on the instruction of the DSP., I the SI
conducted the search of the truck under the rules and from the body of
the truck,
truck, 40 gunny bags containing poppy husk were recovered frombeneath the tarpaulin and each bag on weighment, came to be 35 Kgs.
Out of the recovered bags, 250 grams of poppy husk was taken out as
sample from each of the gunny bag and their parcels were pre
prepared.
pared.
The bags were also made into parcel. The gunny bag parcels and the
sample parcels were sealed by me the SI with my seal bearing letters
J.S. and by the DSP with his seal bearing letters N. S. and taken into
police possession along with the tarpaulin
tarpaulin,, vide a separate memo. Thesample seals were separately prepared. I handed over my seal, after
use, to PW Gant Singh and the DSP kept his seal with him. Truck no.
PB
PB-04-2867
2867 along with the spare
spare-wheel,
wheel, deck, RC which is in thename of Surjit Singh s/o Narain
ain singh r/o Daulewala, route permit,insurance certificate and photo copy of driving licence of Avtar Singh
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CRA-D-307-DB
DB-2005 (O&M) -16-aforesaid were taken into police possession vide a separate memo. On
conducting the personal search of Avtar Singh, currency notes worth
Rs.
Rs.570/- were recovered from the purse of black colour, kept by him
in the right pocket of the pant worn by him, which were taken into
police possession along with the purse, vide a separate memo. The
memo was got attested from the witnesses. The DSP attested the
sample
ample parcels, gunny bag parcels and the specimen seal. Statementsof the witnesses were recorded at the spot. On reaching police station
Mehna, the case property and the accused were produced before SI
Mukhtiar Singh, SHO, P.S. Mehna, who, after enquiry, sealed 40
gunny bags containing poppy husk and 40 sample parcels with his
seal bearing letters M.S. and took them in his own possession along
with the truck and other case property, vide a memo. The accused was
lodged in the lock up of the police station M
Mehna
ehna under the rules.
Today on 26-8-02
26 02 the SHO Police station Mehna produced the caseproperty and the accused Avtar Singh,
Singh, through ASI Chamkaur Singh,in the court of Sh.K.K.Bansal, JMIC
JMIC,, Moga. The Magistrate remandedthe accused till 29-8-02
29 02 and ordered the case property to be depositedwith the MHC of the Police Station.
The Special report is put up before you.
Seen
Sd/
Sd/-
N.Singh Sd/-Jasbir Singh, SI
DSP/SD/Moga C.I.A. Staff, Moga
26.08.2002 26.08.02"
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CRA-D-307-DB
DB-2005 (O&M) -17-
23. Ex.P1 is the memo regarding transfer of case property under Section
57 of the NDPS Act, 1985. The same is reproduced as under:
under:-
” State Vs. Avtar Singh and Another
FIR No.63 dated 25.8.2002 Police Station Mehna,
U/s 15/61/85 of the NDPS Act.
Memo regarding transfer of case propert
propertyIn the presence of the below noted witnesses, SI Jasbir Singh,
CIA/Moga produced before me in intact condition, the property of the
aforesaid case viz a truck no.PB
no.PB-04-2867.. L.P colour, NP colour,alongwith the spare wheel, deck, tarpaulin, and 40 gunny bag parcels
containing poppy husk, each weighing 34 ¾ Kg and 40 sample
parcels containing poppy husk, each weighing 250 grams, duly sealed
with seal JS and NS alongwith the sspecimen
pecimen seal, a purse of blackcolour and currency notes worth Rs.570/
Rs.570/- of personal searchalongwith accused Avtar Singh. After enquiry I found that facts
correct and sealed 40 gunny bag parcel send 40 sample parcels
containing poppy husk with my seal bear
bearing letters MS and took themin possession alongwith truck, spare wheel, deck, tarpaulin and
Rs.570/ and purse of personal search vide this memo. Specimen seal
Rs.570/-
was prepared. The Parcels were attested. The memo regarding
transfer of case property has been prepared.
Witness Witness
Sd/
Sd/- Sd/-
Jasbir Singh S.I ASI Shamsher Singh,
C.I.A/Moga CIA/Moga
TRIPTI SAINI
Sd/- (in Punjabi)
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CRA-D-307-DB
DB-2005 (O&M) -18-
Mukhtiar Singh
SHO P.S.Mehna 25.08.02."
24. Ex.P is Form No.29. The same is reproduced as under:
Ex.P-1 under:-
" State Vs. Avtar Singh and Another
FIR No.63 dated 25.8.2002 Police Station Mehna,
U/s 15/61/85 of the NDPS Act.
Statement showing details of suspected articles forwarded to the
Chemical Examiner:-
Examiner:
Weight of quantity : 40 sample parcels containing poppy
straw of 250 grams each sealed with
the seal of J.S, N.S and M.S.Sample parcels sent by Head C. Ramesh Kumar No.873
Certified that the articles are intact in good condition
and have been carefully packed in my presence each bottle of article
being wrapped.
No.272/Ex. Dt:02.09.02 Sd/-Mukhtiar Singh
SI/SHO P.S.Mehna
Dt-02.09.02
Forwarded to the Chemical Examiner of Govt. Punjab at
Chandigarh for favour of analysis
SI/for
Sr.Supdt. of Police
Moga.02.09.2002″
25. Ex.PJ is the Chemical Laboratory Report, which is reproduced as
under:-
” State Vs. Avtar Singh and Another
FIR No.63 dated 25.8.2002 Police Station Mehna,
U/s 15/61/85 of the NDPS Act.
