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5TH RGNUL NATIONAL MOOT COURT COMPETITION, 2016

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IN THE HONBLE PUNJAB AND HARYANA HIGH COURT AT


CHANDIGARH
CRIMINAL APPEAL NO.. OF 2016

IN THE MATTER OF:

SATNAM SINGH

... APPELLANT-1

BALBIR SINGH

APPELLANT-2

V.

RESPONDENT

STATE OF PUNJAB

CRIMINAL APPEAL AGAINST CONVICTION


UNDER 36B OF NDPS ACT R/W 374 OF CRPC

MEMORANDUM ON BEHALF OF THE APPELLANTS

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS
S. NO.

PARTICULARS

PAGE NO.

1.

LIST OF ABBREVIATIONS

ii

2.

INDEX OF AUTHORITIES

iii

3.

STATEMENT OF JURISDICTION

viii

4.

STATEMENT OF FACTS

ix

5.

ISSUES RAISED

xi

6.

SUMMARY OF ARGUMENTS

xii

7.

ARGUMENTS ADVANCED
I.

1-20

WHETHER RESPONDENT HAS PROVED THE ALLEGED OFFENCE


AGAINST THE APPELLANTS?
A. That Appellants have explained the presence at the spot.
B. That the prosecution has not established conscious possession
of the opium.
C. That the recovery has not been satisfactorily proved.
D. That there is no culpable state of mind.

II.

WHETHER ANY FALSE CASE HAS BEEN IMPLICATED AGAINST


THE APPELLANTS?
A. That there has been inordinate and unexplained delay in
sending samples to the FSL.
B. That there is deep gaping missing link regarding safe custody
of the contraband.
C. That delay in FIR creates a serious doubt on the story of
prosecution.

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D. That there is presence of motive to falsely implicate the


appellants.
III.

WHETHER THE PROCEDURE ALLEGED TO BE ADOPTED IN


SEARCH AND SEIZURE STANDS THE SCRUTINY OF LAW ?
A. That the prosecution has failed to associate independent
witnesses to the search.
B. That evidence of hostile witness cannot be rejected in toto.
C. That evidence of a stock witness is unworthy of credit.
D. That testimony of official witness is after consultation and
deliberation.

IV.

WHETHER THE PROCEDURAL SAFEGUARDS UNDER 50 OF


NDPS ACT, 1985 HAVE BEEN COMPLIED WITH OR NOT?
A. That the mandatory provisions have not been complied with.
B. That non-compliance of the provision vitiates the recovery.

V.

WHETHER THE ENHANCEMENT OF SENTENCE BASED ON


PREVIOUS CONVICTION IS VALID OR NOT?
A. That non-framing of charge has caused prejudice to the
accused.
B. That identity of the accused has not been proved.
C. That there is failure of justice due to question regarding
previous conviction.

8.

21

PRAYER

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LIST OF ABBREVIATIONS

S. NO.

ABBREVIATION

FULL FORM

1.

&

And

2.

Section

3.

Alias

4.

AIR

All India Reporter

5.

Anr.

Another

6.

CrLJ

Criminal Law Journal

7.

CrPC

Code of Criminal Procedure

8.

DW

Defence Witness

9.

ed.

Edition

10.

F.I.R

First Information Report

11.

HC

High Court

12.

NCB

Narcotics Control Bureau

13.

NDPS

Narcotic Drugs and Psychotropic Substances

14.

NOC

Notes On Cases

15.

Ors.

Others

16.

PW

Prosecution Witness

17.

P&H

Punjab and Haryana

18.

r/w

Read with

19.

SC

Supreme Court

20.

SCALE

Supreme Court Almanac

21.

SCC

Supreme Court Cases

22.

SI

Sub Inspector

23.

v.

Versus
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INDEX OF AUTHORITIES
BOOKS REFERRED:
S. NO.
1.

BOOK NAME
Dibyajyoti De, Guide to Narcotic Drugs and Psychotropic Substances Act
(Wadhwa& Co., Nagpur 2003).
Dr. M.C. Mehanathan, Law of Control on Narcotic Drugs and

2.

PsychotropicSubstances in India (2nd ed. Capital Law House, Delhi 2007)


3.

2 Dr. V. Kesava Rao, Sir John Woodroffe & Syed Ameer Alis Law Of Evidence
(18th ed. Lexis Nexis Butterworths Wadhwa, Ngpur 2008)

4.

Justice C.K. Thakker, Law of Evidence (2nd ed.Whytes& Co., New Delhi 2015)

5.

K.P. Kataria, Law Relating to Narcotic Drugs and Psychotropic Substances in


India (3rd ed. Orient Publishing Co., New Delhi 2010)

6.

Sir John Woodroff, Code of Criminal Procedure (3rd ed. Law Publishers Pvt.
Ltd., Allahabad 2009)

STATUTES REFERRED:
S. NO.

NAME OF THE STATUTE

1.

THE INDIAN EVIDENCE ACT, 1872

2.

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985

3.

THE CODE OF CRIMINAL PROCEDURE, 1973

RULES REFERRED:
S. NO.
1.

NAME OF THE RULE


PUNJAB POLICE RULES, 1934

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NCB INSTRUCTIONS

2.

JOURNAL REFERRED:
S. NO.
1.

NAME OF THE JOURNAL


SHRIYA GAUBA, PREVIOUS CONVICTION, CRIMINAL LAW JOURNAL, MARCH,
2015, 11.

WEBSITES REFERRED:
S.NO.

NAME OF THE WEBSITE

1.

www.airwebworld.com

2.

www.judis.nic.in

3.

www.manupatra.com

4.

www.scconline.com

WEB LINKS REFERRED:


S. NO.
1.

NAME OF THE WEBLINK


Decision making in criminal cases by trial courts - factors leading to prejudice:
a functional study (March 7, 2016) available at:
http://shodhganga.inflibnet.ac.in/bitstream/10603/12751/13/13_chapter%204%2
0%20part%202.pdf.

2.

Distance between Patiala Nabha Rd. (March 6, 2016) available at:


http://distancecalculator.globefeed.com/India_Distance_Result.asp?state=23&fro
mplace=PatialaNabha%20Road%2C%20Rauni%2C%20Punjab%2C%20India&toplace=Patiala
%2C%20Punjab%2C%20India%2C&dt1=EihQYXRpYWxhLU5hYmhhIFJvY

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WQsIFJhdW5pLCBQdW5qYWIsIEluZGlh&dt2=ChIJ3xMzWpMoEDkRf7yQO
61WvNU.

CASES REFERRED:
S. NO.

CASE NAME

CITATION

PG. NO.

Ajay Malik and others v. State of U.T.,

2009(3) R.C.R.

27

Chandigarh

(Criminal) 649

2.

