Kanwaljit Singh Ahluwalia, J.@mdashThe instant appeal has been preferred by Ved Parkash son of Hans Raj Aggarwal, whereby he has assailed
his conviction and sentence awarded by learned Judge, Special Court, Sangrur. He stands convicted under Sections 18/20 of the Narcotic Drugs
& Psychotropic Substancs Act (hereinafter to be referred as ""the Act""). He was ordered to undergo RI for ten years and to pay a fine of Rs. one
lac, in default of payment of fine, to further undergo RI for a period of one year u/s 20 of the Act for recovery of 1-1/2 kg. of charas, being
commercial quantity. He has also been sentenced to undergo RI for two years and to pay a fine of Rs. 10,000/-, in default of payment of fine to
further undergo RI for a period of two months u/s 18 of the Act, for having in his possession 500 grams of opium.
2. Both the sentences were ordered to run concurrently.
3. The appellant was sought to be prosecuted in case FIR No. 346 dated 12.9.2004 registered at Police Station Kotwali, Sangrur.
4. The case as set out in the FIR is that SI Jagjit Singh along with his companion police officials was going from Nankiana Chowk towards
Haripura in search of suspicious persons. When the police party reached near Rampura gate, Balbir Singh son of Karam Singh, resident of
Fatehgarh appeared there. SI was having conversation with him when a person coming on a scooter was sighted, who on seeing the police party
speeded up his vehicle but due to overspeed, scooter slipped. The scooter as well as the driver both fell down. The accused tried to run away
from the spot, which raised suspicion and he was apprehended. On opening of the glove box of the scooter, two glazed envelopes were found
lying therein. From one envelope opium was recovered, out of which two samples of 10 grams each were taken. On weighing the remaining bulk
was found to be 480 grams. From the other envelope charas was recovered wrapped in glazed paper, out of which two samples of 10 grams each
were taken and the remaining bulk was found to be 1 kg. 480 grams. The investigation culminated into submission of report u/s 173 Cr.P.C. The
appellant was charged under Sections 18 & 22 of the Act, to which he pleaded not guilty and claimed trial.
5. It would be pertinent to mention here that at the time of sentencing the appellant, the charge was amended from Section 22 to Section 20 of the
Act. Hence, the appellant stands convicted and sentenced under Sections 18 & 20 of the Act, as already described above.
6. In order to substantiate its charge against the appellant, the prosecution examined 6 witnesses in all.
PW. 1 is SI Jagjit Singh, who effected recovery from the appellant and carried out investigation in this case.
PW 2 is ASI Darshan Singh, who was accompanying Jagjit Singh SI and has corroborated his testimony.
PW 3 is Inspector Harjinderpal Singh, who was posted as SHO of the concerned police station at the relevant time. The accused and the case
property were produced before him.
PW 4 HC Kashmir Singh tendered his affidavit Ex.P8.
PW 5 Constable Gurjet Singh also tendered his affidavit Ex.P9.
PW 6 Sukhjit Singh Clerk, DTO Office, Sangrur produced original registration certificate to prove that the scooter, which was taken into
possession from the spot, was owned by Nitin Garg son of Ved Parkash- appellant.
7. In his statement u/s 313 Cr.P.C., the incriminating evidence was put to the appellant. He has stated that he was falsely involved in this case. The
scooter and Rs. 20,000/- were taken by the police from his house.
8. The appellant examined 3 witnesses in his defence.
DW 1 Prinka Garg, who corroborated the stand taken by the appellant in his statement u/s 313 Cr.P.C.
DW 2 Uggar Sain testified that on 12.9.2004 when he was passing in front of the house of the appellant, he saw police officials there and they
were forcibly taking his scooter.
DW 3 is Balvir Singh, who is none else but the independent witness, who was present when the recovery was effected by the Investigating
Agency. He has denied that in his presence any recovery was effected. He has also denied the factum of his signatures having been taken on the
documents, during recovery and investigation.
The appellant had been found to be in conscious possession of 500 grams of opium 1-1/2 kgs. of charas.
