Crl. Appeal No.527-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.527-SB of 1995 Date of Decision : May 26, 2008 Prem Parkash S/o Sita Ram, ....Appellant R/o Puraina, District Saharanpur. Versus The State of Haryana ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mrs. Kiran Bala Jain, Advocate, with Mr. Amrinder Singh, Advocate, for the appellant. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 7.9.1995, and the order of sentence dated 9.9.1995, rendered by the Court of Addl. Sessions Judge, Ambala, vide which it convicted the accused/appellant, 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 years, for having been found in possession of 20 Kgs. poppy-husk, without any permit or licence. Crl. Appeal No.527-SB of 1995 2 2. The facts, in brief, are that on 19.7.1994, Sewa Ram, SI, alongwith other police officials, was present, near Sewa Samiti Chowk, Ambala Cantt., in connection with patrol duty. In the meanwhile, he received a secret information, to the effect, that the accused deals in the business of poppy-husk. He was further informed that he was carrying poppy-husk from U.P. to Punjab. He was further informed that the accused was coming in a Haryana Roadways bus, alongwith poppy-husk, and will step down, from the bus, at Doorbin Chowk (micro-scope round about), and if a raid was conducted, he could be caught red- handed. Since, the information was authentic, the Addl. Superintendent of Police, and the SHO, Police Station, Ambala Cantt., were informed, with a request to reach the spot. Thereafter, Shiv Shakti Rao, ASP, Ambala, and Banwari Lal, SHO, Inspector/SHO, reached there. A Haryana Roadways bus of Yamuna Nagar Depot, stopped there. The accused stepped down, from the bus, with a bundle, on his shoulder. He started going towards the Railway Station. On suspiciion, he was stopped by Sewa Ram. Thereafter, the search of the bag, being carried by the accused, was conducted, as a result whereof, 20 Kgs. poppy-husk, was recovered. Two samples of 250 grams of poppy-husk each, were taken out, from the aforesaid poppy-husk, and the remaining poppy-husk, was put into the separate container. The sample, and the container, containing the remaining poppy-husk, 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. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, 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 trial. 4. The prosecution, in support of its case, examined Nathu Ram, HC (PW-1), Sewa Ram, SI (PW-2), Balbir Singh, Constable Crl. Appeal No.527-SB of 1995 3 (PW-3), Benwari Lal, Inspector/SHO (PW-4), Balwant Singh, MHC (PW-5), and Shiv Shakti Rao, ASP (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. The accused tendered into evidence, copy of the judgment, Ex.DA, and the copy of ruqa, Ex.DB. Thereafter, he closed his defence evidence. 6. After hearing the 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/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 out-set, submitted that though the alleged recovery, in this case, was effected, on the basis of a secret information, yet no independent witness was joined, despite availability. The Counsel for the appellant, further contended that even no effort was made, to join an independent witness. She further contended that, on account of this reason, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Banwari Lal, Inspector/SHO, (PW-4), during the course of his cross-examination, stated that he did not ask Sewa Ram, SI, to join an independent witness. He further stated that he personally did not try to join an independent witness. He further stated that the recovery was effected, from the accused, in a thickly poppulated area. Sewa Ram, SI, (PW-1), the Investigating Officer, during the course of his Crl. Appeal No.527-SB of 1995 4 cross-examination, stated that many persons were coming and going. He further stated that a number of shops were there, in between Sewa Samiti Chowk, and Doorbin Chowk, and many persons were present there. He further stated that there were a number of shops including dhabas etc., at Doorbin Chowk. He further stated, that he tried to join an independent witness, after receiving the secret information, and prior to the apprehension of the accused. He further stated that he could not tell the name of any person, whom he tried to join. He further stated that he did not remember, if he mentioned this fact, in the case diary. He further stated that, he did not proceed against those persons, who had shown their helplessness, to join the investigation. The statement of Sewa Ram, SI (PW-2), on this aspect of the matter, does not appear to be correct. Had an effort been made, by the Investigating Officer, to join an independent witness, and, none despite availability, had come forward, to join, he would have certainly recorded this factum, in the case diary, or any other document, prepared contemporaneously, at the time of the alleged recovery. Non-mention of this fact, in the case diary, or in other documents, clearly exhibited that Sewa Ram, SI, made an incorrect statement, that an effort was made, to join an independent witness, but none came forward to join. It means that the public witnesses, were not intentionally and deliberately joined, despite availability. Had any effort been made, to join an independent witness, the matter would have been considered, in the light thereof. Since 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 Crl. Appeal No.527-SB of 1995 5 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. That cannot be permitted. In the instant case, the alleged recovery being minor, now falling within the ambit of non- commercial quantity, and chances of plantation of the same, against the accused, could not be ruled out, it became 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) Crl. Appeal No.527-SB of 1995 6 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 authorities, 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, became highly doubtful. This aspect of the matter, was not taken into consideration, by the trial Court, as a result whereof, miscarriage of justice occasioned. 10. It was next contended by the Counsel for the appellant, that though the alleged recovery, in this case, was effected on 19.7.1994, yet, the sample was sent to the office of the Forensic Science Laboratory, on 2.8.1994. She further contended that the delay of 10/11 days, in sending the sample, to the office of the Forensic Science Laboratory, was not explained, by the prosecution witnesses, as a result whereof, it could not be safely held, that the sample remained untampered with, until it reached the office of the Forensic Science Laboratory, especially when the seals remained with the police officials. The submission of the Counsel for the appellant, in this regard, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 10/11 days, in sending the sample to the office of the Forensic Science Laboratory. