State of Punjab v. Mr. Rajat Dogra

Thereafter ruqa was sent to the police station, on the basis of which, FIR Thereafter ruqa was sent to the police station, on the basis of which, FIR Thereafter ruqa was sent to the police station, on the basis of which, FIR Thereafter ruqa was sent to the police station, on the basis of which, FIR Ex.PF/1 was recorded. The rough site plan Ex.PE was prepared. The Ex.PF/1 was recorded. The rough site plan Ex.PE was prepared. The Ex.PF/1 was recorded. The rough site plan Ex.PE was prepared. The Ex.PF/1 was recorded. The rough site plan Ex.PE was prepared. The of arrest were disclosed to the accused vide Ex.PD. On grounds of arrest were disclosed to the accused vide Ex.PD. On of arrest were disclosed to the accused vide Ex.PD. On grounds

19.05.2002, SI Gurbans Singh produced the sample and the case property 19.05.2002, SI Gurbans Singh produced the sample and the case property 19.05.2002, SI Gurbans Singh produced the sample and the case property 19.05.2002, SI Gurbans Singh produced the sample and the case property 2 CRA-S-110-SB- -2004 (O&M) alongwith accused before the Area Magistrate who put his initials on the alongwith accused before the Area Magistrate who put his initials on the alongwith accused before the Area Magistrate who put his initials on the alongwith accused before the Area Magistrate who put his initials on the dy by SI sample and the case property was again kept in safe custody by SI sample and the case property was again kept in safe custo sample and the case property was again kept in safe custo Gurbans Singh. The case property was deposited in the Malkhana while Gurbans Singh. The case property was deposited in the Malkhana while Gurbans Singh. The case property was deposited in the Malkhana while Gurbans Singh. The case property was deposited in the Malkhana while On the samples were retained by SI Gurbans Singh in double lock. On the samples were retained by SI Gurbans Singh in double lock. the samples were retained by SI Gurbans Singh in double lock.

23.05.2002, the sample parcels were sent to the office of Chemical 23.05.2002, the sample parcels were sent to the office of Chemical 23.05.2002, the sample parcels were sent to the office of Chemical 23.05.2002, the sample parcels were sent to the office of Chemical l through Constable Examiner Jalandhar alongwith the specimen seal through Constable Examiner Jalandhar alongwith the specimen sea Examiner Jalandhar alongwith the specimen sea Satnam Singh. On receipt of the report Ex.PX which confirmed the Satnam Singh. On receipt of the report Ex.PX which confirmed the Satnam Singh. On receipt of the report Ex.PX which confirmed the Satnam Singh. On receipt of the report Ex.PX which confirmed the recovered substance to be poppy husk and the completion of the recovered substance to be poppy husk and the completion of the recovered substance to be poppy husk and the completion of the recovered substance to be poppy husk and the completion of the investigation, challan was presented against the appellant. investigation, challan was presented against the appellant. investigation, challan was presented against the appellant.

#3. Vide order date 30.07.2002, the Court of learned Special Judge, Amritsar Vide order date 30.07.2002, the Court of learned Special Judge, Amritsar Vide order date 30.07.2002, the Court of learned ordered framing of charge under Section ordered framing of of the NDPS Act against the 15 of the NDPS Act against the appellant to which he pleaded not guilty and claimed trial. appellant to which he pleaded not guilty and claimed trial. appellant to which he pleaded not guilty and claimed trial.

#4. In support of its case, the prosecution examined three witnesses. PW 1 SI In support of its case, the prosecution examined three witnesses. PW-1 SI In support of its case, the prosecution examined three witnesses. PW Gurbans Singh, the Investigating Officer, Gurbans Singh, the Investi 2 Constable Satnam Singh gating Officer, PW-2 Constable Satnam Singh and PW-3 DSP Major Singh Thereafter, the learned Additional Public 3 DSP Major Singh Thereafter, the learned Additional Public Thereafter, the learned Additional Public Prosecutor tendered in evidence the report of the Chemical Examiner, Prosecutor tendered in evidence the report of the Chemical Examiner, Prosecutor tendered in evidence the report of the Chemical Examiner, Prosecutor tendered in evidence the report of the Chemical Examiner, Ex.PX, and closed the prosecution evidence. Ex.PX, and closed the prosecution evidence. Ex.PX, and closed the prosecution evidence.

