Crl.Appeal No.1255 SB of 1999 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.1255 SB of 1999 Date of decision: 28th January, 2008 Billa Singh ..Appellant. Versus State of Haryana …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: Mr.GS Sidhu, Advocate and Mr.Manvinder Singh, Advocate for the appellant. Mr.Tarunveer Vashist, Additional Advocate General, Haryana ** HARBANS LAL, J. This appeal is directed against the judgment/order of sentence dated 4th November, 1999 passed by the Court of learned Additional Sessions Judge, Sirsa, whereby he convicted and sentenced the appellant/accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- (one lac) and in default thereof, to further undergo rigorous imprisonment for two year under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter to be referred as ‘the Act’). Crl.Appeal No.1255 SB of 1999 [2] The factual matrix of the case is that on 18th April, 1996, ASI Raj Pal in the company of other police officials was returning to the police station in a Government vehicle from side of village Pacca Kamal. When they neared the bus stand of village Taruana, he came across Mangal Singh with whom he started chattering. Meanwhile, he received secret information against the accused. On receipt of the same, he alongwith other police officials including Mangal Singh went to the empty water tank, where the accused was noticed taking out a bag from it. On catching site of the police party, he dropped the bag in the tank and started proceeding towards the fields. He was intercepted by the police party. A notice was served upon him. After obtaining his reply, DSP Hukam Singh was called to the spot. On search of the tank, 9 bags of poppy husk were recovered. 100 grams of poppy husk was drawn from each bag to serve as a sample. The remainder of each bag when weighed came to 40.900 grams, which were also made into parcels. Thereafter, the samples parcels as well as the bags duly converted into parcels were sealed with seal bearing impressions ‘RP’ and ‘HS’ and taken into possession vide recovery memo. The seal bearing impression ‘RP’ was handed over to HC Nihal Singh whereas the other seal bearing impression ‘HS’ was returned to DSP Hukam Singh. Ruqa was sent to the police station, where on its basis formal FIR was recorded. The aforesaid ASI prepared the rough sight plan, showing the place of recovery, recorded the statements of the witnesses, served notice containing grounds of arrest upon the accused and on return to the police station, deposited the case property with the MHC. On receipt of FSL report Ex.PH and after Crl.Appeal No.1255 SB of 1999 [3] completion of investigation, the charge-sheet was laid in the Court for trial of the accused. The accused was charged under Section 15 of the Act, to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution has examined HC Sant Lal PW1, Constable Nihal Singh PW2, HC Nihal Singh PW3, ASI Raj Pal PW4, DSP Hukam Singh PW5 and closed its evidence. When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He examined Constable Jeet Singh DW1, Mangal Singh DW2 and closed his defence. After hearing the learned Public Prosecutor for the State, learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with the same, the appellant has preferred this appeal. I have heard the learned counsel for the parties and have gone through the record with due care and circumspection. The learned counsel appearing on behalf of the appellant making short-shrift of his arguments maintained that (a) it being a case of secret information, it was obligatory upon the Investigator to have disclosed the same to the appellant at the time of serving notice upon him under Section 50 of the Act; (b) as merges out of the prosecution evidence the alleged secret information was not reduced into writing nor this information was given to the immediate superior official with the result, the mandatory Crl.Appeal No.1255 SB of 1999 [4] provisions of Section 42(2) of the Act have been given a go bye; (c) the seal after use was handed over to HC Nihal Singh and not to the independent witness Mangal Singh and that being so, the possibility of the contents of the sample being tampered with cannot be ruled out (d) the place of alleged recovery is open and accessible to all and sundry and the same was not owned and possessed by the appellant and thus, the conscious possession of the appellant is not established; (e) the case property i.e. bags Ex.P1 to Ex.P9 did not bear the seals or particulars of the case with the result the case property is not connected with the appellant; (f) the sample was despatched to the Forensic Science Laboratory after 15 days of