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2019 DIGILAW 1356 (PNJ)

Jagdeep Singh @ Jaggi v. State Of Punjab

2019-05-04

ARVIND SINGH SANGWAN

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JUDGMENT Arvind Singh Sangwan, J. - This appeal is taken up in the category of the cases which are listed on Saturdays where the convict is in judicial custody and is being represented by a Legal Aid Counsel. As per the custody certificate filed in the Court, the appellant has undergone 02 years and 03 months of custody and he is not involved in any other similar case. 2. Challenge in this appeal is to the judgment of conviction dated 10.1.2017 vide which the appellant was held guilty of offence punishable under Section 22-C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act') as well as the order of sentence dated 10.1.2017, vide which the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. 3. Brief facts of the case are that on 14.12.2013, ASI Bhupinder Pal Singh, along with police officials, was going from Adampur to Arjanwal Mahmadpur side in connection with patrol duty. When the police party was at some distance from the bridge situated in the area of village Arjanwal, a young clean shaven person, on seeing the police party, turned towards back side on his motorcycle. On the basis of suspicion, he was apprehended. On enquiry, he disclosed his name Jagdeep Singh @ Jaggi. A polythene carry-bag containing some article was tied on the left side of the handle of his motorcycle. ASI Bhupinder after introducing himself, raised a suspicion that he might be carrying narcotic contraband and apprised him about his legal right to get the search of the polythene carry-bag conducted in the presence of a Magistrate or Gazetted Officer or himself. Accused reposed faith in ASI Bhupinder Pal Singh. A consent memo in this regard was prepared and the accused appended his signatures. On search of the said polythene carry bag, 40 vials of Avil (R) 10 ml. each and 40 injections of norgesic 2 ml. each were recovered and sealed in two separate parcels with his seal bearing impression 'BS'. Form M-29 was prepared at the spot and sample seal impression was affixed on Form M-29 and the same was taken into possession vide separate recovery memo in the presence of the witnesses. each and 40 injections of norgesic 2 ml. each were recovered and sealed in two separate parcels with his seal bearing impression 'BS'. Form M-29 was prepared at the spot and sample seal impression was affixed on Form M-29 and the same was taken into possession vide separate recovery memo in the presence of the witnesses. Ruqa was prepared and sent to the Police Station through PHG Naranjan Pal, on the basis of which FIR was registered against the accused. Accused was arrested and rought site plan of the place of recovery was prepared, statements of the witnesses under Section 161 Cr.P.C. were recorded. Accused was produced before SHO/Inspector Gurmeet Singh, who after checking both the parcels, sealed the same with his seal bearing impression 'GS' and deposited the same with MHC. On 15.12.2013, both the parcels and the accused were produced before the Illaqua Magisrate, who after verifying the said parcels made his endorsement 'seen' underneath his signatures and returned the same to Investigating who deposited the same with MHC in Police Malkhana. The accused was sent to the judicial custody. During investigation, both the parcels were sent to the office of the Chemical Examiners, Kharar for chemical analysis. 4. Counsel for the appellant has argued that as per the statement of PW1 HC Naranjan Singh, he has received the sample parcels after a period of 06 days i.e. on 20.12.2013, for depositing the same with the Chemical Examiner and there is no explanation of delay of 06 days. It is further submitted that this witness has admitted in the cross-examination that though the copies of the relevant entries of Register No.18 and Roznamcha register were handed over to the Investigating Officer, while recording his statement, however, the same are not part of the judicial file. 5. Counsel for the appellant has further submitted that PW2 Constable Kulwinder Singh, in the cross-examination has admitted that there is no mention in his affidavit Ex.PW2/A that Form-M-29 was taken by him to Forensic Science Laboratory (for short 'FSL') along with the parcels and, therefore, the link evidence is missing. 5. Counsel for the appellant has further submitted that PW2 Constable Kulwinder Singh, in the cross-examination has admitted that there is no mention in his affidavit Ex.PW2/A that Form-M-29 was taken by him to Forensic Science Laboratory (for short 'FSL') along with the parcels and, therefore, the link evidence is missing. It is also submitted that as per the statement of the Investigating Officer/ASI Bhupinder Pal Singh, it has come that when the consent memo Ex.PB was recorded, it finds mention that the appellant/accused has a right to be searched before him (Investigating Officer) or a (Magistrate) or a (Gazetted Officer), which is not the requirement of Section 50 of the NDPS Act and he relied upon the judgment of the Hon'ble Supreme Court State of Rajasthan Vs. Parmanand, (2014) 5 SCC 345 , wherein it is held that in such circumstances, it cannot be said that the accused was given the right of search in a legal manner. 6. The learned counsel also relied upon judgment of Hon'ble Division Bench of this Court in CRA-D-452-DB of 2017, Gurwinder Singh Vs. State of Punjab, where in relying upon Parmanand's case (supra), conviction was set aside holding that Investigating Officer cannot give third option. 