CHEMICAL LABORATORY
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Report on the analysis of the samples of poppy Head,
forwarded by S.S.P. Moga referred to in his endst no. 2721/Ex dated
2.9.02.
The exhibits marked here 12
12-P-Sept-02 to 51-P-Sept-02
02 werereceived on 3.9.02 with the particulars overleaf. The seals of the
exhibits were intact on arrival and agreed with the specimen seal
sent. The exhibits remained in my safe custody after its receipt, till the
time its analysis was started.
The analysis of the samples marked here 12
12-P-Sept-02
02 to 51-P-
51
Sept
Sept-02 are as under.
The analytical date is enclosed herewith.
OPINION: The analysis indicates that the contents of the exhibits
OPINION:
marked here 12-P-Sept-02
12 to 51-P–Sept-02 are of Poppy Head.
SHO Mehana Sd/- Sushobhita Kumari Deputy
for immediate compliance Chemical Examiner to, Govt
Sd/ for Punjab, Chandigarh
Sr. Supdt/- of Police (Govt
(Govt-Notification No.4957-2HB-11–74/
Moga 10602 dated 29th/30th April 1974, As
Asstt. Chemical Examiner to Govt.
Punjab) Sd/
Sd/- (in English) 02.09.02
Deputy Chemical Examiner
To Govt. Punjab
SEAL
Chandigarh”
26. Ex.P/L is the affidavit of MHC Gurmit Singh, which is reproduced at
as under:-
“State
State Versus Avtar Singh and another.
FIR No.63 dated 25.8.2002 of Police Station Mehna.
TRIPTI SAINI
U/S 15/61/85 of the NDPS Act.
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Affidavit of MHC Gurmit Singh No.140
o.140 Moga, Police Station Mehna.
1. I HC Gurmit Singh no.140 do solemnly affirm and declare that
on 25-8-02
25 I was posted as MHC
HC in police Stati
Station
on Mehna and thecharge of the Malkhana
Malkhana of the Police Station was with me.
2. I HC Gurmit Singh no.140 do solemnly affirm and declare that
on 26-8-2002
26 ASI Chamkaur Singh, on the direction of SI MukhtiarSingh, SHO, P.S Mehna, had deposited with me in the Malkhana, the
property of the aforesaid case and 40 parcels each containing 250
2grams of sample poppy husk, duly sealed with seal J.S
J.S, NS., and M.S.
Malongwith the specimen seal.
3. I HC Gurmit Singh no.140 do solemnly affirm and declare that
on 2-9-02
2 02 I had handed over the aforesaid 40 sample parcelsalongwith specimen seal bearing
bearing letters JS, NS and MS, vide RC No.202/02 to C. Ramesh Kumar no.873, for depositing them in the office
of Director, Chemical Examiner Punjab, Chandigarh, with the
direction to get, at first, the docket forwarded and despatched from
the office S.S.P.Moga and then to deposit in the office of Chemical
Examiner, Punjab, Chandigarh.
4. 1 HC Gurmit Singh no.140
40 do solemnly affirm and declare thatas per my direction, C.Ramesh Kumar no.873 had got the docket
forwarded and despatched from the office of SSP Moga on the same
day and on 3.9.02 he had deposited the aforesaid parcels in intact
condition in the office of Chemical Examiner, Laboratory,
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CRA-D-307-DB
DB-2005 (O&M) -21-Chandigarh alongwith the specimen seal, and on return, he handed
over the road-receipt
road receipt to me, which I had placed on rec
record.
5. I HC Gurmit Singh no.140 do solemnly affirm and declare that
so long as the parcels of the aforesaid case, duly sealed with seal J.S.,
N.S. and M.S. and the specimen seal remained deposited with me in
the Malkhana. I did not tamper with them nor al
allowed
lowed anyone else todo so.
Sd/-Gurmit Singh
HC/140 Deponent
Dt: 13.12.2003I, HC Gurmit Singh no.140 do solemnly affirm and
declare that paras no. 1, 2, 3 and 5 of my aforesaid affidavit are true
and correct to the best of my know
knowledge
ledge and para no.4 to the best ofmy belief. I have not kept anything concealed therefrom nor any part
of it is false.
Sd/-Gurmit Singh
HC/140 Deponent
Dt: 13.12.2003
I know the deponent personally
Who signed in my presence
Sd/
Sd/- Judl. Magistrate, Ist Class
A.D.A. , Moga SEAL
13.12.2003 Moga (P.B)Sd/-
JMIC, Moga (D)
13.12.2003″
27. This Court in CRA-S-5190-SB-2015
2015 titled as “Deepak
eepak Kumar Vs.
State of Punjab”
Punjab” along with other connected appeals, dec
decided
ided on 18.09.2024, heldas under:-
TRIPTI SAINI
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CRA-D-307-DB
DB-2005 (O&M) -22-“6.