recovery, for which no reasonable explanation has been furnished by the prosecution and during this interregnum the possibility of the contents of the sample parcels being tampered with cannot be ruled out and all the lacunae in the prosecution case cumulatively deal coup-de-grace to the prosecution case. On the other hand, Mr.Tarunveer Vashist, Additional Advocate General, Haryana pressed into service that as per the FSL Report, the specimen seal impression tallied with the seal affixed on the sample parcels and this fact rules out the possibility of tampering with the contents of the sample parcels. He further argued that the appellant was noticed extricating a bag containing poppy husk from the water tank and this fact in itself is sufficient to establish his conscious possession. These contentions are devoid of any merit for the discussion to follow hereunder: As would be apparent from the FSL Report Ex.PH, the sample Crl.Appeal No.1255 SB of 1999 [5] was received in the laboratory on 3rd May, 1996 whereas the recovery was effected on 18th April, 1996. Thus, apparently the sample was sent to the aforesaid laboratory after 14 days, though, according to the Narcotic Control Bureau, the sample parcel should have been despatched within 72 hours and if the same is despatched after 72 hours, it will be a circumstance fatal to the prosecution case. Refer to the observations made by the Division Bench of this Court in re: Parminder Singh vs. State of Haryana 2006(4) Recent Criminal Reports (Crl.), 495(DB) Further, ASI Raj Pal PW4, Investigator has nowhere stated that in compliance with the provisions of Section 42(2) of the Act, the secret information was reduced into writing and forwarded the same to the immediate superior officials within the stipulated period. Thus, the mandatory provisions of the aforesaid Section have been violated. It is in the cross-examination of ASI Raj Pal (sic) that on 18th April, 1996, Het Ram was working as SHO, Police Station Kalanwali and he did not produce the case property and the accused before him because when they reached the police station, he was leaving the police station. If he was leaving the police station, the Investigator should have produced the case property alongwith the accused before him for verification. Thus, obviously the provisions of Section 55 of the Act have also not been adhered to. As per the prosecution story, Mangal Singh DW was with police party. The prosecution has not given any reason for handing over the seal after use to HC Nihal Singh in the presence of this independent witness. It is own case of the prosecution that when the police party reached the water tank, the accused after Crl.Appeal No.1255 SB of 1999 [6] dropping the bag, started proceeding towards the fields. It implies that he was not caught red handed. It is in the cross-examination of DSP Hukam Singh PW5, that spot is a part of shamlat deh. Thus, the place of recovery was open and accessible to all and sundry. More to the point, it is in the cross-examination of HC Nihal Singh, PW3 that place of recovery is an open place accessible to all and no proof regarding the ownership of the field was collected. The prosecution has not adduced evidence demonstrating the appellant to be the owner in possession of the water tank i.e. place of recovery. Furthermore, the question regarding conscious possession has not been put to the appellant in their examination under Section 313 of Cr.P.C. It is in the cross-examination of DSP Hukam Singh, PW5 that spot is a Rasta and is frequented by the public and that none from the passers-by was requested to join the party. The prosecution has not furnished any explanation for non-joining of any passer-by in the investigation. As regards Mangal Singh when he was appeared as DW2, deposed that Billa Singh was never apprehended by the police in his presence nor any recovery of chura post was effected from him. The non- handing over of the seal after use to this witness also raises dimensions of doubt. It is in the cross-examination of HC Nihal Singh PW3 that “out of 9 bags, seals of six bags stand damaged and only three bags bear the seals. Similarly, only FIR is written on each bag and remaining particulars including the name of the accused is not written on the bags.” This evidence clearly indicates that the prosecution has failed to connect the appellant Crl.Appeal No.1255 SB of 1999 [7] with the case property. In view of the preceding discussions, this appeal succeeds and is accepted by setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted the charged offence. His bail bonds shall also stand discharged. 28th January, 2008 (Harbans Lal) gsv Judge