Crl.Appeal No.905-SB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA HIGH COURT AT CHANDIGARH. Crl.Appeal No.905-SB of 2002 Date of Decision:31.8.2010 Mohan Lal … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Ms.Sumanjit Kaur, Advocate, for the appellant. Mr.Arshvinder Singh, DAG, Punjab. JORA SINGH, J. Challenge by Mohan Lal appellant is to the judgment of conviction and order of sentence dated 18.12.2001 passed by Special Judge, Nawanshahr, arising out of FIR No. 63 dated 7.5.2000 under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act’), PS, Mukandpur. By the said judgment, he was convicted under Section 15 of the Act and sentenced to undergo RI for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for one year. Prosecution story, in brief, is that on 7.5.2000, police party headed by SI Amrik Singh in connection with patrol duty was going towards the side of Aur. When the party was at a distance of 200 yards near the drain, then heard sound arising out of reeds standing by the side of drain. On suspicion, police party by stopping the vehicle noticed one person concealing himself in the reeds. Four bags were also lying by the side of Crl.Appeal No.905-SB of 2002 2 that person. Investigating Officer suspected that there was some narcotic in the gunny bags. On suspicion, that person was apprehended. On enquiry, he disclosed his name as Mohan Lal and also told that there was poppy husk in the said gunny bags. Offer was given to the accused as to whether he wanted to be searched before a gazetted officer or a Magistrate. He reposed faith in the Investigating Officer. Investigating Officer made effort to contact DSP, Nawanshahr, and SHO, Nawanshahr, but DSP, Nawanshahr, was not available. Inspector Baldev Singh, SHO, Police Station, Sadar, Nawanshahr, came at the spot. Inspector Baldev Singh again gave offer to the accused as to whether he wanted to be searched before a gazetted officer or a Magistrate, but the accused again reiterated his earlier reply. Consent memo was prepared. Contents of the gunny bags were emptied on a polythene paper and were mixed properly. 250 grams was separated to serve as sample and the remaining poppy husk was put in the said four gunny bags. Sample and the remaining poppy husk were separately sealed by Inspector Baldev Singh with seal bearing impression `BS’. Seal after its use was retained by Baldev Singh, SHO. Case property was taken into police possession vide separate memo attested by the witnesses. Ruqa was sent to the concerned police station, on the basis of which, formal FIR was recorded. Rough site with correct marginal notes was prepared. Statements of the witnesses were recorded. On return to the police station, case property along with accused was produced before SHO Manmohan Kumar, who after verifying the facts of the case from the accused and witnesses had also affixed his own seal with seal bearing impression `MK’ on all the sealed parcels. Case property was handed over to ASI Amrik Singh, who had deposited the same with the Incharge of Malkhana. Sample parcel was Crl.Appeal No.905-SB of 2002 3 sent to the office of Chemical Examiner and as per report of the Chemical Examiner, contents of the sample parcel were found to be poppy husk. After completion of investigation, challan was presented in the Court. Accused was charged under Section 15 of the Act, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined PW1 HC Surinder Kumar, who tendered his affidavit (Ex.PA). PW2 Constable Jaswinder Singh tendered his affidavit (Ex.PB). PW3 MHC Bhajan Lal had identified signatures of Sohan Lal, SI/SHO, on the report under Section 173 Cr.P.C. PW4 HC Jarnail Singh is one of the recovery witnesses. He was with the party headed by SI Amrik Singh and stated that when the party was present 200 yards short of culvert, then noticed some movement from the reeds. On suspicion, after checking reeds, four gunny bags were found lying there. Accused was found present near the gunny bags. On enquiry, accused disclosed his name as Mohan Lal. Investigating Officer suspected some narcotic in the gunny bags. Offer was given to the accused as to whether he wanted to be searched before a gazetted officer or a Magistrate, then accused replied that poppy husk was in the bags and he did not want to strengthen the prosecution story by summoning a gazetted officer or a Magistrate to the spot for search of the bags, and he reposed faith in the Investigating Officer. Investigating Officer made effort to contact DSP, Nawanshahr, and SHO, Nawanshahr. DSP, Nawanshahr, was not available. SHO Baldev Singh came at the spot. In the presence of SHO Baldev Singh, on search of gunny bags, same were