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2023 DIGILAW 187 (JK)

Dalip Singh v. State

2023-05-11

SANJAY DHAR

body2023
JUDGEMENT 1. The appellants have challenged the judgment dated 08.07.2014 passed by the Special Judge, Kathua (hereinafter referred to as the 'Special Judge') whereby they have been convicted for offences under sections 8/15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'). Challenge has also been thrown to order dated 09.07.2014 passed by the Special Judge whereby in proof of aforesaid offences, the appellants have been sentenced to rigorous imprisonment of five years each and to pay a fine of Rs. 50000/- each. In default of payment of fine, the appellants have been directed to undergo a further imprisonment for six months each. 2. Briefly stated the prosecution case is that, on 23.08.2010 at about 6.45 pm, a Truck bearing registration No. HR46C-3136 that was loaded with apples reported at export yard of Toll Post, Lakhanpur. The said Truck was subjected to physical checking by the Excise Guards PWs Mohd. Bashir and Sat Pal under the supervision of Inspector Excise Task Force Gulrez Haq Malik. Upon physical checking of the truck, a bag, containing poppy straw (bukki) hidden beneath the apple boxes, was detected. The appellants were questioned and detained at the Toll Post. At about 7.25 pm, PW Girdhari Lal ETO informed the complainant PW Arun Kumar, Inspector Excise Sub Range Kathua, who, vide his letter dated 23.08.2010 requested Tehsildar Kathua to depute Executive Magistrate First Class to Toll Post Lakhanpur. PW Krishan Lal sharma, Naib Tehsildar reached spot at 8.15 pm and the complainant PW Arun Kumar also reached over there and started investigation of the case. 3. The contraband was seized on spot and the appellants were arrested. The seized contraband was found to be weighing 9 kgs and 100 gms inclusive of packing. Out of the seized contraband, two samples weighing 50 gms ach were drawn and the same were sealed with white cloth and marked as 'B' and 'C'. The rest of the contraband was sealed and marked as 'A'. The samples as well as the remaining contraband were sealed with a brass seal in presence of Executive Magistrate First Class, Kathua and thereafter the samples were resealed by the said Executive Magistrate First Class, Kathua with his official seal. In this regard, a certificate was issued by the Executive Magistrate to the Director FSL Jammu authorising him to break open the seal of the samples for chemical analysis. In this regard, a certificate was issued by the Executive Magistrate to the Director FSL Jammu authorising him to break open the seal of the samples for chemical analysis. As per the complaint, the sample marked as 'B' was sent to the Director FSL Jammu vide letter dated 27.08.2010 along with a resealing certificate issued by the Executive Magistrate First Class and the same was deposited with Director, FSL Jammu by Sh. Bishamber Singh Driver Excise Range, Kathua. The receipt of sample dated 1.09.2010 was obtained from the FSL. As per report of the FSL dated 13.10.2010 presence of morphine was found in the sample drawn from the seized poppy straw (bukki). Thus, according to the complainant, offences under sections 8/15 of NDPS Act were found established against the appellants. 4. Vide order dated 01.11.2010, the Special Judge framed charges for offences under section 8/15 of NDPS Act against the appellants who denied the charges and claimed trial. Accordingly, the complainant was directed to produce the witnesses in support of its case. 5. The complainant examined PWs Girdhari Lal Sharma, Gulrez Haq, Rohit Koul, Ravi Kumar, Sat Pal, Mohd. Bashir, Krishan Kumar Sharma and Arun Kumar as witnesses in support of its case. After completion of the complainant's evidence, the incriminating circumstances appearing in the evidence were put to the appellants to seek their explanation and their statements under section 342 of J&K Cr.P.C were recorded on 29.06.2013. In their statements, both the appellants claimed that they have been falsely implicated in the case and that no contraband was recovered from their possession. However, they did not lead any evidence in defence. 6. The learned Special Judge, after hearing the parties and after appreciating the evidence on record, came to the conclusion that the seized contraband was recovered from the conscious possession of the appellants while the same was being carried in a Truck in question along with the load of apples. It was concluded by the Special Judge that the samples drawn from the seized contraband contained the prohibited substance morphine and it belonged to poppy plant (Papaver somniferum). On the basis of aforesaid conclusions, the Special Judge held that offences under sections 8/15 of NDPS Act are proved against the appellants and, accordingly, they were convicted of the said offences and sentenced to rigorous imprisonment of five years each and a fine of Rs. 50000/- each. 7. On the basis of aforesaid conclusions, the Special Judge held that offences under sections 8/15 of NDPS Act are proved against the appellants and, accordingly, they were convicted of the said offences and sentenced to rigorous imprisonment of five years each and a fine of Rs. 50000/- each. 7. Although the appellants have urged a number of grounds in assailing the impugned judgment of conviction and order of sentence, yet, during the course of arguments, learned counsel for the appellants has focussed his attention on the ground that, from the evidence on record, it has not been established that sample drawn from the seized contraband was sent to FSL and that the report of FSL pertains to the sample of the contraband drawn from the seized substance. 