Subhash vs State of Haryana

Jitendra Chauhan, J.—The present appeal has been preferred by the appellant-Subhash, challenging the judgment and order dated 21/22.03.2005, passed by the learned Additional Sessions Judge, Fatehabad, (hereinafter referred to as the trial Court), whereby, he has been convicted for the commission of offence punishable u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, (for short, ''the Act'') and sentenced to undergo rigorous imprisonment for a period often years and to pay a fine of Rs. 1,00,000/- or in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. The brief facts of the present case as narrated in para. 2 of the impugned judgment, are reproduced as under:-

"2. Brief facts of the prosecution case are that SI Med Singh along with other police officials was present at Alipur Bareta T-point in a Govt vehicle No. HR-22B/1180 driven by C. Madan Lal. There police party received a secret information to the effect that a TATA 407 bearing registration No. HR-20GA-0165 carrying poppy husk would come from Fatehabad to village Aherwan. The in former had also disclosed that its driver is Subhash and other three persons Pala Ram, Bansi and Mitu are also present in the said canter. They are indulging in the business of selling poppy husk. In the meantime, Ex. Sarpanch Joginder Singh resident of village Behlalpur, came there by chance and he was told about the secret information. A picket was laid and checking was conducted. After some time, a vehicle was seen coming from the side of Fatehabad. Med Singh SI gave a signal to stop the vehicle. The driver stopped the canter at some distance from the police party and two persons who were sitting in the back portion of the canter, managed to escape, taking advantage of darkness. Remaining two persons were apprehended with the help of other police officials. The persons who fled the spot, were Bansi and Mitu who were already known to the police party. The persons who were apprehended were driver Subhash and Pala Ram (since deceased). On search of the canter, poppy husk was recovered. Accordingly, this case was registered against the accused. Harmit @ Mitu and Bansi were arrested on 14.11.2000 and 18.11.2000 respectively. On completion of investigation, challan was filed against the accused and a copy thereof was supplied to the accused."

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.

In order to substantiate its case against the accused, the prosecution examined following witnesses:-

PW-1 Constable Ramesh Chander; PW-2 Fauja Singh; PW-3 ASI Bhim Singh; PW-4 Inspector Shingara Singh (Retired); PW-5 SI Med Singh; and PW-6 DSP Ashok Sheoran.

During their examination u/s 313 Cr.P.C., the accused-appellants denied the prosecution allegations and pleaded false implication. In defence, they examined Birma Nand as DW-1, who deposed that on 13.08.2000, he was going to his village from Taxi stand, Fatehabad, on his Esteem Car. Two persons ere standing on G.T. Road near Bus Stand, Fatehabad. In the meanwhile, police came there and apprehended those persons. The police party was having a Canter. He further stated that police asked him to join the investigation as a witness against those persons. He knows Subhash accused, who was apprehended by the police and he was one of those two persons. He further stated that he already knew Subhash as he was driver of taxi at taxi stand, Fatehabad. On the following day, he came to know through newspaper that Subhash was involved in a case under the NDPS Act.

After hearing learned counsel for both the parties and considering evidence led by the parties, the learned trial Court, acquitted accused-Bansi and Harmit Masih @ Mitu, by giving them the benefit of doubt, whereas convicted and sentenced the appellant-Subhash, as detailed at the outset of this judgment. Accused-Pale Ram died during trial.

Hence, the present appeal, which was admitted by this Court on 25.04.2005.

The learned counsel for the appellant contends that the prosecution story already stands disbelieved qua accused Bansi and Harmit Masih @ Mitu, therefore, the same cannot be believed qua the present appellant. The learned counsel further contends that Joginder Singh, Sarpanch, who came at the spot by chance and was told about the secret information, was not joined as independent witness. The learned counsel further contends that the conscious possession of the accused-appellant is not proved in the instant case as he is alleged to be the driver of the canter in question, whereas the recovery was effected from its backside. The learned counsel further contends that the link evidence is missing in the instant case as the accused-appellant is not the owner of the canter in question. The prosecution has also not examined the original owner, Bhajan Lal, to explain as to how the appellant came into possession of the said vehicle. The learned counsel further contends that the mandatory provisions of the Act have not been complied with by the prosecution. The recovery was not effected in PW6, DSP Ashok Sheoran, thus, there is noncompliance of Section 50 of the Act. It is further submitted that Sections 42 and 52-A of the Act have also not been complied with. The learned counsel lastly submits that the appellant has clean antecedents as he is not involved in any other case.

On the other hand, the learned State counsel, has argued that on the strength of oral and documentary evidence placed on record, the prosecution has been able to bring home guilt to the accused. He contends that the provisions of Sections 42 and 50 of the Act are not applicable in the instant case as the recovery is effected from a public place and it is not a case of personal search. The learned counsel further contends that the appellant was apprehended at the spot, therefore, the question of his identity does not arise.

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

As per the prosecution story, there were four accused traveling in the canter. The appellant was allegedly driving the same. On being signalled to stop, two persons, namely, Bansi and Harmit Mashi @ Mitu and Bansi, fled away from the spot and were arrested subsequently. The make and registration number of the vehicle in question as well as the names of all the four accused persons were specifically mentioned in the secret information. Even then, the prosecution story qua these two accused, Mitu and Bansi, stands disbelieved by the learned trial Court. In the above background, this Court feels that the entire prosecution story has been rendered doubtful.

Another aspect of the matter is regarding the independent witness, i.e. Joginder Singh, Sarpanch, who came at the spot by chance. He was told about the secret information by the investigating officer. However, for the reasons best known the the prosecution, this witness has not been examined in the Court in spite of the fact that he was present on the spot throughout and witnessed the recovery proceedings. This witness was crucial in could have accorded credence to the prosecution story.

The alleged recovery has been effected from the rear side of the canter. The appellant is allegedly the driver of the vehicle. The co-accused, Mitu and Bansi, who are allegedly sitting on the rear side, have been acquitted by the trial Court. Thus, the conscious possession of the accused-appellant is not proved in the instant case. The appellant is not the owner of the canter in question. The prosecution did not examine the original owner, Bhajan Lal, to explain as to how the appellant came into possession of the said vehicle. Therefore, the link evidence is missing in the instant case.

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 sub-stances 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 u/s 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic sub-stances containing such details relating to their description, quality, 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 subsection (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 in 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 sub-section (2), the Magistrate shall as soon as may be allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872(1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying on 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."

From the perusal of the record, it is further made out the there is complete non-compliance of the mandatory provisions of Section 52-A of the Act, inasmuch as there is nothing on record to show that the case property was produced before the trial Court during trial. No report u/s 52-A of the Act is available on record. The non-production of the seized drug before the trial Court is fatal to the prosecution case as it has failed to establish identity of the seized drug and its quantity before the Court. This has put a dent on the case of the prosecution and the conviction and sentence of the appellant is liable to be set aside on this ground alone. The cumulative effect of the discussion made above is that the present appeal succeeds; the impugned judgment of conviction and order of sentence dated 21/22.03.2005, passed by the learned trial Court, is set aside and the appellant is acquitted of the charge framed against him. The appellant is stated to be on bail. His bail bonds shall stand discharged.