Beruflich Dokumente
Kultur Dokumente
____________________________________________________________________________
HARYANA
_____________________________________________________________________________
VERSUS
STATE OF PUNJAB.RESPONDENT
STATEMENT OF JURISDICTION 7
ISSUES RAISED.. 10
PRAYER....... 33
Anr. Another
Dept. Department
Del. Delhi
DW Defence Witness
Edn. Edition
FR Fundamental Rights
Guj. Gujrat
HC High Court
Honble Honorable
HP Himachal Pradesh
Jan January
Nag. Nagpur
Act
P. Page
PS Post Scriptum
PW Prosecution Witness
Raj Rajasthan
S Section
SC Supreme Court
W Witness
INDEX OF AUTHORITIES
Cases Cited
S.No. NAME
1 R V Kelkar,Criminal Procedure (6th ed. 2014)
2 Takwani, Criminal Procedure (3rd ed. 2011)
3 Sarkar, The Code Of Criminal Procedure (10th ed. 2012)
4 S.N Misra, The code of criminal Procedure (17th ed. 2010)
5 Ratam Lal & Dhiraj Lal, The Code Of Criminal Procedure (17th ed.2009)
6 Sharma & Mago, NDPS Laws (3rd ed. 2014)
7 P.M Bakshi, The NDPS Act,1985 Rules(2nd ed. 2009)
8 Dr. Mehanathan, NDPS rues (3rd ed.2015)
9 D.D. Basu ,Criminal Procedure Code(4th ed.2010)
10 M.P. Jain, Indian Constitutional Law,(6th ed. 2013)
11 H.M. Seervai, Constitutional Law Of India (4th ed.)
12 Blacks Law Dictionary, Bryan A, Garner(8th ed.)
STATUES REFFRED
S.No. Name
1. The Constitution of India
2. The Code of Criminal Procedure,1973
3. Narcotic Drugs and Psychotropic Substances Act, 1958
4. The Indian Evidence Act,1872
The appellants appear before the Honble High Court of Punjab & Haryana and the court is
empowered to hear this case by the virtue of Section 36-B of Narcotics Drugs and Psychotropic
Substances Act, 1985 and Section 374 of Code of Criminal Procedure, 1973.
The High Court may exercise, so far as may be applicable, all the powers conferred by chapters
xxix and xxx of the Code of Criminal Procedure, 1973(2 of 1947), on a High Court, as if a
special court within the local limits of jurisdiction of the High Court were a Court of Session
trying cases within the local limits of the jurisdiction of the High Court.
(1)
..
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge
or on a trial held by any other court in which a sentence of imprisonment for more than
seven years has been passed against him or against any other person convicted at the
same trial; may appeal to the High Court.
(3)
..
1. That Satnam Singh along with Balbir Singh were driving back to Patiala from Nabha
where on the way they were stopped to be searched at Police Naka, near Bakhra
Nehar Bridge, on 8/1/15 at 7:30 p.m.
2. That Satnam Singh was asked to open the rear door of the vehicle numbered
PB11XZ2345, where a bag was found at the boot of the car.
3. That search was conducted in the presence of 2 independent witnesses, Sardul Singh
(PW-1) and Deena Nath(PW-2) by head constable Narotam Singh whereby two
packets of contraband were discovered.
4. That further a personal search of Balbir Singh was conducted after Satnam Singh
absconded. A packet of contraband was recovered from his pocket.
5. That a recovery memo of two packets of contraband and a search memo was prepared
and signed by Deena Nath & Sardul Singh as independent witnesses.
6. That the seized vehicle and material were taken to Central Police Station, Patiala
along with Balbir Singh in custody.
7. That the matter was reported to Inspector Joginder Singh, the Station House Officer
about the recovery of 1050, 900 & 80gms of contraband from bag & pocket
respectively.
8. That an FIR no.1234 was recorded on 9/1/15 at 10:00 a.m. u/s. 8(c) r/w Ss. 18 (c), 25
and 29 of NDPS Act, 1985 against Satnam Singh, Balbir Singh and Kuldeep Kaur,
the owner of the said vehicle.
9. That an investigation revealed that Satnam Singh had returned from a family trip
from Rajasthan on 7/1/15. Also that Satnam had no settled way of life yet enjoyed
luxurious life.
