Crl. Appeal No. 716-SB of 1998 -1- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 716-SB of 1998 Date of decision, March 27, 2008 Gurnam Singh son of Bhal Singh r/o Village Dhani Sadhanwas, Dist. Hisar. ....... Appellant/accused Versus State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. K. S. Dhaliwal, 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 16.7.1998, rendered by the Court of Additional Sessions Judge, Hisar, vide which it convicted the accused/appellant Gurnam Singh for the offence punishable under Section 15 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 two years. 2. The facts, in brief, are that on 29.4.1997, Rajinder Singh, ASI while being posted as SHO Police Station Jakhal along with constable Dalip Singh and other police officials was present at Mayond Canal Bridge. Balwinder Singh, Sarpanch, happened to meet the police party. He was Crl. Appeal No. 716-SB of 1998 -2- joined with the police party. When the police party reached Sadhanwas Canal bridge, the accused was seen coming with a gunny bag. Search of the bag, in accordance with the provisions of law was conducted, which resulted into the recovery of 36 Kgs. of poppy husk. A sample of 100 grams was taken out of the same and the remaining poppy husk was put in the same bag. The bag and the sample were converted into parcels, sealed with the seal, bearing impression 'RSC' and taken into possession vide recovery memo Ex. PB attested by the witnesses. Ruqa Ex. PC was sent to the Police Station, on the basis whereof, the FIR was registered. Site plan Ex.PD was prepared. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Dalip Singh,Constable PW-1, Rajinder Singh, SI, PW-2, Indraj, Head Constable, PW-3, and UGC Krishan Kumar, PW-4. Thereafter, the 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 him, in the prosecution evidence. He pleaded false implication. He, however, produced Balwinder Singh, DW-1 in support of his case. Crl. Appeal No. 716-SB of 1998 -3- 6. After hearing the 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 accused/appellant. 8. I have heard the learned 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, contended that the alleged recovery was effected, in this case, on 29.4.1997 whereas, the sample parcel was sent to the office of Chemical Examiner on 6.5.1997. He further contended that the seal, after use was handed over to Dalip Singh, Constable by the Investigating Officer and not to Balwinder Singh, the independent witness. He further contended that the delay of 7 days, in sending the sample to the office of the Chemical Examiner, was not explained, and, as such, 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. It is, no doubt,true that if the other evidence, produced by the prosecution, to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the sample to the Office of Chemical Examiner, pales into insignificance. If, on the other hand, the other evidence produced in this regard, is found to be un-reliable, then certainly the delay assumes importance. In the instant case, the other evidence, produced by the prosecution, to prove the completion of link evidence, besides being deficient, is neither reliable, nor creditworthy. In these circumstances, the Crl. Appeal No. 716-SB of 1998 -4- un-explained delay, referred to above, in sending the sample to the laboratory, certainly proved fatal to the case of the prosecution. In State of Rajasthan Vs. Gurmail Singh 2005 (2) RCR (Crl.) 58 S.C, the contraband remained in the Malkhana for 15 days. The Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Examiner. 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. On account of this infirmity, the case of the prosecution became doubtful. 10. Indraj, PW-3 stated that Rajinder Singh, SHO handed over to him two parcels one containing poppy straw of sample and the other sealed with the seal bearing impression 'RSC' for further custody. He further stated that the parcel of sample containing poppy straw was handed over by him to Constable Kishan Chand for depositing the same, in the office of FSL, Madhuban. After depositing the same, he handed over receipt to him on 6.5.1997. He further stated that none tampered with the same till it remained in his custody. Kishan Chand, PW-4, in his statement stated that he deposited the sealed parcel containing poppy straw in the office of FSL, Madhuban on 6.5.1997 and handed over the receipt to the MHC. There is nothing, in the evidence of both these witnesses, that the Crl. Appeal No. 716-SB of 1998 -5- sample impression of the seal was handed over to them. There is nothing in the evidence of UGC Kishan Chand that he deposited the sample impression of the seal in the office of the FSL along with sample parcel. In State of Rajasthan Vs. Gurmail Singh's case (supra) the sample impression of the seal was not sent to the office of the Chemical Examiner. It was, thus, held that there was no