Himachal Pradesh High Court
Surinder Singh vs State Of Himachal Pradesh on 17 September, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Neutral Citation No. ( 2024:HHC:8680 )
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
.
Criminal Appeal No. 311 of 2007.
Reserved on: 13.09.2024.
Date of decision: 17.09.2024
Surinder Singh ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? No
For the Appellant : Mr. Ajay Kochhar, Senior
Advocate with Mr. Anubhav
Chopra, Advocate.
For the Respondent: Mr. I.N. Mehta, Senior Additional
Advocate General with Ms.
Sharmila Patial, Additional
Advocate General and Mr. Raj
Negi, Deputy Advocate General.
Tarlok Singh Chauhan, Judge
The appellant has been convicted and sentenced
by the learned Special Judge, Fast Track Court, Shimla,
District Shimla, H.P., vide its judgment/order dated
12.07.2007, to undergo rigorous imprisonment for a period
of 10 years and to pay a fine of Rs.1,00,000/- ( One Lakh)
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
2
Neutral Citation No. ( 2024:HHC:8680 )
for the offence punishable under Section 20 of the Narcotic
Drugs and Psychotropic Substances Act, (for short, “NDPS
.
Act”) and in default of payment of fine to further undergo
rigorous imprisonment for a period of 3 years and aggrieved
thereby, he has filed the instant appeal.
2. The prosecution case, in a brief, is that on
16.09.2006 at about 10.30 a.m., a police party consisting of
Inspector Trilochan Dutt Sharma, SHO, Police Station, Theog,
H.C. Subhash Kumar, H.C. Yoginder Kumar, Constable
Kishori Lal, Constable Rajinder Kumar and Constable Sunil
Kumar was on routine patrol and picketing duty in a official
vehicle No. HP-07-5328 being driven by Constable Narinder
Parkash and was present in jungle Majhrol Badhani on the
Dhamandri-Tayali-Theog road. In the meantime, a white
coloured Maruti Van came from Tayali side, which on signal
by the police party, was stopped by its driver. The front
number plate of the Van was half broken,whereas, on the
rear number plate, the registration number of the Van was
written as HP-02-2885. Only one person i.e. the driver was
there in the van and on being asked, he disclosed his name
as Surinder Singh (appellant). The van was checked and on
checking a blue bag which was lying on the foot mat in front
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
3
Neutral Citation No. ( 2024:HHC:8680 )
of the front seat of the van, besides the driver seat, was
recovered. The bag was opened and checked. On checking,
.
a polythene envelope containing ‘Charas’ in the shape of
sticks was recovered from it. Then, Inspector Trilochan
Dutt deputed H.C. Subhash Kumar to bring the weights and
scale from Tayali bazar, who, in turn, brought the scale and
weights numbering 6 from 10 grams to 1 kg to the site of
crime. The ‘Charas’ was mixed and weighed and it
transpired that the appellant was carrying 2.650 kgs of
‘Charas’.
3. It is further the case of the prosecution that out
of the recovered contraband, two samples of 30 grams
each of ‘Charas’ were separated, which were wrapped and
sealed separately in the pieces of the cloth by affixing seal
impression “T”. The remaining bulk ‘Charas’ was put in the
same polythene envelope and the bag, which was
recovered from the appellant. It’s parcel was prepared and
sealed by affixing seal impression “T”. N.C.B. form was filled
in triplicate on the spot. The impression of the seal used
was retained on the pieces of the cloth including Ext. PA and
seal after its use was handed over to Constable Kishori Lal.
The parcel of ‘Charas’ and van were taken into possession
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
4
Neutral Citation No. ( 2024:HHC:8680 )
by the police vide memo Ext. PB. A copy of the seizure
memo was supplied to the appellant and signatures of the
.
appellant and the witnesses were taken on the ‘pollindas’ of
‘Charas’ and the memo of seal impression etc.
