Criminal Appeal No. 1447-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1447-SB of 2004 Date of Decision: 11.05.2010 Jagsir Singh son of Gurbax Singh son of Ganga Singh, aged 20/22 years, Labourer, resident of village Matta, Distt. Faridkot. ... Appellant Versus The State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vikas Chatrath, Advocate, for the appellant. 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 06.03.2000, rendered by the Special Judge, Ferozepur, vide which, he convicted the accused (now appellant), for the offence, punishable under Section 18 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced him to undergo Rigorous Imprisonment, for a period of 10 years, and, to pay a fine of Rs. 1 lac, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 01 year, for having been found Criminal Appeal No. 1447-SB of 2004 2 in possession of 1 kg 160 gms opium, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 08.06.96, Kashmir Singh, Sub Inspector, alongwith some other Police officials, was on patrol duty, and, going in a government gypsy, from village Santuwala towards village Kacharbhan. When the Police party, was just four killas behind the bridge of canal minor, in the area of village Santuwala, Jagsir Singh, accused, was seen coming, from the opposite side, having a bag, in his hand. On seeing the Police party, the accused, immediately turned towards his left side, but, was overpowered on suspicion. Thereafter, Kashmir Singh, Sub Inspector, apprised the accused, that he suspected some contraband, in the bag, and wanted to search the same. Consequently, on search of bag, in the presence of Baljinder Singh Grewal, Deputy Superintendent of Police, who was called to the spot, 1 kg 160 gms opium, wrapped in a glazed paper, was recovered. A sample of 10 gms, was separated therefrom, and put in a match box, whereas, the remaining opium, was kept, in a plastic jar. The sample and the plastic jar, containing the remaining opium, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Personal search of the accused, also led to the recovery of Rs. 130/-, which were also taken into possession, vide a separate recovery memo. Site plan of the place of recovery was prepared. Ruqa was sent to the Police Station, on the basis whereof, the first information report was registered. The accused was arrested. After the completion of investigation, he was challaned. Criminal Appeal No. 1447-SB of 2004 3 3. On his appearance, in the Court, the accused, was supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 18 of the Act, was framed, against the accused, which was read-over and explained to him, to which, he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Paramjit Singh, Constable (PW1), Tarlok Singh, Assistant Sub Inspector (PW2), a witness to the recovery, Baljinder Singh, Superintendent of Police (D), at the relevant time, Deputy Superintendent of Police (PW3), another witness to the recovery, and, Kashmir Singh, Sub Inspector/Station House Officer (PW4), Investigating Officer. Thereafter, the prosecution evidence was closed. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that nothing, was recovered, from him, and, he had been falsely implicated, in the instant case. He, however, did not lead any evidence, in defence, and closed the same. 7. After hearing the Counsel for the parties, and, on going 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 appellant. 9. I have heard the Counsel for the parties, and, have gone Criminal Appeal No. 1447-SB of 2004 4 through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that, no independent witness, was joined, despite availability, and, as such, the case of the prosecution became highly doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. During the course of his cross-examination, Tarlok Singh, Assistant Sub Inspector, PW2, a witness to the recovery, stated that, there are offices of SDM, Tehsildar, Municipal Committee, Civil Hospital, and, Civil Courts, adjoining the Police Station. He further stated that, general public, is available there. He further stated that, they did not join any independent witness before proceeding. He further stated that, no independent witness, was also joined, on the way. He further stated that, weighing material, was brought, by Shingara Singh, Head Constable, from village Kachan Bhann, and, he also did not bring any public witness alongwith him. Kashmir Singh, Sub Inspector, PW4, the Investigating Officer, during the course of his cross- examination, also stated that, they did not join any independent witness, while starting from Zira, on the way. He further stated that, he asked the Head Constable, who went, to bring the weighing material also to bring some independent witness. He further stated that, he also tried to join an independent witness, at the spot, but none was available. He further stated that, this fact, was mentioned, in the case diary, but not, in the ruqa. When he was asked, to see the case diary and depose, as to whether, this fact, was mentioned therein, he stated that, it was not mentioned