8. I have heard learned counsel for the appellants and learned Dy. AG appearing for the respondents/State. I have also gone through the grounds of appeal, the impugned judgment and the trial Court record including the evidence led before the trial Court. 9. If we have a look at the evidence and the documents on record of the trial Court, it is revealed that the prosecution has succeeded in establishing that the appellants were travelling in the Truck bearing No. HR46C 3136 and that the said truck was subjected to physical checking at Toll Post, Lakhanpur. It is also established that vide seizure memo EXTP-2, certain substance weighing 9 kgs and 100 gms was recovered from the Truck in question. This substance, according to the complainant's story is bhukki. As per the statements of the witnesses to the seizure memo, PW Ravi Kumar, PW Sat Pal, PW Gulrez Haq and the complainant PW Arun Kumar, two samples weighing 50 gms each were drawn from the recovered substance and the same were sealed and marked as 'B' and 'C' respectively. It has also come in the evidence on record that remaining seized substance was also sealed and the same was marked as 'A'. The seal used in the sealing process was kept on the supurdnama of one Razi Ahmed who has not been examined as a witness by the prosecution. 10. It has also come in the evidence on record that remaining seized substance was also sealed and the same was marked as 'A'. The seal used in the sealing process was kept on the supurdnama of one Razi Ahmed who has not been examined as a witness by the prosecution. 10. We have also on record a letter EXTP-7/4 written by PW Arun Kumar, the complainant to the Executive Magistrate First Class Kathua on 23.08.2010, the contents whereof are reproduced as under: “Kindly find enclosed herein 01 Bag (HDPE Bag) of alleged Poppy Straw (Bukki) marked as A which is sewn in white cloth after taking two samples from the bag which are marked as B and C with the help of Excise Staff and sealed under my direct supervision with a seal bearing impression. You are requested to seal the same and authorise the Director FSL to break open the seal for chemical analysis of the sample B which is of 50 gms”. 11. From a perusal of the aforesaid letter, it is clear that PW Krishan Lal Sharma Naib Tehsildar (Executive Magistrate First Class), Kathua was requested to reseal the samples marked as 'B' and 'C' as also the remaining substance marked as 'A' and to authorise Director FSL to break open the seal for chemical analysis of sample 'B'. 12. There is yet another document EXTP- 6 on record which has been issued by PW Krishan Lal Sharma Naib Tehsildar (Executive Magistrate First Class) Kathua. It is a certificate and the same reads as under: “Certified that the Inspector Excise Sub Range Kathua Sh. Arun Kumar produced before me 02 packets of alleged poppy straw (Bukki) duly sewn and sealed in white cloth marked B and C (samples of 50 gms each) and the said seals on the packets are intact in the case of State vs. Dalip Singh S/o Sh. Bahadur Singh R/o Muradpur District Hoshiarpur and Rajinder Singh S/o Sh. Run Singh R/o Kamahi Devi P.O. Mukerian DistrictHoshiarpur (seized from Truck No. HR46C-3136) under sections 15 of NDPS Act in Report No. 242/ERK, dated 23.08.2010. The above packets of alleged poppy straw are sealed by me on 23.08.2010 and the Director FSL Jammu is authorised to break open the seal of packet B to analyse the same. The impression of the sale is given below”. 13. The above packets of alleged poppy straw are sealed by me on 23.08.2010 and the Director FSL Jammu is authorised to break open the seal of packet B to analyse the same. The impression of the sale is given below”. 13. From a perusal of the aforesaid document, it is revealed that before the Executive Magistrate 1st Class, Kathua, only the sealed samples marked as B and C were produced and the remaining substance from which the samples were drawn, which was marked as 'A' was not produced before the Magistrate for resealing. The certificate further shows that the Executive Magistrate has authorised the Director FSL to break open the seal of packed B only for analysing the contents thereof. 14. Another document which is crucial in the context of the argument raised by learned counsel for the appellants is the report of FSL EXPW-RK. As per this report, one sealed packed was received in the office of FSL on 01.09.2010 under covering letter No. 391/ERK, dated 24.08.2010 of complainant PW Arun Kumar through Driver Bishamber Singh, Excise Department, Sub Range, Kathua. The report further indicates that the exhibit was found sealed with two seals intact which tallied with the specimen seal impression forwarded and the sealed packet was marked as sample A. PW Rohit Koul, the author of the document EXPW-RK has confirmed these facts in his statement recorded before the trial Court. 