Criminal Appeal No. 1505-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 1505-SB of 2002 Date of decision : March 04, 2008 Gurmail Singh ... Appellant Versus State of Punjab ... Respondent ... Present: Mr. Harpreet S.Rakhra, Advocate for the appellant. Ms Manjari Nehru, Deputy Advocate General, Punjab, for respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This appeal has been directed against the judgment/order of sentence dated 2.9.2002 rendered by the Court of learned Judge, Special Court, Bathinda, whereby he convicted and sentenced accused-Harbans Singh and Gurmail Singh to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- each and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for one month under Section 15 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). Criminal Appeal No. 1505-SB of 2002 -2- Shorn of all unnecessary details, the facts of the prosecution case are that on 29.6.1998, ASI Hukam Chand, in the company of other police officials, was proceeding from Village Dunewala to Sangat trijunction on a private jeep, they came across PW Ashok Kumar, who was also co-opted with the police party. When the police party neared the bridge of drain, both the accused were noticed coming on a Scooter from opposite side. They were signalled to stop. After having stopped the Scooter, they made an attempt to run away. They were overpowered on the basis of suspicion. The Scooter was being driven by Gurmail Singh accused. The aforesaid ASI told the accused that they were suspected to be in possession of some contraband and their search was to be carried out. They were offered to be searched in the presence of some Magistrate or a Gazetted Officer. The accused opted to be searched before some Gazetted Officer. Memo. Exh. PA in this behalf was prepared. On receipt of wireless message, DSP Jaspreet Singh Sidhu came at the spot. He disclosed his identity to the accused and gave option to be searched in the presence of some other Gazetted Officer or a Magistrate. The accused gave consent for their search in his presence. Memo. Exh. PB in this respect was prepared. On the directions of the DSP, the aforementioned ASI searched the bag of the accused. The same was found containing poppy husk. 250 grams of poppy husk was drawn to serve as sample. The remainder, when weighed, came to 9 Kg. 750 grams. The sample and the residue of poppy husk were converted into separate parcels, which were sealed with the seal HS and seized vide Memo. Exh. PC. The sample seal was prepared. The Scooter bearing registration No. DEN-864 was also taken into possession vide memo., Exh.PD. Ruqa, Exh.PE was sent to the Police Station. On its basis, formal Criminal Appeal No. 1505-SB of 2002 -3- FIR , Exh. PE/1 was recorded. The ASI prepared the rough site plan, Exh. PH showing the place of recovery, recorded statements of witnesses, disclosed the grounds of arrest to both the accused and on return to the Police Station, produced the case property, the sample parcel and the accused before S.H.O. Dinesh Kumar, who after verification, affixed his own seal DK and kept the case property in his custody. Later on, the case property was produced before the Ilaqa Magistrate along with the accused. On receipt of FSL report, Exh. PO and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused were charged under Section 15 of the Act, to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1- ASI Hukam Chand, PW2-Constable Jagdip Singh, PW3- DSP Jaspreet Singh, PW-4 SI Dinesh Kumar and closed its evidence by giving up Ashok Kumar, PW as having been won over by the accused. When examined under Section 313 of the Code of Criminal Procedure, both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. They came up with the plea that Gurmail Singh accused had deformity in his both legs and, as such, he cannot drive the Scooter. They did not lead any evidence in defence. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved with his conviction/sentence, Gurmail Singh has preferred this appeal. Criminal Appeal No. 1505-SB of 2002 -4- I have heard Mr. Harpreet S. Rakhra, Advocate, counsel for the appellant as well as Ms Manjari Nehru, Deputy Advocate General, Punjab, for the State of Haryana, besides going through the record with due care and circumspection. The first attack by Mr. Harpreet S. Rakhra, Advocate appearing on behalf of the appellant, on the prosecution edifice is that as alleged, Ashok Kumar, an independent witness was with the police party at the time of alleged recovery but the seal after use was handed over to ASI Baldev Singh and as is borne out from the testimony of ASI Hukam Chand, PW (Investigator), C.F.S.L form was not filled at the spot nor deposited in the Malkhana and these circumstances are fatal to the prosecution case. As against this, Ms Manjari Nehru, Deputy Advocate General,Punjab, maintained that as per Chemical Examiner's report, the seals affixed on the sample parcels tallied with the sample seal which rules out the possibility of tampering with the contents of the sample parcel. This contention does not find favour with me. The prosecution has not apportioned any reason for preferentially entrusting the seal to an official witness in the presence of an independent witness. C.F.S.L form was not filled at the spot nor deposited in the Malkhana. In re: Sukhdev Singh alias Sukha v. State of Punjab, 2006 (1) Recent Criminal Reports (Criminal) 4, the seal after use was given to the Sub Inspector of Police and not to the independent witness. It was held by the Division Bench of this Court that the possibility of seal being tampered with, substance being changed and the containers being re-sealed, cannot be ruled out. An identical view has been taken in similar circumstances in re: State of Punjab v. Nachhattar Singh alias Bania, Criminal Appeal No. 1505-SB of 2002 -5- 2007 (3) Recent Criminal Reports (Criminal) 1040. Further, in re: Bhola Singh v. State of Punjab, 2005 (2) Recent Criminal Reports (Criminal) 520, the C.F.S.L form was neither prepared at the spot nor deposited in the Malkhana and the seal remained with the police after use. It was held by this Court that such circumstance would be fatal the the prosecution case. On looking the matter in the background of the above extracted observations, the possibility of the seal being tampered with, substance being changed and the container being resealed, cannot be ruled out. It is in the cross-examination of ASI Hukam Chand, PW that “ it is correct that the gunny bag, Exh.P-1 is in torn condition and contents of the same can be taken out from the same. ” Obviously the condition of the case property is such that the substance of the gunny bag could be changed. Thus, it is very difficult to say that the case property produced at the trial was the same which was allegedly recovered from the accused. Sequelly, the prosecution has not been able to connect the accused with the case property. Ashok Kumar, PW has been given up on the pretext of his having been won over by the accused with the result, the accused have been deprived of their valuable right to cross-examine him. Only he could throw light on the veracity of the prosecution version. As would be apparent from Exh.P-1, joint consent memo. has been recorded. ASI Hukam Chand, PW-1 (Investigator) has also admitted in candid terms in his cross-examination that “ I had given a joint offer to both the accused and not individual offer. ” In the semantics of Section 50 of the Act, the offer has to be given individually and not jointly. Ostensibly, the mandatory provisions of Section 50 ibid have not been observed in letter and spirit. As its consequence, prejudice has been occasioned to the Criminal Appeal No. 1505-SB of 2002 -6- accused. It is in the testimony of Dinesh Kumar, PW-4 that “ the Duty Magistrate passed order, Exh. PM/1 to deposit the case property in Judicial Malkhana; I also produced inventory, Exh.PM before the Duty Magistrate. There was no space in the Judicial Malkhana as reported by Incharge, Judicial Malkhana; I kept the entire case property in my safe custody. ” The evidence of this witness is absolutely silent about his having obtained permission of the learned Ilaqa Magistrate to keep the case property in his own custody due to non-availability of the space in the Judicial Malkhana. When it was reported by the Incharge, Judicial Malkhana that there was no space in the Judicial Malkhana, it was obligatory upon the above mentioned witness to seek permission of the concerned Magistrate to keep the case property in his own custody due to paucity of space in the Judicial Malkhana. The case property remained in the custody of this witness. So, the possibility of the sample parcel or the case property being tampered with, cannot be ruled out. No other material point has been urged or agitated by either counsel. For the reasons enumerated above, this appeal is accepted, setting aside the impugned judgment/order of sentence passed against appellant Gurmail Singh. He is hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE March 04, 2008 RS Whether to be referred to the Reporter ? Yes/No