Rajiv @ Rinku vs State Of Haryana

,

Anil Kshetarpal, J",

This appeal has been filed against the judgment convicting the appellant under Sections 15 of Narcotic Drugs and Psychotropic Substances Act,",

1985(hereinafter referred to as the 'NDPS Act') and sentencing him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of,

Rs.1,00,000/-. In default of payment of fine he shall further undergo simple imprisonment for one year.",

The case set up by the prosecution as contained in Ex.P69 was to the effect that on 30.07.2014, ASI Jug Lal while being posted as In-charge of",

Police Post Karah Sahib, Police Station Pehowa, District Kurukshetra, received a complaint from Sewa Ram on which FIR No.282 dated 30.07.2014,",

under Sections 279/336 IPC was registered. He reached at the place of occurrence situated at village Ishak on Rattangarh-Kakrali Road where he,

found a blue coloured tractor parked bearing registration no.HR-41-F-1642 (Sonalika make) and white coloured Skoda Octavia car bearing registration,

no. HR-26AM-0069. It was found that the said car after having met with an accident was found struck in the fields of one Rameshwar son of Kali,

Ram, resident of the village. After inspecting the place of accident, said Jug Lal, Investigating Officer, checked the car and in the boot of the car 12",

white coloured plastic bags were found, out of them 11 were sealed whereas one was open. Each bag had inscription “AHAARATTA",

WHOLEMEAL, MFD BY M/S KASH IND ROLLER FLOOR MILL. NAWAL BALA, JAMMU-180006â€. On checking open bag, poppy straw",

was recovered. On suspicion remaining 11 bags were also opened and poppy straw were recovered. After arranging for computerized weighing,

machine and on weighment each sealed bag was found containing poppy straw of 20 kgs, whereas open bag was found having 16 kgs poppy straw.",

Two samples of 250 gram each of poppy straw were taken from each bag and converted into parcels. He sealed the above stated sample parcels and,

residue parcels. He then took above stated sample parcels as well as residue parcel in possession through a separate recovery memo which was,

signed by the witnesses mentioned therein. The above stated car was also taken into possession. The samples seal of each recovered parcel was also,

separately prepared. The seal, after use and after retaining specimen seal impression, was handed over to EASI Janpal, Sr. No.189. Information was",

sent through constable Pawan Kumar No.756 to Police Station, Pehowa for registration of case with a request that the number of FIR be intimated",

and further special reports be sent to higher officers. He also intimated about the said recovery to Station House Officer, Police Station, Pehowa and",

started conducting investigation. Police Station, Pehowa on receipt of the information registered an FIR and special reports were sent to concerned",

authorities. After registration of the FIR, a copy thereof was sent to ASI Jug Lal. He thereafter got it photographed. Statements of the witnesses",

were also recorded. During investigation, proceedings under Section 55 of the NDPS Act were conducted, rough site plan of the occurrence was also",

prepared.,

On completion of the investigation at the spot, ASI Jug Lal along with his companion employees, recovered case property as well as specimen seal",

impression and witnesses appeared before the Station House Officer, Police Station, Pehowa. He conducted investigation under Section 55 of the",

NDPS Act on that day itself. The facts mentioned by ASI Jug Lal in his report along with the case property were cross checked and found correct.,

He sealed each parcel of the case property with his seal and kept his seal with him and also attested the case property produced before him. On,

conclusion of attestation, he prepared his report in this regard and directed ASI Jug Lal to deposit the case property with MHC of the said police",

station which was complied with. He also prepared proceedings under Section 57 of the Act and forwarded to the Deputy Superintendent of Police,",

Pehowa, who on receipt thereof marked it as 'C' along with his signature.",

During investigation, the recovered property was produced before the concerned Area Magistrate and inventory was made. On directions of the",

concerned Area Magistrate case property was deposited with judicial malkhana, Kurukshetra. Sample parcels of the recovered case property with",

specimen seal impression were sent to Forensic Science Laboratory, Madhuban for chemical analysis. On 12.08.2014, accused Rajiv alias Rinku son",

of Subhash Chand, caste Khatri, resident of House No.148/10, Sirta Road, Kaithal, was arrested. After arrest, during investigation in police custody,",

he made a disclosure statement and led the police to place of occurrence and on his identification demarcation memo was prepared. He also made a,

disclosure statement but later on retracted his earlier disclosure statement and made another disclosure statement. After completion of the,

investigation final report under Section 173 Cr.P.C was prepared and presented before the designated Court.,

