Crl. Appeal No.83-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.83-SB of 1997 Date of Decision : April 30, 2008 1. Hanuman Son of Mala Ram ....Appellants 2. Umed Singh son of Arjan, both residents of village Shergarh. 3. Ranjit son of Ramji Lal, resident of village Gudia, P.S.Nathusari Chopta, District Sirsa. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.B.S.Goraya, Advocate, for the appellants (Ranjit and Hanuman). Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 26.11.1996, rendered by the Court of Addl. Sessions Judge, Sirsa, vide which it convicted the accused/appellants Hanuman, Umed Singh, and Ranjit, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced them to undergo rigorous imprisonment for a period of ten years each, and to pay a fine of Rs.1 lac each, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years each, for having been found in possession of 17 bags, each containing 40 Kgs. poppy straw. 2. The facts, in brief, are that on 20.5.1992, Hari Singh, ASI, alongwith other police officials, was present at Bus Stand, Dabwali, where he Crl. Appeal No.83-SB of 1997 2 received a secret information, against the accused, that all the accused were selling poppy straw, in the field of Hanuman, and if an immediate raid was conducted, they could be apprehended red-handed. Considering the secret information reliable, ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Thereafter, Hari Singh, ASI, alongwith other police officials, reached the filed of Hanuman, where all the three accused were found present. On seeing the police jeep, all the accused ran away, from the spot, and they were identified by Om Parkash Jat and Amin Lal, of their village, but they refused to become witnesses, due to party faction, in the village. Two gunny bags, were recovered from under-neath the chaff, in the filed, and 15 bags, were recovered from inside the kotha. Each gunny bag, was containing 40 Kgs. poppy-husk. A sample of 100 grams, was taken out, from each gunny bag, and the remaining poppy-husk was put into the same bags. The samples, and the gunny bags, containing remaining poppy-husk, were converted into parcels, duly sealed, with the seal, bearing impression 'HSB'. Thereafter, the same were taken into possession, vide a separate memo. The seal, after use, was handed over to Mehtab Singh, witness. Rough site plan of the place of recovery, was prepared. 3. On 3.7.1992, Umed Singh, accused was arrested, on 26.7.1992, Ranjit Singh, accused, was arrested, and on 12.8.1992, Hanuman, accused, was arrested, in this case. After the completion of investigation, the accused were challaned. 4. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty and claimed trial. 5. The prosecution, in support of its case, examined Mehtab Singh, Constable (PW-1), a recovery witness, Hari Singh, ASI (PW-2), the Crl. Appeal No.83-SB of 1997 3 Investigating Officer, and Puran Chand, SHO (PW-3). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 6. The statements of the accused under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. 7. Ranjit Singh, accused, in his statement, recorded under Section 313 Cr.P.C. stated that, he was posted as Secretary in Co-operative Society at Kutiana, and was present at Kutiana, on the date of alleged recovery. He further stated that the distance between villages Shergarh, and Kutiana, is about 110 K.Ms.. It was further stated by him, that nothing was recovered from him, and he was falsely implicated in the instant case, by the Police. 8. Umed Singh, accused, in his statement, recorded under Section 313 Cr.P.C. stated that he is the real brother of Smt. Vidhya Beniwal, M.P. Rajya Sabha, from Samajwadi Janta Party, and due to party faction, he was falsely implicated, in this case. It was further stated by him, that Hanuman, accused, also belonged to Samajwadi Janta Party, and he was also falsely implicated, with him, on account of that reason. 9. Hanuman, accused, in his statement, recorded under Section 313 Cr.P.C. stated that nothing was recovered from him, and he was falsely implicated by the Police, in this case. 10. The accused, however, examined Bhagat Singh, Branch Manager, Co-operative Bank, Odhan (DW-1), Om Parkash (DW-2), and Amin Chand (DW-3). Thereafter, they closed their defence evidence. 11. 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. 12. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by Crl. Appeal No.83-SB of 1997 4 the accused/appellants. 13. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 14. The Counsel for the appellants, at the very outset, contended that the prosecution miserably failed to establish the identity of the accused, as the perpetrators of crime. He further contended that, as such, the accused, were not connected with the present case. The question for determination arises is, as to whether, the accused were identified, as the perpetrators of crime, by the Investigating Officer, or other members of the raiding party. Admittedly, the alleged accused, succeeded in running away. No doubt, the alleged recovery was effected, at about 8.00 AM, in the month of May 1992. Hari Singh, ASI, the Investigating Officer, when appeared as, PW-2, in this case, in his examination-in-chief, stated that all the three accused fled from the spot, on seeing the police jeep. It was further stated by him, that the accused were identified by Om Parkash Jat and Amin Lal of the village, but they refused to become the witnesses, in this case, for the reason of party faction, in the village. During the course of his cross-examination, it was stated by him, that secret informer was with him, at the spot. He further stated that the secret informer, pointed out the place of recovery, from a distance of 300 karams (about 1500 feet), and thereafter, he left them, and did not accompany them, to the place of recovery. He further stated that it was correct that he had written in the recovery memo Ex.PD, that all the accused persons, were identified by the secret informer, at the spot. He further stated, during the course of his cross- examination, that he had not mentioned the name of Om Parkash and Amin Lal, in the recovery memo, that they identified all the three accused persons. He further stated that even their names were not mentioned in the report under Section 173 Cr.P.C. Mehtab Singh, Constable, when appeared as PW-1 stated that the informer had identified the three accused, at the spot. He further stated Crl. Appeal No.83-SB of 1997 5 that he told the names of the accused to the ASI, as a result whereof, the same were recorded in the ruqa. He further stated that there were two persons, working in the fields, namely Om Parkash and Amin Lal. He further stated that they were asked to join the investigation, but they did not join the same, and showed their inability. Both these witnesses did not state even a single word, in their statements, that the accused were already known to them. They also did not state, even a single word, in their statements, that the accused were identified, at the spot. Hari Ram, ASI, did not state even a single word, in his statement, that the accused were arrested by him, earlier, in any case. Hari Ram, ASI, also did not state, in his statement, that the accused were coming to the Police Station, frequently, and, as such, they were known to him earlier. Even, Mehtab Singh, Constable, did not make a statement, that the accused were known to him, earlier, and, as such, they were identified by him. On the other hand, the statements of both these witnesses, clearly go to prove that the accused were only known to the secret informer, Om Parkash, and Amin Lal, witnesses. Secret informer, could not be examined. The FIR, could not be said to be the substantive evidence. Om Parkash and Amin Lal, who allegedly identified the accused, were not examined, by the prosecution. It was not at all possible for Hari Ram, ASI, and Mehtab Singh, Constable, to identify the accused from a distance of 300 karams (1500 feets), when they allegedly ran away, and especially when their backs were towards these witnesses. In these circumstances, the identification of the accused, for the first time, in the Court, was valueless. No other material was also produced, on record, to prove that the accused were the persons, who ran away from the spot. It was, therefore, a fit case, in which the identification parade, should have been held by the Investigating Officer, but he did not do so. It was held in Budhsen and Another Vs. State of U.P., AIR 1970 SC 1321 that facts which establish the identity of an accused person are relevant under Section 9. As a general rule, Crl. Appeal No.83-SB of 1997 6 the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person, at the trial, for the first time, is from its very nature inherently of a weak character. The evidence, in order to carry conviction, should ordinarily clarify, as to how, and, under what circumstances, he came to pick out the particular accused person, and the details of the part which the accused played, in the crime, in question, with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court, as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation, with the primary object of enabling the witnesses, to identify the persons concerned, in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses, and also to furnish evidence to corroborate their testimony in Court. Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognize, as having been concerned, in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162 Cr.P.C. The principle of law, laid down, with regard to test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under :- “Identification parades have been in common use for a Crl. Appeal No.83-SB of 1997 7 very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident but they claim that although they did not know him earlier, they could recall his features in sufficient details and would be able to identify him if and when they happened to see him. The holding of a test identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit, it saves the suspect or the accused form the sudden risk of being identified in the dock by the self same witnesses during the course of the trial. The line up of the suspect in a test identification parade is therefore a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice.” 14-A Keeping in view, the principle of law, laid down, in the aforesaid authorities, the