Criminal Appeal No. 1593-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1593-SB of 2002 Date of Decision: 16.02.2010 1. Nihalo wife of Sarwan Singh; 2. Geeta Singh @ Gurmeet Singh son of Veeru Singh; both residents of Bajigar Basti, Dhuri, Distt. Sangrur. ... Appellants Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Kuldeep Vir Singh, Advocate, for the appellants. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence, dated 07.09.02, rendered by the Judge, Special Court, Sangrur, vide which, he convicted the accused (now appellants), 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 them to undergo Rigorous Imprisonment for a period of ten years each, and to pay a fine of Rs. 1 lac each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of two years each, for having been Criminal Appeal No. 1593-SB of 2002 2 found in possession of 120 kgs of poppy husk, without any permit or licence, which falls within the ambit of commercial quantity. 2. The facts, in brief, are that, on 07.08.96, Hans Raj, Assistant Sub Inspector, alongwith some other Police officials, was on patrol duty, in the area of Kakkarwa Chowk, Dhuri, where a secret information was received that the accused, were in the habit of selling poppy husk, and, if a raid was conducted, at their house, huge quantity of poppy husk, could be recovered therefrom. After receiving the secret information, the Police party, proceeded towards the house of Nihalo and Geeta Singh, accused, and, on the way, one Ramesh Chand, met it, who was joined as a witness. Thereafter, raid was conducted, at the house of the accused. The door of the house of the accused, was found locked. Hans Raj, Assistant Sub Inspector, knocked at the door of the house of the accused, who, on seeing the Police party, fled therefrom. The door of the house was pushed open and the accused, were given a hot chase, by the Police party, but in vain. Thereafter, search of the house was conducted, in the presence of two-three ladies, who happened to come there, where four bags, each containing 30 kgs poppy husk, were found lying under the double bed. Two samples of 250 gms from each of the bags, were 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 a separate recovery memo. Rough site plan of the place of recovery was prepared. In the first Criminal Appeal No. 1593-SB of 2002 3 instance, the accused, could not be apprehended, and, as such, declared proclaimed offenders, but, later on, they were arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the Court, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 15 of the Act, was framed, against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Megh Raj, Assistant Sub Inspector (PW1), Hans Raj, Assistant Sub Inspector (PW2), the Investigating Officer, Narinder Singh, Constable (PW3), Parshotam Lal, Sub Inspector (PW4), Swaran Singh, Inspector (PW5), and, Budh Singh, Head Constable (PW6). Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They stated that, no recovery, was effected, from them. It was further stated by them, that the recovery was effected, from some unknown person, and the same was planted against them. They, however, examined Janga Ram (DW1), and, Ramesh Chand (DW2), in their defence. Thereafter, they closed their defence evidence. 7. After hearing the Counsel for the parties, and, on going Criminal Appeal No. 1593-SB of 2002 4 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 appellants. 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 appellants, at the very outset, submitted that though a secret information, was received, against the accused, by the Investigating Officer, yet the same was neither reduced into writing, nor sent to the Officer superior. He further submitted that, thus, there was complete violation of the provisions of Section 42 of the Act, as a result whereof, a great prejudice, was caused, to the accused, resulting into vitiation of trial, conviction and sentence. The submission of the Counsel for the appellants, in this regard, appears to be correct. According to the prosecution story, a specific secret information, was received, by Hans Raj, Assistant Sub Inspector, that the accused, were in the habit of selling poppy husk and, if a raid was conducted, at their house, huge quantity of poppy husk, could be recovered therefrom. No doubt, Hans Raj, Assistant Sub Inspector, alongwith the other Police officials, at that time, was on patrol duty. He might have thought, that the situation being emergent, it was necessary to proceed to the house of the accused, in the first instance, before reducing the information into writing. The raid was conducted, at the house, which according to the prosecution, belonged to the accused, Criminal Appeal No. 1593-SB of 2002 5 but, they allegedly succeeded in running away. It was thereafter, that the alleged recovery of four bags, each containing 30 kgs poppy husk, was effected therefrom. Even after the search and seizure, the secret information, was not reduced into writing, nor the question of sending the same to the Officer superior, did ever arise. There was, therefore, complete violation of the mandatory provisions of Section 42 of the Act. On account of complete violation of the provisions of Section 42 of the Act, a great prejudice, was caused, to the accused, on account of the reason, that they were deprived of cross-examining the witnesses, effectively, in relation to the secret information, in the absence of reduction thereof into writing. Had such a secret information been reduced into writing, the Investigating Officer, could be confronted therewith, so as to prove, that the case of the prosecution was totally false. In Directorate of Revenue and another Vs. Mohammed Nisar Holia, 2008(1), RCR (Criminal), 241 (SC), recovery of contraband, was effected, from a room of the