Criminal Appeals No. 662 and 774-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeals No. 662 and 774-SB of 2001 Date of decision : February 13, 2008 Balbir Singh and another ... Appellants Versus State of Punjab ... Respondent ... Present: Mr. Ranjan Lakhanpal, Advocate and Mr.P.C.Chaudhry, Advocate for the appellants. Mr. Shilesh Gupta, Deputy Advocate General, Punjab, for respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This judgment shall dispose of Criminal Appeals No. 662 and 774-SB of 2001 as they emanate from the same judgment/order of sentence dated 16.4.2001 rendered by the Court of learned Special Judge, Ferozepur, whereby he convicted and sentenced the accused-appellants Balbir Singh and Vinod Kumar to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for one year under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). Criminal Appeals No. 662 and 774-SB of 2001 -2- Short of all unnecessary details, the facts of the prosecution case are that on 2.4.1994, Sub Inspector Baldev Singh, Incharge, CIA Staff, Zira, in the company of other police officials, while in Government Canter was proceeding from Village Daulewala to Village Kadarwala for patrolling along Kacha path. When the police party neared the Canal minor in the area of Village Kadarwala, the accused Balbir Singh and Vinod Kumar were noticed approaching from the opposite side by carrying one gunny bag each on their respective heads. On catching sight of the police party, they made an attempt to slip away towards their right hand side into the fields. They were intercepted on suspicion. DSP Surinder Singh of Sub-Division Zira, on receipt of wireless message, came at the spot. He disclosed his identity to both the accused. On his directions, the above mentioned Sub Inspector carried out search of the bags, which yielded poppy husk. 250 grams of poppy husk was drawn from each bag to serve as sample. The residue of each bag, when weighed, came to 40 Kgs. The sample parcels as well as the residue were converted into separate parcels and sealed with the seal BS. The specimen seal impression was prepared and the case property along with sample parcels was seized vide recovery memo. On personal search of each accused, nothing was recovered. The aforesaid Sub Inspector prepared the Ruqa and sent the same to the Police Station and on its basis, formal FIR was recorded, made both the accused aware of their grounds of arrest, prepared the rough site plan showing the place of recovery, recorded the statements of witnesses and on return to the Police Station, produced both the accused as well as the case property, sample parcels before the SHO Surinder Pal, who after verification, affixed his own seal bearing letters SP and took the case property as well as sample parcel into his custody. On Criminal Appeals No. 662 and 774-SB of 2001 -3- receipt of Chemical Examiner's report 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 they did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution examined PW1-Constable Roshan Lal,PW2 SI/SHO Surinder Pal, PW3-SI (then ASI) Manjit Singh, PW4-SI Baldev Singh, PW5-Surinder Singh Atwal, SP (then DSP), PW6-HC Gurbhajan Singh and closed its evidence. 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 did not lead any evidence in their defence. After hearing the learned Additional Public Prosecutor for the State, the learned counsel for the accused and examining the evidence on record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved with their conviction/sentence, both the appellants have preferred these appeals. I have heard Mr. Ranjan Lakhanpal, Advocate counsel for the appellants as well as Mr. Shilesh Gupta, Deputy Advocate General, Punjab, for the State of Punjab, besides going through the record with due care and circumspection. Mr. Ranjan Lakhanpal, Advocate on behalf of the appellants assiduously urged that as is being evidenced by Exh. P10, the order passed by the learned Ilaqa Magistrate on police application, Exh. P9, the sample seal was not found by the learned Magistrate on the police file for its comparison with the seals affixed on the sample parcels as well as the Criminal Appeals No. 662 and 774-SB of 2001 -4- parcels containing the residue and if there was no sample seal from where the same were sent with the sample parcels to the office of the Chemical Examiner. He further puts that the prosecution has not furnished any explanation in this behalf and this gives rise to an inkling that the sample seal was fabricated later on for being sent with the sample parcels to the office of the Chemical Examiner and, thus, the link evidence is missing. To tide over these submissions, Mr. Shilesh Gupta,Deputy Advocate General, Punjab, on behalf of the State, maintained that the police official who produced the case property as well as the sample parcel before the learned Ilaqa Magistrate may not have been able to trace the sample seal from the police file being in a hurry or the same may have escaped his notice while producing the police file before the Ilaqa Magistrate and due to that reason, attention of the Ilaqa Magistrate could not be drawn towards the same. This contention merits rejection. The learned Magistrate vide his order, Exh. P10 has made the following observations :- “ 3.4.94 Present accused in custody with Gurbhajan Singh HC. Four parcels-two stated to contain samples and two stated to contain the bulk of the recovered substances produced. Their seals are intact. I could not find a sample of the seal on police file for their comparison with the same. parcels stated to contain samples be sent to Forensic Science Laboratory. ” It is crystal clear from the above order to which the sanctity is Criminal Appeals No. 662 and 774-SB of 2001 -5- attached with the sample seal was not produced before the learned Magistrate. Had the same been prepared at the spot, by all probability, the same might have been available in the police file. The non-availability of