Ajaya Kumar Naik v State of Orissa

1995 Cri.L.J. 82

20

3.

Ajmer Singh V. State of Haryana

(2010) 3 S.C.C. 746

25

4.

AsharfiChoudhary v. The State of Bihar

2013 Cri.L.J. 1176

18

5.

Ashok @ Dangra Jaiswal v. State of M.P.

A.I.R.2011S.C.1335

26

6.

Ashok Kumar Sharma v. State of Rajasthan

(2013) 2 S.C.C. 67

30

7.

Babu Lal v State

A.I.R. 1960 All. 290

33

8.

Balwinder Singh v. State of Punjab

2014(2)R.C.R.

17

1.

(Criminal)568
9.

Dillip Kumar Sabat vs State of Orissa

2015 Cri. L. J. 543

21

(Ori.)
10.

Ghisulal v State of Madhya Pradesh

1977 Cri.L.J. 88

33

11.

Himanshu @ Chintu v. State (N.C.T. of Delhi)

(2011) 2 S.C.C. 36

26

12.

Jagdesh v State of Madhya Pradesh

1981 S.C.C. (Cr.)

23

676
13.

JinabhaiKalabhai Rajput v. State of Gujarat

1998 Drug Cases

17

388 (D.B.)
14.

Jitendra and another v. State of MP

2004 (1) E.F.R. 22

27

15.

Joseph Fernandez v. State of Goa

(2000) 1 S.C.C. 707

32

16.

Kalekhan v. State of M.P.

1990Cri.L.J.1119

16

17.

Karnail Singh v State of Rajasthan

2000Cri.L.J.4635

20

18.

Kesharimal R. Mahajan vs State of MP

2007 Cri. L. J.

27

(N.O.C.) 696 (M.P.)


19.

Krishnapal Singh vs State of Madhya Pradesh

2012 Cri. L. J. 2991

19

(Chh)
20.

MaibamBirahari v. Manipur Administration

A.I.R. 1967 Mani 41

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21.

Makhan Singh v. State of Haryana

2015 Cri.L.J. 3282

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16, 26

S.C.
22.

23.

Mohammed Salim Mohammed Issak Shaikh v.

2000 Vol. 102(2)

State of Maharashtra

Bombay L.R. 243

Murlidhar Yadav Patil v State of Maharashtra

1978(80)BOM.L.R.

28

35

90
24.

Prabha Shankar Dubey v. State of M.P.,

(2004) 2 S.C.C. 56

32

25.

Pratap v. State of U.P.

A.I.R. 1976 S.C. 966

24

26.

Raghbir Singh and Anr. v. State of Punjab

2008(1)R.C.R.(Cr.)

19

510
27.

Ramjan vs State of U.P.

2011 (1) A.L.J. 581

23, 25

28.

Rishi Dev @ Onkar Singh vs State (Delhi

Crl. M (B) A. No.

18

Admn.)

799/2007

29.

Sajjan Sharma v State of Bihar

A.I.R. 2011 S.C. 632

32

30.

Sant Singh v. State of Punjab

2010Cri.L.J. 4129

18

31.

Srikandaraja v. State

2014-2-

34

L.W.(Cri.)515
State of Gujarat v. KumuchandraPranjivan

1997 S.C.C. (Cri.)

Shah

750

State of Himachal Pradesh vs Mukesh Kumar

2015 Cri. L. J.

and another

(N.O.C.) 105 (H.P.)

34.

State of Kerala v. Shijil

2011 (1) K.L.J. 447

34

35.

State of Punjab v. Baldev Singh

A.I.R. 1999 S.C.

30, 31

32.

33.

28

15

2378
36.

State of Punjab v. Nachhattar Singh @ Bania

2007(3)R.C.R.(Cri.)

15

1040
37.

Suresh and Ors vs State of Madhya Pradesh

2013 Cri.L.J. 474

32

(S.C.)
38.

Umer Saheb Burai Saheb Inamdar v. State

1960 Cri.L.J. 573

35

39.

Valsala v. State of Kerala

A.I.R. 1994 SC 117

18

40.

Vijaysinh Chandubha Jadeja v. State of

(2011) 1 S.C.C. 609

30, 31

Gujarat

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STATEMENT OF JURISDICTION
The Appellants approach the Honble High Court of Punjab and Haryana under 36B1 of the
Narcotic Drugs and Psychotropic Act, 1985 which deals with appeal from Special Court r/w
374(2)2 of the Code of Criminal Procedure, 1973 which deals with appeal against
conviction.

36B. Appeal and revision.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 1974), on a High Court, as if a Special Court within the
local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of
the jurisdiction of the High Court.
2
374. Appeals from convictions.
(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may
appeal to the Supreme Court.
(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) Save as otherwise provided in sub- (2), any person,(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first
class or of the second class, or
(b) sentenced under 325, or
(c) in respect of whom an order has been made or a sentence has been passed under 360 by any Magistrate,
may appeal to the Court of Session.

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STATEMENT OF FACTS
I.
TRIAL AND APPEAL
1. Satnam Singh, Balbir Singh and Kuldeep Kaur were tried by the Special Court for
offences under NDPS Act, 1985. As a result, Satnam Singh and Balbir Singh were
convicted and Kuldeep Kaur was acquitted. Dissatisfied by the decision of the trial court,
both the convicts have preferred an appeal in the Punjab and Haryana High Court.
II.
PROSECUTION VERSION AT THE TRIAL
2. Both the Appellants were halted at Naka at around 7:30 p.m. on 8th of January for the
search of the vehicle. Satnam Singh hesitated for the search. Nevertheless, the search was
conducted and a bag was found in the rear of the car. The search of the bag was
conducted in the presence of two independent witnesses, Deena Nath and Sardul Singh,
from which 1950 grams of opium was found. Satnam Singh ran away from the spot.
Thereafter, personal search of Balbir Singh was conducted after giving him a due option
of being searched in front of Magistrate or Gazetted Officer. He submitted to search by
police officer. 80 grams of opium was found from him too.
3. All the material was taken to the police station and the matter was reported to the SHO.
FIR was registered in the morning of 9th of January. Satnam Singh was arrested from his
home. The seized material was sent to FSL for examination. After due investigation and
interrogation, police report was filed under 173(2) of CrPC. Trial was commenced and
prosecution tried to base its case by examining its witnesses, submitting the reports of

