HARMEET SINGH AND ORS. Vs. STATE

JUDGEMENT

(1.) THESE appeals have been directed against the impugned judgment and order on sentence dated 12.07.2012 and 25.07.2012 respectively wherein the two appellants have been convicted under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, (in short NDPS Act); appellant Harmeet Singh has been sentenced to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac and in default of payment of fine to undergo SI for a period two years. Appellant Ashwani has been sentenced to undergo RI for a period of 15 years and to pay a fine of Rs. 1.5 lac and in default of payment of fine to undergo SI for a period three years.

(2.) THE version of the prosecution is that on 16.07.2010, SI Surender Singh (PW -10) was marked DD No. 7 which was information to the effect that apprehension and recovery of ganja from two persons near the Durlabh Nath Park, Mangolput Industrial Area had been made. On reaching the spot, constable Shamsher (PW -2), constable Prem (PW -9), constable Ajit (PW -8) and constable Satbeer were present. An Alto Car (which in the course of investigation was found to be in the name of Kuki Devi, the mother of the accused Harmeet Singh proved through its registration Ex.PW -2/J -3 through the version of Bhupender Singh PW -6) was parked there. This car had been stopped by the members who were on patrol duty namely PW -2, PW -8, PW -9 and constable Satbeer. As per this version, during patrolling at about 01:00 pm when they had reached Durlabh Nath Park, the aforenoted Alto car was found near the road. One person was coming out from the car and his movement appeared to be suspicious. The patrolling party accosted the accused. The aforenoted persons revealed their names as Ashwani Kumar and Harmeet Singh. Eight bags of ganja were found lying in rear seat of the car. This information was passed on to the local police station pursuant to which it was marked for investigation which was conducted by PW -10. From the aforenoted black bags, the ganja recovered weighed 142 kgms. From each bag a 50 gm sample was taken out; the remaining contraband and the samples were sealed with the seal of 'SS' and thereafter 'PSR'. The CFSL form was prepared at the spot. Rukka was sent pursuant to which the present FIR was registered and investigation was initiated. In the course of investigation, CFSL had opined the contraband which had been sent to the CFSL, positive for ganja and being in the commercial bracket, the accused were charge -sheeted, tried, convicted and sentenced as aforenoted.

(3.) LEARNED counsel for the appellants submit that there are various infirmities in the investigation carried out by the investigating agency and when taken cumulatively as a whole, benefit of doubt has to be given to the appellants. Attention has been drawn to the versions of PW - 2, PW -8 & PW -9 who were all members of the raiding party. It is pointed out that the version of PW -2 was that the SHO had come to the spot but this is not the version of the SHO Satish Yadav who had been examined as PW -3. The consistent version of the prosecution is that the SHO had not come to the spot. This discrepancy is irreconcilable. Attention has also been drawn to the deposition of PW -8 who had stated that the contraband was taken to a junk dealer shop for weighing but he did not remember the name of junk shop owner. Submission being reiterated that this is not the version of the prosecution. The version of the prosecution being that the contraband was weighed at the spot. This discrepancy is also unexplained. Submission being that there is also no explanation as to why no public witness had joined when admittedly there were factories in front of the spot where the accused were apprehended; PW -8 had stated that there was no petrol pump in front of the spot whereas PW -2 had stated that there was a petrol pump near the spot. This petrol pump is also not deciphered in the site plan prepared by the Investigating Officer (Ex.PW -8/DB). The report under Section 57 of the NDPS act was also not received by the immediate superior as is evident from the testimony of ACP Om Parkash (PW -7); this report had been sent by PW -10 and being in the rank of a SI, he had to send this to his immediate superior i.e. to the SHO but it was forwarded to the ACP. This again is an infirmity. Additional submission being that the mandate of Section 55 of the NDPS Act has also not been fulfilled as the version of the prosecution is that two seals were affixed on the sample which were the seals of 'SS' and 'PSR' which is not the seal of the SHO who is Inspector Satish Yadav; moreover it is fairly understandable that the seal of the SHO was not available at the spot for some reason but in this case as per the version of the prosecution, the SHO had affixed his seal in the police station, why he did not affix his own seal but affixed the seal of PSR is again a confusion which has not been answered by the prosecution. To support the same submission, attention has also been drawn to the entry in Registry No. 19 (Ex.PW -11/A) wherein after the seal of 'SS', there is a blank; the seal of the SHO has not been mentioned. These cumulative features when read together clearly make out a case of a grossly inadequate investigation for which the benefit must accrue to the appellants, as the members of the investigating agency are confused about the factual matrix. The appellants are entitled to a benefit of doubt and a consequent acquittal.