the same in the police file leads to an unerring and unmistakable conclusion that the sample seal indeed was not prepared at the place of recovery. As per Exh. P-1 the Chemical Examiner's report, the sample seal was also received with sample parcel in the office of the Chemical Examiner. If the sample seal was not brought into being at the spot, it remains in the womb of mystery as to from where the same came when the sample parcel was sent to the Chemical Examiner's office. In such circumstances, it would be quite reasonable and legitimate to drawn an inference that the sample seal was fabricated and thus the link evidence is missing in this case. It is also not to be lost sight of the fact that Constable Roshan Lal, PW-1, who carried the sample parcel to the office of the Chemical Examiner, in the first part of his examination-in-chief, deposed that on 6.4.1994 SI Surinder Pal handed over to him two parcels containing poppy husk through road certificate and directed him to get docket prepared from the office of S.S.P Ferozepur to deposit with the Chemical Examiner, Bathinda. In the latter part, he states that on the same day, he got the docket prepared from the office of the S.S.P, Ferozepur, and on 7.4.1994, he deposited both the parcels along with the sample seal with the office of the Chemical Examiner, Bathinda. On appreciating this evidence, it transpires that the sample seal was not handed over to him and if it was so, how he has stated that he also deposited the sample seal with the Chemical Examiner, is an enigma. Thus, there can be no escape from the finding that the link evidence is missing in this case. Criminal Appeals No. 662 and 774-SB of 2001 -6- Mr. Lakhanpal further argued that as is borne out from the evidence on record, the F.S.L form was not filled at the spot nor deposited in the Malkhana on 2 or 3.4.1994 which create serious doubt about the genuineness of the sample parcel and furthermore the case property was not produced at the trial and the MHC with whom the case property was deposited, has not been examined to prove that the case property was not tampered with during the period the same remained in the Malkhana. As against this, Mr. Shilesh Gupta on behalf of the State, pressed into service that the case property was produced at the trial. I have given a deep and thoughtful consideration to their rival contentions. A reading of the testimony of SI Baldev Singh, PW-4 between the lines would reveal that as stated by him,the samples and the bags were sealed by his own seal bearing impression BS,but he has no where stated that the seal after use was handed over to any body. It implies that the seal was retained by him. It is also in his evidence that SI Surinder Pal resealed the case property and the samples with his own seal bearing letters SP and retained the same in his own custody. It too indicates that the seals remained with the police officials. SI Baldev Singh is silent about his having prepared the C.F.S.L form at the spot or its deposit in the Malkhana. This apart, the sample parcel was despatched to the office of the Chemical Examiner after 4 days. When the seals remained in the custody of the police officials and the C.F.S.L form was not prepared at the spot nor deposited in the Malkhana, the possibility of the contents of the sample parcel and the bags containing the residue, cannot be ruled out. In re: Bhola Singh v. State of Punjab, 2005 (2) Recent Criminal Appeals No. 662 and 774-SB of 2001 -7- Criminal Reports (Criminal) 520, it has been observed by this Court that where the seal remained with the police after use and the C.F.S.L form was neither prepared at the spot nor deposited in the Malkhana, such circumstance would be fatal the the prosecution case. Filling of such form at the spot is a very valuable safeguard to ensure that the sealed sample is not tampered with till its analysis by the F.S.L. It is in the cross-examination of SI Baldev Singh,PW-4 (Investigator) that “ I apprehended the accused; that the bags were alighted from the heads of the accused and they were placed on the ground; that the accused were made to sit on the bags; that the accused were sitting on the bags when the DSP reached at the spot. ” This witness has not apportioned any reason worth the name for doing all this rigmarole. He has stated that he has not seen the case property today in the Court. In the statements of SI Surinder Pal PW-2, SI Manjit Singh PW-3, SP S.S.Atwal PW-5 or any other witness, the case property has not been exhibited. To be in fairness to the prosecution, it is in the examination-in-chief of Baldev Singh,PW-4 that both the sample bags containing poppy husk, Exhs. M/1 and M/2 were taken into possession vide Memo., Exh. PZ. It appears that if this evidence is taken on its face value, then the case property was produced in the Court, though he took a somersault in his cross-examination by stating that I have not seen the case property in the Court. Gurbhajan Singh, PW-6 has stated that on 3.4.1994, SI Surinder Pal,SHO Dharmkot handed over to him the case property of this case for production in the Court of Ilaqa Magistrate along with the accused vide his request, Exh. P-9, but in his cross- examination, he stated that his statement under Section 161 of the Code of Criminal Procedure was not recorded by the Investigating Officer. He Criminal Appeals No. 662 and 774-SB of 2001 -8- further regretted his inability to tell the name of the Presiding Officer of the Court of Ilaqa Magistrate at that time. He may have forgotten the same. It is not much serious, but the prosecution has not assigned any reason for not recording the statement of this witness under Section 161 of the Code of Criminal Procedure. In view of the foregoing discussion, this appeal is accepted, setting aside the impugned judgment/order of sentence. The appellants are hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE February 13, 2008 RS Whether to be referred to the Reporter ? Yes/No