FSL Report Was Not Duly Proved In Trial: Punjab & Haryana High Court Sets Aside NDPS Conviction After 20 Yrs
The Punjab & Haryana High Court has set aside a 2005 conviction under the Narcotic Drugs And Psychotropic Substances Act (NDPS Act) observing that the trial court failed to comply with the provision of Section 294 CrPC.
The accused was convicted for transporting a huge commercial quantity of contraband and sentenced to 15 years in 2005.
According to Section 294 CrPC, where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
Further Section 294(3), where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed
Justice Sureshwar Thakur and Justice Sudeepti Sharma said the provision of Section 294 CrPC "is to ensure the furtherance of fair trial as envisaged under Article 21 of the Constitution of India, in respect of the charges drawn against the accused."
The division bench stated that the FSL report could only be proved after the expert testified in the witness box and was subjected to cross-examination by the defence regarding the processes involved. Merely presenting the report by the Public Prosecution would not be sufficient to prove the charges against the accused.
It added that it was a "solemn duty" of the trial court to comply with the provision and can only be exercised when the accused will be called upon to admit or deny the genuineness of the said document.
Jagjit Singh @ Kala was convicted for a charge under Section 15 of the NDPS Act along with Sections 468 IPC and 471 IPC and sentenced to rigorous imprisonment extending up to a period of 15 years and a fine of Rs.1 lakh.
According to the prosecution, in a raid conducted by the police, Singh was found transporting a huge commercial quantity of poppy husk in a truck.
After hearing the submissions and examining the record, the Court found that police officers who conducted the search failed to comply with the provision of Section 42 of the NDPS Act.
The Court said that the police invoked the proviso of Section 42 which empowers the search without obtaining the warrant or authorisation at any time between sunset and sunrise in case the same may afford opportunity to escape the accused but there is no documentary record of the same.
It pointed out that as per the prosecution, the search was conducted in the presence of the DSP, but as the DSP was not empowered to authorise the search, the search could only have been conducted after authorisation by the jurisdictional magistrate in compliance with Section 100 of CrPC.
Moreover, Justice Thakur noted that the alleged sealed contraband was never produced in the Court ignorer to ensure that the seal was sent for FSL in untampered and unspoiled condition.
The bench opined that the prosecution failed to prove the alleged recovery of the contraband which is the "vital incriminatory link."
"The suppression or withholding of the above vital link, thus snaps the link inter se the recovery being made at the crime site, vis-a-vis the apposite incriminatory opinion being made thereons by the FSL concerned," it added.
In light of the above, the Court set aside the conviction and sentencing order stating that the accused should be given the "benefit of doubt."
Mr. Mohinder Singh Kathuria, Advocate (Legal Aid Counsel) for the appellant.
Mr. P.P. Chahar, Sr. DAG, Haryana.
Title: Jagjit Singh @ Kala v. State Of Haryana
Citation: 2024 LiveLaw (PH) 248