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FSL, submitting the ownership proof of vehicle in the name of Kuldeep Kaur and
tendering the copy of judgment regarding the previous conviction of Balbir Singh in
2005. Examination of all the accused was also done u/s 313 of CrPC.
III.
DEFENCE VERSION AT THE TRIAL
4. The defence pleaded that the accused have been falsely implicated. As there was a dispute
between Satnam Singh and one Shamsher Singh regarding boundary wall, which
Shamsher Singh encroached upon taking benefit of his absence. He was a person with
influential links.
5. Satnam Singh went to the police station to report about the said incident. His complaint
was marked by SHO to SI Hakam Singh. He asked Satnam Singh to meet him at the Naka
Duty in the evening. When he actually went there, he was taken to the police station and
was put in lock up.
6. Sardul Singh deposed on behalf of the defence and said that he did not witness any search
and his signatures on some papers were taken on the next day.
7. Defence pleaded that Deena Nath is a gambler and a stooge of police. It also pleaded that
Hakam Singh was out to favour Shamsher Singh.
IV.
DECISION OF SPECIAL COURT
8. The Special Court, after considering all the material on record, convicted Satnam Singh
and Balbir Singh of offences u/s 8(c) and 18(c). Balbir Singh was also convicted u/s 31 of
NDPS Act, 1985. The court acquitted Kuldeep Kaur of all charges.
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ISSUES RAISED
THE APPELLANTS RESPECTFULLY ASKS THE HONBLE PUNJAB & HARYANA HIGH COURT THE
FOLLOWING QUESTIONS:

ISSUE-I
WHETHER RESPONDENT HAS PROVED ALLEGED OFFENCE AGAINST THE APPELLANTS?
ISSUE-II
WHETHER ANY FALSE CASE HAS BEEN IMPLICATED AGAINST THE APPELLANTS?
ISSUE-III
WHETHER THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH AND SEIZURE STANDS THE
SCRUTINY OF LAW?
ISSUE-IV
WHETHER THE PROCEDURAL SAFEGUARDS UNDER 50 OF NDPS ACT, 1985 HAVE BEEN
COMPLIED WITH?
ISSUE-V
WHETHER THE ENHANCEMENT OF SENTENCE BASED ON PREVIOUS CONVICTION IS VALID?

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SUMMARY OF ARGUMENTS
ISSUE-I
WHETHER RESPONDENT HAS PROVED THE ALLEGED OFFENCE AGAINST THE APPELLANTS?
It is submitted that all the necessary essentials to prove the offences under the NDPS Act
have not been satisfied viz., presence, conscious possession and recovery of the contraband.
Hence, the conviction of both the Appellants should be set aside and they should be set free
at liberty.
ISSUE-II
WHETHER A FALSE CASE HAS BEEN IMPLICATED AGAINST THE APPELLANTS?
It is submitted that a false case has been fabricated against the Appellants. There is an
unexplained delay in filing the FIR sending the samples to FSL, Chandigarh, which creates a
serious doubt of possible tampering. Moreover, there is a motive of enmity for Shamsher
Singh to falsely implicate the Appellants.
ISSUE-III
WHETHER THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH AND SEIZURE STANDS THE
SCRUTINY OF LAW?
It is submitted that the procedure adopted does not stand the scrutiny of law as thestatement
of the witness that has turned hostile cannot be discarded in toto. Secondly, the other witness
is a stock witness. Lastly, even if the statement of both the witness is kept out of
consideration then also, conviction cannot be based solely on official witnesses as they are
also not reliable in the present case.

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ISSUE-IV
WHETHER THE PROCEDURAL SAFEGUARDS UNDER 50 OF NDPS ACT, 1985 HAVE BEEN
COMPLIED WITH?
It is submitted that the requirements under 50 have not been complied with. The objective
of 50 is to avoid the planting of a false case. It is a mandatory provision, substantial
compliance of which is not acceptable. In the light of various Supreme Court Judgments, it
can be said that there is no compliance of 50 in the present case and the Appellants should
be acquitted.
ISSUE-V
WHETHER THE ENHANCEMENT OF SENTENCE BASED ON PREVIOUS CONVICTION IS VALID?
It is submitted that the enhanced punishment should not be upheld as the Appellant-2 was
caught by surprise due to non-framing of charge for enhanced punishment under 31 of
NDPS Act. Moreover, there was no proper evidence on record for the same. And the
examination of the Appellant-2 under 313 of CrPC regarding previous conviction shows
that the learned Judge applied his judicial mind with a preconceived notion.

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ARGUMENTS ADVANCED
MOST RESPECTFULLY SHOWETH:

I.

WHETHER RESPONDENT HAS PROVED THE ALLEGED OFFENCE


AGAINST THE APPELLANTS?

A. THAT APPELLANTS HAVE EXPLAINED THE PRESENCE AT THE SPOT

1. It is humbly submitted that the Appellants have explained the purpose of visit and
presence at the spot
Appellant 1: That there was no one heeding to the complaint of the Appellant. He was
left to his own resource after observing the indifferent attitude of the Police Official to
his matter. He had to personally call up SI Hakam Singh to inquire and investigate
into his matter. SI Hakam Singh laid down a trap to call him to a particular spot to
meet him regarding the same.
Appellant 2: That since Appellant-1 was exploiting all means possible to save his
property from criminal trespass. He reposed trust upon Appellant-2, his brother-in-law
that he will be in a better position to convey the hardship suffered by Appellant-1 so
that Police Authorities may take the matter seriously. So, Appellant-2 accompanied
Appellant-1 to the naka.

B. THAT THE PROSECUTION HAS NOT ESTABLISHED CONSCIOUS POSSESSION OF THE OPIUM
2. It is submitted that unlawful possession is sine qua non for conviction under the Act and
that fact has to be established by the prosecution beyond reasonable doubt. The
prosecution has utterly failed to establish conscious possession of the appellants over the
allegedly recovered opium.
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3. In a case3, it has been held Though possession has not been defined in the Act but has
been judicially construed to be conscious and intelligent possession and not merely the
physical presence of the accused in proximity or even in close proximity of the object.
4. The prosecution has proven no link of evidence to show that that the possession was in
conscious possession, mere factum of presence of the accused at the place of recovery
does not prove that he was in possession of it, possession must be intelligent possession.
Appellant 1: In a case4, where Police intercepted the vehicle which accused was
driving and allegedly 850 gms of Charas was recovered from vehicle of accused.
However, no clear, cogent, convincing and reliable piece of evidence on record to
prove that accused were found in conscious and exclusive possession of contraband. It
was held that acquittal of the accused is proper. In respect of contraband articles
concealed in the body of the vehicle, the driver of the car cannot be ascribed with the
possession of that article unless there are circumstances to show that he had
knowledge of such concealment.5
Appellant No. 2: It is humbly submitted that the prosecution has led no evidence to
establish that Balbir Singh (Appellant No.2) was in possession of the opium. Mere
fact that he was sitting in the car does not go on to show that he was aware of any
opium in the car. He was merely accompanying the other accused and all his
statements go on to show that there was no animus of possession on the opium
found from the boot of the vehicle. In a case of6 is notable in which the accused was
found travelling in the car from which some quantity of opium has recovered. The
court held that A driver of a vehicle, is certainly in possession of the vehicle in
question, but he cannot be said to be in possession of any article or thing concealed in

State of Punjab v. Nachhattar Singh @ Bania, 2007(3) R.C.R. (Criminal)1040.


