Sachin Sharma Vs State

Neutral Citation No. ( 2024:HHC:8002 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 229 of 2011 Reserved on: 01.08.2024 Date of Decision: 06.09.2024

Sachin Sharma Versus		...App	ellant.
State of H.P.		...Resp	ondent
Coram
*Hon’ble Mr Justice Rakesh Kainth*	la,*Judge.*
*Whether approved for reporting?*¹	No
For the Appellant :	Mr. Bima Advocate, Chaudhary,	l Gupta, with Ms. Advocate.	Senior Kusum
For the Respondent/State :	Mr. Ajeet Advocate G	Sharma, eneral.	Deputy

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Rakesh Kainthla, Judge

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The present appeal is directed against the judgment dated 05.07.2011, passed by learned Special Judge, Solan, H.P. (learned Trial Court) vide which the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Sections 15(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) and sentenced to undergo rigorous imprisonment for three years and

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to pay a fine of ₹ 25,000/- and in default of payment of fine to

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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further undergo rigorous imprisonment for six months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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Briefly stated, the facts giving rise to the present appeal are that the police filed a charge sheet against the accused before the learned Trial Court for the commission of offences punishable under Sections 15(b) and 29 of the NDPS Act. It was asserted that Inspector Uday Ram (PW1), HHC-Balbir Singh (PW2), and HHC-Chet Ram were present near DAV School in the vehicle bearing registration No. HP-03-0065 on 29.05.2008 at about 12:30 pm. One person got down from a bus coming from Chambaghat towards the bus stand, Solan. He had a white plastic bag with him. He was going towards a vehicle bearing registration No. HP-14-3741. Guddu was sitting in the driver's seat. He opened the vehicle’s door. The police became suspicious and apprehended the person. The driver sped away the car towards the bus stand. The person carrying the bag revealed his name as Sachin Sharma. The police told him that they suspected the possession of narcotics and he could give his search before the Magistrate, any Gazetted Officer or the Police. He expressed his consent to be searched by the police. Memo (Ext. PW1/D) was

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prepared. The accused was searched in the presence of the police officials and Jeevan Kumar (PW17). The police found a poppy husk inside the bag. The weather was inclement; hence, the person and the bag were taken to the police station. The poppy husk was weighed with the help of the weighing scale brought from the shop of Balvinder Kumar (PW3). The weight of the poppy husk was found to be 7.400 kilograms. The police obtained two samples each weighing 100 grams and put them in separate polythene packets. Each polythene packet was put in a cloth parcel and each parcel was sealed with three seal impressions of seal ‘N’. The remaining 7.200 kgs of poppy husk were put in a plastic bag and the plastic bag was sealed with three impressions of seal ‘N’. The seal impression (Ext. P3) was taken on a separate piece of cloth. NCB-I form (Ext. PW1/B) was filled. Seal impression ‘N’ was taken on the NCB-I form and the seal was handed over to Jeewan Kumar after the use. The bag and the sample packets were seized vide seizure memo (Ext. PW1/C). Accused Sachin Sharma disclosed the name of the absconder as Satish Sharma. The police prepared a rukka (Ext. PW1/F) and sent it to the police station, where FIR (Ext. PW25/A) was registered. Further investigation was handed over to Parbal Singh (PW28).

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He prepared the site plan (Ext. PW28/A) and recorded the statements of the witnesses as per their version. He arrested the accused-Sachin Sharma vide memo (Ext. PW28/D). An application (Ext. PW28/E) was filed for conducting the medical examination of the accused. His medical examination was conducted and MLC (Ext. PW28/F) was obtained. Satish Kumar was arrested. An application (Ext. PW28/G) was filed for his medical examination. Dr. J.P. Kaushik (PW-21) conducted his medical examination and issued his opinion (Ext. PW21/C). Dr Uday Thakur (PW22) also examined him and found that Satish Sharma had a plaster on his left leg. He advised X-ray. The fracture was found to be one month old. He issued MLC (Ext. PW22/A). The log book of the tanker (Ext. P7), register of the entry of the tanker (Ext. P6) and Register of gate entries (Ext. P8) maintained by the HRTC were seized vide memo (Ext. PW11/A). The Indica car along with documents was taken into possession vide memo (Ext. PW7/E) along with the copy of RC (Ext. P2) and Affidavit (Ext. P5). The case property was produced before SIJagdish, who re-sealed the same with seal ‘T’. He issued the certificate of re-sealing (Ext. PW7/A). He handed over the case property to HHC-Hardev (PW7) who deposited it in Malkhana