evidence to prove satisfactorily that the seals affixed on the sample bottles, were the same, which were affixed immediately after seizure of the contraband. Ultimately, the accused was acquitted by the Apex Court. In State of Rajasthan Vs. Daulat Ram 1980 SCC (Crl.) 683, it was held that the prosecution is required to prove beyond a reasonable doubt, all the links in the evidence, starting from the seizure, until the deposit of the sample parcel, in the office of the Chemical Examiner. In that case, the parcel changed many hands before it reached the office of the Chemical Examiner, and the prosecution miserably failed to prove the link evidence. In these circumstances, it was held by the Apex Court, in the aforesaid case, that the possibility of tampering with the parcel, until it reached the office of the Chemical Examiner, could not be ruled out. The principle of law, laid down, in the aforesaid authorities is fully applicable to the facts of this case. In the instant case also, the possibility of tampering with the sample, could not be ruled out, on account of this reason, the benefit of doubt, wherefore, must go to the appellant-accused. The trial Court, however, failed to take into consideration this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 11. Learned counsel for the appellant further contended that so many discrepancies and contradictions, appeared in the evidence of officials witnesses, which remained un-explained. He further contended Crl. Appeal No. 716-SB of 1998 -6- that these discrepancies, went to the root of the prosecution case, but the trial Court failed to take into consideration the same, as a result whereof, miscarriage of justice occasioned. Constable Dalip Singh, PW-1 in his statement stated that the the writing work was done on the bonnet of the jeep whereas Rajinder Singh, SI, PW-2 in his statement stated that the writing work was done either in the jeep or by sitting on the ground. He further stated that offer was given to the accused through notice that he could be taken before a Gazetted Officer and search could be taken in the presence of a Gazetted officer or a Magistrate. On the other hand, Dalip Singh, PW-1 in his statement stated that offer was given to the accused only that he could be taken before a Gazetted Officer for the purpose of conducting search of gunny bag. He did not state that offer was given to the accused that he could also be taken to the Magistrate. Rajinder Singh, SI, PW-2, stated that on reaching the Police Station, on the same day, the case property was entrusted to the MHC, and the accused was put in the lock up. Dalip Singh, Constable, PW-1, however, did not state that on reaching the Police Station, the case property was deposited with the MHC and the accused was put in the lock up. Dalip Singh, Constable, PW-1 stated that the accused was spotted from a distance of 100 yards, whereas, Rajinder Singh, SI, PW-2 stated that the accused was spotted from a distance of 150 yards. He further stated that the weighing scale and weights were brought by Dalip Singh, Constable, and he did not know from where Dalip Singh had brought those articles. Dalip Singh, Constable, on the other hand stated that the weighing scale and weights were brought from a Dhani which was at a distance of 4-5 acres, from the place where the accused was apprehended. Rajinder Singh, SI, PW-2 stated that the site plan was Crl. Appeal No. 716-SB of 1998 -7- prepared by a Constable and was signed by him but he could not tell the name of the Constable who prepared the same. Dalip Singh, Constable, PW-1 did not state even a single word with regard to the preparation of the site plan of the place of recovery or that who prepared the same. Rajinder Singh, SI, PW-2, further stated that the accused was carrying a gunny bag. He, however, did not state as to whether he was carrying the gunny bag, in his hand or on his head. On the other hand, Dalip Singh, Constable, PW-1, stated that the accused was carrying the gunny bag on his head. Rajinder Singh, PW-2, stated that he sent written information Ex.PE to the DSP, Tohana, from the spot. He further stated that Ex.PC, written information, was sent to the Police Station by Puran Singh for registration, on the basis whereof FIR Ex.PC/1 was registered by Indraj Singh, MHC. Dalip Singh, Constable, PW-1 did not state even a single word that information was sent by Puran Singh on the basis whereof, FIR was registered. Rajinder Singh, SI, PW-2, did not state even a single word that the seal after use was handed over to Dalip Singh. On the other hand, Dalip Singh, Constable, stated that the seal after use was handed over to him. All these discrepancies, contradictions and omissions appearing in the evidence of the aforesaid witnesses, clearly go to indicate, that either one of them was not present at the time of the alleged recovery, or no recovery was effected from the accused. Had both Sub