State of Himachal Pradesh vs Mukesh Kumar and another, 2015 Cri. L. J. (N.O.C.) 105 (H.P.)
5
Dibyajyoti De, Guide to Narcotic Drugs and Psychotropic Substances Act 343 (Wadhwa & Co., Nagpur 2003).
6
Kalekhan v. State of M.P, 1990CriLJ1119.
4

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the body of the vehicle, unless there are circumstances indicating knowledge to the
driver of such concealment. Thus, like a person in possession of land, does not
become the possessor unless he is aware of its existence.

C. THAT THE RECOVERY HAS NOT BEEN SATISFACTORILY PROVED


5. It is submitted that the prosecution case has serious lacunae regarding the factum of
recovery of contraband from the accused. It is pertinent to note that the independent
witness to the recovery has deposed in the Appellants favour, the other witness
character has been called into serious question and his testimony is doubtful at best. The
only remaining proof of recovery being the testimony of official witnesses.
6. In a case7 the independent witnesses to the recovery turned hostile and deposed in favour
of the defendant. The Honble Supreme Court held that the lower courts had placed undue
reliance on the testimony of official witnesses. In such circumstances, in Courts view,
the High Court ought not to have overlooked the testimony of independent witnesses,
especially when it casts doubt on the recovery and the genuineness of the prosecution
version.
7. In another case8, the independent witness to the search deposed in favour of the
defendant, and the court held that there was a material flaw in the prosecution case and
the accused was entitled to benefit of doubt.
D. THAT THERE IS NO CULPABLE STATE OF MIND
8. It has been held9 that only in the case where prosecution had led convincing evidence
regarding search and recovery from the exclusive possession of the accused then the
presumption under 35 and 54 of the Act can be drawn.

Makhan Singh v. State of Haryana, 2015Cri.L.J.3282.


Balwinder Singh v. State of Punjab, 2014(2)R.C.R.(Criminal)568.
9
Jinabhai Kalabhai Rajput v. State of Gujarat, 1998 Drug Cases 388 (D.B.).
8

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9. In the instant case, since there are major missing gaps in the procedure of search and
recovery, no presumption regarding culpable state of mind can be raised.

II.

WHETHER APPELLANTS HAVE BEEN FALSELY IMPLICATED IN THE


CASE?
A. THAT THERE HAS BEEN INORDINATE AND UNEXPLAINED DELAY IN SENDING
SAMPLES TO THE FSL

10. It is submitted that recovery of the opium has been planted on the Appellants. In
arguendo, while not conceding the fact that opium was recovered from the Appellants,
there are serious doubts in the case of the Respondents which learned Special Court
seems to have ignored. In the instant case that the recovery of the opium was affected
from the appellants on the 8th January, 2015 whereas the samples were sent to the
Forensic Science Laboratory on the 26th of January, 2015. Thus, there has been a delay of
nearly 18 days in sending the samples for chemical examination. No explanation has been
forthcoming from the prosecution to explain this delay.
11. It has been held10that as long as it is shown that the seized article has been kept in proper
custody and proper form during the period it was so kept in the malkhana, the delay in
sending the sample for testing would not be fatal. However, there must be evidence to
show as to what happened in the interregnum. This was stated to be an important link.
12. In a case11, 5 kg. Ganja was seized from accuseds bag. Ganja was not weighed at time of
seizure, even then its weight was mentioned in memo. FSL received seized packet nearly
after 15 days of seizure. No specimen impression of seal was mentioned in FSL report.
Delay in delivering bag at FSL was unexplained. No evidence, explaining about custody

10
11

Valsala v. State of Kerala, A.I.R. 1994 S.C. 117.


Krishnapal Singh vs State of Madhya Pradesh, 2012 Cri. L. J. 2991 (Chh.).

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of seized bag during those 15 days was given. Malkhana register was not produced in
evidence. Officer-in-charge of Malkhana, was not examined by prosecution. It was held
that Prosecution has failed to prove charges. Accused entitled to acquittal.
13. There is a time limit of 72 hours stipulated by the Narcotics Control Bureau for a seized
sample to be deposited with the Chemical Examiner for testing. This rule is salutary
because any attempt at tampering with the sample recovered from the accused can have
fatal consequences to the case of the prosecution. Strict compliance has to be insisted
upon in such an event.12
14. In a case13 the accused was entitled to benefit of doubt and acquitted where there was a
delay of 12 days in sending the samples to the FSL and it was held Once the testimony
of police witnesses is held not reliable, the Court always looks for independent
corroboration, non-sending of sample for a period of 12 days assumes importance.
15. In a case14, the facts were silent as to sealing of contraband as well as sample after seizure
and there was a delay of more than one month in dispatch of the samples from the
contraband seized to the Forensic Science Laboratory. Due to non-explanation of delay
by Officer in-charge of Police Station, the accused was given the benefit of doubt..
16. In Raghbir Singh and Another v. State of Punjab15 the following observations were made
The prosecution, when it seizes the samples and retrieves the case property of a
contraband, has to accord due sanctity to the same by preserving them in a manner that
when it is tested against its version, the same are not found wanting. The punishment
under the provisions of the Act is stringent and, therefore, the safe-guards, which have
been prescribed and encapsulated in it, require strict adherence, the failure to do so

12

Rishi Dev @ Onkar Singh vs State (Delhi Admn.), Crl. M (B) A. No. 799/2007.
Sant Singh v. State of Punjab , 2010 Cri.L.J.4129.
14
Asharfi Choudhary v. The State of Bihar , 2013Cri.L.J.1176.
15
2008(1)R.C.R.(Criminal)510.
13

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causes sufficient doubt and the benefit of the same necessarily has to go to the accused
persons.
17. It is humbly submitted that it is not clear as to how the seized contraband was handled
during the period between 08.01.2015-26.01.2015. It is also not clear that by whom the
samples were delivered to FSL on the day of 26 January, 2015 which is a national
holiday. Thus, any benefit of doubt must go in favour of the accused as no explanation is
forth-coming as far as the inordinate delay in the sending of samples is concerned.

