IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Crl. Appeal No.287-SB of 1995 Date of decision : 29-05-2008 Hardial Singh son of Tara Singh resident of Village Gandiwind Dhattal, Tehsil Tarn Taran, District Amritsar. .............Appellant State of Punjab ..............Respondent CORAM : HON'BLE MR. JUSTICE SHAM SUNDER Present : Mr. Vikram Chaudhary, Advocate for the appellant. Mr. Ranbir Singh Arya, A.A.G., Haryana for the respondent. Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 29.04.1995, rendered by the Court of Additional Sessions Judge, Amritsar, vide which it convicted the accused/appellant Hardial Singh and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1,00,000/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years, for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as `the Act’ only) for having been found in possession of 215 kilograms of poppy husk, without any permit or licence. Crl. Appeal No.287-SB of 1995 -2- 2. The facts, in brief, are that on 05-08-1989, Govinder Singh, ASI, along with other police officials, was present in Village Gandiwind in connection with patrol duty. The farm house of the accused was raided by the police party, after receiving the secret information, that he was selling poppy husk therein. The accused was found weighing the poppy husk and putting the same in the gunny bags at the time of raid. Govinder Singh, Investigating Officer asked the accused, as to whether, he wanted the search of the farm house, to be conducted, in the presence of a Gazetted Officer of Police or a Magistrate, as a result whereof, he opted that he wanted the search, to be conducted by him (ASI Govinder Singh). Four bags of poppy husk had already been filled in, and stitched, by the accused, before the raid and the fifth bag was still to be completely filled in, when he was apprehended. Each of the four bags was containing 45 kilograms of poppy husk and the fifth bag was containing 35 kilograms of poppy husk. A sample of 01 kilogram, from each of the bags, was taken out, and the remaining poppy husk, was put into the same bags. The samples and the bags were converted into parcels, duly sealed with the seal, bearing impression `GS’ and taken into possession, vide recovery memo exhibit PA, attested by the witnesses. Seal after use, was handed over to Gulbarg Singh, ASI. Ruqa exhibit `PC’ was sent to the Police Station, on the basis whereof, FIR Ex.PC/1 was recorded. Site plan of the place of recovery, was prepared. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge Crl. Appeal No.287-SB of 1995 -3- under Section 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Gulbarg Singh, ASI, PW-1, Govinder Singh, Sub Inspector, Investigating Officer, PW-2 and Makhan Singh, DSP, PW-3. The Public Prosecutor for the State also tendered into evidence the affidavits of ASI Balwant Singh, Harbans Singh, Constable and the report of the Chemical Examiner, exhibit PX. Thereafter, he 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, did not lead any evidence, in his defence. 6. After hearing the Counsel for the parties, 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, however, submitted that though the secret information was received, against the accused, yet the Investigating Officer did not reduce the same into writing, despite the fact, that he had sufficient time to do so. He, further, submitted that as such the Investigating Officer violated the mandatory provisions of Section 42 of the Crl. Appeal No.287-SB of 1995 -4- Act. The submission of the Counsel for the appellant, in this regard, appears to be correct. No doubt, the police party was present, in Village Gandiwind, in connection with patrol duty, when the secret information was received by the Investigating Officer, against the accused, that if his farm house was raided, sufficient quantity of poppy husk, could be recovered. Govinder Singh, PW-2, the Investigating Officer, stated that Village Gandiwind, where the police party was present, is at a distance of 7-8 kilometers from the Police Station. He, further, stated that the police party departed from the police station, at about 3.30 p.m. He also stated, during the course of cross-examination, that the farm of the accused is at a distance of one kilometer from the village. The police party must have reached village Gandiwind, at about 4.00 P.M., after covering a distance of 7-8 kilometers, within ½ an hour, on the vehicles. Ruqa, in this case, was sent at 5.30 p.m.. It means, that the police party had one and a half hour with it, after the receipt of secret information, against the accused. It was not that the Investigating Officer, along with the other police officials, immediately went to the farm-house of the accused to conduct a raid. There is nothing, in the evidence of Govinder