4. It is also the case of the prosecution that
thereafter Inspector Trilochan Dutt sent a rukka Ext. P-1
through Constable Rajinder Kumar to MHC, Police Station,
Theog on the basis of which FIR
r Ext. PW6/A came to be
registered. An endorsement Ext. PW6/B in this respect was
made on the rukka. Inspector Trilochan Dutt then handed
over the investigation of the case to H.C. Yoginder Kumar,
who was accompanying him vide inventory Ext. PD. The
SHO even directed the MHC of the Police Station on phone
to send some other Investigating Officer and after some
time ASI Kirpa Ram reached at the site of crime. After that
H.C. Yoginder Kumar handed over the relevant documents
and the investigation of the case to ASI Kirpa Ram as per
the inventory Ext. PE. The appellant was interrogated and
arrested by ASI Kirpa Ram and he was also informed about
the grounds of arrest. The documents of the van were
produced by the appellant before ASI Kirpa Ram which were
taken into possession. ‘Jamatalshi’ of the appellant was
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
5
Neutral Citation No. ( 2024:HHC:8680 )
taken. Copies of the relevant daily diary reports were
collected, site plan was prepared and the statements of the
.
witnesses under Section 161 Cr.P.C. were recorded. The
case property was brought to the Police Station by
Inspector/SHO Trilochan Dutt and deposited the same with
the MHC. One part of the sample and sample seal etc.
were sent by the MHC for analysis to the Chemical
Examiner, C.T.L. Kandaghat and thereafter to Central
Forensic Science Laboratory, Chandigarh. Thereafter, the
report of the laboratory was obtained.
5. After completion of the investigation, final report
as envisaged under Section 173 Cr.P.C. was presented for
trial by the police before the Court.
6. Copies of challan and other relevant documents
were supplied to the appellant.
7. On finding a prima facie case, charge under
Section 20 of the Act was framed against the appellant, to
which he pleaded not guilty and claimed trial.
8. The prosecution in order to prove its case
examined as many as 13 witnesses. On completion of
prosecution evidence, statement of the appellant under
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
6
Neutral Citation No. ( 2024:HHC:8680 )
Section 313 Cr.P.C. was recorded. His defence was that of
total denial simpliciter.
.
9. It is argued by Shri Ajay Kochhar, Senior
Advocate assisted by Shri Anubhav Chopra, Advocate, for
the appellant that the findings recorded by the learned
Special Judge are absolutely perverse. That apart, there are
major discrepancies and contradictions in the testimonies of
the official witnesses which entitle the appellant to be
acquitted. Learned Senior counsel for the appellant has
mainly raised following three points:
(i) Non-compliance of Section 52A of NDPS Act;
(ii) Report of CFSL Ext. PX does not connect with
the contraband allegedly produced before the
Court; and
(iii) Link evidence is missing.
10. On the other hand, learned Additional Advocate
General would contend that the findings recorded by the
learned Special Judge are absolutely correct and it is more
than settled that conviction can be based on the basis of
the testimonies of the official witnesses and moreover there
are no inconsistencies or contradictions in the statements of
the official witnesses so as to entitle the acquittal of the
appellant.
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
7
Neutral Citation No. ( 2024:HHC:8680 )
11. We have heard the learned counsel for the
parties and have gone through the records of the case
.
carefully.
(i) Non-compliance of Section 52A of NDPS
Act;
12. It is the admitted case of the prosecution that
the case property was never taken or produced before the
Magistrate for certifying the list of inventory despite the fact
that Section 52A was already in force at the time when the
contraband was allegedly apprehended as this provision
was enacted by Act of 1999 dated 29.05.1989. No plausible
explanation has been placed on record by the prosecution
for not complying with the provisions of Section 52A of the
NDPS Act. What would be the effect of non-compliance has
been considered in detail by a Coordinate Bench of this
Court of which one of us (Justice Tarlok Singh Chauhan) was
a member, in Criminal Appeal No.158 of 2021 titled
Lalman vs. State of Himachal Pradesh, decided on
08.08.2024, wherein it was held as under:
“23. HC-Umeshwar Singh (PW10) stated that on
15.09.2018 after conducting the proceedings under
Section 52A, a Committee was constituted for the
destruction of the remaining contraband except the::: Downloaded on – 17/09/2024 20:32:42 :::CIS
8Neutral Citation No. ( 2024:HHC:8680 )
sample. The remaining contraband was destroyed.
