Crl. Appeal No.822-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.822-SB of 1998 Date of Decision : March 27, 2008 Gursewak Singh S/o Bant Singh, ....Appellant R/o Maur Charat Singh Wala., District Bathinda. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. A.P.S.Deol, 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 9.9.1998, and the order of sentence of the even date, rendered by the Judge, Special Court (2nd Addl. Sessions Judge), Mansa, vide which it convicted the accused/appellant Gursewak 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 one year, for having been found in possession of 12 Kgs. 100 grams poppy-husk, now falling within the ambit of non-commercial quantity, without any permit or licence. 2. The facts, in brief are that on 3.7.1996, Gurbachan Singh, ASI, alongwith other police officials, was on patrol duty, nakabandi, and general checking, in a private jeep, and when the police party was present at the canal minor bridge, in the area of village Behniwal, at about 2.30 PM, one red Crl. Appeal No.822-SB of 1998 2 coloured Maruti Car, bearing registration No.DBC-4986 passed that way. A signal was given to the driver of the car to stop the same, but he instead of stopping the same, tried to run away, but was apprehended. He disclosed his name as Gursewak Singh son of Banta Singh resident of Maur Charat Singhwala. In the meanwhile, one Darshan Lal son of Kesho Ram, also passed that way, and he was joined with the police party. One bag was found in the car. The search of the bag, was conducted, in accordance with the provisions of law, in the presence of Iqbal Singh, DSP, who was called to the spot, and reached there, which resulted into the recovery of 12 kgs. 100 grams of poppy husk. A sample of 100 grams 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 'BS', and taken into possession. Personal search of the accused was also conducted. 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 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 Baldev Singh, Inspector (PW-1), Shamsher Singh, Constable (PW-2), Bagga Singh, HC (PW-3), and Gurbachan Singh, ASI (PW-4). 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, Crl. Appeal No.822-SB of 1998 3 examined Darshan Lal S/o Kesho Ram as (DW-1), and thereafter, 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 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 on 3.7.1996, yet, the sample was sent to the office of the Chemical Examiner, on 18.7.1996, though the seal remained with the Police officials. He further contended that no explanation was furnished by the prosecution witnesses, as to why a delay of 15 days was caused, in sending the sample, and whether the sample remained untampered with, until it reached the office of the Chemical Examiner. He further contended that the case of the prosecution became doubtful, on account of this reason. The submission of the Counsel for the appellant, appears to be correct. No explanation, whatsoever, has been furnished, by both the prosecution witnesses, with regard to the delay of 15 days, in sending the 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 15 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 Crl. Appeal No.822-SB of 1998 4 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 15 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. 10. It was next submitted by the Counsel for the appellant, that the sample impression of the seal, was not deposited with the Chemical Examiner. He further submitted that Ex.PC, affidavit of Shamsher Singh, Constable, does not speak of deposit of sample impression of the seal, in the office of the Chemical Examiner. Shamsher Singh, Constable, in para No.3 of his affidavit, stated that after getting the docket issued from the office of the S.S.P., he deposited the sample parcel of this case, in the office of the Chemical Examiner, and after deposit of the same, handed over the receipt to the MHC. Crl. Appeal No.822-SB of 1998 5 It means that the sample impression of the seal, was never handed over to him, and, as such, the question of deposit thereof, in the office of the Chemical Examiner, did not at all arise. No doubt, in Ex.PB, report of the Chemical Examiner, the rubber stamp was affixed, to the effect, that the seals on the sample parcel, tallied with the specimen seal sent. It is not known, as to how the Chemical Examiner, came to this conclusion, when the sample seal, as per the affidavit of Shamsher Singh, Constable, was not deposited with him. This part of the report of the Chemical Examiner, 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. 11. The other limb of the argument of the Counsel for the appellant, was to the effect that the seal remained with the junior police official throughout, until the sample was allegedly sent to the office of the Chemical Examiner, and, as such, the possibility of tampering with the seals, and changing the contents of the sample parcel, could not be ruled out. The submission of the Counsel for the appellant, in this regard, also appears to be correct. The seal after use was handed over to Bagga Singh, HC (PW-3), a junior official, by Gurbachan Singh, ASI, the Investigating Officer, whereas, Baldev Singh, Inspector, who was the SHO of the Police Station, at the relevant time, before whom the case property was allegedly produced, after affixing his own seal, retained the same with him. It means that the case property, and the seal, remained under the overall control of the Police officials, until the sample was sent to the office of the Chemical Examiner. As stated above, other Crl. Appeal No.822-SB of 1998 6 independent evidence produced by the prosecution, to prove the completion of link evidence, has not only been found to deficient, but unreliable. In Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1) RCR (Criminal) 406 (S.C.), the packets of contraband and the seal, remained in the custody of the same person. In these circumstances, it was held that the possibility of the seized substance, being tampered with, could not be ruled out. In State of Punjab Vs. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, the seal after use was handed over to a subordinate police official. In these circumstances, it was held by the Division Bench of this Court, in the aforesaid case, that it created a doubt in the mind of the Court, regarding tampering with the case property, and the sample parcel. In the instant case, the prosecution miserably failed to prove that none tampered with the sample parcel, until it reached the office of the Chemical Examiner, on account of the seal, having remained with the same person, under whose control, the case property and the sample parcel was. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. It, therefore, can be held that the prosecution failed to complete the link evidence, as a result whereof, its case is bound to be dwindle down. 12. It was further submitted by the Counsel for the appellant, that the provisions of Section 57 of the Act, were not intentionally 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 Crl. Appeal No.822-SB of 1998 7 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 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 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. 13. 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. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 9.9.1998, are set aside. The appellant shall stand acquitted of the charge, framed against him. If Crl. Appeal No.822-SB of 1998 8 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. March 27, 2008 (SHAM SUNDER) Vimal JUDGE