Dismissed

Kehar Singh and Anr. v. State of Hp

Himachal Pradesh HC1 Jul 2024CR.A/122/2020

Case brief

AI extract

What is this about?

This appeal by drug traffickers convicted under the NDPS Act challenges their conviction on grounds of missing independent witnesses, lack of spot photographs, and non-compliance with Section 52A procedures for inventory certification. The High Court dismissed the appeal, holding that official witness testimony was reliable, non-association of independent witnesses during patrolling is not fatal,

What did the court decide?

Appeal dismissed; conviction and sentence imposed under Section 20 of the NDPS Act confirmed; no interference with the impugned judgment.

Kehar Singh and Anr. Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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2024:HHC:4234

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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Cr. A. No. 122 of 2020

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Reserved on: 28.06.2024 Date of decision: 01.07.2024

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Kehar Singh & Anr. …Appellants

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Versus

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State of H.P. …Respondent

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Co ram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Sushil Kukreja, Judge.

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Whether approved for reporting? No.

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For the Appellants: Mr. N. S. Chandel, Sr. Advocate with Mr. Kshitij Thakur, Advocate.

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For the Respondent: Mr. Anup Rattan, A. G. with Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy. A.G.

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Tarlok Singh Chauhan, Judge

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The appellants were tried and thereafter convicted and sentenced to undergo rigorous imprisonment for a term of ten years alongwith fine of Rs. 1,00,000/- each for the commission of offence punishable under Section 20 of the ND&PS Act and in default of payment of fine they were further directed to undergo simple imprisonment for a period of one year each.

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Aggrieved by the conviction and sentence as aforesaid, the appellants have filed the instant appeal.

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Brief facts of the prosecution case are that on 19.12.2015, PW-11 I.O. Lokender Singh alongwith police officials, I.O. Kit and search light was present at place ‘Sandhil Mode’ NH21, in connection with patrolling and Nakabandi. At about 7:50 pm, one car bearing registration No. HP-34D-1669 came from Kullu side, which was signalled to stop by PW-8 C. Shashi Kumar. The driver of the said vehicle stopped the car on the left side of the road in which, one another person was also sitting on the front seat of the vehicle.

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On inquiry, the driver of the vehicle disclosed his name as Kehar Singh son of Jiwa Nand r/o village Dalashani, P.O. Sachani, Tehsil and P.S.Bhunter, District Kullu, H.P. and the other person, who was sitting on the front seat of the vehicle disclosed his name as Paras Ram son of Jogi Ram r/o village Bayani, P.O. Panarsa, Tehsil Aut, District Mandi, H.P.

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PW-11 Lokender Singh directed appellant No.1 Kehar Singh to get checked the vehicle and during checking one Pithu bag Ex.PB of brown colour was found lying near the gear liver of the car in between the driver seat and the front seat. The said Pithu bag was having two strips and on the outer side of the said bag (D) DIESEL was printed. The bag was checked and during checking one transparent polythene envelope/carry bag Ex.PC, one carry bag of white colour with printed flowers Ex.PE and

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transparent polythene wrappers Ex.PG were found. On opening of the carry bag, transparent polythene envelope, a black coloured substance in the shape of sticks, wrapped with transparent tape was found.

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PW-7 HHC Baldev Singh was directed by the I.0. to bring some independent witness to the spot from nearby. Hukamnama was prepared but no independent witness could be found. Thereafter, PW-10 SI Pritam Singh and PW-7 HHC Baldev Singh were associated as witnesses by the I.O. in the investigation and said black coloured substance found in the carry bag, transparent polythene envelope was smelled, on the basis of experience it was found to be Charas (Cannabis). The recovered carry bag of Charas and recovered transparent polythene envelope were weighed on an electronic weighing scale, in transparent polythene envelope 3 Kg. 850 grams Charas Ex.PD, in the carry bag 3 Kg. 640 grams Charas Ex.PF, total 7 Kg. 490 grams Charas was found.

