Punjab & Haryana High Court Acquits Three Men In 2007 NDPS Case, Over 9 Years After Conviction
The Punjab & Haryana High has acquitted three persons in a case under the Narcotic Drugs & Psychotropic Substances Act, observing that there were gaping holes and inadequacies in prosecution evidence.In the case registered in August 2007, the three accused were convicted and sentenced to 10 years imprisonment by the trial court in February 2014.“The foundation of justice...
The Punjab & Haryana High has acquitted three persons in a case under the Narcotic Drugs & Psychotropic Substances Act, observing that there were gaping holes and inadequacies in prosecution evidence.
In the case registered in August 2007, the three accused were convicted and sentenced to 10 years imprisonment by the trial court in February 2014.
“The foundation of justice dispensation rests upon the public faith and trust. Every accused is entitled to the procedural safeguards and the investigating agencies cannot deviate therefrom. Hence, the fundamental right to a fair trial, as envisaged under Article 21 of the Constitution, becomes all the more essential to dispensation of justice. An investigating officer, in this context, becomes the linchpin of the criminal justice delivery system. Articles 14, 21 and 39-A of the Constitution cast an obligation on him to follow the procedural safeguards in ensuring fair investigation,” said the bench of Justice Harpreet Singh Brar.
Noting that the samples were drawn and other formalities were done at the spot, the court said, “However, there is no explanation by any of the witnesses as to how the FIR number came to be reflected on those memos when admittedly the same was lodged later in time. The above aspect raises a serious suspicion over the investigation conducted by the investigating officer.”
In the absence of any reasonable explanation by the prosecution with regard to reflecting the complete details of the FIR on the consent memos as well as on the recovery memo which, according to the case of the prosecution, was prepared at the first instance before registration of the FIR, the case of the prosecution has become highly doubtful, it added.
According to the prosecution, the police in 2017 received secret information that Sukhwinder Singh alias Billa, Arjun Singh alias Marra and Manohar Lal were indulging in the sale of poppy husk and other intoxicants.
This information was passed on to Ajaib Singh DSP, Qadian on his mobile phone by the investigating officer and he was requested to reach the spot. Thereafter, the investigating officer allegedly raided the disclosed place and found three persons sitting on six bags. On seeing the police party, they tried to run away but were nabbed with the help of police officials.
It was submitted that on asking of DSP, Qadian, the investigating officer opened the six bags from which poppy husk was recovered. Out of the alleged recovered bags, five were weighed as 24 3/4 kg each and one bag weighed as 193/4 kg. In total 145 kg of poppy husk was recovered.
The counsel appearing for the appellants pointed out certain discrepancies like, as per prosecution DSP Ajaib Singh was called at the spot at 3.00 p.m. but he, while deposing, stated that he received a phone call at 4.15 p.m. and reached the spot 20 minutes thereafter; consent memo contained the number of the FIR which means that the same was registered while sitting in the police station.
"In his cross examination the said witness had stated that he received the information at 4.15 p.m. and reached the spot 20 minutes thereafter and remained there for 3 1/2 hours and the alleged contraband was recovered by SI Makhan Singh on searching the gunny bags, whereas a perusal of the FIR (Ex.PW3/E) indicates the recovery having taken place at 4.15 p.m. and the information was received at the police station at 4.35 p.m. vide general diary entry No. 23. This glaring discrepancy lends credence to the argument of learned counsel for the appellants that the procedural safeguards under the Act were not followed," the court said.
The court said the Officer was never called at the spot and all the paperwork had been done while sitting in the police station. It added that another glaring omission in the investigation of the case was the non-compliance of Section 52-A of the Act.
Perusing the Chemical Examiner’s report along with the statement of HC Sukhdev Singh, the court noted that it indicates that the sample was drawn on August 18, 2007 and it was sent to the Chemical Examiner on August 23, 2007 which was received in his office the next day.
“As such, there is a delay of more than five days in sending the samples to the Chemical Examiner. As per the prescribed procedure, representative sample of any contraband after seizure and deposit in the Malkhana or with the concerned SHO is required to be sent to Chemical Examiner within 72 hours as per instructions issued vide Standing Order No. 1 of 1988 dated 15.03.1988 by the Narcotics Control Bureau,” added the court.
While further scrutinizing of the evidences, the Court raised the concern that after drawing the sample on August 18, 2007, “it is not discernible who was the custodian of the same till August 23, 2007 when HC Sukhdev Singh received the same and further deposited it on the next day i.e. on August 24 in the office of the Chemical Examiner.”
The court noted that even “Form 29” was not filled at the spot which was required to be verified by the Magistrate along with inventory. The representative samples were also required to be drawn in the presence of the concerned Magistrate as mandated under Section 52-A of the Act, it added.
On comparing the Standing Order No.1 of 1988 with Section 52- A (2) (c) of the Act, the Court said, “it shows that there is a divergence with regard to drawing of the representative samples. Standing Order No.1 of 1988 provides for drawing of sample at the spot, whereas Section 52-A of the Act provides for drawing of sample in the presence of a Magistrate.”
The court observed that, “therefore, in the light of Act 2 of 1989, inserting Section 52-A in the Act as well as the ratio of law laid down in UOI vs. Mohan Lal , it is clear that as far as the manner in which representative samples are required to be drawn, the investigating agency is bound to follow the drill of Section 52-A of the Act.”
“The above omission on the part of the investigating officer with regard to total non-compliance of the instructions issued vide Standing Order No.1 of 1988 coupled with the delay and non-filling of Form 29 at the spot would tantamount to a serious flaw in the investigation and it suffocates the prosecution case completely,” said the court
Justice Brar also pointed out that in the present case “the investigating officer, SI Makhan Singh is also the complainant of the case.” The court said that he should have refrained himself from investigating the case as this would negate the concept of fair and impartial investigation which is the bedrock of the principle of fairness of official action in terms of Article 21 of the Constitution of India.
The court referred to Apex Court’s judgment in State by Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu v. Ranjangam 2010(15) SCC 369, wherein it was held that, “since the arrest and search is made by the complainant, he should not involve himself with the investigation of the case. Such an officer leading the investigation would forthrightly raise questions as to the fairness and impartiality of the said investigation process.”
While setting aside the judgment passed by the trial court, the bench said: "The link evidence is completely missing. The prosecution has miserably failed to knit together the circumstances which point towards the hypothesis of complicity of the appellants beyond a reasonable shadow of doubt."
Case Title: Arjun Singh @ Marra and another v. State of Punjab
Citation: 2023 LiveLaw (PH) 136
Appearance: A.P.S.Sandhu, Advocate For the appellants (in CRA-S-1830-SB-2014)
G.K.Mann, Senior Advocate with Anmol Jeevan Singh Gill, Advocate for the appellant (in CRA-S-987-SB-2014).
Iqbal Singh Maan, DAG, Punjab.