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2014 DIGILAW 456 (PNJ)

Ram Sarup v. State of Haryana

2014-03-04

TEJINDER SINGH DHINDSA

body2014
Judgment Tejinder Singh Dhindsa, J. This order shall dispose of Crl. Appeal Nos. S-775-SB of 2000 and S-838-SB of 2000 as both these appeals are directed against the judgment dated 21.7.2000 passed by the learned Judge, Special Court, Karnal in terms of which the appellants in these appeals stand convicted for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') and have been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1 lac each and in default thereof, to undergo further rigorous imprisonment for three years. 2. As per prosecution version, a police party headed by ASI Rajbir Singh was on patrolling duty on 13.6.1995 and when they were going from village Dabarki to village Jammu Khalan, then a secret information was received that the appellants are habitual of dealing with poppyhusk and have gone towards Yamuna river in an Ambassador Car. Upon receiving secret information, ASI Rajbir Singh sent ruqa to the Police Station and arranged a raiding party by associating Shankar Dass i.e. a public witness. On reaching the spot in question and having waited for some time, an Ambassador car came from the side of Yamuna river and which was signalled to stop, in which all the four appellants were sitting. DSP Moti Lal arrived at the spot and upon his directions, boot of the car was searched and three bags containing poppyhusk were found. Two hundred gms. of poppyhusk by way of sample was taken from each bag and upon weighment, each bag was found containing 39 kgs. 800 gms. of poppyhusk. The samples and the bags were sealed after affixing seal 'RS' and were taken into possession, vide memo Exhibit PD, which was attested by DSP Moti Lal. The Investigating Officer thereafter produced all the four appellants along with case property and witnesses before SHO Narender Kumar who, in turn, upon verification of facts affixed his seal 'NK' on each parcel. After completion of investigation, the challan was presented. Appellants were chargesheeted for the offence punishable under Section 15 of the Act to which they pleaded not guilty and claimed trial. 3. The prosecution in support of its case examined PW1Ramdia, PW2 Jasbir Singh, PW3 Sher Singh, PW4 DSP Moti Lal, PW5 – Head Constable Gurdev Singh, PW6 – ASI Rajbir Singh, PW7SI Mahinder Kumar. Appellants were chargesheeted for the offence punishable under Section 15 of the Act to which they pleaded not guilty and claimed trial. 3. The prosecution in support of its case examined PW1Ramdia, PW2 Jasbir Singh, PW3 Sher Singh, PW4 DSP Moti Lal, PW5 – Head Constable Gurdev Singh, PW6 – ASI Rajbir Singh, PW7SI Mahinder Kumar. That apart, the prosecution also relied upon documents such as Exhibit PA (affidavit of Ramdia), Exhibit PB (affidavit of Jasbir), Exhibit PC (ruqa), Exhibit PC/1 (FIR No.243 dated 13.6.1995 under Section 15 of the Act, Police Station Sadar, Karnal), Exhibit PC/2 (endorsement on ruqa), Exhibit PD (seizure memo), Exhibit PE (recovery memo), Exhibit PF (site plan) and Exhibit PG (report of Forensic Science Laboratory). Statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure in which they pleaded false implication. However, no evidence was led by the defence. 4. The trial Court, after going through evidence adduced on record and believing the testimony of the prosecution witnesses, held that the prosecution had proved its case against the accused/appellants beyond the shadow of reasonable doubt and consequently, convicted and sentenced the appellants under Section 15 of the Act as indicated above. 5. Mr. Arvind Singh, Advocate and Mr. Mahabir Singh Sandhu, Advocate appearing for the appellants in these two connected appeals have argued that the mandatory provision of Section 50 of the Act has not been complied with and PW4 – DSP Moti Lal has admitted in the cross-examination that no notice under Section 50 of the Act was served upon the accused/appellants. In this regard, it has further been contended that compliance of Section 50 of the Act was essential even if the recovery was made from the Car and not from the person of the accused. Noncompliance of the provisions of Sections 41 and 42 of the Act has also been alleged. It was argued that the prosecution has failed to prove that after the police received secret information, the same was reduced into writing. Likewise, non-adherence of the safeguards provided under Section 52A and Section 57 of the Act has also been alleged. Noncompliance of the provisions of Sections 41 and 42 of the Act has also been alleged. It was argued that the prosecution has failed to prove that after the police received secret information, the same was reduced into writing. Likewise, non-adherence of the safeguards provided under Section 52A and Section 57 of the Act has also been alleged. Learned counsel for the appellants would further contend that the Investigating Officer has not joined any independent witness despite the alleged recovery having been effected from a public place and even the independent witness, namely, Shankar Dass is stated to have not been examined by the prosecution thereby denying the accused/appellants their valuable right to cross-examine such witness. It has also been contended that the appellants have been convicted solely on the basis of the statements of the official witnesses and even such statements were replete with contradictions and as such, were not trustworthy. Learned counsel would even