therein. There is nothing, on the record, as to whether, Criminal Appeal No. 1447-SB of 2004 5 the Head Constable, brought any independent witness, from the village, wherefrom, he brought the weighing material or what he told to the Assistant Sub Inspector, if he did not bring any independent witness. From the perusal of the evidence of Tarlok Singh, Assistant Sub Inspector, and, Kashmir Singh, Sub Inspector, it is evident that, no real and sincere efforts, were made, to join an independent witness. It could not be imagined, that no independent witness, was available, in the village, or, at the place, wherefrom, the alleged recovery, was effected, as admittedly, the general public, was passing there, as it was a thoroughfare. Since, the minimum stringent punishment is provided for the offences, punishable under the Act, and according to the provisions of Section 51 of the Act, the provisions of the Code of Criminal Procedure, relating to search, seizure and arrest shall apply to the extent the same are not inconsistent with the provisions of the Act, it was imperative, on the part of the Investigating Officer, to join an independent witness, at the time of the alleged search, and seizure or at least to make a genuine, sincere and real effort, to join such a witness. The search and seizure, before an independent witness, would have imparted much more authenticity, and creditworthiness, to the proceedings, so conducted. It would have also verily strengthen the prosecution case. The said safeguard was also intended to avoid criticism of arbitrary and high-handed action, against the authorized Officer. In other words, the Legislature, in its wisdom, considered it necessary to provide such a statutory safeguard, to lend credibility to the procedure, relating to search and seizure, keeping in view the Criminal Appeal No. 1447-SB of 2004 6 severe punishment, prescribed under the Act. That being so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute, and failure to do so, must be viewed with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of statutory safeguards, committed by the authorized officer, during search and seizure operation and may also undermine respect of law. That cannot be permitted. It was the bounden duty of the Investigating Officer, to observe all the safeguards, provided under the Act, at the time of search and seizure. 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. Bhupinder Singh 2001 (01) RCR (Crl.) 356, a Division Bench of this Court, held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the recovery was effected from a busy locality. In State of Punjab Vs. Ram Chand 2001 (1) RCR (Crl.) 817, Criminal Appeal No. 1447-SB of 2004 7 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. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution, became highly doubtful. 11. It was next submitted by the Counsel for the appellant, that though, the alleged recovery, in this case, was effected, on 08.06.96, yet, the sample, was sent, to the office of Chemical Examiner, on 12.06.96 i.e. after a delay of 04 days, which remained unexplained, and, as such, the possibility of tampering with the same, could not be ruled out, especially, when the seal remained, in possession of the official witnesses throughout. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true that if the other evidence, produced by the prosecution to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the sample to the Chemical Examiner, pales into insignificance. However, if the other evidence, is not found to be creditworthy, then delay certainly proves fatal to the prosecution case. In this case, the other evidence produced by the prosecution, to prove the completion of link evidence, is neither reliable nor trustworthy. It is for the prosecution to prove affirmatively, that right from the date of seizure, until the sample was sent to the Criminal Appeal No. 1447-SB of 2004 8 Chemical Examiner, the same was not tampered with. If the prosecution fails to prove this factum, then its case is bound to dwindle down. In State of Rajasthan Vs. Gurmail Singh, 2005(2) RCR (Crl.), 58, S.C., the contraband, was kept in the Malkhana for 15 days. The Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence, produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Forensic Science Laboratory. In State of Punjab Vs. Jaswant Singh, 2002(3), RCR (Crl.), 54 (DB) (P&H), there was a delay of 21 days, in sending the sample to the laboratory. In these circumstances, it was held that it must prove fatal to the prosecution case, especially when admittedly no independent witness was joined, in the recovery proceedings, and seal used for sealing the sample, remained with the Police Official, during the period. 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 Forensic Science Laboratory. 