CRA-S-2461-SB-2007 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

747

CRA-S-2461-SB-2007 (O&M)

Date of decision: 02.04.2025

Rajinder Singh

....Appellant

Versus

State of Haryana

....Respondent

CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR

Present:None for the appellant.

Mr. Harkesh Kumar, AAG, Haryana.

HARPREET SINGH BRAR J. (Oral)

1. The instant appeal is preferred against the judgment and

order of sentence dated 29.11.2007 passed by learned Sessions Judge,

Fatehabad in FIR No.244 dated 10.05.2006 registered at Police Station

Sadar, Fatehabad, under Section 15 of the Narcotic Drugs &

Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS

Act'), whereby the appellant was convicted and sentenced to undergo

rigorous imprisonment for a period of two years with a fine of

Rs.5,000/- and in default of payment of fine, to further undergo simple

imprisonment for a period of one month.

FACTUAL BACKGROUND

2. The facts of the prosecution case, tersely put, are that on

10.05.2006, a police party headed by PW-7 Ram Kumar, ASI was on

patrolling the area and was present at village Kukrawali. While crossing

the house of the appellant-accused, who was previously known to the

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police, the police party saw him sitting near two jute bags in his

courtyard. Seeing the police party, the appellant ran away. Ram Kumar,

ASI, with the help of other police officials, tried to apprehend him but

he succeeded in running away. Subsequently, Ram Kumar, ASI,

summoned the chowkidar of the village. On the basis of suspicion, the

abovementioned jute bags were checked. A total of 35 Kgs of Poppy

Husk was recovered- 20 kg from one bag and 15 kg from another.

Samples were taken and all the parcels were sealed with seal having

impression ‘RK’ and were taken in possession vide recovery memo

(Ex.P8). Thereafter, Ram Kumar, ASI sent a ruqa (Ex.P5) to the police

station for registration of FIR(supra).

3. The appellant-accused was arrested by Ram Kumar, ASI on

10.08.2006, when he was already confined in Central Jail, Bhiwani. He

was brought to Fatehabad and two days later, on 12.08.2006, he was

produced in the Court along with the case property. On completion of

investigation, the final report under Section 173 Cr.P.C. was prepared

and subsequently, charges were framed against the appellant for an

offence punishable under Section 15 of the NDPS Act. The appellant

pleaded not guilty and claimed trial.

4. In order to prove its case, prosecution examined as many as

seven witnesses. All the incriminating evidence was put to the appellant

and his statement under Section 313 Cr.P.C. were recorded, wherein he

pleaded false implication. However, the appellant did not lead any

evidence in his defence. After minutely scrutinizing all the material

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available on the record, the learned trial Court held the appellant guilty

and sentenced him as discussed above.

CONTENTIONS

5. Since there is no representation on behalf of the appellant,

the contentions are culled out from the paperbook. A perusal of the same

indicates that the impugned judgment has been assailed on the ground

that the appellant was not apprehended from the place of occurrence but

was produced 03 months after the alleged incident. There is nothing

available on the record that connects the appellant to the alleged

occurrence as no efforts were made by the police to conduct a test

identification parade. The appellant has solely been implicated because

the police claimed to know him. Further, the conscious possession of the

appellant over the gunny bags has not been proved. Merely because the

said jute bags were recovered from his courtyard, the appellant cannot

be said to be in their conscious possession. Moreover, no independent

witness was joined in the investigation and the entire prosecution case is

totally based upon the testimony of official witnesses. Furthermore,

there is no evidence, except for the statement of the chowkidar of the

village, that could prove that the said house from where the contraband

was recovered belongs to the present appellant. However, the

prosecution has failed to examine the said chowkidar. Lastly, ASI Ram

Kumar, acted as both the complainant as well as the investigating

officer, while he was required to hand over the investigation to a second

investigating officer to ensure fairness.

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6. On the other hand, learned State counsel argues that learned

trial Court has passed a well-reasoned judgment based on correct

appreciation of evidence available on record and as such, no

interference by this Court is warranted. Additionally, there is nothing on

record to suggest that the appellant may have been falsely implicated.

OBSERVATIONS AND ANALYSIS

7. Having heard learned State counsel and after thoroughly

perusing the record of the case, it transpires that 35 Kgs of Poppy Husk

was recovered from two jute bags lying in the courtyard of the

appellant. Allegedly, the appellant was seen sitting on the said jute bags

however, it is pertinent to note that on seeing the police, he ran away

from the spot, only to be formally arrested 03 months later.

