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2008 Supreme(P&H) 940
PUNJAB & HARYANA HIGH COURT
Sham Sunder, J.
Pargat Singh
Versus
State Of Haryana
Criminal Appeal No. 68 of 1999,
Decided On : APRIL 29, 2008
Contraband--Intentional and deliberate breach of provisions of law by merely saying that the same being directory--Casts a cloud of doubt on the prosecution case.
Headnote:(A) Contraband--Search and seizure--Safe custody of case property--Officer incharge of Police Station to produce the case property before a Magistrate--Obtain his orders with regard to the factum that the seals on the case property qua on sample parcel were intact--Directory provisions--Intentional and deliberate breach of provisions of law by merely saying that the same being directory--Casts a cloud of doubt on the prosecution case--Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 55, 52 & 57. (Para 12)
(B) Contraband--Search and Seizure--Directory provisions--Statute adumbrates that a particular act should be done in a particular manner by the person concerned--He cannot take the shelter by merely saying that the same being directory, they were not bound to comply with the same--Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 52, 55 & 57.
(Para 12)
(C) Contraband--Delay in sending sample--Acquittal--Delay of 21 days in sending the sample to the office of FSL--Delay not explained--It could not be safely held that the sample remained untampered with--No report sent by the Investigating Officer to his superior officer with regard to alleged apprehension of accused and alleged recovery of contraband--Statement under Section 161 of PW 6 who allegedly took the sample parcel to the office of FSL not recorded--Deliberate and intentional breach by the Investigating Officer in complying with the provisions of Sections 55 and 57 of the Act--Order of sentence liable to be set aside--Narcotic Drugs and Psychotropic Substances Act, 1985, Section 161.
(Para 11 to 14)
Sham Sunder, J.
1. This appeal is directed against the judgment of conviction dated 21.12.1998, and the order of sentence dated 22.12.1998, rendered by the Court of Addl. Sessions Judge, Karnal, vide which it convicted the accused/appellant Pargat Singh, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as the Act only) and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs. 1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years, for having been found in possession of 15 Kgs. poppy straw, now falling within the ambit of noncommercial quantity, without any permit or licence.
2. The facts, in brief, are that on 16.11.1994, Bhim Singh, the then Inspector, SHO, alongwith other police officials, was present on the bridge of augmentation canal, on Karnal-Meerut road, near Sugar Mills, Karnal. Jagpal Singh, public witness, met the police party. In the meantime, the accused was seen coming from the side of Nagla Mehga chowk, with a gunny bag, on his head. On seeing the police party, he tried to retreat, but was apprehended, on suspicion. The search of the gunny bag, being carried by the accused, in the presence of Raj Kumar, DSP, who was called to the spot by sending a V.T. message, in accordance with the provisions of law, was conducted, which resulted into the recovery of 15 Kgs. poppy straw. A sample of 250 grams was separated therefrom, and the remaining poppy straw, was put into the same bag. The sample, and the remaining poppy straw, were converted into parcels, duly sealed with the seal, bearing impression BS, and taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. The statements of the witnesses, were recorded. The accused was arrested. After the completion of investigation, the accused was challaned.
3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, examined Raj Kumar, DSP (PW-1), Bhim Singh, Inspector/SHO, (PW-2), Krishan Singh, HC (PW-3), Wazir Singh, ASI (PW-4), Virender Singh, HC (PW-5), Ved Parkash, Constable (PW-6), and Jagpal Singh, (PW-7). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that nothing was recovered from him. He, however, did not lead any evidence, in his defence.
6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.
7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant.
8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellant, at the very outset, contended that Jagpal Singh, independent witness, was joined by the Investigating Officer, at the time of effecting the alleged recovery, but he did not support the case of the prosecution. He further submitted that this clearly showed that no recovery was effected from the accused, but he was falsely implicated in the instant case. The submission of the Counsel for the appellant, in this regard, appears to be correct. Jagpal Singh, independent witness, (PW-7), did not support the case of the prosecut