B. THAT THERE IS DEEP GAPING MISSING LINK REGARDING SAFE CUSTODY OF THE
CONTRABAND
18. In the instant case, the vital link of evidence is missing as there is no convincing evidence
as to whose custody the seized articles were kept. It is not clear as to how the seized
contraband was handled during the period between 08.01.2015 till 26.01.2015. It is also
not clear from the evidence of the prosecution that the samples sent for chemical
examination was taken from the contraband seized in presence of the appellant.
19. That there is clear violation of 55 of NDPS Act16 which mandates an officer in-charge
of the police station to take charge and keep in safe custody of articles seized under the
Act which may be delivered to him and to affix his seal to such articles or to take samples
and all samples so taken shall also be sealed with a seal of the Officer-in- charge of the
police station. In the case17, In-charge of the Police Station had not affixed his seal on the
articles and the samples, the whole of the procedure followed was held to be illegal,
entitling the appellant to be acquitted.

16

An officer-in-charge of a police station shall take charge of and keep in sage custody, pending the orders of the
Magistrate, all articles seized under this Act within the local area of that police station and which may be
delivered to him, and shall allow any officer who may accompany such articles to the police station or who may
be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples
so taken shall also be sealed with a seal of the officer-in-charge of the police station.
17
Karnail Singh v State of Rajasthan, 2000Cri.L.J.4635.

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20. It has been held18 that the incriminating materials recovered from the accused and duly
identified during the proceeding go a long way in connecting the accused in the case.
Therefore, it is all the more necessary and imperative on the part of the investigating team
to seal it in such a manner and keep it in in such custody so as to wipe out the slightest
doubt in the mind of the Court that there could not have been any possibility whatsoever
that the article so seized could be tampered with before it could reach the public analyst.
21. In the instant case the facts are hushed about the fact of sealing of the seized contraband.
Moreover, Inspector Joginder Singh, Station House Officer of the Central Police Station,
Patiala has not been made as a witness to explain the safe custody of the seized
contraband. In a case19 where the Circle Inspector of the Police has maintained total
silence as to where those contraband items said to have been seized in the case were kept
till their production in Court, it has been held that it is the burden of the prosecution to
prove that the seized articles were sent for chemical analysis by adducing unimpeachable
evidence that there was no chance of tampering with the packets by the investigating or
any third agency and the same were the vary articles produced before the Magistrate and
sent for chemical analysis, leaving no scope of suspicion. Criminal trial does not admit
any gap or missing link.
22. It has been held that where the prosecution evidence is silent that any effective step was
taken for proper custody of the seized article and the same was sent after delay of 43
days, the benefit of doubt must be extended to the accused.20
23. It is submitted that whole of the prosecution case is barren regarding the fact of safe
custody of the seized article, therefore adverse presumption needs to be drawn against the
Respondents under 114, illustration (g)21 as when evidence about the particular facts

18

Ajaya Kumar Naik v State of Orissa, 1995 Cri.L.J. 82.


Dillip Kumar Sabat vs State of Orissa,2015 Cri. L. J. 543 (ORISSA HIGH COURT)
20
Dibyajyoti De, Guide to Narcotic Drugs and Psychotropic Substances Act 701 (Wadhwa& Co., Nagpur 2003).
21
Indian Evidence Act, 1872.
19

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was within the knowledge of the person and that person has not placed it before the
assessing authority, it is likely that such evidence has been produced it would have gone
against him.22 When the person withholds relevant documents in the possession, the court
must not hesitate to draw an adverse to it.23

C. THAT DELAY IN F.I.R. CREATES A SERIOUS DOUBT ON THE STORY OF PROSECUTION


24. In the instant case there has been delay of nearly 15 hours. In the light of the totality of
the evidence, the court of fact has to consider the delay in lodging the report, adversely
affects the case of the prosecution as the police party has got sufficient time to concoct a
plot and embellish it with simulated story. The distance between starting point of Patiala
Nabha Road and Patiala is 5.7 kms.24 The burden of proof lies on Respondent to give
necessary explanation for the inordinate delay.
25. In a case25 it was contended that inordinate and unexplained delay of more than twenty
hours in lodging the first information report although the distance between the place of
occurrence and the police station is less than seven kms., gives rise to a very strong
presumption that the appellant was neither arrested at the place or in the manner as
alleged by the prosecution nor any recovery was made from him at the place indicated in
the recovery memo and the applicant has falsely been implicated. The Court affirmed the
view that unexplained delay of more than twenty hours in lodging the first information
report further strengthens the suspicion that the applicant has falsely been implicated in
the present case.

22

Justice C.K. Thakker, Law of Evidence 1998 (2nd ed.Whytes& Co., New Delhi 2015).
Ibid.
24
Distance between Patiala Nabha Rd. (March 6, 2016) available at:
http://distancecalculator.globefeed.com/India_Distance_Result.asp?state=23&fromplace=PatialaNabha%20Road%2C%20Rauni%2C%20Punjab%2C%20India&toplace=Patiala%2C%20Punjab%2C%20India
%2C&dt1=EihQYXRpYWxhLU5hYmhhIFJvYWQsIFJhdW5pLCBQdW5qYWIsIEluZGlh&dt2=ChIJ3xMzW
pMoEDkRf7yQO61WvNU.
25
Ramjan vs State of U.P., 2011 (1) A.L.J. 581.
23

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D. THAT THERE IS PRESENCE OF MOTIVE TO FALSELY IMPLICATE THE APPELLANTS


26. It is humbly submitted that motive is the emotion which impels a man to do a particular
act. Such impelling cause need not necessarily be proportionally grave to do grave
crimes. No proof can be expected in all the cases as to how the mind of the person
worked in a particular situation.26
27. If there be any motive, which can be assigned, the adequacy of that motive is not, in all
cases necessary. Motive for a crime is not always visible, except to the person influenced
by it. The experience shows that some of the gravest and the most atrocious crimes have
been committed from some of the flimsiest and most frivolous considerations.27
28. In the instant case, it is humbly submitted that the entire case has been fabricated by the
prosecution and that Appellants have been falsely implicated in the case. They are the
victims of a conspiracy hatched against them because of a dispute between Appellant-1
and one Shamsher Singh, an influential person with political links, who has taken
advantage of the Appellants absence when he was on vacation to Rajasthan and has
encroached upon part of the land of the house owned by Appellant (House no. 789, Green
Avenue, Patiala). To this effect, D.W. 2 Harnam Singh has deposed the fact of the said
encroachment.
29. Moreover, the appellant even went to complain against Shamsher Singh on 8th January,
2015 at about 10:00am. Joginder Singh, Station House Officer of the Central Police
Station, for reasons best known to him marked it as complaint instead of registering an
F.I.R. for offence of criminal trespass, marked the complaint to Sub-Inspector Hakam
Singh (P.W.-3).

26

1 Dr. V. Kesava Rao, Sir John Woodroffe& Syed Ameer Alis Law Of Evidence 855 (18th ed. Lexis Nexis
Butterworths Wadhwa, Ngpur 2008).
27
Jagdesh v State of Madhya Pradesh, 1981 S.C.C. (Cr.) 676.

