CRA No.1307-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.1307-SB of 2001 Date of decision : 25.11.2010 Randhir Singh ...Appellant Versus State of Haryana …Respondent CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN **** Present: Mr. Bhoop Singh, Advocate, for the appellant. Mr. Pradeep Virk, DAG, Haryana. **** JITENDRA CHAUHAN, J. (ORAL) 1. Challenge in this criminal appeal is made to the judgment and order dated 10.10.2001 (hereinafter referred as the ‘impugned judgment’) whereby learned Additional Sessions Judge-II, Jind (hereinafter referred as the ‘trial Court’), has convicted the accused- appellant for the commission of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ‘Act’), in case FIR No.20 dated 25.1.2000 u/s 18/61/65 of the Act registered at Police Station, Sadar Narwana and awarded him sentence to undergo rigorous imprisonment for a period of ten years and also to pay a fine of `1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two years. CRA No.1307-SB of 2001 -2- 2. The brief facts of the prosecution case are that on 25.1.2000, Inspector Narsingh, CIA Staff, Jind (PW6), while on patrolling duty at Bus Stand, Village Dharodi, along with H.C. Dhanpat Singh, H.C. Ramphal, UGC Jai Singh, UGC Hawa Singh, Constable Phul Singh and Constable Satbir Singh, received a secret information to the effect that one Randhir Singh alias Dhira son of Dharam Singh, resident of Village Dharodi, deals in sale and purchase of Opium in his house in Village Dharodi and if raided, huge quantity of Opium could be recovered from his house. Acting upon this secret information, a raiding party was formed and the house of the accused was raided. The Police party saw one young boy sitting on a cot in the compound of the house, who was apprehended and interrogated. He disclosed his identity as Randhir Singh alias Dhira son of Dharam Singh. He was served upon a notice, Ex.PE, under Section 50 of the Act, apprising him of his right to be searched before either a Gazetted Officer or a Magistrate. In his reply, Ex.PE/1, the accused opted to be searched in the presence of a Gazetted Officer. Thereafter, Inspector Narsingh gave a VT message in connection with conducting raid to recover contraband from the house of the accused to DSP Narwana and in pursuance thereof, Sukhdev Singh, DSP Narwana, along with his personal staff reached the spot within half- an-hour. 3. The accused suffered a disclosure statement to the effect that he has concealed 5 ½ kgs. of Opium in a steel container (doli) in a cattle minger (kholi) and none else except him, has its knowledge. This statement of the accused was reduced to writing, vide Ex.PF, and he was taken into custody. The accused got the steel Doli recovered from the cattle minger which was found to be CRA No.1307-SB of 2001 -3- containing the Opium on its opening. Weighing materials, i.e., scale and weights, were arranged through UGC Jai Singh and out of the total quantity of contraband recovered, two samples of 50 gms. each were separated and the residue weighing 5 Kgs. 400 gms. was poured back in the same Doli. The samples and the residue parcel were sealed separately with seal of ‘JC’. The seal after use was handed over to HC Dhanpat. DSP Sukhdev Singh also affixed his seal ‘SS’ on the parcels and retained the seal with him. Ruqa, Ex.PD, was prepared by Inspector Narsingh and sent to the Police Station, Sadar Narwana, through Constable Phul Singh, and on its basis, formal FIR No.20 dated 25.1.2000, was registered. Rough site plan of the place of recovery, Ex.PH, was prepared and statements of the prosecution witnesses were recorded. 4. The accused and the witnesses, along with the case property, were produced before SI Virender Singh, SHO, Police Station, Narwana, on the same day, who after verifying the factum of recovery, made endorsement on the Report and sent the same to DSP Narwana. MHC Harminder Singh sent the samples to FSL, Madhuban. 5. On the basis of the report of the FSL and after completion of the investigation, the accused was challaned under Section 173 Cr.P.C and the same was presented before the learned trial Court. 6. Thereafter, the accused was charge-sheeted under Section 18 of the Act to which he pleaded not guilty and claimed trial. 7. In order to substantiate its case, the prosecution examined as many as following eight witnesses:- CRA No.1307-SB of 2001 -4- PW1-HC Mahavir Singh, PW2-Constable Ramphal and PW3-Constable Dilhagh are the formal witnesses. PW4-HC Harminder Singh recorded the formal FIR, Ex.PD/1, on 25.1.2000, on receipt of Ruqa, Ex.PD. PW5-HC Dhanpat Singh and PW6-Inspector Narsingh, CIA Staff, Jind, reiterated the prosecution version. PW7-SI Virender Singh deposed that on 25.1.2000, while being posted as SHO, Police Station, Narwana, the accused, along with the case property and the witnesses, were produced before him and the fact of recovery was verified by him. PW8-DSP Sukhdev Singh also supported the case of the prosecution and further deposed that from a perusal of affidavits Ex.PA and Ex.PB along with the FSL report, Ex.PK, it revealed that the samples reached to the Director FSL, Madhuban with the seals intact and the substance recovered was found to be Opium. 