Criminal Appeal No. 1564-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No.1564-SB of 2005 Date of decision: 3rd March, 2008 Buta Singh ... Appellant Versus State of Punjab ... Respondent .. Present: Mrs.Baljit K.Mann, Advocate with Sh. Sandeep Mann, Adv. for the appellant. Mr. Shilesh Gupta, Deputy Advocate General,Punjab for respondent-State. ... CORAM : HON'BLE MR.JUSTICE HARBANS LAL HARBANS LAL, J This appeal has been directed against the judgment/order of sentence dated 19.8.2005 rendered by the Court of learned Special Judge, Bathinda, whereby he convicted and sentenced accused-appellant Buta Singh to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default thereof, to further undergo rigorous imprisonment for two years under Section 18 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act'), whereas he acquitted Bhupinder Singh accused of the charged offence by giving benefit of doubt. As set up by the prosecution, on 25.5.2001, Inspector Kirpal Singh, S.H.O. Police Station, Nathana, among other police officials, had set Criminal Appeal No. 1564-SB of 2005 -2- up Naka on the bridge of seepage drain in the area of village Burj Dalla, where Kulwant Singh, an independent witness came. Meanwhile, a jeep bearing registration No. DL-5D-6605 was spotted coming from the side of Village Burj Dalla. The same was made to stop by giving a signal. The driver of the same disclosed his name as Bhupinder Singh, whereas the other occupant who was sitting by his side, disclosed his name as Buta Singh. The aforesaid Inspector told that that they were suspected to be in possession of some contraband and for that reason their search was to be carried out. They were offered to be searched before a Gazetted Officer or a Magistrate. They opted to be searched in the presence of a Gazetted Officer. The consent memo., Exh. PD/1 of Bhupinder Singh and Exh. PE/1 of Buta Singh were prepared. On receipt of message, Dilbagh Singh Pannu, DSP (D), Bathinda, came at the spot. He disclosed his identity to the accused and made them aware of their right to be searched in the presence of a Gazetted Officer or a Magistrate. They reposed confidence in him. On personal search of Buta Singh accused, the opium duly wrapped in a glazed paper lying tied around his waist, was recovered. 200 grams of opium was separated to serve as sample. The remainder, when weighed, came to 3 Kgs.480 Grams which was also made into parcel. Thereafter, both the parcels were sealed with the seal KS belonging to the above mentioned Inspector Kirpal Singh, Investigating Officer and seized vide memo., Exh.PC. Ruqa, Exh.PF was sent to the Police station. On its basis, formal FIR, Exh.PF/1 was recorded. The currency notes wroth Rs.100/- yielded from the personal search of Buta Singh. The same were taken into possession vide memo., Exh. PD. The currency notes worth Rs.50/- were recovered from the personal search of Bhupinder Singh. The same were Criminal Appeal No. 1564-SB of 2005 -3- seized vide memo.,Exh. PE. The rough site plan, Exh. PG showing the place of recovery was drawn. Memo. regarding grounds of arrest, Exh.PM was prepared. On return to the Police Station, the case property was retained by the above mentioned Inspector with him though the jeep and other articles were deposited with the MHC. On 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 18 of the Act, to which they did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution has examined PW-1 Constable Jagtar Singh, PW-2 Dilabagh Singh Pannu DSP (D), PW-3 Inspector Kirpal Singh, Investigator, PW-4-ASI Bahadur Singh and closed its evidence. When examined under Section 313 of the Code of Criminal Procedure, both the accused denied the allegations appearing in the prosecution evidence and pleaded false implication. They came up with the plea that they are poor landless persons and were going in a Jeep on 25.5.2001 to Police Station, Nathana in connection with land dispute with Makhan Singh and Bant Singh (relatives of accused Buta Singh); that the jeep was driven by Bhupinder Singh; that Buta Singh was sitting in that jeep; when his jeep reached near Bus Stand of village Burj Dalla, Randhir Singh, Baldev Singh and Sukhminder Singh met them. They handed over to them (both the accused) some suspicious articles lying wrapped in a piece of cloth. When they (accused persons) refused to take the same on the pretext that the Police might apprehend them, the above said persons pleaded with them that as they are to go for some urgent work of the sister of Baldev Criminal Appeal No. 1564-SB of 2005 -4- Singh at Village Pakhon though they (accused persons) were going towards Police Station Nathana, as such, they should take this suspicious article with them for handing over the same to police officials at Nathana. On such insistence, the accused persons took away the suspicious article with them; on reaching near the bridge of canal minor of Village Burj Dalla, they were nabbed by the police; that they (accused persons) disclosed these facts to the police, which did not hear them and implicated them in false case; that Ruldu Singh, a relative of the accused, filed an application regarding their false implication in this case and in inquiry, they were found innocent by Amrik Singh, the then DSP, Phul, who recommended for the submissin of untraced report. In defence, they examined DW-1 Ruldu Singh, DW-2 Sukhminder Singh and DW-3 Amrik Singh, SP Vigilance Bureau, Bathinda. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial court convicted and sentenced the accused Buta Singh, as noticed at the outset though acquitted Bhupinder Singh of the charged offence. Feeling aggrieved with his conviction/sentence, Buta Singh has preferred this appeal. I have heard Mrs. Baljit K. Mann,Advocate appearing on behalf of the appellant and Mr. Shilesh Gupta,Deputy Advocate General,Punjab, for the State of Punjab, besides going through the record with due care and circumspection. Mrs. Baljit K. Mann, Advocate appearing on behalf of the appellant, making a short shrift of her arguments, agitated at the bar that (a) Criminal Appeal No. 1564-SB of 2005 -5- as per evidence of Constable Jagjit Singh, PW-1, who allegedly carried the sample parcel to the office of Chemical Examiner on 30.5.2001, he got forwarded the docket from the S.S.P. office and delivered the sample parcel in the office of Chemical Examiner on the same day, whereas according to the Chemical Examiner's Report, Exh. PL, the sample parcel was received in the office on 31.5.2001, and thus obviously, it has gone unexplained as to where the sample parcel remained for one day and there being no explanation for the same,the link evidence is missing; (b) as transpires from the testimony of Inspector Kirpal Singh, PW-3, a composite offer was made to both the accused of their being searched in the presence of a Gazetted Officer or a Magistrate, whereas according to law such offer should have been made individually and, thus, they have been prejudiced in their valuable right; (c) there is a delay of six days in the despatch of sample to the Chemical Examiner though as per the standing instruction no.1/88 dated 15.3.1988 of the Narcotic Control Bureau, New Delhi, the sample should have been sent within 72 hours; (d) the Investigator Kirpal Singh under the stress of cross-examination has admitted that D.S.P, Phul, had made inquiry in this case and he found the present case to be false and also directed to file untraced report in the present case and this fact is substantiated by Amrik Singh, DW-3 SP, Vigilance Bureau, Bathinda; (e) Kulwant Singh, the alleged independent witness in whose presence the recovery was statedly effected, has not been examined by the prosecution with the result, the accused lost their right to cross-examine him; (f) As per the evidence of Kirpal Singh (sic), only 20 grams opium was separated to serve as sample, whereas according to the instructions of the Narcotic Control Bureau, the sample of 25 grams in case of opium should have been Criminal Appeal No. 1564-SB of 2005 -6- drawn and all these infirmities demolish the prosecution case. She has sought to place abundant reliance on the observations made in re: Mohan Singh v. State of Punjab, 2004 (4) Recent Criminal Reports (Criminal) 260; Maan Singh v. State of Haryana, 2006 (1) Recent Criminal Reports (Criminal) 35; Avtar Singh v. State of Punjab, 2007 (4) State of Punjab 898 and Gurcharan Singh v. State of Punjab, 2005 (4) Recent Criminal Reports (Criminal) 681. Per contra, Mr. Shilesh Gupta, Deputy Advocate General, Punjab, maintained that is unbelievable that such a huge quantity could have been planted by Inspector Kirpal Singh on the appellant and as regards delay in sending the sample to the Chemical Examiner's office, due to manifold duties the despatch of the same would have been delayed. I am unable to persuade myself to agree with these submissions for the discussion to follow hereunder. DSP Dilbag Singh Pannu,PW-2 has testified that “ right to accused of being searched in the presence of a Gazetted Officer or a Magistrate was divulged but the accused reposed confidence in him. ” It is in the testimony of Inspector Kirpal Singh, PW-3 (Investigator) that “ accused was disclosed of their right of being searched in the presence of some Gazetted Officer or Magistrate, but the accused aspired the search to be conducted in the presence of a Gazetted Officer.” This evidence can be well construed to mean that offer was given jointly though separate consent memos. were prepared. Necessarily, the offer must be given to each of the accused individually that if he likes, the services of a Gazetted Officer or a Magistrate can be procured. It has not been done. It makes one to conclude that the said assertion of the prosecution was make-believe rather than Criminal Appeal No. 1564-SB of 2005 -7- genuine. It is, therefore, difficult to hold that there was compliance of the provisions of sub-section (1) of Section 50 of the Act as ruled in re: Gurpreet Singh alias Pappi v. State of Punjab, 1999 (3) Recent Criminal Reports (Criminal) 95 (Punjab and Haryana). It is in the evidence of Inspector Kirpal Singh, PW-3, the Investigator, that “ on 30.5.2001, he sent the sample through the hands of Constable Jagtar Singh for depositing the same in the office of Chemical Examiner, Patiala. After getting the docket prepared and after depositing the same in the office, he returned back the receipt to me. ” On analysing the evidence of Constable Jagtar Singh, PW-1, it transpires that on 30.5.2001, the sample parcel was handed over to him for being carried to the office of the Chemical Examiner, Patiala, and on the same day he got prepared the docket from the office of the S.S.P and delivered the sample parcel on the same day in the office of the Chemical Examiner and on that very day, he handed over the receipt to SI Kirpal Singh. It is worth pointing out here that as per Exh.PL, the report of the Chemical Examiner, the sample parcel was received in his office on 31.5.2001. The prosecution has not given any explanation as to where the sample remained for one day. The absence of explanation of one day in between 30.5.2001 and 31.5.2001 is enough to hold that the link evidence is