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the sample, till the same reached the office of the Forensic Science Laboratory. Since, the sample was allegedly sent to the office of the Forensic Science Crl. Appeal No.527-SB of 1995 7 Laboratory, after about 10/11 days, it could not be safely held that the same remained un-tampered with. This fact casts a shadow of doubt, on the case of the prosecution. 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 State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquirred. 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, 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. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Chemical Examiner. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 17 days, in sending the sample to the office of the Forensic Science Laboratory, and non- strict proof, by the prosecution, that the same was not tampered with, till it was deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the sample, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. Crl. Appeal No.527-SB of 1995 8 11. In the instant case, there was violation of the Provisions of Section 55 of the Act, as the case property and the sample were not produced before the Magistrate. Section 55 of the Act, lays down that an Officer Incharge of Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized, under this Act, within the local area of that Police Station, and which may be delivered to him, and shall allow any officer who may accompany such articles, to the Police Station, or who may be deputed for the purpose, to affix his seal to such articles, or to take samples of, and from them, and all samples, so taken, shall also be sealed with a seal of the Officer-in-charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the sample are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Crl.) 702 (S.C.), it was held that non-compliance of the provisions of Sections 52,55 and 57, which are, no doubt, directory and violation thereof, would not ipso facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure will have bearing on Crl. Appeal No.527-SB of 1995 9 the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, the Investigating Officer, intentionally and deliberately breached the provisions of Section 55. He could not say that since the provisions of Section 55 are directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provisions is an indicator towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 12. The provisions of Section 57 of the Act, were not complied with. No report was sent by the Investigating Officer, to his superior officer, with regard to the alleged apprehension of the accused, and the alleged recovery of contraband, from him. No doubt, the provisions of Section 57 of the Act, are directory in nature. That does not mean that the same, should not be complied with, by the Investigating Officer, deliberately and intentionally. Similar principle of law was, laid down, in Gurbax Singh's case (supra). However, the Investigating Officer, cannot totally ignore these provisions, and such, failure will have bearing on the appreciation of evidence, regarding search of Crl. Appeal No.527-SB of 1995 10 the accused, and seizure. The object of the provisions of Section 57, is that the Superior Officer should be informed, immediately, after the alleged recovery of contraband, so that he must be aware of the genuineness of the proceedings, conducted by his junior, to ensure that no innocent person was implicated, and the allegations of high-handedness, against the Police officials, are averted. Had any explanation been furnished by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of the Act, the matter would have been different. In the absence of any explanation, what to speak of plausible, the Court cannot coin any of its own, to fit in with the prosecution case. Since, the provisions of Section 57 of the Act, were observed, more in breach, than in compliance, by the Investigating Officer, intentionally and deliberately, the case of the prosecution became doubtful, on account of this reason. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it committed an error, in recording conviction and awarding sentence. 13. The Counsel for the appellant further submittd that there was an other serious lacuna in the prosecution case, which was not taken into consideration, by the trial Court, as a result whereof, miscarrige of justice occasioned. She further submitted that at about 4.15 PM, another accused, in case FIR No.276 dated 19.7.1994, was arrested, and the alleged recovery was effected from him. She further submitted that, in that case, Banwari Lal, Inspector, affixed his seal, bearing impression 'BL', and handed over the same, to Jai Pal, Constable. She further submitted that in the present case bearing FIR No.277 dated 19.7.1994, in which the accused was apprehended at 4.30 PM, Banwari Lal, Inspector aforesaid, while appearing as (PW-4), stated that he handed over the seal, after use to Nathu Ram, HC, who returned the same to him, after 6/7 days. She further submitted that Banwari Lal, Inspector, stated that he was having only one seal. She further submitted that how the seal, Crl. Appeal No.527-SB of 1995 11 which was used, in case FIR No.276, in which another accused was apprehended at 4.15 PM, and in which the seal was handed over to Jai Pal, came in the hands of Banwari Lal, Inspector, for use, in this case, at 4.30 PM, on that date, as there was no evidence, on record, that it was returned to him between 4.15 PM to 4.30 PM. She further submitted, that this clearly goes to prove, that either one of the prosecution witnesses, was not present, at the time of effecting the alleged recovery, or no recovery, whatsoever, was effected from the accused. The submission of the Counsel for the appellant, appears to be correct. Since, it is proved from the evidence, on record, that in FIR No.276, in which ruqa was sent at 4.15 PM, Banwari Lal, Inspector, who was having only one seal, handed over the same to Jai Pal, Constable, who did not return the same, to him, then, how the same very seal, could be used in FIR No.277, relating to this case. This lacuna was sufficient, to create a cloud of doubt, on the prosecution story, but was not taken into consideration, by the trial Court, for the reasons best known to it. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 14. 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. The trial Court did not take into consideration, the infirmities and lacunae, enumerated, in the aforesaid paragraphs. Had these infirmities and lacunae, been taken into consideration, by the trial Court, the result would have been different. The judgment of conviction, and the order of sentence, warrant interference, and are liable to be set aside. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 7.9.1995, and the order of sentence dated 9.9.1995, are set aside. The appellant shall stand acquitted of the charge framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he Crl. Appeal No.527-SB of 1995 12 is in custody, he shall be set at liberty at once, if not required in any other case. May 26, 2008 (SHAM SUNDER) Vimal JUDGE