Sukhdev Singh vs State Of Haryana

2. On 4th February, 1994, ASI Nand Lal along with HC Hoshiar Singh, HC Suraj Bhan and other police officials were present in village Jogewala, in connection with patrolling duty. ASI Nand Lal, who was examined as PW 1, received secret information against the accused that the accused was in the habit of selling chura post (poppy husk) in his house and if a raid is conducted upon the house of the accused, the accused can be caught red- handed with the contraband. One Nacchatter Singh is stated to have been associated with the raiding party which raided the house of the accused. However, this witness was declared hostile before the Court during his examination. On conducting a search, five bags were found lying concealed under a heap of chaff in the courtyard of the house of the accused. On suspicion of having some intoxicant in his possession, the Investigating Officer served notice upon the accused under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) giving him an offer to be searched before a Gazetted Officer or a Magistrate. Accused is stated to have responded to such notice vide Ext. PC/1 where he expressed his desire to be searched before a Gazetted Officer of the police. Upon having known the desired choice of the accused, it is stated that PW1 had sent an application, Ext. PD, to the Deputy Superintendent of Police, Dabwali, through Constable Amir Singh requesting him to reach the spot. Mr. Jagdish Nagar, DSP, reached the spot after about half an hour and upon his instruction the search of the bags was conducted. From each gunny bag, 100 grams of chura post was separated as sample. The samples as well as the remaining gunny bags weighed 39 kgs. and 900 grams each and were sealed with the seal bearing impressions JN and NL, and thereafter were taken into possession vide recovery memo Ext. PE. The seal NL was handed over to HC Hoshiar Singh while seal JN was retained by the DSP himself. After completing this process, a ruqa Ex. PF was sent to the police station where the FIR being Ext. PF/1 was registered under Sections 15/16/61/85 of NDPS Act. The Investigating Officer prepared a site plan Ext. PG. On return to the police station, the case property was handed over to the MHC with its seals intact. After receiving the test report Ext. PH from the Forensic Science Laboratory, Haryana, Madhuban (Karnal) and after completing all other formalities, the challan was filed. The challan in terms of Section 173 of the Code of Criminal Procedure, 1973 (for short “Cr.PC”) was presented before the court of competent jurisdiction. The prosecution examined a number of witnesses including PW1 Nand Lal, PW2 Jagdish Nagar, DSP and PW Nachhattar Singh. Affidavits of Nihan Singh, Head Constable and Tejas Singh, Constable (Ext. PA and PB respectively) were taken into evidence. The accused took the plea that he had been falsely implicated in the case at the instance of Harnand Singh, Ex-Member of the Block Samiti of the area and examined four witnesses in support of his case. The Trial Court vide its judgment of conviction dated 4th July, 1998 held the accused guilty of an offence punishable under Section 15 of NDPS Act and after hearing the party on the quantum of sentence vide its order dated 6th July, 1998 awarded 10 years’ rigorous imprisonment to the accused with fine Rs. 1 lakh and in the event of default to undergo simple imprisonment for another two years. The legality and correctness of the judgment and order of sentence was challenged by the accused before the High Court.

3. The High Court vide its detailed judgment dated 27th March, 2008 declined to interfere with the judgment of the Trial Court and while upholding the same, maintained the order of sentence, giving rise to the filing of the present appeal.

20. Having referred to the above settled principle of law, we are unable to accept the contention raised on behalf of the State and have to grant our approval to the submission made on behalf of the appellant.

24. Thus, the present appeal merits grant of relief to the accused. We accordingly set aside the judgment of the High Court as well as the Trial Court and acquit the accused of an offence under Section 15 of NDPS Act. We direct the accused to be set at liberty forthwith, if not required in any other case.

26. The Registry shall send a copy of this judgment to all the Director Generals of Police of the States for immediate compliance.

27. The appeal is accordingly allowed.