Dulla Khan vs State O F Punjab

In the High Court of Punjab and Haryana, at Chandigarh

Criminal Appeal No. S-1697-SB of 2005
Reserved On: 26.08.2026
Pronounced On: 30.10.2026
Dula Khan
... Appellant(s)
Versus
State Punjab
... Respondent(s)
CORAM: Hon'ble Mr. Justice Surya Partap Singh.
Present: Mr. Ashok Singla and Mr. Dheeraj Singla, Advocates
for the petitioner(s).
Ms. Gagandeep Kaur, Deputy Advocate General,
Punjab, for the respondent.
Surya Partap Singh, J.
1. This is appeal against against conviction.
2. The convict/appellant, hereinafter being referred to as
‘appellant’ only, has been held guilty and convicted for the commission of
offence punishable under Section 15 of the ‘Narcotic Drugs & Psychotropic
Substances Act, 1985’ (NDPS Act), vide judgment dated 12.09.2005 passed
by the court of learned Special Judge, designated under the ‘Narcotic Drugs
and Psychotropic Substances Act, 1985’, hereinafter being referred to as
‘trial Court’ only. In view of above following sentences have been awarded
to the appellant:-
Offence under
Section
Sentence
15 of NDPS Act Rigorous imprisonment for a period of
five years and to pay a fine of ₹50,000/- . In
default thereof to further undergo rigorous
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Criminal Appeal No. S-1697-SB of 2005 2
Offence under
Section
Sentence
imprisonment for a period of one year.
3. The above-mentioned verdict came into being in a case arising
out of FIR No. 57 dated 17.07.2003, Police Station Mehal Kalan, for the
commission of offence punishable under Section 15 of the ‘NDPS Act’.
4. Aggrieved of the above-mentioned judgment of conviction
dated 12.09.2005, hereinafter being referred to as ‘impugned judgment’ and
also of order on quantum of sentence of even date, hereinafter being referred
to as “impugned order’, the present appeal has been preferred.
5. The pith and substance of the above-mentioned FIR was that
the FIR of the above-mentioned case came into being at the instance ‘SI
Suraj Bhan’. It was reported by the above-named police officer that on
17.07.2003 he was leading a team of police officials deputed for patrolling
duty, and that on the way from village ‘Kalala’ to village ‘Chuhanke’, ‘Surjit
Singh’, Ex-Sarpanch of the village, met them. As per report of the above-
named police officer, ‘Surjit Singh’ was joined in the team and when the
above-mentioned team was near the culvert of minor canal, it spotted a
person sitting on a gunny bag in the grove of trees. As per report of the
above-named police officer, on the basis of suspicion the above-mentioned
person was apprehended, his name was enquired and option was given to
him, as to whether he wanted the search of gunny bag by the above-named
police officer or in the presence some Gazetted Officer or the Magistrate.
According to prosecution when the above said person opted for search by
‘SI Suraj Bhan’ itself, the contents of gunny bag found in possession of
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above-named person were checked and it was found that in the above-
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Criminal Appeal No. S-1697-SB of 2005 3
mentioned gunny bag there was poppy husk.
6. It was further case of the prosecution that pursuant to recovery
of above-mentioned contraband the sample of contraband was extracted and
the sample as well as the remaining contraband were duly sealed. According
to prosecution pursuant to above-mentioned recovery of contraband,
requisite formalities, such as seizure of the contraband, reporting of incident
to the senior officers, sending of information to the police station for
registration of the FIR etc. were performed, and further investigation taken
up. According to prosecution during the course of investigation, the
appellant was arrested and on completion of usual formalities of
investigation, the final report under Section 173 Cr.P.C. was filed in the
court.