bring to the notice of this Court the delay of 14 days in sending the sample in question for analysis to the Forensic Science Laboratory and would contend that the chance of tampering with the samples, as such, cannot be ruled out. 6. Per contra, learned State counsel would defend the impugned judgment of conviction by stating that compliance of Section 50 of the Act is relevant in the case of personal search of a person and the scope and ambit of such Section would not extend to the search of a vehicle or a container or a bag. Learned State counsel would contend that there was no requirement of compliance of Section 50 of the Act as the recovery of contraband was effected from the boot of the car. It is further argued that non-joining of independent witnesses would not vitiate the trial and there was no basis to discard the testimony of the official witnesses and there was no occasion to plant such a heavy recovery of 120 kgs. of poppyhusk upon the accused/appellants. Learned State counsel would argue that the judgment of conviction is based on due appreciation of cogent and convincing evidence and does not call for any interference. 7. Learned counsel for the parties have been heard at length and the evidence adduced on record before the trial Court has been minutely scanned. 8. of poppyhusk upon the accused/appellants. Learned State counsel would argue that the judgment of conviction is based on due appreciation of cogent and convincing evidence and does not call for any interference. 7. Learned counsel for the parties have been heard at length and the evidence adduced on record before the trial Court has been minutely scanned. 8. In Noor Aga v. State of Punjab, 2008(3) RCR (Crl.) 633, the Hon'ble Supreme Court has observed in the following terms: “The provisions of the Act and the punishment prescribed therein being in disputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs.2,00,000 as also the presumption of guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, i.e., proof beyond all reasonable conduct would more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights but insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values, it is necessary for giving effect to the concept of wider civilisation’. The Courts must always remind itself that is a we settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance thus, would be necessary to convict an accused.” 9. Having considered submissions advanced by learned counsel for the parties and having gone through the record, this Court is of the considered view that the trial Court has failed to take into consideration and has overlooked certain material infirmities in the case of the prosecution and the same are being delineated hereunder. 10. Having considered submissions advanced by learned counsel for the parties and having gone through the record, this Court is of the considered view that the trial Court has failed to take into consideration and has overlooked certain material infirmities in the case of the prosecution and the same are being delineated hereunder. 10. PW4 – DSP Moti Lal in his deposition has clearly stated that on 13.6.1995 when he reached at the spot i.e. on the bridge of drain near village Jammu Khalan where ASI Rajbir Singh along with other police officials was present and a car bearing No.CHB-6925 Ambassador was also standing there in which all four accused were present. Shankar Dass witness associated from public was also present. In his cross-examination, PW4 has stated that the place of recovery was a thoroughfare. Likewise, PW6 ASI Rajbir Singh has deposed that on 13.6.1995 upon receiving secret information regarding four persons having gone to UP State to smuggle poppyhusk in a car into State of Haryana and after having reduced such information in writing and having sent the same to SHO of Police Station concerned, the police party reached the spot and a witness, namely, Shankar Dass from the public was associated. Even PW5 – Head Constable Gurdev Singh has deposed that he was part of the raiding party along with ASI Rajbir Singh, Constable Ashok Kumar and Constable Shri Krishan and at the time of making naka bandi on the bridge of the drain, public witness Shankar Dass had been joined in the raiding party. Curiously in the present case upon three gunny bags having been recovered from the boot of the car each containing 40 kgs. of poppyhusk and samples having been drawn and seal 'RS' having been fixed, such seal was handed over to Head Constable Gurdev Singh instead of Shankar Dass, a witness form the public having been present. The deposition of PW4 DSP Moti Lal to such effect was categoric and the relevant extract is as follows: “The ASI removed the gunny bags from the diggi on my directions and searched the same in my presence and on search, it was found that the same was containing poppy straw. Each gunny bag was containing 40kgs. Of poppy straw i.e. total poppy husk recovered from the diggi of the car was 120kgs., 200 gm. Each gunny bag was containing 40kgs. Of poppy straw i.e. total poppy husk recovered from the diggi of the car was 120kgs., 200 gm. Each was separated from each of the gunny bag as sample and three separate parcels were prepared and sealed and the residue poppy straw remained in the same gunny bag and the same were also sealed with the seal “RS” and the seal after use was handed over to Gurdev Singh HC. Again said Shankar Dass, a witness from public was also present there at the time of search when I reached there.” 