Where the complainant and investigating officer is the same, it makes the prosecution case doubtful

 GeekUpd8 Doc Id # 707644

PUNJAB AND HARYANA HIGH COURT

Before:- Jitendra Chauhan, J.
Criminal Appeal No. 1688-SB of 2004. D/d. 26.5.2017.

Gannu and another - Appellants
Versus
State of Punjab - Respondent

For the Appellants :- Ms. Mannat Anand, Advocate/Amicus Curiae.
For the Respondent :- Mehardeep Singh, Addl.A.G., Punjab.

JUDGMENT

Jitendra Chauhan, J. - The present appeal has been preferred by the appellants challenging the judgment and order dated 20.07.2004, passed by the learned Judge, Special Court, Patiala (hereinafter referred to as the trial Court), whereby, they have been convicted for the commission of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, (for short, 'the Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of L1,00,000/- each along with default clause.

2. The brief facts of the present case as narrated in the opening paragraph of the impugned judgment, are reproduced as under:-

"Both the accused face trial for offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter called the Act) on the allegations that on 14.10.2002 in the area of G.T. Road, Rajpura, they both were found in possession of three bags containing 106.500 gms of poppy husk, by the police party headed by SI Balkar Singh of CIA Staff, Rajpura.

2. The case of the prosecution, in brief, is that on 14.10.2002 SI Balkar Singh of CIA Staff Rajpura alongwith his police party was present in front of Focal Point where Bag Singh of village Darian met him and was joined in his police party. When he was having a talk with said Bag Singh, a vehicle TAT 713 bearing No.2D-147858K of Army colour came from Ambala Side. On seeing the police party, the driver of that vehicle i.e. the accused Gannu stopped the vehicle at some distance, while Uttam Singh was sitting with him on the adjoining seat. SI Balkar Singh told both of them of his intention to conduct the search of the vehicle and when he checked from behind, three bags were lying on seat. SI Balkar Singh suspected that these were carrying some contraband and gave option to the accused to get their search conducted before some Gazetted Officer of Magistrate. The accused vide memo Ex.PC and PC/1 agreed for their search to be conducted by SI Balkar Singh. On the search, all the three bags were found containing churra poppy heads, out of which two samples of 250 gm each were separated and put into parcel. On weighment, the remaining churra poppy heads came to be 35 kgs. Samples and the bags with remaining poppy husk were sealed with the seal bearing impression BS. Sample seal Ex.P.1 was also prepared. The seal after use was handed over to PW Bag Singh. Case property was taken into possession vide memo Ex.PD. Vehicle was also taken into possession. On personal search of the accused Gannu L 150/- and from accused Udham L 50/- were recovered and taken into possession vide memos Ex.PE and Ex.PE/1, respectively. Both the accused were supplied grounds of their arrest vide memos Ex.PF and Ex.PF/1. Ruqa Ex.PA was sent to the Police Station whereupon formal FIR Ex.PA/1 was recorded. Site plan of the place of recovery Ex.PG was prepared. On return to the police station, case property and the accused were produced before SHO Jai Kishan of Police Station City Rajpura, who after verifying the factum of recovery put his own seal bearing impression 'JK' on the case property and the sample seal Ex.P.1. On the next day, case property and the accused were produced before Illaqa Magistrate. Vide report of the Chemical Examiner Ex.PJ the sample was found to be that of churra poppy heads and after completion of investigation, the challan against the accused was presented in court."

3. The learned trial Court, after finding prima facie case against the accused, charged them for commission of offence punishable under Sections 15, of the NDPS Act, to which they pleaded not guilty and claimed trial.

4. In order to substantiate its case against the accused, the prosecution examined SI Jai Kishan as PW-1; ASI Bhinder Singh as PW-2; ASI Baldev Singh as PW-3; SI Balkar Singh as PW-4; Constable Sunil Kumar as PW-5 and ASI Raunak Singh as PW-6.

5. During their examination under Section 313 Cr.P.C., the accused-appellants denied the prosecution allegations and pleaded false implication. However, they did not lead any evidence in defence.