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and made an entry at Sr. No.687 of Register No.19 (Ext. PW7/B). He handed over the sample parcels, sample seals, NCB-I form, copy of FIR and docket to Constable-Rakesh Kumar with a direction to carry them to FSL Junga. Rakesh Kumar deposited all these articles at FSL Junga and handed over the receipt to MHC on his return. The special report (Ext. PW6/A) was prepared and handed over to the Superintendent of Police, Solan. He made an endorsement on the special report and handed it over to his Reader-HC-Bikram Singh (PW6) who kept it in his record. The result of the analysis (Ext. PA18) was issued, in which it was mentioned that the exhibit was a sample of poppy straw. Statements of the remaining witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the Court.

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Learned Special Judge charged the accused-Sachin Sharma with the commission of an offence punishable under Section 15(b) of the NDPS Act and Satish Kumar with the commission of offences punishable under Section 29 of the NDPS Act and Section 466 of IPC.

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The accused pleaded not guilty and claimed to be tried.

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The prosecution examined 30 witnesses to prove its

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case. Dy.SP Uday Ram (PW1) and HHC-Balbir Singh (PW2) were members of the raiding party, who had effected the recovery. Balwinder Kumar (PW3) handed over the weighing scale and the weight to the police officer. Amar Singh (PW4) proved the record regarding the duties of drivers and conductors. Chandu Ram (PW5) proved that he had seen Satish Kumar with another boy sitting in shop No.9 at 12:15 pm with the vehicle bearing registration No. HP-14-3743. HC-Vikram Singh (PW6) was working as a Reader to Superintendent of Police to whom the special report was handed over. HHC-Hardev Singh (PW7) was working as MHC to whom the case property was handed over. Bhawani Shankar (PW8) was posted as Assistant Adda Incharge who proved the involvement of Satish Kumar. Vinod Kumar (PW9) was posted at gate duty and proved that the vehicle bearing registration No. HP-24-4517 had entered the bus stand. Chet Ram (PW10) was posted as the head mechanic and stated that no specific driver was deputed with the tanker bearing registration No. HP-24-4517. Jagan Nath (PW11) was posted as the Works Manager who produced the register. Gian Singh (PW12) was posted as Foreman, who witnessed the production of

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the record by the Works Manager. Constable Dinesh Kumar (PW13) is another witness to the recovery of the documents. Lata Sharma (PW14) proved that the police searched for Satish Kumar but could not find him. Dr. Anil Bansal, (PW15) proved the record of his clinic about the treatment of Satish Kumar. Dalesh Kumar (PW16) handed over the documents to the police as per the direction of the Regional Manager. Jiwan Kumar (PW17) is the witness to the weighing of the poppy husk and the other proceedings. Vivek Srivastava (PW18) and Yasir Khan (PW19) proved the call details records. Madan Lal (PW20) proved that the water tanker was filled in the service station. Dr. J.P. Kaushik (PW21) and Dr. Uday Thakur (PW22) conducted the medical examination of Satish Kumar. Naveen Kaplesh (PW23) proved the attendance record. HC-Devender Sharma (PW24) is the witness to the recovery of the documents. HC-Kehar Singh (PW25) proved the entry in the daily diary. Inspector/SHOGobind Ram (PW26) prepared the challan. Inspector/SHOJagdish (PW27) resealed the parcel and handed it over to the MHC. Parbal Singh (PW28) conducted the investigation. Santosh Thakur (PW29) conducted the investigation partly. Dy.S.P. Narvir Singh Rathor (PW30) prepared the special report and handed it

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over to HHC Jeet Singh with a direction to hand it over to Superintendent of Police, Solan.

