Avtar Singh v. State of Punjab

IN T

Avtar Singh State of Punjab

CORAM : HO HO

Present: Mr

Mr

SUDEEPTI SH

The dated 06.04.200 Special Judge, dated 25.08.200 Narcotic Drugs sentenced to un Rs.1,50,000/- an rigorous impriso

THE HIGH COURT OF PUNJ AT CHANDIGA -.-

CR Re Da

VERSUS

ON'BLE MR. JUSTICE SURE ON'BLE MRS. JUSTICE SUD r. N.S.Sodhi, Advocate for the ap r. Maninderjit Singh Bedi, Addl. -.-

HARMA, J. e challenge in the present appea 05 and order of sentence dated Moga, whereby the appellant h 02, registered at Police Station and Psychotropic Substances Ac ndergo rigorous imprisonment f nd in case of default to pay fine, onment for one year.

JAB AND HARYANA ARH RA-D-307-DB-2005 (O&M) served on :-01.10.2024 ate of Decision : 21.10.2024

....Appellant

....Respondents ESHWAR THAKUR EEPTI SHARMA ppellant. A.G., Punjab. al is to the judgment of convict

07.04.2005 passed by the learn has been convicted in FIR No. Mehna, under Section 15-C of ct, 1985 (in short, 'NDPS Act') for 15 years and to pay a fine , he is further sentenced to unde

tion ned .63, e of

FACTUAL BA

2.

The alongwith other Rajinder Singh, Singh and C.Ke in connection w the side of Mog on Moga-Bagh Sahibzada Ajit S police party. Th reached on the t vehicle to stop information that Hazara Singh r/o for a long time, gunny bags co standing on the raid is conducte husk. The inform Baldev Singh o Mehna. Special spot. Then the standing there. T person sitting ACKGROUND e brief facts of the case are th r police officials namely ASI Sh HC Dilbagh Singh, CII Gulabh ewal in official TATA Sumo bea with patrol duty and checking of a towards Bohana Mehron villag hapurana bypass, Gant Singh Singh Nagar, Moga met the poli he police party then proceeded turn of Bughipura-Bohana road, p. When SI alighted from the t Surjit Singh S/o Narain Singh, o Gagra P.S. Kot Ise Khan who , have loaded their truck bearin ontaining poppy husk which is embankment of seepage drain ed, then they can be apprehend mation being reliable, ruqa was s on the basis of which formal FI report was also sent to DSP thr police party reached the disc The police party encircled the tr in the truck to dislocse his n

hat on 25.08.2002, SI Jasbir Sin hamsher Singh, HC Hari Singh, Singh, C.Gurmail Singh, C Bal aring registration No.PB-29A-96 f suspected persons was going fr ges. When the police party reach son of Bihari Singh resident ice party who was associated in d towards Bughipura–Bohana a where, a person gave signal to th e vehicle, a secret informer g r/o Daulewala and Avtar Singh are indulging in sale of poppy h g registration No.PB-04-2867 w s covered with tarpaulin and on link road of village Bugipura ded with heavy quantity of pop sent to the police station through IR was registered at Police Stat rough C Gurmail Singh to reach closed place and found the tru ruck and SI Jasbir Singh asked name whereupon the said per

ngh HC dev rom hed of heir gave S/o husk with are a. If ppy h C. tion uck

disclosed his na rank and inform truck and he wa Avtar Singh tha presence of som which Avtar Sin in the presence into writing. the spot who als him about his le instructions to S the tarpaulin, 40 truck. The said husk. Out of th and their parcels bearing impress parcels and re possession vide after use was ha alongwith RC, Singh were tak arrested and his notes of Rs.570 worn by him wh ame to be Avtar Singh. SI Jasbir med Avtar Singh that he has suspi anted to get the search of the tru at he ( Avtar Singh) has right t me Gazetted Officer or Magistrate ngh replied that he wanted to ge of Gazetted Officer. His consen In meantime, DSP so disclosed his identity and ran egal right. On consent of Avtar SI Jasbir Singh to conduct the s 0 gunny bags of poppy husk we bags were weighed and each b e recovered bags, 250 grams of s were prepared which were sea sions "JS" and seal of DSP bear covered contraband bags alon e separate memos. The sample s anded over to Gant Singh and DS route permit, insurance certific ken into possession vide separa s personal search was conducted from wallet of black colour kep hich were taken into possession v

r Singh also disclosed his name icion that there is poppy husk in uck conducted. He further disclo to get the search conducted in e to whom he can call to the spo et the search of the truck conduc nt memo in this regard was redu Nachhatar Singh reached nk to Avtar Singh and also appri Singh, DSP Nachhatar Singh g search of the truck. After remov ere recovered from the body of bag was containing 35 Kgs pop f poppy husk was taken as sam aled by SI Jasbir Singh with his s ring impressions "NS". The sam ngwith tarpaulin were taken i seals were also prepared. The s SP kept his seal with him. The tru cate and driving licence of Av ate memo. Then Avtar Singh w d which led to recovery of curren pt by him in right pocket of the p vide separate memo. The arrest

osed ot to cted uced at ised ave ving ppy mple seal mple into seal uck vtar was ncy

personal search accused Avtar S specimen seal a Statements of th station, the cas Mukhtiar Singh witnesses, affix thereafter depos

3.

On Mehanatook sam produced the sa remanded the a deposited with property was de

4.

Du that Surjit Singh could not be arre

5.

Du bail from the Se released on bail. TRIAL COUR

6.

Aft the Chemical Ex h memos were attested by the Singh. The DSP attested the gu at the spot.Rough site plan of th he witnesses were also recorded se property and accused were h, the concerned SHO who verif xed his seal on the case proper sited the same with MHC. Accus n 26.08.2002, ASI Chamkaur S mple parcels and bulk case-pr ame alongwith accused before t accused to police custody and the MHC concerned. After ret eposited with MHC and accused uring interrogation accused Avta h had gone to bring customers f ested. uring investigation, accused Surj essions Court, Moga. He was ar . RT PROCEEDINGS ter completion of the investigat xaminer, challan was presented b

witnesses and thumb marked unny bags and sample parcels he place of recovery was prepar at the spot. On return to the pol e produced before Sub Inspec fied the facts from the accused rty bearing impressions "MS" sed was put behind the bars. ingh through SHO, Police Stat roperty parcelsfrom the MHC a the Court of Illaqa Magistrate w case property was ordered to turn to the police station, the c Avtar Singh sent to lock up. ar Singh made disclosure statem for sale of poppy husk, as such, jit Singh had obtained anticipat rrested in this present case and w ion and on receipt of the report before the Court.

by red. lice ctor tion who be case ment , he tory was

7.

On documents ann required under S

8.

Init framed against t

9.

Lat committed an of 25 of the NDPS

10.

Du Singh, PW2 An Singh, DSP, Su ASI Shamsher Investigating Of Inspector Mukh Kumar, Clerk, D prosecution evid moved before Il order passed by regarding takin regarding taking Part A and Part memo of Avtar of DSP thereon Avtar Singh, Ex n presentation of the challan, exed therewith were supplied Section 207 Cr.P.C. tially charge for offence under the accused to which they pleade teron amended charge was fram ffence punishable under Section Act to which they pleaded not g uring the trial, the prosecution h nu Sharma Addl. Ahlmad of JM ub Division, Moga a Gazetted O Singh, PW-5 Ramesh Kum fficer, PW-7 ASI Baljinder Sing htiar Singh, SHO of P.S.Mehna a DTO Moga. Besides oral evidenc dence are: Ex.PA ruqa, copy of F llaqa Magistrate for getting orde y the Illaqa Magistrate, Moga ng into possession the poppy g into possession truck along w t B and photostat copy of drivi Singh, Ex.PF special report date n, Ex.PF/2 photostat copy of dri x.PF/3 affidavit of C Romesh K

copies of the challan and ot to the accused free of costs Section 15 of the NDPS Act w ed not guilty and claimed trial. med against the accused for hav n 15 of NDPS Act read with Sect guilty and claimed trial. has examined PW-I ASI Chamk MIC, Moga, PW 3 Shri Nachha Officer at the relevant time, PW mar, PW-6 SI Jasbir Singh gh, PW-8 Gurmit Singh, PW-9 S at the relevant time, PW-10 Mah ce, documentary evidence led in FIR EX.PA/1, Ex.PB an applicat er regarding case property, Ex.PB a thereon, Ex.PC Recovery me y straw, Ex.PD, recovery me with RC, copy of Insurance, per ing licence, Ex.PE personal sea ed 25.8.2002, Ex.PF/1 endorsem iving licence pertaining to accu Kumar, Ex.PF/4 photostat copy

ther as was ving tion kaur attar W 4 Sub hesh tion B/1 emo emo rmit arch ment used

register mainta Ex.PG/1Special thereon, Ex.PH memo regardin grounds of arres Ex.PM consent registration cert certification Ex DIO, Moga, Ex original permit p

Aft under Section 3 against the accu denied and plead

Acc driver on the tr resident of villag his house on 23 of Thana Singh Nothing incrimi Staff, Moga for in connivance w Bihari Singh re convenient witn ained in the officer of DTO, l Report dated 26.8.2002, Ex grounds of arrest regarding acc ng case property, EX.PJ Repor st qua Surjit Singh accused, Ex.P memo of accused Avtar Singh tificate of truck, Ex.P2/A relev x.P2/B photostat copy of the re x.P3 Insurance cover note, Ex.P part A. ter closure of the prosecution ev 313 Cr.P.C. were recorded. Incr used in the prosecution evidence ded false implication. cused Avtar Singh had taken a p ruck No.PB-04-2867 owned by ge Daulewala. He was taken by .8.2002 in the presence of his ne h, Baldev Singh son of Pala inating was recovered from him 2/3 days and this false case of p with Surjit Singh owner of truck esident of Moga the alleged in ness of the police.

