IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Date of decision:-29.08.2011. [ENTITY] Appellant. Versus [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE S.S. SARON. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr. [ENTITY], Advocate for the appellant. Mr. [ENTITY], Additional Advocate General, Punjab. S.S. SARON, J.
The appellant-[ENTITY] has filed this appeal against the judgment and order dated 22.10.2008 passed by the learned Judge, Special Court, [ENTITY] whereby he has been convicted for the offence under [SECTION] of the [ACT] ('[ACT] short). He has been sentenced to undergo rigorous imprisonment for a period of 12 years, besides, pay a fine of Rs.1,00,000/- and in default thereof to undergo further rigorous imprisonment for a period of six months.
The FIR (Ex.P16) has been registered on a writing (Ex.P15) sent by Inspector [ENTITY], In Charge [ENTITY] (PW-4) to the SHO Police Station City [ENTITY]. Said Inspector [ENTITY] (PW-4) along with ASI [ENTITY] (PW-5), Head Constable [ENTITY], LC [ENTITY], LC [ENTITY], Constable [ENTITY] and Constable [ENTITY] on 07.02.2005, was in a government gypsy vehicle No. PB-12-B-2506. [ENTITY], constable was driving the said vehicle. The police party was going in the area of City [ENTITY] for setting up a check post ('naka') for checking. The police party reached the [ENTITY]-Bathinda crossing where [ENTITY] son of [ENTITY] resident of Tahliwala Jattan then resident of City [ENTITY] met them. He was joined with the police party and taken along. On the link road going towards village Jandwala from the main [ENTITY]-Bathinda road at a distance of about 100 yards towards village Jandwala on the small bridge ('puli') in the area of Jandwala, a check post for checking anti-social persons and vehicles had been set up. The time must be about 2.00 p.m. that from the side of village Jandwala a truck was seen coming towards the main Bathinda-[ENTITY] road, which was signalled to stop by Inspector [ENTITY] (PW-4). The driver and the conductor after stopping the vehicle hurriedly tried to get down but they were apprehended with the help of the police party. Their names and addresses were asked and the person who was driving the truck disclosed his name as [ENTITY] (appellant) and the other person who got down from conductor side of the truck disclosed his name as [ENTITY] (who was declared a juvenile). The aforesaid persons namely [ENTITY] and [ENTITY] were informed by Inspector [ENTITY] (PW-4) that he was posted as In charge [ENTITY] and was In charge of the checking party and he wanted to conduct a search of the truck No. HR-57-1088 as he suspected that some contraband article was in the truck, which was in their possession. [ENTITY] (appellant) and [ENTITY] (juvenile) were informed that they had a legal right to get their search and search of the truck in their possession conducted from some magistrate or a gazetted officer. The said two occupants of the truck in one voice stated that they wanted their search and that of the truck in their possession to be conducted by some gazetted officer. On this Inspector [ENTITY] (PW-4) prepared separate dissent memos (Ex.P10 and Ex.P11) of the said two persons, which were thumb marked/signed by them and were attested by the witnesses ASI [ENTITY] (PW-5) and [ENTITY] respectively. Inspector [ENTITY] (PW-4) through wireless QST informed Shri [ENTITY] DSP [ENTITY] (PW-2); besides [ENTITY] government photographer, [ENTITY] (PW-3) was asked through the Police Control Room, [ENTITY] to reach the spot. At about 2.30 pm, Shri [ENTITY] DSP [ENTITY] (PW-2) along with his gunman and staff in a government gypsy came at the spot and after about 15-20 minutes, [ENTITY] government photographer [ENTITY] (PW-3) along with his video camera reached at the spot. The DSP [ENTITY] (PW-2) was apprised of the entire circumstances. The DSP [ENTITY] (PW-2) disclosed his identity to [ENTITY] (appellant) and [ENTITY] (juvenile) and that he was posted as DSP [ENTITY] and was a gazetted officer of the police. He wanted to conduct their search and that of the truck as he suspected that they were carrying some contraband article in their possession and in the truck but they had a legal right to get their search and search of the truck conducted from some Magistrate or some other gazetted officer. The said two persons in one voice stated that they had faith in him and he could conduct their search and that of the truck in their possession. On this Inspector [ENTITY] (PW-4) prepared separate consent memos of [ENTITY] (appellant) and [ENTITY] (juvenile). [ENTITY] (appellant) thumb marked his consent memo (Ex.P-6), which was attested by DSP [ENTITY] (PW2) and witnessed by ASI [ENTITY] (PW-5) and [ENTITY]. The consent memo of [ENTITY] is Ex.P-12. DSP [ENTITY] (PW-2) attested these and instructed Inspector [ENTITY] (PW-4) to conduct their search and search the truck No.HR-57-1088 in their possession. Inspector [ENTITY] (PW-4) after removing the tarpaulin from the bags with the help of his companion officials conducted search of the truck. On search, 50 bags of poppy husk were recovered. These were marked serial wise from 1 to 50. Sample parcels were separately prepared after taking 250/250 grams of poppy husk from each of the bags. The sample parcels as per the bags were prepared and were numbered serial wise from 1 to 50. The bags of poppy husk were separately weighed and each bag weighed 39 kilograms 750 grams. The case property of 50 bags of poppy husk and 50 sample parcels of poppy husk were sealed by Inspector [ENTITY] (PW-4) with his seal bearing letters 'BS' and sample seal chit (Ex.P-1) was separately prepared. The seal after use was handed over to ASI [ENTITY] (PW-5). Shri [ENTITY] DSP [ENTITY] (PW-2) further put his seal bearing letters 'HGS' on the case property comprising of 50 bags of