Sewa Singh v. State Of Punjab
"52A. Disposal of seized narcotic drugs and psychotropic substances.
(1)
."
30. Hon'ble the Supreme Court in Mohan Lal (supra) held as under:-
"8. Before any proposed disposal/destruction mandate of Section 52A of the NPDS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery. One has to remember that the provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of physical evidence would lead to a negative inference within the meaning of section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act). The procedure contemplated through the notification has an element of fair play such as the deposit of the seal, numbering the containers in seriatim wise and keeping them in lots preceded by compliance of the procedure for drawing samples."
33.
Adverting to the facts of the present case, evidently no request was made by the I.O. to the learned Magistrate for drawing up the representative sample. Order dated 11.11.2012 (Exh.PW-3/D) as passed by the learned
Magistrate does not show that any representative sample was drawn. Section 52-A of the Act was inserted by Act No.2 of 1989 which came into force w.e.f. 29.05.1989. Section 52-A (2) (c) of the Act provides for drawing a representative sample of the seized contraband in the presence of a Magistrate. Inventory application (Exh.PW-3/E) does not indicate any such request was made before the learned Magistrate. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial. Thus, there has been a clear violation of mandatory provisions of Section 52-A, which has rendered the prosecution case doubtful. 35.
No doubt non-association of independent witnesses in the recovery proceedings is not fatal for the case of the prosecution and would not ipso facto entitle one to seek acquittal, though a heightened standard of care is imposed upon the Court in such instances to scrutinize the evidence of the prosecution. Hon'ble the Supreme Court in 'Kishan Chand Vs. State of Haryana' 2013 (2) SCC 502 has observed that failure of investigating officer to associate an independent witness at the time of recovery creates a dent in the case of the prosecution.
36.
Recovery in the present case has been effected from the appellant from a busy place i.e. near Jammu Palace Kapurthala, a thoroughfare. SI Jaswant Singh (PW-3) though stated that before conducting the search of appellant, he tried to join independent persons from general public but none was ready. At the same time, he also failed to give the names of the persons he
attempted to approach during the proceedings. ASI Harbans Singh (PW-1) on the other hand, contrary to his earlier version given in examination-in-chief, categorically stated in his cross-examination that no independent witness was joined by the I.O. From the statements of the witnesses neither any earnest effort seems to have been made to associate independent witnesses nor any cogent explanation is forthcoming for non-joining of independent witnesses despite their availability at the spot. An afterthought version appears to have been given to show that an effort was made to join the witnesses from the public. This has cast a doubt on the case of the prosecution. Ratio of the judgment in (supra) cannot be applied with full force to the facts of the present case being distinguishable. 37.
The other primary issue debated by the counsel for the appellant is the effect of the complainant SI Jaswant Singh (PW-3) also being the I.O. of this case. While relying upon 'State of Rajasthan Vs. Parmanand and another' 2014 (3) SCR 522 and 'Mohan Lal Vs. State of Punjab' (2018) 17 SCC 627, learned counsel for the appellant contended that SI Jaswant Singh (PW-3) should have recused himself from investigating the case as it raises doubts regarding the impartial nature of investigation, particularly when the appellant has raised the issue of his false complicity in the case. It is stated that biasness towards the appellant is writ large as all the prosecution witnesses have tried to conceal the identity of the appellant as a gunman of the then SHO posted in the Police Station, Kapurthala.
Contra, learned State counsel has urged that a Constitutional Bench of Hon'ble the Supreme Court in 'Mukesh Singh Vs. State' (Narcotic Branch of Delhi) 2020 SCC OnLine 700 has authoritatively settled the law on permissibility of the complainant also being the investigating officer in NDPS cases.
no evidence or circumstance to establish that complainant was biased towards him.
38.
The appellant has suggested to prosecution witnesses that he was falsely implicated in the present case at the behest of Inspector Manjit Singh, the SHO, who was irked with his (appellant) behavior on account of his habit of consuming liquor. The appellant also suggested to the witnesses that at the relevant time, he was posted at P.S. City Kapurthala. However, all the PWs feigned ignorance in this regard. ASI Harbans Singh (PW-1) denied that appellant was working as PHG (Punjab Home Guard) at Police Station, Kapurthala. He also denied that appellant was working as a body guard of Inspector Manjit Singh or that appellant was falsely implicated in the present case. SI Jaswant Singh (PW-3), the Investigating Officer expressed ignorance if the appellant was doing a duty as SPO under SHO P.S. City Kapurthala on the day of occurrence.
