Criminal Appeal No. 491-SB of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Appeal No. 491-SB of 2006 Date of Decision: September 30, 2010 Daler Chand ...........Appellant Versus State of Haryana ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.N.K.Sanghi,Advocate and Mr.Ashwani Bhardwaj, Advocate and Mr.Aditya Pal Singh, Advocate for the appellant Mr.Satayair Singh Yadav, Deputy Advocate General,Haryana Sabina, J. Accused-Daler Chand was convicted for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`the Act' for short) vide judgment dated 28.2.2006 passed by the Judge, Special Court, Kaithal. Vide order of even date, accused was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-. Hence, the present appeal by the appellant-accused. The case of the prosecution, as noticed by the trial Court in para 2 of its judgment, is reproduced here in below:- “Briefly stated, the matrix of the facts of the prosecution case are that on 11.8.2003, Investigating Officer, Jaimal Singh alongwith constable Kuldeep Singh and C-Dharam Pal in a Govt. vehicle was going from Daban Kheri to village Sheo Majra through kacha Criminal Appeal No. 491-SB of 2006 2 rasta in connection with patrolling and detection of crime. Near village Daban Kheri, the accused was seen standing near two bags on the western side of Kacha Rasta. He was suspected having some contraband, so he was apprehended. The Investigating Officer suspected some narcotic substance in the gunny bags and served him notice under Section 50 of NDPS Act. Ex.PF vide which offer was given to the accused as to whether he wanted to be searched of his gunny bags by him by Magistrate or Gazetted Officer, which was signed by the accused and also signed by C- Shamsher and C-Kuldeep. The accused opted to be searched before the Gazetted Officer, vide consent memo Ex.PG, which was signed by him and also signed by the same witnesses. Thereafter, the Investigating Officer contacted Shri Dharam Pal Dalal through VT and requested him to reach the spot. After some time, DSP, Guhla reached the spot, before whom, he produced the accused and bags, who verified the facts and under his direction, the investigating Officer searched the bags and found poppy husk in each bag. Two samples of 200 grams poppy husk was separated from each bag and converted into separate parcel. Residue bags on weighment was found to be 29 kgs. 600 grams in one bag and 27 kgs.60 grams in second bag. The same were also converted into separate parcel. The Investigating Officer affixed his seal `JS' and DSP affixed his seal `DP' on each parcel. Thereafter, specimen seal impression was also prepared. After use, he handed over his seal to C-Kuldeep Singh, whereas DSP retained his seal with himself. All the four sample parcels, Criminal Appeal No. 491-SB of 2006 3 two residue bags, specimen impressions were taken into possession vide recovery memo Ex.PD, which was signed by the witnesses and attested by DSP. Thereafter, the Investigating Officer sent rukka Ex.PJ to the police station for recording FIR through constable Dharam Pal, on which formal FIR Ex.PJ/1 was recorded by Prem Singh MHC, whose signatures he identified.” Learned counsel for the appellant has submitted that the prosecution had failed to establish its case to the effect that the appellant was in conscious possession of the recovered contraband. The contraband had been recovered from a public place and the appellant was, allegedly, standing near the contraband . Although Harbhajan Singh, Ex-sarpanch was present at the place of recovery but he was not joined as an independent witness. This shows that no recovery had been effected from the appellant. The appellant has undergone about four years and ten months of actual sentence. Learned State counsel,on the other hand, has submitted that the prosecution had been successful in proving its case. The official witnesses were acting in discharge of their official duty and had no reason to falsely involve the appellant in this case. In the present case, PW5 Jaimal Singh is the Investigating Officer. As per the said witness, on 11.8.2003, appellant was seen standing near two bags on western side of the unpaved passage. On suspicion, the appellant was given an option qua search of the gunny bags that he could get the search of gunny bags effected in the presence of a Magistrate or a Gazetted Officer. The appellant opted that the search be effected in the presence of the Gazetted Offier. Deputy Superintendent of Police, Dharam Criminal Appeal No. 491-SB of 2006 4 Pal Dalal was requested to reach the spot. Thereafter, the bags were searched and poppy husk were recovered from the bag. Two samples of 200 grams each were separated from each bag and were made into the sealed parcels. The remaining poppy husk in one bag weighed 29 kilograms 600 grams while in the second bag, it weighed 27 kilograms 600 grams. The bags containing the remaining poppy husk were also made into sealed parcels and the same were taken in possession. After use, he handed over his seal to Constable Kuldeep Singh,whereas, Deputy Superintendent of Police retained his seal with himself. In his cross-examination, he deposed that Harbhajan Singh, Ex-sarpanch was called at the spot through Constable Kuldeep and he remained present at the spot prior to the arrival of the Deputy Superintendent of Police till the conclusion of the proceedings. Harbhajan Singh, Ex-sarpanch left the spot after the departure of the Deputy Superintendent of Police. The place of recovery is an open space and is a thoroughfare. Throughout the proceedings, no public witness passed from the spot. PW4 Deputy Superintendent of Police Dharam Pal Singh Dalal has corroborated the statement of PW5 qua recovery of contraband from the appellant. In his cross-examination, he deposed that two bags were lying separately. The place of recovery is a thoroughfare. In his presence, public persons passed from the spot. People were coming and going. Harbhajan Singh, Ex-sarpanch of the village Dhaban Kheri was present at the spot and was called by the Station House Officer. Bags were weighed with the help of spring balance. Punishment provided under the Act is stringent and, hence, the prosecution is required to establish its case beyond the shadow of Criminal Appeal No. 491-SB of 2006 5 reasonable doubt. In the present case, PW4 and PW5 have admitted that Ex-sarpanch Harbhajan Singh was present at the spot but there was no explanation as to why the said witness was not joined as an independent witness at the time of alleged recovery. Harbhajan Singh,Ex-sarpanch was also not asked to attest the recovery memos which were allegedly prepared at the spot. The seal after use was kept by the Deputy Superintendent of Police with himself and PW5 gave the seal to Constable Kuldeep Singh. Since an independent witness was available, he should have been joined during recovery proceedings and seal after use should have been handed over to the independent witness to rule out the possibility of the false involvement of the appellant. Moreover, in the present case, the recovery has been effected from a public place and the appellant was allegedly standing near the bags. In these circumstances, it was important for the prosecution to establish that the appellant was in conscious possession of the contraband. So far as PW5 is concerned, he has deposed that no public person has passed from the place of recovery,whereas, PW4 has deposed that many public persons had passed from the place of recovery but none has joined as an independent witness. Thus, in the present case, the possibility that the appellant has been falsely involved in this case cannot be ruled out. Accordingly, this appeal is allowed. The impugned judgment/order of conviction and sentence are set aside. Appellant is acquitted of the charge framed against him by giving him the benefit of doubt. ( Sabina ) Judge September 30, 2010 arya Criminal Appeal No. 491-SB of 2006 6