PUNJAB AND HARYANA AT CHANDIGARH SUNITA RANI STATE OF PUNJAB v. CRA-S-308-2022

The instant appeal is directed against the impugned verdict, as made on 22.12.2021, upon NDPS No.125/2017, by the learned Judge Special Court, Fazilka, wherethrough in respect of a charge drawn against the accused qua an offence punishable under Section 22 of the NDPS Act, the learned trial Judge concerned, proceeded to record a finding of conviction against the accused- appellant. Moreover, through a separate sentencing order of even date, the learned trial Judge concerned, imposed upon, the convict both sentence(s) of imprisonment as well as sentence(s) of fine, but in the hereinafter extracted manner: “Sunita Rani Under Section Sentence Fine In default of payment of 22 of NDPS Act RI for Seven years Rs.50,000/- RI for 7 months Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh CRA-S-308-2022 (O&M) 2

The accused-convict becomes aggrieved from the above drawn verdict of conviction, besides also, becomes aggrieved from the consequent therewith sentences of imprisonment, and, of fine as became imposed, upon her, by the learned convicting Court concerned, and, hence has chosen to institute thereagainst the instant criminal appeal, before this Court.

Factual Background and Investigation proceedings

The genesis of the prosecution case, becomes embodied in the appeal FIR, to which Ex.P2 is assigned. The narrations carried in Ex.P2, are that on 22.04.2016 at about 9.10 p.m., the Police party headed by ASI Gurjeet Singh along with fellow police officials was on patrolling duty and checking of suspected persons on a private vehicle and the police party was going from Tekku Wale Jhugge to village Sukhera Bodla. When the police party reached at the bridge of Canal Sukhera Bodla, a woman was seen coming on foot from the opposite side who on seeing the police party got nervous and tried to turn towards her left side on the western pavement of Canal. On the basis of suspicion, she was apprehended with the help of Lady Constable Sandeep Rani, No.60 and other fellow police officials. Then the above said woman dropped one polythene envelop on the ground as a result of some of the light green colour Intoxicating powder fell on the soil. On verification, she disclosed her name as Sunita Rani wife of Tara Singh daughter of Balwinder Singh, resident of village Sukhera Bodla. ASI Gurjeet Singh tried to join a public witness but none was available. Then he checked the Intoxicating powder dropped by accused Sunita Rani. Sample of 10 grams of Intoxicating powder was separated to serve as sample and one another sample of 10 grams of Intoxicating Powder was separated to serve as additional sample and the same were put in two separate plastic boxes and their separate parcels were prepared, the remaining Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh CRA-S-308-2022 (O&M) 3 Intoxicating powder came out to be 80 grams and the same was also put into a plastic box and converted into a separate parcel. Both the sample parcels and bulk parcel were sealed by the IO ASI Gurjeet Singh with his seal impressions ‘GS’. Sample seal and Form M-29 was prepared and after use, seal was handed over to HC Harbans Singh, No.638. All the case property parcels including Sample seal and Form M-29 was taken into police possession vide separate recovery memo. Ruqa was sent to the Police Station through PHG Inder Singh, No. 5354 for registration of FIR against the accused, on the basis of which present FIR was registered against accused Sunita Rani.

Statements of witnesses were recorded at the spot. After reaching back at police station, case property, sample seal and Form M-29 along with the accused were presented before the officiating SHO ASI Kulwant Singh who on verification of intactness of seals, affixed his own seal bearing impression 'KS' on the same and deposited the same in Malkhana. Then on interrogation, accused Sunita Rani confessed that she has kept concealed some more intoxicant powder inside main gate of her house towards its left side by digging a pit and that she only knows about it and can get the same recovered. Thereafter, disclosure statement of accused Sunita Rani under section 27 of Evidence Act was recorded separately. Thereafter, on 23.04.2016, in view of the disclosure statement, accused Sunita Rani led the police party to disclosed place and got recovered Intoxicating Powder and the same was taken into police possession vide separate recovery memo. Sample of 10 gram of Intoxicating powder was separated to serve as sample and one another sample of 10 grams of Intoxicating Powder was separated to serve as additional sample and the same were put in two separate plastic boxes and their separate parcels were prepared, the remaining Intoxicating powder came out to be 130 grams. Separate parcels were prepared Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh CRA-S-308-2022 (O&M) 4 and the same were sealed with seal bearing impressions ‘KS’. Form M-29 was prepared and the entire case property was taken into police possession vide separate recovery memo. Site plan was prepared at the spot. Statements of the witnesses were recorded. On completion of investigation and receipt of report of Chemical Examiner, Challan under Section 173 Cr.P.C. was presented in Court against accused Sunita Rani for trial. Trial Proceedings

The learned trial Judge concerned, made an objective analysis of the incriminatory material, adduced before him. Resultantly, he proceeded to draw charge against the accused, for an offence punishable under Section 22 of the NDPS Act. The afore drawn charge was put to the accused, to which he pleaded not guilty, and, claimed trial.

