Allowed

Chanan Singh @ Channa v. State of Punjab

Punjab & Haryana HC5 Dec 2024CRA-D/1099/2013

Case brief

AI extract

What is this about?

Appeals against conviction under Sections 21 and 18 NDPS Act for heroin and opium recovered near the border without any accused present. Foot-print expert evidence lost creditworthiness since others' prints existed at the site; FSL's failure to reseal samples broke the chain of custody; no homogeneous mixing before sampling. Convictions quashed and appellants acquitted.

What did the court decide?

Conviction and sentence quashed; appellants acquitted; fine refunded; bonds cancelled; appellants in custody to be released if not required elsewhere.

Chanan Singh @ Channa Vs State of Punjab — Narcotics (NDPS) | Punjab & Haryana HC (2024)

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CRA-D-1099-DB-2013 (O&M) - 1CRA-D-1603-DB-2013 (O&M)

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	In the High Court of Punjab and Haryana at Chandigarh
1.	CRA-D-1099-DB-2013 (O&M)
	Reserved on: 20.11.2024
	Date of Decision: 05.12.2024

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Chanan Singh alias Channa ......Appellant Versus State of Punjab ......Respondent 2. CRA-D-1603-DB-2013 (O&M) Sucha Singh and another ......Appellant Versus

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State of Punjab ......Respondent

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CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

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Present: Mr. Vivek Atri, Advocate for the appellant (in CRA-D-1099-DB-2013).

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Appeal abated qua appellant No. 1 (in CRA-D-1603-DB-2013) Mr. Salil Dev Singh Bali, Advocate for appellant No. s (in CRA-D-1603-DB-2013)

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Mr. Maninder Singh, Sr. DAG, Punjab. ****

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SURESHWAR THAKUR, J.

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Since both the appeals (supra) arise from a common verdict, made by the learned trial Judge concerned, hence both the appeals (supra) are amenable for a common verdict being made thereons.

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Both the appeals are directed against the impugned verdict, as made on 12.9.2013, upon Sessions Case No. 213 of 9.4.2008, by the learned Special Judge, Ferozepur, wherethrough in respect of the charges drawn against the accused qua the offences punishable under Sections 21 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter Gurpreet Singh 2024.12.05 18:23 I attest to the accuracy andreferred to as “the Act”), the learned trial Judge concerned, proceeded to integrity of this document Chandigarh

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record a finding of conviction against the accused.

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Moreover, through a separate sentencing order dated 13.9.2013, the learned trial Judge concerned, sentenced the accused-convicts to undergo rigorous imprisonment for a period of twelve years each for the commission of an offence punishable under Section 21 of the Act, besides also imposed, upon the accused-convicts sentence of fine, comprised in a sum of Rs. 1,20,000/- each, and, in default of payment of fine amount, he sentenced the accused-convicts to undergo rigorous imprisonment for a period of one year and three months. In addition, the learned convicting Court also sentenced the accused-convicts to undergo rigorous imprisonment for a period of one year each, for the commission of an offence punishable under Section 18 of the Act, and, also imposed, upon them the sentence of fine, comprised in a sum of Rs. 10,000/- each, besides in default of payment of fine amount, it sentenced the accused-convicts to undergo rigorous imprisonment for a period of three months.

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However, the period of detention undergone by the convict, during the investigations, and, trial of the case, was, in terms of Section 428 of the Cr.P.C., rather ordered to be set off from the above imposed sentence(s) of imprisonment.