Moga, rough site plan Ex.P x.PG/2 endorsement of the D cused Avtar Singh, Ex.PI recov rt of Chemical Examiner, Ex. PL affidavit of HC Gurmeet Sin h, Ex.1 sample seal, Ex.P2 origi vant entry in the said registrat egister maintained in the office P4 original permit part B, Ex.P4 vidence, statements of the accu riminating circumstances appear e were put to accused to which th plea that he was never employed Surjit Singh son of Narain Sin the police of CIA Staff, Moga fr eighbourers namely Deep Singh Singh residents of village Gag m. He was illegally detained in C poppy straw was planted upon h No.PB-04-2867. Gant Singh son ndependent recovery witness i

PG, DSP very .PK ngh, inal tion e of 4/A used ring hey d as ngh rom son gra. CIA him n of

Acc admitted in Civ Avtar Singh w Sometimes the during transport Avtar Singh and sister's village knowledge that police and some him in this fa transporting pop

12.

Acc

13.

In Medical Office Deep Singh, DW in defence of th Statement of M Ex. D4 certified recovery memo D7 copy of FIR

14.

Aft accused and per the accused Surj 15(c) of the ND cused Surjit Singh took the p vil Hospital, Makhu and was dis was driver on his truck in thos truck remained in possession o tation of goods. On 23.08.2002 d in the evening he told him on on truck to transport some arti Avtar Singh alongwith his tru e bags of poppy husk were also alse case. It was not in his k ppy husk in his truck. cused opted to lead evidence in t defence evidence, accused ex r, Community Health Centre, W3 HC Chhinder Pal. Besides or he accused are: Ex. Dl stateme Mahesh Kumar, Dealing Clerk, E d copy of FIR No.59 dated 19 in such FIR, Ex. D6 certified co , Ex.DS photostat copy of FIR N ter hearing the learned Addl. Pu rusing the whole record, the learn rjit Singh whereas he convicted DPS, vide its judgment dated

plea that on 24.08.2002, he w scharged therefrom on 27.08.20 se days on monthly salary ba of Avtar Singh driver for 8/9 d , truck was in possession of dri n telephone that he is going to icles of his sister. He came to uck had been apprehended by o recovered. The police implica knowledge that Avtar Singh w their defence. xamined DW1 Dr. Rajnish Jind Makhu, District Ferozepur, DW ral evidence, documentary evide ent of SI Mukhtiar Singh, Ex. Ex. D3 photostat copy of a regis

9.8.2002, Ex. D5 certified copy opy of statement of Gant Singh, NO.223, Dated 23.9.2002. ublic Prosecutor and counsel for ned Special Judge, Moga, acquit accused Avtar Singh under Sect

06.04.2005 and sentenced him

was

¶002asis. days iver his his ated was dal, W2 ence D2 ster, y of Ex. tted tion

undergo RI for pay fine to fu

07.04.2005.

15.

Hen SUBMISSION

16.

Lea of the Act were parcels was not no independent recovery is show road and the aba for setting aside dated 07.04.200

17.

Per lines of judgme rightly convicted

18.

We State Counsel an ANALYSIS OF

19.

On Judicial Malkha "St Gag 15 years and to pay fine of Rs. urther undergo RI for one ye nce the present appeal. OF LEARNED COUNSEL FO arned counsel for the appellant c e not complied with and even t sent to the office of chemical witness was joined by the pros wn to be the bridge of seepage adi from the place of recovery i e of judgment of conviction date

¶05r contra, learned counsel for th ent dated 06.04.2005 and cont d and sentenced. e have heard the learned counsel nd perused the whole record of th F THE RECORD n 26.08.2002, SHO P.S.Mehna ana, details of the same is reprodu tate Vs. Avtar Singh s/o Haza ggrh, P.S Kot Ise Khan

FIR No.63, dated 25.0

1,50,000/- and in case of defaul ear vide order of sentence da OR THE PARTIES contends that mandatory provisi the sample seal alongwith sam examiner. He further contends t secution when the alleged place drain at Bughipura to Buhana l s not far away. Therefore, he pr d 06.04.2005 and order of sente he respondent-State argues on tends that the appellant has b for the appellant as well as learn the case in hand. deposited the case property in uced as under:- ara Singh Caste Mazbi Sikh

08.2002 of Police Station Mehna

lt to ated ons mple that e of link rays ence een ned r/o

Sub Sir, wei rec spe in dep tarp For

26.

Pre con con pro Me

20.

Ex as under:- bject:- For depositing the Malkhana. ,

It is submitted that 40 Kg–750 grams of poppy-hus ighing 250 grams, duly sealed covered from the accused in t ecimen seal, personal search of the Court. This case propert posited in the Judicial Malkh paulin are also sent along. rwarded please.

08.2002

esent:- Mr. Rattan Singh AP

Singh, P.S.Mehna.

The police has prod ntaining 34 Kgs 750 gm of poppy ntaining 250 gm, duly sealed with d MS. The same has been see operty is ordered to be kept in ehna, under rules.

.P/C is the recovery memo of po

case property in the Judic gunny bag parcels each contain sk, and 40 sample parcels ea d with seals J.S & N.S. and M the aforesaid case, alongwith f accused, are produced before y ty may kindly be ordered to hana. Truck No.PB-04-2867 a

Sd/- (in Punjabi)

S.H.O P.S. Meh

26.08.02 PP for State with ASI Chamk duced 40 bags of jute bags e py husk and 40 sample parcels e th seals intact bearing letters JS, en and initialed by me. The c n the Malkhana of Police Stat

Sd/-

J.M.I.C Moga

26.08.02" oppy-husk. The same is reprodu

cial ning ach M.S, you be

i) na. kaur ach ach NS case tion

"St

In DSP afo Gaz pre sea no. hus ma ma gra wei pre sep me bea alo I ha sea tate Versus

Av FIR No.63 dated 25.8. Police station Mehna. U/s 15/61/85 of the ND

Recovery Memo the presence of the below-note SP(SD) Moga, while disclosing oresaid that he was posted as DS zetted Officer. Then with the c esence of the DSP and on his arch of gunny bags, lying under PB-04-2867, under the rules. 4 sk were recovered. Each recove chine and each bag came to be rked serial number from 1 to 40 ams of poppy husk was taken ighing scale made of iron, and s epared. The bags containing the parate parcels and the bags and the SI with my seal bearing lette aring letters NS and taken into ong with the tarpaulin. The speci anded over my seal after use to al with him. The DSP attested the d the recovered bags containing p

vtar singh and another.

¶02DPS Act. o of Poppy Husk. ed witnesses, Sh. Nachattar Sin g his identity, told Avtar Sin SP in sub Division Moga and wa consent of Avtar Singh and in directions, I the SI conducted the tarpaulin, in the body of tr 40 gunny bags containing the pop ered bag was weighed on weigh e 35 Kg. The recovered bags w

¶0From each of the gunny bag, 2 out as sample with the help separate parcels from 1 to 40 w e poppy husk were also made i d the sample parcels were sealed ers JS and by the DSP with his s police possession vide this me imen seal was separately prepar PW Gant Singh. The DSP kept e specimen seal, the sample parc poppy husk.

ngh ngh as a ruck ppy hing were p of were into d by seal emo red. his

Wit Sd/ Shr DSP

21.