6. After hearing learned counsel for both the parties and considering evidence led on record, learned trial Court, convicted the appellants as detailed at the outset of this judgment.

7. Hence, the present appeal, which was admitted by this Court on 30.08.2004.

8. It is contended that the prosecution has failed to prove conscious possession of the appellants over the contraband allegedly recovered from them. It is further contended that the alleged recovery had been effected from three bags. The prosecution was required to take out the entire contents of all the three bags over a piece of cloth to ascertain that the entire material recovered was a contraband. It is further argued that in the instant case, the complainant as well as the investigating officer is one and the same person which makes the case of the prosecution highly doubtful. There is an unexplained delay of one day in sending the case property to the Magistrate. The alleged independent witness was previously known to the investigating officer and no other independent witness was joined.

9. On the other hand, the learned State counsel, has vehemently argued that on the strength of the evidence led on record, the prosecution has been able to bring home guilt to the accused.

10. I have heard the learned counsel for the parties and perused the record.

11. The law relating to degree of proof required in Narcotic Drugs and Psychotropic Substances Act, 1985 has been settled by a Division Bench judgment of this Court passed in Didar Singh @ Dara v. State of Punjab, 2010(3) R.C.R. (Criminal) 337 in the following terms:-

"20. Under the Narcotic Drugs and Psychotropic Substances Act, not only the very possession of the narcotics, drugs and psychotropic substances have been made an offence but severe punishment without exception has also been provided. The Act also provides for presumption of guilt emerging from possession of Narcotics Drugs and Psychotropic Substances. In case of commercial quantity of the nartocis, drugs and psychotropic substances, the minimum sentence of 10 years rigorous imprisonment besides minimum fine of Rupees one lakh has been provided. Hon'ble the Supreme Court in Noor Aga v. State of Punjab, 2008(4) R.A.J. 381 has held that under the Narcotic Druiigs and Psychotropic Substances Act the extent of burden to prove the foundational facts on the prosecution, i.e., proof beyond all reasonable conduct is more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but on the other hand, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights but insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values, it is necessary for giving effect to the concept of wider civilization. It is further observed that while deciding such cases, the Courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. Therefore, a higher degree of assurance would be necessary to convict an accused under the Narcotic Drugs and Psychotropic Substances Act.

21. Thus, under the Narcotic Drugs and Psychotropic Substances Act, it is the fundamental duty of the prosecution to prove beyond a shadow of reasonable doubt that the investigation conducted in the case is absolutely flawless specifically with regard to the link evidence which is of most significant aspect. It is incumbent upon the prosecution to prove that from the stage of effecting the recovery till the same reach the Chemical Examiner, there was no chance of tampering with it. Once the presumption is stumbling, on this vital aspect, the benefit is to be extended to the accused."

12. In the instant case, Form No.29 was not prepared on the spot and was admittedly filled in after delay of two days, which has not been explained by the prosecution. Therefore, prosecution has failed to prove beyond reasonable doubt that the sample of contraband which was examined by the Forensic Science Laboratory was the same which was alleged to have been recovered from the appellants at the time of the alleged recovery.

13. The second flaw in this case is that the contraband has not been proved to be recovered from the conscious possession of the appellants as it has been alleged to be recovered from three bags lying on the backside of the truck as mentioned in memo of consent, Ex.PC/1. On the contrary, SI Balkar Singh (PW4) is the investigating officer who has minced no words in testifying that the three bags were lying on the seat; whereas, ASI Baldev Singh (PW3), an alleged recovery witness has deposed that the bags were found lying under the seat of the vehicle. It is manifestly clear that there is major contradiction as to from where the contraband was recovered; backside of the truck, on the seat or beneath the seat, which makes the recovery highly doubtful.