poppy husk, 50 sample parcels of poppy husk sealed with impression 'BS'. DSP [ENTITY] (PW-2) also attested the case property of 50 bags of poppy husk, 50 sample parcels of poppy husk and sample seal. The registration copy of truck No.HR-57-1088 was produced by accused [ENTITY] (Juvenile) before Inspector [ENTITY] (PW-4). The same was in the name of [ENTITY] son of [ENTITY] resident of Gandu Khurd, Tehsil Budhlada, District Mansa, Punjab now resident of Ward No.10, Canal Colony, Ratia, District Fatehabad, Haryana and was valid till 13.06.2005. The case property of poppy husk, the sample parcel of poppy husk sealed with seals 'BS' and 'HGS' along with sample seals as also truck No.HR-57-1088 along with its registration copy in support of proof were taken in possession by preparing recovery memo (Ex.P-7) which was attested by DSP [ENTITY] (PW-2) and witnessed by the aforesaid witnesses. Then Inspector [ENTITY] carried out personal search of [ENTITY] (appellant) and from his front shirt pocket, currency notes of Rs.2200/- were recovered which were taken in possession vide memo (Ex.P-13). The memo was thumb marked by [ENTITY] (appellant) and attested by DSP [ENTITY] (PW-2) and the previously mentioned witnesses. Personal search of [ENTITY] (juvenile) in accordance with procedure was carried out and from the right back pocket of his trouser currency notes of Rs.800/- were recovered. Separate memo (Ex.-14) of personal search was prepared, which both the accused and the witnesses signed. DSP [ENTITY] (PW-2) attested the memo. This entire proceeding at the spot was video filmed by [ENTITY] government photographer (PW-3). Inspector [ENTITY] (PW-4) sent memo (ruqa) Ex.P-15 to the Police Station through [ENTITY] and on its basis, formal FIR (Ex.P-
16) was registered. Both the accused [ENTITY] (appellant) and [ENTITY] (juvenile) had without any permit or licence kept in their possession 50 bags of poppy husk and thereby committed an offence under [SECTION] of the [ACT]. Accordingly, a case for the said offence was registered against [ENTITY] (appellant) and [ENTITY] (juvenile). Inspector [ENTITY] (PW-4) at the spot carried out spot inspection, prepared a rough site plan (Ex.P-17) of the place of recovery, recorded statements of the witnesses and carried out other investigation at the spot. The accused were also questioned and they were informed the reasons for their arrest in the present case. Memos of arrest (Ex.P-18 and Ex.P-19) mentioning the grounds of arrest were separately prepared which the accused and the witnesses signed. Inspector [ENTITY] (PW-4) on return produced the case property and the accused before [ENTITY] ASI Officiating SHO (PW-1). He on questioning found the facts to be correct and the accused were put in the lock up at the police station; besides, ASI [ENTITY], Officiating SHO (PW-1) of the Police Station under his supervision after checking the case property got the 50 bags of poppy husk and 50 sample parcels of poppy husk sealed with seal 'BS' and 'HGS' and he put his own seal 'GS' and also affixed his seal on the sample chit and attested the same. The entire case property was attested by Inspector [ENTITY] (PW-4) after preparing a memo (Ex.P-2) and was taken in possession and kept under his supervision. The tarpaulin with which the gunny bags were covered was taken in possession vide memo (Ex.P-20) which was attested by the said witnesses. On 08.02.2005, [ENTITY] ASI Officiating SHO (PW-1) produced the case property and the accused in the court of the learned Sub Divisional Judicial Magistrate, ('SDJM'-for short) [ENTITY]. The learned SDJM checked the case property, the sample parcels and attested the same. The seal of 'BS' and 'HGS' of the case property of 50 bags of poppy husk was got broken by the learned SDJM and under her supervision she got separate duplicate samples of 250/250 grams of poppy husk taken and the 50 bags of poppy husk weighing 39 kilograms 500 grams each were sealed with the seal of SDJM/[ENTITY] and the duplicate sample parcels were sealed with seal of SDJM/MLT. The government photographer [ENTITY] HC (PW-3) produced the video film that he had prepared of the occurrence before Inspector [ENTITY] (PW-4), which was taken in possession vide memo (Ex.P-9). [ENTITY] (PW-3) attested the same. During investigation, [ENTITY] submitted an affidavit (Ex.P21) of of [ENTITY] son of [ENTITY] resident of Gandu Khurd who was the owner of truck No.HR-57-1088 carrying the contraband. In terms of the said affidavit (Ex.P21), the truck had been sold to [ENTITY] (appellant) son of [ENTITY] resident of village Bohara on 18.01.2005. ASI [ENTITY] Officiating SHO (PW-1) recorded the statement of [ENTITY], Inspector (PW-4). The report from the FSL Laboratory ('FSL'-for short), Chandigarh had been received and was attached with the police report (challan). After completion of investigation, the police report (challan) was filed in the Court.
The learned Judge, Special Court, [ENTITY] in terms of his order dated 02.05.2005 from the report under [SECTION] of the [ACT] ('[ACT] short) coupled with other documents placed on the file, found a prima facie case for the offence under [SECTION] of the [ACT] to be made out against the appellant. Accordingly, the appellant was charge sheeted on the allegation that he on 07.02.2005 at about 2.00 pm in the area of village Jandwal was found in possession of 20 quintals of poppy husk without any permit or licence and thereby committed an offence punishable under [SECTION] of the [ACT], which was within the cognizance of the said Court. The Court directed that the appellant be tried of the charge that had been framed against him. The Court read over the charge and explained its contents to the appellant in his own language. The appellant pleaded not guilty to the charge framed against him and claimed trial.