9. I have heard Mr. Sanjay Gupta, learned counsel for the appellant and Mr. Mehardeep Singh, Assistant Advocate General, Punjab for the State
and have perused the record with their assistance. Learned counsel for the appellant has also submitted written arguments. The judgment of the
trial court is assailed on the following grounds.
10. It is contended that the Investigating Officer Jagjit Singh PW1 had not prepared the CFSL form at the spot nor the same was deposited with
the Moharrir Head Constable. He further stated that this is fortified from the testimony of Inspector Harjinder Pal Singh, SHO PW3 who has also
stated in evidence that CFSL form was not deposited with the Moharrir Head Constable. Similar is the stand of HC Kashmir Singh PW4. The
learned counsel relied upon the judgments rendered by this Court in Bhola Singh v. State of Punjab, 2005 (2) RCR (Cri) 520 and Gurjant Singh v.
State of Punjab, 2007 (4) RCR (Cri) 227 and stated that this being the material omission, the appellant is entitled to acquittal.
11. The second submission of learned counsel for the appellant is that PW1- Jagjit Singh, Investigating Officer has not handed over the seal to the
independent witness Balbir Singh and the seal after being use was handed over by SI Jagjit Singh to ASI Darshan Singh and the same was
returned on the next day by ASI Darshan Singh to the Investigating Officer Jagjit Singh. It is, thus, contended that ASI Darshan Singh was none
else but was a subordinate of Jagjit Singh. It has further been urged that on the next day i.e. 13.9.2004, SI Jagjit Singh took the case property
from the Moharrir Head Constable and as per the counsel, the case property and seal remained with the Investigating Officer and the possibility of
the sample being tampered with cannot be ruled out. He placed reliance upon the judgments of this Court in Dayal Singh and another v. State of
Punjab, 2007 (2) RCR (Cri) 596 and State of Punjab v. Nachhatar Singh @ Bania 2007 (3) RCR (Cri) 1040. It has further been contended that
neither PW-1 Jagjit Singh, Investigating Officer nor PW4 HC Kashmir Singh has stated that the specimen seal was handed over by I.O. to
Moharrir Head Constable, PW-4. Accordingly, omission in the affidavit of MHC Kashmir Singh that the specimen seal was handed over to him by
the Investigating officer, is fatal, as prosecution failed to establish link evidence. Besides, the above said contentions raised, some inconsequential
submissions have been made by the learned counsel for the appellant. It has been stated that the provisions of Section 50 of the Act were not
followed (Section 50 of NDPS Act is inapplicable in the present case). As no information was sent to the senior officers, there is non-compliance
of Section 57 of the Act. Balbir Singh who attested the recovery memo, had not been examined and furthermore, the samples had not been drawn
in consonance of Para 1.6 of the Standing Instruction No. 1 of 1988. It has further been stated that the chemical examiner has not specifically
mentioned about the nature of scientific test conducted and, therefore, the report of the chemical examiner cannot be accepted by virtue of Section
293 Cr.P.C.
12. On the other hand, learned State counsel has contended that the preparation of CFSL form and deposit of the seal are not the mandatory
provisions and, therefore, the appellant is not entitled to acquittal.
The question raised in the present appeal is that whether non-preparation of CFSL form at the spot and not handing over the seal to the
independent witness will ipso facto entitle the appellant to acquittal or not ?
13. From the judgments of the Hon''ble Apex Court, it is evident that various provisions regarding the search and seizure of the contraband which
provide safeguard have been divided into two categories. Certain provisions have been held to be mandatory in nature. The non-observation of
these mandatory provisions straightway entitle the accused to acquittal but certain provisions have been held to be directory in nature. In case of
not following the directory provisions, the accused has to make out a case of prejudice or to urge that due to not adhering to the directory
provisions, the testimonies of the witnesses ought not to be relied upon. Therefore, the appellate court or the trial court will first analyze the
evidence. In case the testimony of the official witnesses inspire confidence and is free from any blemish, non- following of directory provisions can
be over looked but where the Court comes to the conclusion that there are many loopholes and the official witnesses lack credibility, the Court will
view non-following of directory provisions as fatal to the prosecution case.
