JUDGMENT Nirmal Yadav, J:- This appeal is directed against the judgment of conviction and order of sentence dated 16.9.1992 passed by Additional Session Judge, Chandigarh, whereby the appellant accused has been convicted under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short ‘the NDPS Act’) and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1, 00,000/- and in default of payment of fine to further undergo rigorous imprisonment for two years. 2. As per prosecution story on 8.9.1991, SI-Jarnail Singh, Inspector-Jaspal Singh and SI- Amarjit Singh along with others had gone to the turn of Karsan Industrial Area Ram Darbar Phase-II, Chandigarh in Government Vehicle No. CH-01G-9697. PW-Satnam Singh arrived at the spot as his scooter went out of order. He started talking to the police party. Meanwhile Hawaldar Singh, accused, holding a bag in his hand, came on foot from the side of Tribune Chowk. On seeing the policy party, he tried to retrace. On suspicion, the police part apprehended him. Inspector Jaspal Singh called DSP-Surjit Singh at the spot over telephone The DSP disclosed his identity to the accused and asked him whether he was willing to be searched. The accused accepted the notice and gave his consent. SI-Jarnail Singh conducted search of the bag which the accused was holding. It was found to contain charas, which weighed 5 kgs. Sample weighing 50 grams was taken from the recovered contraband. The remaining contraband (Exhibit P-2) and sample (Exhibit P-3) were separately sealed with the seal impression ‘JS’, and were taken into possession vide recovery memo Exhibit-PA, which was attested by PWs Satnam Singh, Surjit Singh and SI-Amarjit Singh. The seal after use was handed over to Satnam Singh. The Investigating Officer SI-Jarnail Singh conducted personal search of the accused and prepared Memo, Exhibit-P8. Thereafter, Ruqa, Exhibit PF was sent through Constable Narinder Kumar, PW for registration of case on the basis of which formal FIR, Exhibit PF/1 was recorded by SI-Maghi Ram. The Investigating Officer prepared rough site plan (Exhibit-PG), arrested the accused and recorded the statement of PWs at the spot. The accused along with case property was taken to Inspector/SHO J.S Cheema who, after interrogating the accused, affixed his seal on the sample and case property. The Investigating Officer deposited the case property with SHO-J.S. Cheema who further deposited the same with the Mohrar Malkhana.
The accused along with case property was taken to Inspector/SHO J.S Cheema who, after interrogating the accused, affixed his seal on the sample and case property. The Investigating Officer deposited the case property with SHO-J.S. Cheema who further deposited the same with the Mohrar Malkhana. As per report of the Chemical Examiner (Exhibit-PH), the contents of the sample were found to be that of charas. 3. Learned counsel for the appellant, at the outset, argued that prosecution has failed to prove the link evidence connecting the appellant with the seized contraband and sending of sample, alleged to have been drawn from the seized contraband, to the Chemical Examiner. The prosecution has not been able to prove that the seal of the sample remained untampered with throughout. It is argued that as per the statement of Investigating Officer, SI-Jarnaill Singh, the seal after its use was handed over to Satnam Singh, the alleged independent witness. Satnam Singh while appearing as PW1 stated that seal, which was handed over to him, remained in his custody for about a week. Learned counsel pointed out that recovery of the contraband is alleged to have been made on 8.9.1991. However, the Central Forensic Science Laboratory had examined the sample on 11.10.1991 and, therefore, there are chances of tampering with the sample as well as the seized contraband. On perusal of the documents and evidence on record, it is found that the sample was sent to the Central Forensic Science Laboratory on 12.9.1991 through Constable-Pargat Singh. It is also evident from the affidavit (Exhibit-PE) of Constable-Pargat Singh that the sample was handed over to him by MHC-Om Parkash on 12.9.1991. The seal impression ‘JS’ on the sample was intact and he handed over the same to the Central Forensic Science Laboratory on the same day. During the period the sample remained with him, it was not tampered with and seals were intact. Similarly, MHC-Om Parkash in his affidavit, Exhibit-PD stated that he had handed over sample with seals ‘JS’ intact on the parcel to Constable-Pargat Singh, who after depositing the sample had submitted the receipt of the Central Forensic Science Laboratory. Even the report of the Central Forensic Science Laboratory, Exhibit-PH supports the version given in the affidavits of Constable-Pargat Singh and MHC-Om Parkash.
Even the report of the Central Forensic Science Laboratory, Exhibit-PH supports the version given in the affidavits of Constable-Pargat Singh and MHC-Om Parkash. It is clearly stated that one cloth parcel sealed with two seals of ‘JS’ containing Exhibit-1 enclosed in the metallic tin was received on 12.9.1991 through Constable-Pargat Singh. The seals were found to be intact as per specimen. It is, therefore, apparent that sample with seals intact thereon has been sent on 12.9.1991 to the Chemical Examiner and the specimen seals were returned by Satnam Singh, PW1 a week after the recovery of the contraband from the accused. 4. Learned counsel further argued that there is no evidence on record to prove that recovery was made in the presence of the Gazetted Officer, i.e., DSP-Surjit Singh. The DSP did not affix his seal on the sample as well as on the remainder. Learned counsel pointed out that Inspector-Jaspal Singh was asked to call DSP-Surjit Singh at the spot, whereas, DSP-Surjit Singh stated that Inspector-Jaspal Singh was already present when he reached the place of recovery. Learned counsel argued that there is a discrepancy in the statements of Inspector-Jaspal Singh and DSP-Surjit Singh with regard to his presence on the spot. He pointed out that as per Inspector-Jaspal Singh and DSP-Surjit Singh with regard to his presence on the spot. He pointed out that as per Inspector-Jaspal Singh, he went to Police Station Sector 31 to call the DSP, whereas, DSP-Surjit Singh stated that Jaspal Singh gave him a telephonic call at his residence to reach the spot and he reached the spot half an hour thereafter and found Inspector-Jaspal Singh, SI-Jarnail Singh and SI-Amarjit Singh along with other members of the police party at the spot. To my mind, there is no discrepancy in the statements of the two witnesses. SI-Jarnail Singh, the Investigating Officer had asked Inspector-Jaspal Singh to call the DSP at the spot. The DSP reached the spot half an hour later and at that time SI-Jarnail Singh, Inspector-Jaspal Singh along with other members of the police party were present there. Even if there are minor discrepancies as to whether Inspector-Jaspal Singh had gone to call DSP-Surjit Singh to police station or he had made a telephonic call, the same do not at all affect the prosecution case in any manner.
