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1995 Supreme(P&H) 855
PUNJAB & HARYANA HIGH COURT
Sat Pal, J.
Paramjit Singh
Versus
State Of Punjab
Criminal Appeal No. 116 of 1995,
Decided On : AUGUST 1, 1995
Strict compliance with the provisions of Sections 52(3) and 55 of the NDPS Act is not necessary, but non-compliance may affect the probative value of the evidence and, in some cases, may invalidate the arrest or search. However, mere non-compliance or failure to strictly comply with the provisions will not vitiate the prosecution if there is sufficient material to prove the guilt of the accused.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 52(3), 55 - VIOLATION - EFFECT - EVIDENCE - APPRECIATION - FAILURE TO COMPLY WITH STATUTORY PROVISIONS - PREJUDICE - FAILURE OF JUSTICE - ABSENCE OF EXPLANATION - BENEFIT OF DOUBT TO ACCUSED.
Fact of the Case:
Appellants were convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possessing 15 kgs of poppy husk. The prosecution alleged that the appellants were caught with the contraband and that the search was conducted in the presence of witnesses. The appellants challenged the conviction, arguing that the provisions of Sections 52(3) and 55 of the NDPS Act were violated, as the specimen seal/CFSL form containing the specimen seal was not handed over to the Moharrir Malkhana and no independent witness was associated with the search.
Finding of the Court:
The court found that there was a violation of Sections 52(3) and 55 of the NDPS Act, as there was no evidence that the specimen seal/CFSL form containing the specimen seal was deposited in the Malkhana. The court also found that no independent witness was associated with the search and sealing of the samples of poppy husk.
Issues: 1. Whether there was a violation of Sections 52(3) and 55 of the NDPS Act? 2. Whether the absence of an independent witness during the search and sealing of the samples of poppy husk affected the prosecution case?
Ratio Decidendi: 1. The court held that the provisions of Sections 52(3) and 55 of the NDPS Act are mandatory and their violation cannot be ignored. The court relied on the Supreme Court judgment in Balbir Singh v. State of Punjab, which held that strict compliance with the provisions of Sections 52 and 57 of the NDPS Act is not necessary, but non-compliance may affect the probative value of the evidence and, in some cases, may invalidate the arrest or search. However, the court also held that mere non-compliance or failure to strictly comply with the provisions will not vitiate the prosecution if there is sufficient material to prove the guilt of the accused. 2. The court held that the absence of an independent witness during the search and sealing of the samples of poppy husk had an adverse effect on the prosecution case, particularly in light of the violation of Sections 52(3) and 55 of the NDPS Act. The court held that the prosecution failed to provide a satisfactory explanation for the absence of the sample seal in the Malkhana Register and for the failure to produce MHC Jaswant Singh, the Moharrir Malkhana at the relevant time, for cross-examination.
Final Decision: The court allowed the appeal, set aside the conviction and sentence of the appellants, and directed their release.
Sat Pal, J.
1. This appeal is directed against the judgment dated 2nd February, 1995, passed by the Additional Sessions Judge, Amritsar, in the case FIR No. 37, dated 22nd April, 1992, Registered at P.S. Goindwal Sahib under Section 15 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (in short, the Act). Vide this judgment, the learned Additional Sessions Judge, Amritsar, convicted both the appellants under Section 15 of the Act and sentenced each one of them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac and in default of payment of fine, each one of them to undergo rigorous imprisonment for two years.
2. As per the prosecution story, on 22nd April, 1992 SHO of Police Station Goindwal Sahib along with certain other Police Officials was present on the minor canal bridge at Chak Mehir in connection with patrolling and detection of bad elements, and at that time, the appellants were seen coming from the apposite side having gunny bags on their heads. It is further alleged that on seeing the Police Party, the appellant, Ranjit Singh, threw away the gunny bag and succeeded in running away but appellant Paramjit Singh was apprehended at the spot. Appellant Ranjit Singh was, however, known to the SHO and two other members of the party, and as such, he was identified. It is further alleged that the appellant Paramjit Singh was informed by the said SHO about his right to get the search conducted in the presence of a Gazetted Officer or Magistrate but Paramjit Singh reposed confidence in the SHO who conducted the search and 15 Kgs. of poppy husk was recovered from the gunny bag which he was carrying on his head. It is further alleged that 250 grams of poppy husk was taken out as sample from the recovered poppy husk and two parcels, namely one of the sample and other of the remaining poppy husk Exhibit P1 were prepared and sealed with the seal of SPS and were taken into possession vide Memo Exhibit PB. The seal after use was handed over to SI Harbhajan Singh who was also member of the Police party. It is further alleged that as a result of the search of the gunny bag which had been thrown by Ranjit Singh, accused, 25 kgs poppy husk was recovered and 250 grams poppy husk was taken out from the recovered poppy husk as sample and both the parcels containing the sample and the remaining poppy husk were sealed in the same manner as stated herein above. It is further alleged that the sample and the seals were deposited with Jaswant Singh MHC after return to the Police Station. Appellant Ranjit Singh was arrested on 7th June, 1992.
3. The prosecution in order to prove its case examined two witnesses. namely PW 1 ASI Jagbir Singh and PW2 Surinder Pal Singh SI and also tendered in evidence affidavit Exhibit PA of Constable Gurnam Singh, Exhibit PD of MHC Jaswant Singh and Chemical Examiners report, Exhibit PE.
4. Appellants/accused examined DW-1 Amrik Singh Constable who had brought register No. 19 maintained by the Police Station Goindwal.
5. Relying on the aforesaid prosecution evidence, the learned Additional Sessions Judge convicted and sentenced the appellants as stated hereinabove.
6. Mr. Pheruman, learned counsel appearing on behalf of the petitioner submitted that the specimen seal/CFSL form containing the specimen seal, alleged to have been prepared at the time of sealing the sample and the remaining poppy husk were not handed over to Moharrir Malkhana nor the prosecution has led any evidence to the effect that the same was sent from Malkhana to the Chemical Examiner for comparison. In this connection, the learned counsel drew my attention to the statement of DW1, Amrik Singh, Constable, who had brought the record of the case concerned from Malkhana of Police Station Goindwal Sahib. In his statement, he had stated that neither the sample seal nor the sample parcel had been entered in the Register No. 19. In his cross-examination, he, however, stated that as per entry No. 52 of 1992, cas