Singh, Investigating Officer, PW-2, that the informer informed him, that the raid should be conducted immediately, at the farm house of the accused, otherwise, there were chances of his escape. Even, Govinder Singh, PW-2, Investigating Officer, did not state, even a single word, in his statement that he could not record the secret information and send the same to the Officer superior, on receipt of the same, as he apprehended that, in case, he spent time, in undertaking that exercise, the accused will abscond and the very purpose of the raid, would be defeated. Crl. Appeal No.287-SB of 1995 -5- Had the Investigating Officer entertained such an apprehension, the matter would have been different. In those circumstances, it would have been said that the first concern of the Investigating Officer, was to conduct raid, at the farm house of the accused, recover poppy husk, therefrom, and on account of that reason, he could not record the secret information immediately, on receipt thereof, and could not send the same to the Officer superior. As stated above, in the instant case, there was sufficient time, with the Investigating Officer, after the receipt of secret information and before conducting the raid. If he did not comply with the mandatory provisions of Section 42 of the Act, then certainly, the case of the prosecution became suspect. The provisions of Section 42 of the Act, are extracted hereunder, for facility of reference :- “42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable Crl. Appeal No.287-SB of 1995 -6- under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset :- (a) enter into and search any such building conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance; Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.” 10. A question before a three Judge Bench of the Apex Court in Crl. Appeal No.287-SB of 1995 -7- Abdul Rashid Ibrahim Mansuri Vs. State of Gujrat 2001(1) RCR (Crl.) (S.C.) 611, came up for decision, as to whether, the provisions of Section 42, are mandatory, in nature, and mere non-compliance thereof, would vitiate the investigation, and the trial or not. The Apex Court, in the aforesaid case, held that though, non-compliance of the provisions of Section 42 would not amount to vitiation of the investigation, as also the trial, yet the action of the Officer, effecting recovery, on the basis of the unrecorded information, would become suspect, and the resultant position would be one of causing prejudice, to the accused. In the instant case, in view of the above narrated facts and circumstances, non-recording of the secret information, by the Investigating Officer, and non sending of the same, to the Officer superior immediately, after receipt thereof, resulted into causing a great prejudice to the accused, as there are so many other infirmities and lacunae, in the case of the prosecution, which would be discussed, in the subsequent paragraphs. On account of the violation of the mandatory provisions of Section 42 of the Act, the case of the prosecution became highly doubtful. The trial Court, however, did not take into consideration, this aspect of the matter, resulting into miscarriage of justice. The submission of the learned Counsel for the appellant, in this regard, carries substance, and the same is accepted. 11. The Counsel for the respondent, however placed reliance on Sajan Abraham Vs. State of Kerala (2001) 6 SCC 692, a case decided by a three Judge Bench of the Apex Court, to contend that on account of non- compliance of the provisions of Section 42(1) and (2) of the Act, no prejudice was caused to the accused. The facts of the aforesaid authority, are distinguishable, from the facts of the present case. In the aforesaid Crl. Appeal No.287-SB of 1995 -8- authority, no doubt, the secret information was received by a Police Officer, when he was in motion, and had no time with him, to record the secret information and send the same to the Officer superior, because he apprehended that the accused who was in possession of inject-able material, containing contraband, would escape and the very purpose of the raid would be defeated. The Apex Court also observed that had he made an effort, to comply with the provisions of Section 42 of the Act, by recording the secret information, the delay would have been caused, the accused would have escaped and the purpose of the raid, would have been defeated. In the instant case, as stated above, there was about one and a half hour, with the police party, after the receipt of secret information, and before the raid was conducted. This time could be said to be sufficient to record the secret information, and send the same to the Officer superior. In this case, the Investigating Officer intentionally and deliberately violated the mandatory provisions of