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Factual Background and Investigation proceedings

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The genesis of the prosecution case, becomes embodied in the appeal FIR, to which Ex. P3 is assigned. The narrations carried in Ex. P3 are that on 12.12.2007, Sh. Jaibir Singh, Company Commander 'E' COY, 7 BN BSFm wrote a letter to the SHO, Police Station Sadar Ferozepur informing that on 11.12.2007 at about 11 A.M., while Border Security Force Personals were on patrol duty near B.S Fencing for cleaning the wild

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growth, they found 7 packets containing 6.880 kilograms suspected heroin, out of which 5 packets were marked with Super 999, and 2 packets were marked with DHDH Afganistan and 250 grams of opium lying in a scattered manner approximately 15/20 feet away from BSF fencing on Indian side in front of BP No.181/2. On further search of the area fresh foot prints of two Pak smugglers were found. One pair fresh foot prints was also found approximately 60/70 feet from BSF fencing in Indian side behind Dhusi Band. It was further informed that on analysis, the foot print on both side of BS Fencing and information available with BOP, the above consignment was thrown by 02 Pak smugglers over the BS Fence and the consignment was required to be collected by two suspected Indians, namely, Sukha Singh son of Boota Singh and Arjun Singh son of Pritam Singh. Along with the said letter Sh. Jaibir Singh, Company Commander also produced a parcel weighing 6 Kgs. 865 grams of heroin, two sample parcels containing 5 grams of heroin each, one parcel opium weighing 235 grams, sample parcels of opium weighing 5 grams each. All the parcels were sealed with the seal bearing impression 'Commandant 7th Btin BSF'. A parcel containing packing material and sample seal chit was also produced.

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On receipt of aforesaid letter Ex.P-2, formal FIR Ex. P-3 was registered. The investigation of this case was entrusted to S.I. Roor Singh. He sealed all the parcels containing heroin and opium with his seal bearing impression 'RS' and took the entire case property into possession vide memo Ex.P-5. The said investigating officer then visited the place of recovery and prepared rough site plan Ex.P-6. During the inspection of the spot, foot moulds were detected, impressions of which were obtained and were taken into possession vide memo Ex.P-7. CFSL form Ex. P-8 was also prepared.

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On the next day ile on 13.12.2007 the entire case property was produced before the learned Illaqa Magistrate. Accused Sarwan Singh and Sucha Singh were arrested and grounds of arrest were intimated to them vide memo Ex. P-11 and Ex. P-12 respectively. The investigating officer concerned, moved an application before the learned Addl.C.J.M, Ferozepur for taking specimen foot molds of accused Sucha Singh and Sarwan Singh. The said application was allowed and on 19.12.2007. Subsequently, four specimen foot moulds of both the accused were taken in the presence of Sh. Gursewak Singh, Naib Tehsildar and memo Ex.P-17 to the said effect was prepared. On 28.12.2007, accused Balwinder Singh was arrested and grounds of his arrest were intimated to him vide memo Ex.P-18 and on 11.1.2008 accused Chanan Singh was arrested. The samples were sent to the Chemical Examiner through H.C.Sanjiv Kumar.

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After conclusion of investigations, and, after receipt of the report of the Chemical Examiner concerned, the investigating officer concerned, proceeded to institute a report under Section 173 of the Cr.P.C., before the learned Court concerned.

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Trial Proceedings

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The learned trial Judge concerned, made an objective analysis of the incriminatory material, adduced before him. Resultantly, he proceeded to draw charges against the accused, for the offences punishable under Sections 21 and 18 of the Act. The afore drawn charge was put to the accused, to which they pleaded not guilty, and, claimed trial.

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In proof of its case, the prosecution examined nine witnesses, and, thereafter the learned Public Prosecutor concerned, closed the prosecution evidence. After the closure of prosecution evidence, the learned

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trial Judge concerned, drew proceedings, under Section 313 of the Cr.P.C., but thereins, the accused pleaded innocence, and, claimed false implication. Though, the accused chose to adduce defence evidence, however, they did not lead any witness into the witness box.

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Submissions of the learned counsels for the appellants

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The learned counsel for the aggrieved convicts-appellants have argued before this Court, that the impugned verdict of conviction, and, consequent therewith order of sentence, require an interference. They support the above submission on the ground, that they are based on a gross misappreciation, and, non-appreciation of evidence germane to the charge. 11. They further submit, that the accused were not stated to be seen by any eye witness at the site wherefrom the contraband was allegedly recovered. Moreover, since the main accused have been linked in the instant case merely on the basis of foot prints, and, that no recovery has been effected from the accused persons, therebys the impugned verdict is vitiated.