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The accused in their statements recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. They stated that they were innocent and were falsely implicated. No defence was sought to be adduced by them.

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The learned Trial Court held that the testimonies of the police officials were consistent regarding the recovery. The mere fact that an independent witness has not supported the prosecution's version regarding the weighing and the other steps of the investigation is not sufficient to discard the prosecution’s case. The presence of Satish Kumar was not established. It was also not established that he had prepared the wrong report to escape from liability. The integrity of the case property was established; hence, accused Sachin was convicted and sentenced as aforesaid, whereas, accused Satish was acquitted.

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Being aggrieved from the judgment and order passed by the learned Trial Court, the accused Sachin has filed the present appeal asserting that the learned Trial Court misread and misinterpreted the evidence. The testimony of independent witnesses was not properly appreciated. Independent witness Raj

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Kumar was not examined by the prosecution. Jiwan Kumar (PW17) stated that his signatures were obtained on the blank paper, which falsifies the prosecution case regarding the recovery. There were major contradictions in the testimonies of police officials. There was no necessity to carry out an investigation at the police station. There was a violation of the provisions of Sections 41, 42, 44 and 50 of the NDPS Act. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

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I have heard Mr Bimal Gupta, Senior Advocate assisted by Ms. Kusum Chaudhary, learned Counsel for the appellant and Mr Ajit Sharma, learned Deputy Advocate General, for the respondent/State.

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Mr. Bimal Gupta, learned Senior Counsel for the appellant submitted that the learned Trial Court erred in convicting and sentencing the accused. One independent witness did not support the prosecution case and the other was not examined. There is a violation of Section 52A of the NDPS Act, which is mandatory. Therefore, he prayed that the present appeal

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be allowed and the judgment and order passed by the learned Trial Court be set aside.

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Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with the same.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It is an admitted case of the prosecution that the police had taken two samples of 100 grams each on the spot. Dy.S.P. Uday Ram (PW1) stated in his examination-in-chief that the weight of the poppy husk was found to be 7.400 kgs out of which two samples of 100 grams each were separated. Similarly, HC-Balbir Singh (PW2) stated that the recovered poppy husk was weighed and was found to be 7.400 kgs. Two samples of 100 grams each were separately taken and these were put in the polythene packets. These samples were sent to FSL and were analyzed at FSL. It was laid down by the Hon’ble Supreme Court in Simarnjit Singh v. State of Punjab, 2023 SCC OnLine SC 906 that Section 52A (3) requires the officer to approach the Magistrate to seek permission to draw representative samples. The samples

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will then be enlisted and the correctness of the list of samples so drawn would be certified by the Magistrate. It means that the entire exercise has to be carried out before the Magistrate which has to be certified by him to be correct. It is not permissible to draw samples on the spot. It was observed:-

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8. 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.

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9. In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case (2016) 3 SCC 379 , it was held thus:

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“15. 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 officer-incharge of the nearest police station or to the officer empowered under Section 53 who shall prepare an 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 certifying the correctness of the list of samples so drawn.

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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 dutybound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which

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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.

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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 the 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.”

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10. Hence, the act of PW-7 of drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by this Court in the case of Mohanlal 2016 (3) SCC 379 . This creates serious doubt about the prosecution's case that the substance recovered was contraband .

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This position was reiterated in Yusuf v. State 2023 SCC

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OnLine SC 1328 , wherein it was observed: -

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“10. In order to test the above submissions, it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act.

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11. For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:

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“52A. Disposal of seized narcotic drugs and psychotropic substances.-

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(1) —

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(2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or the officer empowered under section 53, the officer referred to in sub-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 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 subsection (1) may consider relevant to the 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-

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(a) certifying the correctness of the inventory so prepared; or

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(b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] 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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(3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application.

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(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Criminal Procedure Code, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

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12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.

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13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance with the mandate of sub-section (2) of Section 52A of the NDPS Act.