Section 42 of the Act, and, as such, his action became suspect. The facts of Sajan Abraham’s case (supra) are clearly distinguishable, from the facts of the instant case, and, as such, no help can be drawn, by the Counsel for the respondent, therefrom. The submission of the Counsel for the respondent, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant that no independent witness was joined by the Investigating Officer, despite the fact, that a secret information had been received against the accused. He further submitted that even no effort was made to join an independent witness before conducting the raid, at the farm house of the accused. The Crl. Appeal No.287-SB of 1995 -9- secret information was received in Village Gandiwind, itself, where the farm house of the accused was located. ASI Gulbarg Singh, PW-1 stated that he tried to join an independent witness but no-body was willing to join the police party. He further stated that he did not remember, as to who was summoned by the Investigating Officer, and asked to join the investigation. Govinder Singh, Sub Inspector, PW-2, stated that he sent a constable to bring the respectables from the village, but none was willing to join the police party. He further stated that he did not mention this fact, either in the Ruqa or in the case diary. It seems that the evidence of both these witnesses, that an attempt was made to join an independent witness, is nothing but a concoction of lies. Had an effort been made to join an independent witness and had he refused to join the police party, at least, his name would have been certainly mentioned, in the case diary, or the documents, contemporaneously prepared, at the time of the alleged search and recovery. However, there is no mention, either in the case diary, or in any of the document, contemporaneously prepared, at the spot, that an effort was made to join an independent witness, but none was ready. In fact, no effort was made to join an independent witness and with a view to cover up his lapse, the Investigating Officer, coined a false explanation, which cannot be accepted. In similar circumstances, in Hawa Singh Vs. State of Haryana 2005(4) RCR (Criminal) 292, when an independent witness was not joined, despite availability, the accused was acquitted, in a case of recovery of 20 kilograms of poppy-husk. In State of Punjab Vs. Ram Chand 2001(1) RCR (Criminal) 817, a Division Bench of this Court, held that it was imperative to join an independent witness, to vouchsafe the fair Crl. Appeal No.287-SB of 1995 -10- investigation. On account of non-joining of an independent witness, it was held that the accused was entitled to be given the benefit of doubt. In these circumstances, it was held that the case of the prosecution became doubtful. The other evidence produced by the prosecution, is unreliable. In this view of the matter, non-joining of an independent witness, despite availability, cast a cloud of doubt, on the prosecution story. This aspect of the matter, was not taken into consideration, by the trial Court, as a result whereof, miscarriage of justice occasioned. 13. It was next submitted by the Counsel for the appellant, that the link evidence, in the instant case, was incomplete, but the trial Court failed to take into consideration this aspect of the matter, as a result whereof, miscarriage of justice occasioned. The submission of the Counsel for the appellant, in this regard, appears to be correct. The Public Prosecutor for the State, vide statement dated 27-10-1994, tendered into evidence the affidavit exhibit PB of Constable Harbans Singh. There is nothing, on the record, that Constable Harbans Singh was present on 27-10-1994 when his affidavit was tendered for cross-examination by the accused. There is also nothing, on the record, that he was produced later on, on any date, for the purpose of cross-examination by the accused. The accused has a valuable and indefeasible right, to cross-examine the witnesses. If such an invaluable and indefeasible right of the accused, is defeated by not producing the witnesses for the purpose of cross-examination by him, then certainly, such an evidence cannot be used against him. In Gian Singh Vs. State of Punjab 2006(3) RCR (Criminal) 611, the affidavits of Police Constables were tendered into evidence, but they were not produced, in Crl. Appeal No.287-SB of 1995 -11- the Court for cross-examination. In these circumstances, it was held that the link evidence was missing, which was a 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, both these affidavits, without offering the deponents thereof, for cross-examination to the accused, could not be read into evidence. As such, the link evidence being incomplete, the accused was liable to be acquitted. The trial Court, in my opinion, was wrong in holding that the link evidence was complete. 