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Thereafter, the aforesaid transparent polythene envelope containing Charas and carry bag containing Charas, were put in the same Pithu bag, which was also put in a cloth parcel Ex.PA, the parcel was sealed with seal impression 'T' at 9 places. NCB froms in triplicate were filled up by the I.0. on the spot, sealed cloth parcels containing Charas was taken into

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possession vide memo Ex.PW7/A. Seal impression 'T' was also embossed on the NCB forms in triplicate. Seal impression 'T' was taken on a separate piece of cloth and seal after its use was handed over to PW-10. PW7 HHC Baldev Singh clicked the photographs with his own mobile phone.

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During investigation, car bearing registration No. HP34-D-1669 alongwith its documents, driving license and key was taken into possession vide memo Ex.PW7/C. Appellant No.1 was arrested vide arrest memo Ex.PW7/E, his arrest information was given to his brother Diwan on his mobile phone. Appellant No.2 was arrested, vide arrest memo Ex.PW7/D, his arrest information was given to his friend Diwan, on his mobile phone. Thereafter, I.0. scribed Ruka Ex.PW8/A and handed over the same to C. Shashi Kumar (PW8) for taking the same to police station Aut, for registration of case, on the basis of which, FIR Ex.PW5/A was registered. I.O. inspected the spot and spot map Ex. PW11/B was prepared.

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On 21.11.2015, I.O sent the special report u/s 57 of N.D. & P.S. Act, to the AddI. S.P. Mandi, Sh.Arjeet Sen Thakur through PW-7. At about 11.45 p.m. Assistant S.P. Mandi handed over the special report to PW-4 HC Lachhman Dass for taking the same on record and PW-4 made entry to this effect in special report register at Sr. No. 72. I.O. deposited the case property

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alongwith related documents with PW-1 MHC Hari Singh and rapat Ex.PW6/B was entered in the police station Aut. On 20.12.2015, rapat No. 10 was got recorded by I.O. with PW-6 HHC Jai Singh regarding departure of C. Pawan Kumar for depositing the case property at SFSL, Junga. During investigation, report of Chemical Aanalyist Ex.PW9/A was obtained.

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On 19.12.2015, I.O. deposited with PW-1 HC Hari Singh one sealed cloth parcel who made entry in Malkhana register No.19 at Sr. No. 110/2015. On 21.12.2015, MHC P.S. Aut handed over the case property i.e. one sealed cloth parcel duly sealed with seal impression 'T' at 9 places alongwith sample seal 'T', NCB forms in triplicate, docket, copy of FIR, copy of seizure memo to PW3, which were deposited by him at F.S.L. Junga vide R.C.No. 147/2015, dated 21.12.2015. On his return, PW-3 C. Pawan Kumar handed over the receipt of deposit to MHC PW-2 HC Anil Kumar.

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After completion of investigation, the challan was prepared and presented before the court against the appellants for the offence punishable under Section 20 of ND & PS Act. Copies of challan were supplied to the appellants.

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On hearing the parties, charges were framed against the appellants, for the aforesaid offence, to which, they pleaded not guilty and claimed to be tried.

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In order to prove its case, the prosecution has examined as many as 11 witnesses and after the closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C., however, their defence was of denial.

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The learned Court below after recording evidence and evaluating the same, convicted and sentenced the appellants as aforesaid.

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It is vehemently contended by Shri N. S. Chandel, learned Senior Advocate assisted by Shri Kshitij Thakur, learned Advocate that:-

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( i) no credence can be given to the prosecution case as despite availability, the prosecution chosen not to associate independent witness(s);

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(ii) adverse inference deserves to be drawn qua withholding the photographs that were admittedly clicked at the spot spot by PW-7; (iii) the appellants were entitled to be acquitted for non-compliance of Section 52A of the ND&PS Act; and

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(iv) the contraband has been planted and for this reason independent witnesses were not associated.

