Crl. Appeal No.86-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.86-SB of 1999 Date of Decision : April 29, 2008 Dhani Ram S/o Mohan Ram, ....Appellant R/o Garachon Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. G.S.Punia, Advocate, 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, Sangrur, vide which it convicted the accused/appellant Dhani Ram, for the offence punishable under Section 18 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 six months, for having been found in possession of 500 grams opium, now falling within the purview of non- commercial quantity, without any permit or licence. 2. The facts, in brief, are that on 4.12.1997, a police party, headed by Ajit Singh, ASI, apprehended Dhani Ram, accused, on suspicion, in the area of village Rampura. At that time, the accused was carrying a jhola, in his right hand. The search of the jhola, being carried by the accused, in the presence of Jagjit Singh, DSP, who was called to the spot, by sending a wireless message, Crl. Appeal No.86-SB of 1999 2 in accordance with the provisions of law, was conducted, which resulted into the recovery of 500 grams opium. Two samples of 10 grams each, were separated therefrom, and the remaining opium, was put in a separate container. The sample, and the remaining opium, were converted into parcels, duly sealed with the seals, bearing impressions 'AS' and 'JS', and taken into possession, vide a separate recovery memo. 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 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 18 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 Jagjit Singh, DSP (PW-1), Ajit Singh, ASI (PW-2), Jarnail Singh, Constable, (PW-3), Harjinder Singh, SI/SHO (PW-4), Baljit Singh, HC (PW-5), and Karamjit Singh, HC (PW-6). 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. It was stated by him, that he was picked up from his house, in the presence of Dhanna Singh, Sarpanch, and his wife Surekha Rani. He further stated that, thereafter, this false case was foisted upon him. He also examined Surekha Rani (DW-1), Ajaib Singh (DW-2), Jasbir Singh, Constable (DW-2) (in fact DW-3), and Dhan Singh, (DW-3) (in fact DW-4). Thereafter, he closed his defence evidence. 6. After hearing the Addl. Public Prosecutor for the State, the Crl. Appeal No.86-SB of 1999 3 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 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 parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, contended that though the alleged recovery was effected, just near the pucca road, at about 2.00 PM, yet no independent witness was joined, despite availability. The Counsel for the appellant further contended that even no effort was made, to join an independent witness. He further contended that, on account of this reason, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ajit Singh, ASI, (PW-2), during the course of his cross-examination stated that the people and vehicles passed by them, but none met them at the spot. He further stated that Bhawanigarh might have population of 5/6 lacs. He further stated that if one starts from P.S.Bhawanigarh for Sangrur, truck Union and Old Bus-Stand Bhawanigarh, fall on the way. He further stated that a large number of persons remain present at these two points. He further stated that he did not ask anybody from these points, to join the police party. It means that, no effort was even made to join an independent witness, despite availability. 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 apply to the extent, the same are not inconsistent with the provisions of the Act, it was imperative, on Crl. Appeal No.86-SB of 1999 4 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 prosecution story. In the instant case, the evidence of the prosecution witnesses does not inspire confidence, in the mind Crl. Appeal No.86-SB of 1999 5 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. 10. It was next contended by the Counsel for the appellant that though the alleged recovery, in this case, was effected on 4.12.1997, yet, the sample was sent to the office of the Chemical Examiner, on 16.12.1997. He further contended that the delay of 12 days, in sending the sample, to the office of the Chemical Examiner, was not explained, by the prosecution witnesses, as a result whereof, it could not be safely held that the sample remained untampered with, till it reached the office of the Chemical Examiner, especially when the seal after use was handed over to Baljit Singh, HC, a junior official, who returned the same before the sample was actually sent to the office of the Chemical Examiner. The submission of the Counsel for the appellant, in this regard, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 12 days, in sending the Crl. Appeal No.86-SB of 1999 6 sample to 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 12 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 (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 Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, 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. 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. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 12 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 submission of the Counsel for the appellant, in this regard, being correct, is accepted. 11. It was next contended by the Counsel for the appellant, that the Crl. Appeal No.86-SB of 1999 7 sample impression of the seal, was not sent to the office of the Chemical Examiner. Jarnail Singh, Constable, in his affidavit Ex.PF, in para No.4 stated that as per the instructions of Karamjit Singh, MHC, after getting issued the docket from the office of the SSP, Sangrur, he reached the office of the Chemical Examiner, on 16.12.1997, and deposited the sample parcel, in intact condition there. He did not state that the sample impression of the seal was handed over to him by the MHC, and he also deposited the same, in the office of the Chemical Examiner. Since, Karamjit Singh, MHC, did not hand over the sample impression of the seal, to Jarnail Singh, Constable, the question of deposit of the same, in the office of the Chemical Examiner, did not at all arise. It, therefore, could be said that there was no material, with the Chemical Examiner, to come to the conclusion, that the seals on the parcel, were the same as were affixed by the Investigating Officer, immediately after the seizure. However, the Chemical Examiner, recorded a certificate that the seals on the sample, agreed with the specimen seal sent. It is not known, as to from which material, it recorded this certificate. This part of the report, Ex.PH, of the Chemical Examiner is incorrect. 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. 12. It was next contended by the Counsel for the appellant that there was violation of the Provisions of Section 55 of the Act, as the case property and the sample were not produced before the Magistrate. The submission of the Counsel for the appellant, in this regard, appears to be correct. Section 55 of the Act, lays down that an Officer Incharge of Police Station shall take charge Crl. Appeal No.86-SB of 1999 8 of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act, within the local area of that Police Station, and which may be delivered to him, and shall allow any officer who may accompany such articles, to the Police Station, or who may be deputed for the purpose, to affix his seal to such articles, or to take samples of, and from them, and all samples, so taken, shall also be sealed with a seal of the officer-in-charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the sample are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Crl.) 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 violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, the Investigating Officer intentionally and Crl. Appeal No.86-SB of 1999 9 deliberately breached the provisions of Section 55. He could not say that since the provisions of Section 55 are directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provisions is an indicator towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision deliberately and intentionally must be viewed with suspicion. Legitimacy of the judicial procedure may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55 certainly caused prejudice to the accused, and cast a doubt on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof miscarriage of justice occasioned. 13. 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. Similar principle of law was laid down in Gurbax Singh's case (supra). 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 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, Crl. Appeal No.86-SB of 1999 10 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 to 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. 14. It was next contended by the Counsel for the appellant, that the evidence of the official witnesses, was not believable as both Ajit Singh, ASI (PW-2) and Jagjit Singh, DSP (PW-1), were having shady character. The submission of the Counsel for the appellant, appears to be correct. Jagjit Singh, DSP, (PW-1), during the course of his cross-examination, stated that he was in judicial custody, in a case under Section 307 IPC. It means that he was facing trial for a serious offence, of attempt to murder. Not only this, Ajit Singh, ASI (PW-2), during the course of his cross-examination, stated that, he was involved in a corruption case. He further stated that he did not know, who was the complainant in that case, against him. He further stated that no corruption case was pending in the Court, against him. The evidence of a Police Officer, who was booked in a corruption case, could not be said to be of a sterling character, upon which reliance can be placed, to bring home the guilt to the accused in a case under Section 18 of the Act, for which minimum stringent punishment, is provided. The evidence of both the aforesaid witnesses, on account of the reasons, referred to above, being not reliable, the trial Court, was wrong, in Crl. Appeal No.86-SB of 1999 11 acting upon the same, to bring home the guilt to the accused. 15. 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. 16. 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 , 2008 (SHAM SUNDER) Vimal JUDGE