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14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the

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Magistrate had certified the inventory of the substance seized or of the list of samples so drawn .

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15. In Mohanlal's case (2016) 3 SCC 379 , the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.

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16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.

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17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside . The impugned judgment and order of the High Court, as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with a fine of Rs. 1 lakh and in default of payment of fine to undergo further imprisonment of one year, is hereby set aside.” (Emphasis supplied)

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A similar view was taken in Bothilal v. Narcotics Control

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Bureau, 2023 SCC OnLine SC 498 , wherein it was observed: -

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“15. Admittedly, PW-2 drew two samples from each of the packets of contraband found in the hotel room and kept

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them in two separate plastic covers. These covers were sealed and the remaining contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion was created about the prosecution's case as this action by the PW-2, was contrary to Section 52-A of the NDPS Act.

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16. In paragraphs 15 to 17 of Mohanlal’s case (2016) 3 SCC 379 , it was held thus:

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“15. 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 officer-incharge of the nearest police station or to the officer empowered under Section 53 who shall prepare an 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 certifying the correctness of the list of samples so drawn.

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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 dutybound 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.

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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 sub-sections (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 the 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.”

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17. Thus, the act of PW-2 of drawing samples from all the packets at the time of seizure is not in conformity with what is held by this Court in the case of Mohanlal (2016) 3 SCC 379 . This creates serious doubt about the prosecution's case that the substance recovered was contraband. (Emphasis supplied)

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This position was reiterated in Mohd. Khalid v. State of

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Telangana, 2024 SCC OnLine SC 213 wherein it was observed at page 402:

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“ 26. Admittedly, no proceedings under Section 52-A of the NDPS Act were undertaken by the investigating officer PW 5 for preparing an inventory and obtaining samples in the presence of the jurisdictional Magistrate. In this view of the matter, the FSL report (Ext. P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot.”

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This, in view of these precedents, the samples were

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required to be taken in the presence of the Magistrate and it is impermissible to take the samples on the spot in the absence of

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the Magistrate. No reliance can be placed upon the report of

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analysis obtained after analyzing the samples taken on the spot. In the present case, the samples were not taken in the Magistrate’s presence and the prosecution version that the recovered suspected material was poppy husk has not been established.

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It is also the case of the prosecution that before searching the accused, the police gave an option to the accused to be searched before the Magistrate, Gazetted Officer or the police. The police prepared the memo (Ext. PW1/D) which mentions FIR No.121/2008 in red ink. It also mentions the date 29.05.208 and Sections 15 and 29 of the NDPS Act. HHC Balbir Singh (PW2) stated in his cross-examination that the memo (Ext. PW1/D) was written on the spot (where the accused was apprehended) about 10-15 minutes after apprehending the accused. The rest of the documents were prepared at the police station. The fact that the FIR number was written in red ink can lead to an inference that it was mentioned after the FIR number was received whereas the rest of the document was prepared before the receipt of the FIR number. The fact that the memo mentions the Section under which the FIR was registered will make the prosecution case suspect.

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In Manjit Singh vs. State 2001(2) Cur. L.J. (HP) 106 the

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FIR number was written on the memo with the same pen and ink. It was held by a Division Bench of this Court that the same will make the prosecution case doubtful. It was observed:

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“34. In view of the FIR number finding mention in the aforesaid documents "in fact, three inferences are possible, viz.(i) either the F.I.R. had been recorded before the search and seizure, or (ii) the FIR number had been inserted therein after the FIR was recorded, or (iii) the documents were prepared only after the investigating officer received the number of the F.I.R. from the police station. In case the FIR had been lodged before the recovery but contains details of search and recovery the only inference would be that the recovery was planted/fake and will cut at the root of the case entitling the accused to acquittal. In case the documents regarding search and recovery are prepared only after receipt of the FIR number from the police station, it will suffer from the vice of delay in preparing such documents which must be prepared immediately after the action taken and as a result thereof the recovery will be rendered doubtful. However, in case of insertion of the number of the FIR on the documents which had been prepared immediately after the search and recovery will not necessarily be rendered illegal or doubtful.”