The prosecution in order to establish its case examined as many as eight witnesses; besides, tendered documents in evidence including the Chemical Examiner's report (Ex.P1). The statement of the appellant in terms of [SECTION] [ACT] was recorded and the substance of the evidence appearing against him was put to him. The appellant in his defence took the stand that he was innocent and the police of CIA, [ENTITY] on 06.02.2005 took him from Munak barrier along with his truck in which 637 bags of 'geru' were loaded and he was in fact to go to Sangrur. From there the police brought him to [ENTITY] and falsely implicated him in the present case. There was no recovery of poppy husk bags from his possession. The learned trial Court recorded an additional statement of [ENTITY] under [SECTION] [ACT] The same was regarding the fact that the Head Constable [ENTITY] had proved Ex.PW-8/A which is a copy of the original certificate of disposal report of the case property. Sh. [ENTITY], DIG, Ferozepur, Sh. [ENTITY], [ENTITY] and Sh. [ENTITY], SSP, Ferozepur signed it and Ex.PW-8/B was a copy of entry of Register No.19 regarding disposal of the case property. The appellant stated that it was incorrect and these entries were false and the prosecution at its own had made them.
The learned Judge, Special Court, [ENTITY] considered the evidence and material on record. The Court found the appellant guilty for the commission of the offence under [SECTION] of the [ACT] and sentenced him to undergo rigorous imprisonment for twelve years; besides, pay a fine of Rs.1 lac and in default of payment of fine to undergo rigorous imprisonment for six months. The appellant aggrieved against the same has filed the present appeal.
The learned counsel for the appellant has contended that from the evidence and material on record, the prosecution has failed to prove its case. It is submitted that the appellant has been falsely implicated inasmuch as the contraband was not his ownership and was not recovered from a vehicle owned by him. The vehicle from which the contraband was recovered, it is submitted, was the ownership of [ENTITY] who has not even been proceeded against. Therefore, the case had been foisted on the appellant. Besides, it is submitted that the prosecution did not examine [ENTITY] who was an independent witness of the alleged recovery. It is also submitted that [ENTITY], Investigating Officer (PW-4) did not hand over his seal of letters 'BS' to [ENTITY] an independent witness, but he handed it over to [ENTITY], ASI (PW-5). It is also submitted that there are other discrepancies in the prosecution case inasmuch as there has been a delay of 15 days in sending the samples of poppy husk to the chemical examiner. The CFSL form was not deposited with [ENTITY]. [ENTITY] in fact was not examined. The case property was deposited with ASI [ENTITY] (PW-1) who was the officiating SHO and he kept the case property with him for one day until 08.02.2005 and thereafter he says that on the same day he handed it over to [ENTITY] SHO Police Station, [ENTITY] (PW-7) who in fact joined as SHO on 12.02.2005 and he (PW-7) says that the case property was handed over to him on the said date. In any case [ENTITY] SI/SHO (PW-7) even did not deposit the case property in the 'malkhana'. Therefore, it is submitted that the link evidence in the case is completely missing. The video film taken at the time of the alleged recovery has not been proved by exhibiting it on record. Besides, it is submitted that the case is full of discrepancies, and the appellant has been falsely implicated. Therefore, the appeal is liable to be accepted and the appellant is liable to be acquitted of the offence attributed to him.
In response, learned Additional Advocate General appearing for the State has submitted that the prosecution has led cogent and convincing evidence against the appellant and the learned trial Court has considered the case against the appellant in all material aspects. The contentions as raised by the learned counsel for the appellant it is submitted are not such which would vitiate the entire prosecution case. The contraband was recovered from the truck in possession of the appellant and the same in terms of the Chemical Examiners report (Ex.P1) was found to be poppy husk. It is submitted that the well-reasoned judgment and order of the learned trial Court is liable to be sustained and upheld and the appeal merits dismissal.
We have given our thoughtful considerations to the contentions of the learned counsel for the parties and with their assistance gone through the record.
Inspector [ENTITY] In charge CIA Staff [ENTITY] (PW-4) was head of the police party that recovered 50 bags of poppy husk on 07.02.2005 at 2.00 pm. A check post on the link road leading to village Jandwala from the Bathinda-[ENTITY] main road had been set up. At that time, a truck was seen coming from the side of village Jandwala towards the main Bathinda-[ENTITY] road. It was signalled to stop by Inspector [ENTITY] (PW-4). The driver and conductor on stopping the vehicle hurriedly tried to get down but they were apprehended by Inspector [ENTITY] (PW-4) with the assistance of the police party. Their names and addresses were inquired and the person who was driving the truck disclosed his name as [ENTITY] (appellant) and the person who got down from the conductor side of the truck disclosed his name as [ENTITY] (juvenile). [ENTITY] Inspector (PW-4) disclosed his identity to the accused and stated that he wanted to conduct a search of the truck because he suspected that some contraband article was being carried in it. The said persons i.e. [ENTITY] (appellant) and [ENTITY] (juvenile) were informed that they had a legal right to get the search of the truck conducted by some magistrate or a gazetted officer. Both the accused opted for their search being conducted in the presence of some gazetted officer. Memos Ex.P-10 and Ex.P-11 of both the accused were separately prepared which were thumb marked/signed by them and were attested by [ENTITY], ASI (PW-5), and [ENTITY]. [ENTITY] DSP [ENTITY] (PW-2) was informed through wireless to come at the spot. Thereafter Head Constable [ENTITY], government photographer (PW-3) also came at the spot. Inspector [ENTITY] (PW-4) apprised DSP [ENTITY] (PW-2) of all the facts of the case. Thereafter, DSP [ENTITY] (PW-2) disclosed his identity to the accused and he also informed them that they had the option to get the search conducted in the presence of some other gazetted officer or from a magistrate. The accused stated that they had faith in him and opted for their search and search of the truck by him ([ENTITY] DSP PW-2). Their consent memos in this regard were prepared. [ENTITY] (appellant) thumb marked his consent memo (Ex.P-6), which was attested by DSP [ENTITY] (PW-2). Consent memo of [ENTITY] (juvenile) is Ex.P-12. On directions of DSP [ENTITY] (PW-2), [ENTITY] Inspector (PW-
4) after removing the tarpaulin from the bags on the truck conducted a search of the truck and 50 gunny bags containing poppy husk were recovered from it. The bags were serially marked from 1 to 50. He (PW-4) took sample of 250/250 grams of poppy husk separately. The samples of 250/250 grams of poppy husk were converted into parcels and as per the bags of poppy husk; these parcels were marked serially from 1 to 50. On weighing the gunny bags, each bag weighed 39 kgs 750 grams of poppy husk. The case property of 50 bags of poppy husk, 50 sample parcels containing poppy husk were sealed by the Inspector [ENTITY] (PW-4) with his seal bearing letters 'BS' and sample seal chit (Ex.P1) was separately prepared. He handed over the seal to ASI [ENTITY] (PW-5) after its use. The case property of 50 bags of poppy husk, 50 sample parcels of poppy husk duly sealed with seal 'BS', were further sealed by [ENTITY] DSP [ENTITY] (PW-2) with his seal bearing letters 'HGS'. He also attested the sample seal chit and case property. The entire case property including the truck and its registration copy was taken in possession vide memo Ex.P-7, which was attested by [ENTITY] DSP (PW-2) and other witnesses signed it. On personal search of [ENTITY], currency notes of Rs.2200/- were recovered, which were taken in possession vide memo (Ex.P13). The memo was thumb marked by the accused [ENTITY] (appellant) and attested by the DSP [ENTITY] (PW-2) and the aforesaid witnesses. A rough site plan (Ex.P17) of the place of recovery was prepared and statements of the witnesses were recorded.
