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TMI Blog2016 (2) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... , the veracity of the prosecution case put up by the complainant cannot be believed; ii. There was huge delay in sending the samples to the Chemical Examiner, Punjab, at Chandigarh, because the same were allegedly drawn on 18.2.2002, while delivered on 20.3.2002 in the office of the Chemical Examiner; iii. The conscious possession of two gunny bags containing poppy husk with the appellant could not be substantiated by the prosecution; iv. The samples were not drawn by mixing the whole contents properly; v. While recording the statement under Section 313, Cr.P.C., of the appellant, no question with regard to conscious possession of the contraband was put to him; vi. Ajaib Singh, the only independent witness from the public, was not examined during trial by the prosecution; vii. Copies of the FIRs (Exs. D5 and D6) of Police Station, Lehra, would clearly show that Ajaib Singh, i.e. the same person who was associated as a public witness in the present case, was also a prosecution witness in the said cases and, as such, he was a stock witness of the police belonging to Police Station, Lehra, District Sangrur; viii. There was non-compliance of sub-section (6) of Section 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en caused to the appellant from the fact that no question was put to him in his statement recorded under Section 313, Cr.P.C., regarding conscious possession of the contraband; mere 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; the investigating officer had made an offer to the appellant to call for the Gazetted Officer or the Magistrate at the spot, but the appellant had himself declined the said offer of police and posed confidence in the Investigating Officer; and that the contradictions pointed out by learned counsel for the appellant were bound to occur in the depositions of the prosecution witnesses when they were examined after long lapse of time. He prayed for dismissal of the appeal. 4. I have heard learned counsel for the parties and with their able assistance gone through the material available on record. 5. The brief facts of the case are that on 18.2.2002, Inspector Jaswinder Singh (PW-5), who was the then posted as Station House Officer, Lehra, alongwith the fellow police officials, in a Government vehicle, was on patrolling. Ajaib Singh (not examined) met and associated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Singh (PW-2). Tendered his affidavit (Ex. PE) to be read in evidence, inter alia, deposing that the case property was handed over to him on 18.2.2002, when he was posted as Moharrir Head Constable at Police Station, Lehra. Constable Harpal Singh (PW-3). Tendered his affidavit (Ex. PF) to be read in evidence, inter alia, deposing that on 25.2.2002, the samples were handed over to him by the Moharrir Head Constable to deliver the same to the Chemical Examiner, Punjab, at Chandigarh. He further deposed that for want of seal on the Road Certificate, the samples could not be delivered to the office of the Chemical Examiner and after getting the said shortcoming removed, the samples were again taken and delivered to the office of the Chemical Examiner on 20.3.2002. Smt. Shushobhita Kumari Sharma, Deputy Chemical Examiner, Government of Punjab, Chandigarh (PW-4). Deposed that the Chemical Examination Report (Ex. PG) was prepared under her signatures. She fairly conceded that percentage of Morphine was not detailed in the report (Ex. PG). Inspector Jaswinder Singh (PW-5). Deposed that on 18.2.2002, he was posted as Station House Officer, Police Station, Lehra, and further deposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to FIR Nos. 22 and 23, dated 18.2.2002 (Exs.D3 and D4), registered in the Police Station, Lehra, against Jagsir Singh and Balwinder Singh. 12. After tendering copies of FIR No. 90, dated 21.6.2002(Ex. D5) and FIR No. 10, dated 11.7.2002, Ex. D6), the defence evidence was closed. 13. After hearing counsel for the parties, learned Trial Court held the appellant guilty and awarded the sentence as noticed in the initial part of this judgment. 14. The first argument of learned counsel for the appellant that on the complaint of Investigating Officer, the FIR of the present case was registered and, as such, the whole case of the prosecution should be disbelieved, is not tenable. In the matter of State v. Jayapaul, 2004 (2) R.C.R. (Criminal) 317, Hon'ble the Supreme Court has held that the whole case of the prosecution cannot be thrown on the ground that the Investigating Officer and the complainant is one and the same person. 15. The next argument of learned counsel for the appellant that there was huge delay in sending the samples to the Chemical Examiner might not be beneficial to him in isolation but the Court has to see totality of the facts and circumstances of each case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 50 of the NDPS Act, would be mandatory only when the contraband is recovered from the person of the accused. But in view of the backdrop and the shortcomings in the prosecution case, this issue also assumed importance in favour of the appellant. 19. While perusing the material, 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. 20. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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