Criminal Appeal No. 1052-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1052-SB of 2003 Date of Decision : 10.02.2010 Makhan Singh son of Gurdial Singh r/o Mallekan, Tehsil and District Sirsa. …Appellant Versus State of Haryana. …Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. G.K. Hundal, Advocate, for the appellant. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence, dated 10.02.03, rendered by the Court of Additional Sessions Judge, Sirsa, vide which, it convicted the accused (now appellant), 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 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 two years, for having been found in possession of 80 kgs of poppy husk, without any permit or licence, falling within the ambit of commercial quantity. Criminal Appeal No. 1052-SB of 2003 2 2. The facts, in brief, are that, on 25.11.97, Gurmeet Singh, Assistant Sub Inspector, Police Station Sadar, Sirsa, received a secret information, that the accused, would be transporting poppy husk or liquor, in a jeep bearing No. DED-6575, near village Madho Singhana. Relying upon the secret information, a picket was held there. After sometime, a blue coloured jeep, was seen coming, from the side of village Madho Singhana, which was got stopped. Two persons jumped out of the same. One of them, was identified, as Satnam Singh. The second occupant thereof, could not be identified, by the Police, whereas, the third occupant, namely Makhan Singh, was apprehended, at the spot, by the Police, on suspicion. On search of the jeep, in the presence of Sh. Rajiv Sharma, Naib Tehsildar, Sirsa, who was called to the spot and reached there, two bags, each containing 40 kgs of poppy husk, were recovered. Two samples of 250 gms each, were separated therefrom, and the remaining poppy husk, was kept, in the same bags. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide separate recovery memo. The accused, was arrested. The statements of the witnesses were recorded. 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. Criminal Appeal No. 1052-SB of 2003 3 5. The prosecution, in support of its case, examined Siri Niwas, Head Constable (PW1), Dariya Singh, Assistant Sub Inspector (PW2), Bhagirath, Head Constable (PW3), Dalbir Singh, Constable (PW4), Gurmeet Singh, Assistant Sub Inspector (PW5), the Investigating Officer, Raj Karan, Assistant Sub Inspector (PW6), Krishan Kumar, Sub Inspector (PW7), and, Rajiv Sharma, Tehsildar (PW8), a witness to the recovery. Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence. 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, by the Police. It was further stated by him that he was falsely implicated, in the instant case, on account of enmity with Gurmeet Singh, Assistant Sub Inspector, as he had demanded his jeep, to which, he refused. He did not adduce any evidence, in defence. 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 accused/appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. Criminal Appeal No. 1052-SB of 2003 4 10. The Counsel for the appellant, at the very outset, submitted that, no independent witness, was joined despite availability, by the Investigating Officer. She further submitted that, this fact, casts a cloud of doubt, on the prosecution story. The submission of the Counsel for the appellant, in this regard, appears to be correct. Siri Niwas, Head Constable, PW1, during the course of his cross-examination, stated that, no body, from the public, was asked to become a witness, after receipt of secret information. He also stated that road wherefrom the recovery was effected is a thoroughfare. He further stated that some persons were stopped and requested to become witnesses, but they showed their inability to do so. He further stated that, he could not tell their names. He further stated that, in his statement, under Section 161 of the Code of Criminal Procedure, the names of those persons were not mentioned. He further stated that, no legal action, was taken against them. From the statement of this witness, it is evident, that actually no real and sincere effort, was made, to join an independent witness. Had such an effort been made, the matter, would have been different. Had an attempt been made, to join an independent witness, and he had refused to join the Police party, then his name would have certainly been mentioned, in the case diary, and the other documents prepared, at the spot. 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 Criminal Appeal No. 1052-SB of 2003 5 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 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 Criminal Appeal No. 1052-SB of 2003 6 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, 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 despite availability, the case of the prosecution, became highly doubtful. 11. It was next submitted by the Counsel for the appellant, that the alleged recovery, was effected, on 25.11.97, whereas, the sample parcels, were sent, to the office of Forensic Science Laboratory, on 28.11.97. She further submitted that, thus, there was a delay of three days, in sending the same, which remained explained, and, as such, the possibility of tampering with the same, until, it reached the office of the Criminal Appeal No. 1052-SB of 2003 7 Forensic Science Laboratory, could not be ruled out. The submission of the Counsel for the appellant, in this regard, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of three days, in sending the sample parcels, to the office of the Forensic Science Laboratory. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the sample parcels, till the same reached the office of the Forensic Science Laboratory. Since, the sample parcels were allegedly sent to the office of the Forensic Science Laboratory, after three days, and the seal remained in possession of the Police officials, throughout, it could not be safely held that the same remained un-tampered with. 