14. Another aspect of the matter is that in sheer violation of the principles of fair and impartial investigation, the complainant and the investigating officer is the same person, which makes the prosecution case doubtful. In Laltu Prasad v. State of West Bengal, 2017(2) R.C.R. (Criminal) 237 (Calcutta) (DB), it was held that the complainant himself acting as the investigating officer violating the principles of fair and impartial investigation is a practice, to say the least, should not be resorted to and it is a disturbing feature. To the same effect, is a Division Bench judgment of Hon'ble Himachal Pradesh High Court reported as State of Himachal Pradesh v. Atul Sharma and others, 2015 (6) R.C.R. (Criminal) 949, wherein, it has been held that where the complainant himself conducts investigation, it causes miscarriage of justice to accused qua fair investigation.

15. The next infirmity in the case of the prosecution is that the entire contents of the three bags were required to be put on a piece of paper of cloth in order to know the whole of the contents. Admittedly, the investigating officer did not follow the prescribed procedure and in this regard it is hard to believe that the whole of the contents of the bags were poppy husk. In Shashi Atwal and another v. State of Punjab, 2011(2) R.C.R. (Criminal) 660, this Court observed as under:-

"15. Though, all the witnesses have stated that one sample from each gunny bag was taken out and then all the gunny bags were sealed with the seal bearing impression 'BS'. It has also come in the evidence of the witnesses that the contents of the gunny bags were not turned in order to know the whole of the contents therein. It would be significant to mention here that the Investigating Officer was supposed to know about about whole of the contents of the bag before bringing the accused into net. As such, this circumstance also seriously affects the prosecution case.

16. As regards tampering of the case property, he was to turn down all the contents of the bags on a piece of paper or cloth, but in the instant case, the Investigating Officer appears to have not examined the contents of the bags; he took it casually and in an anxiety to involve the accused, sealed the bags without knowing the whole contents thereof. Thus, in the absence of any evidence to the aforesaid extent, it cannot be believed that whole of the contents of the bags were poppy husk. P.K. Rai (PW1) while appearing in the witness box has stated that one of the gunny bags does not bear any seal. Inspector Mohinder Kumar (PW3) states that there is no seal on one bag brought in the court, nor it contained particulars of the case. The second bag from the bottom was tampered with or the bag bearing the seal of 'BS' was not produced in the Court. The argument advanced by the Assistant Advocate General, Punjab that the bag was changed, as it had torn with the passage of time, cannot be accepted. The bag was neither changed in the presence of the accused or any competent authority, much less the Investigating Officer."

16. Besides this, there are certain documents which were allegedly prepared on the spot like search memo, Ex.PE and Ex.PE/1; recovery memo, Ex.PD; site plan, Ex.PG; arrest memo, Ex.PF and PF/1. All these documents bear the FIR number, meaning thereby, either the FIR was registered prior to the alleged recovery of the contraband or the number has been inserted in the documents after its registration. In both these situations, it casts serious doubt on the veracity of the prosecution version as has been held in Didar Singh @ Dara's case (supra).

Section 52A of the NDPS Act, reads as under:-

"52-A. Disposal of seized narcotic drugs and psychotropic substances

(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as the Government may from time to time, determine after following the procedure hereinafter specified.

(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section(1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of -

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under subsection (2), the Magistrate shall as soon as may be allow the application.

(4) Notwithstanding anything anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."

17. The last nail in the coffin of the prosecution case is that in the present case, the procedure for drawing the representative samples of the contraband in front of Magistrate as laid down in Section 52-A(2)(c) of the Act has not been followed, which makes it obligatory upon the officer concerned that as soon as the contraband is seized, it has to be forwarded to officer-incharge of the police station, who is duty bound to approach the Magistrate for grant of permission to draw the representative samples in his presence. Such samples were then required to be enlisted and the correctness of the list of the samples drawn were to be certified by the Magistrate. In other words, the drawing of the samples has to be in the presence and supervision of the Magistrate, which has not been followed in the present case. Reference in this regard can be made to Union of India v. Mohanlal and another, 2016(1) R.C.R. (Criminal) 858 (SC).

In the upshot, the cumulative effect of the discussion made above is that the present appeal succeeds; the impugned judgment of conviction and order of sentence dated 20.07.2004, passed by the learned trial Court, is set aside and the appellants are acquitted of the charge framed against them. The appellants are stated to be on bail. Their bail bonds shall stand discharged.

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