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Point No. (I)

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No credence can be given to the prosecution case as despite availability, the prosecution chosen not to associate independent witness(s);

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As regards non-association of the independent witnesses, it is now well settled that non-association of the independent witnesses or non supporting of the prosecution version by independent witnesses itself is not a ground for acquittal of Appellants/accused. It is also well settled that the testimonies of the official witnesses, including police officials carry the same evidentiary value as the testimony of any other person. The only difference is that the Court has to be most circumspect while appreciating the evidence of the official witnesses to rule out the possibility of false implication of the accused, especially when such a plea is specifically raised by the defence. Therefore, while scrutinising the evidence of the official witnesses, in case where independent witnesses are not associated, contradictions and inconsistencies in the testimonies of such witnesses required to be taken into account and given due weightage, unless satisfactorily explained. However, the contradiction must be material and not trivial one, that alone would assume significance.

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Evidently, this is a case of chance recovery, therefore, the police party was under no obligation to join

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independent witnesses while going for patrolling duty and the association of any person after effecting the recovery would be meaningless.

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In taking this view, we are duly fortified by the observations of the Hon’ble Supreme Court in Kashmir Singh vs. State of Punjab, 1999 (1) SCC 130 , wherein it was held as under:-

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“3. Learned Counsel for the appellant has taken us through the evidence recorded by the prosecution as also the judgment under appeal. Except for the comment that the prosecution is supported by two police officials and not by any independent witness no other comment against the prosecution is otherwise offered. This comment is not of any value since the police party was on patrolling duty and they were not required to take along independent witnesses to support a recovery if and when made. It has come in the evidence of ASI Jangir Singh that after the recovery had been effected some people had passed by. Even so obtaining their counter-signatures on the documents already prepared would not have lent any further credence to the prosecution version.”

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Similar reiteration of law can be found in the judgment rendered by the learned Single Judge of this Court in Avtar @ Tarri vs. State of H.P. (2022) Supreme HP 345 , wherein it was observed as under:-

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“24. As regards the second leg of the argument raised by learned counsel for the appellant, it cannot be said to be of much relevance in the given facts of the case. The fact

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situation was that the police party had laid the ‘nakka’ and immediately thereafter had spotted the appellant at some distance, who got perplexed and started walking back. The conduct of the appellant was sufficient to raise suspicion in the minds of police officials. At that stage, had the appellant not been apprehended immediately, police could have lost the opportunity to recover the contraband. Looking from another angle, the relevance of independent witnesses could be there, when such witnesses were immediately available or had already been associated at the place of ‘nakka’. These, however, are not mandatory conditions and will always depend on the fact situation of each and every case. The reason is that once the person is apprehended and is with police, a subsequent association of independent witnesses, may not be of much help. In such events, the manipulation, if any, cannot be ruled out.”

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20. In Raveen Kumar vs. State of H.P. AIR 2020 SC

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5375 , the Hon’ble Supreme Court held that non-association of independent witness will not be fatal to the prosecution case, however, the Court will have to scrutnise the statement of prosecution witnesses. It was observed as under:-

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“19. It would be gainsaid that lack of independent witnesses are not fatal to the prosecution case. 6 However, such omissions cast an added duty on Courts to adopt a greater degree of care while scrutinising the testimonies of the police officers, which if found reliable can form the basis of a successful conviction.”

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It shall be profitable to refer to the following observations of the Hon’ble Supreme Court in Riwaz Khan vs.

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State of Chattisgarh AIR 2020 SC 4297:-

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8.2 Having gone through the entire evidence on record and the findings recorded by the courts below, we are of the opinion that in the present case the prosecution has been successful in proving the case against the accused by examining the witnesses PW3, PW4, PW5, PW7 and PW8. It is true that all the aforesaid witnesses are police officials and two independent witnesses who were panchnama witnesses had turned hostile. However, all the aforesaid police witnesses are found to be reliable and trustworthy. All of them have been thoroughly crossexamined by the defence. There is no allegation of any enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313, Cr.P.C. There is no law that the evidence of police officials, unless supported by independent evidence, is to be discarded and/or unworthy of acceptance.

