Criminal Appeal No. 2391-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 2391-SB of 2003 Date of Decision: 15.03.2010 1. Khushal Chand son of Sant Ram, r/o village Mehmadaki, District Fatehabad. 2. Khushala Ram son of Ghana Ram, r/o village Ladhuwas, District Fatehabad. ... Appellants Versus The State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. K.S. Sidhu, Advocate, with Mr. G.S. Sidhu, Advocate, for appellant No. 1. Mr. Rahul Vats, Advocate, for appellant No. 2. 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 27.11.03, and, the order of sentence, dated 28.11.03, rendered by the Court of Additional Sessions Judge, Fatehabad, vide which, it convicted accused (now appellant) Khushal Chand, for the offence, punishable under Sections 15(c) and accused Khushala Ram Criminal Appeal No. 2391-SB of 2003 2 (now appellant), for the offence, punishable under Section 25 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 10 years each, and to pay a fine of Rs. 1 lac each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of one year each, for having been found in possession of 60 kgs poppy husk, without any permit or licence, now falling within the ambit of commercial quantity and for allowing the use of his premises by Kushala Ram for keeping the poppy husk therein. 2. The facts, in brief, are that, on 28.09.99, Jai Narain, Assistant Sub Inspector, alongwith Ishwar Singh, Assistant Sub Inspector and other Police officials, was on patrol duty, at village Nangal. A secret information, was received, to the effect, that Khushal Chand son of Sant Ram, was indulging in selling the poppy husk, at village Ladhuwas, in the house of Khushala Ram son of Ghanna Ram, after paying him Rs. 300/- per bag, for using his house, and, if raid was conducted, they could be apprehended with the contraband. Relying upon the secret information, the Police party, proceeded towards the pre-disclosed place. One Sukhjinder Singh, met the Police party, at the bus-stand, who was joined, as a witness. When the Police party, reached the house of Khushala Ram, accused, Khushal Chand, accused, was seen pulling out two gunny bags from a pit in the bara. On seeing the Police party, he got perplexed, but, was overpowered on suspicion. The Investigating Officer, apprised Khushal Chand, accused, that he Criminal Appeal No. 2391-SB of 2003 3 suspected some contraband, in two gunny bags lying there, and, as such, the same were to be searched. On search of the bags, in the presence of Rajesh Kumar, Naib Tehsildar, Ratia, who was called to the spot, 40 kgs poppy husk, was found, in one bag, whereas, 20 kgs poppy husk was found in the other bag. Two samples of 100 gms, from each of the bags, were separated, and the remaining poppy husk, was kept therein. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the first information report, was registered. Rough site plan of the place of recovery, was prepared. Khushal Chand, accused was arrested. Khushala Ram, accused, was also arrested on 02.12.99. After the completion of investigation, they were 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 Khushal Chand, accused, whereas, charge under Section 25 of the Act, was framed against Khushala Ram, accused, which was read-over and explained to them, to which, they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Tarsem Singh, Head Constable (PW1), Jai Vir, Constable (PW2), Om Parkash, Criminal Appeal No. 2391-SB of 2003 4 Head Constable (PW3), Som Raj, Inspector/Station House Officer (PW4), Rajesh Kumar, Naib Tehsildar, Jakhal (PW5), a witness to the recovery, Ishwar Singh, Assistant Sub Inspector (PW6), and, Jai Narain, Sub Inspector (PW7), the Investigating Officer. The Public Prosecutor, for the State, gave up Sukhjinder Singh, prosecution witness, as having been won over by the accused. Thereafter, he closed the prosecution evidence. 6. 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. Khushal Chand, accused, stated that nothing was recovered from his possession. It was further stated by him that he had been falsely implicated, in the instant case. 7. Khushala Ram, accused, in his statement, under Section 313 of the Code of Criminal Procedure, almost took up the similar pleas, as were taken up by Khushal Chand, accused, in his statement, under Section 313 of the Code of Criminal Procedure. In addition, he stated that he had no knowledge about the alleged recovery. The accused, however, did not lead any evidence in defence and closed the same. 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 appellants. Criminal Appeal No. 2391-SB of 2003 5 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, though, the alleged recovery, was effected, in pursuance of the secret information, from the Bara, an enclosed place, allegedly belonging to Khushala Ram, accused, yet, the same, was neither reduced into writing, nor the question of sending the same, to the officer superior arose. The submission of the Counsel for the appellants, in this regard, appears to be correct. According to the prosecution story, a specific secret information, was received, by Jai Narain, Assistant Sub Inspector, that Khushal Chand, accused, was indulging in the sale of poppy husk, at village Ladhuwas, in the house of Khushala Ram, accused, by paying him Rs. 300/- per bag, for using his house, and, if a raid was conducted, poppy husk, could be recovered therefrom. No doubt, Jai Narain, Assistant Sub Inspector, and the other Police officials, at that time, were on patrol duty. Jai Ram, Sub- Inspector, might have thought, that the situation being emergent, it was necessary to proceed to the house of the accused, in the first instance, before reducing the information into writing. The raid was conducted, at the house, which according to the prosecution, belonged to Khushala Ram, accused, wherefrom, Khushal Chand, accused, was allegedly apprehended with two bags of contraband. Even after the search and seizure, the secret information, was not reduced into writing, nor