Crl.Appeal No.556-DBA of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.556-DBA of 1999 Date of decision: 6.1.2010 State of Punjab ... Appellant versus Dharam Singh ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Ms.Gurveen H.Singh Addl.AG, Punjab, for the appellant. Mrs.Baljit Kaur Mann, Advocate, for the respondent. ... JORA SINGH, J. State of Punjab through Public Prosecutor filed this appeal to impugn the judgment dated 6.4.1999 rendered by Additional Sessions Judge, Sangrur, in FIR No.52 dated 25.6.1996 under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act'), Police Station Longowal, vide which Dharam Singh, accused-respondent, was acquitted of the charge levelled against him. Prosecution story, in brief, is that on 25.6.1996, police party headed by ASI Karnail Singh while on patrol duty was going towards Village Jharron. When police party was near the bridge of drain in the area of village Jharron, they sighted the accused while coming from the opposite direction. At that time, the accused was carrying a plastic envelope in his right hand. On seeing the police party, accused tried to flee away towards his left side in the fields. On suspicion, the accused was apprehended. In the meantime, Roop Singh, Chowkidar, came from the side of village Togewal. Roop Singh was joined by the police party. On enquiry, the Crl.Appeal No.556-DBA of 1999 2 accused disclosed his name as Dharam Singh son of Chand Singh. The Investigating Officer told the accused that the envelope carried in his right hand was to be searched. Offer was given to the accused as to whether he wanted the plastic envelope carried by him to be searched before any Gazetted Officer or a Magistrate, but the accused reposed faith in the Investigating Officer. Consent memo was prepared, which was signed by the accused and attested by the witnesses. The Investigating Officer searched the envelope carried by the accused and on search, intoxicating tablets, namely, Diazepam were recovered from the plastic dabba. Two samples, each of 25 tablets, were separated and were converted into two separate plastic dabbis. Remaining tablets after counting were found to be 1800. Remaining tablets were transferred into a separate plastic dabbi. Two samples, each of 25 tablets, and remaining tablets in a separate dabbi, were sealed by the Investigating Officer with his own seal bearing impression `KS'. The seal after its use was handed over to HC Harbans Singh. Case property was taken into police possession. On personal search, currency notes of Rs.30/- were recovered from the accused. Ruqa was sent to the Police Station, on the basis of which, formal FIR was registered. Rough site plan with correct marginal notes was prepared. On return to the Police Station, the accused along with case property was produced before SI/SHO Gurpreet Singh. SHO checked the case property and after verification sealed the case property with his own seal bearing impression `GS' and also affixed his seal on the sample seal. The case property was deposited with the MHC. On 1.7.1996, one sample parcel was sent to the office of Chemical Examiner and as per report of the FSL, average 50 mg Crl.Appeal No.556-DBA of 1999 3 Diphenhydramin hydrochloride and average 5 mg of Diazepam have been found in each of these tablets. After completion of investigation, challan was presented. The accused was charged under Section 22 of the Act. Prosecution examined four witnesses. Constable Gurtej Singh (PW1) had deposited the sample parcel in the office of Chemical Examiner on 2.7.1996. Receipt obtained was handed over to the MHC on 3.7.1996. MHC Swaran Singh (PW2) stated that on 25.6.1996, case property was deposited with him by SI Gurpreet Singh. On 1.7.1996, he had handed over one sample parcel to Constable Gurtej Singh for depositing in the office of Chemical Examiner. After deposit, the receipt obtained was handed over to him on 3.7.1996. SI Gurpreet Singh (PW3) stated that on 25.6.1996, he was the SHO of Police Station Longowal. On that date, ASI Karnail Singh produced the accused and the case property before him. After verification, he had affixed his own seal bearing impression `GS' on the entire case property and also on the sample seal. The case property was deposited with the MHC. HC Harbans Singh (PW4) is one of the recovery witnesses. He stated that on 25.6.1996, he was with the police party headed by ASI Karnail Singh. The police party was on patrol duty and was near the bridge of drain in the area of Village Jharron. The accused was noticed while carrying a plastic envelope in his right hand. Roop Singh was joined as an independent witness. Under rules, envelope was searched. 