Ex under:-

Me

¶1sole duty

¶2tha par wit tak no. from Che

¶3tha tness

/-

ri Nachattar Singh

SP (SD) Moga"

.P/F is the statement of C Rame "State Versus

FIR No.6 Police sta U/s 15/61

In the Court of Munees Affidavit of C. Ramesh Kuma ehna. I. C. Ramesh Kumar No.87 emnly affirm and declare that o ty in Police Station Mehna. I, C Ramesh Kumar no.873 at on 2-9-02 MHC Gurmit singh rcels containing poppy husk, wei th seal M.S. N. S., J.S. along wit em in the office of Chemical Ex king them out from the Malkhan 202/02, with the direction to g m the office of SSP Moga and emical Examiner, Punjab, Chan I, C Ramesh Kumar no.873 at as per the direction of MHC G

Sd/- Jasbir Singh, SI CIA Moga,

25.08.02.

esh Kumar, which is reproduced Avtar singh and another. 63 dated 25.8.02. ation Mehna. 1/85 of the NDPS Act. sh Arora, JMIC Moga. ar 873/Moga, Police Station 73/Moga police station Mehna on 2-9-02, I was posted on gene 3, do solemnly affirm and decl no. 140 had handed over to me ighing 250 grams each, duly sea th the specimen seal, for deposit xaminer, Punjab Chandigarh, af na of the police station, vide ro get, at first, the docket dispatc d then to deposit in the office digarh 3, do solemnly affirm and decl Gurmit Singh no, 140, I had got

d as do eral lare e 40 aled ting fter oad hed e of

doc dep wei inta Pun MH

¶4tha pos so.

dec true con

I kn who

Con his cross-examin cket dispatched from the offic posited the 40 parcels of the afor ighing 250 grams each, duly s act condition, on 3-9-2002, in njab, Chandigarh and on return HC Gurmit Singh, which he had p I, C Ramesh Kumar No.873 at so long as the samples of th ssession, I did not tamper with t

I, C Ramesh Kumar clare that the contents of para N e and correct to the best of my ncealed therefrom nor any part o

now the deponent personally o has signed in my presence Sd/- A.D.A Moga

9.9.03

nstable Ramesh Kumar was exa nation are reproduced as under:-

ce of SSP Moga and then I h resaid case, containing poppy hu sealed with seal MS,NS and JS the office of Chemical Examin n I had handed over the receip placed on record. 3, do solemnly affirm and decl he aforesaid case remained in them nor allowed anyone else to Sd/- Ramesh Kumar C/873.

Deponent.

09.09.03 r No.873 do solemnly affirm a Nos.1,2,3 and 4 of this affidavit knowledge. Nothing has been k of it is false. Sd/- Ramesh Kumar C/873.

Deponent.

09.09.03

Sd/-

JMIC., Moga

9.9.03" amined as PW-5. His statement

had usk, S in ner, t to lare my o do are

"P

Sta be Xxx sea sam wer tha Xxx RO

14.

Sd/ C. R

22.

Ex reproduced as un Sur FIR ND Sha W-5 On S.A. atement of Sh. Ramesh Kumar, C I tender into evidence my du read as part of my evidence. xxxxxx Sh. K.S.Bath, Adv. Coun I took to analysis laboratory als of different cases. I did no mple seal in office of SSP to any re in the form of bulk tied in pie at I have sworn false affidavit. xxxxx Sh. Arjan Singh, Adv, for Nil opportunity given. O&AC

11.2003

/-(English) Ramesh Kumar" .PG/1 is the special report u/s nder:-

"State Vs. Avtar Singh rjit Singh s/o Narain Singh r/o D R No.63 dated 25.8.2002 Police DPS Act. Special Report u/s 57 It is submitted that on amsher Singh, ASI Balwinder S

Constable No.873, P.S. Mehna. uly attested affidavit Ex.P.F. It m nsel for Surjit Singh. y 40 sample parcels and 40 sam ot get myself checked samples a y police officer. All sample parc ece of cloth. It is wrong to sugg r Avtar Singh.

Sd/-

Special Judge, Moga 57 of the N.D.P.S Act, which h s/o Hazara Singh r/o Gaggrh a Daulewala. Station Mehna, U/s 15/61/85 of 7 of the N.D.P.S. Act. n 25-8-02 I the SI along-with A Singh and other police officials,

may mple cels gest h is f the ASI

Go in c Bih join rea spe Avt s/o hea No. in t loa app cas sen raid lyin Eas dire Afte disc vt. Tata sumo was going toward connection with patrolling and s e police party reached Ludhiana hari Singh, r/o sahibzada Ajit Si ning him in the party, I proceed ached on the turning of link roa ecial secret informer got the ve tar Singh s/o Hazara singh resi Narain Singh r/o Daulewala avy quantity and on that day also .PB-04-2867 on the embankmen the area of village Bahona, in w aded and if the raid is cond prehended with the poppy husk. e SI sent ruqa to the police stati se u/s 15/61/85 NDPS Act again nt a separate special report in r e Halqa DSP. Then I the SI along d on the stated place and foun ng parked on the southern emban stern side of the road, with f ection, in the body of which a p er surrounding him, I the SI ask closed his name as Avtar Singh

ds Bughipara, Bahona, Mehron search of suspected persons. Wh a bye-pass at Moga, Gant Singh ingh Nagar, Moga met us and af ded further. When the police pa ad, Bahona in village Bughipura ehicles stopped and informed t dent of V-Gagarh and Surjit Sin deal in the sale of poppy husk o, they are standing with their tr nt, near the bridge of seepage dr which gunny bags of poppy husk ducted immediately, they can k. The information being reliabl ion Mehna for the registration o nst Surjit Singh and Avtar Singh espect of the secret information g with the co-officials conducted nd that truck no. PB-04-2867 w nkment of the seepage drain, on face on the Eastern side of person was sitting in the tarpau ked him his name and address. aforesaid. I the SI told him that

etc. When s/o fter arty a, a that ngh k in ruck rain are be le, I of a h. I n, to was ulin.

truc pre rep in t pre rea to A con ben Ou sam The sam J.S pol sam use PB nam insu ck in his possession was suspec d to keep them in possession a le e law to get his search and th esence of a Magistrate or a G plied that he wants to get his sea the presence of a Gazetted office epared. Then Sh. Nachattar S ached the spot, on receipt of info Avtar Singh and told him that h e consent of Avtar Singh and on nducted the search of the truck u e truck, 40 gunny bags containin neath the tarpaulin and each bag t of the recovered bags, 250 gra mple from each of the gunny bag e bags were also made into parc mple parcels were sealed by me S. and by the DSP with his seal b lice possession along with the ta mple seals were separately prep e, to PW Gant Singh and the DS -04-2867 along with the spare me of Surjit Singh s/o Narain s urance certificate and photo cop

cted to contain the poppy husk b egal offence, and he had right un hat of his truck conducted in Gazetted Officer. Then Avtar Sin arch and that of his truck conduc er. Upon this the consent memo w Singh, DSP Sub Division Mo formation. He disclosed his iden e was a gazetted officer. Then w the instruction of the DSP., I the under the rules and from the body ng poppy husk were recovered fr g on weighment, came to be 35 K ams of poppy husk was taken ou g and their parcels were prepar cel. The gunny bag parcels and the SI with my seal bearing lett bearing letters N. S. and taken i rpaulin, vide a separate memo. T pared. I handed over my seal, af SP kept his seal with him. Truck e-wheel, deck, RC which is in singh r/o Daulewala, route perm py of driving licence of Avtar Sin

ags nder ngh cted was oga ntity with e SI y of rom Kgs. t as red. ters into The fter no. mit,

afo con Rs. in pol mem sam of t Me Mu gun sea wit lod Tod pro in t wit See Sd/ N.S DSP

26.

oresaid were taken into police po nducting the personal search of 570/- were recovered from the p the right pocket of the pant wo lice possession along with the p mo was got attested from the mple parcels, gunny bag parcels the witnesses were recorded at t ehna, the case property and the ukhtiar Singh, SHO, P.S. Mehn nny bags containing poppy hus al bearing letters M.S. and took th the truck and other case prope dged in the lock up of the polic day on 26-8-02 the SHO Police operty and the accused Avtar Sin the court of Sh.K.K.Bansal, JMIC e accused till 29-8-02 and ordere th the MHC of the Police Station The Special report is p en /- Singh

SP/SD/Moga

08.2002

ossession vide a separate memo. f Avtar Singh, currency notes wo purse of black colour, kept by h orn by him, which were taken i purse, vide a separate memo. T witnesses. The DSP attested s and the specimen seal. Stateme the spot. On reaching police stat e accused were produced before na, who, after enquiry, sealed sk and 40 sample parcels with k them in his own possession alo erty, vide a memo. The accused w ce station Mehna under the ru e station Mehna produced the c ngh, through ASI Chamkaur Sin C, Moga. The Magistrate remand ed the case property to be deposi . put up before you.