SI-Roop Lal (PW14) stated in his cross-examination.
that the parcel, which he had prepared was not
shown to him in the Court. He volunteered to say that
the sample of the same was shown to him in theCourt. He admitted that there was no order regarding
the disposal of the case property. He volunteered to
say that a separate Committee is formed for the
disposal of the case property after obtaining aninventory order from the Court. He admitted that the
Committee disposes of the case property after
obtaining the order from the Court and he had notseen any order regarding the disposal of the case
property.
24.Thus, it is apparent that the case property was not
produced before the learned Trial Court as it wasstated to have been disposed of as per the order of
the Committee. However, no such order wasproduced before the Court. In Jitendra v. State of
M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028:
2003 SCC OnLine SC 1038 the independent
witnesses turned hostile and the case property wasnot produced. It was held that the conviction of the
accused could not be sustained. It was observed:
6. In our view, the view taken by the High Court
is unsustainable. In the trial, it was necessary
for the prosecution to establish by cogent
evidence that the alleged quantities
of charas and ganja were seized from the
possession of the accused. The best evidence
would have been the seized materials which
ought to have been produced during the trial::: Downloaded on – 17/09/2024 20:32:42 :::CIS
9Neutral Citation No. ( 2024:HHC:8680 )
and marked as material objects. There is no
explanation for this failure to produce them.
Mere oral evidence as to their features and
.
production of panchnama does not discharge
the heavy burden which lies on the prosecution,
particularly where the offence is punishable
with a stringent sentence as under the NDPS
Act. In this case, we notice that panchas have
turned hostile so the panchnama is nothing but
a document written by the police officer
concerned. The suggestion made by the
defence in the cross-examination is worthy of
notice. It was suggested to the prosecution
witnesses that the landlady of the house in
collusion with the police had lodged a false
rcase only for evicting the accused from the
house in which they were living. Finally, we
notice that the investigating officer was also
not examined. Against this background, to say
that, despite the panch witnesses having
turned hostile, the non-examination of the
investigating officer and the non-production of
the seized drugs, the conviction under the
NDPS Act can still be sustained, is far-fetched.”
25. It was held in Noor Aga v. State of Punjab,
(2008) 16 SCC 417: (2010) 3 SCC (Cri) 748:
2008 SCC OnLine SC 1026 the case property can
be destroyed as per the order of the competent
Magistrate and the non-production of the case
property will create a serious dent in the prosecution
case. It was observed:
“92. Omission on the part of the prosecution to
produce evidence in this behalf must be linked
with a second important piece of physical
evidence that the bulk quantity of heroin
allegedly recovered indisputably has also not
been produced in court. The respondents::: Downloaded on – 17/09/2024 20:32:42 :::CIS
10Neutral Citation No. ( 2024:HHC:8680 )
contended that the same had been destroyed.
However, on what authority it was done is not
clear. The law requires that such an authority.
must flow from an order passed by the
Magistrate. Such an order whereupon reliance
has been placed is Exhibit PJ; on a bare perusal
whereof, it is apparent that at no point of timehad any prayer been made for the destruction
of the said goods or disposal thereof otherwise.
What was necessary was a certificate
envisaged under Section 110(1-B) of the 1962Act. An order was required to be passed under
the aforementioned provision providing for
authentication, inventory, etc. The same does
not contain within its mandate any direction asregards destruction.