8. The appellant was found to be lodged in Central Jail, Jind

and was only formally arrested on 10.08.2006 in the present case. In

spite of the fact that the appellant was not arrested from the spot along

with the contraband, no test identification parade was conducted to

ascertain his identity merely because PW-7 ASI Ram Kumar, expressed

his ability to identify the appellant as he knew him prior to the incident.

Section 54A of Cr.P.C. reads as follows:

54A. Identification of person arrested.--

Where a person is arrested on a charge of

committing an offence and his identification by any other

person or persons is considered necessary for the purpose

of investigation of such offence, the Court, having

jurisdiction may, on the request of the officer in charge of a

police station, direct the person so arrested to subject

himself to identification by any person or persons in such

manner as the Court may deem fit:

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Provided that, if the person identifying the person

arrested is mentally or physically disabled, such process of

identification shall take place under the supervision of a

Judicial Magistrate who shall take appropriate steps to

ensure that such person identifies the person arrested using

methods that person is comfortable with:

Provided further that if the person identifying the

person arrested is mentally or physically disabled, the

identification process shall be videographed.

9. While conducting test identification parade is not

mandatory, the identity of the appellant could have been conclusively

established on the statement of an official witness alone, as he is an

interested party. Allowing such an approach to continue unchecked

would amount to bestowing unbridled power upon the police to

implicate anyone, without needing to prove the same which would

further cause serious prejudice to an accused. Moreover, no witnesses

from the appellant’s neighborhood were examined in order to establish

the occurrence of the alleged event as well as the presence of the

appellant on the alleged spot at the time of recovery. As such, the

identity of the appellant is not conclusively proved.

10. A perusal of the Lower Court Record reflects that the

prosecution has failed to put forth any material on record that would

support the ownership of said house in the name of appellant. Neither

the chowkidar of the village nor any other witness has been produced

and examined by the prosecution before the learned trial court to even

attempt to establish the ownership. The appellant was seen fleeing from

the spot, as such, his mere presence is hardly sufficient to prove

conscious possession. The Hon’ble Supreme Court in State of Punjab

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vs. Balkar Singh and another, (2004) 3 SCC(Criminal) 582, speaking

through Justice K.G. Balakrishnan, observed as under:

"....the presence of the respondents at the place from where

the bags of Poppy Husk were recovered itself was taken as

possession of these bags by the police. In fairness, the

police should have conducted further investigation to prove

that these accused were really in possession of these

articles. The failure to give any satisfactory explanation by

the accused for being present on that place itself does not

prove that they were in possession of these articles. Though

the respondents raised a plea before the sessions Court, the

same was not considered by the Sessions Judge in the

manner in which it should have been considered. We do not

think that the High Court erred in holding that there was

no evidence to prove that the respondents were in

conscious possession of the Poppy Husk recovered by the

police. The prosecution failed to discharge its obligation to

prove the possession of the Poppy Husk by the respondent.

Reliance in this regard can also be placed on the judgments

rendered by the Hon'ble Supreme Court in Avtar Singh vs. State of

Punjab AIR 2002 Supreme Court 3343 and this Court in Sukhdev

Singh alias Sukha vs. State of Punjab , 2006(1) RCR (Criminal) 4

(P&H) and Bikkar Singh vs. State of Punjab, 2006(3) RCR (Criminal)

16 (P&H).

11. Curiously, even though it has been alleged that the

contraband was recovered from the courtyard of the house of appellant,

no mention of the presence of any of his family members has been made

in the FIR or in the final report. Further, as per the statement of PW6-

Tarsem Singh, Head Constable, there was no one at home during

recovery of said contraband. On the contrary, PW7- ASI Ram Kumar,

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had stated that appellant’s wife was present at home. Apart from this

there are several contradictions in the testimonies of the prosecution

witnesses, particularly PW6 and PW7, regarding the descriptions of

house and its location. The learned trial Court has erroneously ignored

these discrepancies which go to the root of case and raises serious doubt

on the version of prosecution.