Sd/-Jasbir Singh, SI

C.I.A. Staff, Moga

26.08.02"

On orth him into The ents tion e SI his ong was ules. case ngh, ded

23.

Ex 57 of the NDPS " CIA afo alo con par wit col alo cor con in Rs. was tran Wit Sd/ Jas C.I

.P1 is the memo regarding trans Act, 1985. The same is reprodu State Vs. Avtar Singh and An FIR No.63 date U/s 15/61/85 of Memo regarding tran In the presence of the below A/Moga produced before me in oresaid case viz a truck no.PB ongwith the spare wheel, deck, ta ntaining poppy husk, each we rcels containing poppy husk, eac th seal JS and NS alongwith th lour and currency notes wor ongwith accused Avtar Singh. rrect and sealed 40 gunny bag ntaining poppy husk with my sea possession alongwith truck, s 570/- and purse of personal sea s prepared. The Parcels wer nsfer of case property has been p tness

/-

sbir Singh S.I

I.A/Moga

sfer of case property under Sect uced as under:- nother ed 25.8.2002 Police Station Meh f the NDPS Act. nsfer of case property w noted witnesses, SI Jasbir Sin intact condition, the property of B-04-2867. L.P colour, NP colo arpaulin, and 40 gunny bag parc eighing 34 ¾ Kg and 40 sam ch weighing 250 grams, duly sea he specimen seal, a purse of bl rth Rs.570/- of personal sea After enquiry I found that fa g parcel send 40 sample parc al bearing letters MS and took th spare wheel, deck, tarpaulin a arch vide this memo. Specimen s re attested. The memo regard prepared.

Witness

Sd/- ASI Shamsher Singh, CIA/Moga

Sd/- (in Punjabi)

tion hna, ngh, f the our, cels mple aled lack arch acts cels hem seal

24.

Ex Sta Che

Sam

bei No. Cha

25.

Ex under:- "

.P-1 is Form No.29. The same i " State Vs. Avtar Singh FIR No.63 date U/s 15/61/85 of atement showing details of sus emical Examiner:- Weight of quantity : stra mple parcels sent by Head C. Ra

Certified that the art d have been carefully packed in ing wrapped. .272/Ex. Dt:02.09.02

Forwarded to the Che andigarh for favour of analysis

.PJ is the Chemical Laborator State Vs. Avtar Singh and An FIR No.63 date U/s 15/61/85 of CHEMICAL LA

Mukhtiar Singh SHO P.S.Mehna 25.08.02." is reproduced as under:- and Another ed 25.8.2002 Police Station Meh f the NDPS Act. spected articles forwarded to sample parcels containing pop aw of 250 grams each sealed w e seal of J.S, N.S and M.S. amesh Kumar No.873 icles are intact in good condit my presence each bottle of art

Sd/-Mukhtiar Singh

SI/SHO P.S.Mehna

Dt-02.09.02 emical Examiner of Govt. Punjab

SI/for

Sr.Supdt. of Police

Moga.02.09.2002" ry Report, which is reproduced nother ed 25.8.2002 Police Station Meh f the NDPS Act. ABORATORY

hna, ppy with tion icle b at d as hna,

forw

2.9 rec exh sen tim Sep The OP ma SH for Sd/ Sr. Mo

26.

Ex as under:- "St Report on the analysis o warded by S.S.P. Moga referred

9.02. The exhibits marked here 1 ceived on 3.9.02 with the parti hibits were intact on arrival an nt. The exhibits remained in my s me its analysis was started. The analysis of the samples m pt-02 are as under. e analytical date is enclosed here PINION: The analysis indicates rked here 12-P-Sept-02 to 51-P-HO Mehana

immediate compliance / for

Supdt/- of Police (Gov oga

1060

Asstt.

Punja

Deputy Chemical Exam

To Govt. Punjab

S E A L

Chandigarh" .P/L is the affidavit of MHC Gu tate Versus Avtar Singh and anot

FIR No.63 dated 25.8.

U/S 15/61/85 of the ND

of the samples of poppy He d to in his endst no. 2721/Ex da 12-P-Sept-02 to 51-P-Sept-02 w iculars overleaf. The seals of nd agreed with the specimen s safe custody after its receipt, till marked here 12-P-Sept-02 to 51 ewith. s that the contents of the exhi -Sept-02 are of Poppy Head. Sd/- Sushobhita Kumari Dep Chemical Examiner to, Govt Punjab, Chandigarh t-Notification No.4957-2HB-11-02 dated 29th/30th April 1974, As . Chemical Examiner to Go ab) Sd/- (in English) 02.09.02 miner urmit Singh, which is reproduced ther. 2002 of Police Station Mehna. DPS Act.

ead, ated were seal 1-P-bits puty t -74/ ovt.

Aff

¶1on cha

¶2on Sin pro gra alo

¶3on alo of dire Exa

¶4as forw day con fidavit of MHC Gurmit Singh No I HC Gurmit Singh no.140 d 25-8-02 I was posted as MHC arge of the Malkhana of the Polic I HC Gurmit Singh no.140 d 26-8-2002 ASI Chamkaur Sing ngh, SHO, P.S Mehna, had depo operty of the aforesaid case an ams of sample poppy husk, duly ongwith the specimen seal. I HC Gurmit Singh no.140 d 2-9-02 I had handed over t ongwith specimen seal bearing le 2/02 to C. Ramesh Kumar no.87 Director, Chemical Examiner ection to get, at first, the docke e office S.S.P.Moga and then to aminer, Punjab, Chandigarh. 1 HC Gurmit Singh no.140 d per my direction, C.Ramesh K warded and despatched from th y and on 3.9.02 he had deposit ndition in the office of C

.140 Moga, Police Station Mehn do solemnly affirm and declare t C in police Station Mehna and ce Station was with me. do solemnly affirm and declare t gh, on the direction of SI Mukht osited with me in the Malkhana, nd 40 parcels each containing 2 sealed with seal J.S, NS., and M do solemnly affirm and declare t the aforesaid 40 sample parc etters JS, NS and MS, vide RC N 73, for depositing them in the off r Punjab, Chandigarh, with et forwarded and despatched fr o deposit in the office of Chemi do solemnly affirm and declare t Kumar no.873 had got the doc he office of SSP Moga on the sa ted the aforesaid parcels in int Chemical Examiner, Laborato

na. that that tiar M.S. that cels No. ffice rom ical that cket ame tact ory,

Cha ove

¶5so l N.S do

dec my of i I kn Wh Sd/ A.D

13.

27.

Thi State of Punjab as under:- andigarh alongwith the specime er the road-receipt to me, which I HC Gurmit Singh no.140 d long as the parcels of the afores S. and M.S. and the specimen se e Malkhana. I did not tamper wit so.

I, HC Gurmit Singh clare that paras no. 1, 2, 3 and 5 d correct to the best of my know belief. I have not kept anything it is false.

now the deponent personally ho signed in my presence /-

Jud D.A. , Moga

12.2003

is Court in CRA-S-5190-SB-20 b" along with other connected ap

en seal, and on return, he hand I had placed on record. do solemnly affirm and declare t said case, duly sealed with seal J eal remained deposited with me th them nor allowed anyone else

Sd/-Gurmit Singh

HC/140 Deponent

Dt: 13.12.2003 no.140 do solemnly affirm a 5 of my aforesaid affidavit are t wledge and para no.4 to the bes g concealed therefrom nor any p

Sd/-Gurmit Singh

HC/140 Deponent

Dt: 13.12.2003 dl. Magistrate, Ist Class

SEAL

Moga (P.B)

Sd/- JMIC, Moga (D)

13.12.2003" 015 titled as "Deepak Kumar ppeals, decided on 18.09.2024, h

ded that J.S., e in e to true t of part Vs.

"6. que ord Fin

2.3 bec for con dru

¶7of sam for

Before proceeding to rend estion of law (supra), the mak der No.1/89, as drawn by the nance (Department of Revenue), and 2.4 thereof, clauses whereo comes elucidated that the quanti a chemical test becoming m ncerned, shall not be less than ugs and psychotropic substances "2.3 The quantity to chemical test shall not all narcotic drugs and the cases of opium, ga quantity of 24 gram chemical test. The sam duplicate sample al packages/containers s homogeneous and rep duplicate) is drawn.

