Crl. Appeal No. 428-SB of 1997 -1- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 428-SB of 1997 Date of decision, March 3, 2008 Jeet Singh son of Charan Singh r/o Kupjeetwal, P.S. Ahmedgarh, Distt. Sangrur ....... Appellant/accused Versus State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. B.R. Gupta, Advocate for the appellant. Mr. Kartar Singh, AAG, Haryana for the respondent. Sham Sunder, J. This appeal is directed against the judgment of conviction dated 28.3.1997, and the order of sentence dated 29.3.1997, rendered by the Court of Addl. Sessions Judge, Hisar, vide which it convicted the accused/appellant Jeet Singh, 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 two year. 2. The facts, in brief, are that on 25.5.1996 Hans Raj, SI along with Ram Rup, Head Constable, was present at Bus stand, Tohana, where Anil Kumar, independent witness met them, who was joined. The accused was seen coming from the side of bus stand, carrying a bag, in his hand. He Crl. Appeal No. 428-SB of 1997 -2- tried to slip away, on seeing the police party, but was apprehended by the police party. Search of the bag was conducted, in accordance with the provisions of law, which was found containing 3 kg. and 400 grams of Poppy husk. A sample of 100 grams was separated therefrom. The sample and the remaining poppy husk were converted into parcels, sealed with the seal bearing impressions AS', and 'RR' and thereafter the case property was taken into possession, vide memo Ex. PC, attested by the witnesses. The seal after use was handed over to Anil Kumar, independent witness. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. The accused was arrested. Rough site plan of the place of recovery, was prepared. The accused was challaned. 3. On his appearance, in the Court of the Committing Magistrate, 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 judicial trial. 4. The prosecution, in support of its case, examined Ram Rup, Head Constable, PW-1, Anil Kumar, PW-2, Hans Raj, SHO, PW-3, Badri Parsad , SI, PW-4, Azad Singh, PW-5 and Balbir Singh, Constable, 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, produced no 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 Crl. Appeal No. 428-SB of 1997 -3- 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 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 that there was a delay of 11 days, in sending the sample, as the alleged recovery was effected in this case on 25.5.1996, whereas, the sample of poppy straw, was sent to the office of the Forensic Science Laboratory, Madhuban on 5.6.1996. He further contended that, no explanation, whatsoever, was furnished by the prosecution witnesses, with regard to delay, in sending the sample to the office of the Forensic Science Laboratory, and, as such, the possibility of tampering with the same, could not be ruled out. The submission of the Counel for the appellant appears to be correct. No explanation, whatsoever, was furnished, as to why the sample was not sent to the office of the Forensic Science Laboratory, Madhuban, for about 11 days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. 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. On account of this reason, the case of the prosecution, became doubtful. 10. No doubt, Anil Kumar, an independent witness was Crl. Appeal No. 428-SB of 1997 -4- joined by the Investigating Officer, and he was examined as PW, but he did not support the case of the prosecution. In his examination-in-chief he stated that when the bag carried by the accused was searched by the Sub Inspector, it was found containing saw dust of kikkar. The permission of the Court was sought by the Additional Public Prosecutor for the State, to put this witness such questions, as are put during the course of cross- examination. After the grant of permission, this witness was cross examined by the Additional Public Prosecutor for the State. Even during the cross examination, this witness had deposed that he did not state before the Police that the recovered article was chura post. He further stated that mention of this fact was made by the police in his statement Ex. PD, under Section 161 Cr.P.C., of its own. There is nothing, on the record, to show that this witness had told a lie. Had he completely resiled from his statement, it would have been said that, for certain reasons he sided with the accused. He, in his examination-in-chief, stated that he was joined by the police party on 25.5.1996. He further stated that no poppy husk weighing 3 kgs. 400 grams, was recovered, from the accused. There was no reason, not to rely upon the evidence of this witness. It is not known as to how the trial Court failed to rely upon the evidence of such a witness. It appears that this witness told the truth to the Court. From the evidence of Anil Kumar, it was, however, proved that no recovery of poppy husk was effected, from the accused, but he was falsely implicated, in the instant case. 11. Balbir Singh, Constable, who allegedly deposited the sample in the Office of the FSL, Madhuban, and tendered his affidavit Ex.PK, stated that he was handed over a sample parcel, bearing impressions 'RR' and 'AS' in this case, for deposit of the same in the Office Crl. Appeal No. 428-SB of 1997 -5- of FSL, Madhuban. According to his affidavit Ex.PK, he was only handed over one parcel sample containing 100 grams of poppy husk duly sealed with the seal, bearing impressions, 'RR' and 'AS'. Since the sample impression of the seal was not handed over to Balbir Singh Constable, for deposit in the office of the FSL, Madhuban, it is not known, as to how, the said laboratory came to the conclusion, that the seals on the sample tallied with the sample impression of the seal. The seals of the sample could only be tallied, had the sample impression of the seal been sent. Under these circumstances, to this extent the report of the FSL, Madhuban, could not be said to be correct. In these circumstances, it could not be said, as to whether the sample which was allegedly drawn, in this case, was actually sent to the said laboratory, for analysis. This cast a cloud of doubt, on the prosecution story. This fact was also not taken into consideration, by the trial Court, as a result whereof, the miscarriage of justice occasioned. 12. The judgment of conviction and the order of sentence, rendered by the trial Court are, thus, not based on the correct appreciation of evidence, and law, on the point. The same warrant interference, and are liable to be set aside. 13. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 28.3.1997, and the order of sentence dated 29.3.1997, are set aside. The appellant shall stand acquitted of the charge framed again him. He is discharged of the bail bonds. (SHAM SUNDER) JUDGE March 3, 2008 archana