93. The only course of action the prosecution
should have resorted to is to obtain an order
from the competent court of the Magistrate as
envisaged under Section 52-A of the Act interms whereof the officer empowered under
Section 53 upon preparation of an inventory of
narcotic drugs containing such details relatingto their description, quality, quantity, mode of
packing, marks, numbers or such otheridentifying particulars of the narcotic drugs or
psychotropic substances or the packing in
which they are packed, country of origin andother particulars as he may consider relevant to
the identity of the narcotic drugs or
psychotropic substances in any proceedings
thereunder make an application for any or all of
the following purposes:
“(a) Certifying correctness of the inventory
so prepared; or
(b) Taking, in the presence of such
Magistrate, photographs of substances and
certifying such photographs as true; or::: Downloaded on – 17/09/2024 20:32:42 :::CIS
11Neutral Citation No. ( 2024:HHC:8680 )
(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.”
Sub-section (3) of Section 52-A of the Act
provides that as and when such an
application is made, the Magistrate may, as
soon as may be, allow the application. The
reason wherefore such a provision is made
would be evident from sub-section (4) of
Section 52-A which reads as under:
“52-A. Disposal of seized narcotic drugs and
psychotropic substances.–***
(4) Notwithstanding anything contained inthe Indian Evidence Act, 1872 (1 of 1972) or
the Code of Criminal Procedure, 1973 (2 of
1974), every court trying an offence under
this Act, shall treat the inventory, the
photographs of narcotic drugs orpsychotropic substances and any list of
samples drawn under sub-section (2) and
certified by the Magistrate, as primary
evidence in respect of such offence.”
Concededly neither was any such
application filed nor was any such order
passed. Even no notice has been given to
the accused before such alleged destruction.
94. We must also notice a distinction between
Section 110(1-B) of the 1962 Act and Section
52-A(2) of the Act as sub-section (4) thereof,
namely, that the former does not contain any
provision like sub-section (4) of Section 52-A. It
is of some importance to notice that Para 3.9 of
the Standing Order requires pre-trial disposal of
drugs to be obtained in terms of Section 52-A of
the Act. Exhibit PJ can be treated as nothing
other than an order of authentication as it is a
certificate under Section 110(1-B) of the 1962
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
12
Neutral Citation No. ( 2024:HHC:8680 )
Act as the aspect of disposal clearly provided
for under Section 52-A of the Act is not alluded
to. The High Court in its judgment purported to
.
have relied upon an assertion made by the
prosecution with regard to the prevalence of a
purported general practice adopted by the
Customs Department to obtain a certificate in
terms of the said provision prior to the
destruction of case property, stating:
“To a specific query put to Mr Guglani by
the Court with regard to the aforesaidarguments, he fairly states that the general
practice adopted by the Customs
Department is that before destroying the
case property, a certificate is obtainedunder Section 110(1-B) of the Customs Act.
He states that in this regard, a sample as
per the provisions contained in sub-clause
(c) to clause (1-B) is also drawn for the
purposes of certification of correctness sothat at a later stage, the identity of the case
property is not disputed.
Maybe, in my view, some irregularities were
committed in this case by the Customs
Department while obtaining the order, Exhibit
PJ from the court for the reason that if the case
property was to be destroyed, at least a notice
should have been given to the accused on the
application moved under Section 110(1-B) of
the Customs Act or at least a specific request in
this regard should have been made in the
application, but at the same time, the aforesaid
irregularity cannot be said to be a vital flaw in
the case of the prosecution from which the
appellant can derive any benefit, especially
under the circumstances when confessional
statements made by the appellant are held to
be made voluntarily as observed by me
hereinabove…. Similarly, non-production of
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
13
Neutral Citation No. ( 2024:HHC:8680 )
cardboard carton is also not fatal to the
prosecution.”
.
The question which arises for our consideration
is as to whether it is permissible to do so.