12. Furthermore, a perusal of the impugned judgment indicates

that although an independent witness i.e. the chowkidar was joined in

the investigation, he was not examined during trial. The Hon'ble

Supreme Court in Krishan Chand Vs. State of H.P., AIR 2017 SC 3751

has laid down the ratio that the failure of the Investigating Officer to

associate an independent witness at the time of recovery creates a dent

in the case of the prosecution. The Hon'ble Supreme Court in Gorakh

Nath Prasad Vs. State of Bihar, 2018(1) R.C.R. (Criminal) 108 has

acquitted the accused while holding that the case of the prosecution

cannot be said to be proved when it is entirely based upon the

statements of the official witnesses.

13. Another glaring omission in the investigation of the case is

the non-compliance of Section 52-A of the NDPS Act. The safeguard

provided under Section 52-A of the NDPS Act is in furtherance of

Article 21 of the Constitution of India, which guarantees a fair and

impartial investigation. The representative sample were not drawn

before the Magistrate, which is required in the compliance of section

52-A of NDPS Act. Further still, as per the instructions issued vide

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Standing Order No. 1 of 1988 dated 15.03.1988 by the Narcotics

Control Bureau, 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. A perusal of Ex.P-11

Chemical Examiner’s report along with the statement of PW7- ASI Ram

Kumar indicates that the sample was drawn on 10.05.2006 and it was

sent to the Chemical Examiner on 14.05.2006 which was received in his

office on 15.05.2006. As such, there is a delay of 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. A

further scrutiny of the evidence reveals that after drawing the sample on

10.05.2006, it is not discernible who was the custodian of the same till

14.05.2006 and further deposited it on the next day i.e. 15.05.2007 in

the office of the Chemical Examiner. Neither the concerned MHC was

produced as a witness nor Register No. 19 was produced to establish the

deposit of the samples in safe custody which was necessary to be

produced to rule out the possibility of any tampering. Further Reliance

in this regard can be made on Narcotics Control Bureau vs. Ajmer

Kumar and another, 2016 ILR (HP) 1090 and Jitender Singh

Rathore vs. State of U.P. 2014 (4) RCR (Criminal) 462 wherein on

the basis of the above lapse, accused were acquitted.

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14. Even Form 29 was not filled at the spot which was required to

be verified by the Magistrate along with inventory and the

representative samples were also required to be drawn in the presence of

the concerned Magistrate as mandated under Section 52A of the Act.

The case of the appellant is fully covered by the ratio of law laid down

in Union of India vs. Bal Mukund and others, 2009(2) RCR

(Criminal) 574. As such, there is a clear non-compliance of Section 52A

of the Act as also the guidelines issued by a two Judge Bench of the

Hon’ble Supreme Court in Union of India vs. Mohan Lal, 2016 (1)

R.C.R. (Criminal) 858, speaking through Justice T.S. Thakur, which are

reproduced here as under:-

“20. To sum up we direct as under:

(1) No sooner the seizure of any Narcotic Drugs and

Psychotropic and controlled Substances and Conveyances

is effected, the same shall be forwarded to the officer in-

charge of the nearest police station or to the officer

empowered under Section 53 of the Act. The officer

concerned shall then approach the Magistrate with an

application under Section 52A(ii) of the Act, which shall be

allowed by the Magistrate as soon as may be required

under Sub-Section 3 of Section 52A, as discussed by us in

the body of this judgment under the heading 'seizure and

sampling'. The sampling shall be done under the

supervision of the magistrate as discussed in paras 13 and

14 of this order.”

15. It is a well settled proposition that the representative

samples must be drawn before the Magistrate as per the ratio laid down

in UOI vs. Mohan Lal (supra). Recently, a two Judge Bench of the

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Hon’ble Supreme Court in Mangilal vs. The State of M.P., 2023 SCC

OnLine SC 862, speaking through Justice M. M. Sundresh, while

acquitting the accused, has observed that the mandate of Section 52-A

of the Act has to be duly complied with. The following was observed:

“8. Before any proposed disposal/destruction mandate of

Section 52A of the NPDS Act requires to be duly complied

with starting with an application to that effect. A Court

should be satisfied with such compliance while deciding

the case. The onus is entirely on the prosecution in a given

case to satisfy the Court when such an issue arises for

consideration. Production and other connected matter of

seized material is a factor to establish seizure followed by

recovery. One has to remember that the provisions of the

NDPS Act are both stringent and rigorous and therefore

the burden heavily lies on the prosecution. Non-production

of a physical evidence would lead to a negative inference

within the meaning of Section 114(g) of the Indian

Evidence Act, 1872 (hereinafter referred to as the Evidence

Act). The procedure contemplated through the notification

has an element of fair play such as the deposit of the seal,

numbering the containers in seriatim wise and keeping

them in lots preceded by compliance of the procedure for

drawing samples.”