8. After the prosecution concluded its evidence, statement of the accused under Section 313 Cr.P.C. was recorded while putting him all the incriminating circumstances coming in prosecution evidence against him, which he denied and pleaded false implication. In defence, no evidence was led by him. 9. After hearing learned counsel for both the parties and analyzing the record and evidence minutely, the learned trial Court convicted and sentenced the accused-appellant for the offence and term as indicated at the outset in para 1 of this judgment. 10. Aggrieved against the judgment of conviction and order of sentence, the present appeal has been preferred before this Court. 11. Learned counsel for the appellant has submitted that as per the case of the prosecution, secret information was received by CRA No.1307-SB of 2001 -5- Inspector Narsingh, PW6, however, this information was neither reduced into writing nor sent to the higher officials, therefore, there is non-compliance of Section 42 of the Act. 12. Learned counsel further contends that as per the record, the recovery effected was of 5 ½ Kgs. Out of the total contraband recovered, two samples of 50 gms. each were separated and wrapped in a cloth and put in a small round shaped container. However, as per the FSL report, Ex.PD, one of the samples which was sent for examination, was found wrapped in a polythene and the weight of said sample was found to be 42.310 gms. 13. Learned counsel has further argued that it has specifically come in the statement of HC Mahavir Singh, PW1, that the samples were sealed with the impression ‘JS’. He has pointed out that as per the FSL report, Ex.PK, the sample bears three seal impressions which reads as ‘VS’, ‘JC’ and ‘SS’. It is further submitted that as per the case of the prosecution, two samples of 50 gms. each were prepared, however, only one sample was sent to the FSL for examination. 14. Learned counsel has lastly submitted that the ruqa, Ex.PD, was sent after the recovery was effected and the proceedings were completed. There is also an inordinate and unexplained delay of 15 days in sending the samples to the FSL. 15. On the other hand, learned counsel for the State submits that huge quantity of contraband was recovered and if the ruqa was not sent immediately, it will not cause any suspicion on the case of the prosecution. The provisions of Section 42 of the Act have been sufficiently complied with in the present case. CRA No.1307-SB of 2001 -6- 16. I have heard learned counsel for the parties and perused the record. 17. Admittedly, the case of the prosecution is that 5 ½ Kgs. of Opium was recovered from the appellant. It is the further case of the prosecution that the contraband was separated and two samples of 50 gms. each were drawn which were wrapped in a cloth and put in a small round shaped container after affixing the seal of ‘JS’. However, from the perusal of report of the FSL, Ex.PK, the description of parcel contains three seal of impressions ‘JC’, ‘SS’, and ‘VS’. At the same time, the weight of the sample was found to be 42.310 gms. which was found to be wrapped in a polythene. There is no explanation whatsoever from the prosecution as to how and under what circumstances, the sample weighing 50 gms. was found to be underweight weighing only 42.310 gms. This fact clearly establishes that either the sample was tampered with or it was not the same sample which was recovered from the appellant. The difference of weight, description and non-bearing of the same impressions of seal as stated by the prosecution, makes the case of the prosecution highly doubtful. While dealing with a similar situation, a Division Bench of this Court, in State of Haryana Vs. Baljinder Singh, 2007 (3) R.C.R. (Criminal) 893, has observed as under:- “7. That apart, there are serious contradictions in the statements of the witnesses, which establish that the recovery was not effected not effected in the manner as alleged by the prosecution. As per Moti Lal Deputy Superintendent of Police (PW-1), the sample was taken in a tin box. A similar version was given by Darshan Singh Inspector (PW-5) and Om Parkash Inspector (PW-6), but CRA No.1307-SB of 2001 -7- the report, Ex.PD of Forensic Science Laboratory, Haryana contradicts the aforesaid version by disclosing that the sample was received in the Laboratory in a plastic container. Furthermore, all the three witnesses testified that the sample was weighing 27 gms, which leads me to hold that either the witnesses were not present at the time the sample was separated or the sample sent to the Laboratory, was not the same which was separated out