Crl. Appeal No.316-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.316-SB of 1995 Date of Decision : May 23, 2008 Ramesh Chand of Babu Ram, ....Appellant R/o Lehragaga, District Sangrur. Versus The State of Punjab ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sachin Sharma, Advocate, for the appellant. Mr. H.S.Brar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 28.1.1995, and the order of sentence of the even date, rendered by the Court of Addl. Sessions Judge, Sangrur, vide which it convicted the accused/appellant, 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 two years, for having been found in possession of 20 Kgs. poppy-husk, without any permit or licence. 2. The facts, in brief, are that on 8.6.1994, Maghar Singh, ASI, of Police Post Kauhrian, alongwith other police officials, was present at bus stand, village Ubhyan, in connection with search of the suspected persons. Nirmal Singh, PW, met the police party. He was joined with the police party. The police party was proceeding towards village Shadi Hari, and when it reached on Crl. Appeal No.316-SB of 1995 2 the bridge of drain, in the area of Village Ubhyan, the accused was seen coming from the opposite side, having a gunny bag, on his head. On seeing the police party, he tried to retreat, but was apprehended, on suspicion. The search of the bag, being carried by him, was conducted, in accordance with the provisions of law, as a result whereof, 20 Kgs. poppy-husk, was recovered therefrom. Two samples of 250 grams each, were separated therefrom, and the remaining poppy-husk was put into the same bag. The samples, and the remaining poppy- husk, were converted into parcels, duly sealed, and 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 Tara Singh, HC, (PW-1), Maghar Singh, ASI (PW-2), and Gurwinder Singh, SHO, (PW-3). The Public Prosecutor for the State, tendered into evidence, Exs.PF and PG, the affidavits of the formal witnesses, and also Ex.PE, report of the Chemical Examiner. 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 produce any evidence, in his defence. 6. After hearing the Public Prosecutor for the State, the Counsel for 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 Crl. Appeal No.316-SB of 1995 3 of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. I have heard the 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, submitted that though the affidavits of the formal witnesses, Exs. PF and PG, were tendered into evidence, yet they were not produced in the Court, on that date, or even later on, for their cross-examination, and, as such, the link evidence became incomplete. These affidavits, without offering an opportunity to the accused, to cross-examine Gurmail Singh, HC, and Rattan Singh, Constable, could not be taken into consideration, as legally admissible evidence. The accused has a valuable and indefeasible right to cross-examine the witnesses. He must be afforded an opportunity to do so. It is a different matter, whether he avails of that opportunity or not. The prosecution cannot take up the plea, that when the affidavits of the witnesses, were tendered into evidence, and they were not present, the accused could ask that he wanted to cross-examine them, and, thus, they could be produced. By not producing, these witnesses, for cross- examination by the accused, he was deprived of his valuable and indefeasible right. In Gian Singh Vs. State of Punjab 2006(2) RCR (Criminal) 611, the affidavits of police Constables, were tendered into evidence, but they were not produced, in the Court for cross-examination. In these circumstances, it was held that the link evidence was missing, which was 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 Crl. Appeal No.316-SB of 1995 4 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 appellant/accused is liable to be acquitted. The trial Court, in my opinion, was wrong in holding that the link evidence was complete. 10. It was next submitted by the Counsel for the appellant, that Nirmal Singh, independent witness, though joined, yet not examined by the prosecution. He further submitted that non-examination of Nirmal Singh, independent witness, must prove fatal to the case of the prosecution. It may be stated here that the perusal of the file shows that no statement was made by the Public Prosecutor for the State, giving up Nirmal Singh, independent witness, as won over by the accused. Had any statement been made by the Public Prosecutor, that Nirmal Singh, had been won over, on the basis of the reliable information, received by him, the matter would have been considered in the light thereof. The evidence of Nirmal Singh, independent witness, in my opinion, in this case, was very material, especially, in view of the fact that the recovery allegedly effected from the accused, was minor, and could be planted against him. Had any reason been assigned for non-examination of this witness, the matter would have been different. In the absence of the evidence of Nirmal Singh, only the evidence of the official witnesses remains. The evidence of the official witnesses has been carefully perused, and it does not inspire confidence. It is neither reliable, nor trustworthy. It is, no doubt, true that the Public Prosecutor for the State, is the master of the case. It is for him, to decide, as to which witness he wanted to examine and as to which witness, he did not want to examine. However, such discretion is required to be exercised by the Public Prosecutor, in accordance with the sound Judicial principles, and not arbitrarily and capriciously. In the instant case, in the absence of any data or material, Crl. Appeal No.316-SB of 1995 5 which persuaded the Public Prosecutor not to examine this witness, it could be said that the discretion was exercised by him, arbitrarily and capriciously. It is, no doubt, true that, in the absence of corroboration, through an independent source, to the evidence of the official witnesses, the case of the prosecution cannot be thrown out, over-board. However, when an independent witness was joined, but was not examined without any rhyme or reason, then certainly a doubt is cast, on the prosecution story. Had Nirmal 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 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 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 the instant case, non-examination of Nirmal Singh, made the case of the prosecution doubtful, as the evidence of the official witnesses, does not inspire confidence. The trial Court did not 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. Crl. Appeal No.316-SB of 1995 6 11. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected, in this case, on 8.6.1994, yet the samples were sent to the office of the Chemical Examiner, on 13.6.1994. He further submitted that delay of 5 days, in sending the samples, to the office of the Chemical Examiner, was not explained, by the prosecution witnesses, as a result whereof, it could be safely held that the samples did not remain untampered with, till the same reached the office of the Chemical Examiner, especially when the seal remained with the police officials. The submission of the Counsel for the appellant, in this regard, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 5 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 Chemical Examiner, after 5 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 State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. 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 Crl. Appeal No.316-SB of 1995 7 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. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. 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 5 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 same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 12. In the instant case, there was violation of the provisions of Section 55 of the Act, as the case property and the sample were not produced before the Magistrate. Section 55 of the Act, lays down that an Officer Incharge of Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized, under this Act, within the local area of that Police Station, and which may be delivered to him, and shall allow any officer who may accompany such articles, to the Police Station, or who may be deputed for the purpose, to affix his seal to such articles, or to take samples of, and from them, and all samples, so taken, shall also be sealed with a seal of the Officer-in-charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the sample are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the Crl. Appeal No.316-SB of 1995 8 same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Crl.) 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 violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, since the Investigating Officer, intentionally and deliberately breached the provisions of Section 55, he could not say that the provisions of Section 55 being directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provision is an indicator towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate Crl. Appeal No.316-SB of 1995 9 breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 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 the 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. Similar principle of law, was laid down, in Gurbax Singh's case (supra). However, the Investigating Officer, cannot totally ignore these provisions, as 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 of 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. Crl. Appeal No.316-SB of 1995 10 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 28.1.1995, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, 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. May 23, 2008 (SHAM SUNDER) Vimal JUDGE