Manga Singh v. State of Punjab

IN T

MANGA S STATE OF CORAM:

Present:

ALOK JA

¶1of convict (NDPS A convicted Substance period of 5

¶2as follows

THE HIGH COURT OF PUNJA CHANDIGA

CRA-

Reserv

Prono SINGH Versus

F PUNJAB : HON'BLE MR. JUSTICE A

**** Mr. Inder Preet Singh, Advoc for the appellant. Mr. R.S. Bhatta, DAG, Punjab

****

AIN, J. The present appeal has been tion dated 07.10.2023 passed Act), SAS Nagar, Mohali whe under Section 18 of Narco s Act, 1985, and sentenced to 5 years and has been imposed wi The Factual Matrix of the cas : "On 27.04.2016, ASI Mohan were present at Tepla Road, person with a bag was seen

AB AND HARYANA AT ARH -S-67-2024 (O&M) ved on: 03.05.2024 ounced on :- 31.07.2024 ……Appellant ……Respondent ALOK JAIN cate b. filed against the judgment/order by the learned Special Judge ereby, the appellant has been otic Drugs and Psychotropic o undergo imprisonment for a ith a fine of Rs. 1,000/-. se as stated by the prosecution is n Singh along with police party T Point, Khaspur, Banur. One n by the police party who was

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¶3submitting it did not prosecutio evidence:

coming on foot but on notic that person tried to turn back However, with the help o apprehended and he disclosed Mohan singh told Manga Sin search on him and Manga Sin legal rights that he can get Gazetted officer or a Magis reposed confidence upon the police party searched the acc Singh's bag was searched, contained 2 KG opium and ac 18 of the NDPS Act was regis Learned counsel for the appe g that the learned trial Court wro properly appreciate the eviden on. He points out the followin

(i) There is a delay of 7 days alleged contraband with the F

(ii) There is a violation of Sec search of the accused was n Officer nor a Magistrate.

(iii) There is a contravention Act as two samples weigh contraband were drawn, how Magistrate.

cing the presence of the police, k and evade the police officials. of the police party he was d his name as Manga Singh. ASI ngh that they want to conduct a ngh was also informed about his t his search conducted from a strate. However, Manga Singh Police party and thereafter the cused and his bag. When Manga , it was found that the bag ccordingly an FIR under section stered against Manga Singh." ellant opened his arguments by ongly convicted the appellant as nce presented before it by the ng lacunae in the prosecution in depositing the samples of the FSL. ction 50 of the NDPS Act as the either conducted by a Gazetted n of Section 52-A of the NDPS hing 10 grams each from the wever not in the presence of a

s I a s a h e a g n y s e n e e d S e a

¶4arguments

¶5prosecutio was in con producing

(iv) The IO in this case w investigation under the NDP salary of a Head constable Sub-Inspector.

(v) That after the cross-exa officer it came out that ruqa E Ex. PW1/B were prepared be itself, which means that the the accused. Learned counsel for the s relies upon the following judgm

(i) Mohammad Khalid v/s Sta (Criminal)102 wherein, the case rejected the authenticity that there was non-complianc the Investigating Officer.

(ii) Buta Khan v/s State of P decided on 26.08.2022 whe accused may ask for re-exam and the Trial Court may as before it if the entire chain of Learned State counsel on the on was successful in proving th nscious possession of 02 kg opiu all the relevant evidence, bo

was not competent to conduct PS Act as he was drawing the and not that of an Assistant amination of the Investigating EX. PW1/A and recovery memo efore the registration of the FIR entire recovery was planted on appellant to substantiate his ments: - ate of Telangana 2024 (2) RCR Hon'ble Supreme Court in this of the FSL report on the ground ce of Section 52-A NDPS Act by Punjab in CRA-S-262-SB-2018 erein, this Court held that the mination of the seized contraband sk the sample to be produced f sampling is under doubt. e other hand submitted that the he guilt of the appellant that he um beyond reasonable doubt by th oral and documentary. The

t e t g o R n s R s d y e d d e e y e

lacunae po the learned came to a certain sho of the pr identical g adjudicate the delay i passed by Punjab, 2 there is n contraband a delay of

