Teja Ram vs State of Haryana

M. Jeyapaul, J.—Accused Tej Ram was convicted for the offence u/s 18 of the NDPS Act, 1985. He has challenged the conviction and sentence passed by the trial Court.

The brief case of the prosecution is that on 19.6.2005, PW6 SI Jagdish Chander attached to Police Station Sadar Sirsa proceeded alongwith PW5 SI Maan Singh and other police officials for performing patrolling duty near canal bridge of village Neja Kalan. At that point of time, the accused was found coming from the side of Handi Khera carrying a cloth bag in his hand. On suspicion PW6 served a notice Ex. PE informing the accused of his legal right to get a search done in the presence of a gazetted officer. As desired by the accused, PW2 DSP Balbir Singh was associated for the purpose of search. In his presence, the bag carried by the accused was searched by PW6. It contained opium. Two samples of 50 gms. each were taken out. The remaining opium weighed 4.900 kgs. The samples were put in a small plastic container. The residue was put in a plastic jar. The samples as well as the residue were separately parcelled. PW2 and PW6 affixed their respective seals on the parcels of the contraband. The accused was arrested. The sample as well as the residue contraband were deposited with PW3 MHC Madan Lal. PW4 Subhash Chander took the sample to the chemical examiner on 28.6.2005. The chemical examiner returned a report on analysis that the sample contained 3.4% Morphine.

The trial Court having thoroughly evaluated the materials on record returned a verdict of conviction as against the accused.

The learned counsel appearing for the accused-appellant would submit that nothing was recovered from the accused. Referring to the order of remand (Ex.PH/3) passed by the learned Judicial Magistrate, he would submit that the Judicial Magistrate infact certified that only plastic bag allegedly containing opium was produced. The case property was not produced before the judicial malkhana as directed by the Judicial Magistrate. The link evidence is missing. There was no evidence to show that the samples as well as the residue were taken out from the malkhana for the purpose of producing before the Judicial Magistrate. The contraband was not produced before the Court. Referring to the chemical examiner''s report, he would submit that the forwarding letter was prepared as early as on 23.6.2005. Therefore, in all probability the sample should have been taken out from the malkhana on the said day. He would also brought to the notice of this Court that the chemical examiner''s report would indicate that the sample contained only 48.1 gms. and not 50 gms. as spoken to by the witnesses examined on the side of the prosecution. Referring to the decision of this Court, he would submit that the accused is entitled to acquittal even on the ground that the quantity of the sample sent for examination did not tally with the quantity of sample taken for analysis by the chemical examiner.

I heard the submissions made by learned AAG, Haryana appearing for the State supporting the verdict of conviction recorded by the trial Court.

PW6 SI Jagdish Chander and PW5 ASI Maan Singh have spoken to the recovery of 5 kgs. of opium from the possession of the accused. They have also spoken to the fact that two samples weighing 50 gms. each were taken out and the same were sealed with the seal of PW2 and PW6. The sample sent for examination would go to establish that the sample was nothing but opium.

It is a case where PW6 has made a chance recovery. Sometimes it is difficult for the police officer to associate any independent witness during the course of chance recovery. PW6 has deposed that he infact directed the driver to bring some person from the village, but the driver returned empty handed. If the evidence adduced on the side of the prosecution inspires confidence, the non-association of independent witness cannot be the sole ground for rejecting the entire case of the prosecution.

The materials on record do not subscribe to the submissions made by learned counsel appearing for the appellant that nothing was recovered from the accused. As already pointed out by me, PW2, PW5 and PW6 have cogently spoken to the fact that large quantity of 5 kgs. of opium was recovered from the possession of the accused.

