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2023 DIGILAW 1129 (PNJ)

Kulwant Singh v. State of Punjab

2023-03-23

SANJAY VASHISTH

body2023
JUDGMENT Sanjay Vashisth, J. - Present appeal has been filed by appellant - Kulwant Singh, then aged 24 years, against the judgment of conviction and order of sentence dated 03.09.2004, passed by learned Judge, Special Court, Ludhiana/learned Trial Court, in Sessions Case No. 104, dated 28.07.2001, arising out of FIR No. 67, dated 06.05.2001, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'), registered at Police Station Sidhwan Bet. 2. Appellant - Kulwant Singh was convicted for the commission of offence punishable under Section 15 of the NDPS Act, for keeping in his conscious possession 30 Kgs. of poppy husk without any permit/licence and was ordered to undergo following sentence:- Under Section Sentence Fine In Default 15 of the NDPS Act 01 year R.I. Rs. 2,000/- 15 days R.I. 3. Case of the prosecution, emerging from the FIR version and referred in paragraph No. 2 of the impugned judgment is that:- 'On 06.05.2011, while patrolling, SI Jasbir Singh alongwith other police officials, was going from Sidhwan Bet to village Leelan. ASI Jaspal alongwith Constable Kuldip Singh met them at the Bus stand ofvillage Leelan. They were also joined in the police party. When the police party reached near canal minor of Sherpur Kalan, then from the opposite side, one tanker No. PB-10H-9818 was seen coming, which was stopped by him. He conducted the search of the tanker and found that one bag containing some material was seen lying near the seat of the driver. Said tanker was driven by the accused/appellant. On suspicion, he was apprehended. SI Jasbir Singh asked the accused/appellant that search of the bag is to be conducted and gave him offer that if he so desires the checking could be done by the Gazetted Officer or Magistrate, but the accused reposed faith in him. Statement of the accused was recorded and thereafter the search of the accused/appellant was conducted as per rules and poppy husk was recovered from the bag. Two samples of 250 grams each were taken out and the remaining poppy husk was weighed, which was found to be 29 Kgs. 500 grams and it was put in the same bag and was converted into parcel. The sample parcels and the bulk parcel were sealed with the seal 'JS'. The sample of his seal on the chits including the chit Ex. 500 grams and it was put in the same bag and was converted into parcel. The sample parcels and the bulk parcel were sealed with the seal 'JS'. The sample of his seal on the chits including the chit Ex. P1 and the tanker were taken in possession vide recovery memo." 4. After completing of statutory proceedings, final report under Section 173 Cr.P.C. was prepared and same was produced before the Court concerned. After supplying copies of the final report to the accused/appellant and framing of charge under Section 15 of the NDPS Act, prosecution examined total six witnesses, detailed as under:- PW-1 Inspector/SI Ravinderpal Singh He deposed regarding verification of the arrest and seizure, for making compliance of Section 57 of the NDPS Act. PW-2 SI Jasbir Singh the recovery and seizure of contraband and arrest of the accused/appellant with the help of police associates with him. PW-3 ASI Jaspal Singh He was member of the recovery/ investigating team. PW-4 HC Lakhwinder Singh He deposed regarding deposit of case property with him by Inspector/SHO Ravinderpal Singh and making entry in the Roznamcha regarding it. PW-5 Constable Sukhjit Singh He is a formal witness. PW-6 Raj Kumar, Assistant, O/o DTO, Moga He deposed regarding ownership of vehicle bearing registration No. PB-10-H-9818, and the entry regarding the same in the office of District Transport Officer, Moga. 5. In the statement recorded under Section 313 Cr.P.C., accused/appellant took a specific stand that case has been planted upon him because he did not accommodate the police officials by providing them the tanker for using the same for sprinkling of water for a period of two hours. Complete defence of the appellant, under Section 313 Cr.P.C. says as under:- 'Q: What more do you want to say? Ans. I am innocent. On 5-5-01, one ASI Mr. Chopra and one constable namely Kuldeep Singh had come to my house in the morning at 8.00. They made a demand of the tanker on the ground that the same is tobe used for sprinkling the water for a period of two hours only. I alongwith tanker accompanied the said officials. My Khalaasi (helper) Darshan Singh also accompanied me. We were taken to P.S. Sidhwan Bet but my tanker was not used for sprinkling the water and rather same was detained in the police station. On 6-5-01 I was rather involved in this case falsely. I alongwith tanker accompanied the said officials. My Khalaasi (helper) Darshan Singh also accompanied me. We were taken to P.S. Sidhwan Bet but my tanker was not used for sprinkling the water and rather same was detained in the police station. On 6-5-01 I was rather involved in this case falsely. My helper Darshan Singh was relieved from the police station on 6-5-01." To probalize the defence, accused/appellant examined Sadhu Singh, Lambardar, as DW-1. 