NDPS Acquittal - Latest Judgment

 IN THE HIGH COURT OF PUNJAB AND HARYANA 

AT CHANDIGARH

                                  CRA-S-262-SB-2018 (O&M)

Reserved on: 01.08.2022

                                Date of decision: 26.08.2022

BUTA KHAN ...                                   Appellant

     Versu.     

STATE OF PUNJAB ...                     Respondent

CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR

Present: Ms. Manpreet Ghuman, Advocate 

for the appellant.

Mr. M.S. Nagra, Asst. A.G. Punjab

****

SURESHWAR THAKUR, J.

1. The learned Special Judge, Patiala through a verdict drawn on

02.12.2017, upon Sessions Case No.10 of 21.02.2017, made a verdict of

conviction, upon, the convict qua charges drawn against him, under Section 22

of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to

as “the Act”), and, thereafter through a separate sentencing order, drawn on

02.12.2017, proceeded to sentence the convict to rigorous imprisonment

extending upto a term of 10 years, and, also imposed, upon him a fine of

Rs.1,00,000/-, besides in default of payment of fine, he sentenced the convict to

undergo rigorous imprisonment for one year.

2. The convict becomes aggrieved from the verdict of conviction, and,

consequent therewith sentence (supra), as became imposed upon him, by the

learned Convicting Court, and, is led to institute thereagainst, the instant appeal

before this Court. 

(READ ALL THE JUDGMENT HERE  click here)

3. The investigating officer concerned, after apprehending the convict-

accused at the crime site, caused recoveries of COREX, besides of LOMOTIL

tablets, from the polythene bag lying in a black colour polythene bag, as, held in

the right hand of the convict. On counting the recovered bottles make COREX,

they were found to be 15, and, each bottle was found to be bearing manufacture

date May 2016, and, expiry date October 2017. Moreover on counting the

recovered intoxicant strips of LOMOTIL, they were found to be 9 in number,

and, each strip was found to be containing, 60 tablets, and, total number thereof

was found to be 540 tablets, besides, each strip was found to be bearing the

manufacturing date January 2016, and, expiry date June 2018. The above made

recoveries were kept in the same polythene bags, wherefroms they were

retrieved, and, also at the crime site, the investigating officer concerned,

proceeded to prepare cloth parcels of the seizure. The cloth parcel was sealed

with seal impression IS.

(READ ALL THE JUDGMENT HERE  click here)

4. The above recovery was, as unfolded in Ex. PW-2/B hence effected,

at the crime site,.

5. The accused was arrested through memo embodied in Ex.PW-2/D.

Through a memo drawn in Ex.PW-2/E, the investigating officer concerned,

made a personal search of the convict, and, resultantly the recoveries as detailed

therein became effected. Subsequently, the investigating officer concerned,

caused production of the seizure, as made, at the crime site, before the SHO of

the police station concerned, and, through a memo drawn in Ex.PW-2/F, and, in

Ex.PW-2/G, at the police station concerned, the SHO after properly checking the

case property attested the same with his seal impression bearing superscription

GS. The FIR bearing No.62 of 01.09.2016 was registered at the police station

concerned, after a ruqa being sent there from the crime site through a police

official, by the investigating officer concerned

(READ ALL THE JUDGMENT HERE  click here)

6. Ex.PW-2/L signatured by the Judicial Magistrate concerned, and,

contents whereof are extracted hereinafter, do on their perusal reveal, that during

the course of preparation of the inventory with respect to the seizure rather the

apposite seizure(s) becoming sealed with seal impression bearing superscription

HS, and, also its perusal reveals that, the remaining case property appertaining

to COREX, and, LOMOTIL becoming enclosed in separate case property

parcels. Through Ex.PW-2/I, a parcel containing one bottle COREX, and,

another parcel containing 20 tablets of LOMOTIL, became sent through Head

Constable Ravinder Kumar No.1303/GRP, to the FSL Phase-4, Mohali, for the

makings of analyses thereons. The FSL concerned, made thereons its opinion,

opinion whereof, is borne in Ex.PW-2/N. A perusal of Ex.PW-2/N, unfolds that

on examination of the stuff inside the cloth parcels concerned, an opinion being

formed by the examiner concerned, that each of the parcels rather containing the

prohibited psychotropic substance(s).