#5. After the prosecution evidence was closed, the statement of the appellant After the prosecution evidence was closed, the statement of the appellant After the prosecution evidence was closed, the statement of the appellant After the prosecution evidence was closed, the statement of the appellant the Code of Criminal Procedure was recorded, in under Section 313 of the Code of Criminal Procedure was recorded, in the Code of Criminal Procedure was recorded, in under Section 313 of which the incriminating circumstances appearing against him were put to which the incriminating circumstances appearing against him were put to which the incriminating circumstances appearing against him were put to which the incriminating circumstances appearing against him were put to him. He denied the prosecution version in its entirety, pleaded that him. He denied the prosecution version in its entirety, pleaded that him. He denied the prosecution version in its entirety, pleaded that him. He denied the prosecution version in its entirety, pleaded that alsely nothing had been recovered from him, and stated that he had been falsely nothing had been recovered from him, and stated that he had been f nothing had been recovered from him, and stated that he had been f implicated. implicated. 3 CRA-S-110-SB- -2004 (O&M)

#6. In his defence, the appellant examined two witnesses. DW 1 Manjit In his defence, the appellant examined two witnesses. DW-1 Manjit In his defence, the appellant examined two witnesses. DW Singh, Sub Post Master, Patti and DW- Singh, Sub Post Ma 2 Gurtej Singh, the appellant's -2 Gurtej Singh, the appellant's father and d closed the evidence.

#7. The learned trial Court, after appreciating and evaluating the evidence The learned trial Court, after appreciating and evaluating the evidence The learned trial Court, after appreciating and evaluating the evidence The learned trial Court, after appreciating and evaluating the evidence available on record, held the appellant guilty and convicted him under available on record, held the appellant guilty and convicted him under available on record, held the appellant guilty and convicted him under available on record, held the appellant guilty and convicted him under Section 15 of NDPS Act. Section 15 of NDPS Act

#8. Learned counsel for the appellant submitted that he had been falsely Learned counsel for the appellant submitted that he had been falsely Learned counsel for the appellant submitted that he had been falsely Learned counsel for the appellant submitted that he had been falsely implicated in the present case. He contended that the mandatory implicated in the present case. He contended that the mandatory implicated in the present case. He contended that the mandatory implicated in the present case. He contended that the mandatory A of the NDPS Act had not been complied with, provisions of Section 52-A of the NDPS Act had not been complied with, A of the NDPS Act had not been complied with, provisions of Section 52 les were prepared and as neither the inventory nor the representative samples were prepared and as neither the inventory nor the representative samp as neither the inventory nor the representative samp certified in the presence of the learned Magistrate. He further submitted certified in the presence of the learned Magistrate. He further submitted certified in the presence of the learned Magistrate. He further submitted certified in the presence of the learned Magistrate. He further submitted that the samples were sent to the Chemical Examiner after an that the samples were sent to the Chemical Examiner after an that the samples were sent to the Chemical Examiner after an that the samples were sent to the Chemical Examiner after an unexplained delay of five days, while the case property and the seals unexplained delay of five days, while the case property and the seals unexplained delay of five days, while the case property and the seals unexplained delay of five days, while the case property and the seals e police officials, thereby rendering the link remained in the custody of the police officials, thereby rendering the link e police officials, thereby rendering the link remained in the custody of th evidence doubtful. It was further argued that the prosecution before the evidence doubtful. It was further argued that the prosecution evidence doubtful. It was further argued that the prosecution trial Court had withheld the only independent witness, namely Sukhdev trial Court had withheld the only independent witness, namely Sukhdev trial Court had withheld the only independent witness, namely Sukhdev trial Court had withheld the only independent witness, namely Sukhdev Raj, without any plausible explanation, warranting an adverse inference Raj, without any plausible explanation, warranting an adverse infe Raj, without any plausible explanation, warranting an adverse infe against the prosecution. Learned counsel also submitted that the appellant against the prosecution. Learned counsel also submitted that the appellant against the prosecution. Learned counsel also submitted that the appellant against the prosecution. Learned counsel also submitted that the appellant had in fact been illegally detained by the police several days prior to the had in fact been illegally detained by the police several days prior to the had in fact been illegally detained by the police several days prior to the had in fact been illegally detained by the police several days prior to the registration of the FIR, which was corroborated by the telegrams sent by registration of the FIR, which was corroborated by the telegrams sent by registration of the FIR, which was corroborated by the telegrams sent by registration of the FIR, which was corroborated by the telegrams sent by ore the FIR was recorded, thereby probabilising the appellant's father before the FIR was recorded, thereby probabilising ore the FIR was recorded, thereby probabilising the appellant's father bef the defence version of false implication. It was lastly contended that the the defence version of false implication. It was lastly contended that the the defence version of false implication. It was lastly contended that the the defence version of false implication. It was lastly contended that the mandatory safeguards envisaged under Section 50 of the NDPS Act had mandatory safeguards envisaged under Section 50 of the NDPS Act had mandatory safeguards envisaged under Section 50 of the NDPS Act had mandatory safeguards envisaged under Section 50 of the NDPS Act had firmities also not been duly complied with and, in view of these serious infirmities also not been duly complied with and, in view of these serious in also not been duly complied with and, in view of these serious in in the prosecution case, the appellant was entitled to acquittal. in the prosecution case, the appellant was entitled to acquittal. in the prosecution case, the appellant was entitled to acquittal. 4 CRA-S-110-SB- -2004 (O&M)

