IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No. 1037-SB of 2000 Date of decision: 30.11.2010 Kailash Chander ..Appellant Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE JITENDRA CHAUHAN. Present: Mr. Vivek, Goyal, Advocate, for the appellant. Mr. J.S. Bhullar, Advocate, for the respondent. **** JITENDRA CHAUHAN, J. The appellant Kailash Chander herein has preferred this appeal against the judgment of conviction and sentence dated 3.10.2000 whereby he was convicted under Section 20 of the Narcotic Drugs Psychotropic Substances Act, 1985(herein referred to as “the Act”) and sentence to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/-(Rupees One lac only) or in default thereof to further undergo R.I. for six months. In brief the facts of the case are that the police party headed by ASI Harbhajan Singh, alongwith C. Indermohan No. 340, C. Pawan Kumar 3539, SPO Manoj Kumar No. 6591, S.P.O. Jaspal Singh 575 alongwith Gipsy, driven by C. Janak Raj No. 1732, were going on Patrolling duty from Sanjay Colony to Bhagat Singh Colony. When the police party reached 100 yards behind the Canal bridge, then one person was seen coming alongside the canal, who after seeing the police party, tried to make a retreat, but was apprehended by the police party on the basis of suspicion. On enquiry he told his name as Kailash Chander @ Kala Pahar s/o Piara Lala, r/o Mohalla Karar Khan, Jalandhar. He was asked by the ASI for personal search and he was offered to be searched upon in the presence of Gazeted Police Officer or Magistrate, upon which the present accused declined to be searched before such Officer. His personal search was conducted as per rules, upon which one Kilogram of Charas was recovered from him which he has kept in a polythene bag and in a cloth bag, ten gms. of charas was taken out of that as a sample and rest of the charas was sealed separately. The sample was sealed and sent for chemical Examiner report. The accused was arrested. In the Crl. Appeal No. 1037-SB of 2000 -2- chemical report the contents of sample were found to be that of charas. After completion of investigation, challan was presented against the accused. The Learned Judicial Magistrate, Ist Class, Jalandhar committed the case to the Court of Sessions for trial. The Learned Special Judge under the Act framed charge under Section 20 of the Act for keeping in his possession of One Kg of Charas without any valid permit or license, to which the appellant pleaded not guilty and claimed trial. The prosecution in order to prove its case examined PW1/A Constable Kuldip Singh, who tendered his affidavit Exhibit PW/A in evidence. PW2 Constable Jasbir Singh was examined to prove his sworn affidavit Exhibit PW2/A.. MHC Lakhbir Singh also tendered his affidavit Exhibit PC. ASI Harbhajan Singh and Constable Indermohan PW3 and PW5 respectively are witnesses of recovery. Inspector Paramjit Singh PW6 proved the putting of seal bearing impression “HS” on the sample parcel and on the residue case property. In his statement recorded under Section 313 Cr.PC the accused denied the prosecution allegations and stated that he is innocent, no recovery was ever effected from him. Pinka who is a police stooge and a Narcotic dealer got him arrested from his house in the presence of Subhash Chander because he is inimical towards the appellant. No evidence was led in evidence. The Learned trial court convicted and sentence the appellant as above. The appellant has preferred this appeal. The Learned counsel for the appellant submits that the prosecution has miserably failed to prove its case beyond reasonable doubt. The link evidence is missing in this case. The mandatory provisions of the Act has not been complied with. The seal was not handed over to an independent witness. No independent witness was joined and there was possibility of tempering with the sample and the case property. On the other hand, the learned State Counsel submits that ASI Harbhajan Singh proved the recovery of One Kg. Charas from possession of the accused-appellant. Crl. Appeal No. 1037-SB of 2000 -3- His statement is corroborated by Constable Inder Mohan witness to the recovery. The testimony of the official witnesses is as good as evidence of a trustworthy witness who have no animosity with the accused-appellant. I have heard the learned counsel for the parties and perused the record. As per affidavit Exhibit PC, MHC Lakhbir Singh, has stated that on 19.8.1997 ASI Harbhajan Singh deposited with him sample parcel containing 10 gms of Charas bearing seal impression “HS” and “PS” along with sample seal. He was Mohrar Head constable of the concerned Police Station. He was custodian of the Malkhana. The fact of depositing the remaining case property is conspicuously missing in this affidavit. Inspector Paramjit Singh PW6, has stated that he handed over the case property after putting his seal bearing impression “PS” to ASI