11. Head Constable Gurdev Singh has also deposed in the same lines to the following effect: “The ASI was talking to Shankar Dass when in the meantime a car bearing No. CHB-6925 Ambassador came from the side of Mustafabad. The car was stopped at the spot. A the four accused present in the Court were present in the car. In the meantime Moti Lal, DSP also reached there. On the direction of the DSP, the ASI checked the car and from the diggi of the car, three gunny bags containing poppy straw were recovered. 200 grams each were separated from each gunny bag. The remaining bags were containing 39.800 kgs. of poppy straw each. A the three samples were sealed with seal of 'RS'. Seal after use was handed over tome.” 12. Deposition of PW6 – Rajbir Singh ASI as regards handing over seal to Head Constable Gurdev Singh is extracted as under: “A the three sample parcels and the gunny bags containing residue poppy straw were sealed with the seal of 'RS' and the seal after use wash handed over to HC Gurdev Singh and the same were taken into possession vide seizure memo, Exhibit PD which was signed by Shankar Dass and Head Constable Gurdev Singh and was also attested by the DSP.” 13. In Resham Singh v. State of Punjab, 1996(3) RCR(Criminal) 629, this Court had held that as a matter of fair play it has always been insisted that the property and sample after being sealed such seal should be handed over to a third person. This is to ensure that no tampering is done to the said property. In Resham Singh v. State of Punjab, 1996(3) RCR(Criminal) 629, this Court had held that as a matter of fair play it has always been insisted that the property and sample after being sealed such seal should be handed over to a third person. This is to ensure that no tampering is done to the said property. In the facts of that case, the evidence revealed that the seal had been handed over to ASI Basant Singh and, accordingly, it had been held that the very sanctity of handing over the seal to a third person in such process was put an end to and a view was taken that chances of property having been tampered could not be ruled out and the appellant therein was entitled to the benefit of doubt. 14. In Bhola Singh v. State of Punjab, 2005(2) RCR (Crl.) 520, this Court held that after sealing the sample parcel of the contraband as well as remaining contraband, the seal should be handed over to the independent person so that till the case property is deposited to the Forensic Science Laboratory, the same should not be available to the prosecuting agency. Such view was even approved by the Division Bench of this Court in Didar Singh @ Dara v. State of Punjab, 2010(3) RCR (Criminal) 337 and it was held that handing over of the seal of the sample parcel of contraband as well as remaining contraband to an independent person would be a necessary safeguard against the possibility of the sealed contraband and the sample being tampered with by the police official. 15. Reverting back to the facts of the present case that inspite of witness from the public, namely, Shankar Dass having been duly associated and having been present at the spot, still the seal of the sample parcel of the contraband as well as remaining contraband was handed over to PW5 Head Constable Gurdev Singh. 16. Perusal of the impugned judgment would reveal that the trial Court has completely misread the testimony of PW4 – DSP Moti Lal and has observed that the seal was handed over to Shankar Dass public witness. Such finding is totally perverse. 17. The recovery in the present case was stated to have been made on 13.6.1995. 16. Perusal of the impugned judgment would reveal that the trial Court has completely misread the testimony of PW4 – DSP Moti Lal and has observed that the seal was handed over to Shankar Dass public witness. Such finding is totally perverse. 17. The recovery in the present case was stated to have been made on 13.6.1995. However, as per affidavit, Exhibit PA, tendered by PW1 Ramdia, the sealed parcel of contraband was delivered to Forensic Science Laboratory, Madhuban only on 27.6.1995 i.e. after a delay of 14 days. No explanation has been forthcoming to explain such delay. Under similar circumstances of delay in sending the sample to the Forensic Science Laboratory, this Court in Rajesh Kumar v. the State of Haryana, 2008(4) AICLR 174 held that the possibility of tampering with the sample could not be ruled out and as such, the case of the prosecution becomes doubtful and had observed as follows: “The Counsel for the appellant, at the very outset, contended that though the alleged recovery was effected on 25.12.1995, yet the sample was sent to the office of the Forensic Science Laboratory, Madhuban on 16.1.1996. He further submitted that no explanation was furnished by the prosecution witnesses, as to why, the sample was sent to the office of the Forensic Science Laboratory Haryana, Madhuban, after a delay of 22/23 days. He further submitted that, on account of delay in sending the sample, to the office of the Forensic Science Laboratory Haryana, Madhuban, the possibility of tampering with the same, could not be ruled out. No explanation, what so ever, was furnished, as to why, the sample was not sent to the office of the Forensic Science Laboratory, for about a period of 22/23 days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. In Gian Singh Vs. State of Punjab 2006(2) RCR (Criminal) 611, there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. Under these circumstances, it was held that the possibility of tampering with the sample, could not be ruled out, and the link evidence was incomplete. Ultimately, the appellant was acquitted, in that case. On account of this infirmity, case of the prosecution became doubtful.” 