Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 419 (PNJ)

Mohmed Salim v. State Of Haryana

2008-02-15

VINOD K.SHARMA

body2008
Judgment 1. This appeal has been directed against the conviction and sentence awarded by the learned Additional Sessions Judge, Bhiwani convicting the appellant under S. 15 of the Narcotic Drugs and Psychotropic Substances Act (for short the Act) in FIR No. 61 dated 24-1-1997 registered at Police Station GRP, Rewari. 2. The prosecution story in brief is that on 24-1-1997 P.W. 5 ASI Sumer Singh along with P.W. 4 HC Bahadur Singh, Constable Jai Karan and Constable Chandgi Ram was present at Railway Station Loharu Platform No. 3 for checking of train. At 18.15 hours, Train No. 205-Up came from the side of Jaipur and halted at Loharu Railway Station. Accused-Mohmed Salim after alighting from the train was going towards main gate having a gunny bag on his shoulder. He was apprehended in the presence of Deep Chand independent witness on the basis of suspicion. Since Sumer Singh ASI suspected some narcotic substance in the possession of the accused, he was served with a notice Ex.PO and was given option to give his search in the presence of Gazetted Officer or a Magistrate. Said notice Ex. PD was signed by the accused and attested by Deep Chand independent witness and HC Bahadur Singh. Vide reply Ex. PD/1 the accused did not opt to give his search in the presence of Gazetted Officer or a Magistrate and offered to give his search to the Investigating Officer. The reply given by the accused was attested by Deep Chand independent witness and HC Bahadur Singh. Thereafter, the Investigating Officer took search of the accused and gunny bag. Five bundles of clothes were recovered. Said five bundles of clothes were found containing poppy husk. On weighing 20 kilograms of poppy husk was found in all the bundles. Out of one bundle 100 grams poppy husk was separated for the purpose of sample and put in separate parcel and all five bundles were put in the same gunny bag. Sample and gunny bag were sealed with the seal bearing impression BS and were taken into possession by recovery memo Ex. PE which was attested by the P.W.S. Rukka Ex. PC was sent to the Police Station where on the basis of the same formal FIR Ex. PC/1 was recorded. Rough site plan Ex. PH was prepared with regard to the place of recovery with correct marginal notes. Accused was arrested. PE which was attested by the P.W.S. Rukka Ex. PC was sent to the Police Station where on the basis of the same formal FIR Ex. PC/1 was recorded. Rough site plan Ex. PH was prepared with regard to the place of recovery with correct marginal notes. Accused was arrested. During personal search of the accused railway ticket Ex. P.2 was recovered. Statements of the witnesses under S. 161, Cr. P.C. were recorded on the spot. Case property was deposited with the MHC or GRP Police Post, Loharu. 3. It is further the case of the prosecution that during the course of time said sample was sent to the office of Forensic Science Laboratory, Madhuban, Haryana, where on analysis of the same the Assistant Chemical Examiner found the sample that of Poppy Husk (Chura Post). Ex. PA report was prepared to this effect. After completion of necessary investigation report under S. 173, Cr. P.C. was prepared by Bagicha Singh SI the then SHO Police Station and the same was submitted to the Court for the trial of the accused-appellant. The case was thereafter committed to the Sessions Court. 4. Accused was charge-sheeted for commission of offence punishable under S. 15 of the Act to which the accused pleaded not guilty and claimed trial. 5. In support of the prosecution case Ranbir Singh Constable was examined as P.W. 1 who tendered his affidavit Ex. PA. Constable Ranbir Singh P.W. 2 also tendered in evidence his affidavit Ex. PB. ASI Ram Kishan appeared as P.W. 3 whereas HC Bahadur Singh was examined as P.W. 4. ASI Sumer Singh, the Investigating Officer and HC Rajinder Kumar were examined as P.W. 5 and P.W. 6, respectively. Bagicha Singh SI was also examined as P.W. 7 and Deep Chand independent witness was examined as P.W. 8. Report of the FSL Ex. PH was also tendered in evidence. 6. The accused denied the allegations levelled against him but did not lead any evidence in his defence. 7. The learned trial Court framed the following questions for determination in the present case : 1. As to whether there has been compliance of mandatory provisions of S. 50 of the N.D.P.S. Act? 2. As to whether the prosecution has succeeded in proving the recovery of 20 kgs. of poppy husk from the possession of the accused beyond reasonable doubt? 3. As to whether there has been compliance of mandatory provisions of S. 50 of the N.D.P.S. Act? 2. As to whether the prosecution has succeeded in proving the recovery of 20 kgs. of poppy husk from the possession of the accused beyond reasonable doubt? 3. As to whether the prosecution has succeeded in proving the link evidence? 4. As to whether the prosecution has succeeded in proving the report under S. 57 of the N.D.P.S. Act? If so, to that effect? 