Dalbir Singh and Others vs State of Haryana

Paramjeet Singh, J—This order shall dispose of CRA-S-582-SB of 2004 titled ''Dalbir Singh v. State of Haryana'' and CRA-S-648-SB of 2004 titled ''Vijay Singh v. State of Haryana'' as both the appeals arise from the same judgment of conviction and order of sentence dated 21.01.2004 passed by learned Additional Sessions Judge, Gurgaon, whereby appellants have been held guilty and sentenced under Section 15 of the NDPS Act to undergo rigorous imprisonment for ten years each and to pay fine of Rs. 1.00 lacs each, in default of payment of fine to further undergo rigorous imprisonment for six months each.

Brief facts for disposal of the present appeals are to the effect that on 31.5.2003. Jagdish Parshad Assistant Sub Inspector along with Excise Inspector Subhash Kaushik along with some police officials was present on National High Way No. 8 near toll tax barrier, Bilaspur in connection with excise checking. At about 7.00 P.M. a white ambassador car bearing registration No. RJ-14-7C-1261 was spotted coming from the side of Dharuhera and the same was stopped. Appellant Vijay was driving the car while appellant Dalbir was sitting by his side on the front seat. Jagdish Parshad ASI checked the car in the presence of other officials accompanying him. Thereupon, 55 packets weighing one kilogram each and 39 packets weighing 2 kilograms each were recovered from the boot of the car. These packets were found containing choora post. Appellants were found transporting 133 kilograms choora post contained in packets of one kilogram and two kilograms. Jagdish Parshad separated one packet from the packets of one kilogram each and one packet from the packets weighing two kilograms each as samples. The sample packets were made into separate parcels. The remainder packets of one kilogram each were put into three separate bags and the remainder packets of two kilograms were also put into three separate bags. The sample parcels as well as the bags containing remainder packets were separately sealed with seal bearing inscription of letters ''SC'' and the seal after use was handed over to Excise Inspector Subhash Kaushik. The sealed sample parcels as well as the sealed bags were taken into possession vide recovery memo. Ruqa was sent to the police station for registration of FIR. Hawa Singh ASI thereafter recorded FIR under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ''the NDPS Act'') and returned the ruqa along with copy of FIR to Jagdish Parshad ASI. Both the appellants were formally arrested. Rough site plan of the place of occurrence was prepared and statements of witnesses under Section 161 Cr.P.C. were recorded. Appellants and case property were produced before the Station House Officer who in turn verified the facts and checked the case property. Thereafter, he affixed his seal bearing inscription of letters ''CB'' on the case property and prepared a detailed report under Sections 51 and 57 of the NDPS Act. Jagdish Parshad ASI deposited the case property with Moharrir Head Constable Hawa Singh. Hawa Singh delivered the sample parcels to Constable Manoj Kumar on 16.06.2003 and the said constable took the same to the office of Forensic Sciences Laboratory, Madhuban. After completion of necessary investigation, charge-sheet was submitted against the appellants.

Copies of challan and the documents attached therewith were supplied to the appellants free of costs as envisaged under Section 207 Cr.P.C. After going through the evidence, trial Court charge-sheeted the appellants for the commission of offence punishable under Section 15 of the NDPS Act to which appellants pleaded not guilty and claimed trial.

In order to prove its case, prosecution examined ASI Hawa Singh as PW1, Naresh Kumar Draftsman as PW2, Jagdish Parshad as PW3, MHC Hawa Singh as PW4, Constable Manoj Kumar as PW5, SHO Sanjiv Kukar as PW6 and Subhash Kaushik, Excise Inspector as PW7.

Statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating circumstances appearing against them in prosecution evidence and claimed to be innocent. However, they closed their defence evidence without producing any witness.

The trial Court after appreciation of evidence on record, convicted and sentenced the appellants as aforesaid. Hence, this appeal.

