CRA No.54-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.54-SB of 2001 Date of decision : 19.11.2010 Netar Pal ...Appellant Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Ms. Sukhpreet Kaur, Advocate, for Mr. A S Kalra, Advocate, for the appellant. Mr. Kshitij Sharma, AAG, Haryana. JITENDRA CHAUHAN, J. (ORAL) 1. The appellant has come in appeal against the judgment and order dated 19/22.12.2000 (for short ‘impugned judgment’) passed by the Special Court, Karnal, (for short `trial Court') whereby he has been convicted for the offences punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default thereof, to further undergo rigorous imprisonment for a period of two and a half years. 2. The brief facts of the prosecution case, as emanating from the judgment of the learned trial Court, are that on 18.09.1998 at about CRA No.54-SB of 2001 -2- 4.40 p.m., SI Dilbag Singh along with H.C. Ram Sarup, C. Mohan Lal and C. Sat Pal, was on patrolling duty and excise checking near the FCI godown, Ram Nagar Kachhwa Road, Karnal. When they reached near Railway Crossing, the accused, who was having a khakhi colour bag in his hand, was seen coming from the city side. On seeing the Police party, the accused turned back. On suspicion, he was apprehended and interrogated whereupon he disclosed his identity. Suspecting some contraband in the bag, SI Dilbag Singh served a notice u/s 50 of the Act upon the accused asking him whether his search be effected in the presence of Gazetted Officer or Magistrate to which the accused opted for his search by the Investigating Officer himself. Thereafter, SI Dilbag Singh searched the bag and 500 grams of opium was recovered therefrom. Out of the total contraband recovered, 50 grams was separated as sample. The sample and the remainder were converted into different parcels, sealed with the seal of DS and taken into possession through memo Ex.PD. Seal after use was handed over to H.C. Ram Sarup and ruqa was to the Police Station for registration of the case. Thereafter, the accused along with case property was produced before SHO Bachan Singh, who verified the fact of recovery and put his seal BS on both the parcels. 3. On receipt of report from the FSL and completion of investigation, accused was challaned u/s 18 of the Act. 4. The accused was charge-sheeted for commission of offence u/s 18 of the Act to which he pleaded not guilty and claimed trial. 5. In order to substantiate its case against the accused, the prosecution examined as many as six witnesses. CRA No.54-SB of 2001 -3- PW1-Fateh Singh, was posted at Police Station, City Karnal and he prepared the report u/s 173 Cr.P.C which bears his signatures. PW2-Randhir Singh and PW3-Lakhwant Singh are formal witnesses. PW4-H.C. Ram Sarup, reiterated the version of the prosecution as recorded in the report u/s 173 Cr.P.C. He has further deposed that after apprehending the accused, SI Dilbag Singh, I.O., served notice, Ex.PC, u/s 50 of the Act, asking the accused whether his search be affected in the presence of some Gazetted Officer or Magistrate but vide acceptance memo Ex.PC/1, the accused opted to be searched by the I.O. himself. Thereafter, the bag in possession of the accused was searched and opium weighing 500 grams was recovered from the bag, out of which 50 grams of the contraband was separated and converted into a sample whereas the remainder was converted into a sealed parcel by affixing the seal ‘DS’. The seal, after use, was handed over to him. PW5-SI Dilbag Singh, Investigating Officer, also reiterated the prosecution story and further stated that the ruqa, Ex.PE, was sent by him to the Police Station on the basis of which, formal FIR, Ex.PE/1, was recorded. He also prepared site plan, Ex.PF and recorded statements of witnesses. On return to the Police Station, he produced the accused and the witnesses, along with the case property, before the SHO, who verified the fact of recovery and put his seal ‘BS’ on both the parcels. PW6-SI Bachan Singh, deposed that on 18.9.1998, the accused and the case property were produced before him by SI Dilbag Singh and after verifying the fact of recovery, he affixed his seal ‘BS’ on both the parcels and directed the I.O. to deposit the case property with the CRA No.54-SB of 2001 -4- MHC. 6. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing against him in the prosecution evidence and pleaded false implication. In his defence, he tendered in evidence arrest memo, Ex.DA, certified copy of statement of Ram Sarup, Ex.PB and copy of statement of SI Dilbag Singh, recorded in the case titled as ‘State Vs. Ajay Kumar’, Ex.DC. 7. After hearing learned counsel for both the parties, learned trial Court convicted and sentenced the accused for the offence and term, as noticed at the outset of this judgment. 8. Feeling aggrieved by his conviction, the appellant has preferred the present appeal which was admitted by this Court on 12.01.2001. 9. Learned counsel for the appellant has submitted that no independent witness was joined despite the fact that the recovery was effected from a public place. In this regard, she has argued that when the recovery is made from a public place and the same is admitted by the prosecution on facts, then it is imperative on the part of the prosecution to join some independent witness. 10. Learned counsel has further argued that a bare perusal of acceptance memo, Ex.PC/1, and recovery memo, Ex.PD, would show that the FIR number has been reflected thereon and the fact of reflection of FIR number on these memos clearly establishes that proceedings were not carried out at the spot and the case was framed by sitting in the Police Station itself. She has further submitted that similarly, even ruqa, Ex.PE, CRA No.54-SB of 2001 -5- bears the FIR number. 11. Learned counsel has further argued that there are material contradictions in the statements of HC Ram Sarup, PW4 and SI Dilbag Singh, PW5, regarding removal of the appellant from the spot to the Police Station. As per the statement of PW4, the accused was removed from the spot by a three-wheeler whereas as per the statement of PW5, the accused was taken to the Police Station on a motorcycle by HC Ram Sarup. Learned counsel, thus, submits that this material contradiction makes the case of the prosecution doubtful. 