[ad_1]
Punjab-Haryana High Court
Rajinder Singh vs State Of Haryana on 2 April, 2025
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
747
CRA-S-2461-SB-2007 (O&M)
Date of decision: 02.04.2025
Rajinder Singh
....Appellant
Versus
State of Haryana
....Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: None for the appellant.
Mr. Harkesh Kumar, AAG, Haryana.
HARPREET SINGH BRAR J. (Oral)
1. The instant appeal is preferred against the judgment and
order of sentence dated 29.11.2007 passed by learned Sessions Judge,
Fatehabad in FIR No.244 dated 10.05.2006 registered at Police Station
Sadar, Fatehabad, under Section 15 of the Narcotic Drugs &
Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS
Act‘), whereby the appellant was convicted and sentenced to undergo
rigorous imprisonment for a period of two years with a fine of
Rs.5,000/- and in default of payment of fine, to further undergo simple
imprisonment for a period of one month.
FACTUAL BACKGROUND
2. The facts of the prosecution case, tersely put, are that on
10.05.2006, a police party headed by PW-7 Ram Kumar, ASI was on
patrolling the area and was present at village Kukrawali. While crossing
the house of the appellant-accused, who was previously known to the
1 of 16
::: Downloaded on – 02-05-2025 21:26:49 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 2
police, the police party saw him sitting near two jute bags in his
courtyard. Seeing the police party, the appellant ran away. Ram Kumar,
ASI, with the help of other police officials, tried to apprehend him but
he succeeded in running away. Subsequently, Ram Kumar, ASI,
summoned the chowkidar of the village. On the basis of suspicion, the
abovementioned jute bags were checked. A total of 35 Kgs of Poppy
Husk was recovered- 20 kg from one bag and 15 kg from another.
Samples were taken and all the parcels were sealed with seal having
impression ‘RK’ and were taken in possession vide recovery memo
(Ex.P8). Thereafter, Ram Kumar, ASI sent a ruqa (Ex.P5) to the police
station for registration of FIR(supra).
3. The appellant-accused was arrested by Ram Kumar, ASI on
10.08.2006, when he was already confined in Central Jail, Bhiwani. He
was brought to Fatehabad and two days later, on 12.08.2006, he was
produced in the Court along with the case property. On completion of
investigation, the final report under Section 173 Cr.P.C. was prepared
and subsequently, charges were framed against the appellant for an
offence punishable under Section 15 of the NDPS Act. The appellant
pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined as many as
seven witnesses. All the incriminating evidence was put to the appellant
and his statement under Section 313 Cr.P.C. were recorded, wherein he
pleaded false implication. However, the appellant did not lead any
evidence in his defence. After minutely scrutinizing all the material
2 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 3
available on the record, the learned trial Court held the appellant guilty
and sentenced him as discussed above.
CONTENTIONS
5. Since there is no representation on behalf of the appellant,
the contentions are culled out from the paperbook. A perusal of the same
indicates that the impugned judgment has been assailed on the ground
that the appellant was not apprehended from the place of occurrence but
was produced 03 months after the alleged incident. There is nothing
available on the record that connects the appellant to the alleged
occurrence as no efforts were made by the police to conduct a test
identification parade. The appellant has solely been implicated because
the police claimed to know him. Further, the conscious possession of the
appellant over the gunny bags has not been proved. Merely because the
said jute bags were recovered from his courtyard, the appellant cannot
be said to be in their conscious possession. Moreover, no independent
witness was joined in the investigation and the entire prosecution case is
totally based upon the testimony of official witnesses. Furthermore,
there is no evidence, except for the statement of the chowkidar of the
village, that could prove that the said house from where the contraband
was recovered belongs to the present appellant. However, the
prosecution has failed to examine the said chowkidar. Lastly, ASI Ram
Kumar, acted as both the complainant as well as the investigating
officer, while he was required to hand over the investigation to a second
investigating officer to ensure fairness.
3 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 4
6. On the other hand, learned State counsel argues that learned
trial Court has passed a well-reasoned judgment based on correct
appreciation of evidence available on record and as such, no
interference by this Court is warranted. Additionally, there is nothing on
record to suggest that the appellant may have been falsely implicated.