In proof of its case, the prosecution examined six witnesses, and, thereafter the learned Public Prosecutor concerned, closed the prosecution evidence. After the closure of prosecution evidence, the learned trial Judge concerned, drew proceedings, under Section 313 of the Cr.P.C., but thereins, the accused pleaded innocence, and, claimed false implication. The accused also chose to adduce defence evidence, and three witnesses were led into the witness box.

As above stated, the learned trial Judge concerned, proceeded to convict the accused for the charge (supra), as became drawn against her, and, also as above stated, proceeded to, in the hereinabove manner, impose the sentence(s) of imprisonment, as well as of fine, upon the convict. Submissions of the learned counsel for the appellant

The learned counsel for the aggrieved convict-appellant has argued before this Court, that the impugned verdict of conviction, and, Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh CRA-S-308-2022 (O&M) 5 consequent therewith order of sentence, require an interference. She supports the above submission on the ground, that it is based on a gross mis-appreciation, and, non-appreciation of evidence germane to the charge. Submissions of the learned State counsel

On the other hand, the learned State counsel has argued before this Court, that the verdict of conviction, and, consequent therewith sentence(s) (supra), as become imposed upon the convict, is well merited, and, does not require any interference, being made by this Court in the exercise of its appellate jurisdiction. Therefore, he has argued that the instant appeal, as preferred by the convict, be dismissed. Analysis of the case

Through recovery memo Ex. P8, the recovery of the contraband became allegedly recovered from the possession of the appellant. In proof of the prosecution case, ASI Gurjeet Singh stepped into the witness box as PW-3, and, in his examination-in-chief, he made speakings thereins, which concur with the contents of the appeal FIR, to which Ex. P2 is assigned.

The prosecution though has been able to lead cogent evidence, in proof of the recovery of the seizure, thus being effected from the possession appellant, and, the same thus being sealed with the relevant seal impressions. Moreover, though the prosecution has also been able to cogently establish, that the sealed cloth parcels, became deposited in the malkhana concerned. In addition, though the prosecution has been able to establish, that the case property travelled in an untampered condition to the FSL concerned.

A reading of the report (Ex.P16), as made by the FSL concerned, whereto the relevant seizure became sent for an examination being made of the stuff inside the sealed cloth parcels, though reveals, that the examined stuff Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh CRA-S-308-2022 (O&M) 6 inside the sealed cloth parcels, as became sent to it for examination, thus containing alprazolam. The said report is ad verbatim extracted hereinafter. “x x x x

6. Articles received: One parcel sealed with two seals one each of GS + KS alleged to contain intoxicating material. Seals on the parcel were found intact & tallied with specimen seals impression. On opening the parcel was found to contain ten gram greenish powder with dark green, orange and white particles.

7. Purpose of reference: Analysis & report

8. Identification & Tests: Ingredient found Quantity of ingredient in parcel Alprazolam

0.15% Report The content of the parcel under reference has been analysed by chemical analysis. On the basis of analysis the ingredients along with its quantity found present in it has been given at serial No.8 (Identification & tests) of this report. x x x x”

Be that as it may, though a reading of the report (supra) of the FSL also discloses, that the sealed cloth parcels, became received there, hence with the seal impressions thereons being intact. However, the chemical examiner at the FSL concerned, after making examinations of the stuff inside the sealed cloth parcels, and, thereafter his drawing the report (supra), yet omits to mention in the report Ex. P16, about his re-enclosing the examined stuff inside the cloth parcels, and, his thereons affixing the seals of the FSL concerned.

