Atma Singh vs State of Punjab - 2023 Supreme(P&H) 1602

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(P&H) 1602

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Harpreet Singh Brar, J.
Atma Singh – Appellant
Versus
State of Punjab – Respondent
CRA-S No. 5123-SB of 2014
Decided On : 01-09-2023

Advocates appeared:
For the Parties : Mr. D.C. Mittal, Mr. Ujval Mittal, Ms. Ishma Randhawa AAG, Punjab

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 22 - Appeal against conviction under NDPS Act for possession of 500 gms intoxicating powder - Court finds that Section 50 was violated as the accused was not made aware of his rights during search - Requirements of Section 52-A not met; representative sample not drawn in Magistrate's presence - Delay of 9 days in sending samples to FSL undermines prosecution's case. (Paras 12, 15, 17, 20)

(B) Investigative Standards - Requirements of statutory compliance must be upheld in NDPS cases, as emphasized in previous Supreme Court judgments. (Paras 13, 17)

(C) Burden of Proof - The prosecution must establish a link between the accused and the illicit substance beyond a reasonable doubt - Significant gaps in evidence lead to the acquittal of the appellant. (Paras 18, 20)

Facts of the case:
The appellant was apprehended while in possession of 500 gms of intoxicating powder without a legal permit. Evidence was marred by inconsistencies and procedural lapses.

Findings of Court:
Due to violations of statutory provisions and lack of clear evidence linking the appellant to the crime, the conviction was overturned.

Issues: The main issues included non-compliance with Section 50 and Section 52-A of the NDPS Act, and whether the delay in sending samples negated the prosecution's case.

Ratio Decidendi: The court found that the violation of statutory rights during the search process and the failure to ensure timely handling of evidence undermined the credibility of the prosecution.

Result: Appeal allowed; conviction set aside, and the appellant acquitted.

Table of Content
1. factual basis of prosecution's case (Para 1 , 2 , 3 , 4 , 5 , 6 , 7)
2. arguments regarding legal rights and evidence (Para 8 , 9 , 10)
3. analysis of procedural compliance under ndps act (Para 12 , 14 , 15 , 17 , 19)
4. conclusion and judgment overturning conviction (Para 20 , 21 , 22)

Judgment

Mr. Harpreet Singh Brar, J.

The present appeal has been preferred against the judgment of conviction and order of sentence dated 27.11.2014 passed by the learned Judge, Special Court, Mansa in case bearing FIR No.09 dated 06.03.2011 registered under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) at Police Station Budhlada whereby the appellant has been convicted for commission of offence under Section 22 of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of 3 years with a fine of Rs.5000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 3 months.

FACTUAL BACKGROUND

2. In brief, the version put forth by prosecution is that on 06.03.2011, ASI Jaspal Singh along with other police officials was on patrolling duty in government vehicle bearing No.PB-31-C-8265 and when they were present on the bridge of drain in the area of Borawal, one Gurmail Singh s/o Mukhtiar Singh came there from Bhikhi side and joined the police party. At about, 10:15 AM, one person, who was coming on motorcycle from the side of Dhalewan with plastic bag hanging on his right shoulder, stopped on seeing the police party and tried to turn back. ASI Jaspal Singh apprehended him. On enquiry, he disclosed his name Atma Singh alias Nikka. ASI Jaspal Singh informed him that he had suspicion of there being some intoxicant in the plastic bag, which he was carrying and therefore, wants to conduct a search. He was apprised of his legal right to be searched by a Gazetted Officer or a Magistrate and that he can be produced before them for search. The accused had reposed confidence in the Investigating Officer and therefore, his consent memo was prepared. On search of the plastic bag, intoxicating powder was recovered. The Investigating Officer separated 10 gm intoxicating powder as sample and prepared a parcel. Remaining powder was weighed along with plastic bag, weight of which came to be 490 gms and a separate bulk parcel was prepared in the same plastic bag. Both the parcels were sealed by the Investigating Officer with his seal bearing impression ‘JS’. Seal after use was handed over to HC Nahar Singh. Case property and the motorcycle bearing No.PB-44-A-8108 along with RC was taken into police possession vide recovery memo. Personal search of accused was conducted and search memo in this regard was also prepared. As the accused was found in possession of 500 gms of an intoxicating powder without any permit or licence, ruqa was sent for registration of FIR. Spot inspection was conducted and site plan was prepared. Statements of the witnesses were recorded. Accused was arrested and arrest memo was prepared.

3. The case property was produced before ASI Iqbal Singh, who verified the facts and affixed his seal bearing impression ‘IS’ on the parcels. Samples were sent for chemical examination. On receipt of the report of Chemical Examiner and completion of investigation, accused was challaned under Section 22 of the NDPS Act.

4. On presentation of challan and appearance of the accused in the Court, copies of documents relied upon by the prosecution were supplied to him, as required under Section 207 Cr.P.C.

5. Finding a prima facie case, charge under Section 22 of the NDPS Act was framed against the accused to which he pleaded not guilty and claimed trial.

6. In support of its case, the prosecution examined as many as six witnesses and closed its evidence.

7. Statement of accused as required under Section 313 Cr.P.C. was recorded and the incriminating evidence was put to him. The accused denied the same and pleaded innocence but he di