Crl. Appeal No.846-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.846-SB of 1998 Date of Decision : April 22, 2008 Hanuman Prashad son of Keshav Ram, ....Appellant R/o Bhalleri, Distt. Chura (Rajasthan) Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Raj Mohan, Advocate, for the appellant. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 2.9.1998, and the order of sentence dated 4.9.1998, rendered by the Court of Addl. Sessions Judge, Sirsa, vide which it convicted the accused/appellant Hanuman Prashad, 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 two years. 2. The facts, in brief are that on 1.4.1995, Mange Ram, alongwith Norang Rai, ASI, Sham Dass and Om Parkash, Constables, was present at Kath Mandi Chowk, Sirsa, in connection with patrol duty, when he received a secret information, against the accused, that he was indulging into the sale of narcotics. A picket was held on Rangri Road, near Police Barrier. After sometime, a private bus reached there, and a number of passengers alighted therefrom. The accused also alighted from the said bus. He was carrying a bag (thaila). On seeing the police party, he got nervous, and sat near the wall, on the Crl. Appeal No.846-SB of 1998 2 pretext of urinating. He was apprehended, on suspicion. The search of the bag, being carried by him, was conducted, in accordance with the provisions of law, in the presence of Ram Nath, DSP, who was called to the spot, which resulted into the recovery of 500 grams opium. A sample of 50 grams of opium, was separated therefrom, and the remaining opium, was put into the same bag (thaila). The sample, and the remaining opium, were converted into parcels, duly sealed with the seals, bearing impressions 'MR' and 'RN', and taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. The accused was arrested. 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 Pohp Singh, Inspector (PW-1), Chhabil Dass, HC (PW-2), Piare Lal, HC (PW- 3), Ram Nath, DSP (PW-4), Jaswant Singh, Constable (PW-5), Mange Ram, SI, (PW-6), and Norang Ram, ASI (PW-7). 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. It was stated by him, that nothing was recovered from him. It was further stated by him that he had a quarrel with the police officials, near the cremation ground, ahead of Khajakhera T-point, and on that account, he was given thrashing, by the police, and illegally detained. It was further stated by him, that to justify the illegal act, he had been falsely implicated, in the instant case. He, however, did not lead Crl. Appeal No.846-SB of 1998 3 any evidence, in his defence. 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 though the alleged recovery was effected, from the accused, from a public place but no independent witness, despite availability, was joined by the Investigating Officer. He further contended that, even no effort was made by him, to join an independent witness. He further contended that, on account of non-joining and non-examination of an independent witness, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Mange Ram, SI (PW-6), during the course of his cross- examination stated that it was correct that the place of recovery, and the place of receipt of information, are public places, and many people were available there. He further stated that many passengers alighted from the bus. He further stated that he had not joined any independent witness. Norang Rai, SI, during the course of his cross-examination, stated that there were saw mills, on the right side of the road. He further stated that many persons had alighted from the bus. He further stated that there were shops of grocery & halwai, near the place of recovery, from where the weights and the weighing scale were procured. He further stated that no independent witness was joined. From the statements made by these witnesses, it is clear that though the independent witnesses were present, but none of them was joined, intentionally and deliberately, at the time Crl. Appeal No.846-SB of 1998 4 of effecting the alleged recovery. In similar circumstances, in Hawa Singh Vs. State of Haryana 2005(4) RCR (Criminal) 292, when an independent witness was not joined, despite availability, the accused was acquitted, in a case of recovery of 20 Kgs. of poppy-husk. In State of Punjab Vs. Ram Chand 2001 (1) RCR (Criminal) 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. In these circumstances, it was held that the case of the prosecution became doubtful. The evidence of the official witness, on which the case of the prosecution rests, has been carefully perused, and there are so many infirmities therein. Non-joining of an independent witness, despite availability, cast a cloud of doubt, on the prosecution story. This aspect of the matter was not taken into consideration, by the trial Court, as a result whereof, miscarriage of justice occasioned. 