10. That the FSL report stated the contrabands to be opium. Police report revealed the
prior conviction of Balbir Singh u/s. 18(c) of NDPS.
11. That during trail, (PW-1), (PW-2), Sub inspector Hakam Singh (PW-3) , Head
Constable Narotam Singh (PW-4) and Hoshiar Singh an investigating officer (PW-5)
13. That Satnam Singh went CPS, Patiala to lodge a complaint on 8/1/15 at about 10:00
a.m. regarding encroachment by one Shamsher Singh. He met Inspector Joginder
Singh, SHO, who marked his complaint to Hakam Singh. Copy of the complaint was
submitted to the court.
14. That Hakam Singh asked Satnam Singh to see him at Naka in the evening on 8/1/15
where Balbir Singh arrested.
15. That Sardul Singh (Dw-1) deposed before the trial court that he had not witnessed any
such search and seizure at Naka on 8/1/15 and also that he was called at CNP, Patiala
to sigh some papers of the contents of which he was unaware of.
16. That the defence pleaded that Deena Nath (DW-2) was a gambler and a stooge of the
police and he had also remained witness in many cases.
17. That the trail court convicted Satnam Singh and Balbir Singh u/s 8(c) r/w S.18 (c) and
u/s 18 (c) r/w 31(1) of the NDPS Act, 1985 respectively.
18. That the appeal is preferred by both Satnam Singh and Balbir Singh before the
Punjab & Haryana High Court.
It is evident on the face of the prosecution version that the appellants were falsely implicated.
The prosecution completely failed to produce a single piece of relevant evidence so as to
prove the appellants liable beyond reasonable doubts. Inconsistency in the chain of events
throughout the prosecution story creates enough room for doubts and suspicion. The facts of
the case are not fairly appreciated by the trial court and in absence of any strong evidence the
appellants were held convicted. The conviction of the accused causes miscarriage of justice
and might lead to evil precedents. The repudiation of the witness and lack of evidences by
the prosecution shows that accused in the instant matter were innocent and trial court has
erred in convicting the accused.
There is gross violation of the provisions regarding the safeguards of search, seizure and
arrest. It is in complete defiance of law. Procedure of search specifically prescribed under
NDPS Act is utterly breached. Section 50 mentioning safeguards while search along with
Section 41, 42, 52(3) & 52A, 57 are being disobeyed. Apart from that, procedure of arrest
mentioned under Chapter V of CrPC is also not complied with.
It is most humbly submitted before the learned court that the appeal is maintainable by virtue
of Section 374(2) of Chapter XXIX of CRPC and by Section 36-B of NDPS Act, 1958.
1
State of Kerala v. Sebastian, 1983 Cri LJ 416,418 (Ker).
2
C K Thakker Takwani and M C Thakker, TAKWANI Criminal Procedure , p. 273, LexisNexis, Third
Edition(2011)
3
R.V. Kelkar, CRIMINAL PROCEDURE, p. 625 Eastern Book Company, Fifth Edition(2011)
4
AIR 2004 SC 524
5
AIR 1978 SC 1548
6
Sita Ram v. State of U.P. AIR 1979 SC 745 (754); Bolin Chetia v. Joghadish, AIR 2005 SC 1872
7
Akalu v. Ram Deo , AIR 1973 SC 2145
A. That the appellants were falsely implicated under the NDPS Act.
A complete hypothetical story was knitted by the prosecution that 1095gms and 900 gms of
opium was recovered from the car and 80gms from the bodily search.
The appellants were snared under NDPS Act for possessing drugs which is a cognizable
offence, by Sub Inspector Hakam Singh.
9
Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178
10
MP Jain , INDIAN CONSTITUITONAL LAW , LexisNexis, Sixth Edition(2012)
11
AIR 1978 SC 597
12
Sita Ram v. State of U.P. , AIR 1979 SC 745 ; Babu v. State of Maharashtra , (1971) 3 SCC 544 ; Prithi Pal Singh
v. Union of India, AIR 1982 SC 1413 ; Union of India v. Charanjit Gill, AIR 2000 SC 3425
14
2008 Cr.L.J 2118 (P&H.)
15
2006 Cr.L.J 1782 (U.P.)
16
Supra note (2) at 31
According to the prosecution version, on 8th Jan 2015, Satnam Singh along with Balbir Singh
was signaled to stop at a Police Naka at about 7:30 p.m. where they recovered packets of
opium.
