Allowed

Ranjit Singh v. Pb.State

Punjab & Haryana HC28 Aug 2012CRA-S/539/2000

Case brief

AI extract

What is this about?

In an appeal against conviction and sentence under the NDPS Act, the High Court of Punjab and Haryana set aside the original order, acquitting the appellant. The Court held that the failure to comply with mandatory provisions of Section 52-A regarding inventory certification, sealing procedures, and timely sample submission created reasonable doubt about the prosecution case.

What did the court decide?

Impugned judgment of sentence set aside; appellant acquitted of the charged offence.

Ranjit Singh Vs Pb.State — Narcotics (NDPS) | Punjab & Haryana HC (2012)

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CRA No.539-SB of 2000

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRA No.539-SB of 2000 Date of decision: 28.8.2012

Ranjit Singh

...Appellant

Versus

State of Punjab

...Respondent

CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN

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Present: Mrs.Anju Arora, Advocate for the appellant

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Mr.Mehardeep Singh, DAG, Punjab

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Jitendra Chauhan, J.

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The present appeal has been filed against the judgment/order of sentence dated 3.6.2000, passed by the Court of the Judge, Special Court, Mansa, whereby he convicted and sentenced Ranjit Singh accused-appellant to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-; in default of payment of fine, the appellant would have to further undergo imprisonment for one year under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act').

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Shortly put, the facts of the prosecution case are that on 25.4.1996, a police party headed by Inspector ASI Jit Singh happened to be going on election duty from village Reound Kalan towards village Beerewala Dogra in a private jeep bearing registration No.RJ-13C-2165. When they reached near the Canal bridge, they saw the accused coming

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from the side of village Beerewala Dogra carrying a bag on his head. On suspicion, they stopped him and asked whether he wanted to be searched before a Gazetted Officer or a Magistrate. He expressed his desire that the bag be searched in the presence of any Gazetted Officer. On receipt of message from the above mentioned ASI, DSP Shamsherjang Bahadur came at the spot. On his directions, the search of the accused was conducted. On search poppy husk weighing 14.250 grams was recovered from the bag. Out of the same, 250 grams was taken as sample and converted into a parcel. The parcel of the sample and the remainder were sealed with seal 'JS'. The parcels were seized vide recovery memo. Ruqa was sent to the Police station. On its basis, formal FIR was registered. The ASI prepared the rough site plan showing the place of recovery. On return to the Police station, the said ASI handed over the case property to the SHO of Police Station Boha, who produced the same before the Judicial Magistrate, 1^st Class, Mansa. The learned JMIC found the seals on the sample and on the case property as intact and sent the sample to the Chemical Examiner at Patiala. On receipt of chemical examiner's report and after completion of investigation, the charge sheet was laid in the Court for trial of the accused Ranjit Singh.

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The accused was charged under Section 15 of the Act, to which he did not plead guilty and claimed trial.

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In order to substantiate the charge, the prosecution has examined Constable Avtar Singh PW1, SI Rupinder Kumar PW2, ASI Jit Singh PW3, DSP Shamsher Jang Bahadur PW4 and by tendering the documents Exs.PA to Ex.PG closed its evidence.

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When examined under Section 313 of the Code of Criminal Procedure, the accused-appellant denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication. In defence, he examined Dhanna Singh as DW1.

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After analysing the entire evidence and hearing the learned counsel for the parties, the learned Trial Court convicted and sentenced the accused as noticed at the outset.

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Feeling dissatisfied with the same, the accused-appellant preferred this appeal, which was admitted on 14.6.2000 and thereafter, vide order dated 15.3.2002, the sentence of the appellant was suspended.

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Learned counsel for the appellant submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt, as the link evidence is missing in this case. The mandatory provisions of the NDPS Act have not been complied with. The seal was not handed over to an independent witness and there is possibility of tempering with the same and the case property. She further submits that the prosecution has miserably failed to prove the identity of the case property, as there are discrepancies in the statement of PW3. She further submits that the sample parcels were sent to the Chemical Examiner after 8 days of the alleged recovery. She further submits that there are material contradiction in the statements of the prosecution witnesses. It is further argued that Section 52-A of the Act was not complied with.

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On the other hand, learned State counsel submits that the recovery was effected from the appellant. A sample duly sealed was sent to FSL and as per the FSL report, the contents were found to be poppy husk.

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He further submitted that the search was conducted in the presence of DSP Shamsherrjang Bahadur and the property was sealed with the seals impressions 'RK' and 'JS' . He further submits that the prosecution case is fully proved and therefore, the learned trial Court has rightly convicted and sentenced the appellant.

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I have heard the learned counsel for the parties and perused the record, with their able assistance.

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As per the prosecution, Gurcharan Singh, an independent witness was joined but was given up by the prosecution, as he did not support the prosecution case. This witness appeared in the defence as DW1 and stated that his signatures were obtained by the police on blank papers saying that these relate to the fuel and payment of the hired jeep. He has further submitted that no recovery was effected from Ranjit Singh in his presence. The statement of DW1 Gurcharan Singh totally erodes the veracity of the case of the prosecution. Moreover, the prosecution has omitted to cross-examine him on material aspects of the matter. If a prosecution witness cited by the police appeared as a defence witness, his testimony cannot be brushed aside simply because he appeared from defence side. Some weightage must be given to his testimony keeping in view the probable version of the accused. He has specifically stated that no recovery was effected in his presence. The case of the prosecution is that recovery was effected by ASI Jit Singh and the investigation was carried out by the same ASI. After the recovery, the seal was handed over to HC Gurjant Singh, a recovery witness, who was also not examined. However, when an independent witness was available with the police party, no

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explanation is forthcoming as to why the seal was not handed over to this public witness to rule out the possibility of tempering with the parcels.

