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2022 DIGILAW 393 (PNJ)

Raman Kumar v. State Of Punjab

2022-02-24

SURESHWAR THAKUR

body2022
JUDGMENT Sureshwar Thakur. J. - Accused one Raman Kumar faced trial for a charge qua commission of an offence punishable under Section 21 of the NDPS Act, 1985. After the conclusion of trial, entered upon by the learned trial Judge concerned, upon Sessions case bearing No. 417/2015, the learned trial Judge concerned, made a verdict of conviction upon the afore drawn charges against the accused. 2. Through a separate sentencing order, drawn on 23.12.2021, he proceeded to sentence the convict, to undergo rigorous imprisonment for a term extending upto four years, and, also sentenced him to pay a fine of Rs. 10,000/-. In default of payment of fine, he sentenced the convict to undergo rigorous imprisonment for a period of four months. 3. The aggrieved convict one Raman Kumar, through his instituting the instant appeal bearing No. CRA-S-44-2022, before this Court, has cast a challenge upon both the verdict of conviction, and, qua theorder of sentence (supra), as became imposed upon him, by the learned trial Judge concerned. 4. The brief facts of the prosecution case are that on 21.06.2014, Inspector Ravinder Singh alongwith other police officials, in connection with naqabandi was present in Bus Stand Gharinda. There he received secret information against Raman Kumar son of Rikhi Ram, resident of village Dhande that he is indulged in smuggling of heroin and used to sell the heroin. It was informed that said Raman Kumar was coming in his Car Maruti having registration No. PB-02-AE-2123 from village Dhande to Amritsar via Attari, if naka is held and huge quantity of heroin could be recovered from him. On the basis of secret information, Inspector Ravinder Singh alongwith other police officials held naka on the bridge of drain in the area of Gharinda Chowk towards Amritsar side and started checking of the vehicles. In the meantime, one car bearing PB-02-AE-2123 came from the side of Attari, which was being driven by a clean shaved person. He made signal to stop the car and when car was stopped, on asking driver of car, disclosed his identity as Raman Kumar. Inspector Ravinder Singh disclosed his identity to Raman Kumar and told him that he was having suspicion that said person was having intoxicant material in his possession for which search was to be conducted. He made signal to stop the car and when car was stopped, on asking driver of car, disclosed his identity as Raman Kumar. Inspector Ravinder Singh disclosed his identity to Raman Kumar and told him that he was having suspicion that said person was having intoxicant material in his possession for which search was to be conducted. Inspector Ravinder Singh further disclosed the said person about his legal right to get his search conducted from a Gazetted Officer or a Magistrate. Accused replied that he wanted to get the search conducted from a Gazetted Officer. Accordingly non consent memo was prepared. Then Inspector Ravinder Singh requested DSP Sub Division Attari namely Shri Daljit Singh Dhillon to reach the spot and briefed him about the facts of the case, who after sometime reached at the spotalongwith his staff. DSP Daljit Singh disclosed his identity to the accused that he is Daljit Singh Dhillon, PPS DSP Sub Division Attari and further told the accused that there was suspicion of some intoxicant substance in his possession for which his search as well as search of his car was to be conducted for which he can arrange. Accused reposed confidence in DSP on which consent memo of the accused was prepared by DSP, it was signed by accused. Thereafter, personal search of accused was conducted and from the right pocket of the trouser worn by accused heroin wrapped in a polythene black colour bag was recovered. From the recovered heroin, 10 grams heroin was separated as sample and was kept in a plastic container. On weighing the remaining heroin, came to be 190 grams, which was put in different plastic container. Two separate parcels were prepared and were sealed with the seal impression 'RS' and 'DS'. Sample seals were prepared and Form M-29 was filled at th spot. Accused was arrested. Ruqa was sent to the Police Station on the basis of which FIR was registered against the accused. On return to police station, Inspector Ravinder Singh handed over the Car Maruti having registration number plate alongwith its RC and Rs. 2500/- recovered from personal search of accused to MHC of the police station. Inspector Ravinder Singh kept the sealed parcels containing heroin with seals intact, sample seals and Form M-29 in his safe custody in double lock system of the police station. Thereafter, accused alongwith case property was produced before the Court. 2500/- recovered from personal search of accused to MHC of the police station. Inspector Ravinder Singh kept the sealed parcels containing heroin with seals intact, sample seals and Form M-29 in his safe custody in double lock system of the police station. Thereafter, accused alongwith case property was produced before the Court. Thereafter sample parcel was sent to the Office of Chemical Examiner, Kharar. On receipt of report from the office of Chemical Examiner, Kharar and completion of investigation and other formalities, challan was prepared, and, presented in the Court. 