IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 2164-SB of 2005 Date of Decision: November 18, 2009 Roop Singh. …Appellant Versus State of Punjab. …Respondent CORAM: HON’BLE MR. JUSTICE S.D. ANAND. Present: Ms. Tanu Bedi, Advocate, as Amicus Curiae, for the appellant. Mr. B.B.S. Teji, AAG, Punjab. S.D. Anand, J. Appellant – Roop Singh was convicted by the learned Trial Court for an offence under Section 15 of the Narcotic Drugs & Psychotropic Substance Act and was sentenced to undergo rigorous imprisonment for a period of 1- 1/2 years and to pay fine of Rs.1,000/-. In default of the payment of fine, the appellant was directed to undergo further rigorous imprisonment for a period of two months. The prosecution allegations, upheld at the trial, were as under:- Crl. Appeal No. 2164-SB of 2005 On 26.08.2004, a police party headed by ASI Gulab Singh (PW1) was available at Bus Stand, Majhi, in the course of patrolling. Jaspal Singh @ Ghoki, PW (not examined at the trial) met them over there and was joined in the police party which (party) was proceeding on the kacha path leading to Village Majhi, when it spotted the appellant coming from the side of Village Nakte. The appellant was cycling down from that side; while carrying a gunny bag on the carrier thereof. On spotting the police party, the appellant tried to retrace his steps but was apprehended on suspicion and was interrogated by ASI Gulab Singh, who told him that he suspected that the gunny bag contained a contraband and that it required a search. ASI Gulab Singh further informed the appellant that if the latter desired, search could be conducted in the presence of a Magistrate or a Gazetted Officer. However, the appellant reposed confidence in the police party. After documenting his consent, ASI Gulab Singh proceeded to search the gunny bag which was found to contain poppy husk. Two samples of 250 grams each were drawn and made into sealed parcels. The remaining poppy husk, on weighment, was found to be 17.500 grams. That, too, was put into that very gunny bag and was made it into a parcel. Thereafter, all the parcels were sealed by ASI Gulab Singh with his seal as `GS’. The seal, after use, was handed over to Jaspal Singh PW. 2 Crl. Appeal No. 2164-SB of 2005 The usual formalities were complied with and the appellant was challaned in due course. The appellant denied the prosecution allegations in toto. However, the appellant did not adduce any evidence in defence. The learned Trial Judge placed reliance upon the testimony of the prosecution witnesses and proceeded to record the finding under challenge. I have heard the learned Amicus Curiae and the learned State counsel. (Learned counsel through whom the appeal had been filed opted to refrain from entering appearance and it was under those circumstances that this Court was impelled to obtain the assistance of the learned Amicus Curiae). It is apparent from the record that the only independent witness of the party i.e. Jaspal Singh PW was not examined at the trial. There is, thus, no substantive evidence on record to own up the prosecution averment that the seal, after use, had been handed over to Jaspal Singh PW. The learned Trial Judge ignored the fact that non-examination of the independent PW in a casual manner. It observed that there was nothing on record to show that the independent witness Jaspal Singh was a false witness. The learned Trial Judge further observed that the prosecution need not explain the purpose for which the independent witness happened to 3 Crl. Appeal No. 2164-SB of 2005 be around at the spot. (There is no need to explain by the prosecution for which purpose independent witness was going and how he came on the spot etc. The independent witness is stated to be on scooter. He may have come there to meet relative or for any other work.) The reasoning adopted by the learned Trial Judge, in discarding the relevant plea, is not correct. By the very nature of things, an independent witness has a much better credibility than the official witnesses who are expected to be interested in the success of the case which may not necessarily be true of an independent witness. It is further apparent, from a perusal of the material presently obtaining on the file, that the grounds of arrest were not communicated to the appellant. Besides it, the case property had not been produced by the Station House Officer before the learned Illaqa Magistrate. It is the statutory requirement that the Investigating Officer shall produce the case property to the Station House Officer and the latter shall further produce it before the learned Illaqa Magistrate. The needful not having been done, there is a valid justification for this Court to draw an inference that the prosecution has not been able to prove that it had complied with all the legal requirements. No special report of the occurrence under adjudication had been forwarded to the learned Illaqa Magistrate and other higher authorities. It is neither here nor 4 Crl. Appeal No. 2164-SB of 2005 there for the learned Trial Judge to state that the relevant requirement is only directory and not mandatory. It may be noticed that there is certain amount of sacrosanctity attached to all the investigatory steps. If things had been done in a proper manner, this Court could hold that the stage by stage progress of the case had been duly notified to the higher authorities which is not so in the present case. In the light of the foregoing discussion, the appeal shall stand allowed. The appellant shall stand acquitted of the charge. The order granted by the learned Trial Court, on point of the disposal of the case property, shall however stay intact. Disposed of accordingly. November 18, 2009 ( S.D. Anand ) vkd Judge 5