Criminal Appeal No. 849-SB of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 849-SB of 1999 Date of decision: January 15, 2008 Rupa Ram ... Appellant Versus The State of Haryana ... Respondent ... Present: Mr. Gorakh Nath, Advocate for the appellant. Mr. Ashok Kumar Jindal, AAG Haryana for the respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL ... HARBANS LAL, J Criminal Appeal No. 849-SB of 1999 -2- This appeal has been directed against the judgment dated 13.7.1999/order of sentence dated 16.7.1999 delivered by the Court of learned Additional Sessions Judge, Hisar, whereby he convicted and sentenced Rupa Ram accused to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- or in its default, to further undergo rigorous imprisonment for 3 years under Section15 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act') and acquitted his co-accused Surjit alias Sita Ram and Guddu of the charged offence. The facts, in brief, of the prosecution case are that on 29.2.1996, Mahinder Singh, SI/SHO, P.S.Ratia, among other Police officials, happened to be present at the Canal Bridge road in connection with patrolling. In the mean time, one tractor occupied by 3 persons, was spotted approaching from Bhuna side. On catching sight of the Police Party, the occupants of the tractor stopped their tractor and started running into the fields. The aforesaid Sub-Inspector, with the assistance of other police officials, gave a chase to the occupants of the tractor. One of them, namely, Rupa Ram was intercepted and the remaining two made good their escape taking advantage of the cover of the darkness. On search of the trolley, three bags were recovered. The above mentioned Sub-Inspector suspected that accused Rupa Ram was having some contraband in the tractor trolley. By serving notice, Ex. PC, Rupa Ram was called upon to tell whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. He expressed his faith in the Sub-Inspector vide his reply, Ex. PD. On search of the contents of the bags, the same were found to be poppy husk, out of which 200 grams was drawn from each bag to serve as a sample. The Criminal Appeal No. 849-SB of 1999 -3- remainder of each bag, when weighed, came to be 39 Kg. 800 grams. The sample and the remaining poppy husk were converted into separate parcels sealed with the seal 'MS' and were seized vide Recovery Memo,Ex. PE. Ruqa, Ex. PF was sent to the Police Station, where on its basis, formal FIR,Ex. PG was jotted down. The SI prepared the rough site-plan, Ex. PH showing the place of recovery, informed the higher authorities in relation to the arrest of Rupa Ram, recorded the statements of the witnesses and took the tractor into possession vide Recovery Memo, Ex. PL. On return to the Police Station, the Sub-Inspector deposited the case property with the MHC. On 6.5.1996, accused Surjit was arrested by the above mentioned Sub- Inspector. On 9.7.1997, accused Guddu was put under arrest by Roshan Lal, SI. On receipt of the Chemical Examiner's Report, Ex. PM and after completion of investigation, the charge sheet was filed in the Court for trial of the accused. On commitment, the accused Surjit alias Sita Ram, Guddu and Rupa Ram were charged under Section 15 of the Act, to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW-1 Raj Kumar Head Constable, PW-2 Naresh Kumar Constable, PW-3 Ravinder Kumar ASI, PW-4 Mahinder Singh SI and closed its evidence. On close of the prosecution evidence, when examined under Section 313 of the Code of Criminal Procedure,t he accused pleaded false implication. They did not lead any evidence in their defence. I have heard Mr. Gorakh Nath, counsel for the appellant as well as Mr. Ashok Kumar Jindal, Assistant Advocate General, Haryana. Criminal Appeal No. 849-SB of 1999 -4- To begin with, Mr. Gorakh Nath, counsel for the appellant argued that as would be apparent from the evidence on record, the sample was despatched to the Forensic Science Laboratory for its chemical analysis after 11 days qua which no cogent or satisfactory explanation has been furnished by the prosecution. He further puts that this delay assumes greater importance particularly when the seal remained with the police official. Such being the circumstances, the possibility of the contents of the sample being tampered with during the above mentioned period, cannot be ruled out. He sought to place abundant reliance on the case of Gian Singh v. State of Punjab, 2006 (2) Recent Criminal Reports (Criminal) 611. On the other hand, Mr. Ashok Kumar Jindal, Assistant Advocate General, Haryana, could not refute this contention in a successful manner. The recovery was effected on 29.2.1996. A careful delving into the contents of Ex.PM, the report of FSL would reveal that the sample was received in this Laboratory on 12.3.1996, obviously after 11 days. It is in the cross-examination of Ravinder Kumar ASI, PW-3, recovery witness that many people passed by the place of recovery during our stay at that place. It spells out that there was no dearth of independent witnesses. The Investigator Mahinder Singh, PW-4 has not apportioned any reason either in his statement or in the Ruqa for not joining any passer-by in the recovery proceedings. The seal, after use, was allegedly handed over to ASI Ravinder Kumar, PW-3. It implies that the seal remained with this police official. There would have been no difficulty for getting back the seal from him by the Investigator for the purpose of tampering with the contents of the sample. In re: Gian Singh (supra), 10 bags of poppy husk were Criminal Appeal No. 849-SB of 1999 -5- recovered. The sample was