Criminal Appeal No 348-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 348-SB of 2002 Date of Decision : 17.02.2010 Jang Singh son of Shyam Singh son of Bishan Singh aged 59 years, r/o village Namol, Police Station Longowal, District Sangrur. …Appellant Versus State of Punjab. …Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Vandana Malhotra, Advocate, for the appellant. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence, dated 24.10.01, rendered by the Judge, Special Court, Sangrur, vide which, it convicted the accused (now appellant), for the offence, punishable under Section 15 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 ten years, and, to pay a fine of Rs. 1 lac, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of one year, for having been found in Criminal Appeal No 348-SB of 2002 2 possession of 60 kgs of poppy husk, without any permit or licence, which falls within the ambit of commercial quantity. 2. The facts, in brief, are that, on 06.02.96, Jasbir Singh, Sub Inspector, alongwith some other Police officials, was on patrol duty, and, going from the side of village Jakhepal towards Amru Kotra via metalled road and when the Police party, reached near the drain bridge, in the area of village Jakhepal, the accused, was seen sitting, on two gunny bags, under a tree, near the pavement of the drain. On seeing the Police party, the accused, tried to slip away, but, was overpowered, on suspicion. On search of the gunny bags, in the presence of Baldev Singh, Deputy Superintendent of Police, who was called to the spot, 60 kgs of poppy husk, was recovered. Two samples of 250 gms from each of the bags were separated, and the remaining poppy husk, was kept, in the same bags. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide separate recovery memo. On personal search of the accused, currency notes of Rs. 25/- were also recovered, which were taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the first information report, was registered. Rough 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 Criminal Appeal No 348-SB of 2002 3 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 Jaswinder Singh, Moharrir Head Constable (PW1), Sardara Singh, Constable (PW2), Balbir Singh, Assistant Sub Inspector (PW3), Baldev Singh, Deputy Superintendent of Police (PW4), a witness to the recovery, and, Jasbir Singh, Sub Inspector (PW5), the Investigating Officer. Thereafter, the Additional 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, on 30.01.96, his uncle Niranjan Singh, died, and his bhog ceremony was to be performed, on 09.02.96. It was further stated by him that, as such, he went to his village, in connection with the death of his uncle. It was further stated by him that he was picked up by the Police, from his village i.e. Nimol, on 03.02.96, and later on, he was falsely implicated, in the instant case, on 06.02.96. It was further stated by him that nothing was recovered from him. It was further stated by him that the case was false one. He, however, did not lead any evidence, in defence. 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. Criminal Appeal No 348-SB of 2002 4 8. Feeling aggrieved, the instant appeal, has been filed by the accused/appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, assailed the judgement of conviction and the order of sentence of the trial Court, on the following grounds:- (i) That the accused/appellant, was not found, in conscious possession of the contraband. (ii) That there was delay of 14 days, in sending the samples, to the Chemical Examiner, which remained unexplained, and the other evidence, produced for proving the link evidence, was unreliable, and, as such, the possibility of tampering with the samples, could not be ruled out. (iii) That no independent witness, despite availability, was joined, nor any attempt, was made, to join him, as a result whereof, the case of the prosecution became doubtful, (iv) That the sample impression of the seals, was not sent, to the laboratory, at the time of alleged deposit of the samples and, as such, the possibility of tampering with the same, could not be ruled out. 11. According to the prosecution story, the accused, was seen sitting under a tree, on the right pavement of seepage drain, on the gunny bags, containing poppy husk. Baldev Singh, Deputy Superintendent of Police, PW4, who was called, to the spot, reached there. He did not state even a single word, in his statement, that the Investigating Officer, told him, that the accused, was found sitting, on the gunny bags, which were kept, on the pavement of seepage drain. Had the accused, been found sitting, on the bags, containing poppy husk, lying on the pavement of seepage drain, Baldev Singh, Deputy Criminal Appeal No 348-SB of 2002 5 Superintendent of Police, PW4, would have certainly been informed of the same by Jasbir Singh, Sub Inspector, PW5. Even otherwise, two gunny bags, containing 60 kgs poppy husk, were lying, at the public place. The gunny bags, were not lying, either in the house of the accused, or in his fields, or in the tube-well room, or in any property, belonging to him. Any person from the public, could keep the gunny bags, at a public place. The accused might have sit, on the gunny bags, which were lying, in the seepage drain, just with a view to take rest, under a tree, when he felt fatigued. He might have been a passer by, and just after urinating, might have thought of sitting there, on the bags, which were lying, at that place. There is nothing, on the record, to show, that the accused, was aware of the contents of the bags, lying at a public place. Had the evidence, been produced, by the prosecution, to the effect, that the accused, was aware of the factum, that the bags, on which, he was allegedly sitting contained poppy husk, or he had purchased the same, and had kept the same, at that place, or he was carrying the same, for the purpose of selling the contents thereof, being poppy husk, to the customer(s) or he was indulging in smuggling activities, the matter would have been different. Since the prosecution miserably failed, to prove, that the accused, was aware of the contents of the gunny bags, it could not be said, that he was either in physical or constructive possession thereof, or was having any control over the bags containing poppy husk. Once the possession or control of the accused, in relation to the bags, containing poppy husk, was not proved, the question of operation of statutory presumption, under Criminal Appeal No 348-SB of 2002 6 Sections 35 and 54 of the Act, against him, that he was in conscious possession thereof, did not at all arise. In Parminder Singh Vs. State of Haryana, 2006 (4), RCR, 