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It is settled law that the testimony of the official witnesses cannot be rejected on the ground of noncorroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such nonexamination is not necessarily fatal to the prosecution case, [see Pardeep Kumar (supra)].

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In the recent decision in the case of Surinder Kumar v. State of Punjab, (2020) 2 SCC 563, while considering somewhat similar submission of nonexamination of independent witnesses, while dealing with the offence

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under the NDPS Act, in paragraphs 15 and 16, this Court observed and held as under:

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“15. The judgment in Jarnail Singh v. State of Punjab (2011) 3 SCC 521, relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.

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In State (NCT of Delhi) v. Sunil, (2011) 1 SCC 652, it was held as under: (SCC p. 655) “It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy.

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As a proposition of law, the presumption should be the other way round. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature.

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Applying the law laid down by this Court on the evidence of police officials/police witnesses to the facts of the case in hand, referred to hereinabove, we are of the opinion as the police witnesses are found to be reliable and trustworthy, no error has been committed by both the courts below in convicting the accused relying upon the deposition of the police officials.”

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Similar reiteration of law can be found in a very recent judgment of the Coordinate Bench of this Court in Cr. A. No. 202 of 2020 , titled as Dillo Begum vs. State of H.P. , decided on 27.03.2024.

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Having come to the conclusion that non-association of independent witness cannot itself be a ground for acquittal, we may now advert to the testimonies of the official witnesses. 24. Shri N. S. Chandel, learned Senior Advocate, for the appellants has not been in a position to dispute that the statements of the official witnesses PW-7 Baldev Singh, PW-8 C. Shashi Kumar, PW-10 SI Pritam Singh and PW-11 Insp. Lokender Singh, are not only consistent but can be termed to be parrot like statement where there is virtually no change in comma or full stop in the statements. Not only this, all these official witnesses have withstood the cross-examination where the statements have remained unshaken.

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PW-7 HHC Baldev Singh member of police party and a witness of recovery stated that on 19.12.2015, he alongwith SI Prittam Singh, H.C. Anil Kumar, HC Durga Dass, HHC Tej Ram, C. Shashi Kumar and Insp. Lokender Negi was present at 'Sandli Moad' on NH-21 in connection with Nakkabandi and at about 7.50 p.m., one car bearing registration No.HP-34D-1669 came there from Kullu side. The said vehicle was signalled to stop by

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C. Shashi Kumar. Driver of the vehicle stopped the car on the left side of the road. One another person was also sitting on the front seat of the vehicle.

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On inquiry, the driver of the vehicle disclosed his name Kehar Singh son of Jiwa Nand, resident of village Dalashani, P.O. Sachani, Tehsil and P.S.Bhunter, District Kullu and he also stated that the person, who was sitting on the front seat of the vehicle disclosed his name as Paras Ram son of Jogi Ram, resident of village Bayani, P.O. Panarsa, Tehsil Aut, District Mandi, H.P. SHO PW-11 directed them to get checked the vehicle.

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During checking of the vehicle one 'Pithu bag' of brown colour was found lying near the gear liver of the car in between the driver seat and the front seat and the said bag was having two strips. The bag was checked and during checking one transparent polythene envelope and one carry bag of white colour with print of flowers was found. On opening, the aforesaid carry bag and transparent polythene envelope, a black coloured substance in the shape of sticks was found. The said substance was wrapped with transparent polythene tape. PW-7 was directed by the SHO to bring some independent witness to the spot. He searched the independent witnesses up to a distance of about half Kilometer and two passersby were found in the way

