Crl. Appeal No.297-SB of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.297-SB of 1993 Date of Decision : May 23, 2008 Kanwar Singh S/o Har Lal, ....Appellant R/o Gageru, P.S.Kandhla, (U.P.) Versus The State of Haryana ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. S.K.Sandir, Advocate, Amicus Curiae, for the appellant. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 5.8.1993, and the order of sentence dated 7.8.1993, rendered by the Court of Addl. Sessions Judge, Sonepat, vide which it convicted the accused/appellant, for the offence, punishable under Section 20 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 two years, for having been found in possession of 1 Kg. charas, without any permit or licence. 2. The facts, in brief, are that on 12.1.1991, Sham Singh, ASI, of CIA Crl. Appeal No.297-SB of 1993 2 Staff, Gohana, alongwith other police officials, was present at octroi post, on Gohana-Panipat road, in the area of Gohana, in connection with excise checking and patrol duty, when one Mahipal, resident of Patiala Chowk, Gohana, met him, who was joined with the police party. Thereafter, a secret information was received that Kanwar Singh, who belonged to U.P. was standing at Khanpur T- point in the area of Panipat, with a suit case, containing charas, and in case, a raid was conducted, charas could be recovered from him. A raiding party was constituted, by Sham Singh, ASI, including the aforesaid police officials, and Mahipal, independent witness. Thereafter, the police party went to Khanpur T- point, where the accused was present, was over-powered, on suspicion. He was having a suit case, in hand hand, at that time. The search of the suit case, in accordance with the provisions of law, was conducted, as a result whereof, 1 Kg. charas, was recovered therefrom. 100 grams charas, was taken out, as a sample, and the remaining charas was put into a separate container. The sample, and the container, containing the remaining charas, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was placed. 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 20 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 Mahipal, independent witness (PW-1), who did not support the case of the prosecution, Kali Ram, ASI (PW-2), Arjun Dass, SI (PW-3), Lahri Singh, HC (PW-4), Matadin, HC (PW-5), and Sham Singh, SI (PW-6), the Investigating Officer. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. Crl. Appeal No.297-SB of 1993 3 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 called from his room, in which he was a tenant, under the landlordship of Som Nath. It was further stated by him, that Som Nath wanted the tenanted room vacated from him, and on account of that reason, he was falsely involved in this case, by the police, at his instance. It was further stated by him, that the suit case, and other articles were brought from his house. It was further stated by him, that no charas was recovered, either from his house, or from him. He, however, did not produce any evidence, in his defence. 6. After hearing the 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/appellant, 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, submitted that the affidavit, Ex.PF of Partap Singh, Constable, was tendered into evidence, by the Public Prosecutor for the State, on 7.1.1993, yet he was not produced in the Court, on that date, or even later on, for his cross-examination, and, as such, the link evidence became incomplete. The affidavit aforesaid, without offering an opportunity to the accused, to cross-examine Partap Singh, Constable, could not be taken into consideration, as legally admissible evidence. The accused has a valuable and indefeasible right to cross-examine the witnesses. He must be afforded an opportunity to do so. It is a different matter, whether he avails of that opportunity or not. The prosecution cannot take up the plea, that when the Crl. Appeal No.297-SB of 1993 4 affidavit of the witness, was tendered into evidence, and he was not present, the accused could ask that he wanted to cross-examine him, and, thus, he could be produced. By not producing, the witness for cross-examination by the accused, he was deprived of his valuable and indefeasible right. In Gian Singh Vs. State of Punjab 2006(2) RCR (Criminal) 611, the affidavits of police Constables, were tendered into evidence, but they were not produced, in the Court for cross- examination. In these circumstances, it was held that the link evidence was missing, which was material infirmity, and, ultimately, the conviction was set aside. In Jai Singh Vs. State of Haryana, 1995 (3) RCR 627, the affidavits of the Police Constable and the HC were tendered into evidence, but both of them, were not kept present, in the Court for cross-examination. In these circumstances, it was held that the affidavits could not be read into evidence and, as such, the link evidence was incomplete and the case of the prosecution was bound to fail. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. Under these circumstances, the affidavit, Ex.PF, without offering the deponent thereof, for cross- examination to the accused, could not be read into evidence. As such, the link evidence, being incomplete, the appellant is liable to be acquitted. The trial Court, in my opinion, was wrong in holding that the link evidence was complete. 