6. Learned counsel for the appellant firstly argues that recovery of the alleged poppy husk, weighing 30 Kgs., was effected allegedly from the appellant on 06.05.2001. The investigating team was headed by SI Jasbir Singh (PW-2) and on the way ASI Jaspal Singh (PW-3) met the police team alongwith one Constable Kuldip Singh. Both were also joined in the police party. On reaching near the Canal Minor of Sherpur Kalan, one tanker was seen coming from the opposite direction. Said tanker was being driven by the appellant and on making search of the tanker, one bag containing some material was seen lying near the driving seat of the tanker. For the purpose of effecting search, SI Jasbir Singh (PW-2) expressed his own desire to the appellant to search the bag lying near the driving seat. Learned counsel further submits that only oral offer was given to the appellant that if he desires, some Gazetted Officer or Magistrate could be called, but the appellant reposed faith in him and regarding this a writing (Ex. PA) has been prepared, whereby appellant agreed to be searched by the Investigating Officer, i.e. SI Jasbir Singh (PW-2). Learned counsel submits that such an offer is not a complete offer. First of all, Investigating Officer defaulted in offering himself to effect the search. Moreover, he asked the desire to call the Gazetted Officer or Magistrate on spot, but appellant was never apprised of his legal right to be searched by the Magistrate. Thus, the offer given by the Investigating Officer - SI Jasbir Singh (PW-2) cannot be said to valid one. 7. On the other hand, learned State counsel submits that in the present case, notice under Section 50 of the NDPS Act is not material, therefore, aforementioned argument advanced by learned counsel for the appellant is not sustainable. 8. Thus, the offer given by the Investigating Officer - SI Jasbir Singh (PW-2) cannot be said to valid one. 7. On the other hand, learned State counsel submits that in the present case, notice under Section 50 of the NDPS Act is not material, therefore, aforementioned argument advanced by learned counsel for the appellant is not sustainable. 8. I have considered this aspect and find that undoubtedly the offer, as noticed above, was defective because in the examination-in-chief, SI Jasbir Singh (PW-2) nowhere deposed that he apprised the accused/appellant about his legal right of being searched before a Gazetted Officer or Magistrate. But this deficiency in the oral notice under Section 50 of the NDPS Act is of no merit in the present case because the search was effected from the bag which was lying near the driving seat of the vehicle and search was not of the person of the appellant. Thus, the submission qua non-compliance of Section 50 of the NDPS Act is without any strength. 9. Learned counsel for the appellant further argues that there is major contradictions in the statements of the prosecution witnesses because as per deposition of SI Jasbir Singh (PW-2), accused and case property were produced by him before Inspector/SHO Ravinderpal Singh (PW-1), who verified the facts, checked the case property, interrogated the accused and put his own seal. He deposited the case property with seals intact alongwith the sample seal with AMH C. Lakhwinder Singh on the next day. Learned counsel for the appellant then refers to the statement of Inspector/SHO Ravinderpal Singh (PW-1), in whose statement it is stated that ' I thereafter deposited the case property with AMHC Lakhwinder Singh on the same day with seals intact alongwith the sample seals, at about 11-50 P.M. ' Undoubtedly, regarding deposit of case property there is slight contradiction in the statements of both the witnesses, but same could be due to error of memory. Therefore, without proving that the seals were broken, chances of tampering are not there & no prejudice can be said to have been suffered by the appellant on this count. 10. Therefore, without proving that the seals were broken, chances of tampering are not there & no prejudice can be said to have been suffered by the appellant on this count. 10. Next point raised by learned counsel for the appellant is that no independent witness was joined by the Investigating Officer at the time of effecting recovery of alleged poppy husk, therefore, proceedings of investigation are highly doubtful because only official witnesses have appeared and they have deposed differently, as pointed out in the earlier part of the judgment. Because prosecution has failed to join any independent witness for proving recovery of contraband beyond doubt, it was incumbent upon the investigating agency to join an independent witness. Undoubtedly, said submission carries some weight, but solely on this issue, no benefit can be extended until some prejudice having been suffered is brought on record by the appellant. 