6. Before proceeding to render an answer to the substantial
question of law (supra), the making of allusion(s) to the standing
order No.1/89, as drawn by the Government of India, Ministry of
Finance (Department of Revenue),
Revenue), is of utmost importance. In clause2.3 and 2.4 thereof, clauses whereof becomes extracted hereinafter, it
becomes elucidated that the quantity to be borne in each sample, thus
for a chemical test becoming made thereons at the laboratory
concerned, shall
shall not be less than 5 grams in respect of all narcoticdrugs and psychotropic substances
substances.
“2.3 The quantity to be drawn in each sample for
chemical test shall not be less than 5 grams in respect of
all narcotic drugs and psychotropic substances save in
the cases of opium, ganja and charas (hashish) where a
quantity of 24 grams in each case is requir
required
ed for
chemical test. The same quantities shall be taken for the
duplicate sample also. The seized drugs in the
packages/containers shall be well mixed to make it
homogeneous and representative before the sample (in
duplicate) is drawn.
2.4 In the case of seizure of a single
package/container, one sample in duplicate shall be
drawn. Normally, it is advisable to draw one sample (in
duplicate) from each package/container in case of
seizure of more than one package/container.”
7. However, it has been furtherr elucidated therein, that if seizure
of opium, ganja and charas (hashish) takes places, thereupon the
sample to be derived from the bulk is to be weighing 24 grams, thus
for the same becoming sent for testings to the laboratory concerned.
TRIPTI SAINI 2024.11.07 11:03 I attest to the accuracy and integrity of this document CRA-D-307-DB DB-2005 (O&M) -23- Similarly, for the
the duplicate sample also, the same or similar quantities
become envisaged thereins. Moreover, the seized drugs in the
packages/containers, become thus prior to the samples (supra)
becoming drawn from the bulk, rather ordained to become well mixed
or being homogeneously mixed. However, in case of the seizure taking
place of a single package or container, thereupon it is contemplated
in the above extracted provisions, that only one sample in duplicate
shall be drawn.
drawn
8. Furthermore, the Government of India, M
Ministry
inistry of Finance
(Department of Revenue), has issued a notification, on 23.12.2022,
whereins, in Chapters II and III thereof, certain provisions are
carried in Clauses 4 to 11 thereofs. The said clauses become
extracted hereinafter.
“4.
4. Designation of ggodowns. – (1) The godowns for
storage of narcotic drugs, psychotropic substances,
controlled substances, conveyance and other articles
seized under the Act shall be designated by,
by,-
(a) the department and agencies of the Central
Government whose officers hhave
ave been delegated powers
of an officer-in-charge
charge of a police station under section
53 of the Act;
(b) The State Police and the department and agencies of
the State Government whose officers have been delegated
powers of an officer-in
in-charge of a police station
tation under
section 53 of the Act.
(2) Godowns referred to in sub
sub-rule
rule (1) shall be
identified taking into consideration the security aspect
TRIPTI SAINI
and juxtaposition to court of law and such godowns shall
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CRA-D-307-DB
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be placed under the over
over-all
all supervision and charge of
ann officer of Gazette rank of the department and agencies
referred to in sub-rule
rule (1).
5. Deposit in godowns
godowns. – (1) All seized materials
referred to in sub-rule
rule (1) of rule 3, after seizure under
the Act shall be deposited by the seizing officer in the
nearest
rest godown designated under rule 4 within forty-
forty
eight hours from the time of seizure alongwith a
forwarding memorandum in Form
Form-1:
Provided that the said time period may be relaxed by
further twenty-four
four hours after providing of reasonable
justification byy the officer to whom the seized material
has been forwarded under sub
sub-section
section (3) of Section 52
of the Act.
(2) The officer in-charge
charge of a godown, before giving an
acknowledgement of receipt in Form
Form-2,
2, shall satisfy
himself that the seized materials are properly packed,
sealed and in conformity with the details mentioned in
Form-1.
(3) The officer, who had seized the material, shall hand
over the acknowledgement of receipt of seized material in
Form-2,
2, along with all other documents relating to the
seizure,
re, to the Investigating Officer for further
proceedings.
6. Storage of seized material in godown
godown. – (1) After
receipt of the seized material, the officer in
in-charge
charge of the
godown shall ensure that the seized material is properly
arranged, case-wise,
wise, for qu
quick retrieval.
(2) The officer in-charge
charge of a godown shall maintain a
register of material received in the godown in Form
Form-3.
3.
(3) All seized material, excluding the conveyances, shall
be stored in safes and vaults with double lock.
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7. Inspection of godown
godown. – (1) The department and
agencies referred to in rule 4 and the State Police shall
designate an Inspecting Officer for each godown, who
shall be higher in rank to that of the officer in
in-charge
charge of
the godown.
(2) The Inspecting Officer referred to in sub-rule
rule (1)
shall make periodical inspection of the godown, at least
once in every quarter, and shall record his remarks in the
godown register in Form
Form-3
3 with respect to security,
safety and early disposal of the seized material.
(3) The departments aand
nd agencies, referred to in rule 4
and the State Police shall maintain periodical reports
and returns to monitor the safe receipt, deposit, storage,
accounting and disposal of seized materials under the
Act.
8. Application to Magistrate
Magistrate. – After the seized
d material
under the Act is forwarded to the officer
officer-in-charge
charge of the
nearest police station or to the officer empowered under
section 53 of the Act or if it is seized by such an officer
himself, he shall prepare an inventory of such material in
Form-4 and apply to the Magistrate, at the earliest,
under sub-section
section (2) of section 52A of the Act in Form-
Form
5.