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In the present case, provisions of Section 52-A of the NDPS Act were not complied with. Section 52-A of the NDPS Act reads as under,

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“ 52-A- Disposal of seized narcotic drugs and psychotropic substances.-(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constrains of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.

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(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of

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CRA No.539-SB of 2000

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the narcotic drugs or psychotropic substances 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 identify of the narcotic drugs or psychotropic substances 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 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 sub-section (2), the Magistrate shall, as soon as may, allow the application.

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(4) Notwithstanding anything contained in the Indian Evidence Act, 1982(1 of 1872) 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 sub section (2) and

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certified by the Magistrate, as primary evidence in respect of such offence].

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A reading to sub section A to Section 52 depicts that the sample is to be sent after an application is made to the Magistrate and a permission in this regard is obtained certifying the correctness of the inventory so prepared. In the instant case, it is proved that provisions of Section 52-A of the Act are not complied with. Although other aspects of the case have been examined, yet the case of the prosecution fails on this ground alone. The sentence prescribed under the Act is very stringent. Therefore, it is the duty of the investigating agency to comply with the provisions in a meticulous manner and leaves no scope for any procedural irregularity or illegality. In the instant case, substantial provisions of Section 52-A of the Act have not been complied with. Non-compliance of provisions of Section 52-A of the NDPS Act, makes the case of the prosecution doubtful. The police being custodian of the citizens' right is duty bound to ensure that life and liberty of the citizens is not to put at a stake. There is no explanation as to why provisions of Section 52-A of the Act were not complied with. Such a callous attitude of the police has not only jeopardized the life and liberty of a citizen but has very heavily fell on the State Exchequer. However, the whole process puts a question mark on the investigating agency.

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PW3 ASI Jit Singh in his cross-examination has deposed that on the bag Ex.P1, produced in Court, particulars of the case were written but they are not readable except the word 17. On the other side of the bag, the words 17/96 are written. Earlier on this bag it was 16/96 and after striking it out, it has been written 17/96. He further deposed that the seals

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are affixed on the bag but they are not legible now. The seals were in broken condition. It appears that the case property of other case has been tried to be produced in the Court. If it was due to inadvertence, there is no affidavit of the concerned Malkhana Moharrir, to clear the doubt.

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The recovery was effected from the accused on 25.4.1996, yet the sample parcel was sent to the Chemical Examine on 1.5.1996 i.e. after a delay of 8 days without any explanation. According to the Standing Instruction No.1/88 dated 15.3.1988 (Narcotic Control Bureau, New Delhi), the sample parcel should be sent within 72 hours and to add further to it, the seal after use remained in the custody of the Police official and all the circumstances are fatal to the prosecution case.

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In re: Sukhdev Singh @ Sukha v. State of Punjab, 2006 (1)

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Recent Criminal Reports (Criminal) 4, the seal was given to SI of police and not to the independent witness. The Division Bench of this Court held that the possibility of seal being tampered with, substance being changed and the containers being re-sealed, cannot be ruled out.

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In re: Buta Singh v. State of Punjab , 2006 (1) Recent Criminal Reports (Criminal) 835, as many as 18 bags of poppy husk were recovered. The prosecution failed to explain delay of 8 days in despatch of sample to the Forensic Science Laboratory for chemical analysis. It was held that such a delay is fatal and the same is also in violation of the Standing Instruction No.1/88 dated 15.3.1988 (Narcotic Control Bureau,New Delhi ).

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In re: Baldev Singh v. State of Punjab , 2005 (1) Recent Criminal Reports (Criminal) 823, the seal was given to an independent

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witness who was not examined. It was held that till the case property has not been despatched to the office of the Forensic Science Laboratory, the seal should not be available to the Prosecution Agency and in absence of such safeguard, the possibility of seal being tampered with, substance being changed and the containers being re-sealed, cannot be ruled out.

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Coming to the facts of the case in hand, the prosecution has not apportioned any reason worth the name for holding back the sample parcels for 8 days. The seal remained in possession of the police official. In these premises, it is very difficult to say that the contents of the sample parcels were not changed.

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From the perusal of the record, it is further revealed that the statement under Section 161 Cr.P.C of the DSP, who allegedly reached at the spot at the time of search and seizure, was not recorded. Furthermore, on collective reading of the statements of PW3 ASI Jit Singh and PW3 DSP Shamsher Jang Bahadur, there are material contradictions. ASI Jit Singh in his statement deposed that they were on private jeep, whereas the said DSP said that the police party was on a peter rehra. ASI Jit Singh in his crossexamination has deposed that when the DSP reached at the spot, the bag of the poppy husk of the accused was already taken off from the head of the accused, whereas the DSP has deposed that when he reached at the spot, the bag of poppy husk was on the head of the accused. There is discrepancy regarding the place of recovery. As per the Investigating Officer, the village Beerwala Dogra is on the east side and village Reound Kalan is towards west side, whereas, as per the site plan Ex.PG, village Beerwala Dogra has been shown towards north side and Reound Kalan is on south side. The

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cummulative effect of all these circumstances is that the case of the prosecution is doubtful and the appellant -accused deserves to be given benefit of doubt.

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In view of the foregoing discussion, the present appeal is allowed; setting aside the impugned judgment/order of sentence. The accused-appellant is are hereby acquitted of the charged offence.

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gsv

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(JITENDRA CHAUHAN) JUDGE

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28.8.2012

Ranjit Singh v. Pb.State

Case brief

What is this about?

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Ranjit Singh v. Pb.State

Case brief

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