Criminal Appeal No. 216-SB of 1994 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Criminal Appeal No. 216-SB of 1994 Date of decision : January 7, 2008 Dharam Pal Vs. Union Territory, Chandigarh CORAM: Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia. Present: Mr.Bipan Ghai, Advocate, for the appellant. None for the respondent-U.T., Chandigarh. K.S. Ahluwalia, J. (Oral) Dharampal son of Rachan Singh stands convicted by the Court of Additional Sessions Judge, Chandigarh under Section 15 of the Narcotic Drugs and Psychotropic Substances Act ( in short to be referred as `the Act') and sentenced to undergo ten years' rigorous imprisonment along with fine of Rs. one lac, in default of payment of fine to further undergo RI for two years. Aggrieved against the same, the accused-appellant has filed the present appeal. The appellant was sought to be prosecuted in case FIR No. 138 dated 19-11-1992 registered at police station West- Chandigarh. ASI Rajinder Pal of CIA Staff has stated that he was present on the bridge of village Khuda Lahora in connection with patrolling where Om Parkash son of Ram Lal, resident of Burail met him by chance. While he was busy with him in conversation, a secret informer is said to have relayed an information that a young Criminal Appeal No. 216-SB of 1994 2 boy is going to pass from the side of village Khuda Lahora carrying poppy husk in a gunny bag on a bicycle. The informer also stated that in case he is apprehended, poppy husk can be recovered. It is further stated therein that in the presence of ASI, with a gunny bag tied with a tube on the bicycle, a young man was sighted coming. He gave his name as Dharam Pal son of Rachan Singh. An offer was made to him whether he intended to be searched before a gazetted officer, upon which he consented and Surjit Singh DSP ( Crime) was called at the spot. On presentation of the accused before the DSP, his search was conducted and 16 Kgs of poppy husk is said to have been recovered from the gunny bag tied with a tube on his bicycle. The matter was investigated. Challan under Section 173 Cr.P.C. was submitted and the appellant was charged under Section 15 of the Act, to which he pleaded not-guilty and claimed trial. The prosecution examined as many as 8 witnesses: PW1 HC Mohan Singh tendered his affidavit Exhibit PA. PW 2 HC Satgur also tendered his affidavit Exhibit PB to prove the link evidence. PW 3 Jaswant Singh Draftsman prepared the scaled site plan Exhibit PC. PW 4 SI Avtar Singh is stated to have received a ruqa Exhibit PD. Criminal Appeal No. 216-SB of 1994 3 No cross-examination was directed against the aforesaid four witnesses. DSP Surjit Singh, who was a gazetted officer, appeared as PW 5. He has stated that he reached the spot and in his presence search was conducted and 16 Kgs of poppy husk was recovered from a gunny bag tied on the bicycle with a tube. In cross- examination, he denied the suggestion that Om Parkash, who was cited as an independent witness, is a stock witness of police or not. Om Parkash, the independent witness appearing as PW 7 has supported the case of the prosecution. In cross- examination, he has stated that he has never appeared as a witness in any case. Therefore, attempt of the defence to prove him as a stock witness could not succeed. However, he has admitted that several persons had passed from the place of recovery at that time, however, no one else was associated during search. PW 8 ASI Rajinder Pal is the Investigating Officer and he has supported the prosecution case on all material aspects. When examined under Section 313 of the Code of Criminal Procedure, the appellant stated that Om Parkash is a convenient witness as he was facing prosecution in a criminal case. In defence, appellant examined DW 1 Kirpal Singh, who stated that the appellant was taken from his house at 9-30 AM and later on he was falsely implicated. To fortify this plea, DW2 Vinod Kumar has been examined on the same lines. Criminal Appeal No. 216-SB of 1994 4 This Court is conscious of the fact that mere recovery of 16 Kgs of poppy husk has been effected from the appellant. It is also not denied by Mr. Ghai that though with the amendment of the Act, 16 Kgs is a non-commercial quantity but the appellant will not be entitled to benefit of the provisions of the amended Act. Therefore, the appellant, who had undergone 10 months by the time bail was granted, cannot be treated as one from whom non-commercial contraband was recovered. Having conceded this, Mr. Ghai has forcefully argued that the necessary safeguards regarding search, seizure and recovery have not been followed by the prosecution. He states that the contraband was not produced before the Judicial Magistrate as required under Section 52 of the Act, in consonance with instructions issued by the Central Government Standing Committee. It has been accepted to be guiding principle by Hon'ble Supreme Court. It is further stated that the recovery was effected on 19-11-1992. The sample was dispatched and was received by the Central Forensic Science Laboratory on 10-12-1992 whereas the requirement is that the same should reach within 72 hours. This Court could have condoned any delay on the part of the investigating/prosecuting agency, but where the recovery is small, the Court is to be on a guard to meticulously ensure that all safe guards are followed and no body is falsely implicated. It has also been brought to the notice of this Court that the CFSL form was not prepared at spot and the same was also not deposited along with Criminal Appeal No. 216-SB of 1994 5 the case property with the Moharrir Head Constable. It has also been brought to my notice that the Investigating Officer has nowhere stated that the sample prepared was harmonious and representative of the entire recovery. It has been further submitted that PW7 Om Parkash is discrepant as to when the seal entrusted to him was handed over to the Investigating Officer. There is nothing to ensure that the seal was not misused by the Investigating Officer. The very fact that the matter pertains to the year 1992 and the recovery of 16 Kgs of poppy husk, which in the present case is a non-commercial quantity, this Court finds that in such cases prosecution must be put to strict proof to ensure that all safeguards regarding search, seizure and recovery are adhered to. I have perused the record. There is nothing to inspire confidence that the investigating agency had followed the necessary safeguards to ensure that the accused has not been falsely implicated. In view of the foregoing discussion, the present appeal succeeds, the conviction and sentence awarded by the Court below are set-aside and he is acquitted of the charges framed. [Kanwaljit Singh Ahluwalia] Judge January 7, 2008. `ask'