The truck which was taken in possession was in the name of one [ENTITY] son of [ENTITY] resident of Gandu Khurd, Tehsil Budhlada, District Mansa. He deposed an affidavit dated 18.01.2005 (Ex.P21) stating that he was owner of truck No.HR-57-1088 model 1995. He had sold the said vehicle to [ENTITY] (appellant) and had received full payment of the above-mentioned vehicle. It is stated that he ([ENTITY]) would be responsible for all the liabilities prior to this date (i.e. 18.01.2005), previous challans, accidents, taxes, if any, and hence forth the purchaser ([ENTITY] - appellant) may be said to be the registered owner and the said vehicle may be allowed to be transferred in his name for which he ([ENTITY]) would have no objection. The said affidavit (Ex.P-21) was tendered and exhibited on record. It was, however, tendered in evidence on the statement of ASI [ENTITY] (PW-5) who was one of the members of the police party headed by [ENTITY] Inspector (PW-4) which apprehended the truck. [ENTITY] ASI (PW-5) inter alia stated that on 16.03.2005, [ENTITY], [ENTITY] handed over one affidavit (Ex.P21) of [ENTITY] which was in favour of accused [ENTITY] (appellant) to him and it was taken in possession vide memo (Ex.P-22) attested by [ENTITY], [ENTITY] and Head Constable [ENTITY]. He recorded the statement of PWs. A perusal of the recovery memo (Ex.P-22) of the affidavit (Ex.P-21) shows that it has been recovered by ASI [ENTITY] (PW-5) from [ENTITY], [ENTITY]. However, [ENTITY] is not a signatory to the said affidavit (Ex.P-21) and neither has [ENTITY], [ENTITY] been examined as a witness; besides, it is not shown as to how [ENTITY], [ENTITY] came in possession of the said affidavit (Ex.P-21) and gave it to the investigating authorities. In case the truck had been transferred by [ENTITY] in favour of [ENTITY] (appellant) by giving the affidavit (Ex.P21), then the same ought to have been with [ENTITY] (appellant). [ENTITY] is a witness of the affidavit (Ex.P-21) and one [ENTITY] identified the deponent [ENTITY]. It is attested by Sh.[ENTITY], Advocate Notary, District Court, Bathinda. The prosecution did not examine [ENTITY] who signed as a witness to the affidavit (Ex.P-21) nor examined [ENTITY] who identified the deponent nor examined Sh.[ENTITY], Notary Public. Therefore, the affidavit (Ex.P-21) has been merely marked as an exhibit without proving it in accordance with law and procedure mandated for proving documents. The Supreme Court in [PRECEDENT], held that mere marking of a document as an exhibit does not dispense with its formal proof. In [PRECEDENT], it was held that mere production and marking of document as an exhibit is not enough and execution has to be proved by admissible evidence. Even otherwise the affidavit (Ex.P-21) is not liable to be read in evidence as the fact stated therein were liable to be proved by the deponent namely [ENTITY] who is said to have deposed the same. In terms of [SECTION] [ACT], it is evidence of formal character only that can be given on affidavit. It is provided therein that evidence of any person whose evidence is of formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceedings under the [ACT] [ENTITY] who is said to have deposed the affidavit (Ex.P21) is not a witness of a formal character and his said affidavit cannot be read in evidence and that too without him being subjected to cross-examination or being available from cross-examination. Therefore, the affidavit (Ex.P-21) not having been proved by admissible evidence of the witnesses, who are signatories to the same, nor by the Notary Public attesting the same, it cannot be said that the prosecution has established that the ownership of the truck carrying the contraband had been transferred in the name of [ENTITY] (appellant) or that he was the owner of the same. Even otherwise, in terms of [SECTION] of the [ACT], 'owners' has been defined to mean a person in whose name a motor vehicle stands registered. The truck No.HR-57-1088 is admittedly recorded in the registration copy of the truck that was recovered in the name of [ENTITY]. Therefore, [ENTITY] (appellant) is indeed not the owner of the truck from which the contraband was recovered. In the circumstances, the prosecution has failed to establish as to how and in what capacity [ENTITY] (appellant) was driving the truck from which the contraband had been recovered.