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but they did not agree to become witness. He came back to the spot after about 15 minutes. Thereafter, he and S.I. Prittam Singh (PW10) were associated as witnesses in the investigation. 28. The black coloured substance found in the carry bag and transparent polythene envelope was smelled and on the basis of the experience, it was found to be charas. The recovered carry bag of charas and recovered transparent polythene envelope, 3 Kg.850 grams and in the carry bag 3 Kg.640 grams, total 7 Kg.490 grams charas was found. He further stated that the aforesaid transparent polythene envelope, carry bag and transparent polythene tape and the charas were put in the same 'Pithu bag,' which was also put in a cloth parcel and the parcel was sealed with seal impression 'T' at 9 places. NCB forms in triplicate were filled up by the I.O. on the spot. The sealed cloth parcel containing charas was taken into possession vide memo Ex. PW7/A and Specimen of seal impression 'T' were also taken on a separate piece of cloth, which is Ex.PW7/B. Seal after its use was handed over to PW-10 Sl Prittam Singh. He had clicked the photographs with his personal mobile phone. The car bearing registration No. HP-34- D-1669 alongwith its documents and key was also taken into possession vide memo Ex.PW7/C. Accused were arrested vide arrest memos Ex.PW7/D and Ex.PW7/E. On

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21.12.2015, he had taken the special report of this case to the then Addl. S.P.Arjeet Sen, copy of which is Ex. PW4/A.

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In cross-examination, this witness stated that place of occurrence is situated on NH-21, which leads to Kullu-Manali Rohtang etc. as such there remains heavy rush on this road all the time. Photographs after developing were handed over to the I.0. He admitted that there are few shops on 'Sandhli Moad' at about 10-15 meters, the Aut Bazaar started on the spot. He further stated that when the vehicle was inspected by I.O., the occupants of the vehicle got frightened as such the I.O. suspected that they might have been possessing of some contraband like Charas etc., with them. He was sent by the I.O. to bring the independent witnesses. He went to Aut Bazaar to bring the independent witnesses but no body agreed to be a witness for the proceedings. He stated that photographs were not shown to him, which he clicked from his personal camera. He admitted that the office and residence of Tehsildar and Naib Tehsildar, Aut are also in the main Bazaar, Aut. He stated that no personal search of accused were conducted. He denied that he was not directed by the I.O. to bring the independent witnesses. He also denied that nothing had been recovered from the vehicle of accused persons.

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PW-10 SI Pritam Singh is a member of police party and witness of recovery. He deposed almost the same facts as deposed by PW-7. He also deposed that arrest information of accused persons were given to their relatives. I.O. inspected the spot and prepared the spot map and also recorded the statements of the witnesses as per their versions.

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In his cross- examination, he stated that place of occurrence is situated on NH-21, which leads to Kullu-Manali Rohtang etc. as such there remains heavy rush of vehicles on this road all the time. He admitted that there were few shops on 'Sandli Moad' and about 10-15 meters, the Aut Bazaar started on the spot. He further stated that when the vehicle was inspected by I.O., the occupants of the vehicle get frightened as such the I.0. suspected that they might have been possessing of some contraband like Charas etc., with them. He stated that PW-7 HHC Baldev Singh was sent by the I.O. to bring the independent witnesses. He admitted that there are various Tea stalls, Hotels, Moad' and about 10-15 meters, the Aut Bazaar started on the spot. He admitted that there are various Tea stalls, Hotels, Fruit shops, Dry fruit shops etc. in Aut Bazaar and these shops remain open up to late night i.e. 9 p.m. He stated that photographs were not shown to him. He admitted that the office and residence of Tehsildar and Naib Tehsildar, Aut are also in the main Bazar, Aut.

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He stated that no personal search of appellants were conducted. He denied that nothing has been recovered from the vehicle of appellants.