18. Under these circumstances, it was held that the possibility of tampering with the sample, could not be ruled out, and the link evidence was incomplete. Ultimately, the appellant was acquitted, in that case. On account of this infirmity, case of the prosecution became doubtful.” 18. Further, it would be apposite to take note of the fact that prosecution gave up independent witness PW Shankar Dass during the course of trial as having been won over by the accused. Merely stating that a witness has sided with the accused without furnishing any valid basis cannot be construed as a sufficient circumstance for giving up a witness, as won over. In the facts and circumstances of the present case, it appears that Shankar Dass, independent witness was not examined by the prosecution deliberately lest he would tell the truth and which may cast a cloud of doubt in the prosecution story. Shankar Dass having not been produced for examination during the course of trial has resulted in a prejudice to the defence of the accused-appellants. 19. That apart, there are certain gaps in the prosecution case which have been overlooked by the trial Court. Arminder Singh was stated to be the registered owner of Ambassador car No.CHB-6925 i.e. the vehicle used as carrier for the contraband in the present case and the vehicle had been released on superdari to him. Inspite of warrants of arrest having been issued against Arminder Singh, his presence was not secured. The police had failed to adduce any evidence to show the ownership of the poppyhusk. Neither was the owner of the consignment identified and nor were any efforts made to find out the origin of the consignment and also its destination. The owner of the car was in the nature of a vital link evidence and which is missing in this case. 20. Reverting back to the cross-examination of PW4 i.e. DSP Moti Lal, he stated that when he reached the spot of recovery at about 2.30 p.m. on 13.6.1995, a big weighing scale generally used at an Atta Chakki had already been brought and such weighing scale was hanging with the help of a wooden pole. The gunny bags containing the contraband were weighed on such weighing scale. The gunny bags containing the contraband were weighed on such weighing scale. PW5 – Head Constable Gurdev Singh in his cross-examination has stated that the big weighing scale was brought by Constable Ashok Kumar in a buffalo cart, but he could not tell the name of the person who was the owner of the buffalo cart. PW5 further deposed that the statement of the owner of the buffalo cart was not recorded by the Investigating Officer and he was not even joined in the investigation. PW6 – ASI Rajbir Singh has stated in his cross-examination that the police raiding party were on two motorcycles and the weighing scale was brought in a buffalo cart. PW6 further admitted in the cross-examination that the buffalo cart was being driven by some person from the public and that he cannot tell his name and he was not even joined in the investigation. The trial Court record further reveals that Ashok Kumar Constable, who was stated to have got the buffalo cart, had been given up by the prosecution as 'unnecessary' and he was not even examined. The availability of a big weighing scale used by the police party who otherwise were on two motorcycles on the plea that the same was brought in a bullock cart without associating the owner of the bullock cart as also the member of the raiding party i.e. Constable Ashok Kumar, during the course of trial, casts a serious doubt on the prosecution story. 21. A perusal of the charge framed against the accused appellants on 8.4.1996 reveals that the word 'conscious' is missing. Similarly, in the statements of the accused recorded under Section 313 of the Code of Criminal Procedure, the word 'conscious' is missing. The prosecution was duty bound not only to prove that the accused were in possession of the contraband but to specifically prove that the accused were in “conscious possession” of the contraband. The accused were not put to question as to whether they were in conscious possession of the poppyhusk. Such omission has also resulted to the prejudice of the accused. 22. The afore noticed infirmities taken individually may not vitiate the trial as such but viewed cumulatively have certainly caused prejudice to the accused and resultantly, render the recovery of the illicit article suspect and vitiate the conviction and the sentence of the accused-appellants. 23. Such omission has also resulted to the prejudice of the accused. 22. The afore noticed infirmities taken individually may not vitiate the trial as such but viewed cumulatively have certainly caused prejudice to the accused and resultantly, render the recovery of the illicit article suspect and vitiate the conviction and the sentence of the accused-appellants. 