OBSERVATIONS AND ANALYSIS
7. Having heard learned State counsel and after thoroughly
perusing the record of the case, it transpires that 35 Kgs of Poppy Husk
was recovered from two jute bags lying in the courtyard of the
appellant. Allegedly, the appellant was seen sitting on the said jute bags
however, it is pertinent to note that on seeing the police, he ran away
from the spot, only to be formally arrested 03 months later.
8. The appellant was found to be lodged in Central Jail, Jind
and was only formally arrested on 10.08.2006 in the present case. In
spite of the fact that the appellant was not arrested from the spot along
with the contraband, no test identification parade was conducted to
ascertain his identity merely because PW-7 ASI Ram Kumar, expressed
his ability to identify the appellant as he knew him prior to the incident.
Section 54A of Cr.P.C. reads as follows:
54A. Identification of person arrested.–
Where a person is arrested on a charge of
committing an offence and his identification by any other
person or persons is considered necessary for the purpose
of investigation of such offence, the Court, having
jurisdiction may, on the request of the officer in charge of a
police station, direct the person so arrested to subject
himself to identification by any person or persons in such
manner as the Court may deem fit:
4 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152CRA-S-2461-SB-2007 5
Provided that, if the person identifying the person
arrested is mentally or physically disabled, such process of
identification shall take place under the supervision of a
Judicial Magistrate who shall take appropriate steps to
ensure that such person identifies the person arrested using
methods that person is comfortable with:
Provided further that if the person identifying the
person arrested is mentally or physically disabled, the
identification process shall be videographed.
9. While conducting test identification parade is not
mandatory, the identity of the appellant could have been conclusively
established on the statement of an official witness alone, as he is an
interested party. Allowing such an approach to continue unchecked
would amount to bestowing unbridled power upon the police to
implicate anyone, without needing to prove the same which would
further cause serious prejudice to an accused. Moreover, no witnesses
from the appellant’s neighborhood were examined in order to establish
the occurrence of the alleged event as well as the presence of the
appellant on the alleged spot at the time of recovery. As such, the
identity of the appellant is not conclusively proved.
10. A perusal of the Lower Court Record reflects that the
prosecution has failed to put forth any material on record that would
support the ownership of said house in the name of appellant. Neither
the chowkidar of the village nor any other witness has been produced
and examined by the prosecution before the learned trial court to even
attempt to establish the ownership. The appellant was seen fleeing from
the spot, as such, his mere presence is hardly sufficient to prove
conscious possession. The Hon’ble Supreme Court in State of Punjab
5 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 6
vs. Balkar Singh and another, (2004) 3 SCC(Criminal) 582, speaking
through Justice K.G. Balakrishnan, observed as under:
“….the presence of the respondents at the place from where
the bags of Poppy Husk were recovered itself was taken as
possession of these bags by the police. In fairness, the
police should have conducted further investigation to prove
that these accused were really in possession of these
articles. The failure to give any satisfactory explanation by
the accused for being present on that place itself does not
prove that they were in possession of these articles. Though
the respondents raised a plea before the sessions Court, the
same was not considered by the Sessions Judge in the
manner in which it should have been considered. We do not
think that the High Court erred in holding that there was
no evidence to prove that the respondents were in
conscious possession of the Poppy Husk recovered by the
police. The prosecution failed to discharge its obligation to
prove the possession of the Poppy Husk by the respondent.
Reliance in this regard can also be placed on the judgments
rendered by the Hon’ble Supreme Court in Avtar Singh vs. State of
Punjab AIR 2002 Supreme Court 3343 and this Court in Sukhdev
Singh alias Sukha vs. State of Punjab , 2006(1) RCR (Criminal) 4
(P&H) and Bikkar Singh vs. State of Punjab, 2006(3) RCR (Criminal)
16 (P&H).
11. Curiously, even though it has been alleged that the
contraband was recovered from the courtyard of the house of appellant,
no mention of the presence of any of his family members has been made
in the FIR or in the final report. Further, as per the statement of PW6-
Tarsem Singh, Head Constable, there was no one at home during
recovery of said contraband. On the contrary, PW7- ASI Ram Kumar,
6 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 7
had stated that appellant’s wife was present at home. Apart from this
there are several contradictions in the testimonies of the prosecution
witnesses, particularly PW6 and PW7, regarding the descriptions of
house and its location. The learned trial Court has erroneously ignored
these discrepancies which go to the root of case and raises serious doubt
on the version of prosecution.
