2018 Supreme(P&H) 2925

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Arvind Singh Sangwan
Criminal Appeal No.2317-SB of 2007
Kashmir Singh & Anr.
v.
State of Haryana
{Decided on 18/08/2018}

Narcotics--Presence of Deputy Superintendent of Police at the spot, found to be highly doubtful as except for attesting recovery memo he failed to signed/attested any other document prepared at spot--Accused acquitted
Narcotics--Presence of Deputy Superintendent of Police at the spot, found to be highly doubtful as after reaching at spot, if DSP witness had verified contents of notice under Section 50 of NDPS Act, he would have given a second notice as notice issued by SI was defective; it shows that DSP witness never issued notice under Section 50 of the NDPS Act giving option to accused--Accused acquitted
Narcotics--Conscious Possession--Prosecution failed to put a specific question to all three accused persons in their statements under Section 313 Cr.P.C. that they were found in conscious possession of contraband which was lying in an open area--Accused acquitted
Narcotics--Search & Seizure--Prosecution further failed to prove and place on record either Form No.29 or relevant entry in register No.19 in police station showing arrest of accused as well as deposit of contraband in malkhana--Accused acquitted
Narcotics--Defective Investigation--Prosecution has failed to lead any cogent evidence regarding the investigation to show the ownership of the poppy husk or to give a satisfactory explanation from the accused to prove the source of acquiring the contraband--Accused acquitted

Headnote:

(A) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15--Search & Seizure--Acquittal--Recovery of Poppy Husk--Accused acquitted as presence of Deputy Superintendent of Police at the spot, found to be highly doubtful on following grounds:

(i) Except for attesting recovery memo he failed to signed/attested any other document prepared at spot

(ii) In his deposition has stated that when he reached at the spot, he verified fact and directed SI to check bags--Photocopy of the recovery memo taken from Investigating Officer to complete recovery memo, as first two pages were missing in lower court record (carbon copy is available on second part of record), shows that in recovery memo, complete description of proceedings undertaken by SI, upto stage of issuance of notice under Section 50 of NDPS Act to accused ‘K‘ and calling DSP at spot is given--Therefore, attestation of document by DSP at spot, at end of document shows that he had verified even those facts, when he had not even reached at spot and as such it is apparent that recovery memo was prepared prior to his reaching at spot and only thereafter, DSP had signed in end.

(iii) After reaching at spot, if DSP witness had verified contents of notice under Section 50 of NDPS Act, he would have given a second notice as notice issued by SI was defective; it shows that DSP witness never issued notice under Section 50 of the NDPS Act giving option to accused

(iv) Even a perusal of the report, prepared under Section 57 of the NDPS Act shows that it was prepared on same day of incident and was also signed by PW2 on the same day, whereas in the statement of DSP that he received report on the next day which is incorrect. (Para 21)

(B) Narcotic Drugs and Psychotropic Substances Act, 1985, S.50--Personal Search-- Notice to accused--SI gave three options either to be searched by him or by a Magistrate or by some Gazetted Officer--SI could not have given option to be searched by him and it amounts to non-compliance of mandatory provisions--Search made by Sub-Inspector is vitiated--Accused Acquitted.

(C) Narcotic Drugs and Psychotropic Substances Act, 1985, S.52-A--Non production of accused before Illaqa Magistrate--Prosecution failed to prove that after accused ‘K‘ was arrested and recovery was effected on spot, he was ever produced before Illaqa Magistrate, in compliance of Section 52A of the NDPS Act--Statements of Sub-Inspector, DSP and retired Sub-Inspector, show that no such procedure was followed--Police failed to comply with provisions of Section 52-A of Act--Accused acquitted. (Para 21)

(D) Criminal Procedure Code, 1973, S.313--Examination of accused persons--Conscious Possession--Prosecution failed to put a specific question to all three accused persons in their statements under Section 313 Cr.P.C. that they were found in conscious possession of contraband which was lying in an open area--Held; accused persons were denied right to prove their innocence--Accused acquitted--Narcotics Drugs and Psychotropic Substances Act, 1985, S.34. (Para 21)

(E) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15--Search & Seizure--Prosecution failed to explain as to how FIR number finds mention in notice under Section 50 of the NDPS Act, consent memo and recovery memo, which was prepared in presence of DSP--As per prosecution witnesses accused ‘K‘ was apprehended at 04.50PM and endorsements on the ruqa show that it was received in police station on 06.30 PM and in intervening period, DSP had arrived at the spot at 05.30PM--Thus, FIR was registered much after preparation of these three documents thus, prosecution failed to explain, in what manner, FIR number is mentioned--Case of prosecution becomes doubtful--Accused acquitted. (Para 21)

(F) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15--Search & Seizure--Recovery and arrest of accused not proved--As per statement of Sub-Inspector sample seal chits were prepared at spot regarding seal impressions of Sub-Inspector as ‘JS’ and of DSP as ‘DS’, however, no such document was proved or exhibited before trial Court--Prosecution further failed to prove and place on record either Form No.29 or relevant entry in register No.19 in police station showing arrest of accused as well as deposit of contraband in malkhana--Therefore, prosecution failed to prove its case beyond doubt--Accused acquitted. (Para 21)

(G) Narcotics Drugs and Psychotropic Substances Act, 1985, S.15--Recovery of Poppy Husk--Defective Investigation--Prosecution has failed to lead any cogent evidence regarding the investigation to show the ownership of the poppy husk or to give a satisfactory explanation from the accused to prove the source of acquiring the contraband--Therefore, police failed to conduct fair investigation--Accused Acquitted.

(H) Narcotic Drugs and Psychotropic Substances Act, 1985, S.57--Search & Seizure--Report of arrest and seizure--Statement of Sub-Inspector shows that he himself was investigating officer, who arrested accused ‘K‘, conducted search, sent ruqa to police station, prepared inventory under Section 57 of the NDPS Act--Sub-Inspector being complainant, cannot be Investigating Officer himself--Accused Acquitted. (Para 21)

(I) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15--Identification of Accused--Acquittal--Statements of DSP and SI failed to prove that accused ‘P‘ and ‘B‘, were present at spot--Both these witnesses in cross examination have clearly admitted that they have never conducted any investigation against both accused on a prior occasion and they were not known to them--Therefore, allegations in FIR that these two accused persons were known to prosecution witnesses, are not proved--Hence, Conviction and sentence against all three accused set aside. (Para 21)