Criminal Appeal No. 2539-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 2539-SB of 2004 Date of Decision: 19.02.2010 Darshan Singh @ Nanda son of Jagar Singh, r/o village Padarth-Khera, Distt. Jind. ... Appellant Versus State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Ajit Attri, Advocate, for the appellant. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, dated 29.11.04, and the order of sentence, dated 01.12.04, rendered by the Court of Additional Sessions Judge, Jind, vide which, it convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be 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 thereof, to further undergo rigorous imprisonment, for a period of one year, for having been found in possession of 100 kgs of poppy husk, without any permit or licence, Criminal Appeal No. 2539-SB of 2004 2 which falls within the ambit of commercial quantity. 2. The facts, in brief, are that, on 29.07.01, Ishwar Singh, Assistant Sub Inspector, alongwith some other Police officials, was on patrol duty, and going towards village Padarth-Khera, from village Rewar and when the Police party, reached near Bhakra Canal, the accused, was seen behind the Hanuman Temple, who on seeing it, concealed himself, behind the wall. Thereafter, the Police party, went to the temple, and saw that the accused, was standing on three bags containing poppy husk. He was apprehended, on suspicion. In the meantime, Karam Singh, Panch of village Kharal, also reached there. On search, in the presence of Sukhdev Singh, Deputy Superintendent of Police, who was called to the spot, 2 bags were found containing 35 kgs poppy husk each and the third bag was found containing 30 kg poppy husk. One sample of 250 gms from each of the bags, was separated, and the remaining poppy husk, was kept in the same bags. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the first information report, was registered. Rough site plan of the place of recovery was prepared. The accused, was arrested. After the completion of investigation, he was challaned. 3. On his appearance, in the Court, the accused, was supplied the copies of documents, relied upon by the prosecution. Criminal Appeal No. 2539-SB of 2004 3 4. Charge under Section 15 of the Act, was framed against the accused, which was read over and explained to him, to which, he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Sunil Dutt, Constable (PW1), Anup Singh, Sub Inspector (PW2), Shish Pal Singh, Assistant Sub Inspector (PW3), Ishwar Singh, Assistant Sub Inspector (PW4), the Investigating Officer, Maman Ram, Head Constable (PW5), and, Sukhdev Singh, Deputy Superintendent of Police (PW6). Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that the prosecution witnesses, being Police officials, were interested, in the success of the case, and, as such, they deposed falsely. It was further stated by him that nothing was recovered, from his possession, and, he had been falsely implicated, in the instant case. He, however, did not lead any evidence, in defence. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, the instant appeal, has been filed by the accused/appellant. Criminal Appeal No. 2539-SB of 2004 4 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset submitted, that the accused, was not found in conscious possession of the contraband, and, as such, he did not commit the offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, appears to be correct. According to the prosecution story, when the Police party reached near Bhakra Canal, the accused, was seen behind Hanuman Temple. On seeing the Police party, he concealed himself behind the wall. When the Police party, went to the temple, the accused, was seen standing, on the three bags. It is to be determined, as to whether, in such circumstances, the accused, could be said to be in possession of or in control over the bags, containing poppy husk. Initially, the accused, was found standing behind the wall of the temple. When he noticed the officials of the Police, he hid himself behind the wall. From the evidence, it is evident, that anything could be visible behind the wall from a sufficient distance. The place was open and accessible to all and sundry. There is no evidence, on the record, that the bags, had been brought, by the accused, to that place. No evidence, was also produced, that the accused knew, that these bags contained poppy husk. Very stringent punishment, has been provided for having been found in possession of the commercial quantity of poppy husk. Under these circumstances, it is the bounden duty of the Investigating Agency, to prove its case, Criminal Appeal No. 2539-SB of 2004 5 beyond a reasonable doubt. Had the evidence been produced, to the effect, that the bags, were brought by the accused, near the wall of the temple; that he was aware of the contents thereof; that he was to take those bags, containing poppy husk, to some other place, for the purpose of sale of the contraband, to various customers; that he was indulging in smuggling activities; and that he was also earlier involved, in many cases, under the Act, the matter would have been different. The accused, in this case, was apparently a passer-by, who being scared of the Police, hid his presence behind the wall, and per-chance stumbled over the bags, which were lying there, in which, ultimately, the poppy husk was found. From the peculiar facts and circumstances of the case, the presence of the accused, at that place, stood explained. Since the possession of the accused, in respect of the bags, containing poppy husk, was not