9. Samples to be drawn in the presence of Magistrate.
Magistrate –
After application to the Magistrate under sub
sub-section
section (2)
of section 52A of the Act is made, the Investigating
Officer shall ensure that samples of the seized material
are drawn in the presence of the Magistrate and the same
is certified by the magistrate in accordance with the
provisions of the said-sub
sub-section.
10. Drawing the samples
samples. – (1) One sample,
mple, in duplicate,
shall be drawn from each package and container seized.
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(2) When the packages and containers seized together
are of identical size and weight bearing identical
marking and the contents of each package give identical
results on colour test
st by the drugs identification kit,
conclusively indicating that the packages are identical in
all respects, the packages and containers may carefully
be bunched in lots of not more than ten packages or
containers, and for each such lot of packages and
containers,
tainers, one sample, in duplicate, shall be drawn:
Provided that in the case of ganja, poppy straw and
hashish (charas) it may be bunched in lots of not more
than fourty packages or containers.
(3) In case of drawing sample from a particular lot, it
shall be ensured that representative sample in equal
quantity is taken from each package or container of that
lot and mixed together to make a composite whole from
which the samples are drawn for that lot.
11. Quantity to be drawn for sampling
sampling. – (1) Except in
cases of opium, ganja and charas (hashish), where a
quantity of not less than twenty
twenty-four
four grams shall be
drawn for each sample, in all other cases not less than
five grams shall be drawn for each sample and the same
quantity shall be taken for the duplica
duplicate sample.
(2) The seized substances in the packages or containers
shall be well mixed to make it homogeneous and
representative before the sample, in duplicate, is drawn.
(3) In case where seized quantities is less than that
required for sampling, the whole of the seized quantity
may be sent.”
9. Tritely put, in the above extracted statutory provisions, it has
been mandated, that the representative sample to be derived from the
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bulk rather is required to be so drawn only after the entire seized bulk
becoming homogeneously mixed. Moreover, thereins also exist, thus
becoming
provisions relating to the apposite quantities becoming enclosed in
the sealed cloth parcels, besides exist provisions with respect to
prompt dispatches being made of the apposite samples for ttherebys
herebys
testing being made at the laboratory concerned. Moreover it also
becomes ordained therein, that expeditious testings, thus are required
to be made by the Chemical Examiner concerned, vis
vis-a-vis
vis the stuff
enclosed in the samples parcels, as become se
sent
nt to him, for analyses
thereons becoming made. Imperatively also thereins becomes
underlined the necessity of remnants of samples becoming returned
with reference to the test memo, to the office from where the samples
were received, but within three month
monthss after analysis becoming made
thereovers at the Laboratory concerned
concerned.
10. However, immediately after acceptance of the test report by the
Court of the Magistrate, the duplicate sample held by the
Investigating Officer becomes ordained to become deposited in the
godown referred to in Rule 5 along with the remnants of the sample.
11. The inference(s) is to be drawn therefroms are that, the said
above extracted provisions, relate to the inventory becoming drawn in
terms of Section 2 of Section 52A of the Narc
Narcotic
otic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as “the
Act”), thus in the presence of the Magistrate, by the investigating
officer concerned. The said provisions becomes extracted hereinafter.
hereinafter
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"[52A.
[52A. Disposal of seized narcotic drugs and
psychotropic substances
substances.--[(1) xxx
(2) Where any [narcotic drugs, psychotropic substances,
controlled substances or conveyances] has been seized
and forwarded to the officer
officer-in-charge
charge of the nearest
police station or to the officer empowered under section
53, the officer referred to in sub
sub-section
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
ng 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
section (1) may consider relevant to
thee identity of the [narcotic drugs, psychotropic
substances, controlled substances or conveyances] in any
proceedings under this Act and make an application, to
any Magistrate for the purpose of
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
istrate and certifying the correctness of any list
of samples so drawn.
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(3) Where an application is made under sub
sub-section
section (2),
the Magistrate shall, as soon as may be, allow the
application.
(4) Notwithstanding anything contained in the Indian
Evidencee 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
anyy list of samples drawn under sub
sub-section
section (2) and
certified by the Magistrate, as primary evidence in
respect of such offence.]
offence.]”
12. Though, the said reference does not cover the subject relating
to the creation of storage facilities in the police malkhana concerned,
nor the subject reference relates to prompt dispatches being made of
the samples to the laboratories concerned, rather for ensuring that
the stuff enclosed therein becoming promptly examined nor also
though the subject appertains to expeditious testings being made vis-
vis
a-vis
vis the stuff inside the sample parcels. Moreover, though the subject
at hand also does not relate to the return of the tested sample to the
office wherefrom it became received nor does it deal with the said
returned parcels, thus
thus enclosing thereins the stuff examined,
becoming produced before the Court concerned along with the test
report
report.
13. Nonetheless, even if the above aspects do not fall within the
subject reference, but the alluded to (supra) provisions existing in the
notification
tification (supra) do beget striking conclusion qua:
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a) There being an imperative necessity of testings being
made of the stuff inside the sample parcels.
b) The inventory as becomes prepared in the presence of
Magistrate concerned, in terms of Section 52A of the Act, but without
testings of the stuff enclosed in the sample parcels, thus being made at
the laboratory concerned, rather per se not acquiring the utmost
evidentiary vigor.