14. In the present case, there is recovery of 500 grams of opium and 1500 grams of charas. It has been stated by PW 1 SI Jagjit Singh as under :-
I produced the case property, witnesses and accused before Harjinderpal Singh SHO who made the verification and affixed his seal bearing
impression ""HS"" on all the parcels and also on sample seal Ex.P2 and P3 and made his attestation. On his direction I deposited the case property
with MHC Kashmir Singh. On next day i.e. 13.9.04, I took the case property from MHC and produced the same before the Ilaqa
Magistrate/CJM, Sangrur vide my request Ex.P9 who passed the order Ex.P10 in this regard and handed over the case property to MHC
Kashmir Singh thereafter.
15. In the cross-examination, PW1 SI Jagjit Singh has stated that he has not handed over the seal to the independent witness after use and it was
handed over to ASI Darshan Singh and on the next day, ASI Darshan Singh returned the seal to him. However, he has also stated as under :-
I do not know to whom SHO Harjinderpal Singh handed over his seal after use.
We remained at the spot for about six hours.
Therefore, not only SI Jagjit Singh has affixed the seal but the seal was also affixed by PW3 Inspector Harjinder Pal Singh. PW3 Inspector
Harjinder Pal Singh in his examination-in-chief has stated as under :-
After my satisfaction I affixed my seal bearing impression HS on all the parcels as well as sample seal chit Ex.P2. The parcels were already sealed
with seal JS and the seals were intact.
PW3 Inspector Harjinder Pal Singh even though has stated that no CFSL form was produced before him or deposited with the Moharrir Head
Constable by him and his statement was recorded by SI Jagjit Singh. I hold that the non-preparation of CFSL form in each case will not be fatal to
the prosecution case. Non-preparation of CFSL form on the facts of each case will make the accused entitle to the benefit of acquittal. In the
present case, the testimonies of PW1 SI Jagjit Singh, PW-2 ASI Darshan Singh and PW-3 Inspector Harjinder Pal Singh aspire confidence.
Since, the seal prepared by Inspector Harjinder Pal Singh and affixed on the sample was produced in the Court of Illaqa Magistrate/Chief Judicial
Magistrate, Sangrur on the next day, the Chief Judicial Magistrate, Sangrur passed the following order :-
Case property has been produced before me in the court in the form of two tin containers wrapped in cloth parcels bearing seal impressions
JS/HS, which have been found to be intact along with four sample parcels, all in small tin containers, wrapped in cloth parcels bearing seal
impressions JS/HS. Scooter bearing No. PB-44/5474 marka LML Vespa has been produced. The case property be produced before me has
been signed. The samples have also been signed by me. The case property be kept in police malkhana, if no space in judicial malkhana is availing
with the directions to be produced in the trial as and when required.
Pronounced.
Sd/-
September 13, 2004
(Harsh Mehta)
Chief Judicial Magistrate,
Sangrur
16. Credibility of evidence depends on a judicial evaluation of the totality, and not an isolated scrutiny. Proof should be beyond reasonable doubt,
but it is not necessary that it should be perfect. Applying these standards for appreciation of evidence, this Court has been of the considered view
that non-preparation of CFSL form, non-examination of independent witness or non-adherence to directory provisions of the Act will in itself not
entitle accused to acquittal. There may be cases where testimony of police witnesses require that independent witnesses should be examined.
Similarly, there may be cases where non-preparation of CFSL form will make testimony of witnesses doubtful or there may be instances where
non-observation of directory provisions will be sufficient to hold that witnesses are not reliable. Therefore, submissions made by the counsel in this
case are various indicators upon which Court can place reliance where evidence of witnesses is not trustworthy, but where the Court is of the view
that evidence is free from any blemish, witnesses have no animus, then the indicators pointed out by the counsel in the present case are to be taken
into broad perspective and they in itself will not constitute grounds of acquittal.
17. In view of my discussion above, in the present case, the omissions pointed out by the learned counsel for the appellant will not entitle the
appellant to any benefit. As stated earlier, the submissions have to form overall view regarding the testimonies of the witnesses and they themselves
cannot be the only ground for acquittal. Accordingly, the present appeal being devoid of any merits is dismissed.