The recovery memo and the first information report would speak to the fact that plastic container was used for taking the sample and plastic jar was used for the purpose of taking the residue. PW6 has produced the samples as well as the residue before the learned Judicial Magistrate. As per his directions, photographs had been taken. The photographs would go to establish that those containers were completely packed. No wonder, learned Judicial Magistrate had made an observation while certifying the inventory of the articles produced by PW6 that the articles were produced in a bag. In other words, the certificate issued by learned Judicial Magistrate matches with the description found in the requisition submitted by PW6 for certification. In the request he has clearly described that one parcel of opium and two parcels of opium were produced. So the residue opium in the plastic jar and the sample opium in the plastic dabbi were completely parceled and produced before the learned Judicial Magistrate. Therefore, the description found in the certificate issued by the Judicial Magistrate does not give rise to any suspicion that the parcel produced before him was not that of the contraband recovered from the accused.

Learned Judicial Magistrate has directed the case property produced on 20.6.2005 to be deposited with the judicial malkhana and therefore, on 23.6.2005, he having verified the photographs taken of the case property ordered to despatch the photographs to the Court concerned, keeping one set of photographs on the record and to return one set to the prosecution against proper receipt.

As per Section 52A of the NDPS Act the case properties which are hazardous by nature and vulnerable to theft could be destroyed after the inventory and photographs thereof were certified by the Judicial Magistrate. No wonder, the case property was not produced during the course of trial. Even otherwise, when the inventory of the contraband and the photographs taken thereof were certified by the Judicial Magistrate, the non-production of the contraband would not go to the root of the matter.

As per Section 52A(4) of the NDPS Act, the inventory and the photographs certified by learned Judicial Magistrate shall be treated as primary evidence to establish the charge under the NDPS Act.

The evidence of PW3 MHC Madan Lal would go to establish that the samples were deposited with him as early as on 19.6.2005. The same were taken out from the malkhana as per the forwarding letter issued by the Deputy Superintendent of Police on 28.6.2005 and entrusted to PW4 Constable Subhash Chander who took the sample to the chemical examiner on the very same day. On a careful perusal of the forwarding letter and the FSL report, in the background of the evidence of PW3 and PW4 it is seen that the samples were taken out from the malkhana only on 28.6.2005, inspite of the fact that a forwarding letter had been prepared by the DSP as early as on 23.6.2005. The Court is concerned with the date on which the samples were taken out from the malkhana and not the date on which the forwarding letter was prepared by the DSP at the request of the investigating officer concerned.

Of course, there is no evidence to establish that the case property was deposited in the judicial malkhana as directed by the Judicial Magistrate on 20.6.2005, but the fact remains that samples had been taken out from the malkhana under the charge of PW3 who was the MHC and sent to the chemical examiner on 28.6.2005. Non-compliance of the directions of the Judicial Magistrate by the investigating officer may expose the investigating officer to some action under the provisions of law, but the failure to deposit the contraband in the judicial malkhana as directed by the Judicial Magistrate does not create any doubt in the mind of the Court, inasmuch as, the samples were found intact by the chemical examiner at the time when he received the samples from PW4.

Learned counsel appearing for the appellant referred to a decision of this Court in Ram Sarup vs. State of Haryana, 2006(1) RCR (Cri) 52. That was a case where the sample seal prepared by the investigating officer was not sent to the chemical laboratory for comparison with the seal appearing on the sample sent for examination. Though the recovery was made based on a secret information, no independent witness was associated. There was only partial offer u/s 50 of the NDPS Act and not complete offer made to the accused. In addition to that the sample sent for examination weighed only 43.700 gms. instead of 50 gms. alleged to have been drawn and sent for examination.

In the instant case, except the fact that the sample contained 48.1 gms. instead of 50 gms., no other lapse is found. Further, the difference of about 2 gms. in the quantity of 50 gms. could be treated as very negligible. Such an error is bound to occur while weighing the material on different times using different scales. The investigating officer has used one type of measurement and scales and the chemical examiner has used a different measurement and scales. Marginal difference in the quantity of sample sent for examination does not upset the case of the prosecution. In view of the above, the above ratio would not apply to the facts of this case.

I find that the trial Court having thoroughly evaluated the evidence on record rightly returned a verdict of conviction as against the accused. Therefore, the judgement of conviction and order of sentence passed by the trial Court as against the accused-appellant is confirmed and the appeal stands dismissed.