Criminal Appeal No. 1654-SB of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 1654-SB of 2004 Date of decision : March 03, 2008 Jagtar Singh ... Appellant Versus State of Punjab ... Respondent A N D Criminal Appeal No. 567-SB of 2005 Ashok Singh ... Appellant Versus State of Punjab ... Respondent ... Present: Mr. V. K.Sandhir, Advocate for the appellant. Ms Manjari Nehru, Deputy Advocate General, Punjab, for respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J By this judgment,Criminal Appeal No. 1654-SB of 2004 filed by Jagtar Singh and Criminal Appeal No. 567-SB of 2005 preferred by Ashok Singh are being disposed of as these emanate from the same judgment/order of sentence dated 21.5.2004 rendered by the Court of learned Judge, Special Court, Mansa, whereby he convicted and sentenced accused/appellants- Jagtar Singh and Ashok Singh, to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, the defaulter to further undergo Criminal Appeal No. 1654-SB of 2004 -2- rigorous imprisonment for one year under Section 15 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ) and further convicted and sentenced Jagtar Singh to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year under Section 25 read with Section 15 of the Act, with a direction that his sentences shall run concurrently. The factual matrix of the prosecution case is that on 9.4.2003, SI Balwinder Singh, in the company of other police officials, while in Government gypsy driven by Constable Joginder Singh, had set up Naka on the turning of the link road leading to Village Ghurkani near Grain Market, Jhunir on Jhunir-Sardulgarh metalled road. From Sardulgarh side one Maruti Car of white colour was spotted coming. The same was directed to be stopped. Instead of stopping the Car, its driver made an attempt to escape in the Car on the left side of the road. The same, initially struck against the cement board, whereafter it dashed against the kikar tree stump and then struck against Kikar No.39 and it came to halt. The driver as well as another occupant of the Car were taken out by the above mentioned Sub-Inspector. The driver and the other occupant disclosed their names as Jagtar Singh and Ashok Singh respectively. They were told that some contraband was suspected to be in the bags lying in the Car. So, their car was to be searched. They were informed that they have got the right to get the Car searched in the presence of a Magistrate or a Gazetted Officer and if they so desire, they can be taken to the Magistrate or a Gazetted Officer. They opted their Car to be searched in the presence of a Gazetted Officer. Their consent memos. were prepared. On receipt of wireless message, Raminder Singh DSP, Criminal Appeal No. 1654-SB of 2004 -3- Sardulgarh, alongwith his gunman came at the spot. He was made aware of the facts of the case. He disclosed his identity to the accused. He told the accused that the bags lying in their Car were suspected to contain some intoxicants and the same were to be searched and that they have got the right of their Car to be searched before any other Gazetted Officer. They expressed their confidence in the DSP. Their consent memos. were prepared. On his instructions, the Car was searched. Onsuch search, 4 bags of poppy husk were recovered. When weighed, the poppy husk in each bag came to 35 Kgs., out of which 2 samples of 100 grams were drawn from each bag and the same were converted into parcels. The residue in the bags was also made into parcels. Thereafter, all the parcels were sealed with the seal BS. The sample seal was also prepared. The seal after use was handed over to Gurcharan Singh. The above mentioned parcels were seized vide Memo. Exh.PC. Ruqa,Exh. PM was sent to the Police Station. On its basis, formal FIR,Exh. PM/1 was registered. The statements of witnesses were recorded. The accused were arrested. They, along with the case property, were taken to the Police Station. Rough site plan was prepared. On 10.4.2003, the accused along with inventory report and the case property were produced before the Ilaqa Magistrate. On receipt of FSL report and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused were charged under Section 15 of the Act, to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1- DSP Raminder Singh, PW2-Sukhjit Singh, Junior Assistant, Office of the D.T.O, Sangrur, PW3-ASI Magdoor Singh, PW-4 Criminal Appeal No. 1654-SB of 2004 -4- SI Balwinder Singh, PW5-HC Amrik Singh and thereafter the prosecution evidence was shut out by order of the Court as the prosecution had failed to conclude its evidence, though several opportunities were granted for adducing the remaining evidence. When examined under Section 313 of the Code of Criminal Procedure, both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. In defence, they examined DW-1 Hardev Kaur alias Ladi and DW-2 HC Gurtej Singh. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved with their conviction/sentence, they have preferred these appeals. I have heard Mr. V. K. Sandhir, Advocate, Mr. Satnam Singh Gill, Advocate, counsel for the appellants as well as Ms Manjari Nehru, Deputy Advocate General, Punjab, for the State of Punjab, besides going through the record with due care and circumspection. Mr. V. K. Sandhir, Advocate as well as Mr. Satnam Singh Gill, Advocate, appearing on behalf of the appellants, maintained in one voice that the seal after use was allegedly handed over to Gurcharan Singh, an independent witness and as emerges out of the cross-examination of SI Balwinder Singh, PW-4 (Investigator), the seal was returned to him by Gurcharan Singh, PW on the next day and the case property as well as sample parcels remained with SI Balwinder Singh till the despatch of the sample to the F.S.L. and to add further to it, there is a delay of as many as Criminal Appeal No. 1654-SB of 2004 -5- 12 days in sending the sample to the F.S.L though as per standing instruction No.1/88 dated 15.3.1988 of the Narcotic Control Bureau, the sample should be despatched within 72 hours for chemical analysis. These circumstances probablises the tampering with the contents of the sample parcels as well as the case property. Ms Manjari Nehru, Deputy Advocate General, Punjab, on behalf of the State pressed into service that a glance through Exh.R/1, the report of the F.S.L. would reveal that the seals of the sample parcels tallied with the sample seal at the time of receipt of the same in the Laboratory and this documentary evidence rules out the possibility of tampering with the contents of sample parcel and the case property. This contention merits rejection. There is no gain saying the fact that as alleged, the seal after use was entrusted to the independent witness, Gurcharan Singh and there is a delay of 12 days in the despatch of sample parcel to the F.S.L for chemical analysis. Gurcharan Singh, PW has not been examined by the prosecution. The statement of SI Balwinder Singh (Investigator) is absolutely silent with regard to the preparation of C.F.S.L form at the spot or its deposit in the Malkhana. It is in his evidence that “he kept the case property in his custody being the S.H.O. and Incharge of Police Station; on the next day, he produced the accused and the case property before the Ilaqa Magistrate by application, Exh.PO and submitted the inventory report, Exh.PP. The learned Magistrate passed the order, Exh.PP/1 that there was no sufficient space in Judicial Malkhana, so I kept the case property in my custody. ” It is discernible from this evidence that the case property remained in his custody all through. In re: Sukhdev Singh alias Sukha v. Criminal Appeal No. 1654-SB of 2004 -6- State of Punjab, 2006 (1) Recent Criminal Reports (Criminal) 4, the seal was given to the Sub Inspector of Police and not to the independent witness. The Division Bench of this Court held that the possibility of seal being tampered with, substance being changed and the container being re-sealed, cannot be ruled out. In case Bhola Singh v. State of Punjab, 2005 (2) Recent Criminal Reports (Criminal) 520, this Court observed that “ the C.F.S.L form should be prepared at the spot and deposited in Malkahana. Where the seal remained with the Police after use and the C.F.S.L. form was neither prepared at the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case. Filling up of C.F.S.L form at the spot is a very valuable safeguard to ensure that the sealed sample is not tampered with till its analysis by the F.S.L. ” In re: Ramji Singh v. State of Haryana, 2007 (3) Recent Criminal Reports (Criminal) 452 (Punjab and Haryana ), the independent witness was not examined. The seals remained with the Police official. There was a delay of 8 days in forwarding the sample for chemical analysis. Form No.29 was not prepared at the spot nor deposited in the Malkhana. It was held that the possibility of tampering with seals as well as seized contraband and the sample cannot be ruled out. In the instant case, identical flaws appear in the prosecution evidence. Consequently, the possibility of seal, contraband and the sample being tampered with, cannot be ruled out. The recovery of 4 bags is stated to have been effected from Maruti Car. It is doubtful that four bags of poppy husk could be accommodated inside the Maruti Car when the front seat was occupied by both the appellants. Thus, the manner in which the recovery has been effected, has to be looked upon with suspicion. Criminal Appeal No. 1654-SB of 2004 -7- In view of the preceding discussion, these appeals are accepted, setting aside the impugned judgment/order of sentence. The appellants are hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE March 03, 2008 RS Whether to be referred to the Reporter ? Yes/No