Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 1326 (PNJ)

Swaroop Singh v. State of Haryana

2013-10-01

DAYA CHAUDHARY

body2013
Judgment Daya Chaudhary, J. 1. The present appeal has been filed by appellant-Sawroop Singh against the judgment of conviction and order of sentence dated 01.03.2005 passed by Additional Sessions Judge, Fatehabad, whereby, he has been convicted and sentenced for offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-in-after referred to as 'the Act) and sentenced to undergo rigorous imprisonment for a period often years and to pay a fine of one lac and in case of default of non-payment of fine, he was directed to further undergo rigorous imprisonment for a period of one year. The said judgment dated 01.03.2005 is a subject matter of challenge in the present appeal. Briefly, the facts of the case are that on 15.06.1999, Sub Inspector Gurcharan Singh along with some other police officials was on official duty. A secret information was received that the appellant-Sawroop Singh was dealing in poppy straw at a large scale at Village Sardarewala and in case, a raid is conducted, the same can be recovered from him. An information Exhibit PD was reduced into writing and the same was sent to police station, Ratia for registration of case and F.I.R. was registered as Exhibit PG/1. The police, party reached the Village Sardarewala and after associating with one Surinder Singh, reached the house of Sawroop Singh. Appellant-Sawroop Singh made a disclosure statement Exhibit PD/1 and stated that he had kept eight gunny bags containing crushed poppy straw concealed in his room underneath wheal straw under lock and key. Thereafter, the Investigating Officer prepared memo Exhibit PE and an option was given to the accused to get the search made either in the presence of gazetted officer or a Magistrate. The accused gave his option to be searched in the presence of gazetted officer. Deputy Superintendent of Police-Swaran Singh reached the house of the accused after getting information. The room was opened in his presence and eight gunny bags containing poppy straw were found from there. On weighing, each gunny bag was found containing 40 kgs. of poppy straw. A sample of 100 grams was separated from each gunny bag and was converted into eight parcels which were sealed with the seal of 'SS. The remainder poppy straw was also scaled in the same gunny bags with seal of 'SS and the seal was handed over to witness Surinder Singh. of poppy straw. A sample of 100 grams was separated from each gunny bag and was converted into eight parcels which were sealed with the seal of 'SS. The remainder poppy straw was also scaled in the same gunny bags with seal of 'SS and the seal was handed over to witness Surinder Singh. The case property was taken into possession by the Investigating Officer and the accused was arrested. The case properly and the accused were brought by the Investigating Officer to the police station Ratia and were produced before Sub Inspector Ramesh Kumar, S.H.O. Police Station, Ratia. The case property was deposited with the Moharrir Head Constable and the samples were sent to Forensic Science Laboratory, Madhuban for analysis which were found to be poppy straw. After investigation, the challan was filed in the Court against the accused appellant and thereafter, the case was committed to the Court of Sessions for trial vide order dated 04.01.2000. The appellant was charge-sheeted for an offence punishable under Section 15 of the Act to which the accused pleaded not guilty and claimed trial. 2. The prosecution examined as many as six witnesses. Head Constable Tarsem Singh appeared as P.W.1, Ramesh Kumar-S.I. as P.W.2, Inder Singh-Constable as P.W.3, Sawaran Singh-D.S.P. as P.W.-4, Sukhbir Singh-HC as P.W.-5 and Gurcharan Singh-Investigating Officer as P.W.-6. Statement of accused under Section 313 Cr.P.C. was recorded, wherein, he has pleaded his innocence by stating that nothing was recovered from his possession and he has falsely been implicated. In defence evidence, the accused examined Nimbu Singh-Chowkidar as D.W.-1 and Constable Suraj Bhan as D.W.-2. 3. On appreciation of evidence and after hearing learned counsel for both the parties, the appellant was convicted for offence under Section 15 of the N.D.P.S. Act and was sentenced for a period of ten years with a default clause along with fine vide judgment and order of sentence dated 01/03-03-2005. The said judgment of conviction and order of sentence has been challenged by learned counsel for the appellant by raising various grounds. 4. Learned counsel for the appellant submits that the trial Court has not taken into consideration while passing the judgment of conviction that the provisions of Section 50 of the Act have not been followed. The said judgment of conviction and order of sentence has been challenged by learned counsel for the appellant by raising various grounds. 4. Learned counsel for the appellant submits that the trial Court has not taken into consideration while passing the judgment of conviction that the provisions of Section 50 of the Act have not been followed. No option was exercised by the appellant at the time of search and seizure but his signatures were obtained by the police which might have been used. The independent witness namely Surinder Singh was joined at the time of alleged recovery but he was not examined in the Court which doubts the prosecution story and hence, the judgment of conviction is liable to be set aside on this ground alone. Learned counsel also submits that the summons were issued to said Surinder Singh but as per report, no person in the name of Surinder Singh was residing in the Village Nangal and it was verified from the voter list also. It was also mentioned in the statement of D.W.-2 Constable Suraj Bhan that no person of such name was residing in the Village Nangal. Learned counsel also submits that it is a case of total non-compliance of Section 10(iv) of Criminal Procedure Code He further submits that the F.I.R. was registered on the basis of secret information but no such information was sent to the higher authorities which shows that there is a violation of mandatory provisions of Section 42 of the Act. It is also the argument of learned counsel for the appellant that the case is based upon the testimony of official witness as one independent witness was joined but he was not examined but the same has not been considered by the trial Court. Learned counsel also submits that only one sample was drawn from eight gunny bags, whereas, the sample should have been drawn from all bags. There was a delay of 14 days in sending the sample to Forensic Science Laboratory, Madhuban and the same has not bee:, explained. Even it has also not been proved that the house from where the recovery was made belongs to the accused. 