12. Furthermore, a perusal of the impugned judgment indicates
that although an independent witness i.e. the chowkidar was joined in
the investigation, he was not examined during trial. The Hon’ble
Supreme Court in Krishan Chand Vs. State of H.P., AIR 2017 SC 3751
has laid down the ratio that the failure of the Investigating Officer to
associate an independent witness at the time of recovery creates a dent
in the case of the prosecution. The Hon’ble Supreme Court in Gorakh
Nath Prasad Vs. State of Bihar, 2018(1) R.C.R. (Criminal) 108 has
acquitted the accused while holding that the case of the prosecution
cannot be said to be proved when it is entirely based upon the
statements of the official witnesses.
13. Another glaring omission in the investigation of the case is
the non-compliance of Section 52-A of the NDPS Act. The safeguard
provided under Section 52-A of the NDPS Act is in furtherance of
Article 21 of the Constitution of India, which guarantees a fair and
impartial investigation. The representative sample were not drawn
before the Magistrate, which is required in the compliance of section
52-A of NDPS Act. Further still, as per the instructions issued vide
7 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 8
Standing Order No. 1 of 1988 dated 15.03.1988 by the Narcotics
Control Bureau, representative sample of any contraband after seizure
and deposit in the Malkhana or with the concerned SHO, is required to
be sent to Chemical Examiner within 72 hours. A perusal of Ex.P-11
Chemical Examiner’s report along with the statement of PW7- ASI Ram
Kumar indicates that the sample was drawn on 10.05.2006 and it was
sent to the Chemical Examiner on 14.05.2006 which was received in his
office on 15.05.2006. As such, there is a delay of five days in sending
the samples to the Chemical Examiner. As per the prescribed procedure,
representative sample of any contraband after seizure and deposit in the
Malkhana or with the concerned SHO is required to be sent to Chemical
Examiner within 72 hours as per instructions issued vide Standing Order
No. 1 of 1988 dated 15.03.1988 by the Narcotics Control Bureau. A
further scrutiny of the evidence reveals that after drawing the sample on
10.05.2006, it is not discernible who was the custodian of the same till
14.05.2006 and further deposited it on the next day i.e. 15.05.2007 in
the office of the Chemical Examiner. Neither the concerned MHC was
produced as a witness nor Register No. 19 was produced to establish the
deposit of the samples in safe custody which was necessary to be
produced to rule out the possibility of any tampering. Further Reliance
in this regard can be made on Narcotics Control Bureau vs. Ajmer
Kumar and another, 2016 ILR (HP) 1090 and Jitender Singh
Rathore vs. State of U.P. 2014 (4) RCR (Criminal) 462 wherein on
the basis of the above lapse, accused were acquitted.
8 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 9
14. Even Form 29 was not filled at the spot which was required to
be verified by the Magistrate along with inventory and the
representative samples were also required to be drawn in the presence of
the concerned Magistrate as mandated under Section 52A of the Act.
The case of the appellant is fully covered by the ratio of law laid down
in Union of India vs. Bal Mukund and others, 2009(2) RCR
(Criminal) 574. As such, there is a clear non-compliance of Section 52A
of the Act as also the guidelines issued by a two Judge Bench of the
Hon’ble Supreme Court in Union of India vs. Mohan Lal, 2016 (1)
R.C.R. (Criminal) 858, speaking through Justice T.S. Thakur, which are
reproduced here as under:-
“20. To sum up we direct as under:
(1) No sooner the seizure of any Narcotic Drugs and
Psychotropic and controlled Substances and Conveyances
is effected, the same shall be forwarded to the officer in-
charge of 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.”
15. It is a well settled proposition that the representative
samples must be drawn before the Magistrate as per the ratio laid down
in UOI vs. Mohan Lal (supra). Recently, a two Judge Bench of the
9 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 10
Hon’ble Supreme Court in Mangilal vs. The State of M.P., 2023 SCC
OnLine SC 862, speaking through Justice M. M. Sundresh, while
acquitting the accused, has observed that the mandate of Section 52-A
of the Act has to be duly complied with. The following was observed:
“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 and other connected matter 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 a 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.”