2.4 In case package/container, on drawn. Normally, it is duplicate) from each seizure of more than on However, it has been further opium, ganja and charas (has mple to be derived from the bulk the same becoming sent for tes

der an answer to the substan king of allusion(s) to the stand Government of India, Ministry is of utmost importance. In cla of becomes extracted hereinafter ity to be borne in each sample, t made thereons at the laborat 5 grams in respect of all narco . o be drawn in each sample t be less than 5 grams in respec d psychotropic substances save anja and charas (hashish) wher ms in each case is required me quantities shall be taken for lso. The seized drugs in shall be well mixed to make presentative before the sample e of seizure of a sin ne sample in duplicate shall s advisable to draw one sample h package/container in case ne package/container." r elucidated therein, that if seiz shish) takes places, thereupon k is to be weighing 24 grams, t stings to the laboratory concern

ntial ding y of ause r, it thus tory otic for ct of e in re a for e it (in ngle be (in of zure thus

Sim bec pac bec or b pla in t sha

¶8(De whe car extr milarly, for the duplicate sample come envisaged thereins. Mor ckages/containers, become thu coming drawn from the bulk, rat being homogeneously mixed. Ho ace of a single package or conta the above extracted provisions, all be drawn. Furthermore, the Governme epartment of Revenue), has issu ereins, in Chapters II and II rried in Clauses 4 to 11 the racted hereinafter. "4. Designation of g storage of narcotic controlled substances seized under the Act sh

(a) the department Government whose off of an officer-in-charge 53 of the Act;

(b) The State Police a the State Government powers of an officer-i section 53 of the Act.

(2) Godowns referre identified taking into and juxtaposition to co

also, the same or similar quanti reover, the seized drugs in us prior to the samples (sup ther ordained to become well mix owever, in case of the seizure tak ainer, thereupon it is contempla that only one sample in duplic ent of India, Ministry of Fina ued a notification, on 23.12.20 II thereof, certain provisions ereofs. The said clauses beco godowns. – (1) The godowns drugs, psychotropic substanc s, conveyance and other artic hall be designated by,- and agencies of the Cent fficers have been delegated pow e of a police station under sect and the department and agencies whose officers have been delega in-charge of a police station un ed to in sub-rule (1) shall consideration the security asp ourt of law and such godowns sh

ties pra) xed king ated cate nce 022, are ome for ces, cles tral wers tion s of ated nder be pect

be placed under the o an officer of Gazette ra referred to in sub-rule

¶5Deposit in godow referred to in sub-rule the Act shall be depo nearest godown desig eight hours from th forwarding memorand Provided that the sai further twenty-four ho justification by the off has been forwarded u of the Act.

(2) The officer in-cha acknowledgement of himself that the seize sealed and in conform Form-1.

(3) The officer, who h over the acknowledgem Form-2, along with a seizure, to the In proceedings.

¶6Storage of seized receipt of the seized m godown shall ensure t arranged, case-wise, fo

(2) The officer in-cha register of material rec

(3) All seized materia be stored in safes and

over-all supervision and charge ank of the department and agenc

(1). wns. – (1) All seized materi e (1) of rule 3, after seizure un osited by the seizing officer in gnated under rule 4 within for he time of seizure alongwith dum in Form-1: id time period may be relaxed ours after providing of reasona fficer to whom the seized mater under sub-section (3) of Section rge of a godown, before giving receipt in Form-2, shall sat ed materials are properly pack mity with the details mentioned had seized the material, shall ha ment of receipt of seized materia all other documents relating to vestigating Officer for furt material in godown. – (1) Af material, the officer in-charge of that the seized material is prope for quick retrieval. arge of a godown shall maintai ceived in the godown in Form-3. l, excluding the conveyances, sh vaults with double lock.

e of cies ials nder rty-h a d by able rial g an tisfy ked, d in al in ther fter f the erly n a .

¶7Inspection of god agencies referred to in designate an Inspectin shall be higher in rank the godown.

(2) The Inspecting O shall make periodical once in every quarter, godown register in F safety and early dispos

(3) The departments a and the State Police and returns to monitor accounting and dispo Act.

¶8Application to Mag under the Act is forwa nearest police station section 53 of the Act o himself, he shall prepa Form-4 and apply to under sub-section (2)

5.

¶9Samples to be draw After application to th of section 52A of th Officer shall ensure th are drawn in the prese is certified by the m provisions of the said-s

¶10Drawing the samp shall be drawn from ea

down. – (1) The department a n rule 4 and the State Police sh ng Officer for each godown, w k to that of the officer in-charge Officer referred to in sub-rule inspection of the godown, at le and shall record his remarks in Form-3 with respect to secur sal of the seized material. and agencies, referred to in rul shall maintain periodical repo r the safe receipt, deposit, stora osal of seized materials under gistrate. – After the seized mater arded to the officer-in-charge of or to the officer empowered un or if it is seized by such an offi are an inventory of such materia o the Magistrate, at the earli of section 52A of the Act in For wn in the presence of Magistrate he Magistrate under sub-section he Act is made, the Investigat hat samples of the seized mater ence of the Magistrate and the sa magistrate in accordance with sub-section. ples. – (1) One sample, in duplica ach package and container seize

hall who e of

(1) east rity, le 4 orts age, rial f the nder ficer al in iest, rm-e. –

(2) ting rial ame ate,

¶9bee

(2) When the packag are of identical siz marking and the conte results on colour tes conclusively indicating all respects, the packa be bunched in lots of containers, and for containers, one sample Provided that in the hashish (charas) it ma than fourty packages o

(3) In case of drawin shall be ensured tha quantity is taken from lot and mixed togethe which the samples are

¶11Quantity to be dra cases of opium, ganj quantity of not less drawn for each sampl five grams shall be dr quantity shall be taken

(2) The seized substan shall be well mixed representative before t

(3) In case where se required for sampling may be sent." Tritely put, in the above ext en mandated, that the representa

ges and containers seized toget e and weight bearing identi ents of each package give identi st by the drugs identification g that the packages are identica ages and containers may carefu of not more than ten packages each such lot of packages a e, in duplicate, shall be drawn: case of ganja, poppy straw a ay be bunched in lots of not m or containers. ng sample from a particular lot at representative sample in eq each package or container of t r to make a composite whole fr drawn for that lot. awn for sampling. – (1) Excep ja and charas (hashish), where than twenty-four grams shall le, in all other cases not less th rawn for each sample and the sa n for the duplicate sample. nces in the packages or contain d to make it homogeneous a the sample, in duplicate, is draw eized quantities is less than t g, the whole of the seized quan tracted statutory provisions, it ative sample to be derived from

ther ical ical kit, al in fully or more t, it qual that rom t in e a be han ame ners wn. that ntity

bul bec pro pro test bec to b enc und wit wer

¶10Cou Inv god

¶11abo term Psy Act offi lk rather is required to be so dra coming homogeneously mixed. M ovisions relating to the apposite e sealed cloth parcels, besides ompt dispatches being made of ting being made at the labora comes ordained therein, that exp be made by the Chemical Exam closed in the samples parcels, a ereons becoming made. Impe derlined the necessity of remna th reference to the test memo, to re received, but within three mo ereovers at the Laboratory conce

However, immediately after urt of the Magistrate, the vestigating Officer becomes ord down referred to in Rule 5 along

The inference(s) is to be dr ove extracted provisions, relate t ms of Section 2 of Section 5 ychotropic Substances Act, 198 t"), thus in the presence of th ficer concerned. The said provisio

awn only after the entire seized b Moreover, thereins also exist, t e quantities becoming enclosed s exist provisions with respect f the apposite samples for there atory concerned. Moreover it a peditious testings, thus are requi miner concerned, vis-a-vis the s as become sent to him, for analy eratively also thereins becom ants of samples becoming return o the office from where the samp onths after analysis becoming ma erned. acceptance of the test report by duplicate sample held by dained to become deposited in g with the remnants of the sample rawn therefroms are that, the s to the inventory becoming drawn 52A of the Narcotic Drugs a 85 (hereinafter referred to as " e Magistrate, by the investigat ons becomes extracted hereinaft

bulk thus d in t to ebys also ired stuff yses mes ned ples ade e. said n in "the ting

"[52A. Disposal of psychotropic substanc

(2) Where any [narco controlled substances and forwarded to the police station or to th 53, the officer referred an inventory of suc substances, controlle containing such deta quality, quantity, mod such other identifying psychotropic substan conveyances] or the p country of origin and referred to in sub-sec the identity of the substances, controlled proceedings under thi any Magistrate for the

(a) certifying th prepared; or

(b) taking, in photographs of conveyances] an true; or

(c) allowing to such drugs or s magistrate and c of samples so dr

of seized narcotic drugs a ces.—[(1) xxx tic drugs, psychotropic substanc or conveyances] has been sei e officer-in-charge of the near e officer empowered under sect d to in sub-section (1) shall prep ch [narcotic drugs, psychotro ed substances or conveyanc ails relating to their descripti de of packing, marks, numbers particulars of the [narcotic dru nces, controlled substances packing in which they are pack d other particulars as the offi ction (1) may consider relevant e [narcotic drugs, psychotro d substances or conveyances] in a is Act and make an application, purpose of— he correctness of the inventory the presence of such magistra of [such drugs, substances nd certifying such photographs o draw representative samples substances, in the presence of su certifying the correctness of any rawn.

ces, ized rest tion pare opic ces] ion, s or ugs, or ked, ficer t to opic any , to y so ate, or s as s of uch

¶12to t nor tho a-v at h offi retu bec rep

¶13sub not

(3) Where an applicat the Magistrate shall, application.