proved, nor his control over the same, was established, the question of operation of statutory presumption, under Sections 35 and 54 of the Act, did not at all arise, that he was in conscious posses- sion thereof. In Parminder Singh Vs. State of Haryana, 2006 (4), RCR, 495, the accused, was standing near the car, in which, opium was lying. The car, did not belong to the accused. On seeing the Po- lice party, he ran away. Under these circumstances, a Division Bench of this Court, held that, the accused, could not be said to be in conscious possession of the opium, lying in the car. In State of Punjab Vs. Balkar Singh, 2004(3), SCC, 582, the accused, were found, near one hundred bags of poppy husk, lying in the fields. They were acquit- Criminal Appeal No. 2539-SB of 2004 6 ted by the High Court, on the ground, that their possession, in respect of the bags, containing poppy husk, was not proved, and, as such, statu- tory presumption, under Sections 54 and 35 of the Act, could not operate, against them, that they were in conscious possession thereof. The State, feeling aggrieved, filed a Criminal Ap- peal, in the Apex Court. The Apex Court, held that, the mere fact that the accused were allegedly found to be present near the bags, contain- ing poppy husk and their failure to give any satisfactory explanation, for being so present, did not prove that they were in possession of the said poppy husk bags, especially when they belonged to different vil- lages, and no investigation had been conducted, by the Investigat- ing agency, as to how the bags containing poppy husk were found ly- ing, at that place. Para 3 of the said judgment reads as under : “3, We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimoney of PW1 Balbir Singh and PW2 ASI JarnailSingh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not Criminal Appeal No. 2539-SB of 2004 7 make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present at that place itself does not prove that the were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court. 11. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. The submission of the Counsel for the appellant, to the effect, that the appellant, was not found, in conscious possession of the poppy husk, allegedly recovered, from near the wall of Hanuman Temple, and, thus, no offence Criminal Appeal No. 2539-SB of 2004 8 punishable under Section 15 of the Act, was constituted, carries substance, and deserves to be accepted. 12. It was next submitted by the Counsel for the appellant, that Karan Singh, independent witness, though joined, at the time of the alleged recovery, was not examined, by the prosecution, for the reasons best known to it. He further submitted that, non-examination of Karan Singh, independent witness, cast a cloud of doubt, on the prosecution story. The submission of the Counsel for the appellant, in this regard, appears to be correct. No doubt, Karan Singh, independent witness, was given up, as won over, by the Public Prosecutor, for the State, vide his statement, dated 30.01.03. However, it may be stated here, that there was no material or data, with the Public Prosecutor, for the State, to come to the conclusion, that Karan Singh, independent witness, had actually been won over, by the accused. The independent witness, could only be given up, as won over, by exercising the discretion, in a judicious manner. In the instant case, the discretion, exercised by the Public Prosecutor, for the State, in giving up Karan Singh, independent witness, is arbitrary and capricious. Had Karan Singh, independent witness, been examined, light would have been thrown, on the facts and circumstances of the case, and credence would have been lent to the prosecution case, solely based, on the evidence of the official witnesses. It is, no doubt, true that, in the absence of corroboration through an independent source, the evidence of the official witnesses, cannot be disbelieved and distrusted, blind-foldely, if the same is found Criminal Appeal No. 2539-SB of 2004 9 to be creditworthy. However, when the evidence of the official witnesses, is found to be not cogent, convincing, reliable and trustworthy, then on account of non-corroboration thereof, through an independent source, certainly a doubt is cast, on the prosecution story. The evidence of the prosecution witnesses, has been re-appraised and re-appreciated. It does not inspire confidence, in the mind of the Court. In this view of the matter, non-corroboration of the evidence of the official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In State of Punjab Vs. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution became doubtful. In Masalti Vs. State of UP, AIR 1965 SC 202, a four Judge Bench of the Apex Court, held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material evidence, available to it, which is necessary for unfolding its case, but it would be unsound to lay down, as a general rule, that every witness must be examined, even though, his evidence may not be very material, or even if, it is known that he has been won over or terrorised. The principle of law, laid down, in the aforesaid cases, reveals that the witness whose evidence is material to unfold the case of the prosecution, must be examined, until and unless, he has been won over or terrorized. The trial Court did not take into consideration, this aspect Criminal Appeal No. 2539-SB of 2004 10 of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused. 13. It was next submitted by the Counsel for the appellant, that, though, the alleged recovery, was effected, on 29.07.01, the sample parcels, were sent, to the Forensic Science Laboratory, on 02.08.01 i.e. after the delay of four days, which remained unexplained, and, as such, the possibility of tampering with the same, could not be ruled out, especially when the seal throughout remained in possession of the official witnesses. 