Details of cases

in which the

Articles were

recovered

Description of

Articles

Weight/

Qnty.

Description remarks

of seal used on the

Articles

F.I.R. No.62

Dated

01.09.2016

U/s 22-61-85

NDPS Act

S/V Butta Khan

P.S. GRP,

Patiala

A parcel containing 1

sample bottle

COREX

A parcel containing

sample 20 tablets

LOMOTIL

1 bottle

COREX

20 tablets

LOMOTIL

HS

The article sent through HC Ravinder Kumar No.1303/GRP certified

that one articles are intact and in good condition. Each bottle of other

articles being wrapped us separately.

Sd/- 

Sub Divisional Judicial 

Magistrate, Rajpura

Office of the assistant Inspector General, G.R.P. (Punjab), Patia

No.3062526 date 07.09.16

Sd/- 

Assistant Inspector General, 

G.R.P (Punjab), Patiala.

HC Ravinder Kumar 1303, 

Mobile No.9855045410

MHC 8588075631

Dated 07.09.2016

7. The report of the Chemical Examiner Ex.PW-2/N, is ad-verbatim

reproduced hereinafter.

“xxx

3. Case reference: FIR No.62 dated 01.09.2016 U/S 22/61/85 ND & PS

Act, PS GRP Patiala.

4. Date of Receipt: 07.09.2016

5. Mode of Receipt: Through HC Ravinder Kumar, 1303/GRP

6. Articles Received: Two parcels marked as 1 and 2 in the laboratory,

each sealed with one seal of 'HS' alleged to contain intoxicating material.

Seals on the parcels were found intact and tallied with the specimen seal

impressions.

On opening the parcels were found to contain the following: 

Parcel no.1: A small sized plastic bottle labelled as 'COREX' containing

100 ml orange coloured liquid material.

Parcel no.2: Twenty tablets of white colour in a strip labelled as

'Lomotil'.

Average weight = 63 mg/tablet

7. Purpose of reference: Analysis and Report.

8. Identification & Tests:

Ingredients present Average quantity of ingredients in the parcel

no.

Chlorpheniramine

Maleate

3.4mg/5ml -

Codeine Phosphate 9.5mg/5ml -

Diphenoxylate

Hydrochloride

- 2.3mg/tablets

Atropine Sulphate - 0.022mg/tablet

REPORT

The contents of the parcels no.1 & 2 under reference have been

analyzed separately by chemical analysis. On the basis of analysis, the

ingredients alongwith their quantities found present in these have been

given at serial No.8 (Identification and Tests) of this report.

Caused it examined Examined by

Sd/- Asst. Director (Toxi) Sd/- (Sandeep Kaur)

Assistant Director (Toxicology) (Scientific Officer (Toxicology)

Forensic Science Laboratory Scientific Officer (Toxicology)

Punjab Phase-IV, S.A.S. Nagar Forensic Science Laboratory

Punjab Phase-IV, S.A.S. Nagar”

8. Since a perusal of Ex.PW-2/B reveals that, the recovery of the

seizure was made from the polythene bag held, by the convict, at the relevant

time, in his right hand. Resultantly when the recovery was made obviously not

from any of the pockets of the trouser(s) or of the shirt or from pockets of the

over clothes, if any, worn, at the relevant time, by the convict, and/nor, became

effected, upon, the contraband being tethered onto the body of the convict.

Therefore, when only in the latter events, there was a dire statutory necessity

qua prior to the making of a personal search of the convict rather by the

investigating officer concerned, qua the convicts' apposite written consent

within the ambit of Section 50 of the Act, hence being obtained by the

investigating officer concerned. In sequel when given the effectuation of

recovery from the polythene bag held, rather by the convict in his right hand,

thereupon, the afore recovery, did save the application thereons, qua the mandate

of Section 50 of the Act.

