IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Crl. Appeal No.816-SB of 1996 Date of decision : 29-05-2008 Sat Narain son of Hukam Chand resident of village Bali Brahmnan. .............Appellant State of Punjab ..............Respondent CORAM : HON'BLE MR. JUSTICE SHAM SUNDER Present : Mr. Harsh Aggarwal, Advocate for the appellant. Mr. A.K. Jindal, A.A.G., Haryana for the respondent. Sham Sunder, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 04.11.1996, rendered by the Court of Additional Sessions Judge, Sonepat, vide which it convicted the accused/appellant, for the offence, punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter 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 of the same, to undergo rigorous imprisonment for another period of one year, for having been found in possession of 750 grams Charas, without any permit or licence. Crl. Appeal No.816-SB of 1996 -2- 2. The facts, in brief, are that on 19.02.1996, ASI Mehar singh along with other police officials, apprehended the accused, in the area of Village Bali Brahmnan. The search of the bag, being carried by the accused, was conducted, in the presence of Deputy Superintendent of Police, who was called to the spot, by sending a message, as a result whereof, 750 grams Charas, was recovered therefrom. 50 grams Charas was taken as a sample, and the remaining Charas, was put into the same bag. The sample and the remaining Charas, 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, 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 his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 20 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Raj Kumar, Sub Inspector, PW-1, Kali Ram Rana, DSP, PW-2, Mehar Singh, ASI, PW-3, Dhan Singh, Head Constable, PW-4, Randhir Singh, Head Constable, PW-5, and Om Parkash, PW-6. The Public Prosecutor for the State also tendered into evidence the affidavit Exhibit PX and report of the Forensic Science Laboratory, Exhibit PY and thereafter, 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 Crl. Appeal No.816-SB of 1996 -3- against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence, in his defence. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused/appellant, 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 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, submitted that Om Parkash, independent witness, though joined and examined as PW-6, yet, he did not support the case of the prosecution. He, further, submitted that, under these circumstances, it could be said that no recovery, whatsoever, was effected from the accused, and he was falsely implicated. The submission of the Counsel for the appellant, in this regard, appears to be correct. Om Parkash, PW-6, an independent witness stated in clear-cut terms, that no recovery, whatsoever, was effected from the accused, in his presence. He, however, stated during the course of cross- examination that his signatures were obtained on PB and PB/2 documents, when the same were blank. No doubt, this witness did not complain, to any higher authority, that his signatures were obtained on blank papers, yet, that ground cannot be said to be sufficient, to come to the conclusion, that he was not telling the truth. It is a matter of common experience, that it is very difficult, for an ordinary citizen, to withstand the pressure of the Police, as he knows that if he goes against the police, he may be involved, in some false Crl. Appeal No.816-SB of 1996 -4- case or may be harassed. It was, under these circumstances, that this witness did not move any application against the police. There is no reason to dis-believe the statement of this witness, especially, when the other evidence of the prosecution, based on the statements of the official witnesses, is neither reliable nor creditworthy. From the statement of Om Parkash, it was, thus, proved that no recovery was effected from the accused, but he was falsely implicated. The submission of the Counsel for the appellant, in this regard, appears to be correct and is accepted. 10. It was next submitted by the Counsel for the appellant, that though Exhibit PX, affidavit of Naresh Kumar, Constable, who allegedly took the sample to the Office of the Forensic Science Laboratory, was tendered into evidence by the Public Prosecutor for the State, yet he was never offered for cross-examination by the accused. He further submitted that, under these circumstances, the statement of this witness, could not be read, as it was not legally admissible. It may be stated here, that the accused has got a valuable and indefeasible right, to cross-examine the witnesses, so as to shatter their veracity, to bring the truth on record. If, he is deprived of such a valuable and indefeasible right, then a great prejudice is caused to him. Since, this witness was not offered for cross-examination by the accused, at any stage of the case, exhibit PX, could not be read into evidence. In Padam Singh Vs. State of Haryana 1997(4) RCR 172 (Division Bench) (Punjab and Haryana), a Division Bench of this Court, set aside the conviction of the appellant, on the ground that the affidavits of formal witnesses, though tendered, yet they were never offered for cross- examination, by the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant Crl. Appeal No.816-SB of 1996 -5- case. In this view of the matter, it is held that the link evidence was incomplete. The trial Court did not take into consideration, this aspect of the matter and, thus, fell into a grave error, in recording conviction and awarding sentence. On account of the aforesaid infirmity, the case of the prosecution became highly doubtful. 11. Not only this, from Exhibit PX, it is evident that Naresh Kumar, Contable was only handed over the sample parcel for depositing the same in the Office of the Forensic Science Laboratory. He was not handed over the sample impression of the seal, for depositing the same, in the Office of the Forensic Science Laboratory. In the absence of depositing the Sample Impression of the Seal, the Forensic Science Laboratory was deprived of comparing the seals on the sample, to come to the conclusion as to whether the same tallied with the seals, which were affixed immediately after the seizure. 