Criminal Appeal No. 899-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 899-SB of 2002 Date of Decision: 11.01.2010 1. Randhir Singh son of Nachhattar Singh, caste Jat Sikh, r/o village Ber (Punjab). 2. Amarjit Kaur wife of Jagtar Singh, caste Jat Sikh, r/o Samaspur. 3. Jasbir Kaur wife of Kirpal Singh, Jat Sikh, r/o Navan Pind, Ramgarh (Punjab). ... Appellants Versus The State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mrs. G.K. Mann, Advocate, for the appellants. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, dated 08.05.02, and, the order of sentence, dated 10.05.02, rendered by the Court of Additional Sessions Judge, Hisar, vide which, it convicted the accused (now appellants), 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 them to undergo Rigorous Imprisonment for a period of ten years each, and to Criminal Appeal No. 899-SB of 2002 2 pay a fine of Rs. 1 lac each, and in default thereof, to further undergo rigorous imprisonment, for a period of one year each, for having been found in possession of 120 kgs of poppy-husk, without any permit or licence, which falls within the ambit of commercial quantity. 2. The facts, in brief, are that, on 06.04.97, Jagdish Kumar, Assistant Sub Inspector, alongwith some other Police officials, was on patrol-cum-excise duty, at bus stand Modha Khera, when a secret information, was received, that four women and two young men, were bringing poppy-husk, from the side of Adampur, in Maruti Car No. PB- 13-0068, and, if raid, was conducted, they could be apprehended red handed. Accordingly, some members of the Police party, held a picket, near the tubewell of one Chhotu Ram, resident of Modakhera, whereas, some members thereof, stood at a distance of 40 paces, with thorny twig of kikar. After some time, the aforesaid Maruti car, was seen coming, from the side of Bhadra. However, the driver of the car, did not stop it, on getting signal from Jagdish Kumar, Assistant Sub Inspector. The members of the Police party, standing at a distance of 40 paces, placed the thorny twig of kikar, in the middle of the road, to stop the car, but in vain. Thereafter, the Police party, gave a hot chase to the car, which stopped at bus stand Modakhera, as one of its tyre got punctured, due to thorny twig. The driver of the car, succeeded in running away, but the other occupants thereof, were overpowered on suspicion. On search of the car, three gunny bags, each containing 40 kgs of poppy husk, were recovered. Three samples of 200 gms each, were separated therefrom, and the remaining poppy husk, was kept, in Criminal Appeal No. 899-SB of 2002 3 the same bags. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide separate recovery memo. The accused, were arrested. After the completion of investigation, he was challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. After the case, was received by commitment, in the Court of Sessions, charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Mohinder Singh, Sub Inspector (PW1), Baljit Singh, Sub Inspector (PW2), Dharambir, Head Constable (PW3), Satbir Singh, Constable (PW4), Satyawati, Head Constable (PW5), Karan Singh, Head Constable (PW6), Jagdish Kumar, Sub Inspector (PW7), the Investigating Officer, and, Sukhjit Singh, Registration Clerk, O/o District Transport Officer, Sangrur (PW8). Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence. 6. Harbans Kaur, one of the accused, died and the proceedings against her stood abated, whereas, the case of Paramjit Kaur, who was Juvenile in conflict with land was separated. 7. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. The accused, however, did Criminal Appeal No. 899-SB of 2002 4 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/appellants. 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 appellants, at the very outset, submitted that, no independent witness, was joined, by the Investigating Officer, at the time of affecting the alleged recovery, from the accused, despite availability. She further submitted that, even no real and sincere efforts, were made, by the Investigating Officer, to join an independent witness. The submission of the Counsel for the appellants, in this regard, appears to be correct. Karan Singh, Head Constable, PW6, stated that, public witnesses, were present, at the bus stand. Some of them, were asked, to join, but they refused. Their names, were not mentioned, in the case diary, nor in the documents, prepared, at the spot. This clearly proves, that despite availability of the independent witnesses, no attempt, was made, to join them. Had real and sincere efforts, been made, to join an independent witness, and had he refused, to join the Police party, at least his name, could be recorded, in the case diary or other documents, prepared at the spot. As stated above, neither their names, were recorded, in the case diary, nor in the documents, prepared, at the time of the alleged recovery. Thus, Criminal Appeal No. 899-SB of 2002 5 no real and sincere efforts were made by the Investigating Officer, to join an independent witness, despite availability. 12. Since, the minimum stringent punishment is provided for the offences, punishable under the Act, and according to the provisions of Section 51 of the Act, the provisions of the Code of Criminal Procedure, relating to search, seizure and arrest shall apply to the extent the same are not inconsistent with the provisions of the Act, it was imperative, on the part of the Investigating Officer, to join an independent witness, at the time of the alleged search, and seizure or at least to make a genuine, sincere and real effort, to join such a witness. The search and seizure, before an independent witness, would have imparted much more authenticity, and creditworthiness, to the proceedings, so conducted. It would have also verily strengthen the prosecution case. The said safeguard was also intended to avoid criticism of arbitrary and high-handed action, against the authorized Officer. In other words, the Legislature, in its wisdom, considered it necessary to provide such a statutory safeguard, to lend credibility to the procedure, relating to search and seizure, keeping in view the severe punishment, prescribed under the Act. That being so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute, and failure to do so, must be viewed with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of statutory safeguards, committed by the authorized officer, during search and seizure operation and may also undermine respect of law. Criminal Appeal No. 899-SB of 2002 6 That cannot be permitted. It was the bounden duty of the Investigating Officer, to observe all the safeguards, provided under the Act, at the time of search and seizure. 