[ENTITY] was an independent witness in respect of the recovered contraband but he was not examined by the prosecution on the ground that he had been won over by the accused. The non-examination of the independent witness [ENTITY] in the facts and circumstances of the present case does affect the prosecution case. [ENTITY] on 07.02.2005 had met the police party headed by Inspector [ENTITY] (PW-4). He was associated with it and was present when the contraband was recovered from truck No.HR-57-1088 which it has been alleged was being driven by [ENTITY] (appellant). [ENTITY] had signed various recovery memos and other proceedings at the time of the recovery the contraband. Inspector [ENTITY] (PW-4) on the directions of DSP [ENTITY] (PW-2), conducted search of the truck and 50 bags of poppy husk were recovered. Inspector [ENTITY] (PW-4) sealed the recovered contraband and also 50 sample parcels and put his seal 'BS' on them. The seal after use was handed over to ASI [ENTITY] (PW-5) and not to [ENTITY] who was indeed an independent witness. The defence of the appellant is that he was taken by Police of CIA staff on 06.02.2005 from Munak barrier along with his truck which was loaded with 637 bags of 'geru'. He was brought from there to [ENTITY] and falsely implicated in the present case. The alleged bags of poppy husk were not recovered from his possession. In order to dislodge the defence and clearly establish that the contraband had been recovered from the place i.e. in the area of village Jandwala from the appellant, the independent witness [ENTITY] ought to have been examined. This is more particularly for the reason that the truck that was carrying the contraband has also not been established to be the ownership of [ENTITY] (appellant). Therefore, non-examination of [ENTITY] an independent witness does casts serious doubts as regards the truthfulness of the prosecution case.
The other contention on behalf of the appellant is that there has been a delay of 15 days in sending the samples of poppy husk to the FSL for chemical examination. The other contention of the learned counsel for the appellant is that the prosecution case is full of discrepancies. The seal of sample chit (Ex.P-1), it is noticed, is pasted on Form No.25, which is filled for the purpose of sending the samples of the poppy husk to the FSL for chemical examination. The form was filled by [ENTITY] SHO (PW-7) on 21.02.2005. The Form contains the sample chit (Ex.P-1), which is pasted on it. Sample chit (Ex.P-1) contains the sample seal 'GS' of [ENTITY] ASI (PW1) who was the officiating SHO on 07.02.2005; besides, it contains the seal of 'HGS' of [ENTITY] DSP (PW-2) and 'BS' of [ENTITY] Inspector (PW-4). However, ASI [ENTITY] (PW-1) who was Officiating SHO at Police Station City, [ENTITY] in his deposition states that on the next day of recovery i.e. on 08.02.2005, he produced both the accused i.e. [ENTITY] (appellant) and [ENTITY] (juvenile) in the Court of the learned SDJM, [ENTITY] along with request Ex.P-3 on which learned SDJM passed order Ex.P-4. He also produced inventory report Ex.P-5 before learned SDJM, [ENTITY]. Learned SDJM it is stated after breaking open the seals of the gunny bags drew representative samples of 250 grams poppy husk from each bag and the same were converted into 50 separate parcels. All the 50 representative samples and the gunny bags containing the remaining poppy husk were sealed by the learned SDJM with her seal bearing impression FSD/MLT. It is stated that the learned SDJM also signed on the representative samples; beside in the Court complex, photographs of the case property were taken. On return to the police station, ASI [ENTITY] (PW-1) retained the sample parcels in his custody and deposited the remaining case property with [ENTITY] with seals intact. On the same day i.e. on 08.02.2005, he handed over 50 sample parcels of poppy husk to SHO [ENTITY] (PW-7) with seals intact. He also handed over the sample seals to SHO [ENTITY], Police Station, City [ENTITY] (PW-7). In cross-examination, it is stated that his statement was not recorded. The investigating officer ([ENTITY] PW-4) was with him when the case property was produced by him in the Court. It is further stated that it was incorrect to suggest that the entire proceedings had been fabricated while sitting in the police station in connivance with SHO [ENTITY] (PW-7) and the investigating officer [ENTITY] (PW-4).
A perusal of the above shows that 50 representative samples and the gunny bags containing the remaining poppy husk were sealed and signed by learned SDJM with her seal bearing impression FSD/MLT. However, the 50 samples containing the seal impression FSD/MLT were not sent to the Chemical Examiner and as to what happened with the said 50 samples are quite unclear. The Chemical Examiner [ENTITY], Assistant Chemical Examiner to Government Punjab, Chandigarh in his report Ex.P.1 has mentioned that he received samples of the present case with seals 'GS', 'HGS' and 'BS', which are that of [ENTITY] SI/SHO Police Station City [ENTITY] (PW-1), [ENTITY] DSP [ENTITY] (PW-2) and [ENTITY] Inspector In charge CIA Staff [ENTITY] (PW-4) respectively. The sample containing the seal impression FSD/MLT of the learned SDJM, [ENTITY] was admittedly not sent to the Chemical Examiner and neither is there any mention of the same in the report (Ex.P1) of the Chemical Examiner in this regard. The Chemical Examiner in his report has recorded as follows:-
"The exhibits marked here 131-Poppy head -Feb-05 to 180-P-Feb- 05 were received on 22.02.05 with the particulars overleaf. The seals of the exhibits were intact on arrival and agreed with the specimen seal sent. The exhibits remained in my safe custody after its receipt; till the time its analysis was started. The analysis of the samples marked here 131-P-Feb-05 to 180- P-Feb-05 is as under:
The analytical data is enclosed herewith. Opinion: - The analysis indicates that the contents of the exhibits marked here 131-P-Feb-05 to 180-P-Feb-05 are of poppy head.
([ENTITY]) Asst. Chem-Exam-to, Govt. Punjab.