hotel, occupied by the accused. The officer, who received the secret information, did not reduce the same, into writing, nor the question of sending the same, to the Officer superior arose. In these circumstances, it was held, by the Apex Court, that on account of non-compliance with the mandatory provisions of Section 42(2), the appellant, was entitled to acquittal. In Amit Kumar Vs. State of Punjab, 2001(2), RCR (Criminal), 661, a case, decided by a Division Bench of this Court, the principle of law, laid down, was to the effect, that complete non-compliance with the provisions of Section Criminal Appeal No. 1593-SB of 2002 6 42(2) of the Act would cause a serious prejudice, to the accused, as it could be concluded that a serious check on the veracity of the prosecution case, had been avoided by the Police. In these circumstances, the appellant, was held entitled to acquittal. In State of Punjab Vs. Balbir Singh, 1994(1), RCR (Criminal), 737, it was held that, under Section 42(2) such empowered officer, who takes down any information, in writing, or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance with this provision, the same affects the prosecution case. To that extent, it is mandatory. But if there is delay, whether it was undue, or whether the same has been explained or not, will be a question of fact in each case. In Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, 2000(1), RCR (Criminal), 611, a case decided by a three Judge Bench of the Apex Court, it was observed, as under:- “If the officer has reason to believe from personal knowledge or prior information received from any person that any Narcotic Drug or Psychotropic Substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused.” Criminal Appeal No. 1593-SB of 2002 7 11. As stated above, in this case, there was total non- compliance with the mandatory provisions of Section 42 of the Act, and, as such, a great prejudice was caused to the accused. On account of complete non-compliance with the provisions of Section 42(2) of the Act, the case of the prosecution, became highly doubtful. 12. It was next submitted by the Counsel for the appellants, that the appellants, were not found in conscious possession of the contraband, and, as such, they did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellants, in this regard, appears to be correct. No evidence, was led, by the prosecution, that the house wherefrom, the recovery of poppy husk, was effected, belonged to the accused. No document of ownership, was produced, on the record, that the house belonged to the accused. Since the prosecution miserably failed, to prove, that the house belonged to the accused, any alleged recovery of poppy husk effected therefrom, could not be attributed to them, especially when they were not apprehended, at the spot. The possession of the accused, in relation to the contraband, therefore, did not stand proved. Only after proof of possession of the contraband, or control over the same, in relation to the accused that statutory presumption, under Sections 35 and 54 of the Act, could operate against them, that they were in conscious possession 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 Criminal Appeal No. 1593-SB of 2002 8 seeing the Police 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, sitting on one hundred bags of poppy husk, lying in the fields. They were acquitted by the High Court, on the ground, that their possession, in respect of the bags, containing poppy husk, was not proved, and, as such, statutory 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 Appeal, in the Apex Court. The Apex Court, held that, the mere fact that the accused were allegedly found to be sitting, on the bags, containing 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 villages, and no investigation had been conducted, by the Investigating agency, as to how the bags containing poppy husk were found lying, 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 Criminal Appeal No. 1593-SB of 2002 9 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 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. 13. The principle of law, laid down, in the aforesaid cases, is Criminal Appeal No. 1593-SB of 2002 10 fully applicable to the facts of the present case. The submission of the Counsel for the appellants, to the effect, that the appellants, were not found, in conscious possession of the poppy husk, allegedly recovered, from the house, and, thus, no offence punishable under Section 15 of the Act, was constituted, carries substance, and deserves to be accepted. 14. Even the identity of the accused, as the perpetrators of crime, was not proved. The alleged recovery, was effected, on 07.08.96 at about 9.15 PM, whereas, the accused, were arrested, on 11.01.2000. It was not possible to identify the accused at about 9.15 PM in the month of August, that too, when no source of light was shown to be in existence, at the spot and they were not known earlier to the members of the Police party. No identification parade, was held, during the course of investigation, to pin-point the identity of the accused. No doubt, Hans Raj, Assistant Sub Inspector, the Investigating Officer, stated that the accused, were earlier known, to him, however, his such statement, did not find corroboration from any other circumstance. He did not state, in his statement, as to how, he knew the accused earlier. He did not state that he had arrested the accused earlier, in some other case, and that was why, he knew them. He also did not state, that he had joined the accused, as witnesses, in another case, and, on account of that reason, they were known to him earlier. He also did not state, in his statement, that he remained posted as the Station House Officer of the Police Station earlier, and the accused used to come there, in