He also denied the suggestion that on the day of occurrence the appellant had been working as gunman of SHO Manjit Singh or that all the witnesses mentioned in the Challan were posted in P.S. City, Kapurthala alongwith the appellant. He admitted that PHG Hansraj (DW-2) was also member of the raiding party. In these circumstances, when PWs tried to suppress the identity of the appellant, it unerringly goes to establish that they were biased towards the appellant being colleagues of Manjit Singh (PW-5), with whom appellant was not sharing good relations while working under him as his gunman. The fard jamatalshi (Exh.PW-1/C), memo of consent (Exh.PW-1/A), memo of arrest and information (Exh.PW-1/B) nowhere discloses the identity of Sewa Singh, working as a gunman.
In Mukesh Singh (supra), it has been observed by Hon'ble the Supreme Court that there is no bar under the Act for the informant/complainant to be an investigator. Rather, the provisions of the Act permit the same.
conducted by concerned informant was fair investigation or not, is always to be decided at the time of the trial. Therefore, there is no reason to doubt the credibility of the informant and doubt the entire case of prosecution solely on the ground that informant has investigated the case. The question of prejudice or biased has to be established and decided on the facts of each case without any universal generalization.'
39.
It is to be noticed that prior information had been received by the I.O. Further, the office of the Magistrate was at a short distance of 2 1⁄2 kms. from the place of recovery. Admittedly, investigating officer did not take the appellant for his search to the nearest Magistrate. From the facts as discussed above, it can be safely concluded that prosecution witnesses much less the investigating officer were biased towards the appellant. The act of the investigating officer in opting to conduct the investigation has certainly vitiated the investigation of the case. It must be remembered that the doctrine of bias is a leg of principles of natural justice. If the circumstances are such that it would create a reasonable apprehension of bias in the mind of onlookers, it is sufficient to invoke the doctrine of bias.
The test for likelihood of bias and reasonable apprehension of bias are interchangeable and parameters for both can be construed to be similar. An illegal search, thus, cannot entitle the prosecution to raise a presumption under Section 54 of the Act. Such presumption can only be raised after the prosecution has established that accused (appellant herein) was found to be in possession of contraband in a search conducted in accordance with mandate of Section 50 of the Act.
40.
Taking upon the other submission of the counsel for the appellant that the documents like consent memo, recovery memo, personal search memo and arrest memo contain the particulars of the FIR, Police Station etc. SI Jaswant Singh (PW-3) has deposed that he had incorporated the FIR number on
search memo, jamatalashi memo and consent memo. At the same time, he also admitted that he did not clarify that the documents were prepared before the registration of the FIR by leaving the space for insertion of the FIR number etc. In the absence of any reasonable explanation forth coming with regard to reflecting the details of the FIR etc. on the consent memo, recovery memo raises a serious doubt over the investigation conducted by the I.O. In 'Kamaljit Singh @ Pappu Vs. State of Punjab' 2020 (14) SCC 9, similar issue was dealt with where the investigation was found to be suspicious on the ground that FIR number was mentioned on the memo which were prepared much prior to the registration of the FIR. Coordinate Bench of this Court in 'Kewal Singh Vs. State of Punjab' 2018 (4) R.C.R. (Criminal) 580, has also discarded the investigation on the ground of mentioning of FIR number on the memos during investigation prior to registration of the FIR.
41. Apart from the above ambiguity in the case of the prosecution, the documents such as consent memo (Exh.PW-1/A), jamatalashi memo (Exh.PW-1/C), arrest and information memo (Exh.PW-1/D) have been attested by a single witness ASI Harbans Singh (PW-1), whereas recovery memo (Exh.PW-1/B) which is hand written document unlike the above typed documents, shown to have been attested by two witnesses. All the above documents were shown to have been prepared and attested at the spot. The above said deviation creates doubt regarding the authenticity of these documents and having prepared in the manner alleged. Furthermore, the recovery memo (Exh.PW-1/B) a material document is not shown to be attested by the appellant, whereas the other documents like consent memo, arrest memo, personal search memo, jamatalashi memo are shown to be attested by the appellant. This again raises a doubt about the manner of preparation of recovery memo, which is a document of effecting recovery of the alleged contraband from the appellant.
Coordinate Bench of this Court in 'Sandeep Kumar Vs. State of Punjab' 2019
(4) R.C.R. (Criminal) 741, has taken the above circumstance as doubtful alongwith other inadequacies of the prosecution case while acquitting the accused-appellant.
42.
