Crl. Appeal No.832-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.832-SB of 1999 Date of Decision : April 22, 2008 Kulwant Singh S/o Jeet Singh, ....Appellant R/o Lakranwali, Distt. Sirsa. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. H.S.Sangha, Advocate, for Mr. G.S.Bawa, 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 20.8.1999, and the order of sentence of the even date, rendered by the Court of Sessions Judge, Sirsa, vide which it convicted the accused/appellant Kulwant Singh, for the offence punishable under Section 15 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, for having been found in possession of 4 Kgs. poppy straw, now falling within the ambit of non- commercial quantity, without any permit or licence. 2. The facts, in brief are that on 24.10.1998, Suraj Mal, ASI, alongwith Shamsher Singh and Jagmal Singh, Constables, and other police officials, was present at T-point of village Raghuana, on the road, which leads to village Lakkaranwali. In the meanwhile, the accused was seen coming from the side of railway crossing Baragudha, carrying a plastic bag, in his hand. On Crl. Appeal No.832-SB of 1999 2 seeing the police party, he immediately sat down, on the pretext of urinating, but was apprehended, on suspicion. The search of the bag, being carried by the accused, was conducted, in accordance with the provisions of law, which resulted into the recovery of 4 Kgs, poppy straw. Two samples of 100 grams each, were separated therefrom, and the remaining poppy straw, was put into the same bag. The sample, and the remaining poppy straw, were converted into parcels, duly sealed with the seal, bearing impression 'SM', 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, was prepared. The statements of the witnesses, were recorded. 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 15 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 Rajbir Singh, HC (PW-1), Lachhman Dass, Constable, (PW-2), Madan Lal, SI, (PW-3), Jagmal Singh, Constable (PW-4), and Suraj Mal, ASI (PW-5). 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 his signatures were obtained on blank papers forcibly, by taking him, from his house, at the instance of Sarpanch of his village, and a false case was foisted upon him. He, however, did not lead 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. Crl. Appeal No.832-SB of 1999 3 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 respondent, and have gone through the evidence and record of the case, carefully. 9. The alleged recovery, in this case, was effected, from the accused, from a public place, yet no independent witness, despite availability, was joined by the Investigating Officer, at the time of the alleged search and seizure. Suraj Mal, ASI (PW-5), the Investigating Officer, during the course of his cross-examination, stated that he asked the persons, present near the Railway Station, and at the Railway Station, to join the investigation, but they refused to do so. He further stated, during the course of his cross-examination, that he did not remember their names. He further stated that he did not ask the Station Master, to join the investigation. He further stated that in the case diary there is no mention that some persons were called to join the investigation, but they refused to do so. The statement of Suraj Mal, ASI, on this aspect of the matter, does not appear to be correct. Had an effort been made, by the Investigating Officer, to join an independent witness, and, none despite availability, had come forward, to join, he would have certainly recorded this factum, in the case diary, or any other document, prepared contemporaneously, at the time of the alleged recovery. Non-mention of this fact, in the case diary, or in those documents, clearly exhibited that Suraj Mal, ASI, made an incorrect statement that an effort was made to join an independent witness, but none came forward to join. It means that the public witnesses, were not intentionally and deliberately joined, despite availability. 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 Crl. Appeal No.832-SB of 1999 4 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. 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. Even the provisions of Section 55 of the Act, though the same are directory, in nature, were not complied with, by the Investigating Officer. Madan Lal, SI (PW-3), who was the SHO at the relevant time, no doubt, stated that the case property, the accused, and the witnesses, were produced before him. He further stated that he verified the facts, from the accused, and the witnesses, and put his seal 'ML', on the sample parcel, and the residue parcel. However, during the course of his cross-examination, he stated that he had not mentioned the fact of verification in the roznamcha register. He further stated that he recorded this fact, in the case diary . However, the case diary, was not produced by this witness, to prove that this fact was recorded therein. He did not prepare any separate memo, to the effect that the case property, witnesses, and the accused, were produced before him, and he verified the facts, from the accused and the witnesses, and thereafter, affixed his seal, on the sample parcels. In this view of the matter, the bald statement of Madan Lal, SI, that the case property was produced before him, and he verified the facts, cannot be taken as correct. Had the case property, and the sample parcels been produced before him, he would have certainly made a mention thereof, in some document. In the absence of mention of the same, in some documents, his statement, in this regard, cannot be believed. In this view of the matter, it could Crl. Appeal No.832-SB of 1999 5 be held that the case property was not produced before him. In this case, the provisions of Section 55 were, thus, intentionally and deliberately observed, more in breach, than in compliance, by the Investigating Officer. When a particular provision, in the Statute, adumberates that a particular act should be done, by the person concerned, in a particular manner, then he is bound to perform the same, in that manner, and cannot take the shelter of the factum, that since that particular provision, was directory, in nature, he was not bound to comply with the same. If, such an explanation is accepted by the Courts, then the concerned officials saddled with the responsibility of performing various duties, under a particular Statute, would breach the provisions of law, by merely saying that the same being directory, they were not bound to comply with the same. Non-compliance of Section 55 intentionally and deliberately, by the Investigating Officer, cast a cloud of doubt, on the prosecution case. It caused a prejudice to the accused. The trial Court failed to take into consideration, this aspect of the matter, as a result of whereof, it committed an error in recording conviction and awarding sentence. 