found to be containing poppy husk. Crl.Appeal No.905-SB of 2002 4 Contents of gunny bags were emptied on a tarpaulin and after mixing the contents, 250 grams was separated to serve as sample and the remaining poppy husk was transferred into same gunny bags. Sample and remaining poppy husk were separately sealed with the seal bearing impression `BS’. Seal after its use was retained by the SHO. Seal impression of the seal used was also prepared separately. Case property was taken into police possession vide separate memo attested by him. PW5 SI Amrik Singh is the Investigating Officer. PW6 Inspector Baldev Singh was serving as SHO at the relevant time. He has also supported the version of Investigating Officer. PW7 Manmohan Kumar, now DSP, stated that on 7.6.2000, he was SHO, Police Station City, Nawanshahr. SI Amrik Singh had produced before him case property along with accused. After verifying the facts of the case from the accused and the witnesses, he had affixed his own seal with seal bearing impression `MK’ on all the sealed parcels duly sealed with seal impression `BS’. Case property was handed over to the Investigating Officer for depositing the same with the Incharge of Malkhana. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. After hearing learned Public Prosecutor for the State, learned defence counsel for the appellant and from the perusal of evidence on file, appellant was convicted and sentenced as stated aforesaid. Defence version of the appellant was that he was brought from his village on 6.5.2000 at 7.00 PM. Sarpanch of the village moved an application to the Chief Minister, Punjab, regarding false implication. Crl.Appeal No.905-SB of 2002 5 I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on the file. Learned defence counsel for the appellant argued that independent witnesses were available but no one was joined without any reason. According to story, recovery was on 7.5.2000. Sample and remaining poppy husk were sealed by the Investigating Officer with the seal of SHO Baldev Singh bearing impression `BS’, but seal impression was not prepared separately. On return to the police station, case property along with the appellant was produced before SHO Manmohan Kumar. He had affixed his own seal bearing impression `MK’ on all the sealed parcels. That means, there were two seals, one of Baldev Singh and second of Manmohan Kumar, bearing seal impressions `BS’ and `MK’. Ex.PA is the affidavit of HC Surinder Kumar and as per this affieavit, case property was deposited with him on 7.5.2000 by SI Amrik Singh and on 17.5.2000, sample parcel was handed over to Constable Jaswinder Singh for depositing the same in the office of Chemical Examiner. In his statement under Section 161 Cr.P.C., he stated that sample parcel was handed over to Constable Jaswinder Singh on 17.5.2000 for depositing the same in the laboratory. Constable Jaswinder Singh tendered his affidavit (Ex.PB) and stated that sample parcel was handed over to him on 17.5.2000 and on the same day, sample parcel was deposited in the laboratory. Statement of Constable Jaswinder Singh was recorded under Section 161 Cr.P.C. and as per statement, sample parcel was handed over to him on 17.5.2000. So, from the affidavits (Ex.PA and Ex.PB), after recovery, case property was deposited with the Incharge of Malkhana on 7.5.2000 and on 17.5.2000, Crl.Appeal No.905-SB of 2002 6 sample parcel was handed over to Constable Jaswinder Singh for depositing in the laboratory and on the same day, sample parcel was deposited in the laboratory. Report of the laboratory is Ex.PJ and forwarding letter is Ex.PK. According to forwarding letter (Ex.PK), docket was got prepared from the office of SSP on 9.5.2000 and report (Ex.PJ) of the laboratory shows that sample parcel was received in the office on 26.6.2000. When sample parcel was handed over to Constable Jaswinder Singh on 17.5.2000, then how sample parcel was received in the office of Chemical Examiner on 9.5.2000 or 26.6.2000. Statement of Manmohan Kumar, SHO, was also recorded under Section 161 Cr.P.C. but in the statement, no reference of seal impressions. When seal impression of seal of Baldev Singh was not prepared at the spot and of Manmohan Singh, SHO, in the police station, then no explanation how seal impressions of the seals used were deposited with the Incharge of Malkhana and how the report of laboratory is to the effect that seals were found intact and tallying with the seal impressions. Inspector Baldev Singh, SI Amrik Singh, Investigating Officer, and SHO Manmohan Kumar were posted in the same police station and remained together in the same police station till the deposit of sample parcel in the