Dealing with the submission of delay of 10 days in sending the sample to the Chemical Examiner, Kharar. The contraband was allegedly recovered from the appellant on 10.11.2012. According to the statement of ASI Arjan Singh (PW-4) MHC, he handed over the sealed parcel weighing 10 gram, bearing seals impression 'JS/MS' alongwith the docket to HC Ranjit Singh (PW-2) on 20.11.2012 for depositing in the office of Chemical Examiner, Kharar. HC Ranjit Singh (PW-2) in his affidavit (Exh.PW-2/A) stated that on 20.11.2012, he took the sample duly sealed with the seal of 'JS/MS' alongwith Form No.M-29 and deposited in the office of Chemical Examiner, Kharar. Affidavit of Arjan Singh (PW-4) MHC, nowhere mentions that he had handed over Form No.M-29 and sample seals to HC Ranjit Singh. On the contrary, HC Ranjit Singh has stated that Form No.
M-29 and sample seals were also given to him. The aforesaid discrepancy has remained irreconcilable, thereby making their statements unreliable. Furthermore, SI Jaswant Singh (PW-3) failed to give cogent explanation for the delay in sending the sample to the office of Chemical Examiner. Similarly, ASI Arjan Singh (PW-4) MHC was unable to give the reasons for withholding the samples with him for a period of ten days. A representative sample of any contraband after its seizure and deposit in Malkhana or with concerned SHO is required to be sent to Chemical Examiner within 72 hours as per the instructions issued vide standing order No.1 of 1988 dated 15.03.1988 issued by Narcotics Control Bureau.
"Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of the guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution."
43.
The investigating officer is obliged to follow the procedural safeguards as provided in the instructions as long as they do not override the provisions of the NDPS Act and supplement the procedural protection given in the Act. In 'State of Punjab Vs. Baldev Singh' (1999) 6 SCC 172, it was stated: "It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed." 44.
This Court in 'Malkiat Singh @ Kala Vs. The State of Punjab' 2009 (1) R.C.R. (Criminal) 353 , while relying upon the observations made by Hon'ble the Supreme Court in 'State of Rajasthan Vs. Gurmail Singh' 2005
(2) R.C.R. (Criminal) 58, with regard to delay in sending the samples to Chemical Examiner, observed that:- "11. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected on 03.07.1997, yet the samples were sent to the office of the Chemical Examiner on 08.07.1997 and, thus, the delay of 5 days, in sending the same to the office of the Chemical Examiner, remained unexplained and, as such the possibility of tampering with the same, until the same reached the Laboratory, could not be ruled out. No explanation, whatsoever, was furnished, as to why the samples were not sent to the office of the Chemical Examiner, for about 05
days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. In Gian Singh v. State of Punjab, 2006(2) R.C.R. (Criminal) 611 (P&H), there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. Under these circumstances, it was held that the possibility of tampering with the sample, could not be ruled out, and the link evidence was incomplete. Ultimately, the appellant was acquitted, in that case. In 'State of Rajasthan vs. Gurmail Singh' 2005 (2) R.C.R. (Criminal) 58 : 2005(1) Apex Criminal 521 (SC)., the contraband remained in the Malkhana for 20 days.
The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. In Ramji Singh v. State of Haryana, 2007(3) RCR (Criminal) 452 (P&H), the sample was sent to the office of the Chemical Examiner after 72 hours, the seal remained with the police official, and had not been handed over to any independent witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Forensic Science Laboratory.
The other evidence, produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In the instant case, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case.
could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted." 45.
As noticed above, the witnesses have not furnished any explanation for the delay in sending the sample to the Chemical Examiner. If any explanation had been furnished by the witnesses, the matter would have been considered in light thereof. However, in absence of any explanation of delay of ten days in sending the samples to the office of Chemical Examiner and further with no clarity in the statements of the witnesses (HC Ranjit Singh and Arjan Singh, MHC) about deposit of the sample seal in the office of Chemical Examiner, possibility of tampering of the sample cannot be ruled out under these circumstances. In view of the peculiar facts of the case, as noted above, the observations made in Hardip Singh (supra) cannot be taken as parallel to this case.
46.
Insofar as the contention of non-compliance of Section 57 of the Act is concerned, learned counsel for the appellant failed to show that report of the arrest of the appellant was not made to his superior officer by the investigating officer as required under the Act. The statement of SI Jaswant Singh (PW-3) indicates that after effecting recovery of contraband from the appellant, he sent ruqa (Exh.PW-3/A) to the police station. Furthermore, the provisions of Section 57 have been held to be directory, and its non-compliance has not taken to have such consequences so as to vitiate the proceedings, as held in 'Gurmail Chand Vs. State of Punjab' 2020 SCC OnLine SC 738, decided on 23.01.2023. The investigating officer, SI Jaswant Singh (PW-3), has deposed that he was having the weighing scale with him at the time of recovery. Therefore, his statement with respect to the precise weight of the contraband cannot be doubted with.
47.
The findings of the trial Court, holding the appellant guilty, cannot be sustained in the eyes of law and are liable to be set aside.
51.