1800 tablets of Diazepam were recovered from the plastic envelope. Out of recovered Crl.Appeal No.556-DBA of 1999 4 tablets, two samples, each of 25 tablets, were separated. Samples and the remaining tablets were separately sealed by the Investigating Officer with his own seal bearing impression `KS'. Seal after its use was handed over to him. After the close of prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. Accused denied all the prosecution allegations and claimed to be innocent. Opportunity was given to the accused to lead evidence, but no evidence was led by him. After hearing learned Addl.PP for the State, learned defence counsel for the accused and from the perusal of the documents on the file, Dharam Singh, respondent-accused, was acquitted of the charge levelled against him by the judgment under challenge. Learned State counsel argued that police party was on patrol duty. Accused was noticed while carrying plastic envelope. In the presence of independent witness, intoxicating tablets were recovered from the plastic envelope. Recovery was not from the person of the accused but learned trial Court opined that Section 50 of the Act is applicable. The search of accused was not conducted as per mandatory provisions of the Act. Second point for acquittal is that recovery of Diazepam tablets is not an offence punishable under the Act. Independent witness was with the police party. Non- examination of independent witness is fatal. Lastly, learned trial Court opined that affidavits (Ex.PA and Ex.PB) are defective, but opinion of the trial Court is not correct one. Recovery was per chance from the envelope carried by the accused. Independent witness was with the party but he was given up as won over by the accused. Section 50 of the Act is not Crl.Appeal No.556-DBA of 1999 5 applicable. Constable Gurtej Singh tendered his affidavit (Ex.PA), whereas MHC Swaran Singh tendered his affidavit (Ex.PB), but no question was put to the witnesses that the affidavits are defectives. Non-examination of independent witness is not fatal. In case Roop Singh was not with the police party, then he could easily be produced in defence. Evidence on the file was not properly scrutinized. Learned counsel for the respondent argued that recovery of intoxicating tablets was from the plastic envelope carried by the respondent- accused. Learned counsel for the respondent frankly admitted that recovery was not from the person of the accused, therefore, Section 50 of the Act is not applicable. But link evidence is missing. Recovery was on 25.6.1996, but no evidence on the file that the case property along with the respondent- accused was produced before the Magistrate by the Investigating Officer or SI/SHO Gurmeet Singh. As per evidence, SI Gurpreet Singh has deposited the case property with the MHC. Independent witness was with the police party, but seal after its use was not handed over to the independent witness. HC Harbans Singh and the Investigating Officer were posted in the same Police Station, headed by SI Gurpreet Siungh, whereas sample parcel was handed over to Constable Gurtej Singh on 1.7.1996 for depositing in the office of Chemical Examiner. According to the prosecution story, case property was sealed by the Investigating Officer with his own seal bearing impression `KS'. Seal after its use was handed over to HC Harbans Singh. Seal impression was prepared. Evidence further shows that the SHO after checking the case property, had affixed his own seal bearing impression `GS' on the entire case property. That means there were two seals, one of the Investigating Officer and the second of the SHO, but no evidence on the file Crl.Appeal No.556-DBA of 1999 6 that seal impression of the seal used by the SHO was prepared. When no seal impression was prepared, then no question of sending the sample parcel with seal impression of `GS', whereas report of the Chemical Examiner is to the effect that sample parcel was found sealed with two seals bearing impressions `GS' and 'KS'. Seals were found tallying with the specimen seals. When no seal impression of the seal of the SHO was prepared, then question is how the seals of the parcel were found tallying with the specimen seals. Investigating Officer was not examined by the prosecution. Due to non-appearance of Investigating Officer, link evidence is missing. Evidence on the file was rightly scrutinized. Learned counsel for the respondent requested to dismiss the appeal. First submission of learned State counsel is that while present in the area of village Jharron, the respondent-accused was apprehended while carrying plastic envelope. Independent witness, namely, Roop Singh, Chowkidar, was joined by the police party. Recovery is from the plastic envelope, but learned trial Court opined that there is a violation of Section 50 of the Act. But approach of learned trial Court seems to be not correct one. No doubt, Sections 42 and 50 of the Act are mandatory. When there is a violation of mandatory provisions of the Act, then prosecution story is to be ignored, but in the present case, recovery of intoxicating tablets was not from the person of the respondent-accused. Recovery was from the plastic envelope carried by the respondent-accused. There was a plastic dabba in the envelope and from that dabba, loose tablets were recovered. As discussed earlier, respondent-accused was sighted while carrying a plastic envelope and before search of plastic envelope, offer was given to the accused as to whether he wanted the plastic envelope to be searched before Crl.Appeal No.556-DBA of 1999 7 any Gazetted Officer or a Magistrate. Respondent-accused had reposed faith in the Investigating Officer and agreed that plastic envelope be searched by him. Consent memo was prepared, which was signed by the accused and attested by the witnesses. After that, in the presence of Roop Singh and other police officials, envelope was searched and in the plastic envelope, there was a plastic dabba and from that plastic