495, the accused, was standing near the car, in which, opium was lying. The car, did not belong to the accused. On seeing the Police party, he ran away. Under these circumstances, a Division Bench of this Court, held that, the accused, could not be said to be in conscious possession of the opium, lying in the car. In State of Punjab Vs. Balkar Singh, 2004(3), SCC, 582, the accused, were found, sitting on one hundred bags of poppy husk, lying in the fields. They were acquitted by the High Court, on the ground, that their possession, in respect of the bags, containing poppy husk, was not proved, and, as such, statutory presumption, under Sections 54 and 35 of the Act, could not operate, against them, that they were in conscious possession thereof. The State, feeling aggrieved, filed a Criminal Appeal, in the Apex Court. The Apex Court, held that, the mere fact that the accused were allegedly found to be sitting, on the bags, containing poppy husk and their failure to give any satisfactory explanation, for being so present, did not prove that they were in possession of the said poppy husk bags, especially when they belonged to different villages, and no investigation had been conducted, by the Investigating agency, as to how the bags containing poppy husk were found lying, at that place. Para 3 of the said judgment reads as under : “3, We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy Criminal Appeal No 348-SB of 2002 7 husk recovered by the police. The evidence by the prosecution consisted of the testimoney of PW1 Balbir Singh and PW2 ASI JarnailSingh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present at that place itself does not prove that the were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any Criminal Appeal No 348-SB of 2002 8 infirmity in the judgment passed by the High Court. 12. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. The submission of the Counsel for the appellant, to the effect, that the appellant, was not found, in conscious possession of the poppy husk, allegedly recovered, from the seepage drain, and, thus, no offence punishable under Section 15 of the Act, was constituted, carries substance, and deserves to be accepted. 13. The alleged recovery, was effected, on 06.02.96, whereas, the sample parcels, were sent, to the Chemical Examiner, on 20.02.96, i.e. after the delay of 14 days, which remained unexplained, especially when the seal after use, remained with the Police officials throughout. It is, no doubt, true 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 samples to the Chemical Examiner, 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 samples were sent to the Chemical Examiner, the same were not tampered with. If the prosecution fails to prove this factum, then its case is bound to dwindle down. In State of Rajasthan Criminal Appeal No 348-SB of 2002 9 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. 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. Criminal Appeal No 348-SB of 2002 10 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. 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. In the instant case, the possibility of tempering with the samples could not be ruled out. The submission of the Counsel for the appellant, being correct is accepted. 14. No independent witness, was joined, by the Investigating Officer, despite availability. During the course of his cross- examination, Jasbir Singh, Sub Inspector, PW5, stated that, Harbant Singh, Constable, was sent, to call an independent witness, from village Jakhepal, but, on return, he told that, no body was willing to become a witness. He further stated that, no action, was taken, against the persons, who refused to join as witnesses. He further stated that he could not tell the names of the persons, who refused to join the investigation. Harbant Singh, Constable, was not examined, as a witness, by the prosecution, to depose, as to which persons of the village, he contacted, and what were the names of those persons, who refused to join the investigation. It was he, who could give the first hand information, in relation to this aspect of the matter. Under these circumstances, from the evidence of Jasbir Singh, Sub Inspector, PW5, Criminal Appeal No 348-SB of 2002 11 it could certainly be said, that no effort, was even made, to join an independent witness. The explanation, furnished by him, is only a concocted one. 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 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. Criminal Appeal No 348-SB of 2002 12 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, 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, Criminal Appeal No 348-SB of 2002 13 became highly doubtful. 15. The sample impression of the seals, was not sent, to the Chemical Examiner, at the time of sending the samples. PB is the affidavit of Sardara Singh, Constable. In his affidavit, he did not testify, that he was handed over the sample impression of the seals, in this case, and he deposited the same, in the office of the Chemical Examiner alongwith the sample parcels. Since the sample impression of the seals, was not handed over to Sardara Singh, Constable, nor the same, was deposited, in the office of the Chemical Examiner, it is not known, as to how, it was recorded, in the report, exhibit PJ of the Chemical Examiner, 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 Chemical Examiner, had the same been deposited. In the absence of deposit of the sample impression of the seals with the Chemical Examiner, 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 raid. 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. Criminal Appeal No 348-SB of 2002 14 17. No other point, was urged, by the Counsel for the parties. 18. In view of the above discussion, it is held, that the judgement of conviction and the order of sentence, are not based, on the correct reading and due appreciation of evidence, as also the law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would have certainly come to the conclusion, that the prosecution, had failed, to prove its case, beyond a reasonable doubt. The findings, recorded by the trial Court, recording conviction and awarding sentence, to the accused (now appellant), are perverse and illegal, and, as such, liable to be set aside. 19. For the reasons recorded above, the appeal, is accepted. The judgement of conviction and the order of sentence, rendered by the trial Court, are set aside. The appellant, is acquitted of the charge framed against him. If the appellant, 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. 20. 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. 17.02.2010 (SHAM SUNDER) Amodh JUDGE