7. To discharge its burden of proving charges against the
appellant, the prosecution in the instant case had relied upon oral and
documentary evidence, both. The documents proved, and marked with
exhibits, by the prosecution, were:-
Ex.PA - Affidavit of ‘Constable Hardeep Singh’
-
Ex.PB Affidavit of ‘Constable Sarabjit Singh’
-
Ex.PC Consent statement of the appellant, recorded
by the Investigating Officer
-
Ex.PD Seizure memo of contraband
-
Ex.PE Information-memo, sent by the Investigating
Officer to the police station
-
Ex.PE/1 Copy of First Information Report
-
Ex.PF Rough site plan of the place of recovery
-
Ex.PG Memo of search of the person of the appellant
-
Ex.PH Memo of arrest of the appellant
-
Ex.PJ Information-memo, recorded by the
Investigating Officer regarding arrest of the
appellant
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Criminal Appeal No. S-1697-SB of 2005 4
-
Ex.PK Report under Section 57 of NDPS Act, sent by
the Investigating Officer to DSP Gurjit Singh
-
Ex.PK/1 Endorsement recorded by DSP Gurjit Singh on
the report under Section 57 of NDPS Act
-
Ex.P1 Sample Seal bearing impression ‘SB’
-
Ex.P2 Sample Seal bearing impression ‘DS’
-
Ex.P3 Sample parcel of poppy husk
-
Ex.P4 Bulk Poppy Husk Parcel
8. To provide support and corroboration to the above-mentioned
documentary evidence, as many as five witnesses were examined by the
prosecution. They were:-
PW.1 - Constable Hardeep Singh
PW.2 - SI Paramjit Singh, the then SHO of Police Station
PW.3 - HC Sarabjit Singh
PW.4 - SI Suraj Bhan, the Investigating Officer
PW.5 - HC Daljit Singh
9. Once the prosecution evidence had been recorded, the learned
trial Court completed all the essential formalities, enshrined under Section
313 Cr.PC., and thereafter, the opportunity to lead defence evidence was
afforded to the appellant. In his defence the appellant had examined ‘HC
Ajaib Singh’ as DW.1 and proved DDR No. 2 dated 17.07.2003 as Ex.D1.
10. When the stage of recording the evidence was over, the learned
trial Court gave opportunity to the learned Public Prosecutor and the learned
counsel for the appellant, to address arguments. Thereafter, a judgment of
conviction was pronounced against the appellant. Accordingly, the
sentences, detailed hereinabove, were awarded to the appellant.
11. Heard.
12. While assailing the impugned judgment, it has been contended
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by the learned counsel for the appellant that the impugned judgment and

Criminal Appeal No. S-1697-SB of 2005 5
impugned order were outcome of wrong appreciation of evidence, as well as
law, by the learned trial Court. According to learned counsel for the
appellant the learned trial Court failed to appreciate that the evidence
adduced by the prosecution was grossly inadequate and self-contradictory
and, therefore, the same was not worth believable. As per learned counsel
for the appellant, the learned trial Court also ignored this fact that the
evidence adduced by the prosecution comprised of the statements of police
officials only, and that procedural lapses were also committed during the
course of investigation. By highlighting the above-mentioned lapses it has
been contended by the learned counsel for the appellant that merely, on the
basis of assumptions and presumptions, the learned trial Court had drawn the
conclusion that charge for the commission of offence punishable under
Section 15 of the ‘NDPS Act’ stood proved against the appellant.
13. The learned counsel for the appellant has further contended that
in the present case the learned trial Court ignored this fact that as per story
set-out by the prosecution itself, an independent witness, i.e. Ex-Sarpanch,
namely ‘Surjit Singh’, was present on the spot at the time of recovery, but
without any proper explanation the above-named independent witness was
not examined during the course of trial.
14. In addition to above, the learned counsel for the appellant has
also contended that the Investigating Officer, who was examined as PW-4,
had categorically deposed that search of the person of appellant was
conduced and during that search a currency note of ₹50/- was recovered.
According to learned counsel for the appellant before conducting search of
the person of the appellant compliance of Section 50 of ‘NDPS Act’ was not
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Criminal Appeal No. S-1697-SB of 2005 6
properly made and therefore, the entire process adopted by the Investigating
Officer stood vitiated. It has also been contended by learned counsel for the
appellant that in the present case the sample was sent to the Forensic Science
Laboratory after a delay of more than five days, and that there was no
compliance of mandatory provisions enshrined under Section 52A of ‘NDPS
Act’.
