IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.199-SB of 1996 Date of Decision : January 23, 2008 Pargat Singh S/o Jagir Singh ....Appellant Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bipan Ghai, Advocate for the appellant. Mr. A.S.Brar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence dated 9.2.1996, rendered by the Court of Addl. Sessions Judge, Amritsar, vide which it convicted the accused/appellant Angrej Singh, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substance 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. On 1.9.1991, Gurnam Singh, Sub Inspector, alongwith Nirmal Singh, Head Constable, Ajit Singh, Constable and other police officials, when reached a little bit ahead of the bridge of canal minor, in he area of Kirtowal, in connection with patrol duty, the accused was spotted coming from the opposite direction, who was nabbed. He was carrying a gunny bag, on his head. On search of the gunny bag 35 Kgs. Poppy husk was recovered, out of which, a sample of 250 grams, was taken. The sample and the remaining poppy husk, in the same gunny bag, were sealed, and taken into possession. The accused was arrested. After the completion of investigation, the accused was challaned. Crl. Appeal No.199-SB of 1996 (2) 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. After the case was received by commitment, in the Court of Sessions, 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 Dilbagh Singh, Constable (PW-1), Inder Pal, ASI (PW-2), Nirmal Singh, SI (PW-3), Ram Nath, Inspector (PW-4), and Gurnam Singh, SI (PW-5). The Addl. PP for the State, tendered into evidence report of the Chemical Examiner Ex.PE, 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 against him, in the prosecution evidence. He pleaded false implication. It was stated by him that he was arrested from his house, in the area of Kirtowal, by the Police of Police Station Harike, in the presence of Dharam Singh, Sarpanch, and Balwinder Singh, resident of the same village. He further stated that he was illegally detained, in Police Station Harike. His father moved an application to the S.D.O.(C), Patti on 9.9.1991, about his illegal detention. He further stated that he was studying in plus 2. Later on, he was falsely implicated, due to party faction, in the village. He also produced Dharam Singh (DW-1), Pargat Singh (DW-2), Piara Singh (DW-3), Jagir Singh (DW-4), and thereafter, he closed the defence evidence. 6. After hearing the Addl. 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 lower Court, the instant appeal, was filed by the accused/appellant. Crl. Appeal No.199-SB of 1996 (3) 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 chances of tampering with the case property, and the sample, in this case, could not be ruled out. He further submitted that the seal after use, in this case, was handed over to Inder Pal, MHC. He further submitted that Gurnam Singh, Sub Inspector (PW-5) stated that the seal after use was handed over to Nirmal Singh, (PW-3), at the relevant time Head Constable. Nirmal Singh (PW-3) stated that he returned the seal to Gurnam Singh, (PW-5), on the next day of recovery. The sample was sent to the Chemical Examiner on 17.12.1991. It is fundamental principle of law, that the prosecution is required to prove its case beyond e reasonable doubt. It was the bounden duty of the prosecution, to prove its case to the hilt that from the stage of recovery, upto the stage of handing over of the sample, to the Chemical Examiner, the sample containing contraband, was not tampered with, at all If from the evidence, on record, it is proved that there was possibility of tampering with the sample, before it reached the office of the Chemical Examiner, then a doubt is cast on the prosecution story. Since the seal was returned by Nirmal Singh (PW-3), to the Investigating Officer, on the next day, and the sample was sent to the Chemical Examiner on 17.12.1991 i.e. after a period of more than 3 months, the possibility of tampering with the seals on the samples by the Investigating Officer, to whom the seal was returned on the next day, could not be ruled out. The submission of the Counsel for the appellant that tampering with the sample, until it reached the office of the Chemical Examiner, could not be ruled out, being correct, is accepted. 10. It was next submitted by the Counsel for the appellant, that since there was delay of more than 3 months, in sending the sample, to the office of the Chemical Examiner and the seal remained with the Investigating Officer, the possibility of the case property and the sample, having been changed, in the Crl. Appeal No.199-SB of 1996 (4) meanwhile, and resealed, could not be ruled out. He further submitted that, in those circumstances, the tampering with the case property and the samples, could also not be ruled out. No explanation, whatsoever, was furnished, as to why the sample was not sent to the office of the Chemical Examiner, for about a period of 3 months. 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, and the link evidence was incomplete. Ultimately, the appellant was acquitted in that case. On account of this infirmity, the appellant is liable to be acquitted. 11. It was next submitted by the Counsel for the appellant that the defence version set up by the accused was more probable, than the prosecution case. The prosecution was required to prove its case, against the accused, beyond a reasonable doubt. The accused was only required to cause dent in the prosecution case, either by shaking the veracity of the prosecution witnesses, during the course of cross-examination, and or producing the defence evidence, which could be more probable, than the prosecution evidence. In the instant case, in the statement under Section 313 Cr.P.C. the plea taken up by the accused was that he was a plus 2 student at the relevant time, and was falsely implicated by taking him from his house, in the presence of his family members and Sarpanch of the village. Dharam Singh DW-1, stated that on 8.9.1991 the police of police station Harike came to the Behak of the accused. The younger brother of the accused came to him and he told him that police had come to their Behak and he should accompany him. He accompanied the younger brother of the accused, to his Behak. When he went there Balwinder Singh, Ex.sarpanch Crl. Appeal No.199-SB of 1996 (5) and Piara Singh also came there. The police took search of the house of the accused, in his presence, but no incriminating article was recovered. It was further stated by him, that the police took the accused with it. When they protested to the police, as to why they had been taking the accused, when no incriminating article was recovered, they were told that after interrogation, he will be left. He further stated that they passed a resolution, copy whereof is Ex.D-1, and also met the S.P. regarding the false implication of the accused. Pargat Singh, DW-2, Panchayat Secretary, also stated that resolution dated 9.9.1991, was passed by the Panchayat. Piara Singh, DW-3, also stated that the accused was taken in their presence on 8.9.1991, from his Behak. Jagir Singh, DW-4, also made a similar statement. He further stated that when they went to the Police Station, the Police did not let off the accused, and they passed a resolution dated 9.9.1991, and also sent copies thereof, to the S.D.M. and other officers. From the resolution copy Ex.D-1, it is evident that the police came to the Behak of the accused on 8.9.1991 at about 5.00 P.M., and in the presence of Dharam Singh, Pargat Singh and Piara Singh took him with it, when no incriminating article was recovered, either from him, or from his Behak. It is further evident, from this resolution, that the police told them that the accused would be let off after interrogation. From the afore-discussed defence evidence, it can be safely inferred that no incriminating article was recovered from the accused, but he was falsely implicated. Whatever, the accused with regard to his false implication, could do was done by him, and his family members. The recovery was allegedly effected in this case, from the accused on 10.9.1991, whereas, the resolution, which was passed, is dated 9.9.1991. It was not an application, which was moved by the accused, or his relatives, which could be fabricated later on. The defence version was, thus, more probable, than the prosecution version. The trial Court was wrong in discarding the defence version on flimsy grounds. Since the defence version was more probable than Crl. Appeal No.199-SB of 1996 (6) the prosecution version, the case of the prosecution became doubtful, and the accused was entitled to acquittal. The trial Court was, thus, wrong in convicting the accused. 12. 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 based on the correct appreciation of evidence, and law, on the point, and the same are liable to be set aside. 13. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction and the order of sentence dated 9.2.1996, are set aside. The appellant shall stand acquitted of the charge framed again him. He is discharged of the bail bonds. January 23, 2008 (SHAM SUNDER) Vimal JUDGE