16. Admittedly, Section 52-A of the Act was inserted by Act 2

of 1989 which came into force w.e.f. 29.05.1989. Section 52-A (2) (c) of

the Act provides for drawing a representative sample of the seized

contraband in the presence of a Magistrate. On the other hand, para 1.5

of the Standing Order No. 1 of 1988 requires that the samples of the

seized contraband must be drawn on the spot of recovery in duplicate.

Similar provision is provided in Standing Order No.1 of 1989 dated

13.06.1989. As such, the Standing Orders cannot supersede the

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implication of Section 52-A of the Act. Further, the law is well settled

that whenever there is a conflict between the Act and the instructions

relating to the same subject matter, the Act would prevail but where the

instructions supplement the Act, the former would have a binding force.

17. The sanctity of the statutory instructions contained in the

Standing Orders issued by the Narcotics Control Bureau came up for

consideration before the Hon’ble Supreme Court in Noor Aga vs. State

of Punjab, 2008 (16) SCC 417, where a two Judge Bench, speaking

through Justice S.B. Sinha, held as under:-

“32. Recently, this Court in State of Kerala & Ors. v.

Kurian Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582],

following the earlier decision of this Court in Union of

India v. Azadi Bachao Andolan [(2004) 10 SCC 1] held

that statutory instructions are mandatory in nature.

Logical corollary of these discussions is that the

guidelines such as those present in the Standing Order

cannot be blatantly flouted and substantial compliance

therewith must be insisted upon for so that sanctity of

physical evidence in such cases remains intact. Clearly,

there has been no substantial compliance of these

guidelines by the investigating authority which leads to

drawing of an adverse inference against them to the effect

that had such evidence been produced, the same would

have gone against the prosecution.”

A comparison of the Standing Order No.1 of 1988 with

Section 52-A (2) (c) of the Act shows that there 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. Therefore, in the light of Act 2 of 1989, inserting

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Section 52-A in the Act as well as the ratio of law laid down in UOI vs.

Mohan Lal (supra), 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. As far as

the mode and time limit for dispatch of samples is concerned, para 1.13

of the Standing Order No. 1 of 1988 provides that samples must be

dispatched to the laboratory within 72 hours of seizure to avoid any

legal objection and this time limit.

18. In view of the ratio of law laid down by the Hon’ble

Supreme Court in Noor Aga (supra), Bal Mukund (supra) and

Mangilal (supra), the Investigating Officers are bound to follow the

procedural safeguards provided under Standing Order No. 1 of 1988 and

Standing Order No. 1 of 1989 as these are in addition to the procedural

safeguards provided under the Act and the same further strengthen the

procedural protection keeping in view the stringent punishment

provided under the Act. These Standing Orders are mandatorily required

to be adhered to as long as they do not override the provisions of the

NDPS Act. Some of the relevant provisions of the Standing Order No.

1/88 are as follows:

“1. Quantity of different drugs required in the sample –

The quantity to be drawn in each sample for chemical test

should be 5 grams in respect of all narcotic drugs and

psychotropic substances except in the cases of Opium

Ganga and Charas/ Hashsish were a quantity of 24 grams

in each case is required for chemical test. The same

quantities should be taken for the duplicate sample also.

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2. The seized drugs in the packages/containers should be

well mixed to make it homogeneous and representative

before the sample in duplicate is drawn.

3. When more than one sample is drawn, each sample

should also be serially numbered and marked as S-1, S-2,

S-3 and so on, both original and duplicate sample. It

should carry the serial number of the packages and marked

as P1, 2, 3, 4 and so son.

4. It needs no emphasis that all samples must be drawn

and sealed in presence of the accused, Panchnama

witnesses and seizing officer and all of them shall be

required to put their signature on each sample.

5. Samples must be dispatched to the Laboratory within 72

hours of seizure to avoid any legal objection.”