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. Bhupinder Singh 2001 (01) RCR (Crl.) 356, a Division Bench of this Court, held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the recovery was effected from a busy locality. In State of Punjab Vs. Ram Chand 2001 (1) RCR (Crl.) 817, a Division Bench of this Court, held that it was imperative to join an independent witness, to vouchsafe the fair investigation. On account of non-joining of an independent witness, it was held that the accused was entitled to be given the benefit of doubt. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure despite availability, the case Criminal Appeal No. 899-SB of 2002 7 of the prosecution, became highly doubtful. 13. It was next submitted by the Counsel for the appellants, that the provisions of Section 55 of the Act, were not complied with, in as much as, the case property, the sample parcels and the sample impression of the seals, were not produced before the Magistrate. Section 55 of the Act, lays down that an Officer Incharge of the 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 samples 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 search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, Criminal Appeal No. 899-SB of 2002 8 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 (Criminal) 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 such failure will have bearing, on the appreciation of evidence, regarding search of the accused and seizure. 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 of Section 55, 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 Criminal Appeal No. 899-SB of 2002 9 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, it fell into a grave error in recording conviction. 14. It was next submitted by the Counsel for the appellants, that according to the prosecution story, six persons, were found sitting, in a Maruti car with three bags of poppy husk, loaded therein. She further submitted that, keeping in view the size of the Maruti car, it was not at all possible for six persons, including the driver, to travel, in a Maruti car, with three bags, containing poppy husk. The submission of the Counsel for the appellants, in this regard, appears to be correct. It was not a big vehicle i.e. truck or matador, wherein, six persons, could travel alongwith three bags, each containing 40 kgs of poppy husk. Even, vide order, dated 01.10.02, passed by this Court, the Station House Officer, was directed, to take the photographs of the car, showing three bags of poppy husk lying in the same alongwith six persons sitting therein, and, thereafter, those photographs, should be produced, in the Court. The photographs with the three bags, lying therein and six persons sitting in the same, were produced, in the Court. From the photographs, it is evident, that six persons, could not possibly travel, in a Maruti car alongwith three bags, each containing 40 kgs of poppy husk. It appears that the alleged recovery, was not effected, in the manner, deposed to, by the prosecution witnesses. On the other Criminal Appeal No. 899-SB of 2002 10 hand, the same, was apparently planted, against the accused, for the reasons, best known, to the Investigating Officer. The submission of the Counsel for the appellants, in this regard, being correct, is accepted. 15. It was next submitted by the Counsel for the appellants, that a number of contradictions and discrepancies cropped up, in the evidence of the prosecution witnesses, and the same remained unexplained. She further submitted that, on account of this reason, the case of the prosecution became doubtful, especially when, it was not corroborated by the evidence of an independent witness. Karan Singh, Head Constable, PW6, stated that, right front tyre of the car, got punctured, whereas, Jagdish Kumar, Sub Inspector, PW7, stated that, it was the right rear tyre of the car, which got punctured. Karan Singh, Head Constable, PW6, stated that two bags, were lying, on the back seat, while the third bag, was lying, at the place, where feet, were kept. Jagdish Kumar, Sub Inspector, PW7, however, stated that all three bags, were lying, on the rear seat of the car. Karan Singh, Head Constable, PW6, stated that both the parties, held nakabandi, at a distance of 20 paces, whereas, Jagdish Kumar, Sub Inspector, PW7, stated that the distance, was of 40 paces. Karan Singh, Head Constable, PW6, and, Jagdish Kumar, Sub Inspector, PW7, stated that the weights and scale, were with the Investigating Officer. On the other hand, from the ruqa PD, it is evident, that the same, were arranged, by the Investigating Officer. No doubt, if these contradictions and discrepancies, cropping up, in the statements of the official witnesses, are taken individually, the same, may not be material. When all these Criminal Appeal No. 899-SB of 2002 11 contradictions and discrepancies, are taken up cumulatively, then the same may prove fatal, to the case of the prosecution, especially, on account of the reason, that no independent witness, was joined, and no explanation, was furnished, as to how, the same cropped up. Had any explanation, been furnished, in regard thereto, the matter would have been different. In the absence of any explanation, having been furnished, in relation to the occurrence of the aforesaid material contradictions and discrepancies, in the statements of the prosecution witnesses, the Court, cannot coin any of its own, to fit in with the prosecution case. The aforesaid unexplained contradictions, and discrepancies make case of the prosecution 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, 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, dated 08.05.02, and, the order of sentence dated 10.05.02, are set aside. The appellants, shall stand acquitted of the charge, framed against them. If, they are on bail, they shall stand discharged of their bail bonds. If, they are in custody, they Criminal Appeal No. 899-SB of 2002 12 shall be set at liberty, at once, if not required, in any other case. 11.01.2010 (SHAM SUNDER) Amodh JUDGE