14. Moreover, thereins as an obligation becomes cast upon the
police department
department concerned, to ensure the creations of adequate
storage facilities in the malkhanas concerned, as well, as an
obligation becomes cast upon the investigating agencies, to make
prompt dispatches of the samples to the laboratories concerned, so
that, the enclosed thereins stuff becomes examined
examined.
15. Tritely also the return, of the examined stuff inside the said
parcels, to the police malkhana concerned, thus subsequent thereto
apposite production in Court along with the test report becomes
enshrined therein,
therein, to be an imperative obligation made upon all
concerned, whereafters, thus on conclusion of trial the produced in
Court case properties is to be ordered to be deposited in the godown
concerned.
16. In paragraph 35 of the judgment rendered by the Hon
Hon’ble
‘ble Apex
Court in”Noor
in”Noor Aga V. State of Punjab and another” Criminal
Appeal No.1034 of 2008, decided on 09.07.2008
09.07.2008, paragraph whereof
becomes extracted hereinafter, it has been enshrined that the alluded
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to (supra) necessities are the required to be proven sine qua non, thus
for the charge drawn against the accused becoming declared to
become unflinchingly proven.
“35. The High Court proceeded on the basis that non-
non
production of physical evidence is not fatal to the
prosecution case but the fact remains tha
thatt a cumulative
view with respect to the discrepancies in physical
evidence creates an overarching inference which dents
the credibility of the prosecution. Even for the said
purpose the retracted confession on the part of the
accused could not have been ta
taken recourse to.”
17. Now the above referred to notification(s) issued by the
Government of India, appear to also become aprobated by the
Hon’ble Apex Court, in a judgment rendered case titled as “Gaunter
Edwin Kircher V. State of Goa, Secretariat Panji, Goa”, Criminal
Appeal No.642 of 1991, decided on 16.03.1993. The above appears
to be in tandem with the verdict rendered by the Hon’ble Apex Court
in “Noor Aga V. State of Punjab and another” Criminal Appeal
No.1034 of 2008, decided on 09.07.2008
09.07.2008, relevant paragraph
whereof becomes extracted hereinafter.
“J. Narcotic Drugs and Psychotropic Substances Act,
1985, Sections 52A and 53 – Customs Act, 1962, Section
110(IB) – Physical evidence – Case Property – Recovery
of heroin from accused – Case property destroyed
royed and
not produced – Physical evidence relating to three
samples taken from the bulk amount of heroin were also
not produced – Bulk quantity was destroyed the samples
were essential to be produced and proved as primary
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CRA-D-307-DB
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establishing
lishing the fact of
recovery of heroin as envisaged under Section 52A of the
Act.”
18. The ire point relating to the unneccessity, of laboratory testing
being made of the entire recovered stuff, but is grooved in the factum,
that the hereinabove alluded to provisions as carried in the
notification (supra), do cast an obligation upon all concerned, to
ensure that only after the entire seizure becoming homogeneously
mixed, qua thereafters from the bulk rather residue samples becoming
drawn but in the mode, manner
manner and quantities detailed hereinabove.
19. It appears that given the immensity of the weight of the apposite
bulk seizure, that therebys after the concerned, thus homogeneously
mixing the bulk seizure, hence evidently of an immense weight,
whereafters the
the concerned become enjoined to draw samples from the
bulk. Reiteratedly, the immensity of the weight of the apposite seizure
is curable by the drawings of residue samples from the bulk, but only
when prior thereto rather the entire bulk becomes homogeneously
homogeneou
mixed. Consequently, therebys the constraining factor of inadequacy
of spaces within the laboratory concerned, wherebys the laboratory
concerned, may on account of shortage of spaces there, thus may
become precluded to examine the entire bulk, thus app
appears
ears to become
eased. As such, to avoid the immense load of the entire bulk seizure
travelling to the laboratories concerned, that derivative samples from
the bulk are envisaged but only after such derivation taking place
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rather from the bulk but only afte
afterr all concerned, reiteratedly
homogeneously mixing the entire bulk seizure, otherwise not.
20. Conspicuously, the hereinabove extracted respective standing
order and notification become declared by a judgment rendered by
the Hon’ble Apex Court in case titl
titled as “Noor Aga V. State of
Punjab and another” Criminal Appeal No.1034 of 2008, decided on
09.07.2008, to be holding a mandatory character and also become
ordained therein to be requiring completest adherence. Contrarily on
breach thereof becoming made, therebys
therebys may be the accused would
become entitled to an acquittal.
21. Furthermore, in case the entire bulk is homogeneously mixed
and derivative samples are derived therefroms, resultantly the effect
thereof would be that, the incriminatory finding as become recorded
on the stuff inside the sample parcels as sent to the labo
laboratory
ratory
concerned, thus would acquire a presumption of truth, irrespective of
the fact that the entire bulk wherefrom the derivative samples are
borrowed, but after the entire seizure becoming homogeneously
mixed, rather not becoming sent for analyses there
thereovers,
overs, being made
at the laboratory concerned. Contrarily, in case the entire bulk
seizure remains not homogeneously mixed, thereupon the charge
drawn against the accused appertaining to the weight of the entire
weight of the seizure, de hors affirmative rresults
esults being made in
respect of the stuff inside the residue sample parcels, as, sent to the
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laboratory concerned, rather would come under a cloud of doubt,
whereupon benefit thereof would accrue to the accused
accused.