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30. It has been held that the accused is not bound to prove his defence to the hilt, like the
prosecution. It is sufficient if it is possible to indicate preponderance of probability28.
Such defence may be proved by cross examination of prosecution witnesses or by
examination of defence witness. The burden on accused is not as onerous as that which
lies on the prosecution. While the prosecution is required to prove its case beyond a
reasonable doubt, the accused can discharge his onus by establishing a mere
preponderance of probability29.
31. Hence, the fact that there existed a prior dispute and there is a possibility of nexus
between Shamsher Singh and Sub-Inpector, Hakam Singh (PW-3) creates a suspicion
regarding authenticity of the recovery.

III.

WHETHER PROCEDURE ALLEGED TO BE ADOPTED DURING SEARCH


AND SEIZURE STANDS THE SCRUTINY OF LAW?

A. THAT THE PROSECUTION HAS FAILED TO ASSOCIATE INDEPENDENT WITNESSES


TO THE SEARCH
32. The Apex Court has observed in a case30 where no witnesses were associated despite
availability and that there is no iota of evidence that prosecution has at all bothered to
make an endeavour to associate independent witness. Such, non-association of the
independent witness makes the prosecution case doubtful.
33. It is humbly submitted that Police party instead of making any effort to arrange any
independent witnesses, directly called on phone Deena Nath to witness the proceeding.
They have never attempted to associate any independent witnesses. Even if by a stretch of

28

Maibam Birahari v. Manipur Administration, A.I.R. 1967 Mani 41.


Pratap v. State of U.P., A.I.R. 1976 S.C. 966.
30
Ajmer Singh V. State of Haryana, (2010) 3 S.C.C. 746.
29

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speculation, we believe that they made an effort for the same, there is no evidence on
record fortifying this assertion.
34. In a case31 where the independent witnesses were not associated and explanation for the
said omission was by saying that several passersby were stopped but they refused to be
witnesses of the recovery. It was held that it is strange that the empowered officer did not
make any effort to note down the names and addresses of the persons whom he
approached for witnessing the recovery. This omission on the part of the empowered
officer has further rendered the prosecution case extremely doubtful. 100(8) of
Cr.P.C.32empowers the police officer to make a written order to the witnesses for
witnessing

search.

B. THAT EVIDENCE OF HOSTILE WITNESS CANNOT BE REJECTED IN TOTO


35. The law regarding hostile witness can be summarized to the effect that the evidence of a
hostile witness cannot be discarded as a whole, and relevant parts thereof which are
admissible in law, can be used by the prosecution or the defence. 33 Therefore, the entire
evidence should not be brushed aside.
36. In the instant case DW-1 who has been declared hostile by prosecution, has deposed
before the trial court that he had not witnessed any search or seizure at police Naka on
Patiala-Nabha Road on 8th January 2015. But police got his signatures on some papers,
on 9th January 2015 by calling him at Central Police Station, Patiala. He did not know
what was written on those papers.
37. It is humbly submitted that it is not an uncommon phenomenon in criminal trials,
particularly in cases relating to NDPS that the seizure witnesses have turned hostile but
31

Ramjan vs State of U.P., 2011 (1) A.L.J. 581.


Section 100(8): Any person who, without reasonable cause, refuses or neglects to attend and witness a search
under this , when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to
have committed an offence under 187 of the Indian Penal Code (45 of 1860 ).
33
Himanshu @ Chintu v. State (N.C.T. of Delhi), (2011) 2 S.C.C. 36.
32

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there are some other circumstances which, when taken together, make it very unsafe to
uphold the Appellant's conviction.34
38. In a case35 in which one witness was declared hostile and other was examined as defence
witness, for recording the conviction, the Sessions Court as well as the High Court mainly
relied on the testimony of official witnesses who made the recovery. The Apex Court held
that though it is well settled that a conviction can be based solely on the testimony of
official witnesses, condition precedent is that the evidence of such official witnesses must
inspire confidence. In the present case, it is not as if independent witnesses were not
available. In our considered view, the manner in which the alleged recovery has been
made does not inspire confidence and undue credence has been given to the testimony of
official witnesses, who are generally interested in securing the conviction.
39. In a case36, where both the independent witnesses were declared hostile by prosecution. It
was held that independent corroboration appears to be necessary to hold the,
appellants/accused guilty for possession of the aforesaid contraband article. Similarly in
the case37, Apex Court held that the evidence to prove that charas and ganja were
recovered from the possession of accused consisted of the evidence of the police officers
and the panch witnesses. The panch witnesses turned hostile. Thus, we find that there is
no independent witness as to the recovery of the drugs from the possession of accused.

C. THAT EVIDENCE OF A STOCK WITNESS IS UNWORTHY OF CREDIT


40. It is humbly submitted that Deena Nath (P.W.-1) is admittedly a stock witness who has
remained a witness in many other cases at the behest of the police. His character has also
been called into question as he is a gambler. It is also an admitted fact by the prosecution

34

Ashok @ Dangra Jaiswal v. State of M.P., A.I.R.2011S.C.1335.


Makhan Singh vs State of Haryana, 2015 Cri. L. J. 3282 (S.C.).
36
Kesharimal R. Mahajan vs State of Madhya Pradesh, 2007 Cri. L. J. (N.O.C.) 696 (M.P.).
37
Jitendra and another v. State of Madhya Pradesh, 2004 (1) E.F.R. 22.
35

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that Deena Nath had been called on the phone by the police party. Therefore, a prior
nexus between the police and the witness has been established at trial. In light of this he
can neither be called as independent nor respectable.
41. It has been held in a case38 that the prosecution story cannot stick upon the versions of
person having fragile character. A case that is brought by the police before Court cannot
be sustained by mere evidence of the police personnel themselves. If the version of the
police has to be believed, it has to be supported by persons who have no nexus with the
police for wrong reasons and who are respected in the society by their conduct, calling or
avocation.
42. In a case39 where the judgment of the High Court was affirmed by the Apex Court it was
held that it was established by cogent evidence that he had acted in a number of cases as a
panch witness and there were good reasons to believe that he was a pliable witness not
worthy of evidence. So far as the police witness is concerned, the High Court has also
held by indicating that the police officer initially did not speak out the truth and tried to
suppress that the said panch witness had acted as panch witness in earlier cases.
Considering the aforesaid fact the High Court was of the view that the said witnesses did
not appear to be reliable and reliance should not be placed on their deposition.
Accordingly, the High Court was of the view that the prosecution had failed to establish
the case beyond reasonable doubt and passed the aforesaid judgment acquitting the
respondent.
D. THAT TESTIMONY OF OFFICIAL WITNESS IS AFTER CONSULTATION AND DELIBERATION