Chandigarh"
A perusal of the above report (Ex.P1) shows that the sample which were sent to the Chemical Examiner were marked as 131-poppy head-Feb-05 to 180-P-Feb-05 which were received on 22.02.2005 with the particulars mentioned overleaf of the said report. The particulars that have been mentioned are those relating to 50 samples of poppy husk each weighing 250/250 grams duly sealed with seal 'BS', 'HGS' and 'GS'. The samples which were marked by SDJM with her seal impression FSD/MLT were for reasons best known not sent to the Chemical Examiner.
The copy (Ex.PW8/A) of the certificate of destruction of [ACT] has been produced on record. The said certificate has been proved by [ENTITY], P.S. City [ENTITY] (PW-8). It is stated by him that he had brought the original Register No.19 pertaining to the present case and Ex.PW-8/A was the copy of the original certificate of the disposal report of the case property signed by Sh. [ENTITY], DIG, Ferozepur, Sh. [ENTITY], [ENTITY] and Sh. [ENTITY], SSP, Ferozepur and Ex.PW-8/B was the copy of the entry of Register No.19 regarding disposal of the case property. A perusal of the copy of certificate dated 03.10.2005 (Ex.PW8/A) of destruction of [ACT] shows that in the present FIR No.29 dated 07.02.2005 registered at Police Station City [ENTITY] under the [ACT] certificate (Ex.PW8/A) of destruction of [ACT] was prepared. The details of the drugs and its substances destroyed are mentioned. Detail of the drugs is mentioned as poppy husk. The gross weight is mentioned as 2000 kilograms and net weight is mentioned as 1975 kilograms. It has been certified that the Committee consisting of Shri (not mentioned) supervised the destruction of narcotic drugs and psychotropic substances particularized therein in the presence of the witnesses namely Sh. [ENTITY] Municipal Commissioner Cantt. and Sh.[ENTITY], [ENTITY]. It is signed by IG Police, Ferozepur Range, Ferozepur Cantt., Senior Superintendent of Police, Ferozepur and Senior Superintendent of Police, [ENTITY]. It is attested by [ENTITY] SHO Police Station City [ENTITY]. However, 50 samples bearing the seal FSD/MLT which were got sealed by SDJM, [ENTITY] as per deposition of ASI [ENTITY] (PW-1) are not shown to have been destroyed. Therefore, 50 samples containing the seal FSD/MLT or SDJM/MLT, as the case may be, are not shown to be sent to the Chemical Examiner nor are shown to be destroyed in the copy of certificate (Ex.PW8/A). A perusal of the certificate (EX.PW8/A) also shows that it does not mention the number of bags as 50 but only the gross weight of bags is mentioned as 2000 kilograms and net weight as 1975 kilograms. The poppy husk as per the prosecution case is that of 50 bags of poppy husk that were recovered and were produced by ASI [ENTITY] Officiating SHO Police Station City [ENTITY] (PW-1) on 08.02.2005 in the Court of learned SDJM, [ENTITY]. It is stated by ASI [ENTITY] (PW-1) that the learned SDJM, [ENTITY] after breaking open the seals of the gunny bags drew representative samples of 250 grams of poppy husk from each of the bags which were converted into separate 50 parcels. Thereafter, all the 50 representative samples and the gunny bags containing the remaining poppy husk were sealed by learned SDJM, [ENTITY] with her seal bearing impression FSD/MLT. Therefore, while destroying the contraband, it was liable to be verified whether the 50 bags containing poppy husk with seals FSD/MLT of learned SDJM, [ENTITY] were there. However, the bags of poppy husk with seals intact have not even been mentioned in the copy of certificate (Ex.PW8/A) and only 2000 kilograms gross weight and 1975 kilograms net weight of poppy husk is mentioned, which is alleged to have been destroyed. The number of bags that were destroyed i.e. 50 bags are not mentioned. The 50 bags produced before the learned Sub Divisional Judicial Magistrate, [ENTITY] on 08.02.2005 were liable to be mentioned and shown to be destroyed in the certificate (Ex.PW8/A), which is regarding destruction of the contraband.
A perusal of Register No.19 (Ex.PW8/B) shows that in the present case 50 sample parcels weighing 250/250 grams of poppy husk sealed with seal 'BS', 'GS' and 'HGS' along with seals were deposited. Against the same it is mentioned that vide road No.36 dated 21.02.2005 these were deposited in the office of Chemical Examiner, Chandigarh through LC [ENTITY] (PW-6). This entry in the register was attested by [ENTITY] MHC on 22.02.2005. The other entry is regarding 50 sample parcels taken out from the case property by Judge [ENTITY] (SDJM, [ENTITY]) weighing 250/250 grams of poppy husk duly sealed with seal SDJM/MLT. Against this entry it is mentioned that vide rapat No.29 dated 13.09.2005 these were deposited through [ENTITY] with Police Lines, [ENTITY], and Committee for destruction. However, as already noticed, these are not shown to be destroyed in the copy of certificate (Ex.PW8/A) regarding destruction of record. Therefore, 50 sample parcels which were taken in the presence of SDJM [ENTITY] were admittedly not sent to the Chemical Examiner along with the parcels which contained the seals of 'BS', 'GS' and 'HGS'. The next entry (Ex.PW8/B) in Register No.19 is regarding 50 bags of poppy husk weighing 39 kilograms in each