22. As an illustration, if the 08 packets we
were
re allegedly recovered
from the appellant and only two packets were having contraband
substance and rest 6 packets did not have any contraband; though all
may be of the same colour, when we mix the substances of all 8
packets into one or two; then definite
definitely,
ly, the result would be of the
total quantity and not of the two pieces. Therefore, the process
adopted by the prosecution creates suspicion. In such a situation, as
per settled law, the benefit thereof should go in favour of the accused.
It does not matter
matter the quantity, but proper procedure has to be
followed, without which the results would be negative.
23. Reiteratedly, in case, the derivative samples from the bulk are
drawn but without the entire bulk seizure becoming homogeneously
mixed, thereupon the laboratory examination of the stuff inside the
sample cloth parcels rather would not prove the charge relating to the
weight of the entire bulk seizure taking place, at the crime site, thus
from the alleged conscious and exclusive possession of the accused.
accused
24. Contrarily, in case the entire bulk seizure is not homogeneously
mixed or when the narcotic drug(s) or psychotropic substance, does
become carried in different vials or in different packets, besides upon
the said mode(s) of carryings of (supra), beco
becomes
mes not homogeneously
mixed, thereupons, even if a fragment or a portion thereof becomes
extracted from one vial or only from one packet, thus for creating a
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residue parcel, it would beget the ill consequence of the accused
becoming entitled to an acquitta
acquittal.
l. Resultantly, when despite the
evident absence of apposite homogeneous mixings of the entire bulk,
be it borne in packets, containers or be it being carried in different
vials, besides when only a part of the fragment or portion of the
seizure or only one
one or two of the vials, yet the said extracted fragment
becomes sent for examination to the laboratory concerned, but the
apposite affirmative laboratory examination as becomes made vis-a-
vis
vis the stuff inside the sample parcels, rather would not make the
charge
arge drawn against the accused, thus for his allegedly exclusively
and consciously possessing, the entire seizure, thus also becoming
efficaciously proven.
25. Conspicuously when for the drawing of an effective conclusion,
that the charge drawn against th
thee accused for his allegedly
consciously and exclusively possessing, the entire bulk, but requires
that only after homogeneous mixing of the bulk seizure, taking place,
be it of psychotropic substance, in vials or in any other mode or be it
with respect of narcotic drugs carried in whatsoever mode, rather
residues therefroms becoming drawn, whereafter an affirmative
finding on the stuff inside the residues, is required to be made by the
Chemical Examiner concerned.
Sample procedure in respect of psychotropic substance
26. In case no batch number is mentioned, in the recovered
psychotropic substance, thus carried in the form of tablets/strips,
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thereupon at least one of the tablets from all the relevant strips rather
is to be extracted, as residue sample and th
thee same is required to be
sent for testings being made thereovers, at the laboratory concerned.
However, in case batch number is mentioned in all the recovered bulk
strips, thereupon only one of the tablets in the entire haul is required
to be sent for testings
testings being made thereovers, at the laboratory
concerned. However, the quantity of the sample to be derived from the
bulk is to be in terms of the provisions (supra), but with a further
safeguard that not only vis-a-vis
vis vis the entire bulk but also vis
vis-a-vis
vis the
th
sample parcel, the relevant batch number is required to be made on
the covers of each of the sealed cloth parcels
parcels.
27. Therefore, the sampling procedure in respect of bulk seizure of
the apposite psychotropic substance, ordains that the making of the
bulk seizure, besides derivation of a sample parcel, therefroms would
bulk
be vitiated unless adherence becomes made to the hereinafter
extracted underlined canons.
canons
“(v) It has also come in the evidence that there was no
batch number, name of manufacturer or other details
given on the bottles of Rexcof syrup and therefore, the
sample of one bottle taken, was also not in accordance
with the procedure laid down under the aforesaid
standing order. In view of the judgment of this Court in
Harjinder Singh (supra), the ssealed
ealed sample cannot be
held to be a representative parcel of the entire bulk
allegedly recover from the appellant
appellant”
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28. Relevant portion of the judgment dated 06.04.2005 passed by the
Special Judge, Moga is reproduced as under:-
“8.
8. From the discussion held
ld before this court and from the perusalof the file, it has surfaced as to whether recovery had been effected
from accused of 14 Qunintals of poppy husk and whether second
accused Surjit Singh owner of truck is liable to be convicted under
Section 25 of the N.D.P.S.Act as per the case of the prosecution.
9. Learned Additional Public Prosecutor had argued that all the
witnesses had materially supported the prosecution version. He
further contended that it is fairly proved that Avtar Singh was found
in possession
possession of and that the truck owned by recovered poppy husk;Surjit Singh had allowed it to be used by Avtar singh for carrying
contraband material. The minor discrepancies and irregularities are
bound to occur because of considerable lapse of time between the
date of occurrence and examination of the witnesses. He had prayed
that verdict of suit be returned to the accused and they be held guilty
and convicted.
10. On the other hand, learned counsel for the accused Avtar Singh
namely Shri Jasbir Singh Advocate
Advocate (Legal Aid Counsel) had arguedat outset that ruqa itself is doubtful i.e. the endorsement is Ex.PA/2.