¶6conviction same day for arguin appellant. children an imprisonm deserves to

¶7Court reco

8.

ointed out by the counsel for th d trial Court and the Court after conclusion that the defence raise ortcomings in the evidence so pr rosecution. He further submits grounds in his defence in thi d and hence, prays for the dism in sending the sample to the FSL this Court in the case of Sanji 2007 (4) RCR (Criminal) 744 i no allegation of tampering wi d, then the case of the prosecutio sending the samples to FSL. Lastly, learned counsel for n and the order of the quantum itself without providing approp ng on the mitigating circumstan He further submits that the app nd his own father is on his last ment for more than four years, h o be considered from the lens of Heard learned counsel for th ord. The issues for consideration b

he appellant was agitated before meticulous analysis of the same ed by the appellant that there are resented was not fatal to the case s that the appellant is raising is appeal which stand already missal of this appeal. As regards L, he relies upon the judgement iv Kumar @ Sanju vs. State of in which it was held that when ith the samples of the seized on is impervious even if there is the petitioner submits that the of sentence was passed on the riate opportunity to the defence nces peculiar to the case of the pellant is a father of three young legs and has already undergone hence, the case of the appellant f humanitarian grounds he parties and perused the lower before this Court are as follows:

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¶9Sakshya A person wh hence, it h by the app

¶10of 7 days delay itse allegations the testim property b the sample regards to delay of se case of the

¶11of NDPS A

"i. Whether the judgment d appellant was passed after p and is it legally sustainable? ii. If yes, then whether

7.10.2023 requires any modif

Section 102 of the Evidence A Adhiniyam, 2023) states that th hose case would fail if no eviden has to be seen that whether the la pellant is sufficient enough to hol The first shortcoming pointed in sending the sample to FSL. elf is not material if it is n s of tampering with the sample monies of PW-3 MHC Balkar before the Court and PW-5 H.C e of the contraband with the F o any tampering with the sampl ending the sample to the FSL ca e prosecution. The second issue is with rega Act, which reads as under:-"50. Conditions under whic conducted:-

(1) When any officer duly about to search any person

dated 07.10.2023 convicting the proper appreciation of evidence the order of sentence dated fication or not?" Act (Section 105 of the Bhartiya he Burden of Proof lies on the nce was presented on either side, acunae in the evidence submitted llow out case of the prosecution. d out is with regard to the delay It is a well settled law that the not accompanied by verifiable of the seized contraband. From Singh who presented the case C Rajinder Singh who deposited SL, nothing is coming forth as le of contraband, therefore, the annot stand alone be held fatal to ard to compliance of Section 50 ch search of persons shall be authorised under section 42 is under the provisions of section

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11.1 is that the be taken in

41, section 42 or section 4 requires, take such person w nearest Gazette Officer of an in section 42 or to the nearest

(2) If such requisition is m person until he can bring him the Magistrate referred to in s

(3) The Gazette Officer o any such person is brought ground for search, forthwi otherwise shall direct that sea

(4) No female shall be se female.

(5) When an officer duly a reason to believe that it is no be searched to the nearest without the possibility of the with possession of any na substance, or controlled subs may, instead of taking such Officer or Magistrate, proc provided under section 10 Procedure, 1973 (2 of 1974).

