[CASE NUMBER] -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Date of Decision:07.09.2009 [ENTITY] and another Appellants Vs. [ENTITY] Respondent CORAM:- HON'BLE MR. JUSTICE [ENTITY] Present:- Mr. [ENTITY], Advocate for the appellants. Mr. [ENTITY], Deputy Advocate General, Haryana. JUDGMENT
[ENTITY], J.
This appeal is directed against the judgment dated 11.7.2005/ order of sentence dated 12.7.2005 passed by the Court of learned Judge, Special Court, Panchkula whereby he convicted and sentenced the accused [ENTITY] and [ENTITY] to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lac each under [SECTION] of the [ACT] (for brevity, `the Act') or in default of payment of fine, the defaulter to further undergo rigorous imprisonment for two years.
Succinctly put, the facts of the prosecution case are that on 25.2.2004 at about 2:50 P.M., the police party headed by [ENTITY] Sub Inspector CIA Staff, Panchkula happened to be present at Tank Chowk, Panchkula being on patrol as well as crime checking duty in a private vehicle. In the meantime, the Sub Inspector received a secret information that [ENTITY] accused and [ENTITY] accused were doing the business of selling the charas and now they have brought charas from [ENTITY] and standing at Red Light Chowk, Old Panchkula in wait of a bus. If a raid is conducted, they could be caught red handed. The information was reduced into writing and sent to Shri [ENTITY], Deputy Superintendent of Police, City Panchkula. The Sub Inspector formed a raiding party and reached at the said place. On being given signal by the informant, two young persons were intercepted by the police party. On asking, one narrated his name as [ENTITY], who was holding a black coloured raxine bag in his hand. The other one disclosed his name to be [ENTITY], who was having a light blue coloured cloth bag in his hand. The contents of their bags being suspected to be contraband, these accused were served with notice under [SECTION] of the Act thereby calling upon them to tell as to whether they want to be searched before a Gazetted Officer or a Magistrate. They opted to be searched before a Gazetted Officer. Meanwhile, [ENTITY], DSP Police, City Panchkula made search of the bag of [ENTITY]. On search, charas duly wrapped in a yellow polythene envelope was recovered from his bag. When the same was weighed, it came to 3 Kgs. Two samples of 25 grams each were drawn and converted into parcels. The remainder was also turned into a parcel. These parcels were sealed with seals `SK' and `RD' and seized vide separate memo. On search of the bag in the possession of accused [ENTITY], 2 Kg. charas duly wrapped in a yellow polythene envelope yielded. Two samples of 25 grams each were separated and converted into parcels. The residue was also made into a parcel. These parcels were also sealed with the above-mentioned seals and taken into possession vide separate memo. The seal SK after use was handed over to [ENTITY] Constable, whereas DSP retained his seal with him. [ENTITY] was sent to the Police Station, where on its basis, formal FIR was registered. The accused were arrested. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused.
The accused were charged under [SECTION] of the Act to which they did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution examined PW1 [ENTITY] ASI, PW2 [ENTITY] Head Constable, PW3 [ENTITY] Constable, PW4 [ENTITY] Constable, PW5 [ENTITY] Inspector, PW6 [ENTITY] Constable, PW7 [ENTITY] Inspector (Investigating Officer), PW8 [ENTITY] DSP and closed its evidence by tendering FSL report as well as by giving up PWs [ENTITY] ASI, [ENTITY] Head Constable, [ENTITY] Constable and Director FSL Madhban being unnecessary. When examined under [SECTION] of [ACT], both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. They put forth that in fact charas was recovered from one [ENTITY] and the same has been planted upon them while they were standing at Bus Stoppage, while waiting for the bus. They did not adduce any evidence in their defence.
After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved therewith, they have preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
Mr. [ENTITY], Advocate appearing on behalf of the appellants strenuously urged that PW6 [ENTITY] Constable, who was accompanying the police party has stated in categoric terms that the secret information was not reduced into writing by SI [ENTITY] Inspector and that there were number of people standing at the place of recovery but nobody was joined in the investigation. He further puts that in consequence of not taking down the secret information in writing, the Investigator has flagrantly violated the mandatory provisions of [SECTION] of the Act.