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As observed above, the testimonies of the official witnesses are absolutely consistent on material particulars and as per the settled law, evidence of the official witnesses is not to be disbelieved or discarded merely for the reasons that they are official witnesses. Presumption is that every witness is impartial and independent, unless proved contrary. There is no presumption for doubting the credibility of the official witnesses in principle. Statements of official witnesses can be the basis for the conviction of the accused; however, before basing conviction on the evidence of the official witnesses, strict scrutiny with care and caution is required. In cases where the evidence of the official witnesses, like in the instant case, is found to be cogent, reliable and creditworthy, conviction can be based on the evidence of the official witnesses.

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Reliance in this regard can conveniently be placed on a fairly recent judgment of the three Judge Bench of the Hon’ble Supreme Court in Sathyan vs. State of Kerala AIR 2023 SC 4627, wherein it was observed as under:-

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Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the

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evidence of such a police officer is found to be reliable, trustworthy then basing the conviction thereupon, cannot be questioned, and the same shall stand on firm ground. This Court in Pramod Kumar v. State (Govt. of NCT of Delhi)10

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This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48] , State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652 : 2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595 : 2013 AIR SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.

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Referring to State (Govt. of NCT of Delhi) v. Sunil11, in Kulwinder Singh v. State of Punjab12 this court held that: -

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"23. That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record the Court finds that

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the case put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence."

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We must note, that in the former it was observed:-

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"21. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

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Recently, this Court in Mohd. Naushad v. State (NCT of Delhi13) had observed that the testimonies of police witnesses, as well as pointing out memos do not stand vitiated due to the absence of independent witnesses.

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It is clear from the above propositions of law, as reproduced and referred to, that the testimonies of official witnesses can nay be discarded simply because independent witnesses were not examined. The correctness or authenticity is only to be doubted on "any good reason" which, quite apparently is missing from the

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present case. No reason is forthcoming on behalf of the Appellant to challenge the veracity of the testimonies of PW - 1 and PW - 2, which the courts below have found absolutely to be inspiring in confidence. Therefore, basing the conviction on the basis of testimony of the police witnesses as undertaken by the trial court and is confirmed by the High Court vide the impugned judgment, cannot be faulted with.

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Thus, we have no hesitation to conclude that the prosecution has not been able to prove its case to the hilt.

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Point No. (ii)

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(ii) Adverse inference deserves to be drawn qua withholding the photographs that were admittedly clicked at the spot spot by PW-7;

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As regards the non-production of photographs, as is vehemently argued by Shri N. S. Chandel, learned Senior Advocate for the appellants, we find that taking of photographs and thereafter exhibiting the same is not a requirement of either the Act or Rules or any other executive instructions or guidelines. It is only a piece of corroborative evidence withholding of which in the given facts and circumstances could at best lead to some sort of adverse inference, but in no case can be fatal to the case of the prosecution. The case of prosecution has been proved to the hilt without production of photographs, more specifically, when no prejudice has been shown to the appellants.

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Point No. (iii)

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The appellants were entitled to be acquitted for non-compliance of Section 52A of the ND&PS Act.

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It is vehemently argued by Shri N. S. Chandel, learned Senior Counsel for the appellants that there has been a non-compliance of the provisions of Section 52A of the ND&PS Act. It is not in dispute that the prosecution had immediately sent the entire contraband that was recovered from the spot for chemical analysis. Moreover, the entire case property has been produced in the Court and identified by the official witnesses and at the same time ample opportunity was given to the appellants to cross-examine the witnesses of recovery and therefore the contraband in such circumstances would be the primary evidence.

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Identical question came up for consideration before the learned Division Bench of this Court of which one of us (Justice Tarlok Singh Chauhan, J) was the author of the judgment in Narayan Singh vs. State of H.P. 2023 Cr.LJ 4608 , wherein it was held as under:-

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17 Adverting to first submission regarding noncompliance of the provisions of Section 52A of the NDPS Act, rt learned Senior Counsel would argue that the procedure prescribed therein is mandatory as has been held by the Hon'ble Supreme Court in Noor Aga vs. State

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of Punjab, 2008 (16) SCC 47, more particularly paras 93 and 94 thereof, which read as under:-

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The only course of action the prosecution should have resorted to is to obtain an order from the competent court of Magistrate as envisaged under Section 52A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic drugs containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other 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 :

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"(a) Certifying correctness of the inventory so prepared; or

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(b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or

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(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."

