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2017 (12) TMI 173
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....arned State counsel, the appellant has already undergone 03 years and 06 months of actual sentence and he is not involved in any such or similar case. Brief facts of the case are that on 07.06.2016, SI/SHO Dalbir Singh along with other police officials, on an official jeep bearing registration No.PB- 12F-0330, was going from Village Jhunir to Makhewala on patrol duty. When the police party reached near a telephone exchange in village Jhunir, a secret informer stopped them and told SI Dalbir Singh that one person namely Buta Singh son of Puran Singh, resident of Makhewala is in habit of selling intoxicant tablets and liquid i.e. Rexcof and he is coming from Makhewala to Jhunir for selling these intoxicant which he is carrying in a polythene bag and if a naka is held, large quantity of intoxicant tablets and Rexcof can be recovered from him. On the basis of secret information, a ruqa (information) was sent to police station through PHG Jagdev Singh for registration of case and directions were given to send the special report to senior officers. The naka (barricade) was held by SI Dalbir Singh along with other police officials on Jhunir-Makhewala road. One Ami Chand son of Lachhman D....
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....t after the accused was apprehended by the police, 20 tablets were separated and converted into a parcel and remaining tablets i.e. 22680 tablets were also sealed in a separate parcel. Similarly, a sample was drawn from Rexcof bottles and sample as well as the residues were sealed separately. This witness further stated that all the parcels were sealed by Investigating Officer under his seal impression 'DS'. Samples seal chit was prepared and the seal after use was handed over to the independent witness Ami Chand. The case property was taken in possession vide recovery memo Ex.PB, which was attested by him and Ami Chand. A rough site plan was also prepared and on personal search of the accused, Rs. 450/- were recovered and a personal search memo Ex.PC was prepared at the spot, which was also attested by him and Ami Chand and was also signed by the accused. Later on, the accused was arrested vide arrest memo Ex.PD and the same was also signed/attested by the witness and accused. In cross-examination, this witness has stated that "Investigating Officer did not ask the accused for availing his right to be searched before a Gazetted Officer or a Magistrate". This witness further state....
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....recovery was made thereafter. This witness further stated that "I do not remember that if I conducted any inquiry against Sanjeev Kumar regarding selling the intoxicant tablets. It is wrong to suggest that accused filed a complaint against him and Sanjeev Kumar". He further deposed that he informed DSP from the spot regarding recovery and stated that he did not know who filled Form No.29 and denied the suggestion relating to defence set up by the accused that the accused was falsely implicated in this case, as he has filed a complaint against him before the SSP. The Public Prosecutor vide its statement dated 13.05.2013 gave up independent witness Ami Chand, on the basis of request made by the police Mark A and closed the prosecution evidence. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded in which he denied all the incriminating evidence against him and thereafter, the case was fixed for defence evidence. In the defence, the accused examine DW1 Ranjit Singh and DW2 Bhola Singh, who were Sarpanch and Panch of Village Makhewala as accused Buta Singh was also resident of the same village. They deposed that about three years ago, Buta Singh had given ....
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....the DSP and inquiry report is Ex.DW4/D and final inquiry report is Ex.DW4/E and therefore, PW3 SHO Dalbir Singh was nursing a grudge against the appellant for filing a complaint against him. In this regard, it is also submitted that the said witness PW3 Inspector Dalbir Singh has totally denied that any complaint was made against him and inquiry was conducted, which further show that this witness is even trying to conceal the factual position, which is proved on record. On merits, it is submitted that it is admitted case of the prosecution, from a perusal of the FIR and the statement of two prosecution witnesses PW2 ASI Gurdip Singh as well as PW3 Inspector Dalbir Singh that at no point of time, any offer under Section 50 of the NDPS Act was made to the appellant-accused to be searched either before a Magistrate or a Gazetted Officer and in fact it is a case where it is clearly admitted by the prosecution witnesses that they have not made any such offer at any point of time either in writing or orally. Counsel for the appellant has further referred to the statement of these two witnesses where they have stated that the personal search of the appellant was also made vide recovery m....
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....n 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 - Surajmal is stated to have signed for himself and for respondent No.1 - Parmanand. Respondent No.1 Parmanand did not sign." It is next submitted on behalf of the appellant that while drawing the sample, only 20 tablets were separated from the alleged recovery of total 22700 tablets, which were in loose form and no proper procedure as per Standing Order No.1/89 dated 13.06.1989 issued by Govt. of India regarding drawing of sample, has been followed. Counsel for the appellant has relied upon where this Court has held as under: - "There is substance in the argument of the learned counsel for the accused-appellants that as per Standing Order No. 1/89 dated 13th June, 1989, issued by Government of India, Ministry of Finance (Department of Revenue), it has been made mandatory that two samples must be drawn from the recovered substance, failing which, the whole recovery procedure will be vitiated. It has been further provided in the circular that the quantity to be drawn in each sample for che....
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....iners remain, no bunching would be necessary and no samples need to be drawn. 2.7 (ii) Other Drugs.- If such remainder is 5 or more in the case of other drugs and sub stances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder pack age/container. 2.8 Drawal of representative samples.- While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9 Storage of samples-procedure.- The sample in duplicate should be kept in' heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope should may be sealed property. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the S. No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in a....