7. Counsel for the appellant has further argued that as per the recovery memo, 40 injections of Avil of 10 ml. each and 40 injections of norgesic of 02 ml. each were recovered and since Avil is not a narcotic substance, the charge was framed against the appellant for keeping in possession of norgesic injections of 02 ml. only, as per the FSL report. Counsel for the appellant has referred to the FSL report Ex.PK where in the description, it is mentioned "Clear Colourless Liquid filled in an amber coloured glass vial, labelled as Pheniramine maleate, Avil" with average volume and in second description it is "clear colourless liquid filled in colourless glass ampule having blue ring on the neck". It is further argued that as per the FSL report, Buprenorphine Hydrocholoride were found in the colourless glass ampule and there is no reference in description that it bear label of "Norgesic" and, therefore, it is suspicious that the identity of the case property is properly proved. It is further argued that as per the FSL report, Buprenorphine Hydrocholoride were found in the colourless glass ampule and there is no reference in description that it bear label of "Norgesic" and, therefore, it is suspicious that the identity of the case property is properly proved. It is also argued that the case property is otherwise doubtful as PW2 has clearly stated that he has not handed over the Form M-29 along with the sample parcel to FSL to tally the seals on the sample parcels with the sample seals on Form M-29. 8. Counsel for the appellant has referred to the report of the Chemical Examiner wherein it is only stated that the sample seal impression were found intact with the seal of 'BS' and 'GS' without there being any reference of tallying it with the standard sample seals on Form M-29. 9. Counsel for the appellant/accused has laid much stress on the statement of PW2 wherein it is specifically stated that it not mentioned in his affidavit that Form M-29 was deposited along with the sample parcels. It is also submitted that identification of the property, even on another count is not proved as when the accused along with the case property was produced before the Duty Magistrate on 15.12.2013, the following order was passed :- "Above parcels of case property and samples are compared with inventory report. Seals of the case property as well as of the sample are seen and found intact. The sample in case property seen and singed by the undersigned. Case property and sample are returned for depositing in the Malkhana. Sd/- JMIC/Duty Magistrate Jalandhar/15.12.2013" 10. Counsel for the appellant has further argued that the Magistrate nowhere mentioned in this order that seal 'BS' and 'GS' were there on the sample parcels/the case property or that he has tallied both these seals with the sample seal chit/Form M-29, therefore, the identification of the same is not proved. It is also submitted that it not proved that 40 Norgesic injections of 2 ml. were recovered from the appellant for which a specific charge was framed against the appellant. 11. It is also submitted that it not proved that 40 Norgesic injections of 2 ml. were recovered from the appellant for which a specific charge was framed against the appellant. 11. Counsel for the appellant has also argued that though PW3 ASI Bhupinder Pal Singh/IO and PW5 HC Raj Kumar, the witness of the recovery, are categoric that 40 injections of Avil and 40 injections of norgesic were recovered and converted into parcels, the FSL report nowhere finds mention that norgesic injections (2 ml.) were received and rather in the FSL report, the description say that it is clear colourless liquid filled in colourless glass ampule having blue ring on the neck i.e. there is no description of "Norgesic" mentioned in the same. 12. It is further submitted that a perusal of the ruqa Ex.PD show that it was sent after the recovery of 40 avil injections and 40 norgesic 2 ml. injections were recovered and in the ruqa/the memo, complete details of the investigation carried out upto the stage of effecting the recovery is described. This memo was sent at 5.15 PM and was received at the Police Station at 6.30 PM when the FIR No.214 dated 14.12.2013 was registered. It is also submitted that in the recovery memo Ex.PC, FIR number is clearly mentioned which show that the appellant was falsely implicated in the case as there is no explanation as to how prior to registration of the FIR, the FIR number is mentioned in the recovery memo. It is further argued that even in the documents Exs.PF, PG, PH, FIR number is mentioned which again raises a doubt about the investigation. 13. Counsel for the appellant has also relied upon the judgment Ajay Malik and others Vs. State of U.T., Chandigarh, (2009) 3 RCR(Cri) 649 , wherein it is held that when the prosecution has failed to explain as to how the FIR number are mentioned in the documents which are prepared prior to registration of the FIR, it raises a suspicion about the investigation carried out by the investigating agency. 14. Counsel for the appellant has further argued that a perusal of Form M-29 though show that the original signature and seal of SHO, Police Station, Adampur dated 14.12.2013 is there, however, as per PW3/Investigating Officer it is stated that it also bears his signatures which is factually incorrect. 14. Counsel for the appellant has further argued that a perusal of Form M-29 though show that the original signature and seal of SHO, Police Station, Adampur dated 14.12.2013 is there, however, as per PW3/Investigating Officer it is stated that it also bears his signatures which is factually incorrect. It is, thus, argued that it is apparent that this form was never prepared at the spot and was prepared subsequently as it also finds mention complete details of FIR No.214. It is further argued that there is material discrepancies in the statement of PW3, the Investigating Officer and PW5 HC Raj Kumar, the witness of recovery about the time and the manner in which the recovery has been effected. Counsel for the appellant has lastly submitted that in the statement recorded under Section 313 Cr.P.C., the appellant has pleaded that he has been falsely implicated by the Investigating Officer on account of personal grudge against him which is not dealt with by the trial Court. 