11. Next argument addressed by learned counsel for the appellant is that there is non-compliance of Section 52A (2) of the NDPS Act. Evidence of SI Jasbir Singh (PW-2) in regard to the production of case property before Magistrate is reproduced hereunder, in extracted form: '...I produced the accused and the case property before SI Ravinderpal Singh, who verified the facts, checked the case property, interrogated the accused and put his own seal bearing letters 'RPS' and also retained his impression of the seal on the chits including the Chit Ex. P1. He deposited the case property with seals intact alongwith the sample seal with AMH C. Lakhwinder Singh on the next day. I obtained the case property and produced the same before the I. Magistrate vide request Ex. PG alongwith the sample seal on which the Magistrate had passed the order Ex. PG/1. On return to the P. Station, I redeposited the case property with the said AMHC with seals intact..." On examination of the record, it is find that for producing the case property and samples alongwith seals, an application (Ex. PG) was moved and on the back side of the said application, there is an endorsement by the learned JMIC, vide order dated 07.05.2001 (Ex. PG/1), which says as under:- 'Pr.APP.Accused in custody. S.I.Jasbir Singh has produced in court two sample parcels allegedly containing 250 grams poppy husk bearing seal impressions J.S. and R.P.S. each and one gunny bag allegedly containing 29 Kgs. PG/1), which says as under:- 'Pr.APP.Accused in custody. S.I.Jasbir Singh has produced in court two sample parcels allegedly containing 250 grams poppy husk bearing seal impressions J.S. and R.P.S. each and one gunny bag allegedly containing 29 Kgs. 500 grams poppy husk bearing seal impression J.S. and R.P.S. The seals were found intact. Case property returned to S.I.Jasbir Singh for safe custody. Sd/- JMIC/7.5.2001.' 12. Learned counsel for the appellant argues that in the proceedings conducted by learned Magistrate, nowhere it reflects that he had seen the case property after opening the bags containing bulk/residue poppy husk and then did the sampling himself, for his own confirmation that the samples drawn by Investigating Officer earlier in time, were of the same case property, which was produced before him/her. In this regard, learned counsel has referred para No. 12 of the judgment passed by this Court in the case of Smt. Kali v. State of U.T. Chandigarh (CRA-S-2384-SB-2003, decided on 20.01.2023. In the case of Kali (supra), after considering the view point of Hon'ble the Apex Court in the case of Union of India v. Mohanlal and another, 2016 (1) R.C.R. (Criminal) 858 : Law Finder ID #736803, benefit was extended to the accused, by holding that there was total non-compliance of the provisions of Section 52A(2) of the NDPS Act. Para Nos. 12 and 13 of the judgment in the case of Smt. Kali (supra) reads thus:- '12. While relying upon the judgment of Union of India v. Mohanlal and anr., 2016 (1) RCR (Criminal) 858 = Law Finder ID #736803, learned counsel submits that seizure and sampling of narcotic drugs, process of drawing of sample has to be done under the supervision of the Magistrate and the entire case has to be certified by him to be correct. It has already been submitted by counsel for the appellant that there in no provision in NDPS Act, which mandates the taking ofsamples at the time ofseizure. Relevant law point discussed and as held by Hon'ble Apex Court is reproduced here below: '13. It has already been submitted by counsel for the appellant that there in no provision in NDPS Act, which mandates the taking ofsamples at the time ofseizure. Relevant law point discussed and as held by Hon'ble Apex Court is reproduced here below: '13. It is manifest from Section 52A (2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. Sub-section (3) of Section 52- A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52- A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking ofsamples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. Suffice it to say that there is no provision in the Act that mandates taking ofsamples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to reexamine the matter and take suitable steps in the above direction. 14. Mr. Sinha, learned Amicus, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification etc. without any loss oftime. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety ofreasons. There is in our opinion manner ofdoubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process ofmaking any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter ofmaking ofan application or the drawing ofsamples and certification. There is equally no doubt that the process ofmaking any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter ofmaking ofan application or the drawing ofsamples and certification. While we see no room for prescribing or reading a time frame into the provision,we are ofthe view an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions'. 