Research › Search › Judgment

J&K High Court · body

2006 DIGILAW 177 (JK)

Sher Singh Alias Shera v. State Of J. &K.

2006-07-20

J.P.SINGH

body2006
1. Convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPSA for short) for possession of 14.140 Kgs of Heroin Powder and sentenced to ten years rigorous imprisonment and a fine of rupees one lac, Sher Singh alias Shera has appealed to this Court seeking setting aside his conviction and sentence recorded by learned Principal Sessions Judge, Jammu, hereinafter to be referred as the Trial Court. Prosecution Case 2. Prosecution case, in brief, is that an ambush was laid on 11.01.1996 by Station House Officer, Police Station Domana, at Keran Ban Talab, in view of an information that some persons would be carrying Heroin to Jammu via Keran Bantalab. At about 5 a.m., three persons with bags on their shoulders were asked to halt at the barrier. Two persons taking advantage of the darkness succeeded in giving a slip to the police, whereas appellant was apprehended alongwith his bag, which on search was found to contain fifteen packets of Heroin powder besides an amount of rupees two hundred. F.I.R. No. 04 of 1996, thus, came to be registered under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985. A charge-sheet under Section 173 of the Code of Criminal Procedure was produced against the appellant in the Trial Court. Proceedings before the Trial Court. 3. Appellant was charged under Section 21 of the NDPSA on 24.05.1996. Prosecution examined fifteen witnesses in support of its case, whereas appellant-accused examined Balwant Singh and Ram Singh who supported his plea of denial. Besides assembling testimony of Jagdish Lal Sharma-SDPO, Surinder Singh- ASP, Ashok Singh-PSI, S. M. Sahai- SSP, Mukhtiar Hussain- Constable, Ashok Singh-SGC, Kewal Singh-Constable, Kamal Kumar-Constable, Balbir Singh-SGC, Harbhajan Singh-Constable, Rattan Singh-Head Constable, Abdul Hussain-Constable, Ghulam Nabi Malik- Naib Tehsildar, Ashok singh-Constable and Shamsher Singh Parihar- Inspector/SHO, the Public Prosecutor tendered in evidence Report No. 93/FSL/96 dated 27.02.1996 of Scientific Assistant, Forensic Science Laboratory, Jammu. The Trial Court discussed the prosecution evidence and the pleas raised on behalf of the appellant as to the violation of Sections 42 and 50 of the NDPSA and finally came to the conclusion that the prosecution had succeeded in proving that the appellant-accused was found in possession of 14.140 Kgs of Heroin powder. The Trial Court discussed the prosecution evidence and the pleas raised on behalf of the appellant as to the violation of Sections 42 and 50 of the NDPSA and finally came to the conclusion that the prosecution had succeeded in proving that the appellant-accused was found in possession of 14.140 Kgs of Heroin powder. It, accordingly, recorded conviction under Section 21 of NDPSA and sentenced the appellant to undergo rigorous imprisonment for a term of ten years and to a fine of rupees one lac. Submissions On behalf of appellant. 4. Sh. Devki Nandan, learned counsel for the appellant, has made only two submissions in support of the appeal. These submissions are; (i) the prosecution had failed to produce any admissible evidence on the basis whereof it could be said that appellant was found in possession of any quantity of Heroin powder; and (ii) Incriminating circumstances allegedly appearing in evidence against the appellant had not been put to him for his explanation. This omission was, thus, fatal to the prosecution case. On behalf of respondent 5. Mrs. Aruna Thakur, learned Govt. Advocate, referred to State of Punjab v. Naib Din reported as (2001) 8 Supreme Court Cases 578, to urge that omission to put formal evidence to the appellant would not affect his conviction. She further urged that as no objection had been raised by the appellant as to the admission of Report No. 93/FSL/96 dated 27.02.1996 of Scientific Assistant, FSL, Jammu, in evidence during the trial of the case, so he could not raise any such objection in appeal. 6. I have considered the submissions of learned counsel for the parties and gone through the records. 7. The prosecution has not led any evidence to prove that the powder seized from the possession of the appellant was Heroin powder except relying upon Report No. 93/FSL/96 dated 27.02.1996 of Scientific Assistant, FSL, Jammu, which certifies the seized powder as Heroin. The first question which falls for consideration is; Whether the report of the Scientific Assistant was admissible in evidence? And could this report be read in evidence in the absence of the proof of its contents by its maker? The first question which falls for consideration is; Whether the report of the Scientific Assistant was admissible in evidence? And could this report be read in evidence in the absence of the proof of its contents by its maker? Facts and conclusion emerging from the report of the Scientific Assistant could be considered by a Court only if the Scientific Assistant had appeared in the Court to support the opinion given by him regarding the analysis of the material alleged to have been sent to him by the police. Such is the position of law as to the proving of the contents of a document. Chapter IV of the Evidence Act Svt. 1977, in Section 60, provides that oral evidence must in all cases whatever, be direct, that is to say if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on these grounds. Report of the Scientific Assistant cannot, thus, be taken for consideration by a Court treating it to be an evidence in the case, UNLESS, however, such report was covered by Section 510 of the Code of Criminal Procedure, which prescribes Special Rules of Evidence making documents and opinions mentioned in the Section to be admissible in evidence. Section 510 of the Chapter XLI of the Code of Criminal Procedure dealing with Special Rules of Evidence, reads thus:- "510. Report of Chemical Examiner (1) Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government [or the Chief Inspector of Explosives or the Director of Finger Print Bureau or an Officer of the