2019 Supreme(P&H) 241

IN THE HIGH COURT OF PUNJAB AND HARYANA
RAJIV SHARMA, HARINDER SINGH SIDHU, JJ.
HARBHAJAN SINGH ALIAS BHAJAN SINGH - Appellant
Versus
STATE OF PUNJAB - Respondent
Criminal Appeal (D) No. 676, 737 of 2010; Criminal Appeal (S) No. 2344 of 2010
Decided on : 08-02-2019

Narcotics--Search and Seizure--CFSL Form 29--No record on judicial file indicating that three copies of CFSL form and three sample seal chits were prepared at the spot--All the columns should be filled up and seals of impressions should be on form itself and the pasting of the same later on is deprecated--Accused acquitted.
Narcotics--Case Property--Non deposit in Malkhana as per rules--Non-compliance of such rules casts doubt whether it is the same case property which was recovered from the accused and sent to FSL or it was case property of some other case--Thus entitles the accused for acquittal

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15--Search and Seizure--CFSL Form 29--No record on judicial file indicating that three copies of CFSL form and three sample seal chits were prepared at the spot--It is a serious omission on part of police--Thus, the possibility of the same being affixed later on cannot be ruled out--Accused acquitted. (Para 14)

       They had not explained why separate chits were prepared. The seal impression should have been on the form itself. As noticed hereinabove, PW-3 SI Harpal Singh admitted that sample seal Ex.P4 was prepared on a separate piece of paper and impressions of his seal, and that of DSP and SHO were not directly put on CFSL form Ex.P12 on the spot. He also admitted that he had prepared three copies of CFSL form. There is no evidence on record that he prepared three copies of CFSL form and three sample seal slips were prepared at the spot. Thus the possibility of the same being affixed later on cannot be ruled out.

       (B) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15--Search and Seizure--CFSL Form 29--Form No. 29 is required to be filled up on the spot after taking due precautions-- All the columns should be filled up and seals of impressions should be on form itself and the pasting of the same later on is deprecated--Accused acquitted. (Para 14)

       (C) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15--Case Property--Non deposit in Malkhana as per rules--Acquittal--Held; These Rules have been framed to ensure that case property from its initial stage of seizure till production in the Court remains safe/intact and is restored to store room in the presence of senior police officer--Property taken out of the main store-room for production in court is required to be signed by the court orderly concerned in Register No. 2 and the prosecuting officer authorizing the removal is required to initial this entry--Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts--Such rules were not followed in present case--Accused acquitted--Punjab Police Rules, 1934, R. 27.19. (Para 21)

       (D) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15--Case Property--Non deposit in Judicial Malkhana--Rules regarding withdrawal and deposit of case property in Malkhana not followed--Acquittal--In present case, despsite the specific order the case property was not deposited in judicial Malkhana--Admittedly, case property was still lying in police station and was brought to the Court from police station itself--There is no report from the Incharge of judicial Malkhana that there is no space/room to keep the property in judicial Malkhana--There is no corresponding entry when the case property was taken out from the Malkhana and re-deposited in the Malkhana thus there is doubt whether the case property remained intact or not more particularly when the seal of certain bags were found broken--Accused acquitted. (Para 22)

       However the fact of the matter is that despite the specific order dated 05.01.2008, the case property was not kept in judicial Malkhana. PW- 2 SI Harinder Singh admitted in his cross-examination that case property though was ordered to be deposited in judicial Malkhana, this case property was still lying in police station and was brought to the Court from police station itself. He volunteered said that there was no space in the judicial Malkhana. However he also admitted that he did not get the Court order modified regarding deposit of case property. There was no report of Incharge of judicial Malkhana that there was no space in the judicial Malkhana. He admitted in his cross-examination that there was no case diary regarding taking of the case property to judicial Malkhana and its return. He did not record any case diary on 10.01.2008 regarding dispatch of samples to the lab. He admitted that whenever any case property is taken out from the Malkhana for any official purpose and then re-deposited, entries of both these activities are always made in register No.10 under the signatures of SHO or other officers. PW-3 SI Harpal Singh admitted that he had seen the case property outside the Court lying in canter. The seals on some of the bags were broken. It was serious lapse on the part of the police. Once it was ordered to deposit the case property in the judicial Malkhana, it should have been deposited in the judicial Malkhana alone. In case there was no space in judicial Malkhana, the police should have moved an application for modification of the order. (Para 22)

       (E) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15--Case Property--Procedure for deposit in Malkhana discussed--Held; It is necessary that as and when case property is taken out from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when case property is re-deposited in the Malkhana--Case property in NDPS cases is required to be kept in safe custody from the date of seizure till its production in the Court--It is also necessary that when case property is taken out from Malkhana, DDR is made and also at the time when case property is re-deposited in the Malkhana--Non- compliance of such rules casts doubt whether it is the same case property which was recovered from the accused and sent to FSL or it was case property of some other case--Thus entitles the accused for acquittal. (Para 16)

       Thus, it is evident from rule 22.18 that the case property is required to be kept in store room and each article is to be entered in store room, registered and labelled and label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles is required to be given on the label and in the store-room register. Similarly, it is prescribed in Rule 27.18 that weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, or the police station. The case property when required for production in court such articles shall, at headquarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting sub-inspector (now APP/PP) and an entry made in the register of issue from and return to the prosecuting agency`s store-room, which register shall be maintained in Form 27.18(1). Property taken out of the main store-room for production in court is required to be signed by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal shall initial this entry. Such officer similarly, after personal check, is required to initial the entry of return of the property to the main store-room on the closing of the courts. It is further provided in this Rule that every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. In case property is required to be committed to the higher Court, then under Rule 27.19, the parcel shall be sealed with the seal of the court and made over to the head of the police prosecuting agency, who shall produce it with unbroken seals before the superior court, or, if so ordered by competent authority, shall make it over to some other officer authorized so to produce it. (Para 19)

       (F) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15--Recovery of contraband from truck--Liability of owner of truck--30 bags of poppy husk recovered beneath 165 bags of cement loaded in truck--Held; it was for the prosecution to prove that the owner of the vehicle had consciously permitted the vehicle to be used for commission of offence under the NDPS Act--No evidence in the present case has been led by the prosecution that the owner had knowledge that his truck was used for improper purposes--The prosecution has not discharged its onus to establish that owner of truck knowingly allowed to use his truck to ferry contraband--Owner of truck acquitted. (Para 23)

       (G) Narcotic Drugs and Psychotropic Substances Act, 1985, S.42--Secret Information--No evidence that information was reduced into writing and superior officer was informed--In the circumstances contemplated under Section 42 of the NDPS Act the mandate of the procedure contemplated under Section 42(1) and Section 42(2) will have to be followed separately--Mandatory provisions of S.42 of the Act not followed--Accused acquitted. (Para 27)