43. It is humbly submitted that the testimonies of the official witnesses are ridden with the
vice of embellishments and improvements. In the case40 where proof of the prosecution
case was sustained on the strength of the unblemished testimonies of the police witnesses
38

Ajay Malik and others v. State of U.T., Chandigarh, 2009(3) R.C.R.(Criminal) 649.
State of Gujarat v. Kumuchandra Pranjivan Shah, (1997 SCC (Cri) 750).
40
Ibid
39

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and their testimonies inter search were not ingrained with any vice of contradiction. To
give credence to their case they associated a witness who was an invented witness known
to the police officers beforehand. It was held that with the Investigating Officer having
invented an independent witness to the apposite proceedings besides fillips the sequel of
his intending to smother the truth qua the genesis of the prosecution version, naturally a
smothered version qua the genesis of the prosecution case cannot be foisted with any
veracity. Omission on the part of the Investigating Officer to associate them in the
apposite proceedings would be construable to be an intentional and deliberate omission
on his part, casting aspersions upon the transparency of the investigation carried out by
him, rendering amenable to disbelief the genesis of the prosecution version.

IV.

WHETHER THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH


AND SEIZURE SATISFIES THE SAFEGUARDS PROVIDED UNDER 50 OF
THE NDPS ACT, 1985?

44. It is humbly submitted that no information as to the existence of any right under 50
NDPS Act was conveyed to the Appellant-2 and the alleged contraband was planted on
him. In arguendo while not conceding the fact Appellant-2 was informed of any right, it
is submitted that the procedure alleged to be adopted by the Respondent does not satisfy
the safeguards as provided under 5041 of Narcotic Drugs and Psychotropic Substances
Act, 1985 which deals with the conditions under which search of persons shall be
conducted. Right under 50(1) of the NDPS Act, is a safeguard that has been conferred
41

50:(1) When any officer duly authorised under 42 is about to search any person under the provisions of
41, 42 or 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned in 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted
Officer or the Magistrate referred to in sub (1).

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on the suspect to check the misuse of power, to avoid harm to innocent persons and to
minimise the allegations of planting or foisting of false cases by the law enforcement
agencies.42

A. THAT THE MANDATORY PROVISION HAS NOT BEEN COMPLIED WITH


45. It humbly submitted before the court that the provisions of this Section have been held to
be mandatory in nature and strict compliance thereof is required. In Vijaysinh Chandubha
Jadeja v. State of Gujarat43, the question before the constitutional bench of the Supreme
Court was, whether a mere enquiry by the said officer as to whether the suspect would
like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to
be due compliance with the mandate of the said Section?. The Apex Court has held, We
have no hesitation in holding that in so far as the obligation of the authorized officer
under sub- (1) of 50 of the NDPS Act is concerned, it is mandatory and requires a
strict compliance. The concept of "substantial compliance" with the requirement of 50
of the NDPS Act introduced and read into the mandate of the said is neither borne out
from the language of sub-section (1) of 50 nor it is in consonance with the dictum laid
down in Baldev Singh's case.
46. Substantial compliance is not sufficient and strict compliance is required as had been held
in the case44 where the accused was told that he could be searched before any Gazzetted
Officer or any Magistrate if he so wished. The Court held that the fact that the accused
person has a right under 50 of the NDPS Act to be searched before a Gazetted Officer
or a Magistrate was not made known to him.
47. In the instant factual matrix, the exact words used by the police authorities were "Do you
agree to be searched here otherwise we will take you to the Gazetted Officer or the
42

Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 S.C.C. 609.


(2011) 1 S.C.C. 609.
44
Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 S.C.C. 67.
43

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Magistrate?" These words clearly indicate that the requirements of 50 have not been
complied with. The accused was merely given an option in the alternative without
informing him that he has a right to make a choice to get his personal search from either
of them.

B. THAT NON-COMPLIANCE OF THE PROVISION VITIATES THE RECOVERY


48. It is humbly submitted that the effect of non-compliance of the mandatory provisions
casts serious aspersions on the recovery itself and any sentence or finding based on the
recovery is bad and unsustainable in law. In State of Punjab v. Baldev Singh45, it was
observed That failure to inform the person concerned about the existence of his right to
be searched before a goods Gazetted Officer or a Magistrate would cause prejudice to an
accused. It would render the recovery of the illicit article suspect and vitiate the
conviction and sentence of an accused, where the conviction has been recorded only on
the basis of the possession of the illicit article, recovered from his person, during a
search conducted in violation of the provisions of 50 of the Act.46.
49. In a case47, many cases48 were discussed where only option was given to the accused to
be searched in the presence of a Gazetted Officer or a Magistrate, without informing him
of his right. It was held that substantial compliance is not acceptable. 50 make it
imperative for police officer to inform suspect of his right to be searched before Gazetted
officer or Magistrate. Failure to so inform vitiates conviction and sentence.
50. Thus, even if the prosecutions story is considered the recovery of the contraband on the
person of Appellant-2 is vitiated in view of non-compliance with 50 giving rise to grave
45

(1999) 6 S.C.C. 172.


Vijaysinh Chandubha Jadeja v. State of Gujarat , (2011) 1 S.C.C. 609.
47
Suresh and Ors vs State of Madhya Pradesh, 2013 Cri. L. J. 474 (S.C.).
48
Joseph Fernandez v. State of Goa, (2000) 1 S.C.C. 707 ; Prabha Shankar Dubey v. State of M.P., (2004) 2
S.C.C. 56.
46

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doubts on the recovery of the contraband from the car. When considering all attending
circumstances it further lends credence to the contention that the Appellants have been
falsely implicated in the case.

V.

WHETHER FACTUM OF PREVIOUS CONVICTION IS TAKEN WITHOUT


FRAMING CHARGES AND HAVING PROPER EVIDENCE ON RECORD?

51. NDPS Act is a substantive law defining the offences and the procedural law is defined
only to a limited extent and hence, in cases where the procedure is not given in NDPS
Act, the procedure given in CrPC should be followed as it is a general law relating to the
procedure that should be followed in criminal cases.
52. It is humbly submitted that framing of charges and examination of the accused under
313 CrPC are the very important stages in the criminal trial.49 The basic requirement in
every criminal trial therefore, is that the charge must be so framed as to give the accused
person a fairly reasonable idea as to the case which he is to face and the validity of the
charge must in each case, be determined.

A. THAT NON-FRAMING OF CHARGE HAS CAUSED PREJUDICE TO THE ACCUSED


53. The object of framing a charge is to enable an accused to have a clear idea of what he is
being tried for and of the essential facts that he has to meet. The accused is entitled to
know with certainty and accuracy, the exact nature of the charge against him, and unless
he has such knowledge, his defence will be prejudiced. The test for prejudice is whether

49

Sajjan Sharma v State of Bihar, AIR 2011 SC 632.

