Criminal Appeal No. 2134-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 2134-SB of 2003 Date of Decision: 09.03.2010 Ghukkar Singh son of Jaswant Singh son of Inder Singh, aged 40 years, agriculturist, resident of village Samao, District Mansa. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Madan Sandhu, 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 18.10.02, rendered by the Judge, Special Court, Mansa, vide which, he convicted the accused, 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 him to undergo rigorous imprisonment, for a period of 05 months, and, to pay a fine of Rs. 1,000/-, and, in default of Criminal Appeal No. 2134-SB of 2003 2 payment thereof, to further undergo rigorous imprisonment, for a period of 15 days, for having been found in possession of 8 kgs 200 gms poppy husk, without any permit or licence, now falling within the ambit of non-commercial quantity. 2. The facts, in brief, are that, on 26.09.2000, Harnek Singh, Assistant Sub Inspector, alongwith some other Police officials and Inder Singh, independent witness, was present, on the bridge of canal minor, situated on the metalled road, in the revenue estate of village Atla Kalan, when car No. HR-05-C-4035 of white colour, driven by the accused, came and was stopped. On search, one gunny bag, containing 8 kgs 200 gms poppy husk was recovered. Two samples of 100 gms, each were taken out, and the remaining poppy husk, was kept, in the same bag. The samples and the bag, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the first information report was registered. The site plan of the place of recovery was prepared. The accused, was arrested. After the completion of investigation, he was challaned. 3. On his appearance, in the Court, the accused, was 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 him, to which, he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Teja Criminal Appeal No. 2134-SB of 2003 3 Singh, Constable-I (PW1), and, Harnek Singh, Assistant Sub Inspector (PW2), the 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 he was innocent, and nothing was recovered from him. 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 through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that, no doubt, an independent witness, in the name of Inder Singh, 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 Inder Singh, independent witness, cast a cloud of doubt, on the prosecution story. The submission of the Counsel for the appellant, in this regard, 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 Criminal Appeal No. 2134-SB of 2003 4 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. 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, 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 was held that the case of the prosecution became doubtful. In Masalti Vs. State of UP, AIR 1965 SC 202, a four Judge Bench of the Apex Court, held that it is, undoubtedly, the duty of the prosecution, to lay before the Court, all Criminal Appeal No. 2134-SB of 2003 5 material evidence, available to it, which is necessary for unfolding its case, but it would be unsound to lay down, as a general rule, that every witness must be examined, even though, his evidence may not be very material, or even if, it is known that he has been won over or terrorised. The principle of law, laid down, in the aforesaid cases, reveals that the witness whose evidence is material to unfold the case of the prosecution, must be examined, until and unless, he has been won over or terrorized. 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. 11. It was next submitted by the Counsel for the appellant, that, even Balwinder Singh Romana, Deputy Superintendent of Police, in whose presence, the alleged recovery, was effected, was not intentionally examined, by the prosecution, as a result whereof, an adverse inference could be drawn that had he been examined he would not have supported the case of the prosecution. The submission of the Counsel for the appellant, in this regard, appears to be correct. The Deputy Superintendent of Police, could be said to be a very important prosecution witness. No reason, was assigned, by the Additional Public Prosecutor, for the State, as to why, the Deputy Superintendent of Police, was not examined. It is, no doubt, true that, it is not necessary, for the Additional Public Prosecutor, for the State, to examine each and every witness. However, a witness, whose evidence, is essential, to unfold the prosecution story, is required to be examined, by the Additional Public Prosecutor, for the State, so as to lend authenticity to Criminal Appeal No. 2134-SB of 2003 6 the prosecution case. Had any reason been assigned, by the Additional Public Prosecutor, for the State, for not examining the Deputy Superintendent of Police, the matter, would have been considered, in the light thereof. In the absence of any rhyme or reason, assigned by the Additional Public Prosecutor, for the State, it could be said, that Balwinder Singh Romana, Deputy Superintendent of Police, was not intentionally and deliberately examined, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, being correct is accepted. 12. It was next submitted by the Counsel for the appellant, that though the alleged recovery, was effected, on 26.09.2000, yet the sample parcels, were sent, to the office of the Forensic Science Laboratory, on 29.09.2000, i.e. after delay of three days, which remained unexplained, and, as such, the possibility of tampering with the same, until, the same reached the office of the Forensic Science Laboratory, could not be ruled out, especially when the seal throughout, remained in the possession of the Police official. 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 samples 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 Criminal Appeal No. 2134-SB of 2003 7 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 samples were sent to the Forensic Science Laboratory, the same were 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 Chemical Examiner. 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 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 Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1), RCR (Criminal), 406 (S.C.), charas was Criminal Appeal No. 2134-SB of 2003 8 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 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. 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, 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. Since the possibility of tampering with the case property, and the samples, could not be ruled out, in the instant case, a serious doubt, on account of this reason, was cast on the prosecution case. The submission of the Counsel for the appellant, being correct is accepted. 13. No other point was urged, by the Counsel for the parties. 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. Had the trial Court taken into consideration, the aforesaid infirmities and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 15 of the Act. The judgment of conviction, and the order of sentence are, thus, 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 Criminal Appeal No. 2134-SB of 2003 9 18.10.02, 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. 16. 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. 09.03.2010 (SHAM SUNDER) AMODH JUDGE