23. There is yet another aspect in the present case as regards noncompliance of the provisions of Section 50 of the Act. The trial Court while forming a view that compliance of Section 50 of the Act was not required, has held that the recovery of the contraband had not been effected from the personal search of the accused but from the checking of the boot of the car and it was a chance recovery. In the considered view of this Court, such reasoning adopted by the trial Court is erroneous. In the first instance, the recovery, in the facts and circumstances of the present case, cannot be termed as a chance recovery. The prosecution version itself was that secret information was received by the police party headed by ASI Rajbir Singh on 13.6.1995 against the accused of dealing with poppyhusk and having gone towards the spot of recovery in an Ambassador car. It was on the basis of such information that ASI Rajbir Singh had sent a ruqa to the Police Station and had constituted a raiding party by associating independent witness, namely, Shankar Dass. Even though the recovery effected of the contraband was from the boot of the car and not from the person of the accused, yet in the peculiar facts of the present case, provisions of Section 50 of the Act were required to be complied with. 24. In State of Punjab v. Balbir Singh, 1994(1) RCR (Criminal) 736, it had been observed in para 25(1) as under:- “25. The questions considered above arise frequently before the trial courts. 24. In State of Punjab v. Balbir Singh, 1994(1) RCR (Criminal) 736, it had been observed in para 25(1) as under:- “25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.” 25. The principle culled out by the Hon'ble Supreme Court was clearly to the effect that in a situation where a Police Officer in the normal course of investigation of an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and in the course of such investigation when a search is completed and in that process happens to stumble upon possession of a narcotic drug or psychotropic substances, the question of invoking Section 50 of the Act would not arise. Such principle would clearly not apply in the present case. Reference may be made to a recent decision of Hon'ble Supreme Court of India in Gurjant Singh @ Janta v. State of Punjab, 2013(4) R.C.R. (Criminal) 874 wherein recovery of the contraband was effected from gunny bags placed in a tractor-trolly and not from the person of the driver driving the tractor. While adverting to the principle laid down in para 25(1) in Balbir Singh's case (supra), the Hon'ble Apex Court held as follows: “If the ratio of the said decision had been properly understood, the flaw committed by the trial Court and as confirmed by the High Court in our considered opinion would not have arisen. While adverting to the principle laid down in para 25(1) in Balbir Singh's case (supra), the Hon'ble Apex Court held as follows: “If the ratio of the said decision had been properly understood, the flaw committed by the trial Court and as confirmed by the High Court in our considered opinion would not have arisen. The distinct feature in the case on hand was that on the date of occurrence i.e. on 04.04.1996 at 00.15 AM, the police party headed by P.W.6, accosted a tractor trolley coming from the side of village Ugrahan, which was stopped by him and that when the driver after stopping the tractor tried to escape was apprehended by the police team. The most crucial aspect of the case was that P.W.6 noticed three gunny bags lying in the tractor of the appellant and felt that some in criminating substance was kept in those gunny bags. P.W.6, therefore, took the view that before effecting search of the gunny bags, the necessity of affording an opportunity to the appellant to conduct the search in the presence of a Gazetted officer or a Magistrate was imperative. In other words, after noticing three gunny bags, P.W.6, as an investigating officer, felt the need to invoke the provisions of Section 50 and thereby provide an opportunity to the appellant for holding any search in the presence of a Gazetted officer or a Magistrate. When once P.W.6 could assimilate the said legal requirement as stipulated under Section 50 of the NDPS Act, we fail to understand as to how principle No.1 in paragraph 25 of the decision reported in Balbir Singh's (supra) could be applied. Unfortunately, the trial Court failed to understand the said principle setout in Balbir Singh's (supra) in the proper perspective while holding that neither Section 42 nor Section 50 was attracted to the facts of this case.” 26. Noncompliance of the provisions of Section 50 of the Act in the facts of the present case would be fatal for the prosecution. The contention raised by the learned counsel for the appellants as regards noncompliance of provisions of Section 42 of the Act is, however, found to be without force. Noncompliance of the provisions of Section 50 of the Act in the facts of the present case would be fatal for the prosecution. The contention raised by the learned counsel for the appellants as regards noncompliance of provisions of Section 42 of the Act is, however, found to be without force. From the deposition of the statement of ASI Rajbir Singh, Investigating Officer and Head Constable Gurdev Singh, it becomes apparent that the police party was on patrolling duty on 13.6.1995 and upon receiving secret information, ASI Rajbir Singh had sent ruqa, Exhibit PC, through Constable Kishan Chand for registration of the case. As such, substantial compliance of Section 42 of the Act had been made. 27. In view of the aforesaid discussion, I find that the prosecution has failed to prove the case against the appellants beyond the shadow of reasonable doubt. The appeals are, accordingly, allowed and the impugned judgment of conviction and order of sentence passed by the Judge, Special Court, Karnal are set aside. The appellants are acquitted of the charge. Since the appellants are already on bail, their bail bonds stand discharged. 28. Appeals allowed.