Even if there are minor discrepancies as to whether Inspector-Jaspal Singh had gone to call DSP-Surjit Singh to police station or he had made a telephonic call, the same do not at all affect the prosecution case in any manner. Such minor discrepancies are bound to occur when the statements of the witnesses were recorded almost after a e year of the occurrence. 5. Learned counsel for the appellant further pointed out that statement of Satnam Singh, PW1 and SI-Jarnail Singh are contradictory with regard to presence of Satnam Singh at the place of occurrence. According to Satnam Singh, PW1 police party was already present when he reached the spot, whereas, SI-Jarnail Singh stated that Satnam Singh was already present when they reached the spot. The presence of Satnam Singh prior to reaching of f police or his arrival after the police reached the spot would not cause any dent in the prosecution case. It is only important as to whether Satnam Singh was present at the time of search and seizure of contraband from the accused. According to SI-Jarnail Singh, he was present at the spot at about 11.00 A M. He had arrived at the spot at about 10.15 A.M. and searced a few person when Satnam Singh arrived at the spot at about 11.15 A.M. Satnam Singh also state that he remained at the spot from 11.15 A.M. to 2.30 P.M. DSP-Surjit Singh stated that he reached the spot at about 11.30 A.M. or 11.45 A.M. and thereafter the search was conducted. In the cross-examination, SI-Jarnail Singh stated that Satnam Singh was talking to police party about 10 minutes prior to the arrival of the accused. In further cross-examination, he also stated that Satnam Singh was present and he came to know about his name at the spot. Thus, there is no doubt about the presence of Satnam Singh, PW at the time of search and seizure of contraband from the accused. 6. Learned counsel for the appellant further argued that only one sample was drawn, whereas, as per notification No. 4/89 dated 29.5.1989 two samples from the narcotic drugs and psychotropic substance seized shall be drawn in the presence of search witnesses and the person from whose possession the drug is recovered and a mention in this regard should be invariably made in the Panchnama.
It is pointed out that in the present case, only one sample has been drawn. It is true that as per the notification the Investigating Officer should have drawn two samples at the time of seizure of the contraband. However, learned defence counsel has not been able to show any prejudice having been caused to the accused on account of taking only one sample from the seized contraband. The safeguard of drawing two samples is prescribed, in case the accused wants to get the second sample analyzed from forensic science laboratory, the same could be sent on demand. However, in the present case there is nothing on record to show that accused had challenged the report of the forensic science laboratory or any prejudice having been caused to him on, account of non-drawl of two samples at the spot. Admittedly, the seals on the sample were found to be intact and the accused had not even made a request for sending another sample to the forensic science laboratory for analysis. A perusal of the statement of the accused under Section 313 Cr. PC. clearly shows that a specific question in this regard was put to the accused, which is reproduced below :- “Sample (Exhibit P-3) was sent to Central Forensic Science Laboratory for its analysis and as per report (Exhibit PH) received from the Chemical Examiner, the sample contained the contents of charas, what he had to say?” The reply of the accused was to the effect that he did not know. In case he was not satisfied with the analysis of the Chemical Examiner, he could clearly state that analysis was not correct and second sample be sent for examination. 7. Admittedly, the search of the accused was conducted in the presence of Gazetted Officer and an independent witness Satnam Singh. There is nothing on record to prove that Satnam Singh was biased or inimical towards the accused or had leanings towards the police party. The appellant took the defence that he along with one Amarjit Singh were confined in police lock-up on 4.9.1991 and thereafter he had been falsely implicated in the present case and Amarjit Singh in a theft case. However, there is nothing on record to prove that accused was illegally confined since 4.9.1991.
The appellant took the defence that he along with one Amarjit Singh were confined in police lock-up on 4.9.1991 and thereafter he had been falsely implicated in the present case and Amarjit Singh in a theft case. However, there is nothing on record to prove that accused was illegally confined since 4.9.1991. In case he had been illegally detained or falsely implicated in the present case, he could have made a representation to the police authority with regard to his false implication. Even no assertion in this regard has been made by the accused in his statement under Section 313 Cr. P.C. All the witnesses have duly supported the prosecution case and except the minor discrepancies as pointed by learned counsel for the appellant, which do not shatter the testimony of all the witnesses, there is nothing on record warranting interference by this Court in the present appeal. Accordingly, I find no merit in this appeal and the same is hereby dismissed. ————————-