(6) After a search is condu officer shall record the re necessitated such search and a copy thereof to his immedia

On the bare perusal of consent of the individual about n a particular form. Mere Comm

43, he shall, if such person so without unnecessary delay to the ny of the departments mentioned t Magistrate. made, the officer may detain the m before the Gazetted Officer or subsection (1). or the Magistrate before whom shall, if he sees no reasonable ith discharge the person but arch be made. earched by anyone excepting a authorised under section 42 has ot possible to take the person to Gazetted Officer or Magistrate e person to be searched parting arcotic drug or psychotropic tance or article or document, he person to the nearest Gazette ceed to search the person as 00 of the Code of Criminal ucted under sub-section (5), the easons for such belief which d within seventy-two hours send ate official superior." f this Section, what comes forth to be searched is not required to munication to that person would

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suffice i.e searched. presence o Sections 5 in the abse report to version of PW-4 Insp

27.04.2016 ruqa throu FIR Ex. P police stat accused an gram Opiu seated wit No. M-29. my seal be I also att property w

sample pa seal of BS the same code 005 o depositing

. oral consent can also be take It is not necessary that the se of a Magistrate/Judicial Officer 50(5) and 50(6) of the NDPS Ac ence of a Gazetted Officer/Mag his immediate superior within f the prosecution, the immediate pector Bhagwant Singh who sta 6, I was posted as SHO, PS Ban ugh C. Kumar Sharma. On the b PW2/B. I identify my signatures tion, IO ASI Mohan Singh prod nd witnesses. Case property cons um each and one bulk parcel co th seal bearing impression MS a After verifying the facts from w earing impression BS on the abo tested form No. M-29. Thereaf with MHC. Accused was also put On 02.05.2016, MHC Balkar arcel containing 10 gram Opium and MS. I put the above said sam with my seal bearing impressio on the same and handed over the g the same with PSL. My statem

en from the person about to be arch must be conducted in the r in all cases. An officer under ct may search an accused person gistrate provided that he sends a 72 hours. To corroborate the superior of ASI Mohan Singh is ated in his examination that on nur. On that day, I received one basis of above ruqa, I recorded on the same. On return to the duced before me case property, sisting of 2 sample parcels of 10 ontaining 1 Kg 980 gram Opium alongwith sample seal and Form witnesses and accused. I affixed ove said parcel and sample seal. after, I got deposited the case t into the lock up. r Singh produced before me one m which was duly sealed with the mple into new parcel and sealed on BS. I also affixed the secret e same to HC Rajinder Singh for ments were recorded by the IO.

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The averm 50 does no

¶12section 52

ment of the appellant that there ot hold ground. The third issue is with reg -A NDPS, which is reproduced h "[52A. Disposal of seized na substances.-- 2[(1) The Cen regard to the hazardous substitution, constraint of pro relevant consideration, in r psychotropic substances, conveyances, by notification such narcotic drugs, psych substances or conveyance or psychotropic substances, cla conveyances, which shall, a seizure, be disposed of by suc that Government may, from following the procedure herei

(2) Where any 3[narcotic d controlled substances or con forwarded to the officer-in-station or to the officer emp officer referred to in sub-inventory of such 3[narcotic d controlled substances or c details relating to their desc of packing, marks, numbe particulars of the 3[narcotic d controlled substances] or c which they are packed, c particulars as the officer ref

was non-compliance of Section gard to the non-compliance of herein:- arcotic drugs and psychotropic ntral Government may, having nature, vulnerability to theft, oper storage space or any other respect of any narcotic drugs, controlled substances or in the Official Gazette, specify hotropic substances, controlled class of narcotic drugs, class of ass of controlled substances or as soon as may be after their ch officer and in such manner as m time to time, determine after inafter specified.] drugs, psychotropic substances, nveyances] has been seized and -charge of the nearest police powered under section 53, the -section (1) shall prepare an drugs, psychotropic substances, conveyances] containing such cription, quality, quantity, mode ers or such other identifying drugs, psychotropic substances, conveyances or the packing in country of origin and other ferred to in sub-section (1) may

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12.1 accused w it cannot b Act. As re the learned mutatis mu acquitted Section 52

consider relevant to the ide psychotropic substances, conveyances] in any proceedi application, to any Magistrate

(a) certifying the correctness

(b) taking, in the presence of of such drugs, substances o such photographs as true; or