16. Admittedly, Section 52-A of the Act was inserted by Act 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. On the other hand, para 1.5
of the Standing Order No. 1 of 1988 requires that the samples of the
seized contraband must be drawn on the spot of recovery in duplicate.
Similar provision is provided in Standing Order No.1 of 1989 dated
13.06.1989. As such, the Standing Orders cannot supersede the
10 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 11
implication of Section 52-A of the Act. Further, the law is well settled
that whenever there is a conflict between the Act and the instructions
relating to the same subject matter, the Act would prevail but where the
instructions supplement the Act, the former would have a binding force.
17. The sanctity of the statutory instructions contained in the
Standing Orders issued by the Narcotics Control Bureau came up for
consideration before the Hon’ble Supreme Court in Noor Aga vs. State
of Punjab, 2008 (16) SCC 417, where a two Judge Bench, speaking
through Justice S.B. Sinha, held as under:-
“32. Recently, this Court in State of Kerala & Ors. v.
Kurian Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582],
following the earlier decision of this Court in Union of
India v. Azadi Bachao Andolan [(2004) 10 SCC 1] held
that statutory instructions are mandatory in nature.
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 these
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.”
A comparison of the Standing Order No.1 of 1988 with
Section 52-A (2) (c) of the Act shows that there there is a divergence
with regard to drawing of the representative samples. Standing Order
No.1 of 1988 provides for drawing of sample at the spot, whereas
Section 52-A of the Act provides for drawing of sample in the presence
of a Magistrate. Therefore, in the light of Act 2 of 1989, inserting
11 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 12
Section 52-A in the Act as well as the ratio of law laid down in UOI vs.
Mohan Lal (supra), it is clear that as far as the manner in which
representative samples are required to be drawn, the investigating
agency is bound to follow the drill of Section 52-A of the Act. As far as
the mode and time limit for dispatch of samples is concerned, para 1.13
of the Standing Order No. 1 of 1988 provides that samples must be
dispatched to the laboratory within 72 hours of seizure to avoid any
legal objection and this time limit.
18. In view of the ratio of law laid down by the Hon’ble
Supreme Court in Noor Aga (supra), Bal Mukund (supra) and
Mangilal (supra), the Investigating Officers are bound to follow the
procedural safeguards provided under Standing Order No. 1 of 1988 and
Standing Order No. 1 of 1989 as these are in addition to the procedural
safeguards provided under the Act and the same further strengthen the
procedural protection keeping in view the stringent punishment
provided under the Act. These Standing Orders are mandatorily required
to be adhered to as long as they do not override the provisions of the
NDPS Act. Some of the relevant provisions of the Standing Order No.
1/88 are as follows:
“1. Quantity of different drugs required in the sample –
The quantity to be drawn in each sample for chemical test
should be 5 grams in respect of all narcotic drugs and
psychotropic substances except in the cases of Opium
Ganga and Charas/ Hashsish were a quantity of 24 grams
in each case is required for chemical test. The same
quantities should be taken for the duplicate sample also.
12 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152CRA-S-2461-SB-2007 13
2. The seized drugs in the packages/containers should be
well mixed to make it homogeneous and representative
before the sample in duplicate is drawn.
3. When more than one sample is drawn, each sample
should also be serially numbered and marked as S-1, S-2,
S-3 and so on, both original and duplicate sample. It
should carry the serial number of the packages and marked
as P1, 2, 3, 4 and so son.
4. It needs no emphasis that all samples must be drawn
and sealed in presence of the accused, Panchnama
witnesses and seizing officer and all of them shall be
required to put their signature on each sample.
5. Samples must be dispatched to the Laboratory within 72
hours of seizure to avoid any legal objection.”
The above omission on the part of the investigating officer
with regard to total non-compliance of section 52-A of NDPS Act, the
instructions issued vide Standing Order No.1 of 1988 coupled with the
delay and non-filling of Form 29 at the spot would tantamount to a
serious flaw in the investigation and it suffocates the prosecution case
completely.