Evidently, it is not. Firstly, because taking
recourse to the purported general practice
adopted by the Customs Department is not
envisaged in regard to prosecution under the
Act. Secondly, no such general practice has
been spoken of by any witness. A statement
made at the Bar as regards the existence of
such a purported general practice, to say the
least, cannot be a substitute of evidence
whereupon only the court could rely. Thirdly,
the High Court failed to take into consideration
that a certificate issued under Section 110(1-B)
of the 1962 Act can be recorded as a certificate
of authentication and no more; authority for
disposal would require a clear direction of the
court in terms of Section 52-A of the Act.
Fourthly, the High Court failed and/or neglected
to consider that physical evidence being the
property of the court and being central to the
trial must be treated and disposed of in strict
compliance with the law.
95. The High Court proceeded on the basis that
the non-production of physical evidence is not
fatal to the prosecution case but the fact
remains that 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 taken
recourse to.”
29. It was held in Union of India v. Jarooparam,
(2018) 4 SCC 334 : (2018) 2 SCC (Cri) 465:
2018 SCC OnLine SC 204 that where no
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
14
Neutral Citation No. ( 2024:HHC:8680 )
application for the destruction of the case property
was filed and the case property was not produced
.
before the Court, the prosecution case cannot be
relied upon. It was observed:
“9. From the above proceedings, it is
crystal clear that the remaining seized stuff
was not disposed of by the Executive
Magistrate. The contraband stuff as also the
samples sealed as usual were handed over
physically to the Investigating OfficerHarvinder Singh (PW 6). Also, the trial court
in its judgment specifically passed
instructions to preserve the seized property
and record of the case in safe custody, asthe co-accused Bhanwarlal was absconding.
The trial court more specifically instructed
to put a note with red ink on the front page
of the record for its safe custody. In such a
situation, it assumes importance that therewas nothing on record to show as to what
happened to the remaining bulk quantity of
contraband. The absence of a properexplanation from the prosecution
significantly undermines its case andreduces the evidentiary value of the
statements made by the witnesses.
10. Omission on the part of the prosecution
to produce the bulk quantity of seized
opium would create doubt in the mind of
the Court on the genuineness of the
samples drawn and marked as A, B, C, D, E,
F from the allegedly seized contraband.
However, the simple argument that the
same had been destroyed, cannot be
accepted as it is not clear that on what
authority it was done. The law requires that
such an authority must flow from an order
passed by the Magistrate. On a bare perusal::: Downloaded on – 17/09/2024 20:32:42 :::CIS
15Neutral Citation No. ( 2024:HHC:8680 )
of the record, it is apparent that at no point
of time, any prayer had been made by the
prosecution for the destruction of the said.
opium or disposal thereof otherwise. The
only course of action the prosecution should
have resorted to is for its disposal is to
obtain an order from the competent court ofMagistrate as envisaged under Section 52-A
of the Act. It is explicitly made under the
Act that as and when such an application is
made, the Magistrate may, as soon as maybe, allow the application (see also Noor
Aga v. State of Punjab [Noor Aga
v. State of Punjab, (2008) 16 SCC 417:
(2010) 3 SCC (Cri) 748] ).
r 11. There is no denial of the fact that the
prosecution has not filed any such
application for disposal/destruction of the
allegedly seized bulk quantity of contraband
material nor was any such order passed by
the Magistrate. Even no notice has been
given to the accused before such alleged
destruction/disposal. It is also pertinent
here to mention that the trial court appears
to have believed the prosecution story in
haste and awarded conviction to the
respondent without warranting the
production of a bulk quantity of contraband.
But, the High Court committed no error in
dealing with this aspect of the case and
disbelieving the prosecution story by
arriving at the conclusion that at the trial,
the bulk quantities of contraband were not
exhibited to the witnesses at the time of
adducing evidence.”
30. This position was reiterated in Mangilal v.
State of M.P., 2023 SCC OnLine SC 862 wherein
it was observed:
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
16
Neutral Citation No. ( 2024:HHC:8680 )
“8. Before any proposed disposal/
destruction mandate of Section 52A of
the NPDS Act requires to be duly complied.
with starting with an application to that
effect. A Court should be satisfied with such
compliance while deciding the case. The
onus is entirely on the prosecution in a
given case to satisfy the Court when such
an issue arises for consideration.