connection with the work of the villagers. Since he did not disclose the Criminal Appeal No. 1593-SB of 2002 11 source of his knowledge, as to how, he was earlier knowing the accused, his statement, for the first time, in the Court, in that regard, could not be given any weight. When there was complete darkness, it was not at all possible for the Investigating Officer, or any other official of the Police party, to identify the accused, when they were allegedly running away. So, from the evidence, on record, the identity of the accused, as the perpetrators of crime, was not at all proved. The identification of the accused, for the first time, in the Court, by Hans Raj, Assistant Sub Inspector, was of no value. It was held in Budhsen and Another Vs. State of U.P., AIR 1970 SC, 1321, that facts which establish the identity of an accused person, are relevant under Section 9. As a general rule, the substantive evidence of a witness is a statement made in the Court. The evidence of mere identification of the accused person, at the trial, for the first time, is from its very nature, inherently of a weak character. The evidence, in order to carry conviction, should ordinarily clarify, as to how, and, under what circumstances, the witness came to pick out the particular accused person, and the details of the part, which the accused played, in the crime, in question, with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses, in the Court, as to the identity of the accused, who are strangers to them, in the form of earlier identification Criminal Appeal No. 1593-SB of 2002 12 proceedings. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held, during the course of investigation, with the primary object of enabling the witnesses, to identify persons, concerned, in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses, and also to furnish evidence, to corroborate their testimony, in the Court. Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail, or some other place, and they make statements, either express or implied, that certain individuals whom they point out are persons, whom they recognize, as having been concerned in the crime. The same do not constitute substantive evidence. These parades are essentially governed by Section 162 Cr.P.C. The principle of law, laid down, with regard to test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under :- “Identification parades have been in common use for a very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident but they claim that although they did not know him earlier, they could recall his features in sufficient details and would be able to identify him if and when they Criminal Appeal No. 1593-SB of 2002 13 happened to see him. The holding of a test identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit, it saves the suspect or the accused form the sudden risk of being identified in the dock by the self same witnesses during the course of the trial. The line up of the suspect in a test identification parade is therefore a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice.” The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since the identity of the accused, as perpetrators of crime, was not proved, they were not connected with the instant case. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction and awarding sentence to the accused. 15. It was next submitted by the Counsel for the appellants, that no doubt, an independent witness, in the name of Ramesh Chand, was joined, at the time of the alleged recovery, yet he was neither given up, as won over, nor examined, by the Additional Public Prosecutor, for the State. He further submitted that non-examination of Ramesh Chand, independent witness, cast a cloud of doubt, on the prosecution story. The submission of the Counsel for the appellants, in this regard, Criminal Appeal No. 1593-SB of 2002 14 appears to be correct. No doubt, non-examination of an independent witness, joined, at the time of alleged raid or recovery, in itself, is not sufficient to throw away the case of the prosecution, if, he is given up as won over, by the accused, for valid reasons. In the absence of giving up such a witness, as won over by the Additional Public Prosecutor, for the State, that too, for valid reasons, the case of the prosecution certainly becomes highly doubtful. Had the Additional Public Prosecutor, for the State, given him up, as won over, the matter would have been considered, in the light thereof. When Ramesh Chand, was examined, as DW2, by the accused, he, in clear-cut terms stated, that no recovery, in his presence, was effected, but his signatures, were obtained, on blank papers. He also made it clear that, some quarrel, had taken place, in the Mohalla, in the month of August, 1996, and in that context, he went to the Police Station, where his signatures, were obtained on blank papers. In the face of such an explanation, having been furnished by Ramesh Chand, DW2, the possibility of his signatures, having been obtained, on blank papers, could not be ruled out. It is settled principle of law, that the defence witnesses, are required to be given the same importance and respect, as is given to the prosecution witnesses. There was no reason, on the part of Ramesh Chand, DW2, to depose falsely. He had no ill-will, grudge or enmity against the Police. He was not interested in the accused. It is, no doubt, true that, in the absence of corroboration through an independent source, the evidence of the official witnesses, cannot be disbelieved Criminal Appeal No. 1593-SB of 2002 15 and distrusted, blind-foldely, if the same is found 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. In the instant case, the evidence of the prosecution witnesses, on revaluation and reappreciation, 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