Back
2010 Supreme(P&H) 3143
2011(2) RCR(Cri) 461
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
M. JEYAPAUL, J.
Through Jail (Accused Gurtej Singh alia Teja) -Appellant
Versus
State of Punjab -Respondent
Crl. Appeal No. 1142-SB-2000
Decided on: November 26, 2010
Advocate Appeared:
Mr. Prem Chand Chaudhary, Advocate (Amicus-curiae), for the appellant.
Mr. T.S. Salana, DAG Punjab, for the respondent-State.
Proper analysis of material evidence, adherence to procedural requirements, and examination of independent witnesses are crucial in establishing possession of contraband under the NDPS Act.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Possession of Opium - Section 18 of the NDPS Act - Summary of Acts and Sections: The court discussed the provisions of Section 18 of the NDPS Act and emphasized the importance of proper analysis of material evidence in establishing possession of contraband. The court highlighted the necessity of examining independent witnesses and adherence to procedural requirements for the admissibility of evidence.
Fact of the Case:
The accused was convicted for possession of opium under Section 18 of the NDPS Act based on police evidence. The defense raised concerns regarding procedural lapses and non-examination of independent witnesses.
Finding of the Court:
The court found that the prosecution failed to establish the accused's possession of opium beyond reasonable doubt due to procedural irregularities and non-examination of crucial witnesses.
Issues: The issues revolved around the sufficiency of evidence, procedural lapses, and the credibility of witnesses in establishing the accused's guilt under Section 18 of the NDPS Act.
Ratio Decidendi: The court emphasized the importance of proper analysis of material evidence, including the examination of independent witnesses and adherence to procedural requirements, in establishing possession of contraband under the NDPS Act.
Final Decision: The accused was acquitted of the offence under Section 18 of the NDPS Act, and the judgment of the trial Court was set aside. The appeal was allowed, and any fine paid by the accused was ordered to be returned.
M. JEYAPAUL, J. (ORAL).
1. The accused Gurtej Singh @ Teja was convicted for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He was sentenced to undergo ten years rigorous imprisonment and to pay a fine of rupees one lakh, in default to undergo further rigorous imprisonment for a period of two years. Hence, he has preferred the present appeal.
2. The case of the prosecution as deposed to by the witnesses examined on its side is as follow :
a) The accused was seen coming on the link road from the side of Kothe Waring at 7:00 PM on 31.08.1998 by the police party headed by the Assistant Sub Inspector of Police Harinder Singh (PW4). Daljinder Singh alias Bhola also joined the said police party.
b) On suspicion, the accused was apprehended. The accused was suspected to have possessed intoxicant. The right to have a search in front of the gazetted officer was duly informed to the accused. As per the desire of the accused, the Deputy Superintendent of Police PW1 Paramdeep Singh reached the spot. His identity was disclosed to the accused. PW4 made a search of the accused in the presence of PW1. The opium wrapped in a glazed paper was recovered from the Chaddara owned by the accused. Neither licence nor permit could be produced by the accused.
c) 20 grams of opium was separated as sample out of 1000 grams of opium recovered from the accused. The sample as well as the remaining opium was separately parceled and sealed. Thereafter, the seal was handed over to the independent witness Daljinder Singh alias Bhola.
d) Both the parcels were taken into possession under recovery memo. On personal search of the accused, a sum of Rs. 110/-was also recovered from his pocket under separate recovery memo. The ground of arrest was disclosed to the accused. Rough site plan was prepared. Formal First Information report was recorded. The sample was despatched to the office of the Central Forensic Science Laboratory, Chandigarh. The accused was produced for a remand. PW6 having completed the investigation filed the final report as against the accused.
3. Of course, on the side of the defence, an immaterial witness was examined as DW1.
4. The trial Court having relied upon the evidence of PW4 Assistant Sub Inspector of Police Harinder Singh in the background of the evidence of PW1Deputy Superintendent of Police and witness to the recovery PW5 Head Constable chose to record conviction for the offence punishable under Section 18 of the NDPS Act.
5. The learned counsel/amicus-curiae appearing for the appellant would submit that the independent witness, namely, Daljinder Singh alias Bhola, who was associated not only for the purpose of recovery that was effected by PW4, but also for the purpose of entrustment of the seal, was not examined. The Central Forensic Science Laboratory Form No. 29 was not filled up at the place where the recovery was effected. There is a delay of about eight days in despatching the sample of the contraband to the CFSL. It has been demonstrated from the evidence of PW4 that the very seal was available with the police even at the time when the sample was despatched to the CFSL. No explanation was offered by PW6 Inspector of Police as to why he had not entrusted the material objects for about 7 long days to the custody of the Court. The Head Constable who was entrusted with the material objects by PW6 to deposit the sample with the Malkhana was not examined, he would further submit.
6. Per contra, the learned Deputy Advocate General appearing for the State would submit that even without examining the independent witness Daljinder Singh alias Bhola, the prosecution could establish that the accused/appellant was found in possession of one kilogram of opium without any licence or permit. The other lapse pointed out by the learned counsel/amicus-curiae appearing for the appellant would not go to the root of the case, inasmuch as the prosecution could establish independently