Harbhajan Singh. This omission is fatal to the prosecution. Sub Inspector Harbhajan Singh, PW5, in his examination-in-Chief has stated that he deposited the sample and the case property with the MHC. No explanation is forthcoming as to where the remaining case property was kept. In State of Rajasthan Versus Dault Ram AIR 1980 SC 1314 it was held as under:- “At the conclusion of the trial, the prosecution can succeed only on discharging the unshifting burden of proving its case against the accused and strongest of suspicion does not constitute the proof required. One of the essential facts to be proved affirmatively by the prosecution is that right from the stage of the seizure till it reaches the hands of the Chemical Analyst, there was no possibility to change or tamper with the recovered material or the sample parcel. If the link evidence to rule out this possibility is wanting in any case, the prosecution case must fail.” Thus in my opinion the link evidence is missing in this case. The next point argued by the counsel for the accused-appellant is that seal after use was handed over to Constable Inder Mohan, PW3 who was a junior employee working under the I.O. There is no evidence that CFSL Form was prepared at the spot or Crl. Appeal No. 1037-SB of 2000 -4- deposited with the case property in the Malkhana. This is a material omission the on the part of prosecution. In Bhola Singh Versus State of Punjab 2005(2) RCR it was held that the filling of such Form at the spot is a very valuable safeguard to ensure that the seal sample is not tempered with till it is analyzed by the Forensic Science Laboratory. “In Emma Charlotte Eve v. Narcotic Control Bureau, 2000(4) RCR (Criminal) 386 & Shaiffullah v. State, 49 (1993) DLT 193, it was held that “where the seals remained with the police after use and the CFSLform was neither prepared on the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case”. Filling of such form at the spot is a very valuable safe-guard to ensure that the seal sample is not tampered with till its analysis by the F.S.L. The CFSL form should not only be prepared and sealed by the officer making seizure at the place where the case property is seized from the accused, it should also be sealed by the S.H.O. to whom the sample and the case property is handed over and the same should accompany the sample to Chemical Examiner. The idea behind taking such a precaution is to complete the material link in the prosecution evidence by eliminating the possibility of the sample being tampered with. The prosecution has miserably failed to prove the link evidence”. In the present case the seal was allegedly handed over to Constable Inder Mohan, PW3, therefore, the possibility of tempering with the case property or the sample parcel cannot be ruled out. There are further material contradiction in Ruqa, Exhibit PD, and consent memo Exhibit PA. In Ruqa Exhibit PD, it is mentioned whether the appellant wanted himself to be searched by any Gazetted Police Officer or he could be produced before the Magistrate. In the consent memo Exhibit PA it is written that you have a right to be searched by any Magistrate or Gazetted Police Officer. The alleged reply is that the appellant had reposed confidence in ASI Harbhajan Singh. The offence where harsh Crl. Appeal No. 1037-SB of 2000 -5- punishment is provided under the Act, the search must be conducted under the Supervision Officer of the Gazetted. The act of not informing the Senior Officer or to call any Senior Officer at the spot makes the story projected by I.O. to be doubtful. Sub Inspector Harbhajan Singh, PW5, has categorically admitted in his cross-examination that there was wireless set in the Gypsy, but no wireless message was sent to the Police Station or any other Senior Police Officer. But in this case the Gazetted Officer was not even called at the spot. Jangir Singh Versus State of Haryana (1988) 1 Crimes 446 it was held that it is an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right to be searched in the presence of a gazetted officer or a Magistrate and failure to do so warrants his acquittal. In State of Himachal Pradesh v. Sudershan Kumar @ Kala and Ors., 1989 (3) Crimes 608, a Division Bench of the High Court held that the provisions of Section 50 sub-section (1) are mandatory and violation thereof as per se would be fatal to the prosecution case. From the record it is made out that no effort was made to join any independent witness which further orders the credibility of the case of the prosecution. The cumulative effect of all these circumstances is that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. Resultantly, this appeal is allowed, conviction and sentence of the appellant is set aside and the accused-appellant is acquitted of the charge by giving him the benefit of doubt. (JITENDRA CHAUHAN) 30.11.2010 JUDGE Poonam(II) Whether to be referred to the Reporter or not? Yes