Crl. Appeal No.259-SB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.259-SB of 2000 Date of Decision : 29.07.2008 Piara Singh S/o Bakhtawar Singh, ....Appellant R/o Sirthala. Versus The State of Punjab ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. B.S.Bhasaur, Advocate, for the appellant. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 20.1.2000, rendered by the Judge, Special Court, Sangrur, vide which he convicted the accused (now appellant), for the offence, punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him, to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and, in default of payment of the same, to undergo rigorous imprisonment for another period of one year, for having been found in possession of 300 grams opium (now falling within the ambit of non-commercial quantity), without any permit or licence. 2. The facts, in brief, are that on 30.1.1999, a police party headed by Crl. Appeal No.259-SB of 2000 2 Narain Singh, ASI, was going in connection, with patrol duty, on private scooters, from Village Khurd towards Village Kuthala, on the metalled road, and when it reached near the cremation ground, in the area of Village Kuthala, the accused was seen coming, on foot. On seeing the police party, he tried to slip away towards his left side, but was apprehended, on suspicion. In the meanwhile, Surjit Singh, Ex.Sarpanch of Village Sandaur, came from the side of village Kuthala, on a bicycle, who was joined with the police party. Search of the jacket, being worn by the accused, in the presence of Inder Mohan Singh, DSP, who was called to the spot, by sending a telephonic message, was conducted, as a result whereof, 300 grams opium, wrapped in a glazed paper, from his right front pocket, was recovered. Two samples of 10 grams each, were separated therefrom, and the remaining opium, was put into a separate container. The samples, and the container, containing the remaining opium, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 18 of the Act, was framed against him, to which he pleaded not guilty and claimed trial. 4. The prosecution, in support of its case, examined Inder Mohan Singh, DSP (PW-1), Narain Singh, ASI (PW-2), Malkiat Singh, HC (PW-3), Pritpal Singh, MHC (PW-4), Ajit Singh, ASI (PW-5), and Baldev Singh, Constable (PW-6). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against Crl. Appeal No.259-SB of 2000 3 him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence, in his defence. 6. After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, submitted that though Surjit Singh, Ex.Sarpanch, was joined as an independent witness, by the Investigating Officer, at the time of alleged recovery, yet he was not examined, without any rhyme or reason, and, as such, it could be said that the material evidence was withheld by the prosecution. He further submitted that, an adverse inference could be drawn, that had Surjit Singh, Ex. Sarpanch, been examined, he would not have supported the prosecution case. The submission of the Counsel for the appellant, in this regard, appears to be correct. Vide statement dated 16.12.1999, Surjit Singh, Ex. Sarpanch, was given up as won over by the Addl. Public Prosecutor for the State. There is nothing, in the statement of the Addl. Public Prosecutor for the State, as to on the basis of which material and data, he came to the conclusion, that this witness, had been won over by the accused. There is nothing, on the record, that any application was moved, by the Investigating Officer, that he had come to know, from reliable sources, that Surjit Singh, independent witness, was not going to support the case of the prosecution, and, thus, he be given up. It is, no doubt, true that the Public Prosecutor for the State, is the master of the case. It is, for him to decide, as to which witness he wanted to examine and, as to which Crl. Appeal No.259-SB of 2000 4 witness, he did not want to examine. However, such discretion is required to be exercised, by the Public Prosecutor, in accordance with the sound Judicial principles, and, not arbitrarily and capriciously. In the instant case, it is not known, as to what, persuaded the Public Prosecutor to give up this witness, as won over. It, therefore, could be said that the discretion was exercised by him, arbitrarily and capriciously. It is, no doubt, true that, in the absence of corroboration, through an independent source to the evidence of the official witnesses, the case of the prosecution cannot be thrown out. However, when an independent witness is joined, but is given up, without any rhyme or reason, then certainly a doubt is cast, on the prosecution story. Had Surjit Singh, independent witness, been examined, light would have been thrown, on the facts and circumstances of the case, and credence would have been lent to the prosecution case, solely based on the evidence of the official witnesses. It is, no doubt, true that, in the absence of corroboration through an independent source, the evidence of the official witnesses cannot be disbelieved and distrusted, blind-foldely, if the same is found to be creditworthy. However, when the evidence of the official witnesses, is found to be not cogent convincing, reliable and trustworthy, then on account of non-corroboration thereof, through an independent source, certainly a doubt is cast, on the prosecution story. In the instant case, the evidence of the prosecution witnesses, does not inspire confidence, in the mind of the Court. In this view of the matter, non- corroboration of the evidence of the official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In State of Punjab Vs. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution became doubtful. In the instant case, non-examination of Surjit Singh, made the case of the prosecution doubtful. The trial Court did not take Crl. Appeal No.259-SB of 2000 5 into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused. 9-A. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected on 30.1.1999, yet the samples were received, in the office of the Chemical Examiner on 16.2.1999 i.e. after a delay of 16 days. He further submitted that no explanation was furnished by the prosecution witnesses, for such a delay, in sending the samples to the office of the Chemical Examiner, as a result whereof, the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 16 days, in sending the samples to the office of the Chemical Examiner. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the samples, till the same reached the office of the Chemical Examiner. Since, the samples were allegedly sent to the office of the Chemical Examiner, after 16 days, it could not be safely held that the same remained un-tampered with. This fact casts a shadow of doubt, on the case of the prosecution. In Gian Singh Vs. State of Punjab 2006(2) RCR (Criminal) 611, there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. Under these circumstances, it was held that the possibility of tampering with the sample, could not be ruled out, and the link evidence was incomplete. Ultimately, the appellant was acquitted, in that case. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. In Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner Crl. Appeal No.259-SB of 2000 6 after 72 hours, and the seal remained with the police official, and had not been handed over to any independent witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Chemical Examiner. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 16 days, in sending the samples to the office of the Chemical Examiner, and non-strict proof, by the prosecution, that the same was not tampered with, till it was deposited, in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 10. It was next submitted by the Counsel for the appellant, that the sample impression of the seals, was not sent to the office of the Chemical Examiner, alongwith the sample parcel, as a result whereof, it could not be said that the seals, on the sample parcel, were the same, as were allegedly affixed immediately after the alleged seizure. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ex.PH, is the affidavit of Baldev Singh, Constable, who allegedly deposited the sample parcel, in the office of the Chemical Examiner. In this affidavit, it was stated by him, that on 16.2.1999, he took the sample parcels, to the office of the Chemical Examiner, and deposited the same there, in intact condition. Ex.PH, does not speak of the factum that he was handed over the sample impression of the seals, and that he deposited the same, in the office of the Chemical Examiner. It means that neither Baldev Singh, Constable, was handed over the sample impression of the seals, nor he deposited the same, in the office of the Chemical Examiner. Under Crl. Appeal No.259-SB of 2000 7 these circumstances, it could not be said, as to whether, the sample was received in the office of the Chemical Examiner, with seals intact, and as to whether, the said parcel bore the same seals, as were allegedly affixed by the Investigation Officer, and the SHO, on the same. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the sample seal was not sent to the Laboratory, at the time of sending the sample parcel. The Apex Court, held that the case of the prosecution, was doubtful, on account of this reason. In this view of the matter, the case of the prosecution also became doubtful. The trial Court, did not take into consideration, this aspect of the matter,as a result whereof, miscarriage of justice occasioned. 11. In the instant case, there was violation of the provisions of Section 55 of the Act, as the case property and the samples were not produced before the Magistrate. Section 55 of the Act, lays down that an Officer Incharge of Police Station shall take charge of and keep in safe 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. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the sample are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the Crl. Appeal No.259-SB of 2000 8 search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Crl.) 702 (S.C.), it was held that non-compliance of the provisions of Sections 52,55 and 57, which are, no doubt, directory and violation thereof, would not ipso facto vitiate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, since the Investigating Officer, intentionally and deliberately breached the provisions of Section 55, he could not say that the provisions being directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provision, is an indicator, towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of Crl. Appeal No.259-SB of 2000 9 justice occasioned. 11-A. It was next submitted by the Counsel for the appellant, that the provisions of Section 57 of the Act, were not complied with, as a result whereof, the investigation, trial, conviction, and sentence, stood vitiated. The submission of the Counsel for the appellant, in this regard, appears to be correct. Narain Singh, ASI (PW-2), the Investigating Officer, stated that no special report was sent by him, to the suprior officers, from the spot. No doubt, the provisions of Section 57 of the Act, are directory in nature. That does not mean that the same, should not be complied with, by the Investigating Officer, deliberately and intentionally. Similar principle of law, was laid down, in Gurbax Singh's case (supra). However, the Investigating Officer, cannot totally ignore these provisions, as such failure will have bearing on the appreciation of evidence, regarding search of the accused, and seizure. The object of the provisions of Section 57, is that the Superior Officer should be informed, immediately, after the alleged recovery of the contraband, so that he must be aware of the genuineness of the proceedings, conducted by his junior, to ensure that no innocent person was implicated, and the allegations of high- handedness, against the Police officials, are averted. Had any explanation been furnished by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of the Act, the matter would have been different. In the absence of any explanation, what to speak of plausible, the Court cannot coin any of its own, to fit in with the prosecution case. Since, the provisions of Section 57 of the Act, were observed, more in breach, than in compliance, by the Investigating Officer, intentionally and deliberately, prejudice was caused to the accused, and, the case of the prosecution became doubtful, on account of this reason. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it committed an error, in recording conviction and awarding sentence. Crl. Appeal No.259-SB of 2000 10 12. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, are not based on the correct appreciation of evidence, and law, on the point. Had the trial Court taken into consideration, the aforesaid infirmities and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 18 of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside. 13. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 20.1.2000, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required in any other case. 29.07.2008 (SHAM SUNDER) Vimal JUDGE