The above was required to be mandatorily done, as, thereupon the imperatively required to be proven, thus unbroken links in the chain of incriminatory evidence, commencing from the seizure being made from the Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh CRA-S-308-2022 (O&M) 7 crime site, through recovery memo Ex.P-8, and, lasting upto the production of the case property in Court, thereby thus would become convincingly proven, rather to remain unsnapped or unbroken. In the above event alone the charge drawn against the accused would be concluded to become cogently established. However, as above stated, contrarily for want of the chemical examiner concerned, after making examination(s) of the stuff inside, the sealed cloth parcels, thus re-enclosing the examined stuff inside the cloth parcels, and, his further failure to emboss thereons, rather the seals’ of the FSL concerned, whereafters the examined stuff after retrievals from the malkhana concerned, was to be produced in Court, for its being shown to the investigating officer concerned, for thereby thus, on evident surgings-forth of the above requisite primary evidence, rather the charge drawn against the accused, could be concluded to be convincingly proven, thereupon rather for wants (supra) the charge would stagger.

The further reason for stating so, becomes comprised in the trite factum, that since after examination(s) of the stuff inside the sealed cloth parcels, the same never became re-enclosed in the cloth parcels, nor the seal impression of the FSL concerned, became made thereovers. Resultantly, therebys it may be concluded that neither the same sample parcels were ever sent to the laboratory concerned, and/or if they became sent, they for the above stated infirmity, cannot be declared to be related to the supra results of the examinations, as became made thereovers. Therefore, benefit of doubt is to be assigned to the appellant.

Resultantly, reiteratedly when scope is, thus left for an inference qua either the case property, thus not relating to the report (supra) of the FSL concerned, thereby the report of the FSL (supra), rather looses its evidentiary Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh CRA-S-308-2022 (O&M) 8 vigour. A further scope is also left, thus to infer that the case property, if any, became tampered with. As but a natural corollary, when the primary evidence for proving the charge drawn against the accused, does come under a cloud of deep suspicion. Resultantly, this Court is constrained to conclude, that the charge drawn against the accused did not come to be cogently established.

Lastly, since this Court while answering the substantial question of law sent to the larger Bench of this Court, in case No. CRA-S-5190-SB-2015 titled as “Deepak Kumar V. State of Punjab”, thus has thereins expostulated that; a) There being an imperative necessity of testings being made of the stuff inside the sample parcels. b) The inventory as becomes prepared in the presence of Magistrate concerned, in terms of Section 52A of the Act, but without testings of the stuff enclosed in the sample parcels, thus being made at the laboratory concerned, rather per se not acquiring the utmost evidentiary vigor.

Conspicuously, the hereinabove extracted respective standing order and notification become declared by a judgment rendered by the Hon’ble Apex Court in case titled as “ Noor Aga V. State of Punjab and another” Criminal Appeal No.1034 of 2008, decided on 09.07.2008, to be holding a mandatory character and also become ordained therein to be requiring completest adherence. Contrarily on breach thereof becoming made, therebys may be the accused would become entitled to an acquittal.

Furthermore, in case the entire bulk is homogeneously mixed and derivative samples are derived therefroms, resultantly the effect thereof would be that, the incriminatory finding as become recorded on the stuff inside the sample parcels as sent to the laboratory concerned, thus would acquire a presumption of truth, irrespective of the fact that the entire bulk wherefrom the derivative samples are borrowed, but after the entire seizure becoming homogeneously mixed, rather not becoming sent for analyses thereovers, being made at the laboratory concerned. Contrarily, in case the entire bulk seizure remains not homogeneously mixed, thereupon the charge drawn against the accused appertaining to the weight of the entire weight of the seizure, de hors affirmative results Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh CRA-S-308-2022 (O&M) 9 being made in respect of the stuff inside the residue sample parcels, as, sent to the laboratory concerned, rather would come under a cloud of doubt, whereupon benefit thereof would accrue to the accused.

As an illustration, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity, but proper procedure has to be followed, without which the results would be negative.

Reiteratedly, in case, the derivative samples from the bulk are drawn but without the entire bulk seizure becoming homogeneously mixed, thereupon the laboratory examination of the stuff inside the sample cloth parcels rather would not prove the charge relating to the weight of the entire bulk seizure taking place, at the crime site, thus from the alleged conscious and exclusive possession of the accused.