office of Chemical Examiner. No explanation regarding delay of 10 days in depositing the same in the office of Chemical Examiner. So, possibility of tampering with the case property cannot be ruled out. Learned State counsel argued that recovery was on 7.5.2000. Sample parcel and remaining poppy husk in the bags were sealed separately with the seal of SHO Baldev Singh bearing impression `BS’, but due to mistake in the ruqa, Investigating Officer failed to mention that seal impression of seal used was prepared separately. On return to the police Crl.Appeal No.905-SB of 2002 7 station, case property along with accused was produced before SHO Manmohan Kumar, who after verifying the facts of the case had affixed his own seal bearing impression `MK' on all the sealed parcels sealed with seal bearing impression `BS’, but due to clerical mistake in the statement under Section 161 Cr.P.C., Manmohan Kumar failed to state that seal impression of the seal used was also prepared. Before recovery, police party had no enmity with the appellant. So, there was no question of false implication. According to story, police party headed by SI Amrik Singh had apprehended the appellant at about 11.00 AM on 7.5.2000. Four bags were also found lying by the side of the appellant. Investigating Officer suspected that there was some narcotic substance in the bags and bags were to be searched. Then offer was given to the appellant as to whether he wanted to be searched before a gazetted officer or a Magistrate. SHO Baldev Singh came at the spot and in his presence, 250 grams poppy husk was separated to serve as sample. Sample and the remaining poppy husk in the gunny bags were sealed separately with seal bearing impression `BS’. On return to the police station, case property was produced before SHO Manmohan Kumar. He had affixed his own seal on all the sealed parcels already duly sealed with seal bearing impression `BS’. But in the ruqa or statement of Manmohan Kumar under Section 161 Cr.P.C., no reference that seal impressions of both the seals used were prepared separately. Allegation of the appellant was that he was brought from his house on 6.5.2000. Sarpanch of the Village had sent complaint to the Chief Minister, Punjab. Case was false. Appellant is to be presumed innocent unless guilt is proved. Prosecution was to explain as to whether recovery was as per story or not. Crl.Appeal No.905-SB of 2002 8 HC Jarnail Singh is one of the recovery witnesses and in examination-in-chief stated that case property was sealed with the seal of Baldev Singh. Seal impression of the seal used was also prepared separately but this fact is not correct one. Statement of HC Jarnail Singh under Section 161 Cr.P.C. is on the file but in the statement, there is not a word that after the case property was sealed with the seal of Baldev Singh bearing impression `BS’, then seal impression of the seal used was also prepared. Ex.PE is the ruqa and in the ruqa also, no reference of seal impression. Baldev Singh, SHO, came at the spot as per request of Investigating Officer. Statement of Baldev Singh was also recorded under Section 161 Cr.P.C. and the same is Ex.DA. Baldev Singh when appeared in Court as PW6, then confronted with his statement (Ex.DA). Baldev Singh admitted while appearing as PW6 that no reference of seal impression in the statement (Ex.DA). In cross-examination, Baldev Singh stated that sample seal was prepared on a cloth and on a blank unprinted paper. On return to the police station, Investigating Officer had produced the appellant along with case property before Manmohan Kumar, SHO. Manmohan Kumar, SHO, had affixed his own seal bearing impression `MK, on all the sealed parcels, sealed with seal bearing impression `BS’. Seal impression of seal used was also prepared separately, but statement of Manmohan Kumar is also not correct one. Statement of Manmohan Kumar under Section 161 Cr.P.C. (Ex.DA) is on the file. He was confronted with his statement (Ex.DA), but in the statement, no reference of seal impression. As per evidence, recovery was effected in the presence of HC Jarnail Singh and Baldev Singh, SHO, and if seal Crl.Appeal No.905-SB of 2002 9 impression of the seal used was prepared separately, then in the statements of HC Jarnail Singh under Section 161 Cr.P.C. and of Baldev Singh, there should have been a reference of seal impression. After recovery, case property was taken into police possession vide separate memo attested by the witnesses, then ruqa was sent to the concerned police station. But in the ruqa also, there is not a word that seal impression of the seal used was also prepared separately. But one thing is clear that seal after