The above omission on the part of the investigating officer

with regard to total non-compliance of section 52-A of NDPS Act, 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.

19. Moreover, the entire investigation in the present case was

conducted by PW7- ASI Ram Kumar, who was also the complainant in

the present case. In fact, he alone is the reason for the implication of the

appellant as he identified him based on previous knowledge. The

Hon'ble Supreme Court in State by Inspector of Police, Narcotic

Intelligence Bureau, Madurai, Tamil Nadu Vs. Ranjangam (2010) 15

SCC 369, has opined that since the arrest and search is made by the

complainant, he should not involve himself with the investigation of the

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case. Such an officer leading the investigation would forthrightly raise

questions as to the fairness and impartiality of the said investigation

process. Similarly, the Hon’ble Supreme Court in Megha Singh vs.

State of Haryana 1996(11) SCC 709, opined that the complainant who

had intercepted the accused, recovered the arms and registered the case

should have recused himself from the investigation as it raises doubts

regarding the impartial nature of the investigation.

20. The Hon’ble Supreme Court in State of Gujarat v. Hon'ble

Mr. Justice R.A. Mehta (Retd) 2013(3) SCC 1 observed that the

doctrine of bias is a leg of principles of natural justice and stems from

the legal maxim nemo debet esse judex in sua propria causa - one shall

not be the judge in his own case. If the circumstances are such that it

would create a reasonable apprehension of bias in the minds of the

onlookers, it is sufficient to invoke the doctrine of bias. The test for

likelihood of bias and reasonable apprehension of bias are

interchangeable and hence, the parameters for both can be construed to

be similar.

21. A three Judge bench of the Hon’ble Supreme Court of India

in Mohan Lal v. State of Punjab AIR 2018 SC 3853, speaking through

Justice Navin Sinha, made the following observations in this regard:-

“25. In view of the conflicting opinions expressed by

different two Judge Benches of this Court, the importance

of a fair investigation from the point of view of an accused

as a guaranteed constitutional right under Article 21 of the

Constitution of India, it is considered necessary that the

law in this regard be laid down with certainty. To leave the

matter for being determined on the individual facts of a

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case, may not only lead to a possible abuse of powers, but

more importantly will leave the police, the accused, the

lawyer and the courts in a state of uncertainty and

confusion which has to be avoided. It is therefore held that

a fair investigation, which is but the very foundation of fair

trial, necessarily postulates that the informant and the

investigator must not be the same person. Justice must not

only be done, but must appear to be done also. Any

possibility of bias or a predetermined conclusion has to be

excluded. This requirement is all the more imperative in

laws carrying a reverse burden of proof.”

22. A three Judge bench of the Hon’ble Supreme Court in

Varinder Kumar vs. State of Himachal Pradesh 2020(3) SCC 321,

speaking through Justice Navin Sinha, has further clarified the

applicability of the ratio of law laid down in Mohan Lal (supra) in

cases pending before the decision in this case and observed as follows:

“18. The criminal justice delivery system, cannot be

allowed to veer exclusively to the benefit of the offender

making it unidirectional exercise. A proper administration

of the criminal justice delivery system, therefore requires

balancing the rights of the accused and the prosecution, so

that the law laid down in Mohan Lal (supra) is not allowed

to become a spring board for acquittal in prosecutions

prior to the same, irrespective of all other considerations.

We therefore hold that all pending criminal prosecutions,

trials and appeals prior to the law laid down in Mohan Lal

(supra) shall continue to be governed by the individual

facts of the case.”

CONCLUSION

23. In view of the above discussion, this Court is of the

considered opinion that the prosecution has failed to prove its case

beyond reasonable doubt. Accordingly, the present appeal is allowed

and the judgment of conviction and order of sentence dated 29.11.2007

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passed by learned Sessions Judge, Fatehabad are hereby set aside. The

appellant, namely Rajinder Singh is acquitted of the charges framed

against him. His bail bonds and surety bonds stand discharged.

24. All the pending miscellaneous application(s), if any, shall

also stand disposed of.

25. The case property, if any, may be dealt with as per rules,

after the expiry of period of limitation for filing the appeal(s). Record of

the case be sent back to the Court below.

(HARPREET SINGH BRAR)

JUDGE

02.04.2025

yakub

Whether speaking/reasoned: Yes/No

Whether reportable: Yes/No