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The learned counsel for appellant Chanan Singh submits, that the said accused has been implicated merely on the basis of confession statement suffered by the main accused, and, that no recovery became effected from him.

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Submissions of the learned State counsel

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On the other hand, the learned State counsel has argued before this Court, that the verdict of conviction, and, consequent therewith sentence(s) (supra), as become imposed upon the convicts, is well merited, and, do not require any interference, being made by this Court in the exercise of its appellate jurisdiction. Therefore, he has argued that the appeals (supra), as preferred by the convicts, be dismissed.

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Analysis of the case

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Through recovery memo Ex. P1, the recovery of the seized contraband became allegedly effected from the site concerned. Therefore, but in the absence of the availability of the accused at the crime site, the recovery became effected therefroms. However, to connect the availability of the accused at the crime site, besides to connect the accused with the effectuation of recovery therefrom, the prosecution has relied upon the report (Ex. P-16), as made by the expert to whom the foot moulds, as existed on the crime site were sent along with the foot moulds of the accused. Though, the forensic expert concerned, after making the apposite comparison, thus made an opinion to the effect that there was compatibility inter se both. Conspicuously therebys, the prosecution has been able to overcome the effect, if any, of the absence of the accused at the crime site wherefrom the recovery of the contraband became effected through recovery memo Ex. P1.

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Nonetheless, the prosecution is also required to be cogently establishing, thus through adducing unrebutted evidence, that only the foot moulds of the accused existed at the crime site, and, that no other person had trudged on the crime site, thus leaving behind his foot prints. However, the supra would occur only in case, the accused were able to adduce evidence to the extent that several other persons with almost co-equal foot sizes, had trudged on the crime site, thereupon irrespective of the forensic expert, declaring but after making the apposite matchings, that the foot moulds existing at the crime site, thus matched with the foot moulds of the accused, yet therebys the said opinion would obviously suffer an immense loss of creditworthiness.

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For uncovering whether the accused have been able to adduce evidence to the extent that other persons almost with similar foot sizes rather had trudged on the crime site, it is relevant to refer to the cross-examination made by the learned defence counsel upon PW-5 Jasbir Singh, Asstt. Commandant, Company Commander, 49 Btln. BSF. A reading of the crossexamination, as became conducted by the learned defence counsel upon PW-5 Jasbir Singh, Asstt. Commandant, Company Commander, 49 Btln. BSF, unraveled that, he has acquiesced to the suggestion, that at the crime site existed besides the foot prints of the accused, thus also the foot prints of other persons who had trudged on the crime site. Therefore, the investigating officer concerned, was required to be collecting those foot moulds, other than those of the accused, which prima facie were of the sizes compatible to the sizes of the feet of the accused, so that, on the said foot moulds being sent to the forensic expert concerned, he could clearly state, that they were of foot sizes contra-distinct to the foot size(s) of the accused. Resultantly, if he so stated, therebys irrespective of other persons other than the accused trudging on the crime site, it could be yet concluded that the accused were the only ones who had inculpatorily trudged on the crime site. However, since the above evidence is amiss, therebys when the above speakings made by PW5 in his cross-examination, thus but create a doubt about whether the accused alone inculpatorily had trudged on the crime site, therebys becomes rendered uncreditworthy the report of the forensic expert, wherebys it was declared that the foot moulds, as existed at the crime site, had matched with the sizes of the foot moulds of the accused. As such, benefit of doubt is to be given to the accused-appellants.

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The prosecution though has been able to lead cogent evidence,

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in proof of the recovery of the seizure, thus being effected at the crime site, and, the same thus being sealed with the relevant seal impressions. Moreover, though the prosecution has also been able to cogently establish, that the sealed cloth parcels, became deposited in the malkhana concerned. In addition, though the prosecution has been able to establish, that the case property travelled in an untampered condition to the FSL concerned.

