Criminal Appeal No. 249-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 249-SB of 2004 Date of Decision: 16.03.2010 Tahal Singh son of Kartar Singh, resident of village Ramba, P.S. Sadar, Karnal. ... Appellant Versus State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. V.S. Rathore, 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 dated 17.01.04, and, the order of sentence, dated 20.01.04, rendered by the Judge, Special Court, Karnal, vide which, it convicted the accused (now appellant), for the offence, punishable under Sections 15(b) 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 01 year, and to pay a fine of Rs. 2,000/-, and, in default of payment thereof, to further Criminal Appeal No. 249-SB of 2004 2 undergo rigorous imprisonment, for a period of 03 months, for having been found in possession of 15 kgs poppy husk, without any permit or licence, now falling within the ambit of non-commercial quantity. 2. The facts, in brief, are that, on 30.04.02, Virender Singh, Assistant Sub Inspector, alongwith some other Police officials, was on patrol duty, in the area of village Kurali, near the bridge of Western Kamna Canal, on the road, leading to village Dadupur. In the meanwhile, the accused, was seen coming, from the side of village Kurali, having a bag, on his head, who on seeing the Police party, tried to slip away, but was overpowered on suspicion. On search of the bag, in accordance with the provisions of law, 15 kgs poppy husk, was recovered. A sample of 200 gms, was separated therefrom, and the remaining poppy husk, was kept, in the same bag. The sample 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. 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 Ram Criminal Appeal No. 249-SB of 2004 3 Mehar Singh, Sub Inspector (PW1), Hukam Chand, Head Constable (PW2), Ilam Singh, Assistant Sub Inspector (PW3), Rohtash Singh, Constable (PW4), Parmal Singh, Head Constable (PW5), and, Virender Singh, Assistant Sub Inspector (PW6), the Investigating Officer. 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 he was innocent and had been falsely implicated, by the Police, in the instant case. 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 the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that, during the course of cross-examination of the prosecution witnesses, it came to the surface, that Jaswant Singh, Ex-Sarpanch of village Kurali, Kuldeep Singh, and, Lakhvinder Singh, resident of village Darar, independent witnesses, had come to the spot, but, they Criminal Appeal No. 249-SB of 2004 4 were not joined with the Police party intentionally and deliberately. He further submitted that, on account of non-joining of independent witnesses, despite availability, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. No doubt, Virender Singh, Assistant Sub Inspector, PW6, the Investigating Officer, during the course of his cross-examination, admitted that, the independent witnesses, came to the spot. He further stated that they were asked to join the investigation, but, they refused. The names of these persons, were not mentioned, in the ruqa or other documents, prepared, at the spot. Even their names, were not mentioned, in the case diary. Even no action, according to the provisions of law, was taken against them, on their refusal, to join the investigation. This clearly goes, to show, that such an explanation, was connected, by the Investigating Officer, just with a view, to cover up his lapses. It means that, no real and sincere efforts, were made, to join the independent witness despite availability. In these circumstances, the case of the prosecution became suspect. 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 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 Criminal Appeal No. 249-SB of 2004 5 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 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, Criminal Appeal No. 249-SB of 2004 6 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, the case of the prosecution, became highly doubtful. 11. It was next submitted by the Counsel for the appellant, that though, the alleged recovery, in this case, was effected, on 30.04.02, yet the sample parcel, was sent, to the Forensic Science Laboratory, Madhuban, on 03.05.02, i.e. after a delay of three days, which remained unexplained, and, as such, the possibility of tampering with the same, until, the same reached the Forensic Science Laboratory, could not be ruled out, especially when, the seal throughout, remained in the possession of the Police officials. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true Criminal Appeal No. 249-SB of 2004 7 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 sample to the Forensic Science Laboratory, 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 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 sample was sent to the Forensic Science Laboratory, the same was 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. Criminal Appeal No. 249-SB of 2004 8 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 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 sample, 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. 12. It was next submitted by the Counsel for the appellant, that the provisions of Section 55 of the Act, were not complied with intentionally and deliberately, in as much as, the case property, sample parcel, and the accused, were not produced, before the area Magistrate, Criminal Appeal No. 249-SB of 2004 9 as a result whereof, a great prejudice, was caused, to the accused. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ram Mehar Singh, Sub Inspector, PW1, was posted, as Station House Officer, Police Station Sadar Karnal, on the relevant day. He stated that the case property, the sample parcel, and the accused, were produced before him. He further stated that he verified the facts, from the accused, as well as witnesses, and, affixed his own seals. He further stated that he deposited the case property with Moharrir Head Constable Hukam Chand. He did not state that the case property, the sample parcel, and the accused, were produced, before the area Magistrate. As such, there was non-compliance with the provisions of Section 55 of the Act. 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 Criminal Appeal No. 249-SB of 2004 10 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 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 authority, 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 Criminal Appeal No. 249-SB of 2004 11 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 on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, the prosecution case became doubtful. 13. It was next submitted by the Counsel for the appellant, that even the sample impression of the seals, was not sent to the office of the Forensic Science Laboratory, as a result whereof, it was deprived of the opportunity of comparing the seals, on the parcels with the sample seals. He further submitted that, in the absence of deposit of the sample impression of the seals, the Forensic Science Laboratory, was also deprived of the opportunity of coming, to the conclusion, as to whether, the seals, on the sample parcel, which were allegedly affixed, at the time of the alleged recovery, were the same, as were found, on the sample parcel, on arrival. The submission of the Counsel for the appellant, in this regard, appears to be correct. Hukam Chand, Head Constable, PW2, stated that, on 03.05.02, he had taken out the sample parcel of the case, from the Malkhana, vide RC No. 55, and, deposited Criminal Appeal No. 249-SB of 2004 12 the same, in the office of the Forensic Science Laboratory, on the same day. He did not state even a single word, that sample impression of the seal, was handed over, to him, and he also deposited the same alongwith the sample parcel, in the office of the Forensic Science Laboratory. Since the sample impression of the seals, was not handed over to Hukam Chand, Head Constable, nor the same, was deposited, in the office of the Forensic Science Laboratory, it is not known, as to how, it was recorded, in the report, exhibit PF of the Forensic Science Laboratory, that the seals, on the parcels, were found intact, and tallied with the specimen seals. The specimen impression of the seals, could only reach the Forensic Science Laboratory, had the same been deposited. In the absence of deposit of the sample impression of the seals with the Forensic Science Laboratory, it could not be ascertained whether the seals affixed on the samples, were the same, as were allegedly affixed at the time of the alleged recovery. It was for the prosecution, to complete the link, in the chain of its evidence but it failed to do so. 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. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, the case of the prosecution became doubtful. 14. No other point, was urged, by the Counsel for the parties. Criminal Appeal No. 249-SB of 2004 13 15. 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(b) of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside. 16. For the reasons recorded, hereinbefore, the aforesaid 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 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. 17. 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. 16.03.2010 (SHAM SUNDER) Amodh JUDGE