Production of seized material is a factor to
establish seizure followed by recovery. One
has to remember that the provisions of
the NDPS Act are both stringent and
rigorous and therefore the burden heavily
lies on the prosecution. Non-production of
physical evidence would lead to a negative
inference within the meaning of
Section 114(g) of the Indian Evidence Act,
1872 (hereinafter referred to as the
Evidence Act). The procedure contemplated
through the notification has an element of
fair play such as the deposit of the seal,
numbering the containers in seriatim wise
and keeping them in lots preceded by
compliance with the procedure for drawing
samples….
Xxxxx
The record would also indicate that an
order was passed by the trial Judge
permitting the prosecution to keep the
seized materials within the police station,
to be produced at a later point of time. This
itself is a sufficient indication that the
mandate of Section 52A has not been
followed. There is no explanation either for
the non-production of the seized materials
or the manner in which they are disposed
of. No order passed by the Magistrate
allowing the application, if any, filed under
Section 52A of the NDPS Act. P.W.10,
Executive Magistrate has deposed to the
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
17
Neutral Citation No. ( 2024:HHC:8680 )
fact that he did not pass any order for the
disposal of the narcotics substance
allegedly seized. Similarly, P.W.12 who is in
.
charge of Malkhana also did not remember
any such order having been passed. On the
issue of disposing of narcotic substances in
derogation of the compliance contained in
Section 52A of the NDPS Act”
13. In addition to the aforesaid, we may also refer to
another judgment of the Hon’ble Supreme Court in
Simarnjit Singh vs. State of Punjab 2023 (3) Crimes
(SC) 168 wherein the facts of the case were that S.I.
Hardeep Singh (PW7) along with other police officers was
present at a bridge on a canal in the area of Village Balak
Khurd for the purpose of patrolling, they noticed a Tempo
coming from the side of Village Matran and signalled it to
stop. The driver along with two occupants were
apprehended. According to the case of the prosecution,
search of the tempo was conducted in the presence of the
District Superintendent of Police (DSP) which led to recovery
of 8 bags of poppy husk which were concealed under
tarpaulin. From each bag, two samples of 250 grams were
taken out and made into 16 parcels and residue of poppy
husk in each bag was found to be of 29.5 kgs.
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
18
Neutral Citation No. ( 2024:HHC:8680 )
14. The learned counsel for the appellant therein
relied upon a decision of the Hon’ble Supreme Court in
.
Union of India vs. Mohanlal and another (2016) 3 SCC
379 and submitted that prosecution was vitiated as the
work of drawing sample was done by PW7 without taking
recourse to sub-section (2) of Section 52A of the NDPS Act.
He also pointed out that the examination-in-chief of PW7
Hardeep Singh r showed that the samples were drawn
immediately after the seizure. The Hon’ble Supreme Court
perused the evidence and found the contention of the
appellant to be correct and thereafter after quoting para
Nos. 15 to 17 of the decision in Mohanlal’s case (supra), it
was held as under:
“9. Hence, the act of PW-7 of drawing samples from
all the packets at the time seizure is not in
conformity with the law laid down by this Court in thecase of Mohanlal (2016) 3 SCC 379. This creates a
serious doubt about the prosecution’s case that
substance recovered was a contraband.
10. Hence, the case of the prosecution is not free
from suspicion and the same has not been
established beyond a reasonable doubt. Accordingly,
we set aside the impugned judgments insofar as the
present appellant is concerned and quash his
conviction and sentence.”