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....vestigating Officer, as all the loose tablets were not mixed together to make it a uniform bulk for the purpose of drawing the sample. It is also argued that out of total recovery, only 20 tablets were separated as sample parcel, which do not represent the entire bulk. It is next contended that it has come in the statement of PW3 Inspector Dalbir Singh that when he presented the case property before the Judicial Magistrate, the Court passed the order Ex.PK for depositing the parcels in the malkhana, however, he only deposited the bulk parcel. Thus from 07.06.2010 till 16.06.2010 i.e. for a period of 09 days, he kept the sample parcels with him and has never deposited the same in the malkhana. It is also submitted by learned counsel for the appellant that it has come in the statement of this witness that at the time of sealing the sample, seal impression 'DS' was handed over to independent witness Ami Chand and after 04 days, the same was returned to him i.e. for a period of about 06 days prior to sending the sample to FSL. Therefore, the seal was available with PW3 Inspector Dalbir Singh, hence, there is every possibility that the seal of the sample parcels was tampered by him. ....
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....inform the suspect that he has right to be informed in the presence of the Gazetted Officer. It was held by Constitution Bench that if search is conducted in violation of Section 50, it may not vitiate the trial but that would render the recovery of illicit articles suspect and vitiates the conviction and sentence of the accused. What is said about non-compliance of Section 50 is also true with regard to non-compliance of Section 42 of the Act." Counsel for the appellant has submitted that it is in the evidence of the prosecution that there was no batch number or name of manufacturer with regard to 33 bottles of Rexcof and therefore the sample was not properly drawn with regard to said recovery. In support thereof, he has placed reliance upon wherein the Hon'ble Supreme Court has held as under: - "Then the other ingredient that has to be satisfied is whether the substance found in possession of the appellant was intended for his personal consumption and not for sale or distribution. No doubt as the Section lays down the burden is on the appellant to prove that the substance was intended for his personal consumption. As to the nature of burden of proof that has to be discharged ....
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....ion and order of sentence may be set aside. In reply, learned State counsel has submitted that non-examination of the independent witness is not fatal to the prosecution version, as the appellant has joined the independent witness, however, the same was given up as won over by the accused. With regard to the arguments regarding non-compliance of Section 42(a) of NDPS Act, it is submitted that provisions of Section 42 (a) of NDPS Act apply in a case relating to recovery of a vehicle or a building and not a person. It is further submitted that the bulk parcel was duly deposited in the judicial malkhana in compliance of the order of the Judicial Magistrate and there is no allegation that seal of the sample parcels was tampered with. It is also submitted that it is not proved on record that the application Ex.DW4/A was given by the appellant against PW3 Inspector Dalbir Singh and there is no plausible defence put up by the appellant-accused. After hearing learned counsel for the parties, I find merit in the present appeal, for the following reasons: - (i) The trial Court has completely ignored the defence evidence led by the appellant and has failed to evaluate the prosecution evid....
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....cially in view of the fact that the appellant has set up a clear defence, which is proved from the statements of independent witnesses DW1 and DW2 that about one week prior to registration of FIR, the appellant has lodged a complaint with SSP, Mansa that PW3 Inspector Dalbir Singh, SHO, PS, Jhunir along with Sanjiv Kumar are indulged in sale of intoxicants. (iii) The prosecution has examined only three witnesses, out of which PW1 HC Gurdeep Singh is a formal witness, who has deposited the sample parcel to FSL. However, there is no explanation given by him that why the sample was not deposited on the same day, as this witness has stated that after obtaining the sample on 16.06.2010, he stayed in police station, Mansa on 16.06.2010 and deposited the same with FSL on 17.06.2010. (iv) Even the statement of Investigating Officer PW2 ASI Gurdip Singh do not inspire much confidence. This witness has also stated that the sample parcel and bulk parcel were sealed with seal impression 'DS' and it was handed over to independent witness Ami Chand and with regard to compliance of Section 50 of NDPS Act, this witness clearly admitted that the Investigating Officer did not ask the accused to ....
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.... shows the date as 16.06.2010, i.e. the date when the same was sent to FSL, which raises a doubt that Form No.29 was filled at the spot or not. Though the samples seal slip is pasted with glue on this document at the bottom and it has been signed by SSP, Mansa, but again no date is mentioned, on which date SSP, Mansa signed this document. (x) A perusal of Ex.PK, the order passed by the Judicial Magistrate on 08.06.2010, also do not show that the Magistrate has seen Form No.29 along with case property. The order is reproduced as below: - "Case property in cloth bag containing intoxicants tablets & syrup bottles along with two sample parcel of syrup bottle & intoxicant tablets produced in the Court in intact condition sealed with seal bearing impression 'DS'. The same are seen and verified by the undersigned. Case property be deposited in judicial malkhana & sample parcels be sent to the office of chemical examiner for chemical test." (xi) It has also come in the statement of both the prosecution witnesses i.e. PW1 and PW2 that it was not a case of chance recovery. As per the version given in the FIR, both these witnesses received a secret information on the basis of which, a ru....