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This position was reiterated in State of H.P. vs. Gurdeep

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Lal Latest HLJ 2002(2) 1018 (HPHC) wherein it was observed:

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A perusal of Ext. PD shows that F.I.R. No is mentioned at the top of this memo. It is not known as to how the F.I.R. came to be recorded on this memo. A reading of the memo itself shows that the case had not been registered by that time and only a Rooka for the registration of the case had been sent. It appears that Ext. PD came to be prepared only

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after the registration of the case and much after the search alleged to have been carried out.

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A Division Bench of this Court in Gabriel Vs. State of H.P 1989 (1) Sim. L.C. 78 . Where the seizure memo. Contained F.I.R. number, has held that in no circumstances the memo. Could contain the number of the F.I.R. as it does, because the F.I.R. was recorded in the police Station only on the receipt of the report. The investigation, therefore, was found to be not above board. To a Similar effect a learned Single judge of the Delhi High Court in Mohd. Hashim Vs. State (2000 Cri. L.J. 1510) and Zofar Vs, State (2000 Cri. L.J. 1589) have held the preparation of the memo, to be doubtful.

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If the memo. Ext. PD is held to be doubtful, then the statement of the Investigation Officer with regard to the compliance of the provisions of section 50 of the NOPS Act, in view of the specific statement made by Pw-10, cannot be accepted. It may be mentioned that the other independent witness to the recovery, namely, Shadi Lal has not been examined and was given up as unnecessary.”

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21. A similar view was taken in State of H.P. vs. Dinesh

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Kumar 2017 (Supp) Shim. LC 78 wherein it was observed:

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“26. In the documents, i.e. sample seal impression of 'H' on cloth Ext. PW6/C, site plan Ext. PW7/B and arrest memo Ext. PW7/C, the number of FIR on the top has been filled in in such a manner so as to reflect that it was filled in. After preparation of the document on getting the number of FIR at 10.30 p.m. However, perusal of consent memo Ext. PW6/A and memo of personal search of Investigating Officer Ext. PW6/B indicates that the number of FIR has been filled in by preparing the documents in one go from top to bottom. Not only this, Ext. PW5/C is a sample seal impression of seal 'K' used for resealing. At the time of preparing this document, the number of FIR was available with the police party and SI Om Chand, but in this document, the number of FIR has been reflected to have been entered later on by reflecting

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the same in a manner so that it appears that it was inserted in the document later on.

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The documents which were prepared before lodging the FIR contain the number of FIR in a manner as it has been written in one go at the time of preparation of documents whereas the documents prepared after having the number of FIR reflect the number of FIR purported to have been inserted later on. It appears that the entire proceedings were taken at a place other than the spot, to say at the police station, and the sequence of preparation of these documents was also not in the manner as it should have been or has been alleged in the prosecution story. All this strengthens doubt in the prosecution case.”

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Therefore, the mentioning of Section 15 of the NDPS

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Act in the memo of option will make the prosecution case suspect.

¶130

These aspects were not considered by the learned Trial Court and the judgment and order passed by the learned Trial Court cannot be sustained. Hence, the present appeal is allowed and the judgment and order dated 05.07.2011, passed by the learned Trial Court are ordered to be set aside.

¶131

The accused is ordered to be acquitted of the commission of an offence punishable under Section 15 (b) of the NDPS Act.

¶132

In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the appellant is directed to furnish his personal

¶133

22

¶134

Neutral Citation No. ( 2024:HHC:8002 )

¶135

bond within four weeks in the sum of ₹25,000/- with one surety each in the like amount to the satisfaction of the learned Trial Court, which shall be effective for six months with stipulation that in the event of Special Leave Petition 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.

¶136

Records be sent back forthwith. Pending applications, if any, also stand disposed of.

¶137

( Rakesh Kainthla) Judge

¶138

6^th September, 2024 (saurav pathania)

Sachin Sharma v. State

Case brief

What is this about?

What did the court decide?

Sachin Sharma v. State

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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Cases cited

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