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A reading of the report (Ex.P-15), as made by the FSL concerned, whereto the relevant seizures became sent for an examination being made of the stuff inside the sealed cloth parcels, though reveals, that the examined stuff inside the sealed cloth parcels, as became sent to it for examination, thus being the intoxicant substance. The said report is ad verbatim extracted hereinafter.

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“ x x x 640-S/07 - Physical Appearance An off white powder Diacetyl morphine - Present Diacetyl morphine - 60.52% 640-S/07 Physical Appearance - Dark brown hard mass Meconic acid - Present* Morphine - Present* Morphine % - 8.8%* Opinion :-

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1. The analysis indicates that the contents of exhibit Nos. 640-S/07 are of diacetyl morphine also known as Heroin.

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2. The contents of the exhibits No. 126-O/07 are of Opium on the basis of items asterisked above.”

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Be that as it may, though a reading of the report (supra) of the

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FSL also discloses, that the sealed cloth parcels, became received there,

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Gurpreet Singh 2024.12.05 18:23 hence with the seal impressions thereons being intact. However, the I attest to the accuracy and integrity of this document Chandigarh

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chemical examiner at the FSL concerned, after making examinations of the stuff inside the sealed cloth parcels, and, thereafter his drawing the report (supra), yet omits to mention in the report Ex. P-15, about his re-enclosing the examined stuff inside the cloth parcels, and, his thereons affixing the seals of the FSL concerned.

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The above was required to be mandatorily done, as, thereupon the imperatively required to be proven, thus unbroken links in the chain of incriminatory evidence, commencing from the seizure being made from the crime site, through recovery memo Ex. P1, and, lasting upto the production of the case property in Court, thus therebys would become convincingly proven, rather to remain unsnapped or unbroken. In the above event alone the charge drawn against the accused would be concluded to become cogently established. However, as above stated, contrarily for want of the chemical examiner concerned, after making examination(s) of the stuff inside, the sealed cloth parcels, thus re-enclosing the examined stuff inside the cloth parcels, and, his further failure to emboss thereons, rather the seals’ of the FSL concerned, whereafters the examined stuff after retrievals from the malkhana concerned, was to be produced in Court, for its being shown to the investigating officer concerned, for thereby thus, on evident surgingsforth of the above requisite primary evidence, rather the charge drawn against the accused, could be concluded to be convincingly proven, thereupon rather for wants (supra) the charge would stagger.

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Be that as it may, though the sample parcels whereons an incriminatory opinion (supra) became recorded at the FSL concerned, but yet since on a reading of the testification, as occurs in the examination-inchief of PW-5 Jasbir Singh, Asstt. Commandant, Company Commander, 49

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Btln. BSF, the supra became produced in Court, besides on the production of the relevant parcels they then became shown to the witness (supra), who also then proceeded to state, that they were the very same ones which became separated from the bulk parcels, and, also theirs being the very same ones whereons also the incriminatory opinion (supra) became recorded. Consequently, on the basis of the above, the learned State counsel has vigorously argued before this Court, that therebys irrespective of the chemical examiner of the FSL concerned, omitting to after making examination(s) of the stuff inside the sample cloth parcels, thus re-enclosing the same in the cloth parcels, besides his omitting to emboss thereons the seals of the FSL concerned, rather therebys looses its relevance.

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However, the above argument cannot be accepted by this Court, thus on the ground, that there is no endorsement by the Chemical Examiner concerned, on the report (supra) to the extent that after re-enclosure of the examined stuff inside the cloth parcel, the same becoming returned to the office wherefrom they arrived at the FSL concerned. Furthermore, the parcel as became sent for examinations to the FSL concerned, but obviously did not result in a return receipt entry becoming made by the Incharge of the Malkhana concerned. The consequent effect thereof, is that, the cloth parcels, as became produced in Court, thus cannot become related to the cloth parcels, as became sent to the FSL concerned, nor can they be related to the ones whereons an incriminatory opinion was made at the FSL concerned.