15. In view of above, the learned counsel for the appellant has
contended that all the above-mentioned lapses and deficiencies in the
prosecution evidence were good enough to draw an inference that charge for
the commission of offence punishable under Section 15 of ‘NDPS Act’ was
not proved, but the learned trial Court ignored all the above-mentioned
relevant circumstances and, merely, on the basis of conjectures and surmises
convicted the appellant. In view of above, the learned counsel for the
appellant has contended that there is immediate need for indulgence and
interference in the impugned judgment.
16. It has also been contended by the learned counsel for the
appellant that otherwise also the circumstances show that a false case was
planted upon the appellant which was reflected from the fact that either
before the registration of present FIR or thereafter, the appellant has never
been prosecuted for any offence punishable under ‘NDPS Act’. It has also
been contended by learned counsel for the appellant that conduct of the
police officials, too, was suspicious in view of the fact that the name of
owner of the vehicle, being used by the police party, was not disclosed and
the other police officials, such as ‘Surjit Singh’ etc., who were present on the
spot at the time of alleged recovery, were not examined. While focusing on
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Criminal Appeal No. S-1697-SB of 2005 7
the above-mentioned argument, the learned counsel for the appellant has
contended that the impugned judgment is not sustainable in the eyes of law
and deserves to be set-aside.
17. The learned counsel for the respondent/State has controverted
the above-mentioned arguments. While defending the impugned judgment
and impugned order, it has been contended by the learned counsel for the
respondent/State that on proper appreciation of evidence, a right view was
taken by the learned trial Court, and that the evidence adduced by the
prosecution was not only thoroughly consistent, but reliable also. The
learned counsel for the respondent/State has further contended that each and
every relevant fact, right from the moment of recovery of contraband till the
conclusion of investigation was proved by the prosecution with the help of
five official witnesses, and that there was no major contradiction in the
testimonies of official witnesses, which might have created a reasonable
doubt about the credibility of deposition of official witnesses.
18. The learned counsel for the respondent/State has further
contended that in the present case the recovery of contraband was from a
gunny bag, i.e. not from the person of appellant and therefore, there was no
requirement of complying with the provision of Section 50 of ‘NDPS Act’.
The learned counsel for the respondent/State has further contended that in
the present an independent witness, too, was joined by the Investigating
Officer, but being a co-villager he was won over by the appellant and
therefore, he was given up by the learned Public Prosecutor. It has been
further contended by the learned counsel for the respondent/State that there
is no thumb rule that in each and every case there must be an independent
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Criminal Appeal No. S-1697-SB of 2005 8
witness or that a fact cannot be proved by official witnesses. As per learned
counsel for the respondent/State all the official witnesses had successfully
faced the test of cross-examination and therefore, their depositions deserved
to be believed. In view of above-mentioned arguments, it has been claimed
by the learned counsel for the respondent/State that there is no scope for
indulgence or interference in the impugned judgment, and that the present
appeal is devoid of merits and the same deserves to be dismissed.
19. The record has been perused carefully.
20. As far as the instant case is concerned, at the very outset it is
pertinent to mention here that the story set-out by the prosecution itself
showed that at the time of recovery of contraband from the possession of
appellant, an independent witness, i.e. Ex-Sarpanch – ‘Surjit Singh’ was
present on the spot, but the above-named witness was not examined by the
prosecution during the course of trial. Although while giving him up, a
statement was made by the learned Public Prosecutor that the above-named
witness was won-over by the appellant, but the basis on which the above-
mentioned conclusion was drawn, was not revealed. Thus, in my considered
opinion, the prosecution, in the present case, committed a serious lapse when
it failed to examine the only independent witness present at the time of
recovery of contraband from the appellant.
21. The another relevant aspect to be taken into consideration in the
present case was that the Investigating Officer had failed to comply with the
mandatory provisions enshrined under Section 52A of ‘NDPS Act’. Either
in the report under Section 173 of the ‘Code of Criminal Procedure, 1973’
(Cr.P.C.) or in the deposition of PW-4, the Investigating Officer of the case,
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Criminal Appeal No. S-1697-SB of 2005 9
there was no claim that the case property was produced before the Judicial
Magistrate for the purpose of preparing inventory and extracting samples.