(4) Notwithstanding Evidence Act, 1872 (1 Procedure, 1973 (2 offence under this A photographs of substances, controlled any list of samples d certified by the Mag respect of such offence

Though, the said reference d the creation of storage facilities r the subject reference relates to e samples to the laboratories co e stuff enclosed therein becom ough the subject appertains to ex vis the stuff inside the sample par hand also does not relate to the fice wherefrom it became receiv urned parcels, thus enclosin coming produced before the Co port.

Nonetheless, even if the abo bject reference, but the alluded t tification (supra) do beget strikin

tion is made under sub-section as soon as may be, allow anything contained in the Ind 1 of 1972) or the Code of Crimi of 1974), every court trying ct, shall treat the inventory, 1[narcotic drugs, psychotro d substances or conveyances] a drawn under sub-section (2) a gistrate, as primary evidence e.]" does not cover the subject relat in the police malkhana concern o prompt dispatches being made oncerned, rather for ensuring t ming promptly examined nor a xpeditious testings being made v rcels. Moreover, though the subj e return of the tested sample to ved nor does it deal with the s ng thereins the stuff examin ourt concerned along with the ove aspects do not fall within to (supra) provisions existing in ng conclusion qua:

(2), dian inal an opic in ting ned, e of that also vis-ject said ned,

ma Ma test evid

¶14pol stor obl pro tha

¶15par app ens con Cou con

¶16Cou App bec a) There being an impe de of the stuff inside the sample p b) The inventory as bec agistrate concerned, in terms of tings of the stuff enclosed in the e laboratory concerned, rather dentiary vigor.

Moreover, thereins as an o lice department concerned, to rage facilities in the malkha ligation becomes cast upon the ompt dispatches of the samples at, the enclosed thereins stuff bec

Tritely also the return, of t rcels, to the police malkhana c posite production in Court alo shrined therein, to be an impe ncerned, whereafters, thus on c urt case properties is to be orde ncerned.

In paragraph 35 of the judgm urt in"Noor Aga V. State of peal No.1034 of 2008, decided comes extracted hereinafter, it h

erative necessity of testings be parcels. omes prepared in the presence Section 52A of the Act, but with sample parcels, thus being made per se not acquiring the utm obligation becomes cast upon ensure the creations of adequ anas concerned, as well, as e investigating agencies, to m to the laboratories concerned, comes examined. the examined stuff inside the s concerned, thus subsequent ther ong with the test report becom erative obligation made upon conclusion of trial the produced ered to be deposited in the godo ment rendered by the Hon'ble Ap f Punjab and another" Crimi on 09.07.2008, paragraph wher has been enshrined that the allud

eing e of hout e at most uate an ake so said reto mes all d in own pex inal reof

to ( for bec

¶17Go Ho Edw App to b in whe (supra) necessities are the requir the charge drawn against th come unflinchingly proven. "35. The High Court production of physic prosecution case but t view with respect to evidence creates an o the credibility of the purpose the retracted accused could not have

Now the above referred vernment of India, appear to n'ble Apex Court, in a judgmen dwin Kircher V. State of Goa, S peal No.642 of 1991, decided o be in tandem with the verdict re "Noor Aga V. State of Punja .1034 of 2008, decided on ereof becomes extracted hereinaf "J. Narcotic Drugs a 1985, Sections 52A an 110(IB) – Physical evi of heroin from accuse not produced – Phy samples taken from th not produced – Bulk q were essential to be

red to be proven sine qua non, t he accused becoming declared t proceeded on the basis that n cal evidence is not fatal to the fact remains that a cumulat o the discrepancies in physi overarching inference which de e prosecution. Even for the s d confession on the part of e been taken recourse to."

to notification(s) issued by o also become aprobated by nt rendered case titled as "Gaun Secretariat Panji, Goa", Crimi on 16.03.1993. The above appe endered by the Hon'ble Apex Co ab and another" Criminal App

09.07.2008, relevant paragra after. and Psychotropic Substances A nd 53 – Customs Act, 1962, Sect idence – Case Property – Recov ed – Case property destroyed a ysical evidence relating to th he bulk amount of heroin were a quantity was destroyed the samp produced and proved as prim

thus d to non-tive ical ents said nter inal ears ourt peal aph Act, tion very hree also ples

¶18bei tha not ens mix dra

¶19bul mix whe bul is c whe mix of s con bec eas trav evidence for the pur recovery of heroin as e Act."

The ire point relating to the ing made of the entire recovered at the hereinabove alluded to tification (supra), do cast an o sure that only after the entire xed, qua thereafters from the bul awn but in the mode, manner and

It appears that given the imm lk seizure, that therebys after th xing the bulk seizure, hence ereafters the concerned become lk. Reiteratedly, the immensity of curable by the drawings of resid en prior thereto rather the en xed. Consequently, therebys the spaces within the laboratory co ncerned, may on account of sh come precluded to examine the e sed. As such, to avoid the imme velling to the laboratories conce e bulk are envisaged but only a

rpose of establishing the fact envisaged under Section 52A of unneccessity, of laboratory test d stuff, but is grooved in the factu o provisions as carried in obligation upon all concerned, seizure becoming homogeneou lk rather residue samples becom d quantities detailed hereinabove mensity of the weight of the appos he concerned, thus homogeneou evidently of an immense weig enjoined to draw samples from of the weight of the apposite seiz due samples from the bulk, but o tire bulk becomes homogeneou constraining factor of inadequ oncerned, wherebys the laborat hortage of spaces there, thus m entire bulk, thus appears to beco ense load of the entire bulk seiz erned, that derivative samples fr after such derivation taking pl

t of f the ting um, , to usly ming e. site usly ght, zure only usly acy tory may ome zure rom

rath hom

¶20ord Pun

¶09ord bre bec

¶21on con bor mix at seiz dra wei resp her from the bulk but only mogeneously mixing the entire bu

Conspicuously, the hereinab der and notification become dec e Hon'ble Apex Court in case njab and another" Criminal Ap

07.2008, to be holding a mand dained therein to be requiring co each thereof becoming made, th come entitled to an acquittal.

Furthermore, in case the en d derivative samples are derive ereof would be that, the incrimin the stuff inside the sample p ncerned, thus would acquire a p e fact that the entire bulk wher rrowed, but after the entire s xed, rather not becoming sent fo the laboratory concerned. Co zure remains not homogeneou awn against the accused appert ight of the seizure, de hors a pect of the stuff inside the resid

after all concerned, reiterate ulk seizure, otherwise not. bove extracted respective stand clared by a judgment rendered titled as "Noor Aga V. State ppeal No.1034 of 2008, decided datory character and also beco ompletest adherence. Contrarily herebys may be the accused wo ntire bulk is homogeneously mix d therefroms, resultantly the eff natory finding as become record parcels as sent to the laborat presumption of truth, irrespective refrom the derivative samples seizure becoming homogeneou or analyses thereovers, being ma ontrarily, in case the entire b usly mixed, thereupon the cha taining to the weight of the en affirmative results being made due sample parcels, as, sent to

edly ding d by e of d on ome y on ould ixed ffect ded tory e of are usly ade bulk arge tire

lab whe

¶22from sub may pac tota ado per It d foll

¶23dra mix sam wei from

¶24mix bec mix extr boratory concerned, rather wou ereupon benefit thereof would ac

As an illustration, if the 08 m the appellant and only two bstance and rest 6 packets did no y be of the same colour, when ckets into one or two; then def al quantity and not of the tw opted by the prosecution creates r settled law, the benefit thereof does not matter the quantity, lowed, without which the results

Reiteratedly, in case, the de awn but without the entire bulk xed, thereupon the laboratory e mple cloth parcels rather would n ight of the entire bulk seizure ta m the alleged conscious and exc

Contrarily, in case the entire xed or when the narcotic drug(s come carried in different vials o e said mode(s) of carryings of (su xed, thereupons, even if a fragm racted from one vial or only fro

uld come under a cloud of dou ccrue to the accused. 8 packets were allegedly recove packets were having contraba ot have any contraband; though n we mix the substances of al finitely, the result would be of wo pieces. Therefore, the proc s suspicion. In such a situation, should go in favour of the accus but proper procedure has to would be negative. erivative samples from the bulk k seizure becoming homogeneou examination of the stuff inside not prove the charge relating to aking place, at the crime site, t clusive possession of the accused e bulk seizure is not homogeneou

(s) or psychotropic substance, d r in different packets, besides up upra), becomes not homogeneou ment or a portion thereof becom om one packet, thus for creatin

ubt, ered h all ll 8 cess , as sed. be are usly thus d. usly does pon usly mes

res bec evid be via seiz bec app vis cha effi

¶25tha con tha be wit res find Che Sam

¶26psy idue parcel, it would beget th coming entitled to an acquitta dent absence of apposite homog it borne in packets, containers ls, besides when only a part o zure or only one or two of the vi comes sent for examination to posite affirmative laboratory exa the stuff inside the sample pa arge drawn against the accused d consciously possessing, the e icaciously proven.