dabba, tablets were recovered. That means recovery was not from the person of the accused, so Section 50 of the Act is not applicable in the present case. In 2009(4) Recent Apex Judgments 330, Balbir Kaur vs. State of Punjab, it was held that recovery of two bags of poppy husk carried by the accused- Section 50 of the NDPS Act not applicable- Section 50 is applicable in relation to a person as contrasted to search of premises, vehicles or articles. Next submission of learned State counsel is that Roop Singh, independent witness, was joined, but he was given up as won over by the accused. Trial Court wrongly opined that non-examination of Roop Singh is fatal. Submission of learned State counsel seems to be reasonable one. When police party was on patrol duty, then noticed respondent accused while coming from the front side, while carrying plastic envelope. In the meantime, Roop Singh appeared there and was joined by the police party. In the presence of Roop Singh, tablets were recovered from the plastic envelope. Case property was sealed by the Investigating Officer with his own seal bearing impression `KS', but the seal after its use was not handed over to Roop Singh. Normally when independent witness is joined, then Investigating Officer is expected to hand over his seal after its use to the independent witness to show that there is no possibility of tampering with the case property, but if the seal after its use is not handed over to Crl.Appeal No.556-DBA of 1999 8 independent witness, then on this short ground, the prosecution story is not to be ignored. Roop Singh was the resident of Village Togewal. Respondent-accused is also from the same village. When independent witness from the same village is joined, then normally independent witness fails to appear to support the prosecution story. If Roop Singh was not with the police party, then he could easily be produced in defence. Before present recovery, police officials had no enmity with the respondent-accused, so there was no idea to choose the respondent-accused to implicate in the present case. Hon'ble Supreme Court in Balbir Kaur's case (supra), held as under: “Recovery was of two bags of poppy husk in presence of independent witness, namely, Rajwant Pal Singh, but independent witness was not examined as won over by the accused. Independent witness appeared in defence. With the appearance of independent witness in defence, search and recovery cannot be said to have vitiated.” In the present case also, seal after its use was not handed over to Roop Singh. After recovery, case property was produced before the SHO. The SHO affixed his own seal bearing impression `GS' on the sealed parcels. Thereafter, the case property was deposited with the Incharge of Malkhana. Therefore, non-appearance of Roop Singh is not fatal. Next submission of learned State counsel is that trial Court wrongly opined that recovery of Diazepam tablets is not an offence under the Act. Trial Court while answering the above said question as to whether recovery of Diazepam is an offence punishable under the Act or not had relied upon (i) State of Haryana vs. Naresh Kumar, 1997(2) RCR Crl.Appeal No.556-DBA of 1999 9 (Crl.) 752; (ii) Deep Kumar vs. State of Punjab, 1997(2) RCR (Crl.) 417; (iii) Ashok Kumar vs. State of Punjab, 1997(4) RCR (Crl.) 593, and (iv) Rajeev Kumar vs. State of Punjab, 1997(4) RCR (Crl.) 846. But the above cited authorities are not applicable to the facts of the present case. We have gone through the evidence on the file and are of the opinion that approach of the trial Court to answer the above question against the prosecution is not correct one. As per Section 2(xxiii)of the Act, “psychotropic substance” means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. As per Schedule-I, recovery of narcotic drugs and psychotropic substances is punishable under different Sections of the Act. At Sr. No.43 of the Schedule, Diazepam falls in the list of psychotropic substances. At Sr.No.194 of the Notification dated 16.7.1996, specifying small quantity and commercial quantity, when there is a recovery of 20 gm. of Diazepam, then recovery is small quantity, upto 500 gm. recovery of Diazepam is non-commercial and above that, recovery is commercial. In State of Haryana vs. Naresh Kumar's case (supra), recovery was of Diazepam tablets. Allegation of the State was that recovery is of psychotropic substance. Accused had no licence to possess the same under the provisions of the Act. There is a general prohibition under Rule 64 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 that no person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified Crl.Appeal No.556-DBA of 1999 10 in Schedule I. Allegation of the State was that the accused had no licence under the Drugs and Cosmetics Act, 1940. Ultimately, the Court held that recovery of Diazepam from the accused without licence is not punishable under the Act. In Deep Kumar's case (supra), recovery of different drugs including Diazepam tablets was from the premises of M/s Goyal Sales Corporation carrying on the business of chemists and druggists, having Drug Licence valid upto 31.12.1993. In Ashok Kumar's case (supra), again recovery of Diazepam from the accused, who had a licence to deal in the sale of drugs. Recovery was from the medical hall run by the accused. Case under the