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 Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1), RCR (Criminal), 406 (S.C.), charas was recovered from the possession of the accused and sealed in two packets. The packets and the seal remained, in the custody of the same person. In these circumstances, it Criminal Appeal No. 1447-SB of 2004 9 was held that there was every possibility of the seized substance, being tampered with. The conviction of the accused was set aside, inter-alia, on this ground. Since the possibility of tampering with the case property, and the sample, could not be ruled out, in the instant case, a serious doubt, on account of this reason, was cast on the prosecution case. In Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Forensic Science Laboratory after 72 hours, and 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. The prosecution case became doubtful, on account of unexplained delay, in sending the sample, as the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, being correct is accepted. 12. It was next submitted by the Counsel for the appellant, that the sample impression of the seal, was not handed over, to Paramjit Singh, Constable, who allegedly deposited the sample parcel, in the office of the Chemical Examiner, and, as such, it could not be ascertained, as to whether, the seals, on the sample parcel, were the same, as were allegedly affixed, at the time of the alleged recovery. He further submitted that, in these circumstances, the possibility of tampering with the sample parcel, until the same reached the office of the Chemical Examiner, could not be ruled out. The submission of the Counsel for the appellant, in this regard, appears to be correct. Paramjit Singh, Constable, PW1, took the sample parcel, to the office of the Criminal Appeal No. 1447-SB of 2004 10 Chemical Examiner. He did not state even a single word, in his statement, that the sample impression of the seal, was handed over, to him, and, he deposited the same, in the office of the Chemical Examiner. It is, thus, not known, as to how, the Chemical Examiner, in his report, recorded that, the seals, on the sample parcel, tallied with the sample impression of the seal. The certificate of the Chemical Examiner, in this regard, does not appear to be correct. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the sample seal was not sent to the Laboratory, at the time of sending the sample parcel. The Apex Court, held that the case of the prosecution was doubtful, on account of this reason. In this view of the matter, the case of the prosecution also became doubtful. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, the case of the prosecution became doubtful. 13. It is evident, from the statement of Kashmir Singh, Sub Inspector, PW4, that he never deposited the case property with the Moharrir Head Constable. It was stated by him that, on return, to the Police Station, he kept the case property, in his custody, in the Malkhana. He further stated that, the sample, was sent, by him, which was deposited, by Paramjit Singh, Constable. He did not state even a single word, that the case property, was ever deposited, in the Malkhana of the Police Station. In the normal course, the case property, is deposited, by the Investigating Officer with the Moharrir Head Constable, who enters the same, in Register No. 19. Such an entry, is made, in the register, so as to provide authenticity, to the raid, Criminal Appeal No. 1447-SB of 2004 11 conducted, by the Investigating Officer, and, to prove, on the record, as to which case property, was recovered, from the accused. Why he did not deposit the case property, with the Moharrir Head Constable, at any point of time, is not known. The seal also remained with him throughout. Under these circumstances, the possibility of tampering with the case property, could not be ruled out. It was for the prosecution, to prove, through positive evidence, that none tampered with the case property and the sample parcel throughout. In this case, the prosecution, miserably failed, to prove this factum. This caused a dent, in the prosecution story. 14. No other point, was urged, by the Counsel for the parties. 15. In view of the above discussion, it is held, that the judgement of conviction and the order of sentence, are not based, on the correct reading and due appreciation of evidence, as also the law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would have certainly come to the conclusion, that the prosecution, had failed, to prove its case, beyond a reasonable doubt. The findings, recorded by the trial Court, recording conviction and awarding sentence, to the accused (now appellant), are perverse and illegal, and, as such, liable to be set aside. 16. For the reasons recorded above, the appeal, is accepted. The judgement of conviction and the order of sentence, rendered by the trial Court, are set aside. The appellant, is acquitted of the charge framed against him. If the appellant, 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 Criminal Appeal No. 1447-SB of 2004 12 required in any other case. 17. The concerned Chief Judicial Magistrate, shall comply with the judgment, forthwith and send the compliance report, within a period of 15 days, from the date of receipt of a copy of the same. 11.05.2010 (SHAM SUNDER) Amodh JUDGE