11. In the instant case, it is not clear, as to on which date the sample parcel was deposited in the Laboratory. Lachhman Dass, Constable (PW-2), during the course of his cross-examination stated that he had gone to Madhuban on 26.10.1998, at 2.00 PM, and reached there at about 8.30 PM. He further stated that the sample parcel, was with him, during the night, and he deposited the same on 27.10.1998. On the other hand, Rajbir Singh, HC (PW-1),during the course of his cross-examination, stated that the sample parcel, was deposited in the office of the Forensic Science Laboratory on 28.10.1998, whereas, Lachhman Dass, in his affidavit Ex.PC, stated that the sample parcel, was deposited on 27.10.1998. According to report Ex.PA, the sample parcel, was deposited on 27.10.1998. There is contradiction between the statements, and affidavits Ex.PB, and Ex.PC of Rajbir Singh, HC and Lachhman Dass, Crl. Appeal No.832-SB of 1999 6 Constable, with regard to the date, on which the sample parcel, was deposited in the office of the Forensic Science Laboratory. No explanation was furnished, as to how, this contradiction occurred in their statements. This contradiction, without any explanation, cast a doubt on the prosecution story, as a result whereof, miscarriage of justice occasioned. 12. The sample impression of the seal, was never deposited in the office of the Forensic Science Laboratory, as a result whereof, the link evidence became incomplete. Ex.PC, is the affidavit of Lachhman Dass, Constable, who deposited the sample parcel, in the office of the Forensic Science Laboratory. According to para No.3 of his affidavit, on 26.10.1998, he got issued a docket from the office of DTC, and on 27.10.1998, he deposited the sampel parcel, in the office of the Forensic Science Laboratory, and thereafter, handed over the deposit receipt to the MHC. It means that sample impression of the seal, was never handed over to him, and, as such, the question of deposit thereof, in the office of the Forensic Science Laboratory, did not at all arise. No doubt, in Ex.PA, report of the Forensic Science Laboratory, a certificate was recorded to the effect that the seals on the parcel were found intact and tallied with the specimen seal, as per forwarding authority. It is not known, as to how, the Laboratory came to this conclusion, when the sample seal, as per the affidavit of Lachhman Singh, Constable, was not deposited with it. This part of the report of the Forensic Science Laboratory, does not appear to be correct. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the sample seal was not sent to the Laboratory, at the time of sending the sample parcel. The Apex Court, held that the case of the prosecution was doubtful, on account of this reason. In this view of the matter, the case of the prosecution also became doubtful. The trial Court, did not take into consideration, this aspect of the matter,as a result whereof, miscarriage of justice occasioned. Crl. Appeal No.832-SB of 1999 7 13. There were also material discrepancies and contradictions in the statements of the official witnesses, which remained unexplained, and the same cast a doubt on the prosecution story. Jagmal Singh, Constable (PW-4), stated that Shamsher Singh, Constable, was sent to call public persons, from the Railway Station, whereas, Suraj Mal, ASI, (PW-5), stated that he had not asked the Constable to call some public witnesses from the shops, and rather he himself asked the persons, to join the investigation, near the Railway Station, and at the Railway Station. According to PW-4, the writing work was done at T-Point, by sitting on the chairs, which were procured from the Railway Station, whereas, PW-5 stated that the writing work was done at the spot, while sitting on the bricks, which were lying near the road. According to, PW-4, they remained at the spot for about 1 ½ hours, whereas, PW-5, stated that police party remained at the spot for 4 hours. PW-4, during the course of his cross- examination, stated that the weights and scale were brought by him, from grocery shop, situated at Bus Stand Baragudha, whereas, PW-5 stated that the scale and weights were brought from a shop near the Railway Station. The occurrence of these unexplained discrepancies, and contradictions, in the statements of the official witnesses, assume an added importance, on account of the fact that the case of the prosecution, did not find support through an independent source. Had any explanation been furnished, as to how, these discrepancies and the contradictions occurred, in the statements of the official witnesses, the matter would have been considered in the light thereof. In the absence of an explanation, having been furnished, the Court cannot coin any of its own to fit in with the prosecution case. No doubt, on account of lapse of time, the discrepancies are bound to occur. However, when these discrepancies and contradictions are taken collectively, the same can be characterized as material and significant, so as to go to the root of the case. After all, the veracity of the evidence of the official witnesses, can only be tested by the Crl. Appeal No.832-SB of 1999 8 accused, by pointing out infirmities and lacunae therein. If the Court finds that the infirmities and lacunae, were significant and material, then certainly the case of the prosecution becomes doubtful. In this view of the matter, the discrepancies and the contradictions, referred to above, when taken collectively prove fatal to the case of the prosecution. This fact also casts a doubt, on the prosecution story. 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 lacunae, 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 20.8.1999, 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