Contrarily, in case the entire bulk seizure is not homogeneously mixed or when the narcotic drug(s) or psychotropic substance, does become carried in different vials or in different packets, besides upon the said mode(s) of carryings of (supra), becomes not homogeneously mixed, thereupons, even if a fragment or a portion thereof becomes extracted from one vial or only from one packet, thus for creating a residue parcel, it would beget the ill consequence of the accused becoming entitled to an acquittal. Resultantly, when despite the evident absence of apposite homogeneous mixings of the entire bulk, taking place be it borne in packets, containers or be it being carried in different vials, besides when only a part or the fragment or portion of the seizure or only one or two of the vials, becoming extracted from the bulk, yet the said extracted fragment when becomes sent for examination to the laboratory concerned, but the apposite affirmative laboratory examination as becomes made vis-a-vis the stuff inside the sample parcels, rather would not make the charge drawn against the accused, thus for his allegedly Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh CRA-S-308-2022 (O&M) 10 exclusively and consciously possessing, the entire seizure, thus also becoming efficaciously proven.

Conspicuously when for the drawing of an effective conclusion, that the charge drawn against the accused qua his allegedly consciously and exclusively possessing, the entire bulk, but requires that only after homogeneous mixing of the bulk seizure, taking place, be it of psychotropic substance, in vials or in any other mode or be it with respect of narcotic drugs carried in whatsoever mode, rather residues therefroms becoming drawn, whereafter an affirmative finding on the stuff inside the residues, is required to be made by the Chemical Examiner concerned.”

Moreover, when evidently in the instant case, there is no mentioning of takings place of homogeneous mixings of the entire bulk seized from the offending bulk, before taking sample parcels therefroms, hence the charge drawn against the accused appertaining to the weight of the entire seizure, de hors affirmative results being made in respect of the stuff inside the residue sample parcels, as, sent to the laboratory concerned, thus is not cogently proved.

Moreover, in paragraph 35 of the judgment rendered by the Hon’ble Apex Court in “ Noor Aga V. State of Punjab and another” Criminal Appeal No.1034 of 2008, decided on 09.07.2008, paragraph whereof becomes extracted hereinafter, thus becomes spelt the imperative sine qua non, rather requiring to become cogently proven hence for therebys the charge drawn against the accused becoming declared to become unflinchingly proven. However, since after the examination(s) being made of the stuff inside the sample parcels, thus by the FSL concerned, rather the latter did not re-enclose them in the sealed cloth parcels, hence carrying thereons the seals’ of the FSL concerned. Moreover, when the said sample parcel(s) became never returned to the office wherefrom they generated nor when they became produced in Court.

35. The High Court proceeded on the basis that non-production of physical evidence is not fatal to the prosecution case but the fact remains Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh CRA-S-308-2022 (O&M) 11 that a cumulative view with respect to the discrepancies in physical evidence creates an overarching inference which dents the credibility of the prosecution. Even for the said purpose the retracted confession on the part of the accused could not have been taken recourse to.

20. Consequently, since the expostulation of law carried in verdict (supra), remains unsatiated thereby the accused become entitled to an acquittal.

21. The said view is also supported by a judgment rendered in case titled as “ Gaunter Edwin Kircher V. State of Goa, Secretariat Panji, Goa”, Criminal Appeal No.642 of 1991, decided on 16.03.1993, relevant paragraph whereof becomes extracted hereinafter.

J. Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 52A and 53 – Customs Act, 1962, Section 110(IB) – Physical evidence – Case Property – Recovery of heroin from accused – Case property destroyed and not produced – Physical evidence relating to three samples taken from the bulk amount of heroin were also not produced – Bulk quantity was destroyed the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52A of the Act.

Final order

22. The result of the above discussion, is that, this Court finds merit in the appeal, and, is constrained to allow it. Consequently, the appeal is allowed. The impugned judgment convicting, and, sentencing the appellant and, as become recorded by the learned trial Judge concerned, is quashed, and, set aside. The appellant is acquitted of the charge framed against her. The fine amount, if any, deposited by her, be, in accordance with law, refunded to her. The personal, and, surety bonds of the accused shall stand forthwith cancelled, and, discharged. The case property be dealt with, in accordance with law, but after the expiry of the period of limitation for the filing of an appeal. The appellant, if in custody, Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh CRA-S-308-2022 (O&M) 12 and, if not required in any other case, be forthwith set at liberty. Release warrants be prepared accordingly.

24. Records be sent down forthwith. The miscellaneous application(s), if any, is/are also disposed of. (SURESHWAR THAKUR) JUDGE

29.11.2024 Ithlesh Whether speaking/reasoned:- Yes/No Yes/No Whether reportable: Gurpreet Singh 2024.11.29 17:04 I attest to the accuracy and integrity of this document Chandigarh