22. With regard to compliance of Section 52A of ‘NDPS Act, the
Hon’ble Supreme Court of India , in the case of ‘Union of India v. Mohan
Lal and Another’ (2016) 3 SCC 379 has ruled that “it is manifest from
Section 52A(2)(c) that upon seizure of the contraband the same has to be
forwarded either to the officer in-charge of the nearest police station or to
the officer empowered under Section 53 who shall prepare an inventory as
stipulated in the said provision and make an application to the Magistrate for
the purposes of
(a) certifying the correctness of the inventory
(b) certifying photographs of such drugs or substances taken
before the Magistrate as true, and
(c) to draw representative samples in the presence of the
Magistrate and certifying the correctness of the list of
samples so drawn.
As per Hon’ble Supreme Court of India Sub-section (3) of
Section 52-A requires that the Magistrate shall as soon as possible may
allow the application. This implies that no sooner the seizure is effected and
the contraband is forwarded to the officer in charge of the Police Station or
the officer empowered, the officer concerned is duty bound to approach the
Magistrate for the purposes mentioned above including grant of permission
to draw representative samples in his presence, which samples will then be
enlisted and the correctness of the list of samples so drawn certified by the
Magistrate. In other words, the process of drawing of samples has to be in
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Criminal Appeal No. S-1697-SB of 2005 10
the presence and under the supervision of the Magistrate and the entire
exercise has to be certified by him to be correct.”
23. With regard to scope of Section 52A of ‘NDPS Act’, in the case of
‘Bharat Ambale v. The State of Chhattisgarh’ (2025) 8 SCC 452, the Hon’ble
Supreme Court of India has propounded that samples must be drawn in the
presence of Magistrate and certified by him. According to the Hon’ble
Supreme Court of India mere drawing of sample in the presence of Gazetted
Officer is insufficient.
24. In a recent judgment in the case case of ‘Abdul Rajik v. State of
M.P.’ 2026 Law Finder (SC) 5679, it has been observed by the Hon’ble
Supreme Court of India that total non-compliance with Section 52A of
‘NDPS Act’ and breach of chain of custody rendered the prosecution case
unsustainable. According to the Hon’ble Supreme Court of India the
absence of credible link evidence and scientific material to confirm the
identity of the contraband as “charas” would lead to acquittal of accused.
25. In addition to above-mentioned lapses, one more lapse which
was committed by the Investigating Officer during the course of
investigation was that at the initial stage, when he was about to check the
contents of gunny bag found in possession of appellant and also conducted
search of person of the appellant, he was duty bound to give an option to the
appellant that he had got a right to be searched either in the presence of a
Gazetted Officer or a Magistrate, but in the instant case in addition to
above-mentioned two options, one more option was given by the
Investigating Officer to the appellant, i.e. search by the Investigating Officer
himself. Qua above-mentioned aspect a memo was also prepared by the
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Criminal Appeal No. S-1697-SB of 2005 11
Investigating Officer which has been proved as Ex.PC. With regard to
above-mentioned option and above-mentioned option Ex.PC, it is relevant
to mention here that -
Firstly , the option given by the appellant was defective as the
appellant was authorized to give option for search either in the
presence of a Magistrate or in the presence of a Gazetted
Officer and not by the Investigating Officer; and
Secondly , the memo prepared by the Investigating Officer with
regard to exercise of above-mentioned option is doubtful in
view of the fact that in the memo Ex.PC both the components
had been mentioned, i.e. component of giving option to the
appellant and the component of exercising above-mentioned
option by the appellant.
In my considered opinion, the above-mentioned procedure
adopted by the Investigating Officer failed to prove that options for search
were properly given to the appellant.
26. In the present case, it is also relevant to mention here that the
law prescribes that the samples should be delivered to the Forensic Science
Laboratory (FSL) within a period of 72 hours, but in the present case the
above-mentioned timeline was not adhered to and the samples were sent to
the FSL after five days of recovery.
27. To prove its allegations the prosecution, in the present case, had
examined five witnesses. Amongst them three witnesses, i.e. PW-1
‘Constable Hardeep Singh’, PW-2 ‘SI Paramjit Singh’ and PW-3 ‘HC
Sarabjit Singh’ were formal witnesses only.
