punjab and haryana high court

Punjab and Haryana High Court: In an appeal against judgment of conviction and order of sentence passed by Special Court on 5-02-2014 under Sections 15, 61 and 85 of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) for offences under Section 15 with rigorous imprisonment of 10 years and fine of Rs 1 lakh, Harpreet Singh Brar, J. set aside conviction and acquitted the appellants while holding that the prosecution had miserably failed to knit together the circumstances pointing towards the hypothesis of appellants’ complicity beyond reasonable doubt.

On 18-08-2007, the Investigating Officer (‘IO’) received secret information regarding the two appellants and another indulging in the sale of poppy husk and other intoxicants. The appellants were found in possession of six bags in which poppy husk was recovered, five of which weighed 24 3/4 Kg each and the sixth bag weighed 19 3/4 Kg, making it a total of 145 Kg poppy husk. The Trial Court convicted the appellants and the same was appealed against in the instant matter.

Court’s Observations regarding Procedure of Investigation in NDPS Case

The Court noted that the statement of the DSP revealed that he reached the spot at around 4:35 PM and stayed there for 3.5 hours, while the FIR indicated recovery at 4:15 PM and information received at the police station at 4:35 PM, the discrepancy lent credence to arguments on behalf of the appellants that the procedural safeguards were not followed, Gazetted Officer was never called at the spot and all the paperwork was done while sitting in the police station. The Court also highlighted another interesting aspect that the FIR was registered after recovery at the spot, and after the matter was reported to the police station, while the documents like memo of site plan, arrest, etc., all contained the FIR No., which remained unexplained by any of the witnesses and raised serious suspicion over the investigation.

The Court referred to the case with similar issue dealt by Supreme Court in Kamaljit Singh v. State of Punjab, (2020) 14 SCC 9 and also referred to other similar cases. The Court further pointed out another omission in investigation regarding non-filling of Form 29 at the spot and non-compliance with Section 52-A of NDPS Act on ‘Disposal of seized narcotic drugs and psychotropic substances’ requiring reproduction, a provision in furtherance of Article 21 of the Constitution guaranteeing fair and impartial investigation. The Court highlighted that the sample was drawn on 18-08-2007 and sent for chemical examination on 23-08-2007 with a delay of more than 5 days, which should have been sent within 72 hours as per instructions issued by Narcotics Control Bureau vide Standing Order No. 1 of 1988 dated 15-03-1998 which was supported in Noor Aga v. State of Punjab, (2008) 16 SCC 417.

The Court found the appellants’ case to be fully covered by the ratio laid in Union of India v. Bal Mukund, (2009) 12 SCC 161 since there was clear non-compliance with Section 52-A of NDPS Act as per guidelines issued in Union of India v. Mohanlal, (2016) 3 SCC 379. The Court also referred to Malkiat Singh v. State of Punjab, 2008 SCC OnLine P&H 918 wherein, the Court had relied upon the observations of the Court in State of Rajasthan v. Gurmail Singh, (2005) 3 SCC 59 regarding delay in sending samples for chemical examination.

The Court observed that the investigating officers were bound to follow the NCB standing orders being a mandatory addition to the procedural safeguards provided under NDPS Act keeping up with the stringent punishment. It specifically stated that “the omission on part of investigating officer with regard to total non-compliance of the instructions issued vide Standing Order coupled with the delay and non-filling of Form 29 at the spot would be tantamount to a serious flaw in the investigation and it suffocates the prosecution case completely.”

The Court further pressed on the requirement of an independent witness at the time of recovery relying upon Krishan Chand v. State of H.P., (2018) 1 SCC 222 wherein, the Court acquitted the accused while holding that the prosecution case could not entirely be based on official witness statements in the absence of any independent witness.

The Court highlighted another aspect that the investigating in the instant matter was also the complainant and expressed that “he should have refrained himself from investigating the case as this would negate the concept of fair and impartial investigation which is the bedrock of the principle of fairness of official action in terms of Article 21 of the Constitution of India.” The concept was reaffirmed in State v. Rajangam, (2010) 15 SCC 369 that “since the arrest and search is made by the complainant, he should not involve himself with the investigation of the case. Such an officer leading the investigation would forthrightly raise questions as to the fairness and impartiality of the said investigation process.” The Court further pressed upon the doctrine of bias being a leg of principles of natural justice through State of Gujarat v. R.A. Mehta, (2013) 3 SCC 1.

Conclusion for Acquittal in NDPS Case

In the instant matter, the Court found link evidence to be completely missing and stated that the prosecution had miserably failed to knit together the circumstances pointing towards the hypothesis of appellants’ complicity beyond reasonable doubt.

The Court relied on Mousam Singha Roy v. State of W.B., (2003) 12 SCC 377 regarding settled principle of criminal jurisprudence that more serious the offence, stricter the degree of proof, since a higher degree of assurance is required to convict the accused.

The Court reiterated the foundation of justice dispensation resting upon public faith and trust for every accused being entitled to procedural safeguards and non-deviation of investigating agencies since right to fair trial under Article 21 of Constitution becomes more essential, and the investigating officer becomes the linchpin of criminal justice delivery system and Articles 14, 21 and 39-A of the Constitution cast an obligation on him to follow the procedural safeguards in ensuring fair investigation.

Therefore, the Court allowed the instant appeals and set aside the judgment and order of conviction and sentence passed by the Trial Court, thereby acquitting the appellants.

[Arjun Singh v. State of Punjab, 2023 SCC OnLine P&H 1044, Order dated 28-07-2023]

Order by: Justice Harpreet Singh Brar

Advocates who appeared in this case :

For Appellants: Advocate A.P.S. Sandhu, Senior Advocate G.K. Mann, Advocate Anmol Jeevan Singh Gill;

For State: Deputy Advocate General Iqbal Singh Maan.

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