Criminal Appeal No. 1485-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1485-SB of 2001 Date of Decision: 13.01.2010 Shingara Singh son of Gurmail Singh son of Inder Singh, aged about 28-29 years, r/o village Ghudanni Kalan, Police Station Payal, Distt. Ludhiana. ... Appellant Versus The State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bipan Ghai, Senior Advocate, with Mr. Sandeep Gahlawat, Advocate, for the appellant. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence, dated 27.08.01, rendered by the Court of Additional Sessions Judge, Barnala, vide which, it convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be 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 thereof, to further undergo rigorous imprisonment, for a period of six months, for having been found in Criminal Appeal No. 1485-SB of 2001 2 possession of 70 kgs of poppy-husk, without any permit or licence, which falls within the ambit of commercial quantity. 2. On 29.12.95, at about 5.10 PM, a Police party, headed by Gamdur Singh, Sub Inspector, and other Police officials, was going, from village Pandori to village Kurar, on the metalled road, in connection with patrolling. Makra Singh, an independent witness, was also joined. When it reached the drain, in the area of village Kurar, the accused, was noticed, on the right side of the bridge of drain, sitting on a gunny bag. On seeing the Police party, he tried to slip away, but was over-powered on suspicion. On search of the gunny bag, poppy-husk weighing 35 kgs was recovered. Two samples of 250 gms each, were separated therefrom. The samples and the remaining poppy-husk, were converted into parcels, and taken into possession, vide separate recovery memo, in the presence of Pritpal Singh, Deputy Superintendent of Police, who was called, to the spot and reached there. The accused was arrested. Ruqa was sent, to the Police Station, on the basis whereof, the first information report was recorded. 3. During the course of interrogation, the accused, made a disclosure statement, that he had concealed 35 kgs of poppy-husk more, underneath the bags of paddy-husk, in a truck, bearing No. HR- 01A-9178, owned by his father, parked by the side of wall of Gurudwara Kala Mala. On the basis of the disclosure statement, he led the Police party, to the pre-disclosed place, and got recovered 35 kgs of poppy-husk, wherefrom, two samples of 250 gms each, were taken. The samples and the remaining poppy-husk, were converted into Criminal Appeal No. 1485-SB of 2001 3 parcels and taken into possession. After the completion of investigation, the accused, was challaned. 4. On his appearance, in the Court of the Committing Magistrate, the accused, was supplied the copies of documents, relied upon by the prosecution. 5. 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. 6. The prosecution, in support of its case, examined Balwinder Singh, Head Constable (PW1), who proved his affidavit PA, Maghar Singh, Constable (PW2), who proved his affidavit PB, Pritpal Singh, Deputy Superintendent of Police (PW3), a witness to the recovery, Gamdur Singh, Sub Inspector (PW4), the Investigating Officer, who deposed, with regard to the recovery of two bags, containing 70 kgs of poppy-husk, from the accused, Nachhattar Singh, Sub Inspector (PW5), and, Sukhdev Singh, Constable-II (PW6). Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 7. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that he had gone to Gurudwara Sahib, to pay obeisance, where, he was picked up, by the Police. It was further stated by him that the Police, demanded the truck, from him, and on his refusal to oblige, this false case, was Criminal Appeal No. 1485-SB of 2001 4 planted against him. He, however, did not lead any evidence, in defence. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 9. Feeling aggrieved, the instant appeal, has been filed by the accused/appellant. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellant, challenged the judgement of the trial Court, on the following grounds:- (i) That Makra Singh, independent witness, though, was joined, but was neither examined, nor given up, by the the Additional Public Prosecutor, for the State, as won over, by the accused, as a result whereof, the case of the prosecution became doubtful. (ii) That the first alleged recovery, being from open and accessible place, the appellant, could not be said to be in conscious possession of the bag, containing 35 kgs of poppy-husk, and, as such, he did not commit any offence, punishable under Section 15 of the Act. (iii) That the sample, was sent, after 18 days of the alleged recovery, to the Laboratory, and, as such the chances of tampering with the same, could not be ruled out, especially when, the seal was not handed over, to the independent witness, but to Sukhdev Singh, Constable. (iv) That the second alleged recovery, was converted into Criminal Appeal No. 1485-SB of 2001 5 discovery, so as to connect the accused with the same. (v) That the provisions of Section 55 of the Act, were intentionally and deliberately violated, as a result whereof, a great prejudice, was caused, to the accused. 12. No doubt, Makra Singh, independent witness, was joined, at the time of the alleged recovery, from the accused, yet he was neither examined, nor given up, by the Additional Public Prosecutor, for the State, as won over, by the accused, as a result whereof, the case of the prosecution became doubtful. Had he been given up as won over, by the Additional Public Prosecutor, for the State, the matter would have been considered, in the light of the same. It is, no doubt, true that, it is for the Additional Public Prosecutor, for the State, to decide, as to which witness, he wanted to examine, to prove his case, and which witness, he did not want to examine. However, such discretion, is required to be exercised, by the Additional Public Prosecutor, for the State, in a bonafide manner. In the instant case, the alleged recovery, effected from the accused, was only marginally more than the commercial-quantity, and, as such, the possibility of plantation of the same, against him, could not be ruled out. The provisions of the Act, are very stringent. Under these circumstances, the prosecution, was required, to comply with the same strictly, so as to avoid any sort of prejudice, to the accused. In this case, Makra Singh, independent witness, was not intentionally and deliberately examined, by the Additional Public Prosecutor, for the State. An adverse inference, could, therefore, be drawn, that had he been examined, he would not Criminal Appeal No. 1485-SB of 2001 6 have supported the case of the prosecution, and, on the other hand, told the truth. Non-examination of Makra Singh, independent witness, therefore, cast a cloud of doubt, on the prosecution story. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 13. The alleged recoveries, were effected, on 29.12.95, whereas, the samples, were sent, to the office of the Chemical Examiner, on 16.01.96 i.e. after about 18 days, without any explanation, regarding delay, especially when the seal after use, remained with the Police officials throughout. 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 samples to the Chemical Examiner, pales into insignificance. However, if the other evidence, is not found to be creditworthy, then delay certainly proves fatal to the prosecution case. In this case, the other evidence produced by the prosecution, to prove the completion of link evidence, is neither reliable nor trustworthy. It is for the prosecution to prove affirmatively, that right from the date of seizure, until the sample was sent to the Chemical Examiner, it was not tampered with. If the prosecution fails to prove this factum, then its case is bound to dwindle down. In State of Rajasthan Vs. Gurmail Singh, 2005(2) RCR (Crl.), 58, S.C., the contraband, was kept 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 Criminal Appeal No. 1485-SB of 2001 7 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 State of Punjab Vs. Jaswant Singh, 2002(3), RCR (Crl.), 54 (DB) (P&H), there was a delay of 21 days, in sending the sample to the laboratory. In these circumstances, it was held that it must prove fatal to the prosecution case, especially when admittedly no independent witness was joined, in the recovery proceedings, and seal used for sealing the sample, remained with the Police Official, during the period. 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 Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1), RCR (Criminal), 406 (S.C.), charas was recovered from the possession of the accused and sealed in two packets. The packets and the seal remained, in the custody of the same person. In these circumstances, it was held that there was every possibility of the seized substance, being tampered with. The conviction of the accused was set aside, inter-alia, on this ground. Since the possibility of tampering with the case property, and the sample, could not be ruled out, in the instant case, a serious doubt, on account of this reason, was cast on the prosecution case. In Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) Criminal Appeal No. 1485-SB of 2001 8 452, the sample was sent to the office of the Chemical Examiner 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. The submission of the Counsel for the appellant, being correct is accepted. 14. The next question, that arises for consideration, is, as to whether, in respect of the first alleged recovery, the conscious possession of the accused, was proved, or not. According to the prosecution story, the accused, was found sitting, on a bag, in the drain, which was an open and accessible place. It was not, that he was sitting on a bag, in his house, or, in a field, belonging to him. In that open and accessible place, anybody could keep the bag, containing the poppy- husk. The accused, might have been there, just with a view to take rest or innocently. Since the bag, was lying, in an open and accessible place, the mere fact, that the accused, was allegedly found sitting there on, did not at all prove his conscious possession, in relation thereto. The prosecution, is required, to prove, that the accused, was found, in physical or constructive possession of the contraband. Once that fact, is proved, the statutory presumption arises, under Sections 35 and 54 of the Act, that he was in conscious possession thereof. In the instant case, the physical or constructive possession of the accused, in respect of the bag, containing poppy-husk, relating to the first alleged recovery, was not proved. As such, the question of operation of statutory presumption, under Sections 35 and 54 of the Act, that he was found in Criminal Appeal No. 1485-SB of 2001 9 conscious possession thereof, did not at all arise. In respect of the first alleged recovery, the accused, therefore, did not commit any offence, punishable under Section 15 of the Act. 15. Coming to the second alleged recovery, it may be stated here, that the same, is also doubtful, as it appears, from the record, that the recovery, was converted into discovery. Pritpal Singh, Deputy Superintendent of Police, PW3, who was allegedly present, at the spot, at the time of the second alleged recovery, during the course of his cross-examination, stated that, statement regarding the recovery of bag, from the truck, was first of all incorporated, in the case diary. He further stated, during the course of his cross-examination that, after that, the statement under Section 27 of the Indian Evidence Act, was separately recorded, and he got incorporated the same, in the case diary. From the aforesaid statement of Pritpal Singh, Deputy Superintendent of Police, PW3, during the course of his cross- examination, it stands abundantly proved that, in the instant case, after the alleged recovery, was effected, with a view to connect the same, with the accused, the disclosure statement, under Section 27 of the Indian Evidence Act, was reduced into writing. Since the recovery, has been converted into discovery, in this case, the provisions of Section 27 of the Indian Evidence Act, were blatantly misused. The second alleged recovery also, therefore, became highly doubtful. 16. No other point was urged, by the Counsel for the parties. 17. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, Criminal Appeal No. 1485-SB of 2001 10 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 15 of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside. 18. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 27.08.01, 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. 13.01.2010 (SHAM SUNDER) Amodh JUDGE