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