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
19
Neutral Citation No. ( 2024:HHC:8680 )
(ii)Report of CFSL Ext. PX does not
connect with the contraband allegedly
.
produced before the Court; and
15. The facts in the instant case are not different as
it is the prosecution case that out of the recovered
contraband of 2.650 kgs of ‘Charas’, two samples of 30
grams each were kept and wrapped separately and sealed
with seal impression “T” while the remaining bulk ‘Charas’
was put back in th same polythene and ‘Thaila’ (bag). It is
further the case of the prosecution that only 30 grams of
‘Charas’ that was separated had been sent for analysis to
the Chemical Examiner to C.T.L., Kandaghat. As per the
case of the prosecution, the bulk contraband as well as
samples were sealed with seal impression “T” and one part
of the sample was sent to CFSL, Chandigarh, which after
analysing was sent back after affixing seal of CFSL as
mentioned in Ext. PX (at page 122 of the paper book).
Surprisingly, when the sample was produced before the
Court, the same was not bearing the seal of FSL.
16. This assumes greater importance given the fact
that out of the five witnesses PW1 H.C. Subhash Kumar,
PW2 Constable Kishori Lal, PW3 Constable Rajinder Kumar,
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
20
Neutral Citation No. ( 2024:HHC:8680 )
PW10 H.C. Yoginder Kumar and PW11 SHO Trilochan Dutt
Sharma, the sample part was not produced while examining
.
PW1 and PW2 and only the bulk contraband which was not
sent for chemical analysis was produced. It was for the first
time while examining PW10 Yoginder Kumar that the
sample part was produced and while examining this
witness, it has been observed as under:
“At this stage, learned P.P. has produced a sealed
parcel with seal impression “T” and theimpression of the seal of this Court. The seals are
intact. Permission sought to open the parcel.
Heard. Request allowed. Sealed parcel opened.”
17. There is no observation of the Court that the
sample was allegedly sent to CFSL and further there is no
observation of the Court that the sample part was sealed
with seal of CFSL. Rather, the observation is to the contrary
that the sealed parcel was sealed with seal impression “T”
only without there being any observation by the Court
regarding the seal impression, if any, on the sample parts
Ext.P4 and Ext.P5.
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
21
Neutral Citation No. ( 2024:HHC:8680 )
(iii)Link Evidence missing.
.
18. As per the prosecution, the sample part was sent
on 18.09.2006 to C.T.L. Kandaghat, but there official/officer
refused to receive the sample because of workload which
appears to be highly improbable given the fact that no
record of such refusal has been produced by the
prosecution nor any official/officer
r from C.T.L., Kandaghat
has been examined. Why this would assume greater
relevance and importance is that there is no entry in the
‘Malkhana’ register regarding re-deposit of the sample part
after such refusal.
19. If this was not enough, the link evidence of
sending the case property to the CFSL, Chandigarh, is also
missing as there is no entry whatsoever in the ‘Malkhana’
register to this effect. It shall be apt to reproduce the
relevant portion of statement of H.C. Man Dev, who had (at
page 20 of the paper book) stated as under:
“Entries qua sending the sample part to Chandigarh
laboratory have not been made by me in the
malkhana register. Self-stated a note in this regard
was given on the backside of the road certificate.
Road certificate is issued on the same day on which::: Downloaded on – 17/09/2024 20:32:42 :::CIS
22Neutral Citation No. ( 2024:HHC:8680 )
the sample part is sent. Kandaghat laboratory
returned the sample by writing on the docket. On.
18.09.2006, when C. Naresh Kumar re-deposited the
sample part etc. with me, entries to that effect were
not made in the malkhana register. Self stated arapat in this regard was entered in the Rapat
Roznamcha register. As and when the case property
is deposited in the malkhana, its entries are made in
the malkhana register.”
20.
Unfortunately, the learned Special Judge has
failed to consider all these vital aspects of the case.
Suspicion, howsoever, strong cannot take the place of proof.
It is settled that gravity of offence cannot over-weigh the
legal proof and conviction cannot be based on suspicion. It
is the duty of the Court to have ensured that conjectures
and surmises do not take place of legal proof. Further,
greater the charge, stricter should be the standard of proof
and higher in quality and probity than the incriminating
evidence led by the prosecution.