10. It was next submitted by the Counsel for the appellant, that according to Partap Singh, Constable, he was handed over the sample, of this case, on 15.1.1991, and on the same day, he deposited the same, in the Forensic Science Laboratory. On the other hand, the report of the Forensic Science Laboratory, has a different tale to tell. It is evident from Ex.PG, report of the Forensic Science Laboratory, that the sample parcel, was received, in the Laboratory , on 28.1.1991. Where the sample parcel remained from 15.1.1991 to 28.1.1991, has not been explained by the prosecution witnesses. The prosecution is required to Crl. Appeal No.297-SB of 1993 5 prove beyond a reasonable doubt, affirmatively, that right from the date of seizure, until the samples were deposited in the office of the Forensic Science Laboratory, none tampered with the same. If the prosecution fails to prove, this fact, then the link in the chain of its evidence, becomes incomplete. In the instant case, as stated above, the prosecution failed to prove, beyond a reasonable doubt, as to where the sample, from 15.1.1991 to 28.1.1991, remained. If, the sample was deposited by Partap Singh, Constable, on 15.1.1991, in the office of the Forensic Science Laboratory, in this case, then the sample, which was received in the Laboratory on 28.1.1991, could be said to be not relating to this case. Accordingly, the report, Ex.PG, also could be said to be not relating to this case, and no reliance thereon, could be placed. It was held in State of Rajasthan Vs. Daulat Ram 1980 SCC (Criminal) 683, that it is for the prosecution, to prove affirmatively, beyond a reasonable doubt, all the links starting from seizure, till the sample is deposited, in the office of the Chemical Examiner. If the prosecution fails to prove so, then link in the chain of the prosecution case, becomes incomplete. The submission of the Counsel for the appellant, to the effect, that the sample, and the case property, were tampered with, therefore, carries weight, and is accepted. 11. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected, on 12.1.1991, yet the sample parcel was received in the office of Forensic Science Laboratory, on 28.1.1991. He further contended that the delay of 16 days, in sending the sample, to the office of the Forensic Science Laboratory, was not explained, by the prosecution witnesses, as a result whereof, it could not be safely held, that the sample remained untampered with, until it reached the office of the Forensic Science Laboratory. 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 16 days, in sending the sample to the Crl. Appeal No.297-SB of 1993 6 office of the Forensic Science Laboratory. 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 Forensic Science Laboratory. Since, the sample was allegedly sent to the office of the Forensic Science Laboratory, after about 16 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 State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 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 acquitted. 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 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 16 days, in sending the sample to the office of the Forensic Science Laboratory, 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. 12. It was next submitted by the Counsel for the appellant, that Mahipal, Crl. Appeal No.297-SB of 1993 7 independent witness, though joined, at the time of search and seizure, yet when he appeared as PW-1, he did not support the case of the prosecution. He further submitted that this proved that no recovery was effected from the accused, but he was falsely implicated. He further submitted that had the recovery of charas was effected from the accused, in the presence of Mahipal, independent witness, there would have been no reason for him not to toe the line of the prosecution. The submission of the Counsel for the appellant, appears to be correct. The evidence of Mahipal clearly proved that no recovery was effected from the accused, but he was falsely implicated. Since, no recovery was effected from the accused, Mahipal told the truth. The other evidence produced by the prosecution has been held to be unreliable. The evidence of Mahipal, (PW-1), therefore, cast a cloud of doubt on the prosecution case. 13. In the instant case, 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. Section 55 of the Act, lays down that an Officer Incharge of 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. 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 Crl. Appeal No.297-SB of 1993 8 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 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 Crl. Appeal No.297-SB of 1993 9 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. 14. 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 the 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, 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 of 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. In view of the above discussion, it is held that the judgment of Crl. Appeal No.297-SB of 1993 10 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. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 5.8.1993, and the order of sentence dated 7.8.1993, 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. The judgment be complied with. May 23, 2008 (SHAM SUNDER) Vimal JUDGE