He had argued that writing on the ruqa and the signatures of
Chamkaur Singh is with different pen and different ink. It is further
argued that as Per PWL AS I Chamkaur singh, the ruqa had been sent
by Jasbir Singh through C Gumail singh while the prosecution
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DB-2005 (O&M) -38-version is that it has been sent through C Baldev Singh. This
discrepancy although, there but it is not contended as to whether
accused had been prejudiced
prejudiced on account of this discrepancy whichhas surfaced. It can safely be attributed to memory lapses between the
date of recovery and date of recording oral testimony of witness. PW
1 AS I Chamkaur Singh has further testified in his cross
cross-examination
examinationthat he does not know as to how many malkhanas are there in police
station Mehna. He had also testified that in the request letter Ex.PB
written for the proceedings under Section 52 A of the N. D.P. S. Act,
the description of currency note is not specifica
specifically
lly mentioned. He hadalso admitted that engine and chasis number is not mentioned in the
said request EX.PB. Learned Judicial Magistrate Ist Class had only
signed on the samples and not on the gunny bags while Learned
Illaqa Magistrate had undisputedly si
signed
gned on sample parcels as wellas gunny bags. In view of heavy commercial quantity, this
discrepancy pointed out cannot be considered to be of potential to
throw away case of the prosecution.
11. Further, it is argued that PW 3 Nachhattar singh, DSP had not
nproved the con sent memo alleged to have been proved. His statement
is that he had introduced himself to the accused Avtar Singh present
in the court being DSP Sub Division, Moga and that he is Gazetted
Officer of the Punjab Government. He further told that accused Avtar
Singh is likely to be searched. Accused Avtar reposed confidence in
him, then at his direction SI Jasbir Singh Investigating Officer
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DB-2005 (O&M) -39-conducted search of the bags which led to recovery of the said
contraband material in the form of poppy husk. The contention of
learned defence counsel is repelled by learned Addl. Public
Prosecutor that in the cross-examination
cross examination of the witness no suggestionhas been put to him regarding non
non-preparing
preparing of consent memo or itsconsequent effect neither it has be
been
en put to him as to what prejudicehas been caused to the accused. Further, learned Addl.P.P has
argued that consent memo is only required Under Section 50 which
concerns only personal search of the accused and it does not attracted
in the instant trial which
which is not the case of personal search.
12. Further presence of Shamsher singh PW4 is alleged to be
doubtful because he had remained silent about his going to SHO from
the spot. He had also shown his ignorance about the consent memo
and he does not know as
as to whom seal was handed over. He had alsorevealed in his cross-examination
cross examination that ownership of the nearbyagricultural fields were not verified nor any one had given
information about such ownership and his statement was recorded at
Police Station Mehna. All these discrepancies are contended to create
suspicion as to whether PW 4 ASI Shamsher singh was present at the
spot or not. He had not been cross
cross-examination
examination about materialversion of the recovery of the case property from Avtar Singh. The
marginal factors
factors regarding which he could not answer properly hadbeen tried to be high-lighted.
high lighted. These discrepancies and infirmities in
the oral testimony of PW4 ASI Shamsher singh cannot led this court
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DB-2005 (O&M) -40-that he was not present on the spot, only considering these over high-
high
lighted discrepancies and ignoring this major part of convincing oral
testimony.
13. Much stress has been laid down that independent witness who
was alleged to be joined, has not been examined. Further that only
witness joined Gant Singh is stock wit
witness
ness and in order to press uponthis contention, learned defence counsel had relied upon documents
Ex. D4 to Ex. DB. On the other hand, learned Additional Public
Prosecutor had argued that unless person is not condemned to be
stock witness by any court, he cannot be labelled to be so by this court
only because of the fact that he had been arranged as an independent
witness in more than one case. The explanation given by the
prosecution is plausible.
14. PW 5 is C Ramesh Kumar Constable No.873. It has been
vehemently contended by learned defence counsel that this witness
had said that 40 samples and 40 sample seals different cases were
taken to Forensic Science Laboratory while prosecution case is that
only one sample seal was prepared. The version regarding taking 40
sample seals of different cases by one constable is implausible and it
appears to be slip of the tongue because it is no where the case of
defence that samples had been tampered. Therefore, no benefit could
be allowed to be derived from the slip of tongue of formal witness
PW 5 Ramesh Kumar.
PW-
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15. It has also been argued that as per version of PW2 ASI
Shamsher Singh, the ownership of the neighbouring fields had not
been verified from any person. So as contended by learned defence
counsel it remained
remained unexplained as to how it has been mentioned tobe the agricultural fields around the spot of recovery are that of one
Gurdev Singh son of Narain Singh, Bakhtaur Singh son of Balwant
Singh, Pritam Singh son of Lachhman Singh in the site plan Ex.PG
which remained unexplained.
xxxx xxxxx xxxxx
18. In this manner, the recovery from possession of accused Avtar
Singh (who was found to be sitting on it), had been established beyond
shadow of reasonable doubt. Minor discrepancies are to be ignored
in view
view of the huge recovery of about 14 quintals which cannot besafely said to be planted. This inference will also be same because
there is no enmity of the local police with Avtar Singh to rope him in
false recovery case.
xxxx xxxxx xxxxx
21. In view of the above discussion accused Surjeet Singh is
acquitted of the charge framed against him. Accused Avtar Singh had
been proved to found in possession of 40 bags of poppy husk beyond
shadow of reasonable doubt, therefore, he is held guilty of posses
possessing
singhuge commercial quantity of poppy husk without any permit or
licence and accordingly he is convicted under Section 15(C) of the
Narcotic Drugs & Psychotropic Substances Act, 1985.”
