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TMI Blog2017 (12) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 Inspector Dalbir Singh SHO that he has not acted and followed procedure in accordance with law. The statement of PW3 Inspector Dalbir Singh, on careful scrutiny, clearly make out a case that provisions of Section 50 of NDPS Act were not at all followed. This witness has clearly admitted that he has not informed the accused regarding his right under Section 50 of NDPS Act. The prosecution has examined only three witnesses, out of which PW1 HC Gurdeep Singh is a formal witness, who has deposited the sample parcel to FSL. However, there is no explanation given by him that why the sample was not deposited on the same day, as this witness has stated that after obtaining the sample on 16.06.2010, he stayed in police station, Mansa on 16.06.2010 and deposited the same with FSL on 17.06.2010. Even the statement of Investigating Officer PW2 ASI Gurdip Singh do not inspire much confidence. The trial Court, while convicting the appellant, has wrongly held that the provisions of Section 50 of NDPS Act were complied with, as the Investigating Officer himself was the SHO of police station and it has come in the evidence that he has kept the sealed parcel with him and has not depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intoxicant tablets and liquid i.e. Rexcof and he is coming from Makhewala to Jhunir for selling these intoxicant which he is carrying in a polythene bag and if a naka is held, large quantity of intoxicant tablets and Rexcof can be recovered from him. On the basis of secret information, a ruqa (information) was sent to police station through PHG Jagdev Singh for registration of case and directions were given to send the special report to senior officers. The naka (barricade) was held by SI Dalbir Singh along with other police officials on Jhunir-Makhewala road. One Ami Chand son of Lachhman Dass met the police party and he was joined by the police and they proceeded towards village Makhewala. When they reached near a cemented water channel, a person carrying a white polythene bag in his hand, in which intoxicant medicines and bottles were kept, was asked to stop, but he perturbed and tried to turn towards the fields. The police party apprehended him and he disclosed his name as Buta Singh son of Puran Singh. The white polythene bag was opened and intoxicant medicines were found in the same. On counting, the total number of tablets came out to be 22700 and out of those, 20 tablets w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as attested by him and Ami Chand. A rough site plan was also prepared and on personal search of the accused, ₹ 450/- were recovered and a personal search memo Ex.PC was prepared at the spot, which was also attested by him and Ami Chand and was also signed by the accused. Later on, the accused was arrested vide arrest memo Ex.PD and the same was also signed/attested by the witness and accused. In cross-examination, this witness has stated that Investigating Officer did not ask the accused for availing his right to be searched before a Gazetted Officer or a Magistrate . This witness further stated that the place of recovery was near a cotton field and the entire writing work was done by the Investigating Officer at the spot till 9.30 PM. This witness further stated as the tablets were recovered in loose form and on the liquid bottles, Rexcof was written. The sample was drawn at 6.00 PM. Form No.29 was filled at the spot . This witness further stated that case property was kept by SHO Dalbir Singh in his possession . PW3 Inspector Dalbir Singh also stated on the lines of the allegations made in the FIR and stated that after apprehending the accused, the samples w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Public Prosecutor vide its statement dated 13.05.2013 gave up independent witness Ami Chand, on the basis of request made by the police Mark A and closed the prosecution evidence. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded in which he denied all the incriminating evidence against him and thereafter, the case was fixed for defence evidence. In the defence, the accused examine DW1 Ranjit Singh and DW2 Bhola Singh, who were Sarpanch and Panch of Village Makhewala as accused Buta Singh was also resident of the same village. They deposed that about three years ago, Buta Singh had given an application before SSP, Mansa against Sanjiv Kumar son of Megh Raj alleging that he was in the habit of selling intoxicants with the connivance of SHO, Jhunir. SHO Dalbir Singh had inquired that application by visiting Village Makhewala and SHO told the accused Buta Singh that this complaint is against him and threatened him. After five or six days, Buta Singh was arrested in a false case. In cross-examination, both these witness denied that they are deposing falsely. DW3 HC Gurtej Singh No.701/Mansa, PS Jhunir brought the summoned record i.e. DDR regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m a perusal of the FIR and the statement of two prosecution witnesses PW2 ASI Gurdip Singh as well as PW3 Inspector Dalbir Singh that at no point of time, any offer under Section 50 of the NDPS Act was made to the appellant-accused to be searched either before a Magistrate or a Gazetted Officer and in fact it is a case where it is clearly admitted by the prosecution witnesses that they have not made any such offer at any point of time either in writing or orally. Counsel for the appellant has further referred to the statement of these two witnesses where they have stated that the personal search of the appellant was also made vide recovery memo Ex.PB. Regarding the personal search of the appellant, in which ₹ 450/- were recovered, it is submitted that once the personal search of the appellant was made by the police party, in the investigation of a case under NDPS Act, mandatory provisions of Section 50 were totally ignored. Counsel for the appellant has relied upon wherein it has been held as under: - We are of the opinion that the concept of substantial compliance with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Standing Order No.1/89 dated 13.06.1989 issued by Govt. of India regarding drawing of sample, has been followed. Counsel for the appellant has relied upon where this Court has held as under: - There is substance in the argument of the learned counsel for the accused-appellants that as per Standing Order No. 1/89 dated 13th June, 1989, issued by Government of India, Ministry of Finance (Department of Revenue), it has been made mandatory that two samples must be drawn from the recovered substance, failing which, the whole recovery procedure will be vitiated. It has been further provided in the circular that the quantity to be drawn in each sample for chemical analysis should not be less than 5 gins, in case of poppy husk. Section II of Standing Order No. 1/89 reads as under:- Section II General Procedure for Sampling, Storage, etc. 2.1 Sampling and classification, etc. of drugs. All drugs shall be properly classified carefully weighed and sampled on the spot of seizure. 