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Sub-section (3) of Section 52A of the Act provides that as and of when such an application is made, the Magistrate may, as soon as may be, allow the application. The reason wherefor such a provision is made would be evident from sub-section (4) rt of Section 52A which reads as under :

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"52A. Disposal of seized narcotic drugs and psychotropic substances.

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(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."

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Concededly neither any such application was filed nor any such order was passed. Even no notice has been given to the accused before such alleged destruction.

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94 We must also notice a distinction between Section 110(1B) of the 1962 Act and Section 52A(2) of the Act as sub-section (4) thereof, namely, that the former does not contain any provision like sub-section (4) of Section 52A. It is of some importance to notice that paragraph 3.9 of the Standing Order requires pre-trial disposal of drugs to be obtained in terms of Section 52A of the Act. Exhibit PJ can be treated as nothing other than an order of authentication as it is a certificate under Section 110(1B) of the 1962 Act as the aspect of disposal clearly provided . for under Section 52A 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 prevalence of a purported general practice adopted by the Customs Department to obtain a certificate in terms of the said provision prior to destruction of case property, of stating:

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"To a specific query put to Mr. Guglani by the Court with regard to aforesaid arguments, he fairly states

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that the general practice adopted by the Customs Department is that rt before destroying the case property, a certificate is obtained u/s 100 (1B) of Customs Act. He states that in this regard, a sample as per the provisions contained in sub clause (c) to clause (1B) is also drawn for the purposes of certification of correctness so that at a later stage, the identity of the case property is not disputed.

¶127

May be, in my view, some irregularities are 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 u/s 100 (1B) 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 for which the appellant can derive any benefit especially under the circumstances when confessional statements made by the appellant are held to be made voluntary as observed by me hereinabove... Similarly, non- production of cardboard card board carton is also not fatal to the prosecution."

¶128

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 existence of such a purported general practice to say the least cannot be a substitute of evidence whereupon only of the court could rely upon. Secondly, the High Court failed to take into consideration that a

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¶130

certificate issued under Section 110(1B) of the 1962 Act can be recorded as a certificate of authentication and no more; authority for rt disposal would require a clear direction of the Court in terms of Section 52A of the Act. Thirdly, 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.

¶131

18 He would argue that the aforesaid view in Noor Aga's case was further reiterated by the Hon'ble Supreme Court in Union of India vs. Mohan Lal, (2016) 3 SCC 379 which judgment, in turn, has now been considered by the Hon'ble Supreme Court in one of its recent judgment, in Simarnjit Singh vs. State of Punjab, Cr. A. No. 1443/2023 arising out SLP (Crl.) No. 1958/2023, decided on 9.5.2023, wherein the Hon'ble Supreme court after taking into consideration the facts of that case, wherein recovery of eight bags of poppy husk having been found concealed under tarpaulin was made and from each bag two samples of 250 gms were taken out and made into 16 parcels and residue of poppy husk in each bag was found to be of 29.5 kgs. It was in this background that the Hon'ble Supreme Court observed as under:-

¶132

The case of the prosecution in brief is that SI Hardeep of Singh (PW-7) along with other police officers were present at a bridge on a canal in the area of village Balak Khurd for the purposes of patrolling. When they noticed that a rt tempo coming from the side of village Matran, they signalled the tempo to stop. The driver and other two persons sitting in the tempo were apprehended. According to the case of the prosecution, search was conducted in the presence of the District Superintendent of Police of the tempo which led to recovery of eight bags of poppy husk which were

¶133

¶134

concealed under tarpaulin. From each bag, two samples of 250 gms were taken out and made into sixteen parcels and residue of poppy husk in each bag was found to be of 29.5 kgs.