(c) allowing to draw represen substances, in the presence of the correctness of any list of s

(3) Where an application is m Magistrate shall, as soon as m

(4) Notwithstanding anythi Evidence Act, 1872 (1 of 1 Procedure, 1973 (2 of 1974) under this Act, shall treat t of 5[narcotic drugs, psycho substances or conveyances] under sub-section (2) and c primary evidence in respect of It is a matter of record that t was produced before the Illaqa M be said that there was non-com egards the judgment Mohammad d counsel for the appellant, the s utandis to this case as the Ape the accused on the ground tha 2-A NDPS and coupled with the

entity of the 3[narcotic drugs, controlled substances or ings under this Act and make an e for the purpose of-of the inventory so prepared; or of such magistrate, photographs or conveyances] and certifying ntative samples of such drugs or of such magistrate and certifying samples so drawn. made under sub-section (2), the may be, allow the application. ing contained in the Indian 972) or the Code of Criminal ), every court trying an offence the inventory, the photographs otropic substances, controlled and any list of samples drawn certified by the Magistrate, as of such offence.]" the case property along with the Magistrate on 28.04.2016, hence, mpliance of Section 52-A NDPS d Khalid (supra) relied upon by same cannot be made applicable ex Court in Mohammad Khalid at there was non-compliance of e fact that there was insufficient

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prosecutio present ca Singh was the argum plausible.

¶13officer has 13 of its ju

13.1 competenc no reason

¶14EX. PW1/ already re the ruqa s police gen memo.

¶15is no per

on evidence so as to warrant the c ase however, one independent w s also examined in addition to al ment that there is non-compli The issue with regard to the c s been dealt by the trial Court w udgment as under:- "The accused tried to establ withdrawing the salary of He his cross-examination he sta promoted as ASI with effe thereby that ASI Mohan investigate the matter." Keeping in view the findin cy of ASI Mohan Singh, to inves to take an adverse view of the sa The last issue is qua the bear /A and recovery memo Ex. PW corded this finding in its judgm ent by the investigating officer t nerally noted the FIR number Based on the above findings, rversity in the judgment date

conviction of the accused. In the witness namely PW-6 Gurinder ll the Official witnesses. Hence, iance of Section 52-A is not competency of the investigating which records its findings in Para lish that ASI Mohan Singh was ead constable at that time but in ated that ASI Mohan Singh was ect from 20.02.2012. Meaning Singh is fully competent to ngs of the trial Court qua the stigate this case, this Court finds ame. ring of FIR number on the ruqa W1/B. The Trial Court again had ment which stated that it was on that the FIR was registered. The on the ruqa and the recovery , this Court concludes that there d 07.10.2023 vide which the

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appellant w the judgme

¶16sentence d

¶17kg of opiu category o 18 of the N

was convicted under Section 18 ent dated 07.10.2023 is upheld. Now coming to the second dated 7.10.2023 requires any mod The appellant was held guilty um which as per the schedule of intermediate quantity and com NDPS Act. Section 18 of the ND "Section 18. Punishment fo opium poppy and opium.- Whoever, in contravention of rule or order made or thereunder, cultivates the manufactures, possesses, imports inter-State, exports in punishable,

(a) where the contraventio rigorous imprisonment for a year, or with fine which may or with both;

(b) where the contraventio with rigorous imprisonment less than ten years but which shall also be liable to fine w lakh rupees which may extend Provided that the court may, the judgment, impose a fine ex

8 of the NDPS Act, accordingly d issue: Whether the order of dification or not? y for conscious possession of 02 to the NDPS Act falls in the mes under the ambit of Section DPS Act reads as follows:- or contravention in relation to f any provision of this Act or any condition of licence granted opium poppy or produces, sells, purchases, transports, nter-State or uses opium shall be on involves small quantity, with term which may extend to one y extend to ten thousand rupees, on involves commercial quantity, for a term which shall not be may extend to twenty years and which shall not be less than one d to two lakh rupees: , for reasons to be recorded in xceeding two lakh rupees;