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the accused is likely to lose an opportunity to show to the court that he is not liable to face
the trial on account of there being no evidence against him, cannot be ignored.50
54. It is humbly submitted that framing of charge is not a mere formality and a defective
charge may have serious repercussions on the ultimate result of a case. 51 Where the
omission to frame the charge is conscious, the omission cannot be availed of by the
prosecution in its favour for the application of 464 ( 535 old) of the Code.52
55. In a case53 where no specific charge under 31 NDPS Act was framed and none of
modes provided under 298 of Code of Criminal Procedure had been followed except
stating that he was convicted in C.C. No. 236/1993 and sentenced to undergo 10 years
rigorous imprisonment and to pay a fine of Rs. 1 lakh. It was argued on behalf of the
prosecution that since evidence has to be adduced only after the subsequent offence is
proved; therefore they must be allowed to lead fresh evidence to prove the same.
However,

it

was

held

that

the

accused

shall

be

released

forthwith.

B. THAT IDENTITY OF THE ACCUSED HAS NOT BEEN ESTABLISHED


56. It is humbly submitted that the fact of previous conviction has been taken into
consideration by learned Special Court Judge without satisfying the procedural
requirements under 298 CrPC54

50

Decision making in criminal cases by trial courts - factors leading to prejudice: a functional study ( March 7,
2016) available at:
http://shodhganga.inflibnet.ac.in/bitstream/10603/12751/13/13_chapter%204%20%20part%202.pdf.
51
2 Dr. V. Kesava Rao, Sir John Woodroffe& Syed Ameer Alis Law Of Evidence 1262 (18th ed. Lexis Nexis
Butterworths Wadhwa, Ngpur 2008).
52
Babu Lal v State, AIR 1960 All. 290.
53
Ghisulal v State of Madhya Pradesh, 1977 Cri.L.J. 88.
54
298.Previous conviction or acquittal how proved.--In any inquiry, trial or other proceeding under this Code,
a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the
time being in force,-(a) by an extract certified under the hand of the officer having the custody of the records of the Court in which
such conviction or acquittal was held to be a copy of the sentence or order, or
(b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the
punishment or any part thereof was undergone, or by production of the warrant of commitment under which the
punishment was suffered together with, in each of such cases evidence as to the identity of the accused person
with the person so convicted or acquitted.

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57. In the present factual matrix neither documents have been submitted as provided by
298, nor has the identity of the accused been established. Although a copy of some
judgement was submitted but it was not marked in evidence for some unknown reasons
know best the learned Special Court Judge.
58. In the case of State of Kerala v. Shijil55where certain certified copy of the judgment which
was marked, were produced. But none of the documents produced contain a certificate
signed by the officer in charge of the jail in which the punishment or any part thereof was
undergone or the punishment suffered. Adding to the above, no evidence was let in to
bring on record to establish the identity of accused. Neither those documents were proved
by any other mode provided by any law as stipulated in Sec. 298 Cr.PC. It was held that
mere production of some certified copy would not meet the requirement of proof
provided under Sec. 298 Cr.P.C.
59. In the instant case, neither were the proceeding carried out to establish the identity of the
Appellant-2 nor any evidence was produced on record to prove the identity of the
Appellant-2 and therefore it cannot be the ground for an enhanced punishment under 31
of the NDPS Act.
60. In another case Srikandaraja v. State56, where no specific charge was framed for the
offence under 31 of NDPS Act and no evidence was let in to prove previous conviction
except a copy of the judgment which was unmarked. It was held that the enhanced
sentence imposed in lieu of 31 be set aside as no identity was established of the
Accused.

55
56

2011 (1) K.L.J. 447.


2014-2-L.W.(Crl.)515.

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C. THAT THERE IS FAILURE OF JUSTICE DUE TO QUESTION REGARDING PREVIOUS CONVICTION


61. In a case57 it was held that 537( 464, new Code) does not cover in its sphere a trial
which is conducted in a manner different from that prescribed by the Code, where the
procedure adopted by the Court is one which the Code positively prohibited and it was
possible that it might have worked actual injustice to the accused, is not an irregularity or
illegality contemplated under 537.
62. It is humbly submitted that after framing of charge of previous conviction under 211 (7)
of the Code, the Special Judge has to follow the procedure laid down in 236 of the Code
of Criminal Procedure which provides that no that no such charge shall be read out by the
Judge nor shall the accused be asked to lead thereto nor shall the previous conviction be
referred to by the prosecution or in any evidence adduced by it, unless and until the
accused has been convicted for subsequent offence.
63. It is humbly submitted that it is well settled that the questioning is for the purpose of
explaining circumstances appearing in the evidence already given. It follows, therefore
that before the accused can be questioned, there should be some evidence concerning
which he may be questioned and which connects him with the crime58
64. It is no longer res integra that court in its examination under s.313 cannot question the
accused about a previous conviction before convicting him for the offence of which he is
charged. The Court ought not to take any notice of such previous conviction while
reaching the conclusion regarding his guilt.59

57

Umer Saheb Burai Saheb Inamdar v. State, 1960 Cri. L.J. 573.
Sir John Woodroff, Code of Criminal Procedure 1259 (3rd ed. Law Publishers Pvt. Ltd., Allahabad 2009).
59
Murlidhar Yadav Patil v State of Maharashtra, 1978(80)BOM.L.R.90.
58

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PRAYER

HEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED, REASONS GIVEN
AND AUTHORITIES CITED, THIS HONBLE STATE COMMISSION MAY BE PLEASED TO:

TO HOLD

THAT THE TRIAL COURT HAS NOT RIGHTLY APPRECIATED THE FACTS OF THE CASE WHERE
THE PROSECUTION HAS PROVED THE OFFENCES AGAINST THEM.

THAT THE APPELLANTS HAVE BEEN FALSELY IMPLICATED IN THE CASE.

THAT THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH AND SEIZURE DOES NOT
STAND THE SCRUTINY OF LAW.

THAT THE PROCEDURE ADOPTED DOES NOT SATISFY THE SAFEGUARDS PROVIDED UNDER S.
50 OF THE NDPS ACT, 1985.

THAT THE TRIAL COURT HAS TAKEN THE FACTUM OF PREVIOUS CONVICTION OF
APPELLANT-2 WITHOUT PROPER EVIDENCE ON RECORD.
TO PASS

THAT APPELLANTS BE RELEASED FORTHWITH WITH COMPENSATION FOR ILLEGAL


DETENTION AND FALSE IMPLICATION
TO SET ASIDE

THE IMPUGNED JUDGMENT OF THE LEARNED SPECIAL COURT, PATIALA.


MISCELLANEOUS

AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TO GRANT IN THE
INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
COUNSELS FOR APPELLANTS

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