sent to the Chemical Examiner after 14 days. The seal remained with the Investigating Officer. This Court was disposed to hold that the possibility of seal being tampered with, substance being changed and the container/packet being re-sealed, cannot be ruled out. The conviction was set aside. In case Sukhdev Singh alias Sukha v. State of Punjab, 2006 (1) Recent Criminal Reports ( Criminal) 4, the seal was given to the Sub- Inspector of Police and not to the independent witness. The Division Bench of this Court was pleased to hold that the possibility of seal being tampered with, substance being changed and the container being re-sealed, cannot be ruled out. Reverting back to the facts of the instant case, as noted supra, the sample was despatched after 11 days when the seal remained with the police official. So, in view of the above observations, the possibility of the seal being tampered with, substance being changed and the bags being re- sealed, cannot be ruled out. Mahinder Singh (sic) has no where stated that the CFSL form was prepared at the spot or that Form No.29-M was filled up at the place of recovery. As per his deposition, the case property was deposited with the MHC in Malkhana. In re: Bhola Singh v. State of Punjab, 2005 (2) Recent Criminal Reports (Criminal) 520, this Court was pleased to observe that the CFSL form should be prepared at the spot and deposited in Malkhana. Where the seal remained with the police after use and the CFSL form was neither prepared at the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case. Filling up of such form Criminal Appeal No. 849-SB of 1999 -6- at the spot is a very valuable safeguard to ensure that the sealed sample is not tampered with till its analysis by the Forensic Science Laboratory. Coming to the facts of this case, the evidence of the Investigating Officer is absolutely cryptic about his having prepared such form and its deposit in the Malkhana. The seal herein, as noticed earlier, after use, was entrusted to Ravinder Kumar ASI, PW-3. So, there could be every possibility of the contents of the sample being tampered with before despatch of the sample parcel to the Forensic Science Laboratory for chemical analysis. It is in the cross-examination of the Investigator that Rupa Ram was arrested in a field in which crop was standing. It speaks volumes of the fact that Rupa Ram appellant was not arrested at the spot where the tractor- trolley was stopped. He has also admitted that in the Ruqa he has mentioned that two persons succeeded in escaping from the spot taking advantage of the darkness. If there was pitch dark, how it can be said with certainty that Rupa Ram accused is the same person, who had run away from the tractor- trolley taking undue advantage of the cover of darkness. Ravinder Kumar ASI, PW-3, in his cross-examination, regretted his inability to disclose the direction in which the accused Rupa Ram had run. He also gave an evasive reply about the person who was driving the tractor by stating that I do not know which of the accused was driving the tractor. He further deposed that I do not know from whose house the scales were brought by the driver. The Investigating Officer, in his cross-examination, has admitted that in the report under Section 173 of the Code of Criminal Procedure, at page 5, the date of arrest of Rupa Ram is mentioned as 29.2.1997 whereas in his chief examination, he went onto say that he was arrested on 29.2.1996. It is in his Criminal Appeal No. 849-SB of 1999 -7- further cross-examination that Sita Ram Head Constable had also partly investigated the case. As is borne out from the record, Sita Ram Head Constable has not been examined. According to the Investigator, all the accused had run in one direction whereas according to Ravinder Kumar ASI, PW-3, they had run in different directions. This discrepancy cast a cloak of suspicion over the presence of Revinder Kumar at the time of recovery. Because the appellant was arrested from the fields, it is very difficult to say that the prosecution has been able to establish his conscious possession over the poppy husk allegedly recovered from the trolley. Section 55 of the Act reads in the following terms :- “55. Police to take charge of articles seized and delivered.- An officer-in-charge of a police station shall take charge 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.” From a bare reading of the above language, it is implicit that it was obligatory upon the Investigator to have produced the case property Criminal Appeal No. 849-SB of 1999 -8- along with the sample before the S.H.O. of the concerned police station, who in turn, was to take charge of and keep the same in his safe custody pending the orders of the Magistrate and he was to affix his own seal on such articles. However, as ruled in T. Paul Kuki v. State of West Bengal ( 1993 ) Crimes 660-Calcutta (D.B), the provisions of this Section are merely directory in nature but inter-alia violation thereof cause prejudice to the accused. In the present case, the prosecution has not given any explanation for non-production of the above mentioned case property etc. before the S.H.O. of the concerned police station by the Investigating Officer. So, prejudice has been occasioned to the appellant. There is also nothing on the record to show that the case property was produced before the learned Ilaqa Magistrate when the accused-appellant was produced for remand. For the reasons recorded hereinbefore, this appeal succeeds and is accepted, setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charge. ( HARBANS LAL ) JUDGE January 15, 2008 RS