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In sequel, the produced in Court the sample parcels whereons an incriminatory opinion was recorded but were not the ones which became sent to the FSL concerned, nor therebys it can be concluded that the above

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produced sample parcels in Court, are the very ones, which are to be convincingly stated to comprise the link starting from the recovery thereof being made at the crime site, and, after affirmative examination(s) being made of the contents thereof, thus ending upon the apposite production thereof in the Court, for theirs then being shown to the investigating officer concerned.

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In aftermath, the supra produced in Court sample cloth parcels, are to be concluded to be the result of a contrivance deployed by the investigating officer concerned, so as to falsely connect the accused with the said produced sample cloth parcels in Court.

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Resultantly, reiteratedly when scope is, thus left for an inference qua either the case property, thus not relating to the report (supra) of the FSL concerned, thereby the report of the FSL (supra), rather looses its evidentiary vigour. A further scope is also left, thus to infer that the case property, if any, became tampered with. Moreover, much scope is also left for the drawing of an inference, that the case property other than the one relating to the charge drawn against the accused, thus became produced in Court. As but a natural corollary, when the primary evidence i.e. Ex. P-15, rather for proving the charge drawn against the accused, but does come under a cloud of deep suspicion. Resultantly, this Court is constrained to conclude, that the charge drawn against the accused did not come to be cogently established.

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Lastly, since this Court while answering the substantial question of law sent to the larger Bench of this Court, in case No. CRA-S-5190-SB2015 titled as “Deepak Kumar V. State of Punjab” , thus has thereins

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expostulated that; a) There being an imperative necessity of testings being

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made of the stuff inside the sample parcels. b) The inventory as becomes prepared in the presence of Magistrate concerned, in terms of Section 52A of the Act, but without testings of the stuff enclosed in the sample parcels, thus being made at the laboratory concerned, rather per se not acquiring the utmost evidentiary vigor.

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20. Conspicuously, the hereinabove extracted respective standing order and notification become declared by a judgment rendered by the Hon’ble Apex Court in case titled as “ Noor Aga V. State of Punjab and another” Criminal Appeal No.1034 of 2008, decided on 09.07.2008, to be holding a mandatory character and also become ordained therein to be requiring completest adherence. Contrarily on breach thereof becoming made, therebys may be the accused would become entitled to an acquittal.

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21. Furthermore, in case the entire bulk is homogeneously mixed and derivative samples are derived therefroms, resultantly the effect thereof would be that, the incriminatory finding as become recorded on the stuff inside the sample parcels as sent to the laboratory concerned, thus would acquire a presumption of truth, irrespective of the fact that the entire bulk wherefrom the derivative samples are borrowed, but after the entire seizure becoming homogeneously mixed, rather not becoming sent for analyses thereovers, being made at the laboratory concerned. Contrarily, in case the entire bulk seizure remains not homogeneously mixed, thereupon the charge drawn against the accused appertaining to the weight of the entire weight of the seizure, de hors affirmative results being made in respect of the stuff inside the residue sample parcels, as, sent to the laboratory concerned, rather would come under a cloud of doubt, whereupon benefit thereof would accrue to the accused.

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22. As an illustration, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as

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13-

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per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity, but proper procedure has to be followed, without which the results would be negative.

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23. Reiteratedly, in case, the derivative samples from the bulk are drawn but without the entire bulk seizure becoming homogeneously mixed, thereupon the laboratory examination of the stuff inside the sample cloth parcels rather would not prove the charge relating to the weight of the entire bulk seizure taking place, at the crime site, thus from the alleged conscious and exclusive possession of the accused.