8. Learned trial Court on appreciation of evidence recorded found that there was compliance of the provisions of mandatory provisions of S. 50 of the Act. However, it may be mentioned that, requirement of compliance of S. 50 was not required in the present case as the recovery was from a bag being carried by the petitioner and was not subject to physical search. 9. On the second point learned trial Court has been pleased to hold that the prosecution has been able to prove the recovery of 20 kilograms of poppy husk from the possession of the accused beyond reasonable doubt. The Court also held that the prosecution has succeeded in proving link evidence as well as the report submitted under S. 57 of the Act. 10. In view of the fact that the questions formulated above were answered in favour of the prosecution, the appellant has been convicted under S. 15 of the Act and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1 lac and in default to undergo further R.I. for 2 years. 11. Learned counsel for the appellant has challenged the conviction and sentence of the appellant preliminary on the ground that in the present case search and seizure of contraband was effected by Sumer Singh ASI P.W. 5 and the case was also investigated by him. and therefore, the contention of the learned counsel for the appellant was that once investigation of the case was conducted by the Police Officer who effected the search and seizure of contraband the petitioner is entitled to acquittal on this ground. In sup-port of this contention learned counsel for the appellant placed reliance on 1996 (2) RCR 707 and AIR 1995 SC 2339 : (1995 Cri LJ 3988). 12. In sup-port of this contention learned counsel for the appellant placed reliance on 1996 (2) RCR 707 and AIR 1995 SC 2339 : (1995 Cri LJ 3988). 12. Learned counsel for the appellant also challenged the conviction on the ground that in this case recovery was effected on 24-1-1997 whereas samples were sent to the Laboratory on 5-2-1997 i.e. after a period of 12 days. The contention of the learned counsel for the appellant, therefore, is that delay of 12 days in sending the sample is fatal to the prosecution, in support of this contention he has placed reliance on the judgments in the case of Ramesh V/s. State of Haryana, 1998 (1) RCR 146. In this case, this Court was pleased to acquit the accused when sample was sent to Forensic Science Laboratory after a delay of 17 days. Similar view was taken in the case of Kubba Ram V/s. State of Haryana, 1995 (3) RCR 316, wherein unexplained delay of 15 days in sending sample for analysis was held to cause a dent in the prosecution case. Again this Court, in the case of Narain Singh V/s. State of Haryana, 1997 (1) RCR 414, was please to lay down that unexplained delay of 10 days causes a dent in the prosecution story. 13. Learned counsel for the appellant has also contended that there has been violation of mandatory provisions of S. 55 of the Act. However, there is no force in this contention of the learned counsel for the appellant. Section 55 is merely a directory and non-compliance thereof can be of no benefit to the appellant. 14. Learned counsel for the appellant further argued that in the present case though the poppy husk was alleged to be in different 5 bundles, however, prosecution took sample from one bundle only, whereas no other sample was taken or attested and, therefore, the learned trial Court could not have decided question No.2 in favour of the prosecution because it could not be said that possession of 20 kilograms of Poppy Husk was proved on record beyond reasonable doubt as the sample tested pertains to only 4 kilograms of Poppy Husk. 15. Learned counsel for the appellant further submits that in the present case the case set up by the prosecution is doubtful as FSL Form was not filled up at the spot. 15. Learned counsel for the appellant further submits that in the present case the case set up by the prosecution is doubtful as FSL Form was not filled up at the spot. In any case there is no evidence to this effect led by the prosecution. 16. Learned counsel for the appellant further submits that in the statement of the accused-appellant recorded under S. 31.3, Cr. P.C. no material question regarding conscious possession of 20 kilograms of Poppy Husk was put to him and, therefore, the appellant is entitled to acquittal on this ground alone. 17. I find force in the contentions raised by the learned counsel for the appellant. In the present case the Police Officer who has effected seizure and recovery was himself Investigating Officer. It is further proved on record that sample was taken only from one of the bundles and not from each bundle separately and, therefore, the prosecution has failed to connect the appellant with the recovery of 20 kilograms of Poppy Husk for which the appellant was charged. Thus, coupled with the fact that FSL Form was not filled at the spot and the sample was sent for chemical examination after a delay of 14 days create a doubt in the prosecution version. 18. Consequently, this appeal is accepted and by giving the benefit of doubt the accused-appellant is acquitted of the charge framed against him. The conviction and sentence awarded to the appellant is set aside.