its use was kept by Baldev Singh, SHO. Seal of Manmohan Kumar, SHO, was also retained by him. But SI Amrik Singh, Investigating Officer, Baldev Singh, SHO, and Manmohan Kumar, SHO, remained posted in the same police station till the sample parcel was deposited in the laboratory. After recovery, case property was not produced before the Ilaqa Magistrate. Ex.PA is the affidavit of HC Surinder Kumar and as per this affidavit, SI Amrik Singh had deposited the case property on 7.5.2000 and on 17.5.2000, sample parcel was handed over to Constable Jaswinder Singh for depositing in the laboratory. Ex.PB is the affidavit of Constable Jaswinder Singh and according to this affidavit, sample parcel was handed over to him on 17.5.2000 and on the same day, he had deposited the sample parcel in the laboratory. Receipt obtained was handed over to the MHC. According to affidavits (Ex.PA and Ex.PB), seal impressions of seals used were also deposited by the Investigating Officer with the Incharge of Malkhana, but when seal impressions of the seals used were not prepared, then question is how seal impressions were deposited with the Incharge of Malkhana or the laboratory. Prosecution can argue that due to mistake, Investigating Officer failed to mention in the ruqa that seal impression of the seal used was also Crl.Appeal No.905-SB of 2002 10 prepared separately, but this argument of prosecution is not correct one because statements of HC Jarnail Singh, Baldev Singh, SHO, and Manmohan Kumar, SHO, were recorded separately under Section 161 Cr.P.C., but in the statements, no reference of the seal impressions being prepared separately. As per ruqa also, seal impressions of seals used were not prepared. Then nothing to presume that due to mistake in one document, Investigating Officer failed to mention about preparation of seal impressions. Sample parcel was handed over to Constable Jaswinder Singh on 17.5.2000 for depositing in the laboratory and on the same day, he had deposited the same in the laboratory. Ex.PK is forwarding letter but as per Ex.PK, date of forwarding is 9.5.2000. Ex.PJ is the report of laboratory dated 26.6.2000. Ex.PJ is not clear on which date sample parcel was received in the laboratory and what were the seals on the sealed parcel. Report is to the effect that seals on the sample parcel were intact agreed with the sample seal. Statement of MHC under Section 161 Cr.P.C. is also on the file, but no reference of sample seal. When sample seal was not prepared on the spot in view of the statements of recovery witnesses, namely, HC Jarnail Singh, Inspector Baldev Singh and Investigating Officer SI Amrik Singh, then affidavit (Ex.PA) is not correct one, because as per affidavit (Ex.PA), seal impression of seal used was also deposited. Statement of Constable Jaswinder Singh under Section 161 Cr.P.C. is also on the file and as per statement, sample parcel was handed over to him on 17.5.2000. Statement is silent that seal impression was also handed over to Constable Jaswinder Singh but in the affidavit (Ex.PB) of Crl.Appeal No.905-SB of 2002 11 Constable Jaswinder Singh, deponent stated that alongwith sample parcel, seal impression was also handed over to him by the MHC. Sample parcel alongwith seal impression was deposited in the laboratory. That means, affidavit (Ex.PB) of Constable Jaswinder Singh is also not correct one. As discussed earlier, sample parcel was handed over to Constable Jaswinder Singh on 17.5.2000 but as per forwarding letter (Ex.PK), sample parcel was sent to the laboratory on 9.5.2000. Report of laboratory (Ex.PJ) is silent about the date when sample parcel was received in the laboratory. Investigating Officer and the recovery witnesses remained posted in the same police station till the deposit of sample parcel in the laboratory. Evidence is doubtful how seal impressions of the seals used were deposited with the Incharge of Malkhana and laboratory, when as per statements under Section 161 Cr.P.C. and ruqa, seal impressions of the seals used were not prepared while sealing the case property. The only conclusion which could be drawn is that link evidence is not complete. Possibility of tampering with the case property cannot be ruled out when there is a delay of 10 days in depositing the sample parcel in the laboratory. Next submission of learned defence counsel for the appellant was that independent witnesses were available but no effort to join anyone. After going through the evidence on the file, I am of the opinion that submission of learned counsel for the appellant seems to be reasonable one. No doubt, police party headed by SI Amrik Singh was on patrol duty and apprehended the appellant on the