2016 (2) TMI 1349 - HC - Indian Laws

Smuggling - conscious possession of two gunny bags containing poppy husk - non- examination of Ajaib Singh a person from the public would not lead this Court to assume that whole case of the prosecution was false - framing of charges - Section 15 of the NDPS Act - HELD THAT - This Court finds that the samples were not drawn while mixing the whole contents properly. If the investigating officer had effected the recovery from the upper part of the gunny bags then it cannot be said that the samples drawn were representative samples of the whole bulk. This issue would assume importance when the report of the Chemical Examiner (Ex. PG) is perused in which percentage of Morphine has not been described by the Chemical Examiner. No doubt the Court cannot and should not through the whole case of the prosecution on that score and the Court has to take into consideration the overall issues involved in the case. The Court is not much impressed from the argument raised with regard to non-putting a question relating to conscious possession of the contraband to the appellant in his statement recorded under Section 313 Cr.P.C. and as such that argument is not accepted in favour of the appellant. However it has been put to the appellant that he was seen sitting on the gunny bags - It is settled proposition that if sentence to be awarded is severe like minimum rigorous imprisonment for ten years in addition to a minimum fine of rupees one lac then the Court has to look for qualitative prosecution evidence. This Court on the overall scanning of the case of the prosecution and the evidence led in defence has arrived at the conclusion that there are severe latches in the prosecution case and the benefit of the same has to be extended to the appellant - while accepting the appeal the impugned judgment of conviction and the order of sentence passed by learned Judge Special Court Sangrur is hereby set aside. The appellant/accused is hereby acquitted of the charge levelled against him - Application disposed off.

Summary

Issues Involved:
1. Investigating officer and complainant being the same person.
2. Delay in sending samples to the Chemical Examiner.
3. Conscious possession of the contraband.
4. Proper mixing of contents before drawing samples.
5. Lack of specific questioning under Section 313, Cr.P.C.
6. Non-examination of the independent witness.
7. Independent witness being a stock witness.
8. Non-compliance with Section 50(6) of the NDPS Act.
9. Absence of a Gazetted officer or Executive Magistrate at the recovery spot.
10. Language barrier in the documentation.
11. Initial rejection of samples by the Chemical Examiner.
12. Potential tampering with the samples.
13. Contradictions in prosecution witnesses' depositions.
14. Grounds of arrest and notification to relatives.
15. Trial court's verdict without cogent reasons.

Detailed Analysis:

1. Investigating officer and complainant being the same person:
The appellant argued that the case should be disbelieved because the investigating officer and the complainant were the same person. However, the court referenced the Supreme Court's decision in State v. Jayapaul, 2004 (2) R.C.R. (Criminal) 317, which held that the whole case cannot be dismissed on this ground alone.

2. Delay in sending samples to the Chemical Examiner:
The appellant contended there was a significant delay in sending the samples, which were drawn on 18.2.2002 and delivered on 20.3.2002. The court found this delay unexplained and significant, particularly as the seal used for sealing the samples was returned the next day, raising doubts about potential tampering.

3. Conscious possession of the contraband:
The court noted that the appellant was found sitting on the gunny bags containing poppy husk, which suggested conscious possession. However, the prosecution failed to substantiate this claim adequately.

4. Proper mixing of contents before drawing samples:
The court observed that the samples were not drawn by properly mixing the contents of the gunny bags, which could mean the samples were not representative of the entire bulk. This issue was compounded by the Chemical Examiner's report, which did not detail the percentage of Morphine.

5. Lack of specific questioning under Section 313, Cr.P.C.:
The appellant argued that no question regarding conscious possession was put to him during his statement under Section 313, Cr.P.C. The court found this argument unconvincing, noting that the appellant was questioned about being seen sitting on the gunny bags.

6. Non-examination of the independent witness:
The prosecution's failure to examine Ajaib Singh, the only independent witness, created doubt about the veracity of the case. The court found this omission significant.

7. Independent witness being a stock witness:
The court noted that Ajaib Singh was a witness in other NDPS Act cases, indicating he was a stock witness, which further undermined the prosecution's case.

8. Non-compliance with Section 50(6) of the NDPS Act:
The appellant argued there was non-compliance with Section 50(6) of the NDPS Act, as no report was sent to senior police officers after the search. The court found this argument significant in the context of other shortcomings in the prosecution's case.

9. Absence of a Gazetted officer or Executive Magistrate at the recovery spot:
The court noted that neither a Gazetted officer nor an Executive Magistrate was summoned to witness the recovery, which, while not mandatory, was another shortcoming in the prosecution's case.

10. Language barrier in the documentation:
The court found substance in the appellant's claim that he was a Hindi-speaking person from Haryana and the documents were prepared in Punjabi without explanation, raising concerns about the validity of his signatures.

11. Initial rejection of samples by the Chemical Examiner:
The samples were initially sent on 25.2.2002 but were rejected due to deficiencies in the forwarding letter. The court found this irregularity significant.

12. Potential tampering with the samples:
The court was concerned that the seal used for sealing the samples was returned the next day, creating a possibility of tampering before the samples were sent to the Chemical Examiner.

13. Contradictions in prosecution witnesses' depositions:
The court acknowledged severe contradictions in the testimonies of the prosecution witnesses, which weakened the case.

14. Grounds of arrest and notification to relatives:
The appellant argued that the grounds of arrest were not communicated, nor were his relatives informed. The court did not find this argument decisive in isolation but considered it among other issues.

15. Trial court's verdict without cogent reasons:
The court found that the trial court returned a verdict of guilt without addressing the significant issues and contradictions in the prosecution's case.

Conclusion:
The High Court found severe lapses in the prosecution's case, including unexplained delays, potential tampering, non-examination of a key witness, and language barriers. Consequently, the court accepted the appeal, set aside the judgment of conviction and order of sentence, and acquitted the appellant of the charges.