bag duly sealed with seal SDJM/MLT. The next entry is regarding one truck bearing No.HR-57-1088 original order attached in the register. Vide rapat No.20 dated 25.08.2005, truck No.HR-57-1088 was found in intact condition. There is also an entry with the signature of [ENTITY] son of [ENTITY], resident of Gandu Khurd, Police Station Boha, District Mansa who was/is the owner of the truck. It may also be noticed that the truck that was recovered was taken in possession on 'superdhari' (entrustment during trial) by said [ENTITY]. It is [ENTITY] who filed an application dated 26.07.2005 for release of truck No.HR-57-1088 in his favour. The learned Judge, Special Court, [ENTITY] after obtaining police report passed an order dated 23.08.2005 releasing the truck in favour of the applicant [ENTITY]. In the said order it is observed that according to the police report the applicant ([ENTITY]) is the owner of the truck and that the local police had no objection in release of the truck on 'sapurdari'. [ENTITY] filed '[ENTITY]' dated 25.08.2005 along with [ENTITY] son of [ENTITY] resident of village Bhuttar, District Faridkot for release of the truck. In case the truck had been sold by [ENTITY] to [ENTITY] (appellant) in terms of the affidavit (Ex.P21), it was he who would have taken the truck on 'superdhari'. [ENTITY], the original owner of the truck has not been examined by the prosecution; besides, [ENTITY] MHC with whom the case property was deposited has also not been examined. [ENTITY] ASI Officiating SHO (PW-1) in his deposition also stated that after producing the case property before the learned SDJM, [ENTITY], it was got photographed in the Court complex. No photographs of the case property have been produced. It is further stated by ASI [ENTITY] (PW-1) that on return to the Police Station, he retained the sample parcels in his custody and deposited the remaining case property with [ENTITY] MHC with seal intact; besides, on the same day he handed over 50 sample parcels to SHO [ENTITY] (PW-7) with seals intact. Therefore, according to ASI [ENTITY] Officiating SHO (PW-1), he handed over 50 sample parcels which were taken to the Court of SDJM, [ENTITY] to SHO [ENTITY] (PW-7) on 08.02.2005 itself. [ENTITY] SHO (PW-7), however, has stated that on 12.02.2005, he was posted as SHO Police Station City [ENTITY] and on that day ASI [ENTITY] (PW-1) handed over to him 50 sample parcels of 250/250 grams of poppy husk each along with sample seal chit sealed with seal bearing impression 'BS', 'GS' and 'HGS'. On 21.02.2005, he (PW-7) handed over the above said parcels along with sample chit to LC [ENTITY] (PW-6) for depositing the same in the office of Chemical Examiner, Chandigarh. It is further stated by SI [ENTITY] SHO (PW-7) that he directed LC [ENTITY] (PW-6) to get the docket forwarded from the office of SSP, [ENTITY] and thereafter deposit the sample parcel in the office of Chemical Examiner. He did not tamper with the sample parcels in any manner during the period they remained in his custody. At this stage SI/SHO [ENTITY] (PW-7) was got declared hostile and cross-examined by the public prosecutor. In cross-examination he (PW-7) states that the sample parcels were handed over to him on 12.02.2005. He joined Police Station City [ENTITY] as SHO on 12.02.2005. He was not posted there before the said date. Therefore, it is quite evident that the statement of [ENTITY] ASI Officiating SHO (PW-1) that he produced the case property on the next day after its recovery i.e. on 08.02.2005 in the Court of the learned SDJM, [ENTITY] and on the same day i.e. 08.02.2005, he handed over 50 sample parcels to SHO [ENTITY] (PW-7) with seals intact is clearly not established as SHO [ENTITY] (PW-7) joined as SHO Police Station City [ENTITY] on 12.02.2005; besides, SHO/SI [ENTITY] (PW-7) makes no mention of the samples with the seals of SDJM/MLT. He only makes a mention of the samples with the seals 'BS', 'GS' and 'HGS' being received by him. It may also be noticed that in case the 50 samples with seal of 'BS', 'GS' and 'HGS' were given to [ENTITY] SHO (PW-7) on 12.02.2005, it is not explained as to where they were from 08.02.2005 to 12.02.2005. Moreover, [ENTITY] SHO (PW-7) kept the sample parcels with him from 12.02.2005 to 21.02.2005 and he did not deposit them in the 'malkhana' or in any other appropriate place. Therefore, the prosecution case indeed is full of discrepancies and infirmities which casts serious doubt as to its veracity and truthfulness.
The samples which were sealed with the seal SDJM, [ENTITY] were not sent for chemical examination and these are not shown to have been destroyed even. The chances of tampering with the samples bearing the seal 'BS', 'GS' and 'HGS' cannot be ruled out as there is no explanation as to where these were kept from 08.02.2005 to 12.02.2005 and then from 12.02.2005 to 21.02.2005. [ENTITY], Malkhana In charge could have cleared this ambiguity with reference to the Register No.19 (Ex.PW8/B). However, he has not been examined. It is also not shown as to when CFSL Form was filled and whether it was deposited with [ENTITY]. Form No.29 has been filled by SHO [ENTITY] (PW-7) on 21.02.2005 when it was given to LC [ENTITY] (PW-6) for depositing it with the Chemical Examiner.