14. It was next submitted by the Counsel for the appellant, that the alleged recovery, in this case, was effected on 05.08.1989, whereas, the sample was sent to the Office of the Chemical Examiner on 05.09.1989. He further submitted that the delay of one month in sending the sample was not explained. He further submitted that, on account of this reason, the case of the prosecution became doubtful. He further submitted that it could not be said that the sample parcel remained untampered with, until the same was deposited in the Office of Chemical Examiner. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true that if the other evidence, produced by the prosecution, is held to be cogent, convincing, reliable and trustworthy, then, mere delay in Crl. Appeal No.287-SB of 1995 -12- sending the sample to the Chemical Examiner does not, in any way, make the link evidence incomplete. However, if the other evidence, is found to be un-reliable, then, certainly, un-explained delay, in sending the sample, creates a doubt, in the mind of the Court. In the instant case, the evidence of the prosecution witnesses, has been scrutinized, and the same has not been found to be reliable and creditworthy, for various reasons, recorded in this judgment. In these circumstances, un-explained delay of one month, in sending the samples, to the Office of the Chemical Examiner, certainly proved fatal, especially, when the seal, after use, remained with the official witnesses. In State of Rajasthan Vs. Gurmail Singh 2005 (2) RCR (Crl.) 58 S.C., the contraband was kept in the Malkhana. The Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Examiner. 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. On account of this infirmity, the case of the prosecution became doubtful. 15. It was next submitted by the Counsel for the appellant, that there was no evidence, on the record, that the sample impression of the seals, was sent to the Chemical Examiner. He further submitted that, on account of this reason, it could not be said that the seals on the sample, were the Crl. Appeal No.287-SB of 1995 -13- same, as were allegedly affixed immediately after the seizure. Govinder Singh, Investigating Officer, PW-2, stated that he produced the case property, the sample, the accused and the witnesses before Makhan Singh, Sub Inspector, PW-3, on reaching the police station, who after verification, affixed his own seal on the case property and the sample parcel, bearing impression `MS’. Makhan Singh, PW-3, stated that after verification, he deposited the case property and the sample with MHC Balwant Singh. He did not state that the sample impression of the seal was deposited with the MHC. Even, during the course of cross-examination, it was stated by him that CFSL form was not produced before him by the ASI. He further stated, during the course of cross-examination, that he did not know as to what was meant by CFSL form. He also did not state that he prepared the sample impression of the seals. Harbans Singh, Constable, in para No.3, in affidavit exhibit PB, stated that he deposited the sample parcel in the Office of Chemical Examiner on 05-09-1989. He did not state in para No.3 of his affidavit that he deposited the sample impression of the seals, along with the sample parcel, in the Office of the Chemical Examiner. No doubt, in para No.2, it was stated by him that he was handed over the sample impression of the seals. The fact remains that according to para No.3 of the affidavit exhibit PB, he did not deposit the sample impression of the seals, with the Chemical Examiner. Whether he was given the same by the MHC and whether he took the same to the Office of the Chemical Examiner, hardly mattered. The question was that of depositing the sample impression of the seals in the Office of the Chemical Examiner. According to the affidavit, he Crl. Appeal No.287-SB of 1995 -14- did not deposit the same, in the Office of the Chemical Examiner and thus the link evidence became incomplete. In State of Rajasthan Vs. Gurmail Singh’s case (supra), the sample impression of the seals was not sent to the office of the Chemical Examiner. It was, thus, held that there was no evidence to prove satisfactorily that the seals affixed on the sample bottles, were the same, which were immediately affixed after seizure of the contraband. Ultimately, the accused was acquitted by the Apex court. In State of Rajasthan Vs. Daulat Ram 1980 SCC (Crl.) 683, it was held that the prosecution is required to prove beyond reasonable doubt, all the links in the evidence, starting from the seizure, until the deposit of the sample parcel, in the office of the Chemical Examiner. In that case, the parcel changed many hands, before it reached the office of