5. There was a delay of 14 days in sending the sample to Forensic Science Laboratory, Madhuban and the same has not bee:, explained. Even it has also not been proved that the house from where the recovery was made belongs to the accused. 5. Learned counsel for the appellant has relied upon the judgments of this Court in cases Kaur Singh v. State of Punjab 2007 (2) RCR(Criminal) 630, Baldev Singh v. State of Punjab 2005 (1) RCR (Criminal) 823, Jaswinder Singh and another v. State of Punjab 2013 (1) RCR (Criminal) 257, Sukhdev Singh v. State of Haryana 2008(1) RCR (Criminal) 503, Raghbir Singh and another v. State of Punjab 2008(1) RCR (Criminal) 510 as well as judgment of Delhi High Court in case Peeraswami v. State of N.C.T. of Delhi 2007 (4) RCR (Criminal) 339 in support of his contention. 6. Learned State counsel submits that the judgment of trial Court is well reasoned and the allegations against the appellant have been proved beyond reasonable doubt and no interference is required by this Court. 7. Heard the arguments of learned counsel for the parties and have also perused the judgment of trial Court as well as the record of the case. 8. Admittedly, the raid was conducted on the basis of secret information and at the time of alleged recovery, one independent witness was joined but subsequently he was not examined in the Court. The story of the prosecution appears to be doubtful as the seal was handed over to said independent witness but he remained absent before the trial Court. It is also an admitted fact that there was a delay of 14 days in sending the sample to Forensic Science Laboratory and no explanation whatsoever has been given in this regard. Even from the prosecution story, it appears to be doubtful that the recovery was effected from the house of the appellant as neither the house number nor the presence of other family members was mentioned. Simply, it has been mentioned that on the basis of disclosure statement, the search was made and the recovery was effected from the room of the house of the appellant. There are discrepancies in the statements of the prosecution witnesses. Simply, it has been mentioned that on the basis of disclosure statement, the search was made and the recovery was effected from the room of the house of the appellant. There are discrepancies in the statements of the prosecution witnesses. It was the case of the prosecution that the raid was conducted outside of the house and in case, the recovery was effected from the house then some neighbourer of the appellant could have been joined as witness but the same was not done. Even a person who was joined as an independent witness was not examined in the Court. It has also come in the statement of D.W.-2 that no such person of the same name was residing in the Village. The trial Court has given a finding that in case, there was any lapse on the part of the Investigating Officer, it will not falsify the recovery which is of huge quantity. The delay in sending the sample has not been explained which is also fatal to the case of the prosecution. 9. The punishment under the provisions of the Act is stringent and, therefore, the safe-guards, have been provided which requires strict adherence and the failure to do so, causes sufficient doubt and the benefit of the same necessarily has to go to the accused persons. 10. In case of Raghbir Singh (supra), the samples were sent to chemical examiner after 18 days of seizure and the delay was not explained which was found to be fatal to the prosecution story and the accused was acquitted of the charge. 11. In case of Kaur Singh (supra), the independent witness was not examined and the samples were given to A.S.I. of Police and it was held that there were material flaws in the prosecution version and the prosecution case could not be proved beyond reasonable doubt and the accused was acquitted of the charge by giving the benefit of doubt. 12. In case of Jaswinder Singh and another (supra), it was held by this Court that as a matter of fair play, it has always been insisted that the property and sample after being sealed should be handed over to a third person. The chances of property, thus being tampered, could not be ruled out in such circumstances. 12. In case of Jaswinder Singh and another (supra), it was held by this Court that as a matter of fair play, it has always been insisted that the property and sample after being sealed should be handed over to a third person. The chances of property, thus being tampered, could not be ruled out in such circumstances. Moreover, the mandatory provisions of Section 52-A(2) of the Act have not been complied with as the sample was drawn only from one bag, whereas, the recovery was of eight bags which is also fatal to the prosecution case. 13. The Hon'ble Supreme Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 (1) RCR (Crl.) 611, in regard to noncompliance of Section 42 of the Act has held:- When the same decision considered the impact of non compliance of Section 50 it was held that "it would affect the prosecution case and vitiate the trial". But the Constitution Bench has settled the legal position concerning that aspect in State of Punjab v. Halbir Singh (supra), the relevant portion of which has been extracted by us earlier. We do not think that a different approach is warranted regarding non-compliance of Section 42 also. If that be so, the position must be the following: If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused. 14. In State of West Bengal and others v. Babu Chakraborty, 2004(4) R.C.R. (Criminal) 252 : AIR 2004 Supreme Court 4324, the Hon'ble Supreme Court again has gone into the aspect of violation of the provisions of Section 42 of the Act and came to conclude as under:- Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. This Court also held that failure to comply with S. 42(1), proviso to S. 42(1) and S. 42(2) would render the entire prosecution case suspect and cause prejudice to the accused. From the above discussion and also the settled law position, it can safely be inferred that although the alleged recovery effected in the present case is on the higher side, but in view of the material flaws in the prosecution case, I am of the view that the prosecution has failed to prove its case beyond reasonable doubt and it cannot be said that the prosecution version is not free from doubt for upholding the conviction and sentence as recorded by the trial Court. Accordingly, by extending the benefit of doubt, the appellant is acquitted of the charge and as such, the appeal is allowed. The impugned judgment of conviction and order of sentence passed by the trial Court are set aside. The bail/surety bonds, if any furnished, shall stand discharged. The appellant is already on bail as his sentence was suspended by this Court. Appeal allowed.