High Court of Punjab and HaryanaCRA-S/1700/2002allowed

Rajbir v. State Of Haryana

2023-01-31Mr. Justice N.S. Shekhawat12 pages

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After the closure of the prosecution evidence, the statements of

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accused-appellants under Section 313 Cr.P.C. were recorded and they pleaded false implication in the present case. No defence evidence was led by the accused/appellants and vide impugned judgment of conviction and order of sentence dated 08.10.2002, both the accused were convicted and sentenced as noted above. Hence the present appeals.

Learned counsel appearing for the appellants submitted that in compliance of the provisions of Section 52A of the Act, the case property was never produced before the Area Magistrate for the certification of the inventory. Neither the inventory was placed on record nor any witness stated that the case property was taken out for producing the same before the Magistrate. Even no order was placed on record to show that the case property was ever produced before the learned Magistrate and since there was breach of the mandatory provisions of Section 52A of the Act, the accused/appellants were liable to be acquitted by this Court.

The above-said submissions made by the learned counsel for the appellants have been vehemently opposed by the learned State counsel by stating that the case property was produced during the course of trial and no prejudice had been caused to the present appellants. After hearing the learned counsel for the parties and going through the record of the case, I find substance in the arguments raised by the learned counsel for the appellants.

< was ever produced before the Magistrate. Even the prosecution utterly failed to exhibit any order passed by the learned Magistrate to show that the same was produced before the Area Magistrate for the purpose of certifying the correctness of the inventory and for taking the photograph of the drugs, substances or conveyances in the presence of the Magistrate and for certifying such photographs as true, as well as to allow the drawing of representative samples of such drugs in the presence of Magistrate and to certify the correctness of any list of the samples so drawn. Still further, the prosecution examined PW-2 MHC Dharambir Singh, who did not state a word in his affidavit Ex.PB that the case property was ever taken out of the malkhana and was ever produced before the learned Magistrate.

Apart from that, the samples, which were sent to the FSL, had only the seal impressions of the police officials and the seales remained with the police officials throughout the investigation. Consequently, serious prejudice has been caused to the accused/appellants by not producing the samples before the Magistrate in compliance of the procedure, as enshrined in Section 52A of the Act.

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4 Hon'ble the Supreme Court in the matter of Union of India Vs Mohanlal, 2016(1) RCR (Criminal) 858 has held as under:- 5.

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4 Learned counsel appearing on behalf of the appellants further submitted that there were no compliance of Sections 52, 52A and 57 of the Act. No arrest memo was placed on record and even the investigating officer did not state anything with regard to supplying/informing the appellant about the grounds of his arrest, which is mandatory requirement of law. Apart from that, neither the report under Section 57 of the Act was prepared nor the same was produced before the learned trial Court. The submissions made by the learned counsel for the appellants have been opposed by the learned counsel for the State on the ground that the accused cannot be permitted to take advantage of the faulty investigation conducted by the police and recovery of the contraband from the present appellants

stood proved beyond doubt.

I find that the arguments raised by the learned counsel for the appellants carry weight and are liable to be accepted. As per Section 52A of the Act, any officer arresting a person under Sections 41, 42, 43 or 44 of the Act shall, as soon as, may be informed him of the grounds of such arrest and he shall be forwarded without unnecessary delay to the nearest Magistrate, by whom the warrants were issued. In the instant case, the investigating officer SI Balbir Singh was examined as PW-6. Nowhere in his testimony, he had deposed that he had informed the appellants about the grounds of their arrest, which is the requirement of law. Still further, none of the witnesses had mentioned about the report under Section 57 of the Act and no explanation has been offered for non-compliance of such provisions of law.

Thus, it is apparent that serious prejudice had been caused to the appellants due to the breach of said provisions of law. Apart from that, it is apparent from the testimony of PW-6 SI Balbir Singh that only one sample was taken out from each bag, which is in clear violation of the standing order No.1/89 dated 13.06.89 issued by the Government of India, which has made it mandatory that two samples should be drawn from the recovered substance, failing which, the whole recovery procedure will be vitiated.

the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub-Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading 'seizure and sampling'. The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order.

(2) The Central Government and its agencies and so also the State Governments shall within six months from today take appropriate steps to set up storage facilities for the exclusive storage of seized Narcotic Drugs and Psychotropic and controlled Substances and Conveyances duly equipped with vaults and double locking system to prevent theft, pilferage or replacement of the seized drugs. The Central Government and the State Governments shall also designate an officer each for their respective storage facility and provide for other steps, measures as stipulated in Standing Order No. 1/89 to ensure proper security against theft, pilferage or replacement of the seized drugs.

(3) The Central Government and the State Governments shall be free to set up a storage facility for each district in the States and depending upon the extent of seizure and store required, one storage facility for more than one districts.

(4) Disposal of the seized drugs currently lying in the police maalkhans and other places used for storage shall be carried out by the DDCs concerned in terms of the directions issued by us in the body of this judgment under the heading 'disposal of drugs'."

Still further, the recovery was admittedly effected from the appellants on 05.08.2000, whereas the sample of contraband was sent to the

FSL only on 25.09.2000. The prosecution completely failed to explain the inordinate delay in sending the samples to the FSL. Moreover, this delay assumes significance in the light of the fact that throughout the investigation of the case, the sample seals remained with the police officials and the prosecution miserably failed to prove that the case property remained intact throughout.

Apart from that, the learned counsel for the appellants have pointed out certain minor contradictions, however, the same are liable to be ignored. In fact when the witnesses had the occasion to depose before the learned trial Court, after several months, they are bound to contradict each other and the appellants could not be permitted to take advantage of the same.

In view of the discussion, it is established that there was violation of the procedure, as laid down in Sections 52A, 52 and 57 of the Act, which vitiated the recovery and the consequent proceedings. 6 /

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B* . + 1 % (N.S. SHEKHAWAT) 31.01.2023 JUDGE mks Whether Speaking/Reasoned: YES / NO Whether Reportable:

YES / NO