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¶18under Sec and vide rigorous im

¶19of convicti Cr.P.C. it question o court after the parties case. The accused b however th prepare the

¶20Babbu Ba guidelines Section 23

(c) in any other case, with may extend to ten years and one lakh rupees. The Trial Court while deci tion 235 Cr.P.C., heard the pro order dated 07.10.2023 senten mprisonment and imposed a fine The Trial Court convicted the ion on the same day itself i.e. 07 is mandatory to hear the prose of quantum of sentence and it is r convicting an accused adjourn s present all the aggravating and Trial Court though afforded an before imposing the sentence he matter could have adjourned e matter for arguments on the qu The Hon'ble Supreme Court arkare alias Dalap Singh (200 which have to be adhered to w 35 Cr.P.C:

(i) It is duty of court to award to nature of offence.

(ii) Undue sympathy to imp do more harm to the justice

h rigorous imprisonment which d with fine which may extend to iding the quantum of sentence osecution as well as the defence nced the appellant to 5 years e of Rs. 1,000/-. e appellant and passed the order

7.10.2023. Under Section 235(2) ecution and the accused on the generally expected that the trial s the case to a future date to let d mitigating circumstances in the n opportunity of hearing to the of imprisonment for 5 years, to a future date to let the parties uantum of sentence. in the case of State of M.P. v. 05 (5) SCC 413) laid down the while awarding a sentence under d proper sentence having regard pose inadequate sentence would system to undermine the public

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¶21NCT 2011 sentence circumstan

¶22Hon'ble S but not the punishmen

confidence in the efficacy of endure under such serious thr

(iii) Judges in essence affirm to fit the crime; yet in pra largely by other considera correctional needs of the perp a sentence.

(iv) The principle of propor while imposing any form of p justice.

(v) For deciding just and app for an offence, the aggravat circumstances in which a crim delicately balanced on th circumstances in a dispassion

In another case Rajesh Kum 1(13) SCC 706, the Hon'ble A into life imprisonment based nces: -

(i) State had failed to show th threat to the society or th rehabilitation.

(ii) The very fact that the acc society is itself a mitigating c

In Ravji v. State of Rajas upreme Court held that it is the e criminal, which are germane f nt in a criminal trial.

f law and society could not long reats. m that punishment ought always ctice sentences are determined ations - Sometimes it is the petrator that are offered to justify rtionality has to be adhered to punishment to deliver substantial propriate sentence to be awarded ting and mitigating factors and me has been committed are to be he basis of really relevant nate manner by the Court. mar vs. State through Govt of Apex Court commuted the death on the following mitigating hat the appellant is a continuing hat he is beyond reform and cused can be rehabilitated in the ircumstance. sthan (1996(2) SCC 175), the nature and gravity of the crime for consideration of appropriate

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¶23backgroun this Court sentence o dated 07.1

¶24to Rs. 5,

07.10.2023

25.

¶26of.

31.07.2024 parul

Taking into account all the r nd of the principles governing t while taking a lenient view de of the appellant to already und

0.2023 passed by the Trial Cour i. The appellant has three dep ii. He belongs to an econom father is bedridden; and iii. He has already undergon punishment awarded to him, of the total conviction period

However, the appellant shall 000/- from Rs. 1,000/- impos 3 and is hereby directed to be rel The instant appeal stands disp All pending application(s), if

Whether speaking/reasoned:-Whether Reportable:-

relevant aspects of this case in award of appropriate sentence, eems appropriate to reduce the dergone by modifying the order rt as: endent children ; and mically weaker section and his ne a substantive period of the which is more than 4 years out of 5 years. pay the fine which is enhanced sed on him vide order dated leased from custody. posed of in the above said terms. f any, shall also stand disposed

(ALOK JAIN) JUDGE

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