#9. Learned State counsel, per contra, supports the impugned judgment and Learned State counsel, per contra, supports the impugned judgment and Learned State counsel, per contra, supports the impugned judgment and Learned State counsel, per contra, supports the impugned judgment and submits that the recovery stands fully proved by the consistent submits that the recovery stands fully proved by the consistent submits that the recovery stands fully proved by the consistent submits that the recovery stands fully proved by the consistent testimonies ies of PW-1 and PW-3, that the chain o 3, that the chain of custody of contraband is intact, and that the defence of false implication is an afterthought intact, and that the defence of false implication is an afterthought intact, and that the defence of false implication is an afterthought intact, and that the defence of false implication is an afterthought unsupported by any independent corroboration. unsupported by any independent corroboration. unsupported by any independent corroboration.

#10. I have heard learned counsels appearing for both sides at considerable I have heard learned counsels appearing for both sides at considerable I have heard learned counsels appearing for both sides at considerable I have heard learned counsels appearing for both sides at considerable length and with their able assistance carefully gone through the entire length and with their able assistance carefully gone through the entire length and with their able assistance carefully gone through the entire length and with their able assistance carefully gone through the entire evidence available on record, the impugned judgment, the documentary evidence available on record, the impugned judgment, the documentary evidence available on record, the impugned judgment, the documentary evidence available on record, the impugned judgment, the documentary evidence, the depositions of the witnesses as well as the relevant record. evidence, the depositions of the witnesses a evidence, the depositions of the witnesses a

#11. Upon consideration of the rival submissions, the following questions Upon consideration of the rival submissions, the following questions Upon consideration of the rival submissions, the following questions Upon consideration of the rival submissions, the following questions arise for determination: arise for determination: (i) Whether the prosecution has succeeded in proving the recovery of 80 (i) Whether the prosecution has succeeded in proving the recovery of 80 (i) Whether the prosecution has succeeded in proving the recovery of 80 (i) Whether the prosecution has succeeded in proving the recovery of 80 the appellant kilograms of poppy husk from the conscious possession of the appellant kilograms of poppy husk from the conscious possession of kilograms of poppy husk from the conscious possession of beyond reasonable doubt? beyond reasonable doubt? (ii) Whether there has been any violation of the mandatory provisions of (ii) Whether there has been any violation of the mandatory provisions of (ii) Whether there has been any violation of the mandatory provisions of (ii) Whether there has been any violation of the mandatory provisions of A of the NDPS Act so as to vitiate the prosecution Sections 50 and 52-A of the NDPS Act so as to vitiate the prosecution A of the NDPS Act so as to vitiate the prosecution Sections 50 and 52 case? els to (iii) Whether the delay of five days in dispatching the sample parcels to (iii) Whether the delay of five days in dispatching the sample parc (iii) Whether the delay of five days in dispatching the sample parc the office of the Chemical Examiner has affected the sanctity of the the office of the Chemical Examiner has affected the sanctity of the the office of the Chemical Examiner has affected the sanctity of the the office of the Chemical Examiner has affected the sanctity of the chain of custody? chain of custody? examination of the independent witness and the (iv) Whether the non-examination of the independent witness and the examination of the independent witness and the (iv) Whether the non defence evidence regarding alleged illegal detention probabilise the plea defence evidence regarding alleged illegal detention probabilise the plea defence evidence regarding alleged illegal detention probabilise the plea defence evidence regarding alleged illegal detention probabilise the plea of false implication? of false implication 5 CRA-S-110-SB- -2004 (O&M)