I have given a deep and thoughtful consideration to this submission. It is in the evidence of [ENTITY] Inspector Investigator PW7 that "A notice Ex.PG under [SECTION] of the Act was sent to Shri [ENTITY] DSP Panchkula as the information was reliable and this notice was sent through Constable [ENTITY]." This recovery has been effected at a public place from the bags. [SECTION] postulates that superior officers are to be informed. Thus, in adherence to the provisions enshrined in [SECTION] ibid, this Inspector sent the above mentioned notice to Mr. [ENTITY] DSP Panchkula. Thus, obviously, the provisions of [SECTION] stand complied with.
It is further argued that the safeguards in terms of [SECTION] of the Act have not been observed. The investigator had given the option to the appellants to be searched before him, or a Gazetted Officer or a Magistrate, which shows that the mandatory provisions of the Act have not been complied with in stricto senso. He has sought to place reliance upon the observations rendered in re: [ENTITY] v. State of H.P., 2008(4) Recent Criminal Reports (Criminal) 563. This contention merits rejection. As a matter of fact, the thrust of his argument is that if the accused were offered to have the search of their person from a Gazetted Officer or a Magistrate, the provisions of [SECTION] ought to have been adhered to in view of [ENTITY] & Another v. State of M.P., 2007(1) Recent Criminal Reports (Criminal) 586. In a nutshell, his submission is that by asking the appellants to have the search of their bodies from him, the investigator has violated the mandatory provisions of [SECTION]. This contention is bereft of any merit. In re: [ENTITY] & Another's case (supra), the recovery was effected from scooter. The accused were informed about their right to have their personal search. It was in these circumstances held that once personal search is offered though the recovery has been effected from the bag or some other article, the provisions should be observed in stricto senso. In re: [ENTITY]'s case (supra), it has been held that the accused should be made aware that he has right to be searched before a Magistrate or a Gazetted Officer. Although, such communication itself may not necessarily be made in writing but as far as possible, such communication should be made in the presence of some independent and respectable person witnessing the arrest and search. In the instant case ([ENTITY]'s case), though search was made before a Magistrate, but accused was not informed of his right of search before Gazetted Officer or a Magistrate. It was in these circumstances held in [ENTITY]'s case (supra), that the provisions of [SECTION] have not been complied with and the conviction was set aside. In the present one, it has been admitted on behalf of the appellants that the appellants were apprised of their right to have their personal search in the presence of a Gazetted Officer or a Magistrate. Additionally, the Investigator had asked the appellants to tell if they want to have their search from him. Axiomatically, the provisions of [SECTION] stand complied with in stricto senso. The case of the prosecution cannot be thrown out of hand merely because the Investigator out of abundant caution has additionally asked the appellants that if they want, they can have search from him. Thus, this contention is overruled.
It is further pressed into service on behalf of the appellants that the recovery herein was effected on 25.2.2004 whereas the sample was sent to the Forensic Science Laboratory, Madhuban on 2.3.2004. Thus there is inexplicable delay of 5 days in sending the sample. The possibility of tampering with the contents of the sample parcels during this interregnum cannot be ruled out. He has sought to place reliance upon the observations rendered in re: [PRECEDENT].
To tide over this submission, the learned State Counsel canvassed at the bar that mere delay in sending the sample parcels for chemical analysis is not fatal to the prosecution case for the simple reason that as per record, the same were kept in proper custody.