5. A charge became drawn against the accused, qua commissionof an offence embodied in Section 21 of the NDPS Act. In proof of the charge, the prosecution examined five witnesses. 6. After the testifications of the prosecution witnesses, becoming recorded, the learned trial Judge concerned drew proceedings under Section 313 Cr.P.C. In his statement, recorded under Section 313 Cr.P.C, the accused pleaded false implication. He canvassed the defence, that he was picked up from his house, and, after his being kept in illegal custody, a false recovery was foisted upon him. He also asked for adduction of defence evidence. However, the accused did not produce any defence witness into the witness box. 7. The learned counsel for the appellant has vehemently argued before this Court, that the impugned verdict of conviction, and, the order of sentence (supra), as became imposed upon the convict, are not meritworthy. He supports the afore submission on the ground that there being gross non-appreciation, and, mis-appraisal of the evidence adduced by the prosecution, hence by the learned trial Judge concerned. 8. On the other hand, the learned State counsel has argued, that the impugned verdict of conviction, and, the order of sentence, as becomes imposed upon the convict, is meritworthy, and, requires affirmation from this Court. 9. Though the investigating officer while stepping into the witness box as PW-2, has in his examination in chief, completely supported the recitals, as occur in the FIR, to which Ex. P-14 has been assigned. Moreover, during his examination-in-chief, he has proven the making of the non-consent memo by the accused. The reason for the making of the non-consent memo, as embodied in Ex. P-14 has been assigned. Moreover, during his examination-in-chief, he has proven the making of the non-consent memo by the accused. The reason for the making of the non-consent memo, as embodied in Ex. P-3, by the investigating officerconcerned, and, which becomes signatured by the accused, arose from the convict not intending to get his personal search made by the investigating officer concerned, rather his conveying his consent for his personal search being made in the presence of a Magistrate or a Gazetted Officer. 10. In pursuance to the drawing of Ex. P-3, whereins, also the signature of the accused exist(s), the Deputy Superintendent of Police, Sub Division Attari, a Gazetted Officer drew a consent memo, to which Ex. P-4 is assigned. Ex. P-4 is also signatured by the accused, thereins becomes embodied an intimation to the accused, with respect to his willingness to get his search conducted in the presence of the Deputy Superintendent of Police, Sub Division Attari or in the presence of a Magistrate. However, it is recorded in Ex. P-4, that the accused evinced his willingness to get his personal search being conducted by the Deputy Superintendent of Police, Sub Division Attari. In pursuance to the drawing of Ex. P-4, signatured by the Deputy Superintendent of Police, Sub Division Attari, and, whereons the signature of the accused also exists, and, in the presence of the Deputy Superintendent of Police, Sub Division Attari, who had visited the spot, within 20 minutes from an intimation, being made to him, by the investigating officer concerned, hence the personal search of the accused became conducted by the investigating officer concerned. During the course of the making of the personal search of the accused, rather by the investigating officer concerned, and, in the presence of Deputy Superintendent of Police concerned, heroin weighing 200 grams, became recovered from the right side pocket of the trousers, worn at the relevant time by the accused, and, it was wrapped in a black coloured polythene. From the afore recovered bulk heroin, a sample weighing 10 grams wasseparated, and, was put in a polythene bag, and, whereafter it was put into a plastic box. The remaining heroin weighing 190 grams was also put in a black coloured plastic bag, and, it was inserted in a plastic dabbi (box). A parcel of plastic dabbi containing sample heroin, and, plastic dabbi containing the case property, was prepared. The remaining heroin weighing 190 grams was also put in a black coloured plastic bag, and, it was inserted in a plastic dabbi (box). A parcel of plastic dabbi containing sample heroin, and, plastic dabbi containing the case property, was prepared. It was sealed by the investigating officer concerned, with his seal bearing superscription 'RS', and, also by the DSP with his seal bearing superscription 'DS'. After using the seal, the DSP kept the seal in his possession, whereas, the investigating officer handed over his seal to SI Sukhdev Singh No. 801. The sample seal was prepared separately, and, Form No. 29 was filled on the spot. The above made recitals, as carried in recovery memo, to which Ex. P-8 is assigned, are testified with the utmost inter se corroboration rather by all the prosecution witnesses concerned. 