21. In view of the aforesaid discussion and for the
reasons stated here-in-above, we find merit in this appeal
and the same is allowed. The impugned judgment and
order passed by the learned Special Judge convicting and
sentencing the appellant on 12.07.2007 are set aside. The
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
23
Neutral Citation No. ( 2024:HHC:8680 )
appellant is acquitted of the charge framed against him.
22. It needs to be noticed that the instant appeal
.
had earlier been allowed by this Court vide its judgment
dated 11.12.2009, without examining the merits of the
appeal, on the ground that the report rendered by the
experts only found tetrahydrocannabinol but did not
indicate percentage thereof. Therefore, it could not be held
that the stuff recovered from the appellant was ‘Charas’.
23. However, the State filed an appeal against the
aforesaid judgment vide Criminal Appeal No.2207 of 2010
and the same was allowed by the Hon’ble Supreme Court
vide judgment dated 09.02.2022 on the basis of the
judgment rendered by the Hon’ble Supreme Court in Hira
Singh and another vs. Union of India and another
(2020) 20 SCC 272 wherein it was held as under:
“12. In view of the above and for the reasons stated
above, Reference is answered as under:
12.1. The decision of this Court in the case of
E. Micheal Raj v. Narcotics Control Bureau
(2008) 5 SCC 161 taking the view that in the
mixture of narcotic drugs or psychotropic
substance with one or more neutral
substance(s), the quantity of the neutral
substance(s) is not to be taken into
consideration while determining the small
quantity or commercial quantity of a narcotic
drug or psychotropic substance and only the
actual content by weight of the offending::: Downloaded on – 17/09/2024 20:32:42 :::CIS
24Neutral Citation No. ( 2024:HHC:8680 )
narcotic drug which is relevant for the purpose
of determining whether it would constitute
small quantity or commercial quantity, is not a.
good law.
12.2. In case of seizure of mixture of Narcotic
Drugs or Psychotropic Substances with one or
more neutral substance(s), the quantity of
neutral substance(s) is not to be excluded and
to be taken into consideration along with actual
content by weight of the offending drug, while
determining the “small or commercial
quantity” of the Narcotic Drugs or Psychotropic
Substances;
12.3. Section 21 of the NDPS Act is not stand-
alone provision and must be construed along
rwith other provisions in the statute including
provisions in the NDPS Act including
Notification No.S.O.2942(E) dated 18.11.2009
and Notification S.O 1055(E) dated 19.10.2001.
12.4. Challenge to Notification dated
18.11.2009 adding “Note 4″ to the Notification
dated 19.10.2001, fails and it is observed and
held that the same is not ultra vires to the
Scheme and the relevant provisions of the
NDPS Act. Consequently, writ petitions and Civil
Appeal No. 5218/2017 challenging the aforesaid
notification stand dismissed.”
24. The effect of the aforesaid judgment is that the
quantity of the neutral substance is not to be excluded and
to be taken into consideration along with the actual content
of the weight of the offending drug while determining small
and commercial quantities.
25. Since, the appellant has already been released in
this case pursuant to the judgment earlier passed by this
::: Downloaded on – 17/09/2024 20:32:42 :::CIS
25
Neutral Citation No. ( 2024:HHC:8680 )
Court on 11.12.2009, therefore, he is directed to furnish a
personal bond in the sum of Rs.50,000/- with one surety of
.
the like amount to the satisfaction of the learned Trial Court
in view of the provisions of Section 437A Cr.P.C., which shall
be effective for a period of six months with a stipulation that
in an event of an SLP being filed against this judgment or on
grant of the leave, the appellant on receipt of notice thereof
shall appear before the Hon’ble Supreme Court.
26. Records be sent back forthwith.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
September 17 ,2024
th
Judge
(krt)
::: Downloaded on – 17/09/2024 20:32:42 :::CIS