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29. A perusal of the record as referred to above shows that there is no
homogeneous mixing of the poppy-husk,
poppy husk, which was in 40 bag parcels.
30. There is no compliance of Section 52(A) of the Narcotic Drugs and
Psychotropic Substances Act, 1985. Section 52(A) of NDPS Act is reproduced as
under:-
“52A.
52A. Disposal of seized narcotic
narcotic drugs and psychotropicsubstances. [(1) The Central Government may, having regard to the
substances.–
hazardous nature, vulnerability to theft, substitution, constraint of
proper storage space or any other relevant consideration, in respect
of any narcotic drugs,
drugs, psychotropic substances, controlled substancesor 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
substances,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 specifi
specified.]
ed.](2) Where any 3[narcotic drugs, psychotropic substances,
controlled substances or conveyances] has been seized and
forwarded to the officer-in-charge
charge of the nearest police stationor to the officer empowered under section 53, the officer
referred to in sub-section
section (1) shall prepare an inventory ofsuch 3[narcotic drugs, psychotropic substances, controlled
substances or conveyances] containing such details relating to
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their description, quality, quantity, mode of packing, marks,
entifying particulars of the 3[narcotic
numbers or such other identifying
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-
sub
section (1) may consider releva
relevant
nt to the identity of
the 3[narcotic drugs, psychotropic substances, controlled
substances or conveyances] in any proceedings under this Act
and make an application, to any Magistrate for the purpose of–
of
(a) certifying the correctness of the inventory so pprepared;
repared; or
(b) taking, in the presence of such magistrate, photographs
of 4[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
sub-section
section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidenc
Evidencee 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 5[narcotic drugs, psychotropic
substances, controlled substances or conveyances] and an
anyy list of
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samples drawn under sub-section
sub section (2) and certified by the Magistrate,
as primary evidence in respect of such offence.”
A perusal of Section 52A
52 (2) shows that it is mandatory for the officer
referred to in sub Section (1) to prepare the 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 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-
sub
section(1) may consider relevant to the identity of the narcotic drugs, psychotropic
substances, controlled substances or conveyance in any proceedings under the act
and further to make an application to any Magistrate for the purpose of certifying
the correctness of inventory so prepared
prepared or taking in the presence of such
magistrate, photographs of such drugs, substances or conveyance and certifying
such photographs as true. Further, it is mandatory for the officer referred to in sub-
sub
Section (1) to allow to draw representative samples ooff such drugs or substances, in
the presence of such magistrate and certifying the correctness of any list of samples
so drawn.
Whereas in the present case no such inventory is prepared by the
officer concerned.
CONCLUSION
31. After perusing the whole
whole record of this case, this Court finds the
following discrepancies/lack of investigation as per the statutory provisions and
law laid down by this Court as well as by the Hon’ble Supreme Court:
Court:-
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i) A perusal of the record as referred to above shows that
there
here is no homogeneous mixing of the poppy
poppy-husk,
husk, which wasin 40 bag parcels.
ii) There is no compliance of Section 52
52A(2)) of the NarcoticDrugs and Psychotropic Substances Act, 1985
iii) A perusal of FSL report as referred to above does not
reveal the number of seals and number of sample receipts and
there is no return by chemical examiner by further sealing it
with English alphabet.
iv) A perusal of record further shows that all the sample
sampparcels as stated by C Ramesh Kumar PW
PW-5
5 were in the formof bulk and tied in a piece of cloth whereas in the FSL report
there is no examination of the stuff inside the cloth parcel.
There is nothing in the FSL report regarding seal impressions
on the cloth parcel, number of seals with English alphabets, in
terms mention in the recovery memo Ex.P/C.
v) Further, there is non
non-production
production of parcel containing
residue as separated from the bulk, at the crime site before the
learned Trial Court along with FS
FSL report.
Since there are grave lapses in the prosecution case, therefore, the
benefit of doubt is liable to be given to the accused/appellant.
FINAL ORDER
32. In view of the above discussion this Court finds merit in the present
appeal and is constrained
constrained to allow it. Consequently, the present appeal is allowed.
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Impugned judgment dated 06.04.2005 and order dated 7.04.2005 convicting and
sentencing the appellant by learned trial Court are set aside.
33. The appellant is acquitted of the charges frame
framed
d against him. The fine
amount, if any, deposited by him, be refunded to him in accordance with law.
34. The personal and surety bonds of the accused shall stand forthwith
cancelled and surety stands discharged.
35. The case property be dealt with in accordance with law, but after the
expiry of period of limitation for filing of
of an appeal or revision if any.
36. Records
ecords of the learned trial Court be sent down forthwith.
37. The appellant, if in custody, and, if not required in any other case, be
forthwith set at liberty. Release warrants be prepared accordingly.
38. Pending applications, if any, also stand disposed of.
(SURESHWR THAKUR) (SUDEEPTI SHARMA)
JUDGE JUDGE
October 21, 2024
tripti
Whether speaking/non-speaking
speaking/non speaking : Speaking
Whether reportable : Yes
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