Conspicuously when for the at the charge drawn against nsciously and exclusively posses at only after homogeneous mixin it of psychotropic substance, in th respect of narcotic drugs ca idues therefroms becoming d ding on the stuff inside the resid emical Examiner concerned. mple procedure in respect of psy

In case no batch number ychotropic substance, thus carr

he ill consequence of the accu al. Resultantly, when despite geneous mixings of the entire bu or be it being carried in differ of the fragment or portion of ials, yet the said extracted fragm the laboratory concerned, but amination as becomes made vis arcels, rather would not make d, thus for his allegedly exclusiv entire seizure, thus also becom drawing of an effective conclusi t the accused for his allege ssing, the entire bulk, but requi ng of the bulk seizure, taking pla vials or in any other mode or b arried in whatsoever mode, rat drawn, whereafter an affirmat dues, is required to be made by ychotropic substance is mentioned, in the recove ried in the form of tablets/str

used ulk, rent ment s-a-vely ming ion, edly ires ace, be it ther tive ered ips,

is t sen Ho stri to con bul safe sam

¶27bul be extr

ereupon at least one of the tablet to be extracted, as residue samp nt for testings being made thereo wever, in case batch number is m ips, thereupon only one of the ta be sent for testings being ma ncerned. However, the quantity o lk is to be in terms of the prov feguard that not only vis-a-vis th mple parcel, the relevant batch e covers of each of the sealed clo

Therefore, the sampling proc e apposite psychotropic substanc lk seizure, besides derivation of vitiated unless adherence be racted underlined canons. "(v) It has also come batch number, name given on the bottles o sample of one bottle t with the procedure standing order. In vie Harjinder Singh (sup held to be a represe allegedly recover from

ts from all the relevant strips rat ple and the same is required to overs, at the laboratory concern mentioned in all the recovered b ablets in the entire haul is requi ade thereovers, at the laborat of the sample to be derived from visions (supra), but with a furt he entire bulk but also vis-a-vis number is required to be made th parcels. cedure in respect of bulk seizure ce, ordains that the making of f a sample parcel, therefroms wo ecomes made to the hereinaf in the evidence that there was of manufacturer or other deta of Rexcof syrup and therefore, taken, was also not in accorda laid down under the afores ew of the judgment of this Cour ra), the sealed sample cannot entative parcel of the entire b m the appellant"

ther o be ned. bulk ired tory ther e on e of ould fter ails nce said t in be

28.

Rel Special Judge, M "8. of t from acc Sec

¶9wit fur in p Sur con bou dat tha

¶10nam at o He Cha arg by levant portion of the judgment Moga is reproduced as under:-

From the discussion held bef the file, it has surfaced as to w m accused of 14 Qunintals of cused Surjit Singh owner of tru ction 25 of the N.D.P.S.Act as pe Learned Additional Public P tnesses had materially suppor ther contended that it is fairly p possession of and that the truck rjit Singh had allowed it to be ntraband material. The minor d und to occur because of consid te of occurrence and examinatio at verdict of suit be returned to t d convicted.

On the other hand, learned c mely Shri Jasbir Singh Advocat outset that ruqa itself is doubtfu had argued that writing on amkaur Singh is with different gued that as Per PWL AS I Cham Jasbir Singh through C Gum

t dated 06.04.2005 passed by fore this court and from the peru whether recovery had been effec f poppy husk and whether seco uck is liable to be convicted un er the case of the prosecution. Prosecutor had argued that all rted the prosecution version. proved that Avtar Singh was fou k owned by recovered poppy hu used by Avtar singh for carry discrepancies and irregularities derable lapse of time between on of the witnesses. He had pray the accused and they be held gu counsel for the accused Avtar Sin te (Legal Aid Counsel) had arg ful i.e. the endorsement is Ex.PA the ruqa and the signatures pen and different ink. It is furt mkaur singh, the ruqa had been s mail singh while the prosecut

usal cted ond nder He und usk; ying are yed uilty ngh ued A/2. s of ther sent

ver disc acc has dat 1 A tha sta wri also said sign Illa as disc thro

¶11pro is t in t Off Sin him rsion is that it has been sen crepancy although, there but i cused had been prejudiced on a s surfaced. It can safely be attrib te of recovery and date of recor AS I Chamkaur Singh has furthe at he does not know as to how m tion Mehna. He had also testifi itten for the proceedings under e description of currency note is o admitted that engine and chas d request EX.PB. Learned Judi ned on the samples and not o aqa Magistrate had undisputedly gunny bags. In view of h crepancy pointed out cannot b ow away case of the prosecution

Further, it is argued that PW oved the con sent memo alleged that he had introduced himself t the court being DSP Sub Divis ficer of the Punjab Government. ngh is likely to be searched. Ac m, then at his direction SI J

t through C Baldev Singh. T it is not contended as to whet account of this discrepancy wh buted to memory lapses between rding oral testimony of witness. P er testified in his cross-examinat many malkhanas are there in po ied that in the request letter Ex. Section 52 A of the N. D.P. S. A not specifically mentioned. He h sis number is not mentioned in icial Magistrate Ist Class had o on the gunny bags while Learn y signed on sample parcels as w heavy commercial quantity, e considered to be of potential n. W 3 Nachhattar singh, DSP had to have been proved. His statem to the accused Avtar Singh pres ion, Moga and that he is Gazet He further told that accused Av cused Avtar reposed confidence Jasbir Singh Investigating Offi

This ther hich PW tion lice .PB Act, had only ned well this l to not ment sent tted vtar e in

con con lea Pro has con has arg con in t

¶12dou rev agr info Pol susp spo ver ma bee nducted search of the bags w ntraband material in the form rned defence counsel is rep osecutor that in the cross-examin s been put to him regarding non nsequent effect neither it has be s been caused to the accused gued that consent memo is only ncerns only personal search of th the instant trial which is not the c

Further presence of Shams ubtful because he had remained e spot. He had also shown his i d he does not know as to whom vealed in his cross-examinatio ricultural fields were not ve formation about such ownership lice Station Mehna. All these dis spicion as to whether PW 4 ASI ot or not. He had not been rsion of the recovery of the cas rginal factors regarding which en tried to be high-lighted. Thes e oral testimony of PW4 ASI Sha

which led to recovery of the s of poppy husk. The contention pelled by learned Addl. Pub nation of the witness no suggest n-preparing of consent memo or een put to him as to what prejud d. Further, learned Addl.P.P y required Under Section 50 wh he accused and it does not attrac case of personal search. sher singh PW4 is alleged to silent about his going to SHO fr ignorance about the consent me seal was handed over. He had a on that ownership of the nea erified nor any one had gi and his statement was recorded screpancies are contended to cre Shamsher singh was present at cross-examination about mater se property from Avtar Singh. T he could not answer properly h ese discrepancies and infirmities amsher singh cannot led this co

said n of blic tion r its dice has hich cted be rom emo also arby iven d at eate rial The had s in

tha ligh test

¶13was wit this Ex. Pro stoc only wit pro

¶14veh had tak only sam app def be PW at he was not present on the spot hted discrepancies and ignoring timony.

Much stress has been laid d s alleged to be joined, has not tness joined Gant Singh is stock s contention, learned defence c D4 to Ex. DB. On the other osecutor had argued that unles ck witness by any court, he cann ly because of the fact that he had tness in more than one case osecution is plausible.