But the fact is that Satnam Singh; the appellant himself went to Central Police station on 8th
Jan 2015 at about 10:00 a.m. to lodge a complaint. This actuality is established by the
submission on copy of the complaint to the court which is strong evidence in itself.
Moreover, Inspector Joginder Singh marked the complaint of Satnam Singh to Sub Inspector
Hakam Singh, who told Satnam to see him in the evening at Naka Duty. This very fact in
itself creates suspicion on the part of the prosecution that after the complaint was lodged why
17
2006 Cr.L.J 237 (Guj.)
18
2013 Cr.L.J 419 (Del.)
It is also contented by the prosecution that a recovery memo of two packets of the contraband
substance was prepared which was signed by Deena Nath and Sardul Singh as independent
witnesses. Search memo was also prepared and signed witnesses and by Sub Inspector
Hakam Singh and Head Constable Narotam Singh with respect to recovery of the contraband
from the person of Balbir Singh. But none of the memos were submitted to the trial court
which points that there was no proper evidence on record.
An F.I.R. No. 1234 was recorded against the appellants but it cannot be considered as proper
evidence because F.I.R. under Section 154 of CRPC is not a substantive piece of
evidence.20
Therefore, inconsistency and incompleteness in the chain of events throughout the falsely
knitted prosecution story creates doubts and suspicion and in order to prove an accused
guilty, case must be proved beyond doubts. Inspite of enough subsistence of doubts and
suspicion, trail court convicted the appellants which is a huge error.
In criminal law, Blackstone's formulation is the principle that:
"It is better that ten guilty persons escape than that one innocent suffer"
B.2. That the witness (PW-2) repudiated the prosecution version and the authenticity of
(PW-1) as a witness is dubious.
The role of a witness is very important in a trial. He is an indispensable part of the justice
delivery system of any country. According to Bentham, witnesses are the eyes and ears of
justice. Hence, the accuracy and importance of any judgement relies primarily on the quality
of witnesses.21
In the instant case, prosecution deposed before the court Sardul Singh (PW-2), as
independent witness, alleging that he had witnessed the search & seizure at Naka in the
evening on 8th Jan and his sign were obtained on recovery and search memo on the spot.
But, during the trial, Sardul Singh (DW-1) deposed that he had not witnessed any search
or seizure at Police Naka on 8th Jan 2015.
19
2007 Cr.L.J. 3111 (H.P.) (D.B.)
20
Shambu Dass v. State of Assam, AIR 2010 SC 3300
21
Rustam Singh Thakur , Evidentiary Value of Hostile Witness: Chronological Case Law Study to Address Current
Position in India, (AIR) 2012 Cri. L.J. (Jour) 13.
In Ramesh Chand v. State of H.P.22 it was held that the conviction of the accused on the
sole testimony of Investigating Officer can be set aside if the witness in whose presence
search was allegedly carried has denied search and seizure.
In Manoj Sahi v. State23 it was held that if the prosecution has failed to prove the conscious
possession of contraband by the accused as the evidence of prosecution has been
contradicted on materials particulars by their own witnesses, the conviction of the accused
can be set aside.
In Saudan Singh v. State of Rajasthan24 it was held that where independent witnesses to
witness search are not procure, though available, as a search was made on a busy road
leading to the bus stand and a mere formality of securing the presence of independent
witnesses is observed, conviction of the accused in a serious offences like section 50 of NDPS
Act would not be recorded. In the absence of independent witness available the testimony of
police personals would not be believed.
22
2007 Cr. L.J.( NOC) 561 (HP)
23
2008 Cr.L.J. 3216 (Utr.)
24
2002 2 Raj. L.R.124
B.3. That there is delay in sending the samples to FSL without lawful justification.
In the instant case, the alleged recovery of drugs was conducted on 8th Jan 2015 and three
sealed samples from each packet were send to FSL Chandigarh on 26th January 2015. There
was a delay of 18 days in sending the samples of which no lawful justification was advanced.
The immediate sending of samples to FSL would have ruled out the possibility of tampering
the samples.
Such delay of 18days can be taken as sufficient for arranging means to support prosecution
version and thereby implicating the accused thoroughly under the NDPS Act.