9. Though, at the crime site, and, as unfolded by the recovery memo to

which Ex.PW-2/B is assigned, the seizure was enclosed in a cloth parcel, and,

thereons seal impression IS was embossed, and, also though subsequently at the

police station concerned, the SHO concerned, as unveiled by Ex.PW-2/F, and,

by Ex.PW-2/G, hence made on the sample cloth parcels seal impression GS, butsince the case property became subsequently produced before the learned

Magistrate concerned, for enabling him to prepare an apposite inventory, and,

when there, as unfolded by Ex.PW-2/N, the bulk parcels were embossed with

seal impression HS, and, the remaining sample parcels became also, after

becoming enclosed in cloth parcels, rather embossed with seal impressions HS.

Consequently, the seal impressions, as carried on the bulk as well as on the

sample cloth parcels concerned, were required to remain in an untampered

condition, from the phase commencing from the preparation of Ex.PW-2/B, upto

their production in Court. The evidence in respect of the case property,

remaining untampered, and, that too uninterruptedly from the drawing of

Ex.PW-2/B, upto production thereof in Court, became comprised in qua each of

the cloth parcels concerned, in contemporaneity, to their respective production

(s) in Court, rather unveiling qua each carrying seal impression HS.

10. However, the sample parcels are revealed in Ex.PW-2/L, to become

sent through HC Ravinder Kumar, to the FSL concerned, and, thereins it is also

echoed, that each of the sample parcels became embossed with seal impression

HS.

11. The report of the FSL concerned, which has been ad-verbatim

reproduced hereinabove, though reveals that, at the time of the sample cloth

parcels becoming received in the FSL concerned, rather the sample cloth parcels

carrying seal impression HS, but subsequently after the retrievals therefrom qua

the stuff inside each, and, whereafter the apposite stuff, upon, becoming

analysed, and, examined, it become opined, that it contains the prohibited

substance, but significantly the Chemical Analyst concerned, did not yet proceed

to re-enclose the examined stuff, into the cloth parcels nor did he proceeded to

emboss thereons, rather the seal impression of the FSL concerned. The result of the above omission, does cause the inevitable effect, that the prosecution has

been unable to link the opinion of the FSL, as carried in PW-2/N, with the bulk

parcels, which however never became sent for analysis to the FSL concerned.

The further consequence thereof, is obviously that the bulk parcels concerned,

cannot be concluded to be also containing the prohibited substance.

12. The above infirmity was curable through the Public Prosecutor

concerned, casting an appropriate motion before the learned Special Judge

concerned, that yet samples being drawn from the bulk preserved in the police

malkhana concerned, and, theirs through a validly drawn certificate, rather being

sent, to the FSL concerned. However, the Public Prosecutor concerned, never

cast the above motion before the learned Special Judge concerned, and, the

above omission, begets a sequel, that the prosecution for proving the charge

against the accused depended, only upon Ex.PW-2/N, which however for

reasons (supra), does not link the opinion made therein rather with the bulk

parcel(s).

13. An additional fortification to the above inference, becomes

garnered from the factum that, not only the bulk parcels were required to be

produced in Court, but also the sample cloth parcels, as sent to the FSL

concerned, under a validly drawn road certificate, were also necessarily required

to be produced in Court, to ensure that, not only upto the transmission of the

sample cloth parcels to the FSL concerned, the thereons made seals impression,

remained untampered with or remained intact, but also necessarily required that,

after examination of the stuff inside the cloth parcels, the Chemical Analyst

concerned, not only re-enclosing the stuff examined inside the cloth parcels, but

also embossing thereons', the seal impressions of the FSL concerned. However,

as above stated, the above did not happen, and, nor did the Public Prosecutor concerned, despite the above infirmity, cast any motion for the requisite purpose

before the learned Special Judge concerned, with the resultant ill-sequel, that the

infirmity (supra), hence percolating the report of the FSL rather remaining alive.

