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TMI Blog2017 (5) TMI 1646X X X X Extracts X X X X X X X X Extracts X X X X ..... ce dated 20.07.2004, passed by the learned trial Court, is set aside and the appellants are acquitted of the charge framed against them - appeal allowed. - CRA-S-1688-SB-2004 - - - Dated:- 26-5-2017 - Jitendra Chauhan, J. Ms. Mannat Anand, Advocate/amicus curiae, for the appellants. Mr. Mehardeep Singh, Addl.A.G., Punjab. JUDGMENT Jitendra Chauhan, The present appeal has been preferred by the appellants challenging the judgment and order dated 20.07.2004, passed by the learned Judge, Special Court, Patiala (hereinafter referred to as the trial Court), whereby, they have been convicted for the commission of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, (for short, 'the Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ₹ 1,00,000/- each along with default clause. The brief facts of the present case as narrated in the opening paragraph of the impugned judgment, are reproduced as under:- Both the accused face trial for offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter called the Act) on the allega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used were produced before Illaqa Magistrate. Vide report of the Chemical Examiner Ex.PJ the sample was found to be that of churra poppy heads and after completion of investigation, the challan against the accused was presented in court. The learned trial Court, after finding prima facie case against the accused, charged them for commission of offence punishable under sections 15, of the ndps act, to which they pleaded not guilty and claimed trial. In order to substantiate its case against the accused, the prosecution examined SI Jai Kishan as PW-1; ASI Bhinder Singh as PW-2; ASI Baldev Singh as PW-3; SI Balkar Singh as PW-4; Constable Sunil Kumar as PW-5 and ASI Raunak Singh as PW-6. During their examination under Section 313 Cr.P.C., the accused-appellants denied the prosecution allegations and pleaded false implication. However, they did not lead any evidence in defence. After hearing learned counsel for both the parties and considering evidence led on record, learned trial Court, convicted the appellants as detailed at the outset of this judgment. Hence, the present appeal, which was admitted by this Court on 30.08.2004. It is contended that the prosecution has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights but insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values, it is necessary for giving effect to the concept of wider civilization. It is further observed that while deciding such cases, the Courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. Therefore, a higher degree of assurance would be necessary to convict an accused under the Narcotic Drugs and Psychotropic Substances Act. 21. Thus, under the Narcotic Drugs and Psychotropic Substances Act, it is the fundamental duty of the prosecution to prove beyond a shadow of reasonable doubt that the investigation conducted in the case is absolutely flawless specifically with regard to the link evidence which is of most significant aspect. It is incumbent upon the prosecution to prove that from the stage of effecting the recovery till the same reach the Chemical Examiner, there was no chance of tampering with it. Once the presumption is stumbling, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure and in this regard it is hard to believe that the whole of the contents of the bags were poppy husk. In Shashi Atwal and another Vs. State of Punjab, 2011(2) R.C.R. (Criminal) 660, this Court observed as under:- 15. Though, all the witnesses have stated that one sample from each gunny bag was taken out and then all the gunny bags were sealed with the seal bearing impression 'BS'. It has also come in the evidence of the witnesses that the contents of the gunny bags were not turned in order to know the whole of the contents therein. It would be significant to mention here that the Investigating Officer was supposed to know about about whole of the contents of the bag before bringing the accused into net. As such, this circumstance also seriously affects the prosecution case. 16. As regards tampering of the case property, he was to turn down all the contents of the bags on a piece of paper or cloth, but in the instant case, the Investigating Officer appears to have not examined the contents of the bags; he took it casually and in an anxiety to involve the accused, sealed the bags without knowing the whole contents thereof. Thus, in the absence of any evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub- section (2), the Magistrate shall as soon as may be allow the application. (4) Notwithstanding anything anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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