15. From the above, it is clear that, what was received in the FSL was the packet marked as 'A'. However, as per the case of the complainant, the samples were marked as B and C. The document EXPW-7/4 which is a communication issued by the complainant bears a request to the Executive Magistrate First Class, Kathua to authorise the Director, FSL to break open the seal of sample 'B' for its chemical analysis and vide certificate EXTP-6 issued by the Executive Magistrate First Class, Kathua, the Director, FSL Jammu has been authorised to break open the seal of packet 'B'. Thus, the sample, which according to the complainant, was forwarded to the FSL was marked as 'B', but the sample that was actually examined by the FSL bears mark 'A'. 16. Thus, the sample, which according to the complainant, was forwarded to the FSL was marked as 'B', but the sample that was actually examined by the FSL bears mark 'A'. 16. As per the case of the complainant, mark 'A' was given to the bag containing remaining portion of the recovered substance, but, as per the certificate issued by the Executive Magistrate First Class, Kathua EXTP-6, only samples marked as 'B' and 'C' were produced before the Magistrate for their resealing and the said certificate does not bear any reference to bag marked as 'A' meaning thereby that the bag marked as 'A' was not resealed by the Magistrate and obviously, the same was not sent to the FSL for its examination. The bag, in which the remaining portion of the contraband was stored, if the complainant's case is to be believed, contained around 9 kgs of bukki, but the sample marked as 'A' which was analysed by the FSL as per the report, weighed only 50 gms. This rules out the possibility of contents of sealed bag marked as 'A' having been analysed by the FSL. The identity of the sample marked as 'A' which weighed 50 gms that was examined by the chemical Analyst has, therefore remained shrouded in mystery. The sample as per the complaint's case was delivered with FSL by Driver Bishamber Singh. The said Driver has not been examined as a witness by the complainant so as to unravel this mystery. The said witness would have been in a position to explain as to what was actually delivered by him to the office of Director FSL Jammu, but, unfortunately, he has not been examined as witness by the prosecution. 17. Learned counsel for the respondents/State has contended that it may be a case of typographical error and, instead of sample 'B' sample 'A' has been written either by the author of the report EXPW-RK or by the person who has put marks on the samples and the remaining part of recovered contraband substance. That may be one of the possibilities, but, there can also be another possibility. The complainant may have either deliberately or inadvertently delivered some other sample unconnected with the instant case to the FSL. That may be one of the possibilities, but, there can also be another possibility. The complainant may have either deliberately or inadvertently delivered some other sample unconnected with the instant case to the FSL. Thus, both the eventualities are possible, but, one thing is clear that reasonable doubt has arisen as to whether or not, the sample drawn from the substance recovered from the possession of the appellants has actually reached the FSL for its chemical analysis. 18. The material on record shows that the samples from the recovered substance were drawn on 23.08.2010 and the same were resealed by the Executive Magistrate First Class on the same date, but were delivered in the office of FSL on 01.09.2010 i.e. after nine days. The complainant has not produced either the Malkhana register or the In-charge of the Malkhana to prove the safe custody of the samples during the aforesaid period of nine days. Ordinarily, once the seals of the sample are found intact by the chemical examiner, non production of Malkhana register or In-charge Malkhana as a witness may not have any adverse impact on the prosecution case, but, in the instant case, the sample that has been delivered to FSL is shown to be different from the one that was resealed by the Executive Magistrate. In these circumstances, non production of the Malkhana register and non -examination of In-charge Malkhana as a witness has an adverse impact on the prosecution case as the prosecution has failed to rule out the possibility of tampering of the sample that was examined by the FSL. 19. Unless, it is proved beyond any reasonable doubt that the sample drawn from the substance recovered from the possession of the appellants was a contraband substance, the possession whereof is prohibited under the provisions of NDPS Act, the charge for offence under section 8/15 of the Act cannot be stated to have been established against the appellants. Unfortunately, the Special Judge has either ignored the aforesaid aspect or the same has not been brought to his notice, as a result of which, he has erroneously returned a finding that the substance recovered from the possession of the appellants is a contraband substance the possession whereof is prohibited under the provisions of the NDPS Act, without actually the said fact having been established by the complainant. The impugned judgment of the Special Judge for this reason cannot sustain and is, as such, liable to be set aside. 20. For the foregoing reasons, the appeal is allowed and the impugned judgment of conviction and order of sentence passed against the appellants by the Special Judge, Kathua is set aside. The appellants are acquitted of the charges and their bail and surety bonds are discharged. Record of the Special Judge, Kathua along with a copy of this judgment be sent back.