14. The above narrated necessities are not merely perfunctory nor are

mechanical, rather work towards unflinchingly proving the charge drawn against

the accused. The charge would become efficaciously proven, only when the stuff

inside the cloth parcels, is opined to be the apposite prohibited substance, which

though however, is revealed in Ex.PW-2/N, but yet the FSL concerned, was to

re-enclose the stuff examined inside the cloth parcels concerned, and, was to

also emboss thereons, the seals of the FSL, as, then the cloth parcels would

become retrieved to the police malkhana concerned, for thereafter theirs

becoming produced before the learned Special Judge concerned, which again

never happened.

15. The sample cloth parcels whereons an adverse opinion, becomes

drawn against the convict, by the FSL concerned, can never become the property

of the FSL concerned, “but is case property” and, is obviously required to be

returned, by the FSL concerned, to the police malkhana concerned, for thereafter

its becoming produced in Court, as, only upon its production in Court the factum

of its provenly becoming linked with the road certificate, and, also its apposite

link, with the report of the FSL, would become established, and, rather only

when after examination of the stuff inside cloth parcels, the same, became re-

enclosed in them, and, thereafter the seals' of the FSL become also embossed,

hence, on each of the sample cloth parcels. Reiteratedly the above has not

happened, and, as above stated despite the sample cloth parcels comprising the

case property, they became unlawfully retained, at the FSL concerned. Even

otherwise, the incriminatory opinion of the FSL concerned, is required to be corroborated, by the production of the apposite sample cloth parcels, as, sent to

it, rather before the learned trial Judge concerned, as the primary evidence for

relying, upon the report of the FSL concerned, is the stuff inside the sample

cloth parcels concerned. The reason being that alike, the report of a Handwriting

Expert concerned, which becomes bedrocked, upon the apposite documents sent

to it for comparison, and, as such, the writings concerned, becoming necessarily

to become appended with the report, as they are rather the best primary evidence

for supporting the report of the FSL concerned, also rather, the stuff inside the

sample cloth parcels, is the apposite primary evidence to not only prove the

charge, but also for corroborating the incriminatory opinion, as made thereons,

by the Chemical Analyst concerned, therefore, the primary evidence (supra), is

required to be produced in Court, and, also is required to be proven to be then in

an untampered condition.

16. Even otherwise, the above necessity of the above legally enjoined

acts, becoming performed by the Chemical Analyst working, at the FSL

concerned, does apart from reasons (supra), also facilitate the convict, to ask for

apposite re-examinations from the FSL concerned, but that would happen only

when the sample cloth parcels are produced in Court. The facilitation to the

accused to ask for re-examination of the stuff inside sample cloth parcels, rather

by the FSL concerned, whereons an adverse opinion is earlier made by the

Chemical Analyst concerned, does necessarily ensue to the accused, as the

report of the FSL concerned, has only a presumption of truth, and, obviously its

opinion, does not enjoy any conclusivity in law. Therefore, for facilitating the

accused, to rebut the opinion of the FSL concerned, rather the production of the

sample cloth parcels, in Court after there retrieval from the police malkhana

concerned, is, of utmost significance. However, neither the above defence has been purveyed to the accused nor obviously any opportunity has been given to

the accused, to rebut the presumption of truth, enjoined by the report of the FSL

concerned, to which Ex.PW-2/N is assigned, and, all the above hindrances to the

accused hence for his efficaciously propagating his defence, have made their

emergence, only because the FSL concerned, has not returned the sample cloth

parcels to the FSL concerned, and, nor obviously the sample cloth parcels, as,

became sent to it, never became produced in Court. Resultantly, on the above

ground also, the adverse opinion, as made on the stuff inside the sample cloth

parcels concerned, cannot become the plank for concluding that, the

presumption of truth, if any, as attached to it, being linked either to the bulk,

and/or, it carrying any legal efficacy, given apparently the stuff inside, the

sample cloth parcels concerned, becoming probably destroyed, and/or, not being

preserved.

