Crl. Appeal No.20-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.20-SB of 1999 Date of Decision : April 29, 2008 Bablu son of Sadhu Ram, ....Appellant R/o Mansa. Versus The State of Punjab ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER Present: None for the appellant. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 23.12.1998, and the order of sentence of the even date, rendered by the Judge, Special Court (Addl. Sessions Judge), Mansa, vide which it convicted the accused/appellant Bablu, 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 35 Kgs. 100 grams poppy-husk, without any permit or licence. 2. The facts, in brief, are that on 13.10.1997, the police party headed by Mukhtiar Singh, SI, Incharge Police Post, Kulrian, was on patrol duty, and had held a picket, at the Bhakhra Canal Bridge, within the area of village Nawan Gaon. At that time, the accused came from the side of village Badalgarh, on Scooter, bearing No.PB-03-A-6710, carrying a bag, on the back seat. He was Crl. Appeal No.20-SB of 1999 2 apprehended, on suspicion. The search of the bag, was conducted, in the presence of Harbhajan Singh, SP, who was called to the spot, by sending a wireless message, in accordance with the provisions of law, which resulted into the recovery of 35 Kgs. 100 grams poppy-husk. A sample of 100 grams poppy- husk, was separated therefrom, and the remaining poppy-husk was put into the same bag. The sample, and the remaining poppy-husk, were converted into parcels, duly sealed with the seal, bearing impression 'MS', and thereafter, the same were 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 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 Rattan Singh, SI/SHO (PW-1), Harbhajan Singh, SP (PW-2), Didar Singh, HC (PW-3), Girdawar Singh, Constable (PW-4), and Mukhtiar Singh, SI (PW-5). Thereafter, the Addl. 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. He, however, examined Sukhjinder Singh, HC (DW-1), and relied upon document Ex.D-1. Thereafter, he closed the defence evidence. 6. After hearing the Addl. 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 Crl. Appeal No.20-SB of 1999 3 of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. When the appeal was fixed for regular hearing, on the Board of this Court, and a due notice, in this regard, had been issued to the Counsel for the appellant, none appeared on his behalf. Under these circumstances, no alternative was left, with this Court, than to decide the appeal, after going through the record, and the evidence, as also after hearing the Counsel for the respondent. 9. I have heard the learned Counsel for the respondent, and have gone through the evidence and record of the case, carefully. 10. Mukhtiar Singh, SI, (PW-5), the Investigating Officer, had held a picket, when the accused was apprehended. He stated during the course of his cross-examination, that he did not join any local witness, in the police party, when it started from village Kulrian. He further stated that he did not join any person from Nawan Gaon, in the police party. He further stated that he reached the place, where the picket had been held, half an hour, before the arrival of the accused. He further stated that, he did not remember, if any person passed by that place, during that period. He further stated that, he did not remember, as to how many bridges, on the Bhakhra canal, fell in the jurisdiction of police post Kulrian. He further stated that the weights and the scale were brought from village Nawan Gaon. He further stated that the Constable, who was sent to bring weights and scale, was not asked to bring any witness from village Nawan Gaon. From the statement of this witness, it is clear that, no effort was made to join an independent witness. Had any effort been made, to join an independent witness, the matter would have been considered, in the light thereof. Since minimum stringent punishment is provided for the offences, punishable under the Act, and according to the provisions of Section 51 of the Act, the provisions of the Code of Criminal Procedure, relating to search, seizure and arrest shall Crl. Appeal No.20-SB of 1999 4 apply to the extent the same are not inconsistent with the provisions of the Act, it was imperative, on the part of the Investigating Officer, to join an independent witness, at the time of the alleged search, and seizure or at least to make a genuine, sincere and real effort, to join such a witness. The search and seizure, before an independent witness, would have imparted much more authenticity and creditworthiness, to the proceedings so conducted. It would have also verily strengthen the prosecution case. The said safeguard was also intended to avoid criticism of arbitrary and high handed action, against the authorized Officer. In other words, the Legislature, in its wisdom, considered it necessary to provide such a statutory safeguard, to lend credibility to the procedure, relating to search and seizure, keeping in view the severe punishment, prescribed under the Act. That being so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute and failure to do so, must be viewed with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of statutory safeguards, committed by the authorized officer, during search and seizure operation and may also undermine respect of law. That cannot be permitted. In the instant case, the alleged recovery being minor, now falling within the ambit of non-commercial quantity, and chances of plantation of the same, against the accused, could not be ruled out, it became the bounden duty of the Investigating Officer, to observe all the safeguards, provided under the Act, at the time of search and seizure. 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 Crl. Appeal No.20-SB of 1999 5 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. Bhupinder Singh 2001 (01) RCR (Crl.) 356, a Division Bench of this Court held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the recovery was effected from a busy locality. In State of Punjab Vs. Ram Chand 2001 (1) RCR (Crl.) 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. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution, became highly doubtful. The trial Court failed to take into consideration this aspect of the matter, as a result whereof miscarriage of justice occasioned. 11. The alleged recovery, in the instant case, was effected on 13.10.1997, whereas, the sample was sent to the office of the Chemical Examiner, on 17.10.1997. No explanation was furnished by the prosecution witnesses, as to why a delay of 4 days was caused, in sending the sample, and whether the sample remained untampered with, until it reached the office of the Chemical Examiner. 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 Chemical Examiner. Since, the sample was allegedly sent to the office of the Chemical Examiner, after about 4 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 Crl. Appeal No.20-SB of 1999 6 (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 State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58 (S.C.), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Chemical Examiner. 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 authority, is fully applicable to the facts of the present case. The delay of 4 days, in sending the sample to the office of the Chemical Examiner, 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 trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 13. The sample impression of the seal, was not sent to the office of the Chemical Examiner. Ex.PG, is the affidavit of Gurdev Singh, Constable. In para No.3 of the said affidavit, it was stated by him, that he reached the office of the Chemical Examiner on 16.10.1997. He further stated that since there was holiday, in that office, on that day, he could not deposit the sample there, on 16.10.1997. He further stated that on 17.10.1997, he deposited the sample parcel, in the office of the Chemical Examiner, and handed over the deposit receipt to the SHO. It means that neither this witness was handed over the Crl. Appeal No.20-SB of 1999 7 sample impression of the seal, nor he deposited the same, in the office of the Chemical Examiner. Since, he did not deposit the sample impression of the seal, in the office of the Chemical Examiner, it is not known, as to how on Ex.PH, the Chemical Examiner, affixed the rubber stamp, that the seals on the sample, were intact and agreed with the sample seal. Such certificate of the Chemical Examiner, therefore, does not appear to be correct. Under these circumstances, it could not be said, as to whether, the sample was received in the office of the Chemical Examiner, with seals intact, and as to whether, the said parcel bore the same seals, as were allegedly affixed by the Investigation Officer and the SHO, on the same. 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. 14. The provisions of Section 57 of the Act, were not complied with. No report was sent by the Investigating Officer, to his superior officer, with regard to the alleged apprehension of the accused, and alleged recovery of contraband, from him. No doubt, the provisions of Section 57 of the Act, are directory in nature. That does not mean that the same, should not be complied with by the Investigating Officer, deliberately and intentionally. In Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Criminal) 702 (S.C.), it was held that non- compliance of the provisions of Sections 52, 55 and 57, which are no doubt, directory, and violation thereof, would not ipso facto vitiate the trial or conviction. However, the Investigating Officer, cannot totally ignore these provisions, and such failure will have bearing on the appreciation of evidence regarding search of the accused and seizure. The object of the provisions of Crl. Appeal No.20-SB of 1999 8 Section 57, is that the superior officer should be informed immediately after the alleged recovery of contraband, so that he must be aware of the genuineness of the proceedings, conducted by his junior, to ensure that no innocent person was implicated, and the allegations of high handedness against the Police officials, are averted. Had any explanation been furnished by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of the Act, the matter would have been different. In the absence of any explanation, what to speak of plausible, the Court cannot coin any of its own, to fit in with the prosecution case. Since, the provisions of Section 57 of the Act, were observed, more in breach, than in compliance, by the Investigating Officer, intentionally and deliberately, the case of the prosecution became doubtful, on account of this reason. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it committed an error, in recording conviction and awarding sentence. 15. Material discrepancies and contradictions, occurred in the statements of the prosecution witnesses, which went to the root of the case. Harbhajan Singh, SP (PW-2), stated that villages Reond Kalan and Reond Khurd, are at a distance of 4/5 kms, from the place of occurrence, whereas, Didar Singh, HC (PW-3), stated that these villages are at a distance of 20/25 kms from the place of occurrence. Harbhajan Singh, SP, (PW-2), stated that the scooter was Bajaj Chetak, bearing No.PB-3A 6730, whereas, Didar Singh, HC (PW-3), stated that the scooter was LML Vespa, bearing No. 6710. Mukhtiar Singh, SI, (PW-5), stated that the seal was returned to him, on the next day, whereas PW-3 stated that he returned the seal on the third day. These discrepancies, if taken individually, may not be significant. When these discrepancies are considered collectively, then it can be said that either one of the prosecution witnesses was not present, at the time of the alleged search and seizure, or no recovery was effected, in the manner, deposed to by the prosecution witnesses. These Crl. Appeal No.20-SB of 1999 9 unexplained discrepancies, assume added importance, especially, in view of the fact, that the case of the prosecution is not corroborated through an independent source. The aforesaid discrepancies, cast a shadow of doubt, on the prosecution case. 16. 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. 17. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 23.12.1998, 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 29, 2008 (SHAM SUNDER) Vimal JUDGE