11. Be that as it may, though the learned defence counsel, during the course of his holding cross-examination(s), upon, each of the prosecution witnesses, has not been able to unearth from them any evidence, suggestive that from the stage of preparation of the recovery memo concerned, and, upto the depositing of the case property, in the malkhana existing at the police station concerned, there was any tampering with the case property. Moreover, the learned defence counsel, has also been unable to elicit, during the course of his conducting cross-examinations, upon each of the prosecution witnesses, any affirmative answer to any suggestion, if any, with regard to the factum, that there being any incongruity inter se the description of the english alphabets, existing on the seals, as became embossed, upon the cloth parcels concerned, at the time of drawing of recovery memo, embodied as Ex. P-8, rather with the ones carried in thecase property till its deposit in the Malkhana concerned. In addition, the learned defence counsel has also completely failed, to make any endeavour to ensure the emergence of any evidence, through his giving suggestions, to each of the prosecution witnesses concerned, rather suggestive, that the seal impressions, as became embossed on the cloth parcels concerned, becoming broken, and/or, different/varying seals becoming re-embossed, on the cloth parcels concerned, whereins, the seized contraband became enclosed. Conspicuously, with the learned CJM concerned, also making an order on 22.6.2014, with clear underlinings thereins, that the embossed seals on the sample parcel, containing 10 grams of heroin, and, on the bulk parcel containing 190 grams of heroin, whereons, respectively existed english alphabets DS, and, RS, upon their production before her, hence being completely intact, and, also with echoings thereins qua hers, making her intials thereons. Moreover, a perusal of the order dated 22.6.2014, revealing that form No. 29, became handed over to Inspector Ravinder Singh, for the purposes of apposite testing in FSL, Mohali, and, it further revealing, that the other parcels also becoming handed over to Inspector Ravinder Singh, for the purposes of his depositing the same, in the Judicial Malkhana, Amritsar. Therefore, the cumulative effect of the above, is that, they boost a conclusion from this Court,(i) that since the stage of the relevant recovery, and, upto its production before the CJM concerned, the cloth parcels concerned enclosing thereins, the seized contraband remaining untampered, and, unspoiled, (ii)inasmuch as, the initially made seals thereons, remaining neither broken nor tampered with. The effect of the afore conclusion, does also enable this Court to conclude, that upto the afore stage, the prosecution succeeding in proving the factum, of an efficacious recovery, being madefrom the personal search of the accused, as became conducted at the site of occurrence, and, in the manner disclosed in the recovery memo, embodied in Ex. P-8. 12. Though, the learned counsel for the appellant, has argued with much force before this Court, that the failure on the part of the prosecution to produce on record, the relevant abstract of the Malkhana regiser, is fatal, inasmuch as, only from its production, evidence would emerge hence linking the seizure with its deposit in the Malkhana concerned. The reason he assigns, for supporting the above submission, is that, upon its production unfoldments would spur, qua the entries made therein being with respect to the depositing of the case property, in the Malkhana concerned, besides evidence would emerge qua the makings thereins of compatible entries, rather completely corresponding to the description(s) of the seals, as, became embossed, on the cloth parcels, in contemporarily to the preparation of the recovery memo, carried in Ex. P-8. He argues that non production thereof, has led to suppression of the above vital link evidence. P-8. He argues that non production thereof, has led to suppression of the above vital link evidence. However, the afore made argument is extremely weak, and, feeble, and, cannot be accepted by this Court. The reason being that, when the investigating officer concerned, produced, before the CJM concerned, the cloth parcels hence enclosing therein, the seized contraband, and, since upon their production before her, the learned CJM concerned, made an order with candid reflection thereins, that the descriptions of english alphabets, as, made on the seals being completely congruous to the narrations, as made in the recovery memo, embodied as Ex. P-8. Therefore, the above order, irrespective of non production of the relevant abstract of the Malkhana register, before the learned trial Court, rather links the apposite cloth parcelsto their preparation at the site of occurrence. 13. However, the prosecution was required to also prove, that the contraband occurring within the sealed cloth parcels, was heroin, and, for adducing proof qua the afore alleged incriminatory fact, the most important evidence became comprised in the report of the FSL concerned. The report of the FSL, is embodied Ex. P-18, and, is ad verbatim extracted hereinafter. XX X X 4. Date of receipt: 07.7.14 5. Mode of receipt: Through HC Sukhdev Singh 80 6. Articles received: One parcel sealed with two seals one each of DS + RS alleged to contain intoxicating material (Heroin). Seals on the parcel were found intact and tallied with specimen seals impression. On opening the parcel found to contain ten gram off white powder having granules. 