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

Learned counsel for the appellants contended that out of 55 packets of one kilogram each only one sample was drawn. No homogenous mixture of the sample was prepared and sample was not properly drawn. Similarly out of 39 packets weighing 2 kilograms each only one packet was taken out for analysis by the chemical examiner. Learned counsel further contended that once no homogenous mixture was prepared and sample was not drawn in accordance with law, it cannot be said that the contraband in each of the packet was of poppy husk, there may be other things also in the packets. Learned counsel further contended that at the most it can be said that sample, which was separated for analysis was the only contraband as is clear from the report of chemical examiner. It was further contended that sample seal was never prepared and it was not sent to the chemical examiner for comparison whether the seals were intact at the spot when the material was brought before the chemical examiner. Thus, there is missing link. Learned counsel for the appellants further contended that in the affidavit of MHC Hawa Singh (Ex.PF) it is mentioned that Investigating Officer had deposited six kattas of choora post which were sealed with inscription ''SC'' and ''CB'' and two samples weighing one kilogram and two kilograms each also bear the inscription ''SC'' and ''CB''. It is not mentioned in the affidavit that any specimen of the seal was prepared and was sent along with RC No. 234 dated 16.06.2003 nor it is mentioned in the affidavit of Manoj Kumar Constable who had taken two parcels of one kilogram and two kilograms each sealed with inscription ''SC'' and ''CB'' to the FSL. So question of comparison of same with the specimen seal does not arise. There is a missing link in the chain of evidence adduced by the prosecution. Learned counsel for the appellants further argued that affidavits have not been properly verified. There is general declaration, which is defective and has not been verified. Learned counsel for the appellants further contended that even it has not been clarified as to when and at which place the Form No. 29 was prepared. There is delay in FSL report. No specific question with regard to conscious possession was framed nor put to the appellants.

Per contra, learned counsel for the State vehemently contended that prosecution led cogent evidence which clearly proves the case against the appellants. Learned counsel for the State further contended that conviction recorded by the trial Court is based on appreciation of evidence. It was further contended that it is mentioned in the report of the chemical examiner that they had compared the seals with the specimen seals and the seals were found intact. The lacunas in the affidavits do not affect the merits of the case. Appellants were in conscious possession of the contraband. The packets were found in large quantity and question of implanting the same does not arise.

I have considered the contentions raised by learned counsel for the parties.

Admittedly, out of 55 packets weighing one kilogram each and 39 packets weighing 2 kilograms each only one sample each was drawn and sent for analysis, meaning thereby other 54 and 38 packets have not been tested to find out whether those packets contained any type of contraband covered under the NDPS Act. No homogenous mixture was prepared from both sets of packets by mixing all the contents to find out whether they are contraband covered under the NDPS Act. In fact, samples should have been drawn from each of the packet individually and sent for examination. As such, at the most, appellants could be convicted for possessing one packet of one kilogram and one packet of two kilograms i.e. three kilograms of poppy husk, which has been analysed. In other words, there is no material on record that 54 packets of one kilogram each and 38 packets of two kilograms each contained any contraband. Furthermore, there is missing link in the chain of evidence. Affidavit (Ex.PG) of Constable Manoj Kumar does not show that specimen of the seals was sent along with docket. As such the comparison of seals on the samples sent for analysis does not arise. In the affidavit (Ex.PF) of MHC Hawa Singh also it is not mentioned that any specimen seal was deposited with him or he had handed over the same to Constable Manoj Kumar, who had taken the samples to the laboratory for analysis. In the report of the chemical examiner it has been mentioned that seals were compared with the specimen of the seals. It is also not mentioned in the affidavit that any specimen of the seals was prepared. Even there is no proper verification of the affidavits as per provisions of the Code of Civil Procedure. There is no categoric evidence to show the conscious possession of the appellants.

This Court in Bhola Singh Vs. State of Punjab, (2005) 2 RCR(Criminal) 520 , Nirmal Singh v. State of Punjab, 2011(5) R.C.R. (Criminal) 201 and Amrik Singh Vs. State of Punjab, (2014) 3 RCR(Criminal) 615 has held that a person cannot be said to be in conscious possession of the contraband unless specific question with regard to conscious possession is framed or put to the accused. In the present case also no such question was framed or put to the appellants. Furthermore, this Court in Malkiat Singh alias Kala Vs. The State of Punjab, (2008) 152 PLR 233 : (2009) 1 RCR(Criminal) 353 and Karnail Singh Vs. The State of Haryana, (2010) 2 RCR(Criminal) 32 has held that it is required to be proved that sample was not tampered with till it reaches the chemical examiner for analysis. Specimen impression of the seals is also required to be sent to the chemical examiner to prove that the sample seals were the same as were affixed on the contraband. In the affidavit (Ex.PF) of MHC Hawa Singh no reference to the specimen of seals has been made. Similarly in the affidavit (Ex.PG) of Constable Manoj Kumar nothing is mentioned with regard to specimen seals. Thus, prosecution has failed to prove that samples were not tampered with as specimen seals were not sent to the chemical examiner. As such link is missing in the chain of evidence adduced by the prosecution

For the reasons recorded above, appeals are allowed. The judgment of conviction and order of sentence dated 21.01.2004 are set aside. The appellants stand acquitted of the charge framed against them. They are stated to be on bail, their bail bonds stand discharged.