1 Crl.Appeal No. 1023-SB of 1998. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. *** Crl.Appeal No. 1023-SB of 1998. Date of Decision: January 17, 2008. *** Nand Ram son of Puran, resident of Village Sadho Heri, Police Station Sadar, Nabha District Patiala. Appellant. Versus The State of Punjab. Respondent. *** Before: Hon'ble Mr. Justice R.S.Madan. *** Present: Shri T.S.Sangha, Advocate, for the appellant. Shri D.K.Mittal, Deputy Advocate General, Punjab. *** R.S.Madan, J Nand Ram, appellant, on being convicted and sentenced under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein after to be referred to as the “Act”), vide judgment dated October 09, 1998 rendered by Additional Sessions Judge, Patiala, to undergo rigorous imprisonment for ten years and a fine of Rs.one lac, and in default of payment of fine, to undergo rigorous imprisonment for a period of two years, has approached this court by filing the present appeal. In brief, the facts of the case are that on 18.08.1993, ASI Tej Pal Singh along with HC Jaipal Singh, C. Lakhwinder Singh and C.Hakam Singh was present in Village Tunga, in connection with patrol duty and checking of suspected persons. Chajju Singh PW met them in the phirni of the village and he started talking with ASI Tej Pal Singh. In the meanwhile he received a secret information that the appellant was in the habit of 2 Crl.Appeal No. 1023-SB of 1998. selling poppy husk and he has concealed the poppy heads in his residential house and in case a raid is conducted, poppy heads could be recovered from his possession. On receipt of this information, the ASI sent ruqa Ex.PA to the police station for registrations of a case through constable Hakam Singh, on the basis of which formal FIR Ex.PA/1 was recorded against the accused-appellant by SI/SHO Manjit Singh. Thereafter, the police after joining Chajju Singh an independent witness in the investigation, conducted a raid at the house of the accused. He was found present in the house. The ASI then asked him that he had suspicion that he had kept incriminating articles in his house and he wanted to search the same. He further gave him the opinion whether he wanted to get his house searched before a Gazetted Officer or Magistrate, to which the accused reposed his faith in the police party. Statement of the accused to this effect was recorded. The ASI Tej Pal Singh then arrested the accused. On interrogation, he made a disclosure statement Ex.PB that he had kept concealed 10 bags of poppy heads in the room of his residential house by covering the same with the help of gunny bags, about which he had the knowledge and could get the same recovered. The disclosure statement Ex.PB was reduced into writing, attested by HC Jaipal Singh, C.Kuldip Singh and Chajju Singh, independent witness and thumb marked by the accused. Pursuant to the said disclosure statement, the accused got recovered 10 bags of poppy husk from the pointed place. Ten samples of 250 grams each were taken out from each bag and the same were put into small pieces of cloth. The residue of poppy husk was kept in the same gunny bags. The gunny bags and the samples were made into parcels and sealed with the seal bearing impression “DS” and the seal after use was handed over to HC Jaipal Singh, after preparing its specimen seal. Parcels containing the samples and the residue were taken into possession vide memo Ex.PD, duly signed by the witnesses. Memo of arrest Ex.PE and 3 Crl.Appeal No. 1023-SB of 1998. personal search memo Ex. PF were prepared. Thereafter, personal search of the accused was conducted. After preparing the site plan Ex.PG of the place of recovery, recorded the statements of the witnesses and on return to the police station, he produced the case property along with the accused before the SHO Manjit Singh of Police Station Sadar, Nabha, who after verifying the investigation, sealed the case property and the samples with his seal bearing impression “MS”. Specimen of his seal was also prepared and after sealing the case property, he handed over the same to the ASI, who deposited the same with the MHC of the Police Station on the same day i.e. on 18.08.1993 and put the accused in the lock up. On receipt of the report of the Chemical Examiner Ex.PJ and completing the necessary investigation of the case, challan against the accused was presented in the court of Ilaqa Magistrate, who in turn vide its order dated 5.3.1994 committed the case to the court of learned Sessions Judge, Patiala. After going through the report under Section 173 Cr.P.C. and the documents attached therewith, a prima facie case for the commission of offence under Section 15 of the Act was made out against the accused. He was charged accordingly, to which he pleaded not guilty and claimed trial. The prosecution in order to bring home the guilt of the accused, examined ASI Tej Pal Singh, PW-1, Manjit Singh SI, PW-2, MHC Manjit Singh PW-3, constable Samma Singh PW-4, and HC Jaipal Singh PW-5 and closed its evidence after tendering into evidence the affidavits of formal witnesses. The accused in his examination under Section 313 of the Code of Criminal Procedure, denied the allegations of the prosecution and pleaded false implication. 4 Crl.Appeal No. 1023-SB of 1998. In defence, the accused examined Chajju Singh, the independent witness, as DW-1 and closed the defence. After going through the prosecution version, defence evidence and hearing the learned counsel for the parties, the learned Additional Sessions Judge, Patiala convicted and sentenced the accused, as indicated above. I have heard Shri T.S.Sangha, learned counsel for the appellant, Shri D.K.Mittal, learned Deputy Advocate General, Punjab and have minutely gone through the evidence and the documents available on the record. At the very out-set, learned counsel for the appellant attacked the case of the prosecution on the ground that the prosecution has not complied with the mandatory provisions of Section 42(2) of the Act. He further contended that as a secret information was received by the investigating officer, he was duty bound to send a copy of the secret information to the senior officers. The investigating officer has not complied with the provision, the same proves fatal to the case of the prosecution. Reliance in this regard was placed on Fateh Singh Versus State of Haryana, 1998 (2) R.C.R.