10. It was next contended by the Counsel for the appellant, that Ram Nath, DSP, retained the seal with him, after its use. He further contended that since the seal after its use, was retained by the same official, to whom, it belonged and who allegedly affixed the same, on the sample, the possibility of tampering with the case property and the sample, could not be ruled out. In Rajesh Jagdamba Avasthi Vs. State of Goa 2005(1) RCR (Criminal) 406, 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. In the instant case, the possibility of tampering with the case property, could not be ruled out. A serious doubt, on account of this reason, was cast on the prosecution case. 11. It was next contended by the Counsel for the appellant, that Crl. Appeal No.846-SB of 1998 5 though the alleged recovery was effected on 1.4.1995, yet, the sample was sent to the office of the Forensic Science Laboratory, on 25.5.1995, and since the seal remained with the police officials, the possibility of changing the material and tampering with the case property, could not be ruled out. He further contended that no explanation was furnished by the prosecution witnesses, as to why a delay of 1 month and 25 days, was caused, in sending the sample, and whether the sample remained untampered with, until it reached the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 1 month and 25 days, in sending the sample to the office of the Forensic Science Laboratory. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the sample, till the same reached the office of the Forensic Science Laboratory. Since, the sample was allegedly sent to the office of the Forensic Science Laboratory, after about 1 month and 25 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 Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, 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 Forensic Science Laboratory. Crl. Appeal No.846-SB of 1998 6 As stated above, the other evidence produced by the prosecution, in this case, is not only deficient, but also unreliable, to prove this factum. 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 1 month and 25 days, in sending the sample to the office of the Forensic Science Laboratory, 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 sample, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 12. It was next contended by the Counsel for the appellant, that though the sample, weighing 50 grams, according to the Investigating Officer, was taken from the opium, allegedly recovered, yet, according to the report, Ex.PA of the Forensic Science Laboratory, the weight of the sample, which was sent, was 66 grams. He further contended that, when only a sample of 50 grams was drawn, how the sample of 66 grams, reached the office of the Forensic Science Laboratory, was not known. He further contended that, no explanation, in this regard, was furnished, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. A perusal of Ex.PA, report of the Forensic Science Laboratory, shows that the sample weighing 66 grams, was received by it, on 25.5.1995. Since, only a sample of 50 grams was taken out, the question of sending the sample of 66 grams to the Forensic Science Laboratory, did not at all arise. It means that there was clear-cut tampering with the sample parcel, before it was sent to the office of the Forensic Science Laboratory. This also clearly goes to show that the sample, of this case, was never analyzed by the Forensic Science Laboratory, to come to the conclusion, as to whether, the contents thereof, constituted opium or not. In this view of the matter, the link Crl. Appeal No.846-SB of 1998 7 evidence, in this case, became incomplete. The submission of the Counsel for the appellant, carries substance, and the same is accepted. This fact also casts a cloud of doubt on the prosecution story. 13. It was next contended by the Counsel for the appellant, that according to the evidence of Piare Lal, HC (PW-3), as per entry under Columns No.6, 7 and 8 of register No.19, sample parcel, in the first instance, was taken out of malkhana on 10.5.1995, for onward transmission to the Forensic Science Laboratory, vide RC No.301, through Ajmer Singh, Constable, and then on 24.5.1995, for the second time vide RC No.340, through Jaswant Singh, Constable. Piare Lal, HC, (PW-3), during the course of his cross-examination also stated that, it was correct that there was no mention of return of sample parcel, during the period 10.5.1995 and 24.5.1995. Since, as per the statement of Piare Lal, HC, there was no mention in register No.19, regarding the return of sample between 10.5.1995 to 24.5.1995, and even no other evidence was produced, on the record, as to whether, the said sample remained untampered with, the link in the chain of the prosecution evidence, became incomplete. The prosecution was required to prove beyond a reasonable doubt, that none tampered with the sample, at any stage, until it reached the office of the Forensic Science Laboratory. In the instant case, the sample remained in various hands, but the prosecution failed to produce all the witnesses, who dealt with the sample, at various stages, until the same was sent to the office of the Forensic Science Laboratory. Thus, the case of the prosecution became doubtful. This important aspect of the matter was not taken into consideration, by the trial Court, as a result whereof, miscarriage of justice occasioned. 14. 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. The trial Court did not take into consideration, the infirmities and the lacunae, Crl. Appeal No.846-SB of 1998 8 enumerated, in the aforesaid paragraphs. Had these infirmities and lacunae been taken into consideration, by the trial Court, the result would have been different. The judgment of conviction, and the order of sentence, warrant interference, and are 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 23.2.1998, are set aside. The appellant shall stand acquitted of the charge framed against him. If he is on bail, he shall stand discharged of his bail bonds. If he is in custody, he shall be set at liberty at once, if not required in any other case. April , 2008 (SHAM SUNDER) Vimal JUDGE