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24. Contrarily, in case the entire bulk seizure is not homogeneously mixed or when the narcotic drug(s) or psychotropic substance, does become carried in different vials or in different packets, besides upon the said mode(s) of carryings of (supra), becomes not homogeneously mixed, thereupons, even if a fragment or a portion thereof becomes extracted from one vial or only from one packet, thus for creating a residue parcel, it would beget the ill consequence of the accused becoming entitled to an acquittal. Resultantly, when despite the evident absence of apposite homogeneous mixings of the entire bulk, taking place be it borne in packets, containers or be it being carried in different vials, besides when only a part or the fragment or portion of the seizure or only one or two of the vials, becoming extracted from the bulk, yet the said extracted fragment when becomes sent for examination to the laboratory concerned, but the apposite affirmative laboratory examination as becomes made vis-a-vis the stuff inside the sample parcels, rather would not make the charge drawn against the accused, thus for his allegedly exclusively and consciously possessing, the entire seizure, thus also becoming efficaciously proven.

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25. Conspicuously when for the drawing of an effective conclusion, that the charge drawn against the accused qua his allegedly consciously and exclusively possessing, the entire bulk, but requires that only after homogeneous mixing of the bulk seizure, taking place, be it of psychotropic substance, in vials or in any other mode or be it with respect of narcotic drugs carried in whatsoever mode, rather residues therefroms becoming drawn, whereafter an affirmative finding on the stuff inside the residues, is required to be

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made by the Chemical Examiner concerned.”

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Moreover, when evidently in the instant case, there is no mentioning of takings place of homogeneous mixings of the entire bulk seized from the offending bulk, before taking sample parcels therefroms, hence the charge drawn against the accused appertaining to the weight of the entire seizure, de hors affirmative results being made in respect of the stuff inside the residue sample parcels, as, sent to the laboratory concerned, thus is not cogently proved.

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Moreover, in paragraph 35 of the judgment rendered by the Hon’ble Apex Court in “ Noor Aga V. State of Punjab and another” Criminal Appeal No.1034 of 2008, decided on 09.07.2008 , paragraph whereof becomes extracted hereinafter, thus becomes spelt the imperative sine qua non, rather requiring to become cogently proven hence for therebys the charge drawn against the accused becoming declared to become unflinchingly proven. However, since after the examination(s) being made of the stuff inside the sample parcels, thus by the FSL concerned, rather the latter did not re-enclose them in the sealed cloth parcels, hence carrying thereons the seals’ of the FSL concerned. Moreover, when the said sample parcel(s) became never returned to the office wherefrom they generated.

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“ 35. The High Court proceeded on the basis that non-production of physical evidence is not fatal to the prosecution case but the fact remains that a cumulative view with respect to the discrepancies in physical evidence creates an overarching inference which dents the credibility of the prosecution. Even for the said purpose the retracted confession on the part of the accused could not have been taken recourse to.”

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Consequently, since the expostulation of law carried in verdict (supra), remains unsatiated thereby the accused become entitled to an acquittal.

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The said view is also supported by a judgment rendered in case titled as “ Gaunter Edwin Kircher V. State of Goa, Secretariat Panji, Goa”, Criminal Appeal No.642 of 1991, decided on 16.03.1993 , relevant paragraph whereof becomes extracted hereinafter.

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“J. Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 52A and 53 – Customs Act, 1962, Section 110(IB) – Physical evidence – Case Property – Recovery of heroin from accused – Case property destroyed and not produced – Physical evidence relating to three samples taken from the bulk amount of heroin were also not produced – Bulk quantity was destroyed the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52A of the Act.”

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Final order

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The result of the above discussion, is that, this Court finds merit in both the appeals, and, is constrained to allow them. Consequently, both the appeals are allowed. The impugned judgment convicting, and, sentencing the appellant, and, as becomes recorded by the learned trial Judge concerned, is quashed, and, set aside. The appellants are acquitted of the charge framed against them. The fine amount, if any, deposited by them, be, in accordance with law, refunded to them. The personal, and, surety bonds of the accused shall stand forthwith cancelled, and, discharged. The case property be dealt with, in accordance with law, but after the expiry of the period of limitation for the filing of an appeal. The appellants, if in custody, and, if not required in any other case, be forthwith set at liberty. Release

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warrants be prepared accordingly.

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