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2011 DIGILAW 2181 (PNJ)

Raj Roop Singh v. State of Haryana

2011-12-08

M.JEYAPAUL

body2011
JUDGMENT Mr. M. Jeyapaul, J.: -The sole accused, Raj Roop Singh, was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as the “NDPS Act”). He was sentenced to undergo six months’ rigorous imprisonment and to pay a fine of Rs.2000/- and in default of payment of fine, to further undergo rigorous imprisonment for two months. He has challenged the judgment of conviction and sentence recorded by the trial Court. 2. The brief case of the prosecution is that PW-4 ASI Hawa Singh accompanied by PW-5 HC Kishan Singh and other police officials apprehended the accused near Water Works Sahuwala on 20.2.1999. Suspecting that he possessed contraband, he was given an option to go in for search either before a Magistrate or a gazetted officer. He gave consent, Exhibit PE/1 to make a search by PW-4 himself. PW-4 made search in the presence of PW-5 and other officials and recovered from his possession 310 grams of opium. 10 grams of opium was separately drawn from the bulk quantity as sample. The sample as well as bulk quantity were separately parcelled and sealed with the seal of PW-4. The seal after use was handed over by PW-4 to PW-5. The case property as well as the accused were produced by PW-4 before PW-3 SI Vijay Kakkar who was the Station House Officer of Police Station Baragudha. After PW-3 put his seal on the case property, he handed over the case property to PW-4 who in turn deposited the same with PW-1 MHC Rajbir Singh. The sample was sent to the Forensic Science Laboratory, Madhuban. The report of the Chemical Examiner would disclose that the sample was nothing but opium. 3. Trial Court having relied upon the evidence on record, in the background of Chemical Examiner’s report, recorded a judgment of conviction against the accused-appellant. 4. I have heard the elaborate submissions made by the learned counsel for the appellant as well as the learned Assistant Advocate General Haryana, on behalf of the State. 5. On thorough scanning of the entire evidence on record, I find that the prosecution has failed to prove beyond reasonable doubt that the accused was in conscious possession of 310 grams of opium. PW-1 MHC Rajbir Singh does not speak about the movement of the bulk quantity from the Malkhana to the court of the learned Judicial Magistrate concerned. 5. On thorough scanning of the entire evidence on record, I find that the prosecution has failed to prove beyond reasonable doubt that the accused was in conscious possession of 310 grams of opium. PW-1 MHC Rajbir Singh does not speak about the movement of the bulk quantity from the Malkhana to the court of the learned Judicial Magistrate concerned. PW-3 SHO Vijay Kakkar has simply stated that the case property was entrusted after putting his seal to PW-4 SI Hawa Singh. PW-4 does not whisper anything about the production of the case property before the Court concerned. The entire evidence on record would disclose that the case property had not seen the light of the day inasmuch as the same was not marked before the trial Court. The case property having not been marked before the trial Court and there being no explanation as to the fate of the case property alleged to have been recovered by PW-4, in my considered view, the case of the prosecution falls flat. 6. Neither PW-1 MHC Rajbir Singh nor PW-3 SHO Vijay Kakkar nor PW-4 SI Hawa Singh speak about the preparation of Form No. 29 wherein the sample impression of the seal would be normally affixed. No one speaks about the dispatching of Form No. 29 to the Chemical Laboratory. PW-4 has very casually deposed before the trial Court that he had not associated any independent witness as in cases of recovery of such like contraband, no person offers to join as an independent witness. PW-4 SI Hawa Singh was the Officer who arrested the accused on suspicion, made recovery of contraband from him and investigated the whole case. To top it all, he came out with a version that the suspected person reposed faith in him and therefore, he had not resorted to conduct the search of the accused in the presence of a gazetted officer or a Magistrate. Recovery allegedly effected by PW-4 is found to be highly doubtful, more especially in the absence of any independent witness thereto. 7. There was a delay of 18 days in dispatching the sample to the Chemical Examiner. No explanation is forthcoming as to why such a whopping delay had occurred in sending the sample to the Chemical Examiner. Recovery allegedly effected by PW-4 is found to be highly doubtful, more especially in the absence of any independent witness thereto. 7. There was a delay of 18 days in dispatching the sample to the Chemical Examiner. No explanation is forthcoming as to why such a whopping delay had occurred in sending the sample to the Chemical Examiner. The delay in sending the sample, coupled with the fact that seal remained only with PW-5 who was a police official serving under PW-4, further strengthens the doubt in the mind of the Court as to the genuineness of the sample drawn and sent for analysis. 8. In view of the above facts and circumstances, the present appeal is allowed and the judgment of conviction and sentence recorded by the trial Court against the accused-appellant is hereby set aside. He is acquitted of the charge under Section 18 of the NDPS Act. The bail bonds executed by him shall stand annulled. --------------------