NDPS Act was registered, then it was held that recovery of Diazepam recovered from the accused is not punishable under the NDPS Act. Allegation of the State was that accused did not show the licence. In Rajeev Kumar's case (supra), recovery of Diazepam was from the premises of M/s R.K.Medical Store, New Dana Mandi, Sirhind, carrying on the business of whole-sale chemists under a valid drugs licence, authorising to sell, stock or exhibit (or offer) for sale or distribute the drugs. Held that none of the drugs contained contraband in excess of permissible limit-No offence under sections 21 and 22 made out. But in the present case, respondent-accused was not a licencee. He was not carrying on the business of sale and purchase of drugs against a valid licence. Recovery of Diazepam tablets without licence from the respondent-accused is punishable under the Act. As per story, 1850 tablets were recovered. Two samples, each Crl.Appeal No.556-DBA of 1999 11 of 25 tablets, were separated. One sample parcel of 25 tablets was sent to the laboratory for report. As per report of the laboratory, Diazepam to the extent of 5 mg in each tablet was found. That means in 25 tablets, quantity of Diazepam was 125 mg. Loose tablets were recovered from the dabba carried by the respondent-accused in a plastic envelope. Question is whether the remaining tablets were containing 5 mg of Diazepam in each tablet or not. In case we presume that all the tablets, i.e., 1850 were containing 5 mg. of Diazepam per tablet, then as per quantity of Diazepam in each tablet, total recovery of Diazepam would be of 92.50 gm., which is non-commercial. Learned State counsel failed to convince how the remaining tablets are presumed to be of Diazepam to the extent of 5 mg per tablet, when tablets recovered were not in the form of strips. Last submission of learned State counsel was that affidavits (Ex.PA and Ex.PB) were wrongly rejected by the trial Court by observing that word `attested' was not written by the Judicial Magistrate. Suppose both the affidavits are genuine and are not defective, even then, the story is doubtful because according to SI Gurpreet Singh case property along with accused was produced before him by ASI Karnail Singh. After verifying the investigation, he had sealed the case property with his own seal bearing impression `GS'. He had deposited the case property with the Incharge of Malkhana. That means, after recovery, case property was sealed by the Investigating Officer with his own seal bearing impression `KS' and after that, when the case property was produced before the SHO, then after verifying the investigation, he had further sealed the case property with his own seal bearing impression `GS'. Meaning thereby, there were two seals on the sealed parcels. One seal was bearing impression `KS' and the second Crl.Appeal No.556-DBA of 1999 12 of `GS'. Case property was deposited by the SHO with the Incharge of Malkhana. Unfortunately, Investigating Officer was not examined by the prosecution on the allegation that he had died. Only recovery witness produced by the prosecution is HC Harbans Singh, but HC Harbans Singh did not state a word that in his presence, case property was produced by the Investigating Officer before the SHO and in his presence, the SHO after verifying the investigation, had sealed the case property with his own seal bearing impression `GS'. When HC Harbans Singh appeared in the Court, then at that time, case property was not produced in the Court. Ex.PB is the affidavit of MHC Swaran Singh. On 1.7.1996, one sample parcel was handed over to Constable Gurtej Singh for depositing in the office of Chemical Examiner. HC Harbans Singh and the Investigating Officer were posted in the same Police Station headed by SI/SHO Gurpreet Singh. Seal after its use was not handed over to the independent witness. In fact, seal after its use was handed over to HC Harbans Singh. Investigating Officer was not examined by the prosecution. The Investigating Officer was to state whether he had produced the case property before the SHO; whether SHO had affixed his own seal on the sealed parcels, and after that, whether case property remained with the SHO or after production of the case property before the SHO, the Investigating Officer had taken back the case property and deposited the same with the Incharge of Malkhana. In the absence of statement of the Investigating Officer, affidavits (Ex.PA and Ex.PB) were rightly ignored. Possibility of tampering with the case property cannot be ruled out. In view of the statement of sole witness, prosecution story can be accepted, but statement should inspire confidence. Statement of HC Harbans Singh without any independent corroboration is not Crl.Appeal No.556-DBA of 1999 13 sufficient for conviction of the respondent-accused because firstly, no explanation why seal after its use was not handed over to the independent witness and secondly, HC Harbans Singh is not in a position to state whether Investigating Officer had produced the case property before the SHO or not and who had deposited the case property with the Incharge of Malkhana. In view of the above discussion, we do not find any ground to interfere in the judgment of acquittal of the respondent. Thus, appeal is hereby dismissed. ( JORA SINGH ) JUDGE 6.1.2010 ( SATISH KUMAR MITTAL ) pk JUDGE