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 to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the samples to the Forensic Science Laboratory, pales into insignificance. However, if the other evidence, is not found to be creditworthy, then delay certainly proves fatal to the prosecution case. In this case, the other evidence produced by the prosecution, to prove the completion of link evidence, is neither reliable nor trustworthy. It is for the prosecution to prove affirmatively, that right from the date of seizure, until the samples were sent to the Forensic Science Laboratory, the same were not tampered with. If the prosecution fails to prove this factum, then its case is bound to dwindle down. In State of Rajasthan Vs. Gurmail Singh, 2005(2) RCR (Crl.), 58, S.C., the contraband, was kept in the Malkhana for 15 days. The Malkhana register was not produced to prove that it was so kept, till the Criminal Appeal No. 2539-SB of 2004 11 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 Forensic Science Laboratory. In State of Punjab Vs. Jaswant Singh, 2002(3), RCR (Crl.), 54 (DB) (P&H), there was a delay of 21 days, in sending the sample to the laboratory. In these circumstances, it was held that it must prove fatal to the prosecution case, especially when admittedly no independent witness was joined, in the recovery proceedings, and seal used for sealing the sample, remained with the Police Official, during the period. 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 Forensic Science Laboratory. 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 Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1), RCR (Criminal), 406 (S.C.), charas was recovered from the possession of the accused and sealed in two packets. The packets and the seal remained, in the custody of the same person. In these circumstances, it was held that there was every possibility of the seized substance, being tampered with. The conviction of the accused was set aside, inter-alia, on this ground. Since the possibility of tampering with the case property, and the sample, could not be ruled out, in the instant case, a Criminal Appeal No. 2539-SB of 2004 12 serious doubt, on account of this reason, was cast on the prosecution case. In Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Forensic Science Laboratory after 72 hours, and 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. The prosecution case became doubtful, on account of unexplained delay, in sending the samples, as the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, being correct is accepted. 14. It was next submitted by the Counsel for the appellant, that even the sample impression of the seals, was not deposited, in the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, in this regard, appears to be correct. PA is the affidavit of Sunil Dutt, Constable, who took the sample parcels, to the Office of the Forensic Science Laboratory, for deposit. He did not testify, in PA, that he was handed over the sample impression of the seals, and he deposited the same, alongwith the sample parcels. Since the sample impression of the seals, was not handed over to Sunil Dutt, Constable, nor the same, was deposited, in the office of the Forensic Science Laboratory, it is not known, as to how, it was recorded, in the report, exhibit PK of the Forensic Science Laboratory, that the seals, on the parcels, were found intact, and tallied with the specimen seals. The specimen impression of the seals, could only reach the Forensic Criminal Appeal No. 2539-SB of 2004 13 Science Laboratory, had the same been deposited. In the absence of deposit of the sample impression of the seals with the Forensic Science Laboratory, it could not be ascertained whether the seals affixed on the samples, were the same, as were allegedly affixed at the time of the alleged raid. It was for the prosecution, to complete the link, in the chain of its evidence but it failed to do so. 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, the case of the prosecution became doubtful. 15. No other point, was urged, by the Counsel for the parties. 16. In view of the above discussion, it is held, that the judgement of conviction and the order of sentence, are not based, on the correct reading and due appreciation of evidence, as also the law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would have certainly come to the conclusion, that the prosecution, had failed, to prove its case, beyond a reasonable doubt. The findings, recorded by the trial Court, recording conviction and awarding sentence, to the accused (now appellant), are perverse and illegal, and, as such, liable to be set aside. 17. For the reasons recorded above, the appeal, is accepted. The Criminal Appeal No. 2539-SB of 2004 14 judgement of conviction and the order of sentence, rendered by the trial Court, are set aside. The appellant, is acquitted of the charge framed against him. If the appellant, 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. 18. The concerned Chief Judicial Magistrate, shall comply with the judgment, forthwith and send the compliance report, within a period of 15 days, from the date of receipt of a copy of the same. 19.02.2010 (SHAM SUNDER) Amodh JUDGE