Crl. Appeal No.72-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.72-SB of 1997 Date of Decision : March 28, 2008 Mukhtiar Singh S/o Ganga Singh, ....Appellant R/o Ward No.3, Dhuri, District Sangrur. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Narinder Singh, Advocate, for the appellant. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 17.12.1996, and the order of sentence of the even date, rendered by the Court of Sessions Judge, Sangrur, vide which it convicted the accused/appellant Mukhtiar Singh, for the offence punishable under Section 15 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 one year. 2. The facts, in brief are that on 24.10.1994, at about 6.30 AM, Surinderpal Singh, ASI, alongwith Harjinder Singh, HC, and other police officials, of police post Dharamgarh, reached bus stand Ghasiwal, while on patrol duty, from the side of Jakhepal towards Sunam, when the accused was seen coming from the side of Ghasiwal, carrying a gunny bag, on his head. On seeing the police party, he tried to slip away, but was apprehended, on suspicion. The search of the bag, being carried by him, was conducted, in Crl. Appeal No.72-SB of 1997 2 accordance with the provisions of law, which resulted into the recovery of 14 ½ Kgs. Poppy-husk, now falling within the ambit of non-commercial quantity. Two samples of 250 grams each, were taken out, and the remaining poppy-husk was put into the same gunny bag. The samples, and the remaining poppy-husk, were converted into parcels, duly sealed with the seal, bearing impression 'SS', and thereafter, the same were taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. 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 15 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 Surinder Pal Singh, ASI (PW-1), Harjinder Singh, HC (PW-2), Sampuran Singh, SI/SHO (PW-3), Darshan Singh, HC (PW-4), and Jasbir Singh, Constable (PW-5). Thereafter, the Public Prosecutor for the State, 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. It was stated by him, that no poppy-husk was recovered from him. He further stated that he was present at bus stand Sunam, where Surinderpal Singh, ASI, came in civil dress, and he had an altercation with him, as he was under slight influence of liquor, as a result whereof, he was taken to the Police Station, and involved falsely, in this case. He, however, did not lead any evidence, in his defence. 6. After hearing the Public Prosecutor for the State, the Counsel for Crl. Appeal No.72-SB of 1997 3 the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, 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, contended that though the alleged recovery was effected at bus stand Ghasiwal, i.e. a public place, yet neither any independent witness was joined, nor any effort was made to join, as a result whereof, the case of the prosecution became suspicious. The submission of the Counsel for the appellant, in this regard, appears to be correct. Surinderpal Singh, ASI, the Investigating Officer, in this case, while appearing as PW-1, during the course of his cross-examination, stated that the writing work was done while sitting close to the bus stand Ghasiwal. He further stated that village Ghasiwal is at a distance of 1 ½ kms. from the place of recovery. He further stated that the weighing scale and weights, were procured through Lila Singh, PHG, but he was not asked to bring independent witnesses, from the village. He further stated that the person, from whom Lila Singh, PHG, brought the weights and scale, was not joined as a witness, in the investigation. He further stated, during the course of his cross-examination, that no independent person could be spotted, and no other specific effort was made, to join public witnesses. Harjinder Singh, HC, (PW-2), also made a similar statement. It means that the public witnesses, were not intentionally and deliberately joined, despite availability. 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 Kgs. of poppy-husk. In State of Punjab Crl. Appeal No.72-SB of 1997 4 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 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 evidence of the official witnesses, on which the case of the prosecution rests, has been carefully perused, and there are so many infirmities therein. On account of non-joining of an independent witness, despite availability, a cloud of doubt is cast, 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. 10. The second limb of this argument, that the link evidence was incomplete, as a result whereof, the case of the prosecution became doubtful, was to the effect, that the seal remained with the junior police official throughout, until the sample was allegedly sent to the office of the Chemical Examiner, and, as such, the possibility of tampering with the seals, and changing the contents of the sample parcel, could not be ruled out. The submission of the Counsel for the appellant, in this regard, also appears to be correct. As stated above, the seal after use was handed over to Harjinder Singh, HC, by Surinderpal Singh, ASI, the Investigating Officer, and the seal of Sampuran Singh, SI/SHO, after use was retained, by him. It means that the case property, and the seal, remained under the overall control of the Investigating Officer, until the sample was sent to the office of the Chemical Examiner. As stated above, other independent evidence, produced by the prosecution, to prove the completion of link evidence, has not only been found to deficient, but also unreliable. In Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1) RCR (Criminal) 406 (S.C.), the packets of contraband and the seal, remained in the custody of the same person. In these circumstances, it was held that the Crl. Appeal No.72-SB of 1997 5 possibility of the seized substance, being tampered with, could not be ruled out. In State of Punjab Vs. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, the seal after use was handed over to a subordinate police official. In these circumstances, it was held by a Division Bench of this Court, in the aforesaid case, that it created a doubt in the mind of the Court, regarding tampering with the case property, and the sample parcel. In the instant case, the prosecution miserably failed to prove that none tampered with the sample parcel, until it reached the office of the Chemical Examiner, on account of the seal, having remained with the same person, under whose control, the case property and the sample parcel was. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. It, therefore, can be held that the prosecution failed to complete the link evidence, as a result whereof, its case is bound to be dwindle down. 11. It was next contended by the Counsel for the appellant, that though the alleged recovery, in the instant case, was effected on 24.10.1994, whereas, the sample was sent to the office of the Chemical Examiner, on 8.11.1994 i.e. after a delay of 15 days, and since the seal remained with the junior official, the possibility of changing the material and tampering with the case property, could not be ruled out. He further contended that no explanation was furnished by the prosecution witnesses, as to why a delay of 15 days was caused, in sending the sample, and whether the sample remained untampered with, until it reached the office of the Chemical Examiner. The submission of the Counsel for the appellant, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the, delay of 15 days, in sending the sample to the office of the Chemical Examiner. 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 Chemical Examiner. Since, the sample was allegedly sent to the office of the Crl. Appeal No.72-SB of 1997 6 Chemical Examiner, after about 15 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 Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, 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. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Chemical Examiner. As stated above, the other evidence produced by the prosecution, in this case, is not only deficient, but also unreliable, to prove this factum. 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 15 days, in sending the sample to the office of the Chemical Examiner, 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. No doubt, Surinderpal Singh, ASI (PW-1), stated that on reaching the Police Station, he produced the case property including the sample parcels, and the accused, before Sampuran Singh, SI/SHO (PW-3), who verified the same, and affixed his seal thereon. However, the evidence of Surinderpal Singh, ASI, in this regard, appears to be doubtful. Even the evidence of Crl. Appeal No.72-SB of 1997 7 Sampuran Singh, SI/SHO, before whom the case property was allegedly produced, does not inspire confidence. During the course of his cross- examination, it was stated by him, that he did not break open the seals of the case property, as also the sample parcels, to verify the contents thereof. He further stated that the case property was not weighed by him. It was further stated by him, that he did not record the statement of any witness. He further stated that no case diary was recorded by him, regarding the production of the case property, and the sample parcel, before him, by Surinderpal Singh, ASI. He further stated that he did not record any entry in the DDR, that the case property and the sample parcels, were produced before him. There is nothing, on record, that the statement of Sampuran Singh, SI/SHO, was recorded by Surinderpal Singh, ASI. Had the case property and the sample parcels been produced before the SHO, his statement would have certainly been recorded, in that regard. In that event, he would have certainly made an entry of this fact, in the case diary, or in the DDR. In the absence of adoption of such a course, by Surinderpal Singh, ASI, and Sampuran Singh, SI/SHO, it can very well said that the case property, and the sample were not produced before him. As such, there was intentional and deliberate contravention of provisions of Section 55 of the Act. Thus prejudice was caused to the accused, on account of this reason. 13. 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 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. In Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Criminal) 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 vitiate the trial or Crl. Appeal No.72-SB of 1997 8 conviction. 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 to 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 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, and the order of sentence dated 17.12.1996, are set aside. The appellant shall stand acquitted of the charge framed against him. If Crl. Appeal No.72-SB of 1997 9 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. March 28, 2008 (SHAM SUNDER) Vimal JUDGE