Inspector Rajinder Singh, PW-2 and Dalip Singh, Constable, PW-1 been present at the time of the alleged recovery, such discrepancies and contradictions would not have occurred in their statements. No doubt, the discrepancies and contradictions occurring in the statements of these witnesses, if taken individually, cannot be said to be too significant, to cast doubt on the prosecution story. However, if these are Crl. Appeal No. 716-SB of 1998 -8- taken cumulatively in conjunction with other infirmities and lacunae in the prosecution case, the same prove fatal to its case. Had any explanation been furnished, as to how these discrepancies, contradictions and omissions occurred, in the statements of the officials witnesses, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. These discrepancies, contradictions and omissions clearly cast a doubt, on the prosecution story, the benefit whereof, was required to be given to the accused but the trial Court failed to take into consideration this aspect of the matter, resulting into miscarriage of justice. 12. It was next contended by the Counsel for the appellant- accused-appellant, that the provisions of Section 55 of the Act, were not complied with, as the case property and the sample were not produced before the SHO, Incharge of the Police Station, immediately after the search and seizure and as such, prejudice was caused to the appellant. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true that the provisions of Section 55 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 SHO Incharge of the Police Station, immediately after the search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, 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 Crl. Appeal No. 716-SB of 1998 -9- 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 violate 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, the Investigating Officer intentionally and deliberately breached the provisions of Section 55. He could not say that since the provisions of Section 55 are 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 provisions 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 statuary 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 justice occasioned. 13. It was next contended by the Counsel for the appellant, Crl. Appeal No. 716-SB of 1998 -10- that the provisions of Section 57 relating to the sending of full report with regard the search and seizure to the superior officer, immediately after the search and seizure, by the Investigating Officer, have also been violated with impunity in the instant case. No doubt, the provisions of Section 57 of the Act are directory, in nature. However, the Investigating Officer, cannot be given a licence, to violate the same with impunity. Once, a safeguard is provided, in the Act, it is required to be adopted, at the time of search and seizure. It is the bounden duty of the person charged with such a responsibility, to observe the same, more in compliance, than in breach. In the instant case, no explanation was furnished, by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of the Act. Had any explanation been furnished, in this regard, the matter would have been considered, in the light thereof. The avowed object of this provision is that the officer superior, in rank, must come to know of the actions of his junior officials, in the matter of search and seizure, under the Act, in view of the stringent minimum punishment provided for the commission of offences therein, to find out whether the same were genuine and, in accordance with the provisions of law, as also to avoid any criticism at a later stage, against the high-handed and arbitrary manner of doing the things, by the Police Officer. When the Legislature incorporates a specific provision in the Act with a view to safeguard the interests of the accused, in relation to the search and seizure, then those safeguards cannot be ignored, merely by saying, that the same being directory, were not required to be observed. In this view of the matter, not only that the prejudice occasioned to the accused, but a doubt was also cast on the prosecution case. 14. In view of the above discussion, it is held that the Crl. Appeal No. 716-SB of 1998 -11- judgment of the trial Court is not based on the correct appreciation of evidence, and law, on the point, The trial Court failed to take into consideration the aforesaid infirmities and lacunae, in the prosecution case, as a result whereof, it fell into an error, in recording conviction and awarding sentence. The judgment of the trial Court, warrants interference, and is liable to be set aside. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction , and the order of sentence dated 16.7.1998, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of the bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required, in any other case. (SHAM SUNDER) JUDGE March 27, 2008 archana