Copy of the challan was supplied to the convict-appellant Rajiv alias Rinku free of cost and after framing of the charge to which appellant pleaded not,

guilty, the prosecution was called upon to lead its evidence.",

The prosecution has examined following witnesses:-,

PW1-ASI Mool Chand (Mechanic),

PW2-Ravinder Kumar(witness of report under Section 57 of the NDPS Act),

PW3-Constable Gulshan(Witness of disclosure statement),

PW4-HC Daler Singh (Special report witness),

PW5-HC Mohinder Pal (MHC),

PW6-EASI Ranbir Singh (FIR witness),

PW7-SI Dalel Singh (witness of report u/s 55 of the NDPS Act),

PW8-ASI Jug Lal (Investigating Officer). PW9-ASI Kamal Kumar(Investigation witness) PW10-Inspector/SHO Chhotu Ram (witness of final report,

under Section 173 Cr.P.C.),

PW11-Shri Vivek Yadav, SDJM, Pehowa (Inventory report witness)",

PW12-Navdeep Singh (owner of car),

PW13-ASI Janpal (recovery witness),

PW14-Constable Pawan Kumar (witness regarding deposit of parcel with FSL, Madhuban)",

Apart from the oral evidence, the prosecution also produced and proved following documents:-",

Ex.P1,Mechanic Report

Ex.P2,Recovery memo

Ex.P3,Insurance policy of Car No.HR-26AM-0069

Ex.P4,Car

Ex.P5,Report under Section 57 of the NDPS Act

Ex.P6,Carbon copy of report under Section 57 of the NDPS Act

Ex.P7,Disclosure statement of accused Rajiv alias Rinku

Ex.P8,Demarcation memo.

Ex.P9,Disclosure statement of accuse dRajiv alias Rinku

Ex.P10,Affidavit of Constable Mahinder Pal

Ex.P11,Copy of FIR

Ex.P12,Endorsement on rukka

Ex.P13,Recovery memo

Ex.P14,Report under section 55 of the NDPS Act

Ex.P15,Endorsement on report under Section 55 of the NDPS Act

Ex.P16 to 63,"Case property, sample, impression sheet

Ex.P64 to 68,Photographs

Ex.P69,Rukka

Ex.P70,Site Plan

Ex.P71,Application under Section 52-A NDPS Act

Ex.P72 to 75,Photographs

Ex.D2,Identify proof

Ex.D3,Photostat copy of FIR No.282 dated 30.07.2014

(6) Statement of Navdeep Singh is really strange. He admits that his driver Rajiv had taken away the vehicle and never brought it back. Still Navdeep,

Singh did not move any application to the police regarding car having gone missing along with the driver for a period of 39 days, although, he claims",

that he came to know of the same day that his car has met with an accident. He is a young boy of 23 years old. No effort has been made to prove,

ownership of Kabul Singh. Kabul Singh has also not been joined investigation.,

Apart therefrom, there are material contradictions in the evidence of the prosecution. Some of them have already been noticed. Investigating Officer",

when appeared in evidence as PW8 has stated that 11 bags containing 12 kgs poppy husk each and one open bag containing 16 kgs poppy husk were,

recovered. Whereas the case of the prosecution is that 11 bags containing 20 kgs of poppy husk each and one bag containing 12 kgs poppy husk were,

recovered. Investigating Officer has stated that appellant was interrogated at Police Station. However, when we read the statement of PW13-ASI",

Jan Pal Singh, he has stated that appellant was interrogated at the Bus Stand , Pehowa itself.",

Learned trial court has committed material error on the face of the record to convict the appellant on the basis of presumption under Sections 35 and,

54 of NDPS Act. Section 35 and 54 are extracted as under:-,

Presumption of culpable mental state.,

(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of",

such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an,

offence in that prosecution. Explanation. In this section culpable mental state includes intention, motive knowledge of a fact and belief in, or reason to",

believe, a fact.",

(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when",

its existence is established by a preponderance of probability.,

Presumption from possession of illicit articles.,

In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in",

respect of:-,

(a) any narcotic drug or psychotropic substance or controlled substance;,

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;",

(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or,

controlled substance; or,

(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance,",

or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the",

possession of which he fails to account satisfactorily.â€​,

On careful reading of Section 54, it is apparent that the Act provides for a statutory presumption with regard to accused having committed an offence",

in case he is found in possession of narcotic drug or psychotropic substance or controlled substance. Such presumption is not available as no recovery,

was made from the possession of appellant. Efforts of the prosecution to link appellant with the car in question were not successful. Prosecution has,

utterly failed in its attempt.,

From the discussion made above, it is apparent that in the present case either the case set up by the prosecution is false or the prosecution has not",

investigated the case properly. It appears that Investigating Officer was either not competent or he intentionally did not investigate the case to save,

the real culprit. Even cell phone locations of the appellant were not checked to know his location. No independent witness was joined in the,

investigation.,

Accordingly for the reasons stated above, the present appeal is allowed. Superintendent of Police, Kurukshetra, is called upon to examine the entire",

file and thereafter take a call whether any departmental action is required to be taken against Investigating Officer.,