Crl. Appeal No.452-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.452-SB of 1998 Date of Decision : March 28, 2008 Kinnu Mal S/o Shankar Lal, ....Appellant R/o Murena, P.S. Murena, Madhya Pradesh. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Rahul Vats, Advocate, for the appellant. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 7.3.1998, and the order of sentence of the even date, rendered by the Court of Addl. Sessions Judge, Sonepat, vide which it convicted the accused/appellant Kinnu Lal, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year. 2. The facts, in brief are that on 15.5.1997, Pirthi Singh, alongwith other police officials, was present at 20th Milestone, on G.T. Road, Sonepat, in connection with patrol duty, where Mai Chand, a public man, was joined with the police party. In the meanwhile, Kinnu Lal, accused, was seen coming from the side of Delhi, carrying a bag, on his left shoulder. On seeing the police party, he tried to slip away, but he was apprehended with the help of other police officials. The search of the bag, being carried by the accused, in Crl. Appeal No.452-SB of 1998 2 accordance with the provisions of law, was conducted, as a result whereof, 20 Kgs. poppy straw (now falling within the ambit of non-commercial quantity), was recovered. The accused could not produce any permit or licence. A sample was taken out therefrom, and the remaining poppy straw was put into the same bag. The sample, and the remaining poppy straw, were converted into parcels, duly sealed with the seal, bearing impression 'PS', and thereafter, the same were taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. Rough site plan of the place of recovery, was prepared. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed trial. 4. The prosecution, in support of its case, examined Mewa Singh, AETO (PW-1), Dhanpat Rai, HC (PW-2), Pawan Kumar, Constable (PW-3), Sajjan Kumar, SI/SHO (PW-4), Pirthi Singh, ASI (PW-5), and Mai Chand, independent witness (PW-6). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence, in his defence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by Crl. Appeal No.452-SB of 1998 3 the accused/appellant. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, contended that the alleged recovery was effected on 15.5.1997, whereas, the sample was sent to the office of the Forensic Science Laboratory, on 26.5.1997. He further contended that no explanation was furnished by the prosecution witnesses, as to why a delay of 11 days was caused, in sending the sample, and whether the sample remained untampered with, until it reached the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 11 days, in sending the sample 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, till the same reached the office of the Forensic Science Laboratory. Since, the sample was allegedly sent to the office of the Forensic Science Laboratory, after about 11 days, it could not be safely held that the same remained un-tampered with. This fact casts a shadow of doubt, on the case of the prosecution. 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. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Forensic Science Laboratory. As stated above, the other evidence produced by the prosecution, in this case, is not only deficient, but also unreliable, to prove this factum. In these circumstances, the principle of law, laid down, in the aforesaid authority, is Crl. Appeal No.452-SB of 1998 4 fully applicable to the facts of the present case. The delay of 11 days, in sending the sample to the office of the Forensic Science Laboratory, and non- strict proof, by the prosecution, that the same was not tampered with, till it was deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the sample, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 10. Coming to the link evidence, it may be stated here that the same was incomplete. Dhanpat Rai, HC, (PW-2), stated that on 15.5.1997, the case property was deposited with him, which consisted of two properly sealed parcels. He further stated that, on 26.5.1997, he handed over the sealed sample to Pawan Kumar, Constable, for onward transmission to the Laboratory at Madhuban, with seals intact, and he deposited with him, the deposit receipt. He did not state even a single word, in his statement, that he handed over the sample impression of the seal to Pawan Kumar, Constable, for deposit of the same, alongwith the sample parcels, in the office of the Forensic Science Laboratory. Pawan Kumar, Constable, when appeared as, PW-3, stated that on 26.5.1997, the MHC handed over to him, one sealed sample, for onward transmission to the Laboratory, which he deposited in the said Laboratory, with seals intact. He did not state that he was also handed over the sample impression of the seal. He also did not state that, he deposited any such sample impression of the seal, in the said Laboratory. Since, Dhanpat Rai, MHC, did not hand over the sample impression of the seals to Pawan Kumar, Constable, the question of deposit of the same, in the office of the Forensic Science Laboratory, did not at all arise. It, therefore, could be said that there was no material with it, to come to the conclusion that the seals on the parcel, were the same as were affixed by the Investigating Officer, immediately after the seizure. However, in Ex.PD, report of the Forensic Science Laboratory, a certificate was Crl. Appeal No.452-SB of 1998 5 recorded, to the effect, that the seals on the sample, were found intact, and tallied with the specimen seal, as per the forwarding authority. It is not known, as to from which material, it recorded this certificate. This part of the report, Ex.PD, of the Forensic Science Laboratory is incorrect. 