#12. The prosecution principally rests upon the testimonies of PW 1 SI The prosecution principally rests upon the testimonies of PW-1 SI The prosecution principally rests upon the testimonies of PW 3 DSP Major Singh, Gurbans Singh, the Investigating Officer, and PW-3 DSP Major Singh, Gurbans Singh, the Investigating Officer, and PW Gurbans Singh, the Investigating Officer, and PW the Gazetted Officer before whom the search and seizure were conducted. the Gazetted Officer before whom the search and seizure were conducted. the Gazetted Officer before whom the search and seizure were conducted. the Gazetted Officer before whom the search and seizure were conducted. e based upon the testimony It is well settled that conviction can safely be based upon the testimony It is well settled that conviction can safely b It is well settled that conviction can safely b of official witnesses if their evidence is trustworthy and inspires of official witnesses if their evidence is trustworthy and inspires of official witnesses if their evidence is trustworthy and inspires of official witnesses if their evidence is trustworthy and inspires confidence. Merely because the witnesses happen to be police officials is confidence. Merely because the witnesses happen to be police officials is confidence. Merely because the witnesses happen to be police officials is confidence. Merely because the witnesses happen to be police officials is no ground to discard their testimony. There is neither any allegation nor no ground to discard their testimony. There is neither any allegation nor no ground to discard their testimony. There is neither any allegation nor no ground to discard their testimony. There is neither any allegation nor on record suggesting previous enmity or motive on the part any material on record suggesting previous enmity or motive on the part on record suggesting previous enmity or motive on the part any material of PW-1 or PW 3 to falsely implicate the appellant in such a serious 1 or PW-3 to falsely implicate the appellant in such a serious 3 to falsely implicate the appellant in such a serious offence. Their depositions are consistent with each other on all material offence. Their depositions are consistent with each other on all material offence. Their depositions are consistent with each other on all material offence. Their depositions are consistent with each other on all material umentary evidence particulars and receive due corroboration from the documentary evidence particulars and receive due corroboration from the doc particulars and receive due corroboration from the doc prepared contemporaneously during investigation. prepared contemporaneously during investigation. prepared contemporaneously during investigation.

#13. The prosecution evidence establishes that the appellant was found sitting The prosecution evidence establishes that the appellant was found sitting The prosecution evidence establishes that the appellant was found sitting The prosecution evidence establishes that the appellant was found sitting upon four bags lying in the river bed. On noticing the police party he upon four bags lying in the river bed. On noticing the police party he upon four bags lying in the river bed. On noticing the police party he upon four bags lying in the river bed. On noticing the police party he on. The recovery of four bags attempted to flee, thereby arousing suspicion. The recovery of four bags attempted to flee, thereby arousing suspici attempted to flee, thereby arousing suspici containing 20 kilograms of poppy husk each was effected from his containing 20 kilograms of poppy husk each was effected from his containing 20 kilograms of poppy husk each was effected from his containing 20 kilograms of poppy husk each was effected from his exclusive possession. The appellant has not offered any explanation exclusive possession. The appellant has not offered any explanation exclusive possession. The appellant has not offered any explanation exclusive possession. The appellant has not offered any explanation whatsoever regarding his possession of such huge quantity of contraband. whatsoever regarding his possession of such huge quantity of contraband. whatsoever regarding his possession of such huge quantity of contraband. whatsoever regarding his possession of such huge quantity of contraband. ed is of the commercial quantity. Once possession is The quantity recovered is of the commercial quantity. Once possession is ed is of the commercial quantity. Once possession is The quantity recover proved, the statutory presumptions under Sections 35 and 54 of the proved, the statutory presumptions under Sections 35 and 54 of the proved, the statutory presumptions under Sections 35 and 54 of the proved, the statutory presumptions under Sections 35 and 54 of the NDPS Act come into operation. The burden shifts upon the accused to NDPS Act come into operation. The burden shifts upon the accused to NDPS Act come into operation. The burden shifts upon the accused to NDPS Act come into operation. The burden shifts upon the accused to satisfactorily account for such possession. Except for making a bald satisfactorily account for such possession. Except for making a bald satisfactorily account for such possession. Except for making a bald satisfactorily account for such possession. Except for making a bald denial in his statement under Section 313 Cr.P.C., the appellant has failed denial in his statement under Section 313 Cr.P.C., the appellant has failed denial in his statement under Section 313 Cr.P.C., the appellant has failed denial in his statement under Section 313 Cr.P.C., the appellant has failed to discharge the statutory burden cast upon him. Consequently, the to discharge the statutory burden cast upon him. Consequently, the to discharge the statutory burden cast upon him. Consequently, the to discharge the statutory burden cast upon him. Consequently, the presumption regarding conscious possession remains unrebutted. presumption regarding conscious possession remains unrebutted. presumption regarding conscious possession remains unrebutted. 6 CRA-S-110-SB- -2004 (O&M)