I have well considered the rival cotnentions. In re: Jaili v. The [ENTITY], 2008(2) Recent Criminal Reports (Criminal) 264, there was a delay of one month in sending sample to the Forensic Science Laboratory. There was no evidence that samples of the case property were tampered with. The seals on the samples, tallied with the specimen seal as per the forwarding authority letter. Under these circumstances, it was held by this Court that mere delay in sending the samples did not, in any way cause prejudice to the accused, nor did it go to prove that the samples were tampered with, until the same were deposited in the Office of Forensic Science Laboratory. Further in re: [PRECEDENT], there was a delay of 10 days in sending the samples to the Forensic Science Laboratory. It was held by the Division Bench of this Court that mere delay in sending the same to the laboratory is not fatal, when there is evidence that the seized articles were kept in proper and safe custody. Further in re: [ENTITY] son of [ENTITY], resident of Haraj, Police Station Sheela Ganj, District Moti Hari (Bihar) v. The [ENTITY], 2009(2) Recent Criminal Reports (Criminal) 39, there was a delay of 7 days in sending the sample to the Forensic Science Laboratory. The delay was not explained. It was held that the prosecution has led cogent and convincing evidence that the sample was not tampered with during the period and thus, the delay was not fatal to the prosecution. Again in Motia Bai v. [ENTITY], 2005(3) Recent Criminal Reports (Criminal) 56, there was a delay of 20 days in sending the sample to the Forensic Science Laboratory. There was no evidence that the sample was tampered with. The report of the Forensic Science Laboratory indicated that the seals of the sample were intact, when it reached the laboratory. The conviction was upheld. In re: State of Orissa v. Kanduri Sahoo, 2004(1) Supreme Court Cases 337, the sample of cannabis (ganja) was sent for chemical examination after four days of recovery. It was observed by the Apex Court that "The evidence of PW-1 was categorical to the effect that the articles were kept in the Excise Malkhana from where they were brought and sent for chemical examination. This relevant aspect appears to have been missed by the High Court. In [PRECEDENT]'s case (supra), it was not laid down that whenever there is delay in sending the samples, the prosecution version would become vulnerable. What was emphasised related to proper and safe custody of the seized articles. In the background to that particular case, when delay of 3 months was there and there was no clear evidence as to with whom the articles were lying, the decision was rendered. No evidence was led to show that the contraband articles were in proper custody and in proper form. But the factual situation is different here. That being so, the High Court's judgment does not stand scrutiny and is set aside. The conviction as done by the trial Court was proper." It was also held that merely because the articles were kept in the excise malkhana for four days would not make the prosecution version suspect.
[ENTITY] HC PW2 has solemnly affirmed as under:-
"On 25.2.2004, I was posted as AMHC in [SECTION], [ACT]. On that day, [ENTITY] SI had deposited with me case property two sealed parcels of charas and sample parcels alongwith sample seal sealed with seal SK, RD and AK.
On 2.3.2004, I handed over two sample parcels to C. Satbir Singh for delivering the same to FSL Madhuban vide RC No.153 and he had deposited the same with FSL and handed receipt to me on the same day. So far the sealed parcels remained in my possession neither I nor anybody was allowed to tamper with the same."
[ENTITY] Constable PW4 has stated as under:-
"On 2.3.2004, I was posted in CIA Staff Panchkula. On that day, [ENTITY] MMHC of [SECTION], [ACT] had handed over to me two sealed parcels alongwith sample seal sealed with seals SK, RD and AK for delivering the same to FSL Madhuban vide RC No.153. On the same day I deposited the above-referred parcel to FSL and handed over receipt to MHC [ENTITY] on the same day. So far the sealed parcels remained in my custody, neither I nor anybody was allowed to tamper with the same."
In the FSL report Ex.PB, it has been specifically mentioned that the sample parcel was received in this division on 2.3.2004. The seals were intact and tallied with the specimen seal as per forwarding letter. This evidence clearly goes to show that the sample parcel remained in proper custody and proper form and the contents thereof were not tampered with at any stage right from their seizure till the same reached in the laboratory. Thus, the chain of link evidence is complete in this case. In the face of afore-quoted law,it is very difficult to follow [PRECEDENT]'s case (supra).