13. If evidence of the PW12-Gajjan Singh is examined keeping in view of the observations made in the judgment of Hon 'ble Apex Court in the case of Mohanlal (Supra), it is clear that there in no material available on record to meet out all the steps as enacted in the Act and incorporated by the Hon'ble Apex Court in Mohanlal's case (Supra). Thus, on this scale also, there is substance in the law point addressed by learned counsel for the appellant as the State has failed to lead evidence to meet out the legal provision of the Act." 13. Appellant further argues that merely on the basis of adverse FSL report, conviction of the appellant is bad in the eyes of law. In support of his submission, learned counsel for the appellant has also placed reliance on a judgment passed by a Coordinate Bench of this Court in the case of Buta Khan v. State of Punjab (CRA-S-262-SB-2018, decided on 26.08.2022) [2022 (3) Law Herald 2453 : Law Finder Doc Id #2027752]. In para Nos. 18 and 19 of the said judgment, it has been observed as under:- 18. In para Nos. 18 and 19 of the said judgment, it has been observed as under:- 18. From the above, the following principles emerge: a) The bulk as well as the sample cloth parcels concerned, are case property, and, both are amenable for orders with respect to their destruction or confiscation to the State, as the case may be, being rendered only by the jurisdictionally empowered Court, and, that too upon the completest termination of the trial, as becomes entered into by the jurisdictionally empowered Court(s). Dominion over the bulk parcels, and, or over the sample cloth parcels can neither be assumed by the SHO of the police station concerned, and, nor can be assumed by the Chemical Analyst working at the FSL concerned. b) The production in Court ofthe bulk as well as ofthe sample cloth parcels, as, sent to the FSL concerned, is of utmost importance, as the opinion made by the FSL concerned, on the stuff inside the cloth parcels concerned, would link it with the bulk parcels, yet only upon production of the sample cloth parcels, before the learned trial Judge concerned, as the examined stuff inside the sample cloth parcels, is the primary evidence to prove the charge, and, to also corroborate the opinion ofthe FSL. c) The report of the FSL concerned, has a rebuttable presumption of truth, and, the accused for availing the right to rebut the presumption of truth attached to the opinion of the FSL concerned, can ask for re-examination by the FSL concerned, ofthe stuff inside the cloth sample parcels concerned, and, that would occur only when the sample clothparcels are produced in Court, otherwise not. d) The stuff inside the cloth sample parcels, is the primary evidence, and, report of the FSL concerned, as made in respect thereof is secondary evidence, and, unless primary evidence is adduced before the Court, the secondary evidence does not acquire any probative vigor or any evidentiary worth. 19. The result of the above discussion is that, the impugned verdict suffers from a gross infirmity, of gross misappraisal of the above, and, requires its being annulled, and, set aside." 14. 19. The result of the above discussion is that, the impugned verdict suffers from a gross infirmity, of gross misappraisal of the above, and, requires its being annulled, and, set aside." 14. On the basis of above proposition of law, learned counsel for the appellant argues that it cannot be said with certainty that the samples and residue prepared by SI Jasbir Singh (PW-2), who was the Investigating Officer in the present case, was from the bulk parcel because there is no attempt made by the Magistrate to compare or to prepare sample from the bulk/residue parcel produced before it. There is nothing available on record to say that the report of Forensic Science Laboratory is definitely regarding the sealed bulk/residue case property, weighing 29 Kgs. and 500 grams. Had there been compliance of Section 52A(2)(c) of the NDPS Act, supported with the FSL report, burden could be shifted to the accused to prove his innocence. 15. Learned State counsel could not produce any material or referred it from the record of the case to submit with certainty that the FSL report is in regard to the bulk residue parcel submitted before the Magistrate, which was lying without opening and preparing its sample as per the provision of law referred herein. 16. I have considered the argument deeply and find that the view expressed by Hon'ble Apex Court in Mohanlal's case (supra) and by a Coordinate Bench of this Court in the case of Buta Khan (supra) are fully applicable to hold that there is non-compliance of Section 52A(2) of the NDPS in the present case, and thus, conviction of the appellant for the alleged offence is not sustainable on this score. 17. Accordingly, while setting aside the impugned judgment of conviction and order of sentence dated 03.09.2004, passed by learned Judge, Special Court, Ludhiana/learned Trial Court, this appeal is allowed and the appellant is discharged of the charges levelled against him. 18. Appeal stands disposed of. 19. Registry is directed to send back original lower court record alongwith a copy of this judgment to learned Trial Court.