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2008 DIGILAW 626 (PNJ)

Gaurjit Singh v. State Of Haryana

2008-03-04

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This appeal is directed against the conviction and sentence awarded to the appellant under Sections 17/18/61/85 of the Narcotic Drugs and Psychotropic Substances Act (for short the `Act) in case FIR No. 236 dated 15.10.1995 registered at Police Station Sadar Dabwali. 2. The appellant was charged for having in his possession 3 Kgs. of opium without any permit or licence. The case set up by the prosecution was that Sub Inspector Ami Chand alongwith Assistant Sub Inspector Devinder Singh were present for patrolling at Bus Stand of village Rampura Bishnoian on 15th October, 1995 when he met Megh Raj, Ex. Sarpanch. 3. It is the case of the prosecution that they were talking with each other when the accused carrying a bag in his right hand came from the side of Village Abadi and on seeing the police party he returned back and he was apprehended on suspicion. In inquiry the accused disclosed that he was carrying Ghee in the Peepi, but when opened and checked by the Investigating Officer, it was found to contain opium. Notice Ex. PC offering the accused whether he would like to call some Gazetted Officer of a Magistrate for his search, was given, but the said offer was declined by the accused-appellant through Ex. PC/1 on the plea that since the opium had already been recovered, there was no necessity to call any gazetted officer to the spot. The Investigating Officer after arranging the weighing scale and weights took out 20 grams of opium as sample and on weighing the remaining opium it was found to 2 Kg. 980 grams. The sample was put into a small plastic container while the remaining opium was kept in the same Peepi. It was sealed with the seal of `AC and taken into possession vide recovery memo Ex. PD. The seal after use was handed over to AS1 Devinder Kumar after retaining the specimen impression of the seal on (sic) piece of cloth. Thereafter ruqa Ex. PE was sent to the Police Station on the basis of which formal FIR Ex. PE/1 was recorded by MHC Rajpal Singh. The rough site plan was prepared and statements of the witnesses were recorded and the accused was arrested. Thereafter ruqa Ex. PE was sent to the Police Station on the basis of which formal FIR Ex. PE/1 was recorded by MHC Rajpal Singh. The rough site plan was prepared and statements of the witnesses were recorded and the accused was arrested. The case property was produced before the SI/SHO Jai Kishan, who after verifying the facts from the witnesses, affixed his seal `JK on both the parcels which were thereafter deposited with the MHC alongwith the sheet having sample impressions of seals. After completion of the investigation the accused was challaned. 4. The appellant claimed false implication due to enmity of the Police. 5. The prosecution examined official witnesses and independent witness Megh Raj, Ex. Sarpanch, was given up as having been won over. 6. On the basis of the evidence led by the prosecution, the learned trial Court came to the conclusion that the charge against the appellant stood proved and consequently convicted and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac under Section 18 of the NDPS Act. 7. Learned counsel for the appellant has challenged the conviction and sentence awarded to the appellant-accused primarily on the ground that Megh Raj, an independent witness, who was joined by the police party, was given up as won over. 8. The contention of the learned counsel for the appellant was that the independent was not examined because in case he was so examined he would not have supported the prosecution case. 9. Learned counsel for the appellant also contends that though it is the case of the prosecution that independent witness i.e. Megh Raj, Ex. Sarpanch was joined in the investigation, however, seal after use was not handed over to him, but it was given to Assistant Sub Inspector Devinder Kumar, who was a subordinate to the Investigating Officer. Therefore, the possibility of tampering with the contraband could not be ruled out as the seal remained in the custody of Police. 10. Learned counsel for the appellant contends that in the present case tampering with the contraband is clearly proved from the fact that though, at the time of arrest of the accused-appellant, sample of 20 gms. of opium was said to have been taken, which was sealed with the seal `AC, but the chemical analysis report shows that 24 gms. of opium was sent for testing. 11. of opium was said to have been taken, which was sealed with the seal `AC, but the chemical analysis report shows that 24 gms. of opium was sent for testing. 11. I find force in the contentions raised by the learned counsel for the appellant. The prosecution has failed to explain as to how the quantity of opium in the sample increased by 4 grams after sending the same testing in the chemical laboratory. 12. Learned counsel for the appellant has also challenged the conviction and sentence on the ground that in the instant case the appellant deserves to be entitled to benefit of doubt as the recovery of contraband was made on 15.10.1995 while the sample was sent for chemical examination on 25.10.1995 i.e. after delay of 10 days. 13. The next contention raised by the learned counsel for the appellant is that in the present case the defence counsel produced on record a certified copy of the FIR No. 235 dated 15.10.1995 which was said to have been registered by the same Investigating Officer at 11 AM. In the said FIR, the seal `JK was said to have been given to one Shri Nand Kishore. No explanation was forthcoming on record as how the seal again with the Investigating Officer as at the time of arrest of the appellant, the seal is said to have been handed over to ASI Devinder Kumar after use. Therefore, the prosecution case cannot be said to have been proved beyond reasonable doubt. 14. Learned counsel for the State, on the other hand, contends that heavy quantity of 3 Kgs. of opium cannot be planted on the accused-appellant. 15. The learned State Counsel further contends that merely non-examination of independent witness having been given up as won over, cannot be a ground to doubt the prosecution story as is sought to be contended by the learned counsel for the accused-appellant. 16. The contention of the learned State counsel is that once the official witnesses fully supported the prosecution case and their statements were not found discrepant on any material point, there is no reason, whatsoever, to discard their testimony and to interfere with the conviction and sentence awarded to the appellant. 17. 16. The contention of the learned State counsel is that once the official witnesses fully supported the prosecution case and their statements were not found discrepant on any material point, there is no reason, whatsoever, to discard their testimony and to interfere with the conviction and sentence awarded to the appellant. 17. Learned counsel for the State also contention that the contention of the learned counsel for the appellant that there has been tampering with the seal, cannot be looked into as no question was put to the witnesses when they were examined by the prosecution nor the seal was found to have been tampered with when produced in the Court. 18. Learned State counsel further contends that delay of sending sample for chemical examination cannot be ground for acquittal of an accused unless prejudice is shown to have been caused to him due to late despatch of sample especially when the sealed parcel and the sample were found to be intact. 19. On a consideration of the matter, I find force in the contentions raised by the learned counsel for the accused-appellant. 20. The prosecution has totally failed to explain as to how the sample of 20 gms. of opium got converted into 24 gms. This fact clearly shows that there has been tampering with the sample and the seal which was kept by the official witness after use must have been used to make out a case against the accused. In the instant case, when on the same day the seal was handed over to one Nand Kishore in another FIR which was registered just prior to the FIR registered against the accused, no explanation is forthcoming as to how the same seal again came to the Investigating Officer. Thus, it cannot be held that the prosecution has proved its case beyond reasonable doubt. Therefore, the accused-appellant deserves acquittal by giving the benefit of doubt. Consequently, this appeal is allowed. The conviction and sentence awarded to the appellant are ordered to be set aside. He is acquitted of the charge. Since the accused is in jail, release warrant be issued forthwith.