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. 12. It was next submitted by the Counsel for the appellant, that, in fact the sample, in this case, was not deposited in the Office of Forensic Science Laboratory. In para No.2 of the Affidavit PX, Naresh Kumar stated that on 14.03.1996, he deposited the sample parcel, bearing seal impressions `OP’ and `KR’. On the other hand, it is evident that Raj Kumar, Sub Inspector, SHO, before whom, the case property was allegedly Crl. Appeal No.816-SB of 1996 -6- produced, affixed his seal, bearing impression `RK’, whereas, Kali Ram Rana, DSP affixed his seal, bearing impression `KR’. No seal, bearing impression `OP’ was affixed on the sample parcel. How the sample parcel was found carrying seal, bearing impression `OP’ is not known. This clearly goes to show that the sample parcel was tampered with. This also clearly goes to show that, in fact, the sample of this case, was not deposited, in the Office of the Forensic Science Laboratory. When the sample of this case was not deposited, in the Office of Forensic Science Laboratory, then the report of the Forensic Science Laboratory, cannot be said to be relatable to the instant case. Thus, the link evidence was incomplete. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 13. It was next submitted by the Counsel for the appellant, that the alleged recovery was effected on 19.02.1996, yet the sample was sent to the Office of Forensic Science Laboratory on 14.03.1996 i.e. after a period of about 26 days, without any explanation regarding delay. He further submitted that the possibility of tampering with the sample, in the meanwhile, could not be ruled out. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true that if the other evidence, produced by the prosecution, is held to be cogent, convincing, reliable and trustworthy, then, mere delay in sending the sample to the Office of Chemical Examiner, pales into insignificance. If, on the other hand, the other evidence produced, in this regard, is found to be un-reliable, then certainly the delay assumes importance. In the instant Crl. Appeal No.816-SB of 1996 -7- case, the other evidence, produced by the prosecution, to prove the completion of link evidence, besides being deficient, is neither reliable, nor creditworthy. In these circumstances, the un-explained delay, referred to above, in sending the sample to the laboratory, certainly proved fatal to the case of the prosecution. In State of Rajasthan Vs. Gurmail Singh 2005 (2) RCR (Crl.) 58 S.C., the contraband was kept in the Malkhana. 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 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. On account of this infirmity, the case of the prosecution became doubtful. 14. It was next submitted by the Counsel for the appellant, that the statement of the Deputy Superintendents of Police, Kali Ram and Raj Kumar, Sub Inspector, SHO, were not recorded by the Investigating Officer. He further submitted that non-recording of the statements of the material witnesses, under Section 161 Cr.P.C., clearly showed that neither the DSP was present, at the time of alleged search and recovery nor the case property and the sample parcel were produced before Raj Kumar, Sub Inspector, SHO. He further submitted that, under these circumstances, the accused was also deprived Crl. Appeal No.816-SB of 1996 -8- of confronting these witnesses with their previous statements, and to bring out the truth, during the course of their cross-examination. He further submitted that this was a very serious infirmity, in the case of the prosecution, but the same was not taken into consideration, by the trial Court, 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. There is nothing, on the record, that the statements of the aforesaid witnesses, were recorded by the Investigating Officer, under Section 161 Cr.P.C. No explanation was furnished, as to why the statements of these witnesses, were not recorded. Had any explanation been furnished, the matter would have been considered, in the light thereof. In the absence of any explanation, this Court cannot coin any of its own, to fit in with the prosecution case. In Padam Singh’s case (supra), the statement under Section 161 Cr.P.C., of the DSP, in whose presence, search and seizure took place, was not recorded. In these circumstances, a Division Bench of this Court, in the aforesaid case, held that it was a serious infirmity in the case of the prosecution, which must prove fatal. Accordingly, the appellant was acquitted by setting aside the conviction and sentence. The principle of law, laid down, in the said authority, is fully applicable to the facts of the present case. Certainly, a serious prejudice was caused to the accused, on account of non-recording of the statement under Section 161 Cr.P.C. of the aforesaid witnesses. The submission of the Counsel for the appellant, in this regard, appears to be correct and is accepted. 15. No other point was urged, by the Counsel for the parties. 16. In view of the above discussion, it is held that the judgment of Crl. Appeal No.816-SB of 1996 -9- conviction and the order of sentence, rendered by the Court below, are based on the correct appreciation of evidence, and law, on the point. The same warrant no interference, and are liable to be upheld. 17. For the reasons recorded above, the appeal is accepted. The judgment of conviction, and the order of sentence dated 04-11-1996, are set aside. If the appellant/accused is on bail, he shall be discharged of his bail bonds. If, he is in custody, then he shall be set at liberty, at once, if not required, in any other case. (SHAM SUNDER) JUDGE May 29,2008 gurpreet