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, miscarriage of justice occasioned. 11. The provisions of Section 57 of the Act, were not complied with. No report was sent by the Investigating Officer, to his superior officer, with regard to the alleged apprehension of the accused, and alleged recovery of contraband, from him. No doubt, the provisions of Section 57 of the Act, are directory in nature. That does not mean that the same, should not be complied with by the Investigating Officer, deliberately and intentionally. 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 object of the provisions of Section 57, is that the superior officer should be informed immediately after the alleged recovery of contraband, so that he must be aware of the genuineness of the proceedings, conducted by his junior, to ensure that no innocent person was implicated, and the allegations of high handedness, against the Police officials, are averted. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of Crl. Appeal No.452-SB of 1998 6 the Act, the matter would have been different. In the absence of any explanation, what to speak of plausible, the Court cannot coin any of its own, to fit in with the prosecution case. Since, the provisions of Section 57 of the Act, were observed, more in breach, than in compliance, by the Investigating Officer, intentionally and deliberately, the case of the prosecution became doubtful, on account of this reason. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it committed an error, in recording conviction and awarding sentence. 12. The Counsel for the appellant, further contended that major discrepancies and contradictions appeared in the evidence of the official witnesses, which remained unexplained, and, as such, a doubt was cast on the prosecution case, but the trial Court did not take into consideration the same, as a result whereof, miscarriage of justice occasioned. Mewa Singh, AETO, (PW- 1) stated that he arrived at the spot at about 2.00 or 2.30 PM, whereas, Pirthi Singh, ASI, (PW-5), the Investigating Officer, during the course of his cross- examination stated that the AETO, had arrived at the spot, at about 3.00 PM, and stayed heir for 2 hours. Mai Chand, independent witness (PW-6), stated that he met the Police party at about 2 PM, and the AETO had arrived there, after about 20 or 25 minutes. Sajjan Kumar, SI/SHO (PW-4), stated that Pirthi Singh, ASI, had produced 2 sealed parcels and the accused, before him, and he verified the facts of the case, from the accused, and sealed the parcels, with the seal bearing impression 'SK', and the MHC, had taken the case property, in his possession, under his directions. He did not state that he had gone to the spot to make verification of the investigation. Mewa Singh, AETO (PW-1), has also not stated about the arrival of the SHO, at the spot. Pirthi Singh, ASI, the Investigating Officer, during the course of his cross-examination, however, stated that the SHO arrived at the spot, and verified the investigation. These discrepancies when taken individually, may not prove fatal to the case of the Crl. Appeal No.452-SB of 1998 7 prosecution. When these discrepancies, are taken cumulatively, then the same clearly go to prove that either one of the witnesses was not present, at the time of the alleged recovery, or no recovery of contraband, from the accused, as alleged by them, was effected. As stated above, no explanation, with regard to the occurrence of all these discrepancies, was furnished by the prosecution witnesses. Had any plausible explanation, been furnished, in that regard, the Court would have considered the same, in the light thereof. In the absence of any explanation, what to speak of plausible, the Court cannot coin any explanation of its own, to fit in with the prosecution case. These discrepancies, therefore, coupled with other infirmities and lacunae occurring the the prosecution evidence, cast a doubt on the prosecution story. The trial Court, however, did not take into consideration, these discrepancies, as a result whereof, miscarriage of justice occasioned. 13. It was next contended by the Counsel for the appellant, that the case of the prosecution was completely improbable. According to the evidence of the prosecution witnesses, the accused belongs to Murena (Madhya Pradesh), and he was allegedly coming from the side of Delhi, when he was allegedly apprehended. The place of residence of the accused, is at a distance of 1000 Kms. from the G.T.Road (Sonepat), where he was allegedly apprehended. On his personal search, not even a single penny, was recovered. It could not be imagined that the accused coming from a distance of about 1000 kms, would not carry even a single penny, with him, to meet any exigency, which might have arisen, while on journey. Since, the accused was coming from a far off distance, it could be expected of him, to carry some money, on his person, so as to meet the exigencies, such as, food etc. while on journey. This fact, therefore, clearly made the case of the prosecution improbable. 14. 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 Crl. Appeal No.452-SB of 1998 8 based on the correct appreciation of evidence, and law, on the point. The trial Court did not take into consideration, the infirmities and lacunae, enumerated, in the aforesaid paragraphs. Had these infirmities and lacunae been taken into consideration, by the trial Court, the result would have been different. The judgment of conviction, and the order of sentence, warrant interference, and are liable to be set aside. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 7.3.1998, and the order of sentence of even date, 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. March 28, 2008 (SHAM SUNDER) Vimal JUDGE