12. Learned counsel has further submitted that Form No.29 was not filled up at the spot and that the case property was not produced before the Magistrate, which are serious flaws in the prosecution case and go to establish that the appellant has been falsely implicated in the instant case. 13. On the other hand, learned counsel for the State has submitted that the case of the prosecution is fully proved by the statements of prosecution witnesses. The recovery was effected from the bag, which was in the possession of the appellant. The appellant was not previously known to the members of the raiding party, therefore, there was no occasion for the raiding party to falsely implicate him. 14. I have heard learned counsel for the parties and perused the record. 15. Admittedly, the recovery was effected from the appellant in a public place. However, it has specifically come in the statement of HC Ram Sarup, PW4, that some persons were asked to join as witnesses but they refused to do so. This goes to prove that despite the efforts made by CRA No.54-SB of 2001 -6- the raiding party, no independent witness could be joined, therefore, no adverse inference can be drawn on this account. 16. As per the case of the prosecution, after intercepting the appellant, the weighing materials were arranged which were brought by Inspector Mohan Lal, of the denomination of 50 gms., 100 gms. and 200 gms. each. The recovered contraband is opium weighing 500 gms., however, it has not been explained by the prosecution whether the material was separated/dismantled and weighment was done in parts. As otherwise, it would not be possible to weigh 500 gms. with the weighments of the denomination of 50 gms., 100 gms. and 200 gms. each, which comes to 350 grams only, in totality. Apart from this, SI Dilbag Singh, in his cross-examination, has stated that he himself weighed the opium with the weights of 50 gms., 100 gms., 200 gms and 500 gms. whereas according to Inspector Mohan Lal, weighments of the denomination of 50 gms., 100 gms. and 200 gms. each were brought by him. Thus, in my considered opinion, this is a material contradiction which affects the veracity of the prosecution case. 17. A perusal of ruqa, Ex.PE, memo of acceptance, Ex.PC/1 and memo of recovery, Ex.PD, reveals that FIR number stands mentioned therein, although these documents are usually prepared at the initial stage of the investigation without there being any FIR into being. In this situation, it is inconceivable as to how the FIR number was reflected on these memos. Apart from this, there is an unexplained delay of more than 10 days in sending the samples to the FSL coupled with the fact that Form No.29 was not filled up. This Court, in Malkiat Singh alias Kala V. State of Punjab, 2009(1) R.C.R. (Criminal) 353, has held as under:- CRA No.54-SB of 2001 -7- “11. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected on 03.07.1997, yet the samples were sent to the office of the Chemical Examiner on 08.07.1997 and, thus, the delay of 5 days, in sending the same to the office of the Chemical Examiner, remained unexplained and, as such the possibility of tampering with the same, until the same reached the Laboratory, could not be ruled out. No explanation, whatsoever, was furnished, as to why the samples were not sent to the office of the Chemical Examiner, for about 05 days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. 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 State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 20 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 CRA No.54-SB of 2001 -8- acquitted. 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 Forensic Science Laboratory. The other evidence, produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In the instant case, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 05 days, in sending the samples 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 same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted.” 18. Furthermore, this Court in Dayal Singh and another V. State of Punjab, 2007(2) R.C.R. (Criminal) 596, has held as under:- “30. There appears to be a major discrepancy in the substantive statement of SI Sarabjit Rai and the affidavit CRA No.54-SB of 2001 -9- (Exhibit PB) tendered by Sikander Singh Moharrir Head Constable wherein there is no reference regarding deposit of 100 bags of poppy husk. The conceded position before this Court is that the case property was not produced before the trial Court till conclusion of the trial despite several opportunities availed by the prosecution in this regard. No doubt the prosecution case cannot be thrown merely on this weakness as the samples drawn from each bag were in fact produced before the learned Illaqa Magistrate as is clear from the zimni order on the file, but one fact which certainly creates doubt in the mind of this Court is that the sample seal impression bearing the inscriptions (‘SR’ and ‘OJS’) of the Investigating Officer and the DSP respectively were not prepared at the spot and were subsequently pasted on form No.29. I have once again perused form No.29 (FSL form) very carefully, on which both the seal impressions were pasted. These impressions do not bear the signatures of either the Investigating Officer or the DSP. The date is also not mentioned. The columns of form No.29 (FSL form) in the beginning are typed, which indicates that this form was prepared subsequently and certainly not at the place of recovery. Non-filling up of the form at the time of effecting the alleged recovery and the same being not deposited in the malkhana has been taken as a serious flaw in the investigation as held by this Court in Bhola Singh v. State of Punjab, 2005(2) RCR (Crl.) 520. In my view, this CRA No.54-SB of 2001 -10- infirmity also dents the case of the prosecution to a great extent.” 19. In view of the above discussion, it is proved that the case of the prosecution is ridden with grave and material contradictions. 20. Resultantly, the present appeal is allowed and the impugned judgment of conviction, with the order of sentence, dated 19/22.12.2000 is hereby set aside. The appellant was admitted to bail by this Court. His bail bonds shall stand discharged. November 19, 2010 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter ? Yes/No