spot with four gunny bags. Investigating Officer admitted that 10/12 persons had passed by the side of the party but no one was joined. When independent witnesses were available, then effort should have been made to join them and if any one had showed his inability Crl.Appeal No.905-SB of 2002 12 to join the party or refused to join, then Investigating Officer was required to make a note in the case diary that independent witnesses were available. An effort was made to join them but they were not ready to join the party. When no note in the case diary, then statement of Investigating Officer that an effort was made to join the independent witness is not correct one. After the appellant was apprehended, then offer was given to him as to whether he wanted to be searched before a gazetted officer or a Magistrate. Ex.PC is the offer signed by HC Jarnail Singh. When offer was given to the appellant as to whether he wanted to be searched before a gazetted officer or a Magistrate, then reply of the appellant was that he did not want to be searched before a gazetted officer or a Magistrate, but despite that, Investigating Officer had contacted DSP, Nawanshahr, and SHO, Nawanshahr. DSP, Nawanshahr, was not available. SHO Baldev Singh came at the spot as per request of Investigating Officer. Evidence is to the effect that Baldev Singh had also given offer to the appellant as to whether he wanted to be searched before him or a Magistrate, but no memo on the file. Offer can be oral and if Baldev Singh was present at the spot, then he should have signed recovery memo. Consent memo (Ex.PC) and recovery memo (Ex.PD) seem to be attested by SHO Baldev Singh. That means, above said documents were not prepared in his presence. When Baldev Singh came at the spot, then Ex.PC and Ex.PD were brought to his notice. After that, he had attested both the documents. Baldev Singh when appeared as PW6 then stated that on 7.5.2000, he was SHO, PS, Sadar, Nawanshahr, but evidence shows that after recovery, case property along with appellant was produced before Manmohan Kumar, SHO, PS, city, Nawanshahr. Police party headed by SI Amrik Singh was from PP Aur. PP Crl.Appeal No.905-SB of 2002 13 Aur falls within the jurisdiction of PS City, Nawanshahr. When appellant had reposed faith in the Investigating Officer, then question is for what purpose, Investigating Officer had contacted DSP, Nawanshahr, and SHO, PS, Sadar, Nawanshahr. Investigating Officer in examination-in-chief stated that after offer was given to the appellant as to whether he wanted to be searched before a gazetted officer or a Magistrate, then he tried to contact DSP of the area. Matter was also reported to the SHO on walky talky set. Then within 30-35 minutes, SHO Baldev Singh came at the spot. No explanation was put forward as to why an effort was made to contact DSP of the area and SHO, PS, Sadar, Nawanshahr, when Police Post Aur was within the jurisdiction of PS, City, Nawanshahr. Something could be said if SHO, PS,City, Nawanshahr, would have reached at the spot. No allegation of the Investigating Officer that SHO, PS, Sadar, Nawanshahr, was requested to reach at the spot. Baldev Singh as PW6 stated that on the date of recovery, he was SHO, PS, Sadar, Nawanshahr, and on receipt of wireless message from the Investigating Officer, he had gone to the spot. Then made enquiry from the appellant as to what was in the gunny bags. Then reply of the appellant was that poppy husk was in the gunny bags. Then offer was given to the appellant as to whether he wanted to be searched before a gazetted officer or a Magistrate, but as discussed earlier, no memo regarding offer under Section 50 of the Act on the file. So, presence of SHO Baldev Singh at the spot seems to be doubtful and in case he was present at the spot, as per wireless message, then consent memo (Ex.PC) and recovery memo (Ex.PD) should have been signed by him. Ex.PC and Ex.PD rather show that the same were attested by Inspector Baldev Singh and not signed as one of the marginal witnesses. Crl.Appeal No.905-SB of 2002 14 Lastly, learned defence counsel argued that only one sample was drawn weighing 250 grams, secondly, FSL form was not prepared at the spot and there was non-compliance of Section 52 of the Act. No doubt, there are instructions from the Narcotic Bureau that two samples should have been drawn but under the NDPS Act, only sample was to be drawn. Instructions of Narcotic Bureau are not mandatory but only directory. After recovery, seal impressions of the seals used were prepared but this fact is not clear in view of the statements under Section 161 Cr.P.C. and ruqa. No PW stated that FSL form was also prepared at the