The next point raised on behalf of the appellant is that as per the prosecution case, the recovery from the appellants was effected at a public place, i.e., a bus stop on Kalka - Panchkula Chowk at Red Light Point, Old Panchkula. Admittedly, number of people were standing there and number of shops are there but nonetheless the Investigator did not join any independent witness to support their case of recovery from the appellants. By non-joining an independent witness, the prosecution case is rendered highly doubtful. I regret my inability to be one with the learned counsel for the appellants. In re: [PRECEDENT], it has been held as under:-
"Merely because of the failure on the part of the prosecution to produce any independent witness to the incident that occurred at a public place like a bus stand, where there must have been several of such witnesses, the prosecution case cannot be thrown out or doubted. Generally people are insensitive when a crime is committed even in their presence. The court instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
Further in re: [PRECEDENT], it has been ruled by the Hon'ble Supreme Court that "there is no bar in recording the conviction by relying upon the statements of police officers." It has been observed in paragraph No.8 of the judgment that "It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official, but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
In re: [PRECEDENT], a Division Bench of this Court has held as under:-
"A Panch witness may turn hostile and not support the case of the prosecution or may be hesitant in appearing in the Court and depose against an accused for various reasons from fear to bribe. He is an average and ordinary human being and quite exposed and vulnerable to the human feelings of yielding, brow-beating, threats, inducements, etc. To figure as a Panch-witness at the stage of police investigation, is one thing, and thereafter to give evidence before the Court is entirely a different thing. In fact, a Panch witness generally think twice before entering into a witness- box and if at all he enters the same, one would not be surprised if he does not support the prosecution because of variety of the reasons mentioned above. Therefore, the fact that the prosecution has given up the independent public person [ENTITY] having been won over by the accused persons, is fully justified in the present day situation prevailing in the Society and no adverse inference against the prosecution can be drawn in this case."
By now, it is beyond cavil of doubt that the statements of police officials are to be weighed in the same scales as of others. Of course, their statements are to be scrutinised with due care and caution when the same do not find corroboration from any independent source but herein a careful delving into their statements would reveal that no material infirmity could be pointed out therefrom. Thus, in view of the afore-quoted case law, this contention being bereft of any merit is turned down.
It has been further maintained on behalf of the appellants that as is borne out from the prosecution evidence, CFSL form was not filled at the spot. The seal after use remained with police official, i.e., [ENTITY] PW6. In re: [PRECEDENT], the seal remained with the Police Officer after use and the CFSL form was neither prepared at the spot nor deposited in the malkhana. It was in these circumstances held that the prosecution has miserably failed to prove the link evidence. I am unable to persuade myself to agree with this submission. Presuming that the CFSL form was not prepared at the spot and was prepared when the police party after recovery had returned to the Police Station, that does not create any doubt about the recoveries of the contraband from the appellants. The Court has to adopt a pragmatic approach while considering the spot investigations. Fair and impartial investigation is no doubt sacrosanct, but rituals of investigation cannot be insisted upon unless strict compliance of such rituals is prescribed by statutes. There is no rule of evidence or procedural laws under [ACT] or [ACT] that every document must be prepared on the spot of recovery. It is not the requirement of law that the entire investigation must be completed on the spot and no part of writing work can be done by the Investigating Agency in the Police Station or at any other place. The guidelines issued, if any, by the concerned department are advisory in nature and have no legal sanctity. Circulars, administrative orders or executive instructions issued without any statutory powers are not binding in nature. They are instructions of prudence. Merely because instructions/ guidelines have not been followed by an Investigating Officer, the Court cannot hold that the statutory provisions and rules have been violated, as observed in re: [PRECEDENT].
With utmost humility and great respect to her lordship, in the face of the above observations, it is very difficult for me to follow the observations rendered in re: [PRECEDENT] (supra).
No other material point has been urged or agitated by either counsel.
As a sequel of the above discussion, this appeal fails and is dismissed.
September 07, 2009 ( [ENTITY] ) renu JUDGE Whether to be referred to the Reporter? Yes/No