missing. In re: Mohan Singh (supra), the sealed sample was sent to F.S.L. from Malkhana. There was no explanation where the sealed sample remained for 2 days before it reached the F.S.L. The Full Bench of this Court acquitted the accused, inter-alia, on this ground. There was a recovery of 13 Kgs. of opium in Mohan Singh's case (supra). Dilbagh Singh Pannu DSP, PW-2 has admitted in categoric Criminal Appeal No. 1564-SB of 2005 -8- terms in his cross-examination that Amrik Singh was posted as DSP Phul during those days and that the case was also inquired into by the said DSP and after inquiry the DSP had found the present case to be false and directed that an untraced report be prepared in this case and presented before the Court. Inspector Kirpal Singh, PW-3 under the stress of cross-examination, has also admitted this fact. When examined as DW-3, Amrik Singh DSP (later on SSP Vigilance Bureau, Bathinda ) deposed that from his investigation and inquiry, he was satisfied that the accused were innocent and opium was not recovered from their conscious possession and he had directed the S.H.O. Nathana to prepare a cancellation report and submit the same before the Court. It is discernible from this evidence that the accused were found innocent in this case. In order to substantiate their plea, they examined Ruldu Singh, DW-1 as well as Sukhminder Singh, DW-2. The inquiry was conducted at the instance of Rulduy Singh, DW-1, the brother of the wife of Buta Singh accused. The evidence tendered by this witness Ruldu Singh as well as Sukhminder Singh, DW-2 also falsify the prosecution version. There is a delay of as may as 6 days in sending the sample to the Chemical Examiner's Office though as per standing instruction No.1/88 dated 15.3.1988 of Narcotic Control Bureau, the sample parcel should be sent within 72 hours to avoid any legal objection. It is in the evidence of Inspector Kirpal Singh, PW-3 that he retained the case property in his custody though he deposited the articles recovered from personal search with the MHC. Ultimately, the bulk opium was deposited on 27.5.2001 in the Malkhana. It implies that right from 25.5.2001 till this day, the case property remained in his possession. It is apt to be borne in mind that the Criminal Appeal No. 1564-SB of 2005 -9- case property was sealed with his own seal baring impression Ks. In such circumstances, the possibility of the contents of the sample parcel as well as the case property being tampered with, cannot be ruled out. In re: Mann Singh (supra), the search and seizure was carried out by the S.H.O. himself as is in the present case. He was himself the complainant and he did not deposit the sample of opium. Sample of seal and case property was not given to some other Police Officer but he directly deposited the same with the MHC. Here in this case also, the situation is identical. In that case, the accused was acquitted, inter-alia, on the above mentioned grounds. In the instant case, the seal after use was handed over to Kulwant Singh, an independent witness, who has not been examined. In Satnam Singh's case (supra), Arjan Singh, an independent witness was given up on the ground of his having been won over by the accused. It was held that the examination of a public witness, Arjan Singh had become more essential due to an important link in the evidence of the prosecution to connect the appellant with the offence, i.e. the seal after used was handed over to him. It was only Arjan Singh, who could have deposed as to whether the seal after use has been handed over to him and as to when he had returned the sale. This was all the more important to rule out the possibility that the sample parcel was not tampered with by any body till it reached the office of the Chemical Examiner. Non-examination of Arjan Singh is another factor which strikes at the root of the prosecution case. In view of the above extracted observations, it is held that non- examination of Kulwant Singh, independent witness is another factor which strikes at the root of the prosecution case. It is pertinent to point out here that as surfaces in the cross-examination of Inspector Kirpal Singh (sic) the Criminal Appeal No. 1564-SB of 2005 -10- seal was returned to him by Kulwant Singh after about one week at Police Station. It turns out that the seal was received back by him before the despatch of the sample parcel to the Chemical Examiner. Thus, the possibility of the contents of the sample parcel being tampered with, cannot be ruled out. The evidence of Kirpal Singh Inspector, PW-3 as well as Dilbagh Singh DSP, PW-2 is absolutely silent about the preparation of C.F.S.L form at the spot. In re: Gurcharan Singh's case (supra), the C.F.S.L form was not prepared at the site. It was held that non-preparation of the same created doubt about the credibility of the entire prosecution case. This is an important safeguard against an allegation of tampering with the sample. It is in the opening sentence of cross-examination of Inspector Kirpal Singh, PW-3 that the seal on MO/1 ( referring to the case property ) is in crack condition. In re: Avtar Singh (supra) when the case property was produced in the Court,the seals on some of the bags were found partially broken, which was not explained by the prosecution. The conviction of the appellant was set aside, inter-alia, on this ground. In view of the preceding discussion, this appeal is accepted, setting aside the impugned judgment/order of sentence. The appellant Buta Singh is hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE 3rd March, 2008 RS Whether to be referred to the Reporter ? Yes/No