19. Moreover, the entire investigation in the present case was
conducted by PW7- ASI Ram Kumar, who was also the complainant in
the present case. In fact, he alone is the reason for the implication of the
appellant as he identified him based on previous knowledge. The
Hon’ble Supreme Court in State by Inspector of Police, Narcotic
Intelligence Bureau, Madurai, Tamil Nadu Vs. Ranjangam (2010) 15
SCC 369, has opined that since the arrest and search is made by the
complainant, he should not involve himself with the investigation of the
13 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 14
case. Such an officer leading the investigation would forthrightly raise
questions as to the fairness and impartiality of the said investigation
process. Similarly, the Hon’ble Supreme Court in Megha Singh vs.
State of Haryana 1996(11) SCC 709, opined that the complainant who
had intercepted the accused, recovered the arms and registered the case
should have recused himself from the investigation as it raises doubts
regarding the impartial nature of the investigation.
20. The Hon’ble Supreme Court in State of Gujarat v. Hon’ble
Mr. Justice R.A. Mehta (Retd) 2013(3) SCC 1 observed that the
doctrine of bias is a leg of principles of natural justice and stems from
the legal maxim nemo debet esse judex in sua propria causa – one shall
not be the judge in his own case. If the circumstances are such that it
would create a reasonable apprehension of bias in the minds of the
onlookers, it is sufficient to invoke the doctrine of bias. The test for
likelihood of bias and reasonable apprehension of bias are
interchangeable and hence, the parameters for both can be construed to
be similar.
21. A three Judge bench of the Hon’ble Supreme Court of India
in Mohan Lal v. State of Punjab AIR 2018 SC 3853, speaking through
Justice Navin Sinha, made the following observations in this regard:-
“25. In view of the conflicting opinions expressed by
different two Judge Benches of this Court, the importance
of a fair investigation from the point of view of an accused
as a guaranteed constitutional right under Article 21 of the
Constitution of India, it is considered necessary that the
law in this regard be laid down with certainty. To leave the
matter for being determined on the individual facts of a14 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152CRA-S-2461-SB-2007 15
case, may not only lead to a possible abuse of powers, but
more importantly will leave the police, the accused, the
lawyer and the courts in a state of uncertainty and
confusion which has to be avoided. It is therefore held that
a fair investigation, which is but the very foundation of fair
trial, necessarily postulates that the informant and the
investigator must not be the same person. Justice must not
only be done, but must appear to be done also. Any
possibility of bias or a predetermined conclusion has to be
excluded. This requirement is all the more imperative in
laws carrying a reverse burden of proof.”
22. A three Judge bench of the Hon’ble Supreme Court in
Varinder Kumar vs. State of Himachal Pradesh 2020(3) SCC 321,
speaking through Justice Navin Sinha, has further clarified the
applicability of the ratio of law laid down in Mohan Lal (supra) in
cases pending before the decision in this case and observed as follows:
“18. The criminal justice delivery system, cannot be
allowed to veer exclusively to the benefit of the offender
making it unidirectional exercise. A proper administration
of the criminal justice delivery system, therefore requires
balancing the rights of the accused and the prosecution, so
that the law laid down in Mohan Lal (supra) is not allowed
to become a spring board for acquittal in prosecutions
prior to the same, irrespective of all other considerations.
We therefore hold that all pending criminal prosecutions,
trials and appeals prior to the law laid down in Mohan Lal
(supra) shall continue to be governed by the individual
facts of the case.”
CONCLUSION
23. In view of the above discussion, this Court is of the
considered opinion that the prosecution has failed to prove its case
beyond reasonable doubt. Accordingly, the present appeal is allowed
and the judgment of conviction and order of sentence dated 29.11.2007
15 of 16
::: Downloaded on – 02-05-2025 21:26:50 :::
Neutral Citation No:=2025:PHHC:044152
CRA-S-2461-SB-2007 16
passed by learned Sessions Judge, Fatehabad are hereby set aside. The
appellant, namely Rajinder Singh is acquitted of the charges framed
against him. His bail bonds and surety bonds stand discharged.
24. All the pending miscellaneous application(s), if any, shall
also stand disposed of.
25. The case property, if any, may be dealt with as per rules,
after the expiry of period of limitation for filing the appeal(s). Record of
the case be sent back to the Court below.
(HARPREET SINGH BRAR)
JUDGE
02.04.2025
yakub
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
16 of 16
::: Downloaded on - 02-05-2025 21:26:50 :::
[ad_2]
Source link