PW 5 is C Ramesh Kuma hemently contended by learned d said that 40 samples and 40 ken to Forensic Science Laborat ly one sample seal was prepared mple seals of different cases by pears to be slip of the tongue b fence that samples had been tam allowed to be derived from th W-5 Ramesh Kumar.

t, only considering these over hi g this major part of convincing o down that independent witness w been examined. Further that o witness and in order to press up ounsel had relied upon docume r hand, learned Additional Pub ss person is not condemned to not be labelled to be so by this co d been arranged as an independ e. The explanation given by ar Constable No.873. It has b defence counsel that this witn sample seals different cases w tory while prosecution case is t d. The version regarding taking one constable is implausible an because it is no where the case mpered. Therefore, no benefit co e slip of tongue of formal witn

igh-oral who only pon ents blic be ourt dent een ness were that g 40 nd it e of ould

¶15Sha bee cou be Gu Sin wh xxx

¶18Sin sha in safe fals

¶21acq bee sha hug lice Nar

It has also been argued t amsher Singh, the ownership of en verified from any person. So unsel it remained unexplained a the agricultural fields around th rdev Singh son of Narain Sing ngh, Pritam Singh son of Lachh ich remained unexplained. xx

xxxxx

In this manner, the recovery ngh (who was found to be sitting adow of reasonable doubt. Min view of the huge recovery of a fely said to be planted. This inf ere is no enmity of the local poli se recovery case. xxxx

xxx

In view of the above disc quitted of the charge framed aga en proved to found in possession adow of reasonable doubt, theref ge commercial quantity of pop ence and accordingly he is con rcotic Drugs & Psychotropic Su

that as per version of PW2 A of the neighbouring fields had o as contended by learned defe as to how it has been mentioned he spot of recovery are that of o gh, Bakhtaur Singh son of Balw hman Singh in the site plan Ex.

xxxxx y from possession of accused Av on it), had been established beyo nor discrepancies are to be igno about 14 quintals which cannot nference will also be same beca ice with Avtar Singh to rope him xxx

xxxxx cussion accused Surjeet Singh ainst him. Accused Avtar Singh h n of 40 bags of poppy husk beyo fore, he is held guilty of possess oppy husk without any permit nvicted under Section 15(C) of ubstances Act, 1985."

ASI not ence d to one want PG vtar ond ored t be ause m in h is had ond sing

29.

A p homogeneous m

30.

The Psychotropic Su under:- "52 sub haz pro of a or nar con sub sha offi tim perusal of the record as referre mixing of the poppy-husk, which ere is no compliance of Section ubstances Act, 1985. Section 52 2A. Disposal of seized na bstances.-- [(1) The Central Gov zardous nature, vulnerability to oper storage space or any other any narcotic drugs, psychotropic conveyances, by notification in rcotic drugs, psychotropic sub nveyance or class of narcot bstances, class of controlled s all, as soon as may be after the ficer and in such manner as th me, determine after following the p

(2) Where any 3[narcotic controlled substances or co forwarded to the officer-in-c or to the officer empower referred to in sub-section ( such 3[narcotic drugs, psy substances or conveyances]

ed to above shows that there is was in 40 bag parcels. n 52(A) of the Narcotic Drugs 2(A) of NDPS Act is reproduced arcotic drugs and psychotro vernment may, having regard to o theft, substitution, constraint r relevant consideration, in resp c substances, controlled substan n the Official Gazette, specify s bstances, controlled substances tic drugs, class of psychotro substances or conveyances, wh eir seizure, be disposed of by s at Government may, from time procedure hereinafter specified.] drugs, psychotropic substanc onveyances] has been seized a charge of the nearest police stat red under section 53, the offi

(1) shall prepare an inventory ychotropic substances, control containing such details relating

d as opic t of pect nces uch or opic hich uch e to ] ces, tion ficer y of lled

(3) Ma

(4) inv sub their description, quality, q numbers or such other ident drugs, psychotropic substa conveyances or the packing of origin and other particula section (1) may conside the 3[narcotic drugs, psyc substances or conveyances] and make an application, to

(a) certifying the correctnes

(b) taking, in the presence of 4[such drugs, substances o photographs as true; or

(c) allowing to draw repres substances, in the presence the correctness of any list of Where an application is m agistrate shall, as soon as may be Notwithstanding anything cont 72 (1 of 1972) or the Code of 74), every court trying an offen ventory, the photographs of bstances, controlled substances

quantity, mode of packing, mar tifying particulars of the 3[narco ances, controlled substances] in which they are packed, coun ars as the officer referred to in s er relevant to the identity chotropic substances, control in any proceedings under this any Magistrate for the purpose ss of the inventory so prepared; e of such magistrate, photograp or conveyances] and certifying s sentative samples of such drugs of such magistrate and certify f samples so drawn. made under sub-section (2), e, allow the application. tained in the Indian Evidence A f Criminal Procedure, 1973 (2 nce under this Act, shall treat f 5[narcotic drugs, psychotro or conveyances] and any list

rks, otic or ntry sub-of lled Act of-- ; or phs uch s or ying Act, 2 of opic

sam as p

A p referred to in s psychotropic su details relating numbers or su substances, cont packed, country section(1) may c substances, cont and further to m the correctness magistrate, phot such photograph Section (1) to al the presence of so drawn.

Wh officer concerne CONCLUSION

31.

Aft following discre law laid down b mples drawn under sub-section ( primary evidence in respect of su perusal of Section 52A (2) show sub Section (1) to prepare the ubstances, controlled substances to their description, quality, q uch identifying particulars of trolled substances or conveyanc y of origin and other particulars consider relevant to the identity trolled substances or conveyanc make an application to any Magi of inventory so prepared or tographs of such drugs, substan hs as true. Further, it is mandato llow to draw representative samp such magistrate and certifying th hereas in the present case no s ed. N ter perusing the whole record epancies/lack of investigation a by this Court as well as by the Ho

(2) and certified by the Magistra uch offence." s that it is mandatory for the offi inventory of such narcotic dru s or conveyances containing su quantity, mode of packing, mar the narcotic drugs, psychotro es or the packing in which they s as the officer referred to in s of the narcotic drugs, psychotro ce in any proceedings under the istrate for the purpose of certify r taking in the presence of su nces or conveyance and certify ory for the officer referred to in s ples of such drugs or substances he correctness of any list of samp such inventory is prepared by of this case, this Court finds as per the statutory provisions on'ble Supreme Court:-

ate, ficer ugs, uch rks, opic are sub-opic act ying uch ying sub-s, in

Sin benefit of doubt FINAL ORDER

32.

In v appeal and is co

i) A perusal of the reco there is no homogeneous mix in 40 bag parcels.

ii) There is no complianc Drugs and Psychotropic Sub

iii) A perusal of FSL rep reveal the number of seals a there is no return by chemi with English alphabet.

iv) A perusal of record parcels as stated by C Rame of bulk and tied in a piece o there is no examination of There is nothing in the FSL on the cloth parcel, number terms mention in the recover

v) Further, there is non residue as separated from th learned Trial Court along wit nce there are grave lapses in th t is liable to be given to the accus R view of the above discussion th onstrained to allow it. Conseque

rd as referred to above shows t xing of the poppy-husk, which w ce of Section 52A(2) of the Narco stances Act, 1985 port as referred to above does and number of sample receipts ical examiner by further sealing further shows that all the sam esh Kumar PW-5 were in the fo of cloth whereas in the FSL rep f the stuff inside the cloth par L report regarding seal impressi of seals with English alphabets ry memo Ex.P/C. n-production of parcel contain he bulk, at the crime site before th FSL report. he prosecution case, therefore, sed/appellant. his Court finds merit in the pres ently, the present appeal is allow

that was otic not g it mple orm port rcel. ons s, in ning sent

Impugned judgm sentencing the a

33.

The amount, if any, d

34.

The cancelled and su

35.

The expiry of period

36.

Rec

37.

The forthwith set at l

38.

Pen

(SURESHWR

JUDGE

October 21, 202 tripti

Wh

Wh

ment dated 06.04.2005 and ord appellant by learned trial Court a e appellant is acquitted of the ch deposited by him, be refunded to e personal and surety bonds of urety stands discharged. e case property be dealt with in d of limitation for filing of an app cords of the learned trial Court b e appellant, if in custody, and, i liberty. Release warrants be pre nding applications, if any, also st THAKUR)

hether speaking/non-speaking : S hether reportable

: Y

der dated 7.04.2005 convicting are set aside. harges framed against him. The f o him in accordance with law. f the accused shall stand forthw n accordance with law, but after peal or revision if any. be sent down forthwith. f not required in any other case, epared accordingly. tand disposed of. (SUDEEPTI SHARMA) JUDGE Speaking

fine with , be