15. Learned counsel for the State, however, on reply has submitted that the identity of the case property is duly proved as it was sealed by the Investigating Officer PW3 and was counter sealed by the SHO/PW6 Inspector Gurmeet Singh. It is further argued that as per the report of FSL, it was found positive containing Buprenorphine Hydrocholoride and, therefore, the trial Court has rightly convicted the appellant. 16. After hearing the counsel for the parties, I find merit in the present appeal for the following reasons:- (i) The statement of PW3 ASI Bhupinder Pal Singh do not inspire confidence as, the manner in which the investigation is conducted makes the prosecution case highly doubtful. Firstly, in the consent memo Ex.PB, it is recorded that the offer is given to the accused either to be searched by him (Investigating Officer) or a (Gazetted Officer) or a (Magistrate), which is contrary to the provisions of Section 50 NDPS Act as per Parmnand's case (supra) Secondly, in the recovery memo Ex.PC, it is clearly stated that 40 injection of avil 10 ml. each and 40 injections of norgesic of 2 ml. each were recovered vide recovery memo Ex.PC, however, while appearing as PW3, this witness has tried to make improvements by stating that some of the norgesic injections were having labels and some were not having labels. each and 40 injections of norgesic of 2 ml. each were recovered vide recovery memo Ex.PC, however, while appearing as PW3, this witness has tried to make improvements by stating that some of the norgesic injections were having labels and some were not having labels. The improvement is primarily made to cover up the lacuna as neither in the order of the Magistrate Ex.PJ, there is any mention of the seal 'BS' and 'GS' nor in the FSL report, in the description "norgesic ampule" is mentioned and rather it is mentioned that it contains colourless glass ampule. Thirdly, even otherwise, there is no explanation by this witness as to how the FIR number is mentioned in various documents i.e. recovery memo Ex.PC, arrest memo Ex.PF, site plan Ex.PG. Fourthly, this witness further stated that Form M-29 bear his signatures which is factually incorrect as it bear signatures of SHO/PW6, who was admittedly not present at the spot; (ii) A perusal of the ruqa Ex.PD show that a complete description of all the aforesaid documents is given and the ruqa was sent to Police Station at 5.15 PM and the FIR was registered at 6.30 PM as per the endorsement made in the ruqa itself, therefore, in the absence of any explanation as to how prior to registration of the FIR, the FIR number is mentioned, it makes the case highly doubtful. A perusal of the order passed by the Duty Magistrate also show that the same has been passed without application of judicial mind. It was required that the Judicial Magistrate, in such circumstances, must compare the seals on the sample parcels and the case property with sample seal chit, prepared by the Investigating Officer while complying with the provisions of Section 52-A of the NDPS Act giving details of the seals and then pass a specific order to deposit the sample parcels with the FSL, however, no such procedure was followed and rather the order dated 15.12.2013 show that nothing is mentioned about the seals 'BS' and 'GS' in this order and the Investigating Officer was simply directed to deposit the case property and sample parcel in the Malkhana. (iii) There is no explanation of 06 days delay in depositing the case property to the FSL. (iii) There is no explanation of 06 days delay in depositing the case property to the FSL. No link evidence is there to prove that in the intervening period when this case property remain in possession of the MHC, the seals were never tempered with, especially in view of the fact that it has come in the statement of PW2 that while handing over the sample parcels to FSL, he has not taken the Form M-29 along with the same and therefore, even in the report of the FSL Ex.PK, there is no mention that the seals ('BS' and 'GS') were tallied with the sample seal chit/Form M-29, which again raises a suspicion about the identity of the case property. (iv) There are material discrepancies in the statement of PW3 and PW5 regarding the time of the recovery as PW3 has stated that the recovery was effected at 5.20 PM whereas PW5 has stated that it was effected at 8.00 PM. PW3 gives no explanation about the mentioning of FIR number in some of the documents whereas PW5 has stated that the same were incorporated on reaching the Police Station, however, a bare perusal of the recovery memo would show that it is prepared in the running hand-writing mentioning the FIR number. PW3 while making the improvement had stated that some of the ampules had norgesic label and some were not having the same whereas PW5 shows ignorance about the same. PW5 has further stated that he do not know if the sample seals were prepared by the Investigating Officer or not, which again raises a suspicion that Form M-29 was not prepared at the spot as noticed above. 17. In view of the above, I find that the prosecution has failed to prove the guilt of the accused/appellant and accordingly, this appeal is allowed and the appellant is acquitted of the charge framed against him under Section 22-C of the NDPS Act. 18. The appellant be released forthwith, if not required in any other case.