[ENTITY], Government Photographer Police Line (PW-3) in Court stated that on 07.02.2005, he was posted as official photographer, Police Lines, [ENTITY]. On that day he was present in the area of [ENTITY] in connection with duty where he received a message through Police Control Room. He went to the spot in the area of village Jandwala and prepared a video movie of the entire proceedings conducted at the spot in his presence. After preparing the same, he handed over the cassette to Inspector [ENTITY] (PW-4) at the spot who converted the same into a parcel and sealed it with his seal bearing impression 'BS'. The seal after use was handed over to ASI [ENTITY] (PW-5). Inspector [ENTITY] (PW-4) took the cassette in his possession vide memo (Ex.P9) which was attested by him. Parcel containing the video movie is MO-1. [ENTITY], Government Photographer (PW-3) was cross- examined and he stated that he handed over the video cassette to Inspector [ENTITY] (PW-4) after completing all proceedings at the spot. Seal was already with Inspector [ENTITY] (PW-4) when he sealed the parcel MO-1. He had seen memo (Ex.P9) which bears his signatures. Memo (Ex.P9) bears his signatures as [ENTITY] (PW-3). He received message on telephone. DSP [ENTITY] (PW-2) was already present at the spot when he reached there. [ENTITY], it is stated, was aged about 25 years. It was incorrect to suggest that he had deposed falsely. A perusal of the said deposition shows that the actual video movie has not been proved or exhibited on record. Only taking in possession the vide memo (Ex.P9) and the parcel containing the video MO- 1 is mentioned. It is not stated by [ENTITY] (PW-3) that the movie that he had prepared at the spot on 07.02.2005 and was taken in possession had been seen by him and was the same which he had prepared. Therefore, video cassette which is in a sealed cover has not been proved. The seal of the video cassette was liable to be opened and shown to [ENTITY] (PW-3) so that he could say that this is the same video that he had prepared at the spot. In the police papers the name of the government photographer is mentioned as [ENTITY] and even memo (Ex.P9) bears his signatures as [ENTITY] (PW-3), however, in Court he deposes as [ENTITY]. Therefore, the video cassette which was prepared is not proved or exhibited on record.
As regards the link evidence, LC [ENTITY] (PW-6) has stated that on 21.02.2005, he was posted at PS City, [ENTITY]. He tendered in evidence his affidavit (Ex.P23). In cross-examination it is stated that it was incorrect to suggest that he had tendered false affidavit. As per affidavit (Ex.P23), it has been deposed that on 21.02.2005, SI [ENTITY] SHO Police Station City [ENTITY] (PW-7) handed over to him 50 sample parcels of poppy husk weighing 250/250 grams duly sealed with seals 'BS', 'GS' and 'HGS' along with sample seal of the case vide No.36 dated 21.02.2005. He was first directed to get the docket issued and numbered from the office of Senior Superintendent of Police, [ENTITY] and then deposit it in the office of Chemical Examiner, Punjab, Chandigarh. As per directions of [ENTITY] SI/SHO Police Station City [ENTITY] (PW-7) on 21.02.2005 on reaching the office of SSP, [ENTITY], he got the docket issued and numbered and on 22.02.2005, he deposited the same in the office of Chemical Examiner, Punjab, Chandigarh. On getting receipt, on return he handed it over to [ENTITY] SI/SHO Police Station City [ENTITY] (PW-7) who handed over the same to MHC for attaching with the record. The said affidavit (Ex.P23) also does not make a mention of the 50 sample parcels which were sealed by the SDJM, [ENTITY] on 08.02.2005.
From the above said facts and circumstances, the prosecution has failed to establish its case beyond shadow of doubt. The facts and circumstances show that:-
(1) The truck No.HR-57-1088 is not the ownership of the appellant-[ENTITY].
(2) The affidavit (Ex.P21) regarding transfer of the truck by [ENTITY] original owner to the appellant is not proved as signatories to the affidavit deposed in this regard and the affidavit has been wrongly exhibited on the statement of ASI [ENTITY] (PW-5).
(3) [ENTITY] owner of the truck was not examined by the prosecution; besides, he had taken the truck on 'superdhari' from the Court and it was not taken by the appellant.
(4) The independent witness [ENTITY] has not been examined who in the facts and circumstances of the case could have established the recovery beyond shadow of reasonable doubt.
(5) The video cassette prepared by [ENTITY] HC Government Photographer (PW-3) has not been proved.
[ENTITY] (PW-3) is mentioned in the police proceedings as [ENTITY] and he even signed memo (Ex.P9) as [ENTITY].
(6) The destruction of the case property vide certificate (Ex.PW-8/A) does not mention that 50 bags with seals intact of SDJM, [ENTITY] were destroyed. It only mentions that gross weight 2000 kilograms and net weight 1975 kilograms has been destroyed.
(7) The 50 sample parcels with seals of learned SDJM, [ENTITY] as per entry (Ex.PW-8/B) in Register No.19 was sent to the Police Lines, [ENTITY] for destroying them. However, the copy of certificate (Ex.PW-8/A) does not show them to be destroyed.
(8) [ENTITY] MHC with whom the case property was deposited has not been examined.
(9) The case property as per [ENTITY] ASI officiating SHO (PW-1) was given to [ENTITY] SHO (PW-7) on 08.02.2005. However, [ENTITY] SHO (PW-7) states that he joined as SHO Police Station City [ENTITY] on 12.02.2005 on which date the case property was handed over to him. Therefore, it is not clear as to where the case property remained from 08.02.2005 to 12.02.2005.
(10) [ENTITY] SHO (PW-7) gave the sample of case property bearing seal 'BS', 'GS' and 'HGS' to LC [ENTITY] (PW-6) on 21.02.2005. [ENTITY] SHO (PW-7) does not state as to where the sample parcels were kept from 12.02.2005 to 21.02.2005. The 50 sample parcels which were sealed by learned SDJM [ENTITY] have admittedly not been sent to the Chemical Examiner. As per Register No.19 (Ex.PW8/B) these were sent for destruction to the Committee at Police Lines, [ENTITY]. However, proceedings (Ex.PW8/A) do not show that these were destroyed. The same in fact were liable to be sent to the Chemical Examiner which were for reasons best known not sent.
(11) The photographs taken at the Court complex with the case property on 08.02.2005 as deposed by [ENTITY] ASI Officiating SHO (PW-1) have not been produced in Court for whom an adverse inference is liable to be drawn against the prosecution.
For the foregoing reasons, the appeal is allowed and the judgment and order dated 22.10.2008 passed by the learned Judge, Special Court, [ENTITY] is set aside and the appellant is acquitted of the offence for which he was charged. The appellant, who is in custody, be set at liberty forthwith in case he is not wanted in any other case.
([ENTITY]) Judge 29.08.2011 ([ENTITY]) A.kaundal Judge