¶135

The learned counsel appearing for the appellant relied upon a decision of this Court in the case of Union of India v. Mohanlal & Anr.'. He submitted that the prosecution is section 2 of Section 52A of the NDPS Act. He also pointed out that the examination-in- vitiated as the work of drawing sample was done by PW-7 without taking recourse to sub- Chief of PW-7 SI Hardeep Singh which shows that the samples were drawn immediately after the seizure.

¶136

The learned counsel appearing for the respondentState supported the impugned judgments.

¶137

We have perused the evidence of PW-7 Hardeep Singh in which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.

¶138

In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case', it was held thus:

¶139

It is manifest from Section 52-A(2)include (supra) that upon seizure of the contraband the same has to be forwarded either to the officerin-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an rt inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and

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¶141

certifying the correctness of the list of samples so drawn.

¶142

Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

¶143

The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with subsections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.

¶144

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

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¶146

the case of Mohanlal. This rt creates a serious doubt about the prosecution's case that substance recovered was a contraband.

¶147

After going through aforesaid judgments, we are of the considered view that the same do not apply to the facts of the instant case. It would be noticed that in all the earlier judgments, the Hon'ble Court was dealing with case where samples had been drawn from the bulk and then samples had been sent for chemical analysis and the residue or bulk sample remained with the investigating agency. However, this is not the fact obtaining situation in the instant case. Here, the entire contraband had been sent for chemical analysis that too on the very next date of its recovery. In such circumstances, there could be no better and primary evidence for the purpose of trial.

¶148

Therefore, once the entire contraband has been sent for chemical analysis that too promptly and thereafter the entire contraband was produced and exhibited in the Court, afforded opportunity not only to the prosecution to lead its evidence, but afforded equal opportunity to the accused. In such circumstances, there can be no better and primary evidence, than the entire contraband for the purpose of trial.

¶149

Point No. (iv)

¶150

The contraband has been planted and for this reason that independent witnesses were not associated.

¶151

As a last ditch effort, Shri N. S. Chandel, learned Senior Counsel for the appellants would argue that the

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¶153

contraband in the instant case was not recovered from the appellants but was planted by the prosecution and this is the precise reason that the prosecution did not associate any independent witnesses despite their availability, after all, Aut Bazar commenced from the place where the appellants were stated to have been found with the contraband and Aut Bazar has 78-80 shops which were opened till nearly midnight and once the offices of the Tehsildar and Naib Tehsildar were there, these officers could have conveniently been associated given the fact it was a working day (Saturday).

¶154

The appellants have been apprehended with the huge quantity of charas weighing 7.490 grams and the Court can take judicial notice that charas is a very expensive contraband and is otherwise not easily available in the market. Therefore, it would be highly improbable for the police to have planted such a huge quantity and falsely implicating the appellants, more especially when the appellants have led no evidence which may establish that the police party or any member thereof have any enmity with them or any one of them prior to the alleged recovery.

¶155

Having regard to the oral as well as documentary evidence, we are in agreement with the findings recorded by the learned Special Judge from the evidence on record. The

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prosecution has proved the guilt of the appellants beyond reasonable doubt and the conviction and sentence imposed is in conformity with the provisions of the law and evidence on record. Thus, no interference is called for, more particularly, when such findings do not suffer from any perversity and illegality.

¶158

In view of the aforesaid discussion and for the reasons stated above, we find no merit in the instant appeal and the same is accordingly dismissed.

¶159

(Tarlok Singh Chauhan) Judge

¶160

(Sushil Kukreja) 1^st July, 2024 Judge (sanjeev)

Kehar Singh and Anr. v. State of Hp

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Kehar Singh and Anr. v. State of Hp

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