Mint], upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry trial or other proceedings under this Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the subject-matter of this report." In terms of Chapter XLI, only those documents which purport to be the report under the hand of any of the persons mentioned in Section 510 may be used as evidence in any inquiry trial or proceedings under the Code of Criminal Procedure. Scientific Assistant does not find its mention in the list of functionaries in Section 510 of the Code of Criminal Procedure, whose reports are admissible, as such, in evidence under Section 510 of the Code. 8. There is yet another aspect of the matter, which needs notice. The seized power appears to have been sent by the SDPO Akhnoor to the Director, FSL, Jammu vide his communication dated 17.01.1996 for chemical analysis. This communication has not been proved by the prosecution during the trial of the case. Jagdish Lal Sharma, SDPO Akhnoor, while appearing as prosecution witness too had not said anything about this document in his statement. Sending of samples to the Director, FSL, Jammu, therefore, has not been proved by the prosecution. 9. Report of Scientific Assistant can not, thus, in my opinion, be treated as evidence in the case because it has not been proved that the seized powder was duly sent by the police to the Scientific Assistant and that the report of Scientific Assistant was not admissible in evidence in the absence of his statement on oath before the Trial Court. Prosecution has, thus, failed to prove the requisites contemplated by Section 510 Cr.P.C., which were required to be so proved if the report of the expert proving the powder to be Heroin was to be admitted in evidence. 10. The first submission of learned counsel for the appellant that the prosecution had failed to prove that the seized material was "Heroin Powder", therefore, succeeds. 11. Judgment cited by Mrs. Aruna Thakur may not be of any help to the prosecution because the report of the Scientific Assistant, even if it were to be used against the appellant, was not an evidence of a formal character, which if not put to the accused would not vitiate the trial. The report of the Scientific Assistant was a significant piece of evidence, which if proved and put to the appellant would prove him to be in possession of Heroin powder. This evidence, thus, cannot be treated as an evidence of formal character as urged by Mrs. Thakur. The report of the Scientific Assistant was a significant piece of evidence, which if proved and put to the appellant would prove him to be in possession of Heroin powder. This evidence, thus, cannot be treated as an evidence of formal character as urged by Mrs. Thakur. I do not find any substance in the submission of the State counsel that plea regarding inadmissibility of the report of the Scientific Assistant in evidence could not be raised in appeal because appeal is a statutory remedy where the aggrieved party may project any lawful plea as to the sustainability of the impugned judgment. Plea raised by appellants counsel is purely legal in character and points out the error apparent on the face of the records. Such a plea can always be raised in the appeal. Omission to raise this plea during the trial, in my opinion, would not come in the way of the appellant to raise this legal plea which goes to the very root of the matter. 12. The second submission of learned counsel for the appellant does not need much discussion because learned counsel for the State did not dispute the fact that neither the report of the Scientific Assistant had been put to the accused nor had his explanation been sought as to the admission of this report in evidence while examining him under Section 342 Cr.P.C. Perusal of the statement of the accused recorded under Section 342 Cr.P.C., shows that the same has been recorded in a most casual and cursory manner. Incriminating circumstances appearing in evidence in a prosecution are required to be put separately to the accused for his explanation, is the mandate of Section 342 of the Code of Criminal Procedure. Learned Sessions Judge has committed an error in not following this mandate. Appellants counsel, in my opinion, is, thus, right in contending that serious prejudice has occasioned to the appellant who had not been apprised of the incriminating circumstances appearing in evidence against him. 13. The second plea raised by learned counsel for the appellant too, thus, succeeds and it is held that incriminating circumstances appearing in the prosecution evidence had not been put to the appellant in terms of Section 342 of the Code of Criminal Procedure. Conclusion 14. Prosecution, in my opinion, had failed to produce requisite evidence to prove that the powder seized from the appellant was Heroin powder. Conclusion 14. Prosecution, in my opinion, had failed to produce requisite evidence to prove that the powder seized from the appellant was Heroin powder. Conviction of the appellant cannot, thus, be justified on the basis of the deficient evidence produced by the prosecution in the case. Findings recorded by learned Sessions Judge are vitiated because of his reliance on the report of the Scientific Assistant, which was inadmissible in evidence. Conviction of the appellant is unwarranted because incriminating circumstances appearing in the prosecution evidence had not been put to the appellant for his explanation. 15. At one stage, during the process of dictating this judgment, I had considered the remand of the case for its retrial keeping in view the severity of the allegations against the appellant but this course, in my view, may not be in the interest of justice when the appellant has already suffered more than eight years of incarceration. 16. For all what has been said above, the judgment of the Trial Court is set aside and the prosecution case dismissed. Conviction recorded and sentence imposed on the appellant are set aside. The appellant is acquitted of the charge and ordered to be released from custody if not required in any other case. 17. This appeal is, accordingly, allowed.