7. Purpose of reference: Analysis and report 8. Identification and tests: Diacety lmorphine found present in the content of the parcel. %age of Diacetylmorphine = 61.2% Report: The content of the parcel under reference have been analysed by chemical analysis. On the basis of analysis 61.2% Diacetylmorphine (Heroin) has been found present in the content of the parcel. " 14. A reading of the afore extracted report of the FSL, candidly discloses, that the chemical analyst concerned, who received the cloth parcel(s) concerned, from Head Constable Sukhdev Singh 80, proceeded todraw narrations thereins, that the sample cloth parcel, carried two seals one each of DS + RS. Consequently, though the above fact as narrated in Ex. " 14. A reading of the afore extracted report of the FSL, candidly discloses, that the chemical analyst concerned, who received the cloth parcel(s) concerned, from Head Constable Sukhdev Singh 80, proceeded todraw narrations thereins, that the sample cloth parcel, carried two seals one each of DS + RS. Consequently, though the above fact as narrated in Ex. P-19 hence is completely congruous to the descriptions of the english alphabets, made on the seal impressions, as became embodied on the relevant cloth parcel(s) at the spot of occurrence, by the investigating officer concerned, who also drew the recovery memo, embodied in Ex. P-8. However, thereafter the chemical analyst concerned, also obviously did proceed to open the parcel(s) hence containing thereins 10 grams of white powder. Though, the chemical analyst concerned, after making examination of the afore contents, carried in the cloth parcel concerned, made an affirmative opinion, that they contained 61.2% of Diacetylmorphine (Heroin). Nonetheless, there is no narrataion in the report Ex. P-19, about the chemical analyst concerned, thereafter inserting the heroin into the cloth parcel concerned, wherefrom he retrieved the same, nor is there any narration that the chemical analyst concerned, proceeded to emboss on the cloth parcel(s) concerned, the seal impressions of the FSL concerned, and, nor he has made any narration therein, that thereons existed the initials of the CJM concerned, before whom the case property became produced, by the investigating officer concerned. 15. The effect of the absence of the afore narrations, in the report of the chemical analyst, carried in Ex. P-19, is that the imperative requirement of law, that after the report of the chemical analyst concerned, rather the sample cloth parcel concerned, after its retrieval from the Malkhana concerned, necessarily upon its production in Court, conspicuously being proven by the prosecution, to be completely, and, unflinchingly linked with the seizure, as made from the purported exclusive, and, consciouspossession of the accused, through the drawing of memo Ex. P-8, hence starkingly becoming rather not linked to Ex. P-8. The charge drawn against the accused would stand completely proven, not only upon an affirmative opinion, being made on the contents enclosed within the cloth parcel, rather by the chemical analyst concerned, but also upon the sample parcel concerned, upon its production in the Court, being linked to the seizure, as made through the recovery memo, comprised in Ex. P-8. The charge drawn against the accused would stand completely proven, not only upon an affirmative opinion, being made on the contents enclosed within the cloth parcel, rather by the chemical analyst concerned, but also upon the sample parcel concerned, upon its production in the Court, being linked to the seizure, as made through the recovery memo, comprised in Ex. P-8, and, the imperative link evidence or the evidence connecting the report of the FSL, with the recovery memo, became comprised in the chemical analyst concerned, after re-enclosing the examined narcotic, within the cloth parcel rather his, thereafters, also embossing thereons hence the seal impression(s) of the FSL concerned. However, as vividly apparent, on a reading of Ex. P-19, there is no narration thereins, about the chemical analyst concerned, proceeding to emboss, on the cloth parcel concerned, the seal impressions of the FSL concerned. The telling effect thereof, is that the prosecution, has miserably failed in connecting the report of the FSL concerned, to the sample cloth parcel(s), purportedly enclosing thereins heroin, rather with the accused, and, or obviously with the purportedly made recovery of heroin, from the site of occurrence, from the alleged conscious, and, exclusive possession of the accused, and, nor has been able to prove that the bulk parcels of the alleged seized contraband also contained heroin. 16. Therefore, the learned trial Judge concerned, has completely ignored the afore facet, and, has obviously erred in recording a finding of conviction upon the accused qua the charge drawn against him for an offence punishable under Section 21 of the NDPS Act. 17. There is merit in the appeal, and, is allowed. The impugnedjudgment convicting the accused, is quashed, and, set aside. Moreover, obviously also, the order of sentence in consequence thereof, and, as became imposed upon the the accused, is also quashed, and, set aside. The personal, and, surety bonds of the accused shall stand forthwith cancelled, and, discharged. The case property, after expiry of the period of limitation in filing of appeal, be dealt with, in accordance with law. The appellant, if in custody, be forthwith set at liberty.