Investigating Officer, was duty bound to hold identification parade, to pin-point the identity of the accused. It was required of him to direct the accused, as soon as they were arrested, to muffle their faces, and then produce them, before the Illaqa Magistrate, in muffled faces, with a request that Crl. Appeal No.83-SB of 1997 8 they be asked, whether they wanted to participate in identification parade. It was, thus, the duty of the concerned Magistrate, after seeing the accused in muffled faces, to ask them, as to whether, they wanted to participate, in the identification parade, or not. If, the accused had refused to do so, then he could record their statements, in that regard. However, no such procedure was ever followed, in this case, as has been indicated above. Not only this, Om Parkash and Amin Lal, who identified the accused were not examined as a witnesses. With a view, to prove its case, against the accused, it was obligatory upon the prosecution, to pin-point their identity, as the perpetrators of crime. In the instant case, the prosecution miserably failed to pin-point the identity of the accused, beyond a reasonable doubt, as the perpetrators of crime. Since, the identity of the accused/appellants, as the perpetrators of crime, was not proved, beyond a reasonable doubt, they were not connected with the present case. They were, thus, liable to be acquitted. The trial Court was wrong in convicting them. 15. It was, however, submitted by the Counsel for the respondent, that since the names of the accused were recorded in the FIR, it was not at all necessary to hold the identification parade. The submission of the Counsel for the respondent, in this regard, does not appear to be correct. As stated above, the FIR is not a substantive evidence. The substantive evidence is of the witnesses, who are examined in the Court. From the statements of Hari Ram, ASI, and Mehtab Singh, Constable, it was proved that they could not identify the accused, who ran away, as the perpetrators of crime. The FIR would have been used for corroborating their statements. If the submission of the Counsel for the respondent is taken as correct, then the names of any person, may be recorded, by the Investigating Officer, on the basis of the information of a secret informer, in the FIR, and even in the absence of their identification, they can be convicted. The prosecution is required to prove its case, beyond a reasonable Crl. Appeal No.83-SB of 1997 9 doubt. The Court cannot act on mere conjectures and surmises. Since, no cogent and convincing evidence regarding the identification of the accused, as the perpetrators of crime was produced by the prosecution, the mere fact that their names, figured in the FIR, that too, on the basis of information, supplied by a secret informer, who could not be examined as a witness, in the Court, did not connect them with the instant case. Such a submission of the Counsel for the respondent, cannot be taken as correct. The submission of the Counsel for the respondent, in this regard, being without merit, must fail, and the same stands rejected. 16. It was next submitted by the Counsel for the appellants, that the prosecution failed to prove that the accused were found in conscious possession of the poppy-husk. Two bags of poppy-husk were recovered from underneath the chaff, in the fields, and the remaining were recovered from the kotha. It is to be seen, as to whether, the prosecution has proved that the accused were the owners or in possession of the fields, and the kotha, especially when they were not apprehended, at the spot, and allegedly succeeded in running away. Ex.PG, is the Jamabandi for the year 1988-89, relating to village Shergarh, in respect of Khatauni No.234. Mahela Ram, Tarlok Chand, sons of Mukh Ram, have been recorded to be co-sharers to the extent of 1/2 share of the land, whereas Parman Ram, Hari Ram, Manphul, have been recorded to be co-sharers to the extent of 1/2 share. In the column of cultivation Mahela Ram and Hari Ram, have been shown in possession. None of the accused, has either been shown to be the owner or in possession of the said land. Even, the prosecution failed to prove that the bags containing poppy-husk, were allegedly recovered from the land mentioned in Ex.PG. No doubt, the trial Court, in its judgment, recorded that Mahela Ram, is the father of Hanuman, accused, and he (Hanuman), accusd might have kept the bags, containing poppy-husk in the said land. Such a conclusion arrived at, by the trial Court, is not at all correct. Had Hanuman and Crl. Appeal No.83-SB of 1997 10 other accused, been arrested at the spot, while sitting on the bags, containing poppy-husk, or they had been found to be present just near the bags, containing poppy-husk, some inference could be drawn that though they were neither the owners, nor in possession of the land, yet being in constructive possession of and in control over the bags, containing poppy-husk, committed the offence, punishable under Section 15 of the Act. If, it is assumed, that the bags, containing poppy-husk were recovered from the land, depicted in Ex.PG, in which Mahela Ram, father of Hanuman, accused, was a co-sharer, then it was Mahela Ram, and the other