of the bulk opium. Tampering of the sample parcel in this case also cannot be ruled out because as per the prosecution version the sample seal bearing impression ‘OP’ was handed over to Darshan Singh (PW-5) after its use. A similar version has been set up by the witnesses Moti Lal (PW-1) and Om Parkash (PW-6), but Darshan Singh (PW-5) is silent about handing over the sample seal to him after use. It may further be observed that according to Darshan Singh, the weights, with which the opium was measured, were of 2 kg, 1 kg and 500 mg (gm ?) and, thus the total weights were of 3.5 kg. whereas, as per the prosecution after separating the sample, the residue was 3 kg 880 grams. It is not understandable as to how the aforesaid bulk opium could be weighted with the aforesaid weights in one go as deposed by Om Parkash Inspector (PW-6) that the bulk opium was weighed at one time. Link evidence is also missing, in this case.” 18. In the instant case, the recovery was affected on 25.1.2000, however, the samples were sent to the FSL after a lapse CRA No.1307-SB of 2001 -8- of about 15 days. As per the standing instructions issued by the Narcotic Control Bureau, the sample must be dispatched to the Laboratory within 72 hours of its seizure to avoid any legal objection. Moreover, in the instant case, the seal after use has remained with the Police itself. In my considered view, sending of sample after 15 days without there being any explanation for the delay, is fatal to the case of the prosecution. This Court, in Ramji Singh Vs. State of Haryana, 2007(3) R.C.R. (Criminal) 452, has specifically held as under:- “8. Undisputedly, the contraband was seized on 19.9.1995 and the samples were drawn on that very day. The samples remained with the prosecuting agency upto 27.9.1995. As per the standing instructions issued by the Narcotic Control Bureau, the sample must be dispatched to the laboratory within 72 hours of its seizure to avoid any legal objection. However, in the present case, the samples were forwarded to the Chemical Examiner after 8 days of their seizure. It is well established by number of judicial pronouncements that where the seal remains with the police after use and the sample has been sent after a delay of 72 hours, this circumstance would be fatal to the prosecution case.” 19. It has come in the testimony of PW2, Narsingh, I.O., that the ruqa was sent after the recovery was affected and the proceedings were completed. The law mandates that it is incumbent upon the prosecution to reduce the secret information into writing and send the same to the Police Station from the same place itself. CRA No.1307-SB of 2001 -9- 20. Thus, there is no explanation for this material contradiction with regard to the seals, weight of the sample, sending the the ruqa after completing the formalities and withholding of one parcel, nor there is any explanation as to ultimately where the second parcel landed. All these circumstances taken collectively make the case of the prosecution completely doubtful and the cumulative effect of these factors is fatal to the case of the prosecution. Section 42 of the act reads as under:- “42. Power of entry search, seizure and arrest without warrant or authorisation (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or CRA No.1307-SB of 2001 -10- any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or for forfeiture under Chapter V A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset:- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: CRA No.1307-SB of 2001 -11- Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 21. This Court, in Jarnail Singh Vs. State of Punjab, 2007(1) R.C.R. (Criminal) 313, has taken a similar view and held thus:- “12. Section 42 of the NDPS Act was not complied with. It has come in the FIR Ex.PD/1 and the ruqa Ex.PD sent to the police station that a secret informer informed Jaspal Singh PW4, Inspector/SHO, Police Station Gidderbaha that if the house of the appellant is raided, a huge quantity of poppy husk can be recovered. Thereafter, a raid was conducted and after completing the formalities of checking of gunny bags and taking out samples of poppy husk, ruqa Ex.PD was sent, on the basis of which FIR Ex.PD/1 was recorded in Police Station Gidderhaba. It was incumbent upon the Investigating Officer to take down the information given by the secret informer at the bus stand of Village CRA No.1307-SB of 2001 -12- Butter Bakhua at 6.30 a.m. on 2.7.2000. Ruqa Ex.PD should have been sent from the bus stand itself and rest of the formalities of the raid should have been conducted thereafter.” 22. Resultantly, the present appeal is allowed. The judgment of conviction and order of sentence passed by the learned trial Court are hereby set aside. The appellant was admitted to bail by this Court. His bail bonds shall stand discharged. 25.11.2010 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter : Yes / No