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Criminal Appeal No. S-1697-SB of 2005 12
28. The PW-1, by virtue of his affidavit Ex.PA had testified that
samples of the contraband were handed over to him by the MHC of police
station on 21.07.2003, and that he delivered the same to the office of ‘the
Chemical Examiner, Chandigarh’ on next day, i.e. 22.07.2003.
29. The next witness, i.e. PW-2 ‘SI Paramjit Singh’ had deposed
that on 17.07.2003 he was posted as SHO, Police Station Mehal Kalan, and
that on that day the samples pertaining to present case and the appellant
were produced before him by ‘SI Suraj Bhan’ and that after verification of
facts he had affixed his seal on the samples and deposited the samples with
the MHC of police station.
30. The next formal witness examined as PW-3 ‘HC Sarabjit
Singh’ had deposed that being MHC of police station he was Incharge of the
Store Room (Malkhana), and that on 17.07.2003 samples and case property
were deposited with him in the Malkhana of the police station, and that on
21.07.2003 he sent the same for examination by the Chemical Examiner,
Chandigarh, through ‘Constable Hardeep Singh’ (PW-1).
31. Amongst the material witnesses, PW-4 was the Investigating
Officer of the case and PW-5 was the police official who was present on the
spot at the time of recovery. In their respective examinations-in-chief, both
the PW-4 & PW-5 had supported the prosecution case qua the fact that
recovery of contraband from the possession of appellant had taken place.
However, in the cross-examination contradictory facts were deposed by both
the witnesses, such as -
i) as per PW-4 ruqa was sent to the police station at 12:30
P.M., but as per PW-5 at 12:00 P.M.;
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Criminal Appeal No. S-1697-SB of 2005 13
ii) as per PW-4 the police party stayed on the spot for five
hours, but as per PW-5 for 5½ hours;
iii) as per PW-4 on that day the police party had left the
police station at 08:00 A.M., but as per PW-5 at 09:00
A.M.;
iv) as per PW-4, two/four passersby were requested to join
the investigation, but as per PW-5 no such effort was
made;
v) as per Pw-4 seal was returned to him by ‘Surjit Singh’
after 04:00 P.M. in the police station, but as per
deposition of PW-5 till 05:30 P.M. the police party was
present on the spot itself, and therefore, return of seal in
the police station at 04:00 P.M. was not possible; and
vi) as per PW-4 the weights which were used for
measurement of weight of the samples and contraband
were of 100 grams, 50 grams & 200 grams, but as per
PW-5 of 200 grams & 50 grams only.
32. Since in the present case there was no independent
corroboration of above-mentioned depositions of PW-4 & PW-5, who were
official witnesses, in my considered opinion, the above-mentioned
contradictions were grave enough to impeach the credibility of prosecution
case. The credibility of above-mentioned statements was further shattered
from the fact that other police officials, who were present on the spot at the
time of recovery, were not examined by the prosecution and that the only
independent witness was given up without proving anything against him.
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Criminal Appeal No. S-1697-SB of 2005 14
33. Thus, in my considered opinion, the over-all scenario which
emerged from the above-mentioned evidence led by the prosecution was that
the above-mentioned evidence was unreliable and grossly inadequate to
draw an inference that the prosecution had been successful in bringing home
guilt of the appellant. In my considered opinion on the basis of above-
mentioned evidence, this observation could not have been recorded that
charge for the commission of offence punishable under Section 15 of ‘NDPS
Act’ was successfully proved against the appellant. In my considered
opinion, the learned trial Court committed an error of judgment while
drawing the above-mentioned observation and therefore, there is need of
indulgence in the ‘impugned judgment’ and ‘the impugned order’.
34. As a sequel to above-mentioned observations, it is hereby held
that the present appeal has got merits and deserves to be allowed. Thus, by
accepting the present appeal, the impugned judgment and impugned order
are hereby set-aside and the appellant is hereby acquitted of the charges
framed against him.
35. The present appeal is allowed , accordingly.
(Surya Partap Singh)
Judge
October 30, 2026
“DK”
Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No
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