( Criminal) 1. The learned Deputy Advocate General, Punjab submitted that once the first information report was registered with the police station, a copy of the same was sent to the Ilaqa Magistrate. Therefore, there was compliance of Section 42(2) of the Act. He further submitted that the provisions of Section 42(2) of the Act are directive in nature and not mandatory. For ready reference, provisions of Section 42(2) of the Act, are reproduced as under:- “42(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 within seventy-two hours send a 5 Crl.Appeal No. 1023-SB of 1998. copy thereof to his immediate official superior” A bare perusal of the provisions shows that sending of special report to the Magistrate and not to the superior officers of the department under whom the investigating officer was working is against Section 42(2) of the Act, therefore, the contention of the learned counsel for the State lacks force on this ground. Another contention of the learned counsel for the appellant was that at the time when the raid was conducted, the FSL form No. 29 was not prepared at the spot neither the same was deposited along with the case property with the MHC of the Police Station. This is a valuable safeguard to ensure that the sealed samples are not tampered with. Reliance was placed on Bhola Singh Versus State of Punjab- 2005(2) R.C.R. ( Criminal) 520, wherein in para No. 13 of the judgment, this court while relying on Emma Charlotte Eve Vs. Narcotic Control Bureau, 2000(4) RCR (Criminal) 386 observed as under:- “Filling of such form at the spot is a very valuable safe-guard to ensure that the seal sample is not tampered with till its analysis by the F.S.L. The CFSL form should not only be prepared and sealed by the officer making seizure at the place where the case property is seized from the accused, it should also be sealed by the S.H.O. to whom the sample and the case property is handed over and the same should accompany the sample to Chemical Examiner. The idea behind taking such a precaution is to complete the material link in the prosecution evidence by eliminating the possibility of the sample being tampered with. The prosecution has miserably failed to prove the link evidence”. The learned Deputy Advocate General, Punjab was not in a position to deny that the FSL form No.29 was not prepared by the Investigating Officer at the spot while effecting the recovery. Learned counsel further contended that the link evidence in the 6 Crl.Appeal No. 1023-SB of 1998. instant case is missing as the samples in question was sent after 18 days from the date of its seizure and the prosecution has not furnished any explanation about the delay in sending the samples to the F.S.L. Thus the possibility of seals being tampered with and the substance having been changed cannot be ruled out. In support of his contention reliance was placed on Gian Singh Versus State of Punjab, 2006(2) R.C.R. (Criminal) 611, wherein this Court while placing reliance on the judgment of the Apex Court in Rajesh Jagdamba Awasthi Versus State of Goa, 2005(1) Apex Criminal 240 observed that the possibility of sealing being tampered with, substance being changed and the container/packet being re-sealed cannot be ruled out. To controvert the submissions of the learned counsel for the appellant, the learned Deputy Advocate General, Punjab submitted that the delay of 18 days in sending the sample to the FSL is not fatal to the case of the prosecution, because there is no evidence that any tampering was done with the samples or with the seals. It is admitted that the seal after use was handed over to HC Jaipal Singh by ASI Tejpal Singh despite the fact that independent witness Chajju Ram was present. Thus the non-handing over of the seal to an independent witness by the investigating officer further creates dent in the prosecution version. The learned counsel further submitted that the sole independent witness associated by the police in the raiding party has not supported the case of the prosecution, rather he has appeared as a defence witness to support the case of the accused that no incriminating contraband was recovered from the possession of the accused in his presence. It is a case where the investigating officer has tried to strengthened the case of the prosecution by recording the statement of the 7 Crl.Appeal No. 1023-SB of 1998. accused under Section 27 of the Indian Evidence Act, despite the fact that he had secret information that the poppy husk is stored in the residential house of the accused. Admittedly, as per the case of the prosecution, the investigating officer had the information about the storage of poppy husk at the residential house of the accused. The house of the accused was a very small house and by just entering into the room of the said house, the investigating officer could have recovered the contraband without any efforts but the investigating officer has chosen to make the case of recovery into a case of discovery, which was not the intention of the Legislation while enacting Section 27 of the Indian Evidence Act. This part of the investigation is not only faulty but an act of over-reacting. As a sequel of the above discussion, the prosecution has miserably failed to prove its case on all the four corners. As a result, the accused is acquitted of the charges framed against him. January 17, 2008. (R.S.MADAN) JUDGE Malik