#14. Learned counsel for the appellant vehemently arg ued that in the instant Learned counsel for the appellant vehemently argued that in the instant Learned counsel for the appellant vehemently arg case, the mandatory provisions of Section case, the mandatory provisions of the NDPS Act were not Section 50 of the NDPS Act were not complied with and the appellant was liable to be acquitted. The said complied with and the appellant was liable to be acquitted. The said complied with and the appellant was liable to be acquitted. The said complied with and the appellant was liable to be acquitted. The said submission has been opposed by the learned State counsel by contending submission has been opposed by the learned State counsel by contending submission has been opposed by the learned State counsel by contending submission has been opposed by the learned State counsel by contending that since the recovery of the contraband had taken place from the that since the recover y of the contraband had taken place from the poly of the bags and not from personal search, the provisions of Section 50 of the bags and not from personal search, the bags and not from personal search, the Their Lordships of NDPS Act would not be attracted in the instant case. Their Lordships of NDPS Act would not be attracted in the instant case. NDPS Act would not be attracted in the instant case. the Hon'ble Supreme Court in Ajmer Singh v. State of Haryana, ( the Hon'ble Supreme Court in 2010) Ajmer Singh v. State of Haryana, (2010) , have held that for search of bag, briefcase, 3 Supreme Court Cases 746, have held that for search of bag, briefcase, , have held that for search of bag, briefcase, 3 Supreme Court Cases 746 container, etc. carried by accused person, compliance with Section 50 of container, etc. carried by accused person, compliance with Section container, etc. carried by accused person, compliance with Section the NDPS Act is not required. Their Lordships have held as under :- the NDPS Act is not required. Their Lordships have held as the NDPS Act is not required. Their Lordships have held as "15. The learned counsel for the appellant contended that the "15. The learned counsel for the appellant contended that the "15. The learned counsel for the appellant contended that the of the Act would also apply, while provision of Section 50 of the Act would also apply, while of the Act would also apply, while provision of Section searching the bag, brief case etc., carried by the person and its searching the bag, brief case etc., carried by the person and its searching the bag, brief case etc., carried by the person and its noncompliance would be fatal to the proceedings initiated noncompliance would be fatal to the proceedings initiated noncompliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned We find no merit in the contention of the learned counsel. It requires to be noticed that the question of counsel. It requires to be noticed that the question of counsel. It requires to be noticed that the question of compliance or non-compliance of Section of the NDPS. Act compliance of Section 50 of the NDPS. Act is relevant only where search of a person is involved and the is relevant only where search of a person is involved and the is relevant only where search of a person is involved and the said Section is not applicable nor attracted where no search of said Section is not applicable nor attracted where no search of said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, brief a person is involved. Search and recovery from a bag, brief a person is involved. Search and recovery from a bag, brief hin the ambit of case, container, etc., does not come within the ambit of case, container, etc., does not come wit of the NDPS Act, because firstly, Section 50 Section 50 of the NDPS Act, because firstly, Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the Section expressly speaks of search of person only. Secondly, the Section expressly speaks of search of person only. Secondly, the Section speaks of taking of the person to be searched by the Gazetted speaks of taking of the person to be searched by the Gazetted speaks of taking of the person to be searched by the Gazetted r Magistrate for the purpose of search. Thirdly, this Officer or Magistrate for the purpose of search. Thirdly, this r Magistrate for the purpose of search. Thirdly, this 7 CRA-S-110-SB- -2004 (O&M) issue in our considered opinion is integra in view in our considered opinion is no more res-integra in view Madan Lal of the observations made by this court in the case of Madan Lal of the observations made by this court in the case of