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 State of Rajasthan Vs. Gurmail Singh 2005 (2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. 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 Criminal Appeal No. 1052-SB of 2003 8 witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the samples, till the same reached the office of the Forensic Science Laboratory. The other evidence, produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. The delay of three days, in sending the sample parcels, to the office of the Forensic Science Laboratory, and non-strict proof, by the prosecution, that the same were not tampered with, till the same were deposited, in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. 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 the sample impression of the seal, was not sent alongwith the sample parcels, to the office of the Forensic Science Laboratory, and, as such, it could not be said, that the seals, on the samples, were the same, as were allegedly affixed, at the time of the recovery. The submission of the Counsel for the appellant, in this regard, appears to be correct. Dalbir Singh, Constable, testified vide his affidavit, exhibit PE, that Bhagirath, Head Constable, handed over two sample parcels, to him, duly sealed with the seal bearing, impressions 'GS' and 'KK', for deposit, in the office of the Forensic Science Laboratory. He further Criminal Appeal No. 1052-SB of 2003 9 testified that, he after getting issued the docket, from the office of ETO, Sirsa, deposited the sample parcels, in the office of the Forensic Science Laboratory, and, handed over the receipt thereof, on 28.11.98, to Bhagirath, Head Constable. He did not state that the sample impression of the seals, was also deposited by him. In the absence of deposit of sample impression of the seals, Forensic Science Laboratory was deprived of comparing the seals, on the sample parcels, with the seals, which were allegedly affixed, at the time of the alleged recovery. The possibility of tampering with the parcels, therefore, could not be ruled out especially when the seal throughout remained in the possession of the Police officials. 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. 13. It was next submitted by the Counsel for the appellant, that even the provisions of Section 55 of the Act, were not complied with intentionally and deliberately, as the case property, was not produced, before the area Magistrate for verification, at any point of time. The submission of the Counsel for the appellant, in this regard, appears to be correct. Gurmit Singh, Assistant Sub Inspector, the Investigating Officer, when appeared, as PW5, did not state even a single word, that he produced the case property, before the area Magistrate, at any point of time. Bhagirath, Head Constable, with whom, the case property, was Criminal Appeal No. 1052-SB of 2003 10 deposited, did not state even a single word, in his affidavit PD, that Gurmit Singh, Assistant Sub Inspector, took the case property, from him, for producing the same, before the area Magistrate. Section 55 of the Act, lays down, that an Officer Incharge of the Police Station, shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized, under this Act, within the local area of that Police Station, and which may be delivered to him, and shall allow any officer who may accompany such articles, to the Police Station, or who may be deputed for the purpose, to affix his seal to such articles, or to take samples of, and from them, and all samples, so taken, shall also be sealed with a seal of the Officer-in-charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the samples are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband, was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, before the area Magistrate, immediately after the search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and intentional breach of Criminal Appeal No. 1052-SB of 2003 11 the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Criminal) 702 (S.C.), it was held that non-compliance of the provisions of Sections 52, 55 and 57, which are, no doubt, directory, and violation thereof, would not ipso-facto vitiate the trial or conviction. However, the Investigating Officer, cannot totally ignore these provisions, and such failure will have bearing, on the appreciation of evidence, regarding search of the accused and seizure. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. As stated above, since the Investigating Officer, intentionally and deliberately breached the provisions of Section 55, he could not say that the provisions of Section 55, being directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer, is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provision, is an indicator, towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt Criminal Appeal No. 1052-SB of 2003 12 on the prosecution story. 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. 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 the sentence, rendered by the trial Court, are not based on the correct appreciation of evidence and law, on the point. The same are liable to be set aside. 16. For the reasons recorded above, the appeal, is accepted. The judgment of conviction, and the order of sentence, rendered by the trial Court, are set aside. The appellant shall stand acquitted of the charge, framed agianst him. If the appellant, is on bail, he shall stand discharged of the bail bonds. If he is in custody, he shall be set at liberty, if not required, in any other case. 17. The 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. 10.02.2010 (SHAM SUNDER) AMODH JUDGE