2.2 Drawal of samples. All the packages/containers shall be serialy numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9 Storage of samples-procedure.- The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope should may be sealed property. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the S. No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked secret-drug sample/Test memo , to be sent to the chemical laboratory concerned. 3.0 Despatch of samples for testing - To whom to be sent.- The seizing officers of the Central Governments Departments, viz., Customs, Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence, etc. should despatch samples of the seized drugs to one of the Laboratories of the Central Revenues Control La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the parcels in the malkhana, however, he only deposited the bulk parcel. Thus from 07.06.2010 till 16.06.2010 i.e. for a period of 09 days, he kept the sample parcels with him and has never deposited the same in the malkhana. It is also submitted by learned counsel for the appellant that it has come in the statement of this witness that at the time of sealing the sample, seal impression DS was handed over to independent witness Ami Chand and after 04 days, the same was returned to him i.e. for a period of about 06 days prior to sending the sample to FSL. Therefore, the seal was available with PW3 Inspector Dalbir Singh, hence, there is every possibility that the seal of the sample parcels was tampered by him. Counsel for the appellant has further submitted that an important link of the prosecution evidence is independent witness Ami Chand, before whom the alleged recovery was made and to whom the seal was handed over before sealing the bulk parcels as well as the sample seal, was never produced by the prosecution and was given up and therefore, once the appellant has taken a specific defence that PW3 has acted in a manner that he wanted to settle his personal score with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the appellant has submitted that it is in the evidence of the prosecution that there was no batch number or name of manufacturer with regard to 33 bottles of Rexcof and therefore the sample was not properly drawn with regard to said recovery. In support thereof, he has placed reliance upon wherein the Hon ble Supreme Court has held as under: - Then the other ingredient that has to be satisfied is whether the substance found in possession of the appellant was intended for his personal consumption and not for sale or distribution. No doubt as the Section lays down the burden is on the appellant to prove that the substance was intended for his personal consumption. As to the nature of burden of proof that has to be discharged depends upon the facts and circumstances of each case. Whether the substance was intended for personal consumption or not has to be examined in the context in which this exception is made. In the instant case the accused though in general has taken a plea of denial but his examination under Section 313 Cr. P.C. by the Magistrate reveals that there was such a plea namely that it was meant for his personal consumption. In the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NDPS Act apply in a case relating to recovery of a vehicle or a building and not a person. It is further submitted that the bulk parcel was duly deposited in the judicial malkhana in compliance of the order of the Judicial Magistrate and there is no allegation that seal of the sample parcels was tampered with. It is also submitted that it is not proved on record that the application Ex.DW4/A was given by the appellant against PW3 Inspector Dalbir Singh and there is no plausible defence put up by the appellant-accused. After hearing learned counsel for the parties, I find merit in the present appeal, for the following reasons: - (i) The trial Court has completely ignored the defence evidence led by the appellant and has failed to evaluate the prosecution evidence in the light of defence set up by the appellant. The appellant has set up a defence that a complaint was lodged with the SSP, Mansa that one Sanjiv Kumar, in collusion with SHO, Police Station, Jhunir, is involved in the selling of intoxicants. The appellant has proved on record the complaint Ex.DW4/A, the inquiry report conducted on the same by DSP as Ex.DW4/D and final report Ex.DW4/E. Both the defence witnesses DW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of which PW1 HC Gurdeep Singh is a formal witness, who has deposited the sample parcel to FSL. However, there is no explanation given by him that why the sample was not deposited on the same day, as this witness has stated that after obtaining the sample on 16.06.2010, he stayed in police station, Mansa on 16.06.2010 and deposited the same with FSL on 17.06.2010. (iv) Even the statement of Investigating Officer PW2 ASI Gurdip Singh do not inspire much confidence. This witness has also stated that the sample parcel and bulk parcel were sealed with seal impression DS and it was handed over to independent witness Ami Chand and with regard to compliance of Section 50 of NDPS Act, this witness clearly admitted that the Investigating Officer did not ask the accused to avail his right to be searched before Gazetted Officer or Magistrate. Therefore, from the statement of this witness also, it is proved that it is a case of complete non-compliance of Section 50 of NDPS Act. This witness has further admitted that the case property was kept by PW3 Inspector Dalbir Singh in his possession and has given no explanation that, despite the order of Judicial Magistrate Ex.PK, why the sealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 08.06.2010, also do not show that the Magistrate has seen Form No.29 along with case property. The order is reproduced as below: - Case property in cloth bag containing intoxicants tablets syrup bottles along with two sample parcel of syrup bottle intoxicant tablets produced in the Court in intact condition sealed with seal bearing impression DS . The same are seen and verified by the undersigned. Case property be deposited in judicial malkhana sample parcels be sent to the office of chemical examiner for chemical test. (xi) It has also come in the statement of both the prosecution witnesses i.e. PW1 and PW2 that it was not a case of chance recovery. As per the version given in the FIR, both these witnesses received a secret information on the basis of which, a ruqa (information) was sent to the police station for registration of FIR and therefore, noncompliance of Section 50 of NDPS Act is fatal to the prosecution version. (xii) The trial Court, while convicting the appellant, has wrongly held that the provisions of Section 50 of NDPS Act were complied with, as the Investigating Officer himself was the SHO of police station and it has come in the evidence tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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