In A.N. Patel v. State of Gujrat26 the Apex Court held that It has been repeatedly stressed
that NDPS cases should be tried as early as possible because in such cases normally accused
are not released on bail.
25
AIR 1971 SC 356
26
2003 SC 2127
In Mohd. Salim v. State of Haryana27 it was held that if the sample was send for chemical
examination after a delay of 14 days, the accused would be entitled to be acquitted for non
compliance of the procedure.
In Ramji and others v. State of Chattisgarh28 it was held that if the independent witness
does not support the prosecution story and possibility of the time of search and seizure is
doubtful, the conviction of the accused can be set aside.
In Sitab Khan and another v. State of Rjasthan29 it a held that the samples of opium
taken at the time of search and seizure and sent to FSL became doubtful and the conviction
of the accused cannot be held proper.
In Mukhtiar Singh v. State of Haryana 30 it was held that if there is delay in dispatch of
sample to FSL and the seal remained in the custody of the police, the possibility of tampering
the sample cannot be ruled out.
Therefore, delay in sending the samples create doubt, so the prosecution version is not
proved beyond reasonable doubt. Hence, under the common law principle of benefit of
doubt, the appellants are entitled for acquittal.
27
2008 Cr.L.J. 2897 ( P&H.)
28
2007 Cr.L.J. (N.O.C.) 67 (Chh)
29
2007 Cr.L.J. (N.O.C.) 349 (Raj.)
30
2008 Cr.L.J. 2454 (P.&H)
Police Report revealed that Balbir Singh had been convicted earlier for selling opium in
2005. He was sentenced to Rigorous Imprisonment of 5 years and a fine of Rs. 50000 u/s.
18(c) of NDPS Act, 1985.
But he denied any such conviction.
C.1. That the factum of previous conviction is considered without framing charges for
it.
The purpose of the charge is to inform the accused as precisely and as concisely as possible
of the accusation which he has to answer, and to afford him an opportunity to defend him. 31
The primary object of framing charge is to give notice of essential facts which the
prosecution proposes to establish to bring whom charge to the accused so that he may be able
to defend and may not be prejudiced. A charge is not an accusation in abstract but a concrete
one.32
Section 228(1) of CRPC expressly provides that if the offence is exclusively triable by the
Court of Session, he shall frame a charge against the accused in writing. Section 228(2) of
CRPC further enumerates that the charge shall then be read out and explains to the accused
and he shall be asked whether he pleads or claims to be tried.
31
Srikantiah v. State of Mysore, AIR 1958 SC 672
32
Chitranjan Das v. State of W.B. AIR 1963 SC 1696
Under this case, the charges were not framed regarding the previous conviction; hence
Section 228 is completely violated as the provisions under Section 211 enumerating contents
of the charge are not complied with.
C.2. That the factum of previous conviction is not based on proper evidence on record.
Section 211(7) deals with enhanced punishment. This sub section says how previous
conviction is to be set out. It provides that if any person is previously convicted, is liable for
enhanced punishment and it is intended to prove such previous conviction for the purpose of
affecting the punishment. But, previous conviction of Balbir Singh cannot be proved due to
lack of proper evidence on record. Regarding this, in Govind34 it was held that it is intended
to prove a previous conviction for the purpose of enhancing the punishment; it should be
entered in the charge and the accused should be called on to plead thereto; his mere
admission that he had been in jail once is insufficient to show that he pleaded guilty to a
previous conviction.
In this case, none of the grounds required by Section 211(7) as no charge was entered into
and the appellant pleaded not guilty. Therefore, the aspect of enhanced punishment can be set
aside because appellant has been sentenced under section 31(1) of NDPS Act which deals
with enhanced punishment.
Section 298 of CRPC manifests proving previous conviction or acquittal. It deals with certain
requirements which are essential with regard to previous conviction. In any trial previous
conviction may be proved by-
Section 298(a) by an extract certified under the hand of an officer having the custody of the
33
1986 (1) Crimes 133 (Ker.)
34
(1902) 4 Bom LR 117
35
(1916) 43 Cal 1128
36
S Weir 266
37
2007 Cr.L.J. 880 (S.C.)
Section 50 states that, any officer duly authorized under Section 42 is about to search any
person under the provisions of Section 41, 42 or 43..