the question of sending the same to the Officer superior, did ever arise. There was, therefore, complete violation of the mandatory provisions Criminal Appeal No. 2391-SB of 2003 6 of Section 42 of the Act. On account of complete violation of the provisions of Section 42 of the Act, a great prejudice, was caused, to the accused, in as much as, they were deprived of cross-examining the witnesses, effectively, in relation to the secret information, in the absence of reduction thereof into writing. Had such a secret information been reduced into writing, the Investigating Officer, could be confronted therewith, so as to prove, that the case of the prosecution was totally false. In Directorate of Revenue and another Vs. Mohammed Nisar Holia, 2008(1), RCR (Criminal), 241 (SC), recovery of contraband, was effected, from a room of the hotel, occupied by the accused. The officer, who received the secret information, did not reduce the same, into writing, nor the question of sending the same, to the Officer superior arose. In these circumstances, it was held, by the Apex Court, that on account of non-compliance with the mandatory provisions of Section 42(2), the appellant, was entitled to acquittal. In Amit Kumar Vs. State of Punjab, 2001(2), RCR (Criminal), 661, a case, decided by a Division Bench of this Court, the principle of law, laid down, was to the effect, that complete non- compliance with the provisions of Section 42(2) of the Act would cause a serious prejudice, to the accused, as it could be concluded that a serious check on the veracity of the prosecution case, had been avoided by the Police. In these circumstances, the appellant, was held entitled to acquittal. In State of Punjab Vs. Balbir Singh, 1994(1), RCR (Criminal), 737, it was held that, under Section 42(2) such empowered officer, who takes down any information, in writing, or records the Criminal Appeal No. 2391-SB of 2003 7 grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non- compliance with this provision, the same affects the prosecution case. To that extent, it is mandatory. But if there is delay, whether it was undue, or whether the same had been explained or not, will be a question of fact in each case. In Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, 2000(1), RCR (Criminal), 611, a case decided by a three Judge Bench of the Apex Court, it was observed, as under:- “If the officer has reason to believe from personal knowledge or prior information received from any person that any Narcotic Drug or Psychotropic Substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused.” 12. As stated above, in this case, there was total non- compliance with the mandatory provisions of Section 42(2) of the Act, and, as such, a great prejudice was caused to the accused. On account of complete non-compliance with the provisions of Section 42(2) of the Act, the case of the prosecution, became highly doubtful. 13. It was next submitted by the Counsel for the appellants, that, no evidence, was produced, by the prosecution, to prove, that the Criminal Appeal No. 2391-SB of 2003 8 bara, wherefrom, the alleged recovery, was effected, belonged to Khushala Ram or Khushal Chand, accused, and, as such, the former could not be said to have allowed the use thereof by the latter for keeping poppy husk therein and the latter could not be attributed conscious possession of the contraband. He further submitted that, as such, the exclusive possession and knowledge of the bags, containing poppy husk, could not be attributed to the accused. The submission of the Counsel for the appellants, in this regard, appears to be correct. No evidence, worth the name, was collected and produced, by the Investigating Agency, during the course of the trial of the case, that the bara, in question, belonged to Khushala Ram, and, he allowed the use thereof by his co-accused for keeping the contraband therein. It is for the prosecution, to prove the exclusive possession or control of the accused, in relation to the contraband. Only after proof of the possession or control over the contraband, in relation to the accused, that statutory presumption, under Sections 35 and 54 of the Act, arises, that they were found, in conscious possession thereof. Since it was not proved, that accused Khushal Chand, was in conscious possession of the bags, containing poppy husk, no offence, punishable under Section 15 of the Act, was committed by him. Similarly since Khushala Ram was not proved the owner of the bara, he did not commit an offence under Section 25 of the Act. In Parminder Singh Vs. State of Haryana, 2006 (4), RCR, 495, the accused, was standing near the car, in which, opium was lying. The car, did not belong to the accused. On seeing the Police party, he ran away. Under these circumstances, a Criminal Appeal No. 2391-SB of 2003 9 Division Bench of this Court, held that, the accused, could not be said to be in conscious possession of the opium, lying in the car. In State of Punjab Vs. Balkar Singh, 2004(3), SCC, 582, the accused, were found, sitting on one hundred bags of poppy husk, lying in the fields. They were acquitted by the High Court, on the ground, that their possession, in respect of the bags, containing poppy husk, was not proved, and, as such, statutory presumption, under Sections 54 and 35 of the Act, could not operate, against them, that they were in conscious possession thereof. The State, feeling aggrieved, filed a Criminal Appeal, in the Apex Court. The Apex Court, held that, the mere fact that the accused were allegedly found to be sitting, on the bags, containing poppy husk and their failure to give any satisfactory explanation, for being so present, did not prove that they were in possession of the said poppy husk bags, especially when they belonged to different villages, and no investigation had been conducted, by the Investigating agency, as to how the bags containing poppy husk were found lying, at that place. Para 3 of the said judgment reads as under : “3, We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimoney of PW1 Balbir Singh and PW2 ASI JarnailSingh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Criminal Appeal No. 2391-SB of 2003 10 Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present at that place itself does not prove that the were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court. 14. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. The submission of the Counsel for the appellants, to the effect, that the appellant Khushal Criminal Appeal No. 2391-SB of 2003 11 Chand, was not found, in conscious possession of the poppy husk, allegedly recovered, from the bara, and accused Khushala Ram, did allow the use of the bara not belonging to him for keeping the contraband therein and, thus, the offences punishable under Sections 15 and 25 of the Act, were not constituted, carries substance, and deserves to be accepted. 15. It was next submitted by the Counsel for the appellants, that Sukhjinder Singh, independent witness, though joined, in this case, was not examined, by the prosecution, and, as such, an adverse inference, could be drawn, against it, that had he been examined, he would not have supported its case. The submission of the Counsel for the appellants, in this regard, appears to be correct. No doubt, Sukhjinder Singh, independent witness, was given up, as won over, by the Public Prosecutor, for the State, vide his statement, dated 06.12.01, yet, there is no material, on record, as to what persuaded him, to give him (Sukhjinder Singh) up, as won over, by the accused. It is, no doubt, true that the Public Prosecutor for the State, is the master of the case. It is for him, to decide, as to which witness he wanted to examine, and as to which witness he did not want to examine. However, such discretion is required to be exercised, by the Public Prosecutor, in accordance with the sound Judicial principles, and, not arbitrarily or capriciously. It, therefore, could be said that the discretion was exercised by him, arbitrarily or capriciously. Had Sukhjinder Singh, independent witness, been examined, light would have been thrown, on the facts and circumstances of the case, and Criminal Appeal No. 2391-SB of 2003 12 credence would have been lent to the prosecution case, solely based on the evidence of the official witnesses. 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. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution became doubtful. In Masalti Vs. State of UP, AIR 1965 SC 202, a four Judge Bench of the Apex Court, held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material evidence, available to it, which is necessary for unfolding its case, but it would be unsound to lay down, as a general rule, that every witness must be examined, even though, his evidence may not be very material, or even if, it is known that he has been won over or terrorised. The discretion exercised by the Public Prosecutor, in giving up Sukhjinder Singh, as won over, as stated above, was not Criminal Appeal No. 2391-SB of 2003 13 bonafide. 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, and awarding sentence, to the accused. 16. It was next submitted by the Counsel for the appellants, that though the alleged recovery, was effected, on 28.09.99, yet the sample parcels, were sent, to the Forensic Science Laboratory, Madhuban, on 04.10.99 i.e. after seven days, which remained unexplained, and, as such, the possibility of tampering with the same, until, the same reached the Forensic Science Laboratory, could not be ruled out, especially when, the seal throughout, remained in possession of the Police officials throughout. The submission of the Counsel for the appellants, in this regard, appears to be correct. It is, no doubt, true that if the other evidence, produced by the prosecution to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the samples to the Chemical Examiner, pales into insignificance. However, if the other evidence, is not found to be creditworthy, then delay certainly proves fatal to the prosecution case. In this case, the other evidence, produced by the prosecution, to prove the completion of link evidence, is neither reliable nor trustworthy. It is for the prosecution, to prove affirmatively, that right from the date of seizure, until the samples were sent to the Chemical Examiner, the same were not tampered with. If the prosecution fails to prove this factum, then its case is bound to dwindle down. In State of Rajasthan Vs. Gurmail Singh, 2005(2) RCR (Crl.), 58, S.C., the contraband, was kept in the Malkhana for 15 days. The Criminal Appeal No. 2391-SB of 2003 14 Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence, produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Examiner. In State of Punjab Vs. Jaswant Singh, 2002(3), RCR (Crl.), 54 (DB) (P&H), there was a delay of 21 days, in sending the sample to the laboratory. In these circumstances, it was held that it must prove fatal to the prosecution case, especially when admittedly no independent witness was joined, in the recovery proceedings, and seal used for sealing the sample, remained with the Police Official, during the period. 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 Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1), RCR (Criminal), 406 (S.C.), 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 Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Criminal Appeal No. 2391-SB of 2003 15 Examiner after 72 hours, and 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. Since the possibility of tampering with the case property, and the samples, could not be ruled out, in the instant case, a serious doubt, on account of this reason, was cast on the prosecution case. The submission of the Counsel for the appellants, being correct is accepted. 17. No other point, was urged, by the Counsel for the parties. 18. 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 offences, punishable under Sections 15 (c) and 25