co-sharers, who could be said to be in conscious possession of poppy-husk. No evidence, was produced, by the prosecution that Mahela Ram, and his son Hanuman, were cultivating the land jointly. No evidence was also led by the prosecution, that the land had been partitioned, and it had fallen to the share of Hanuman, accused, but in the revenue papers the name of Mahela Ram, as a co-sharer, was recorded. No evidence was led, by the prosecution that in fact, Hanuman, accused, was managing the entire land, and cultivating the same, and, thus, was actually in possession thereof, but the name of Mahela Ram, was only recorded in the revenue papers, as a co-sharer. By no stretch of imagination, it could, therefore, be said that the accused, were in conscious possession of the bags, containing poppy-husk. In Ravinder Singh Vs. State of Punjab 1997(1) RCR (Criminal)720, 40 bags of poppy-husk, were recovered, from a room of behak. The room was not locked. The accused were found present there, and arrested. The owner of the behak, was neither apprehended, nor his house was searched. The trial Court convicted the accused. The conviction was set aside by a Division Bench, in the aforesaid case, holding that they were not in conscious and exclusive possession of the contraband, as the prosecution had failed to prove the same. In Bachittar Singh Vs. State of Punjab 2006(4) RCR (Criminal) 213, 20 bags, each containing 40 Kgs. poppy-husk, were recovered from a well, on the basis of a Crl. Appeal No.83-SB of 1997 11 secret information, and disclosure statement of the accused. The accused was convicted by the trial Court, but was acquitted by this Court, on the ground that it was not established that the accused was the owner of the well, or was in exclusive possession thereof. In Jagmohan Singh @ Jago Vs. State of Punjab, 2007(3) RCR (Criminal) 900, the accused was sitting on the bags. The site of recovery was a thoroughfare. It was held that the conscious possession, and ownership of the accused, was not proved. Ultimately, he was acquitted, in the aforesaid case, by this Court. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the present case. The trial Court was wrong in holding that the accused were in conscious possession of the bags, containing poppy-husk. Therefore, the accused did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellants, carries substance, and stands accepted. 17. It was next submitted by the Counsel for the appellants, that no evidence was produced by the prosecution, that the sample impression of the seals was also deposited, in the office of the Forensic Science Laboratory, alongwith sample parcels, and, as such, it could not be ascertained, as to whether the seals on the samples were the same, as were allegedly affixed immediately after the seizure. The submission of the Counsel for the appellants, in this regard, appears to be correct. Ex.PB is the affidavit of Devinder Kumar, Constable. In Para No.3 of his affidavit, it was stated by him that on 4.6.1992, he deposited the sample parcels, of this case, after getting the docket issued, from the office of ETO, in the office of the Asstt. Chemical Examiner. He further testified that, thereafter, the deposit receipt was handed over by him, to the MHC. He did not state, even a single word, that the sample impression of the seals was handed over to him, by the MHC, and he deposited the same, in the office of the Chemical Examiner, alongwith the sample parcels. On the other hand, Ex.PC, report of the Forensic Science Laboratory, shows that the Crl. Appeal No.83-SB of 1997 12 seals on the parcels, were found intact, and tallied with the specimen seals, as per the forwarding authority. Since, the sample impression of the seals, were not deposited with the Forensic Science Laboratory, it is not known, as to, on the basis of which material, the said Laboratory, came to the conclusion, that the seals on the samples, tallied with the sample impression of the seals. This part of the report of the Forensic Science Laboratory, appears to be incorrect. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58 (S.C.), the sample impression of the seal, was not sent to the Laboratory, for the comparison of the seals, on the sample. It was held that, therefore, there was no evidence, to prove satisfactorily that the seals found, on the sample parcel, were, in fact, the same, as were affixed, on the sample parcel, immediately after the seizure of the contraband. In these circumstances, in the aforesaid case, the appellant was acquitted. In the instant case also, in the absence of deposit of the sample impression of the seals, the Forensic Science Laboratory, had no material with it, to compare, as to whether, the seals on the sample parcels, tallied with the sample impression of the seals, actually affixed, on the sample parcels, immediately after the seizure. There is no other evidence, on record, to prove that the seals, on the sample parcels, were the same, as were affixed immediately after the seizure. In these circumstances, the possibility of tampering with the samples, could not be ruled out. The link evidence, on account of the aforesaid reason, became incomplete, as a result whereof, the case of