In the instant case, No search warrant for the arrest was issued by the magistrate, therefore
Section 41 is not invoked. Section 42 authorizes power of entry, search, seizure and arrest
without warrant or authorization. But section 42 is completely violated by the prosecution as
it expressly mentions that if any officer being superior in rank to a peon, sepoy or constable
has a reason to believe from persons knowledge or information given by any person and
taken down in writing .......may enter.seize.....detain....
But in this matter, there was no prior information or a reason to believe from persons
knowledge. Moreover, nothing was taken down in writing. But here the search is conducted
on the basis or mere suspicion.
Section 42(2) requires that the information taken down in writing by the officer shall within
72 hours send a copy to his immediate official superior. This is also in violation.
Section 43 of NDPS Act prescribes the power of seizure and arrest in public place.
It states that any officer of any of the dept. in Section 42 may
seize.detain.search..arrest any person in any public place or transit for an offence
punishable under this act if he has any reason to believe an offence punishable under this act
has been committed
But in the instant case there is no such explicit and evident reason to believe the commission
of an offence under this Act.
38
State of Punjab v. Balbir Singh, 1994 (3) SCC 299 , Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994
(6) SCC 569, Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat, 1995 (3) SCC 610
39
1994 (3) SCC 299
B. That Section 52 (1) & Section 52A of NDPS Act are grossly violated.
Section 52 deals with the disposal of persons arrested and articles seized.
Clause 1 mentions that any officer arresting person under Section 41, 42 and 43 shall, as soon
as may be, inform him of the grounds for such arrest.
In the instant case, none of the above mentioned Sections were complied with which
authorizes any officer to arrest a person. Moreover, the grounds for the arrest were not
informed.
Therefore, this results in violation of Section 52 (1).
Section 52-A, deals with the disposal of seized Narcotic Drugs and psychotropic substances.
Clause 2 mentions that where any such substances has been seized and forwarded to the
officer empowered...........he shall prepare inventory of such substances containing details
relating to their description, quality, quantity, mode of packing marks.......and make an
application to any Magistrate for the purpose of....(1) certifying the correctness of the
inventory so prepared...(2) taking photographs of such inventory and certifying it by the
Magistrate (3) allowing to draw representative samples of such drugs and substances in the
presence of Magistrate and certifying it correctness.
No such step was taken by the prosecution. No inventory was prepared. There was no
involvement of the Magistrate and his certification.
There is clear cut violation of Section 52A which is mandatory as one of the most important
aspect of the procedure of search & seizure.
Clause 4 of Section 52-A mentions that every court trying an offence under this Act, shall
treat the inventory, photographs, samples are certification by the Magistrate, as primary
evidence in respect of such an offence.
But the provision of primary evidence is nullified as no such procedure was followed.
Most of the provisions of the procedure established by law are majorly voilaled which are
substantial in nature. Therefore, non compliance of these aspects embraces the fact that the
alleged procedure of search and seizure does not stand the scrutiny of law.
State of Rajasthan v. Rehman40 it was held that "the recording of reasons in an important
step in the manner of search and to ignore it is to ignore the material part of the provision
govering searches. If that can be ignored, it cannot be said that the search is carried out in
accordance with the provisions of the Code, it would be a search made in contravention of
the provisions of the Code."
Section 165(4) provides that provision as to searches provided in Section 100 shall apply to
search made under this section. Section 100(4) expressly requires the presence of two or
more independent and respectable witnesses at the time of search. In the instant case, denial
of witnessing the search by one of the witness and the dubious character of the other, as he
was a gambler, infringes the requirement of this section. Hence, it is completely violated.
Section 165(5) further provides that the copies of the record shall be sent to the nearest
Magistrate empowered to take cognizance of the offence....
No such procedure was followed by the prosecution. It clearly defies this section.
40
AIR 1960 SC 210
41
1976 CrLJ 274 (ALL- FB)
Wherefore in the lights of aforesaid facts, issues raised, arguments advanced and authorities cited
it is most humbly prayed that this Hon'ble Court may graciously be pleased to-
B- Reconsider the facts of the case and closely scrutinize the grounds of conviction.
AND/OR
grant such other relief as the court may deem fit in the light of justice, equity and good
conscience.
AND FOR THIS ACT OF KINDNESS THE APPELLANTS SHALL DUTY BOUND EVER PRAY.