17. Be that as it may, though, during the course of the examination-in-

chief of PW-2, the bulk parcels became shown to him, and, though he identified

them to be the ones in respect whereof, an inventory became prepared, by the

learned Judicial Magistrate concerned, and, though also he did make echoings,

in his examination-in-chief, that the bulk parcels remained untampered with, but

the above made deposition of PW-2, and, which became corroborated by PW-5,

does not yet link the opinion of the FSL concerned, to the bulk parcels, as

became produced in Court. The reason being that the bulk parcels remained in

the malkhana concerned, and, even despite the above infirmity existing in the

report of the FSL concerned, and, even despite the sample cloth parcels

becoming never returned to the FSL concerned, conspicuously the Public

Prosecutor never asking the leave of the Court qua the bulk cloth parcels, being

sent to the FSL concerned, rather for the stuff inside them becoming examined. Therefore, for want of the above, no conclusion can be formed, that the stuff

inside the bulk cloth parcels also contained the prohibited substance(s).

18. From the above, the following principles emerge:

a) The bulk as well as the sample cloth parcels concerned, are

case property, and, both are amenable for orders with respect to

their destruction or confiscation to the State, as the case may be,

being rendered only by the jurisdictionally empowered Court, and,

that too upon the completest termination of the trial, as becomes

entered into by the jurisdictionally empowered Court(s). Dominion

over the bulk parcels, and, or over the sample cloth parcels can

neither be assumed by the SHO of the police station concerned, and,

nor can be assumed by the Chemical Analyst working at the FSL

concerned.

b) The production in Court of the bulk as well as of the sample

cloth parcels, as, sent to the FSL concerned, is of utmost

importance, as the opinion made by the FSL concerned, on the stuff

inside the cloth parcels concerned, would link it with the bulk

parcels, yet only upon production of the sample cloth parcels,

before the learned trial Judge concerned, as the examined stuff

inside the sample cloth parcels, is the primary evidence to prove the

charge, and, to also corroborate the opinion of the FSL.

c) The report of the FSL concerned, has a rebuttable

presumption of truth, and, the accused for availing the right to rebut

the presumption of truth attached to the opinion of the FSL

concerned, can ask for re-examination by the FSL concerned, of the

stuff inside the cloth sample parcels concerned, and, that would occur only when the sample cloth parcels are produced in Court,

otherwise not. 

d) The stuff inside the cloth sample parcels, is the primary

evidence, and, report of the FSL concerned, as made in respect

thereof is secondary evidence, and, unless primary evidence is

adduced before the Court, the secondary evidence does not acquire

any probative vigor or any evidentiary worth.

19. The result of the above discussion is that, the impugned verdict

suffers from a gross infirmity, of gross misappraisal of the above, and, requires

its being annulled, and, set aside.

20. In consequence, there is merit in the instant appeal, and, the same is

allowed. The impugned verdict, as, drawn, upon the convict, by learned Special

Judge concerned, is quashed, and, set aside. The personal, and, surety bonds of

the convict are directed to be forthwith cancelled, and, discharged. The convict

if in custody, and, if not required in any other case, is directed to be forthwith

released from prison. Release warrants be accordingly prepared. Fine amount, if

any, deposited by the accused be forthwith refunded to him, but in accordance

with law. Records of the Court below, be sent down forthwith. Case property, if

not required, be dealt with, and, destroyed after the expiry of the period of

limitation

(READ ALL THE JUDGMENT HERE  click here)

21. Pending miscellaneous application(s), if any, stand(s), disposed of.


                                    (SURESHWAR THAKUR)

                                                    JUDGE


26.08.2022 JUDGE

ithlesh

Whether reportable: Yes/No

Whether reportable: Yes/No


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