In CRA-S-262-SB-2018 (O&M)- PUNJ HC- Sample cloth parcels containing samples of contraband recovery and sent to FSL, whereon it draws adverse opinion against convict, is case property & cannot become withheld by FSL & is required to be returned by FSL to police malkhana: P&H HC –
Justice Sureshwar Thakur [26-08-2022]

Read Order: Buta Khan v. State of Punjab

Monika Rahar

Chandigarh, August 29, 2022: The Punjab and Haryana High Court, while dealing with an appeal in an NDPS Act matter, has held that the sample cloth parcels containing samples of contraband recovery and sent to the FSL whereon an adverse opinion is drawn against the convict, can never become the property of the FSL concerned, “but is case property” and is required to be returned by the FSL to the police malkhana for facilitating its production before the concerned Court.

Only upon its production in Court the factum of it provenly becoming linked with the road certificate and also its apposite link with the report of the FSL would become established, and only after examination of the stuff inside cloth parcels, the same became re-enclosed in them, and thereafter the seals of the FSL become embossed on each sample cloth parcel.

The Bench of Justice Sureshwar Thakur opined,

“The bulk as well as the sample cloth parcels concerned, are case property, and, both are amenable for orders with respect to their destruction or confiscation to the State, as the case may be, being rendered only by the jurisdictionally empowered Court, and, that too upon the completest termination of the trial, as becomes entered into by the jurisdictionally empowered Court(s).”

For the commission of an offence under Section 22 of the NDPS Act, the accused/ appellant was convicted and sentenced to undergo rigorous imprisonment extending up to a term of 10 years and a fine of Rs. 1,00,000/-, besides in default of payment of fine he sentenced the convict to undergo rigorous imprisonment for one year.

Hence, the present appeal was filed before the High Court.

Essentially, on a personal search of the accused, he was found to be in possession of a bag carrying 15 bottles of COREX and nine stripes of LOMOTIL tablets (containing 540 tablets in total). Subsequently, the investigating officer caused the production of the seizure made at the crime site before the concerned SHO and through a memo drawn at the police station concerned, the SHO after properly checking the case property attested the same with his seal impression,  after a ruqa being sent there from the crime site through a police official, by the investigating officer concerned.

Further, a parcel containing one bottle of COREX and another parcel containing 20 tablets of LOMOTIL were sent to the FSL. The FSL opined that each parcel contained prohibited psychotropic substances.

Here, in this case, since the recovery of the contraband was effected from a polybag which was being carried by the accused, rather than effecting such recovery from his person, therefore, the Court was of the opinion,

“Therefore, when only in the latter events [personal search needed], there was a dire statutory necessity qua prior to the making of a personal search of the convict rather by the investigating officer concerned, qua the convicts’ apposite written consent within the ambit of Section 50 of the Act, hence being obtained by the investigating officer concerned. In sequel when given the effectuation of recovery from the polythene bag held, rather by the convict in his right hand, thereupon, the afore recovery, did save the application thereon, qua the mandate of Section 50 of the Act.”

Another aspect which came to be highlighted in this case was that the cloth parcels were unlawfully retained by the FSL. In this respect, the Court opined that the sample cloth parcels whereon an adverse opinion was drawn against the convict by the FSL, can never become the property of the FSL concerned, “but is case property” and is required to be returned, by the FSL to the police malkhana for thereafter its becoming produced in Court, as, only upon its production in Court the factum of its provenly becoming linked with the road certificate, and, also its apposite link, with the report of the FSL, would become established, and, rather only when after examination of the stuff inside cloth parcels, the same, became re-enclosed in them, and, thereafter the seals’ of the FSL become also embossed, hence, on each of the sample cloth parcels.

“Even otherwise, the incriminatory opinion of the FSL concerned, is required to be corroborated, by the production of the apposite sample cloth parcels, as, sent to it, rather before the learned trial Judge concerned, as the primary evidence for relying, upon the report of the FSL concerned, is the stuff inside the sample cloth parcels concerned”, held the Court.

Further, it was observed that the seal impressions, as carried on the bulk as well as on the sample cloth parcels were required to remain in an untampered condition. The evidence in respect of the case property, remaining untampered.

“The bulk as well as the sample cloth parcels concerned, are case property, and, both are amenable for orders with respect to their destruction or confiscation to the State, as the case may be, being rendered only by the jurisdictionally empowered Court, and, that too upon the completest termination of the trial, as becomes entered into by the jurisdictionally empowered Court(s)”, opined the Bench while also adding that the dominion over the bulk parcels, and, or over the sample cloth parcels can neither be assumed by the SHO of the police station concerned, and, nor can be assumed by the Chemical Analyst working at the FSL concerned.

Further, the Court also added,

“The production in Court of the bulk as well as of the sample cloth parcels, as, sent to the FSL concerned, is of utmost importance, as the opinion made by the FSL concerned, on the stuff inside the cloth parcels concerned, would link it with the bulk parcels, yet only upon production of the sample cloth parcels, before the learned trial Judge concerned, as the examined stuff inside the sample cloth parcels, is the primary evidence to prove the charge, and, to also corroborate the opinion of the FSL”.

Also, on the presumption governing the FSL report, the Court asserted that such a report has a rebuttable presumption of truth, and, the accused for availing the right to rebut the presumption of truth attached to the opinion of the FSL concerned, can ask for re-examination by the FSL concerned, of the stuff inside the cloth sample parcels concerned, and, that would occur only when the sample cloth parcels are produced in Court, otherwise not.

“The stuff inside the cloth sample parcels, is the primary evidence, and, report of the FSL concerned, as made in respect thereof is secondary evidence, and, unless primary evidence is adduced before the Court, the secondary evidence does not acquire any probative vigour or any evidentiary worth”, Justice Thakur held. 

Accordingly, the instant appeal was allowed.