Crl. Appeal No.690-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.690-SB of 1998 Date of Decision : March 27, 2008 Kashmir Singh S/o Dulla Singh, ....Appellant R/o Village Saidewala, P.S.Boha, District Mansa. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: None for the appellant. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 23.7.1998, and the order of sentence of the even date, rendered by the Court of Addl. Sessions Judge, Mansa, vide which it convicted the accused/appellant Kashmir 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 one year. 2. The facts, in brief are that on 29.7.1995, the police party headed by Gurtej Singh, ASI, was going towards village Ralli, in connection with patrol duty and nakabandi, and when the police party reached near Gurunanak College, Budhlada, Babu Singh S/o Dann Singh, met it, who was joined with it. Thereafter, the police party held a picket, on the canal minor bridge of village Ralli. During picket, Mohinder Singh, DSP (H), also came to the spot. At that time, Kashmir Singh, accused, was seen coming from the opposite side, Crl. Appeal No.690-SB of 1998 2 carrying a bag, on his head. He was stopped and interrogated. The search of the bag, was conducted, in the presence of the DSP, in accordance with the provisions of law, which resulted into the recovery of 15 Kgs. 100 grams poppy-husk, now falling within the ambit of non-commercial quantity. A sample of 100 grams, was separated therefrom. The sample, and the remaining poppy-husk, were converted into parcels, duly sealed with the seal, bearing impression 'GS', and thereafter, the same were taken into possession. The accused was arrested. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. Rough site plan of the place of recovery, was prepared. 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 Janak Singh, SI (PW-1), Buta Singh, Constable (PW-2), Gurtej Singh, ASI (PW-3), and Gurcharan Singh, HC (PW-4). Thereafter, the Addl. 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, did not lead any evidence, in his defence. 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 trial Court, the instant appeal, was filed by Crl. Appeal No.690-SB of 1998 3 the accused/appellant. 8. Despite due notice, that the instant appeal was listed for regular hearing, on the roster of this Court, none appeared on behalf of the appellant. 9. I have heard the learned Counsel for the respondent, and have gone through the evidence and record of the case, carefully. 10. In the instant case, though Babu Singh, independent witness, was joined by the Investigating Officer, at the time of effecting the alleged recovery, yet he was not examined, and given up as won over, by the accused, by the Addl. P.P. for the State, vide his statement dated 15.4.1996. There is nothing in the statement of the Addl.P.P. for the State, as to on the basis of which, data or material, he came to the conclusion, that this witness had been won over, by the accused. There is nothing, on the record, that any application was moved, by the Investigating Officer, that he had come to know from reliable sources, that Babu Singh, independent witness, was not going to support the case of the prosecution, and, thus, he be given up. It is, no doubt, true that the Public Prosecutor for the State, is the master of the case. It is, for him to decide, as to which witness he wanted to examine and as to which witness he did not want to examine. However, such discretion is required to be exercised, by the Public Prosecutor, in accordance with the sound Judicial principles, and, not arbitrarily and capriciously. In the instant case, it is not known, as to what, persuaded the Public Prosecutor to give up, this witness, as won over. It, therefore, could be be said that the discretion was exercised by him, arbitrarily and capriciously. It is, no doubt, true that, in the absence of corroboration, through independent source to the evidence of the official witnesses, the case of the prosecution cannot be thrown out. However, when an independent witness is joined, but is given up, without any rhyme or reason, then certainly a doubt is cast, on the prosecution story. Had Babu Singh, independent witness been examined, light would have been thrown, on the facts and circumstances of the case, and Crl. Appeal No.690-SB of 1998 4 credence would have been lent to the prosecution case, solely based on the evidence of the official witnesses. 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. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution became doubtful. In the instant case, non-examination of Babu Singh, made the case of the prosecution doubtful. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused. 11. In the instant case, there are so many material contradictions, and discrepancies, in the evidence of the official witnesses, which if taken cumulatively, must prove fatal to the case of the prosecution, but the trial Court did not take into consideration, the same, as a result whereof, miscarriage of justice occasioned. Gurtej Singh, ASI (PW-3), stated that the Investigating Officer, obtained the weights and scale, which were of 5 Kgs., 2 Kgs., 1 Kg., 500 grams and 100 grams, whereas, Gurcharan Singh, HC (PW-4), stated that Crl. Appeal No.690-SB of 1998 5 the Investigating Officer, was having the weights in his possession of 1 Kg. and 2 Kgs. Gurtej Singh, ASI (PW-3) stated that the weights and scale were brought by Harjot Singh, SPO, while Gurcharan Singh, HC (PW-4), stated that these were brought by Gurbakshish Singh, Constable. Gurtej Singh, ASI (PW- 3) stated that the consent memo of the accused was prepared, at the spot, after the bag was recovered, but PW-4 stated that the bag was being carried, by the accused, on his head, when the consent memo was prepared. These contradictions and discrepancies, in peculiar facts and circumstances, of this case, if taken individually, may not seem to be significant, and material. However, when the same are taken cumulatively, keeping in view the factum, that the case of the prosecution is solely based, on the evidence of the official witnesses, and independent witness, who was joined, was given up as won over, without any rhyme or reason, certainly a doubt is cast, on the prosecution story. These contradictions and discrepancies, were not explained by the prosecution witnesses. Had any explanation been furnished, in that regard, by the prosecution witnesses, the Court would have taken into consideration the same. However, in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. The trial Court, however, failed to take into consideration the effect of these material discrepancies and contradictions, on the case of the prosecution. On account of the occurrence of these unexplained contradictions and discrepancies, in the statements of the official witnesses, the case of the prosecution became doubtful. 12. The alleged recovery was effected on 29.7.1995, whereas, the sample was sent to the office of the Chemical Examiner, on 3.8.1995. It means that the sample was sent to the office of the Chemical Examiner after 5 days of the alleged recovery. Mere delay in sending the sample, if the other evidence produced, with regard to the proof of completion of link evidence, is found to Crl. Appeal No.690-SB of 1998 6 be reliable and trustworthy, would not in a particular case, cast a doubt on the prosecution story. If, however, the other evidence, on this aspect of the matter is found to be unreliable and untrustworthy, then certainly unexplained delay in sending the sample, cast a doubt on the prosecution case. In the instant case, the evidence of the witnesses, besides being deficient, is also unreliable to prove the factum that none tampered with the sample, until it reached the office of the Chemical Examiner. 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. Ultimately, the appellant was acquitted in that case. On account of this infirmity also, the case of the prosecution became doubtful. 13. Buta Singh, Constable, in his affidavit, Ex.PC, in para No.3 stated that, he deposited the sample parcel, duly sealed with the seals bearing impressions 'GS' and 'JS', in the office of the Chemical Examiner, and after deposit thereof, handed over the receipt to the MHC. He did not state even a single word, that he was also handed over the sample impression of the seal, for deposit in the office of the Chemical Examiner. In these circumstances, the question of deposit of the same, in the office of the Chemical Examiner, did not at all arise. However, there is a certificate of the Chemical Examiner, in his report, Ex.PJ, that the seals on the sample tallied with the sample seal. When the sample seal was not deposited, it is not known, as to from which material, it recorded this certificate. This part of the report, Ex.PJ, of the Chemical Examiner is incorrect. The Addl. Public Prosecutor for the State, no doubt, stated that a slip, bearing the sample impression of the seal, is pasted on the reverse of the report of the Chemical Examiner. He further stated that this clearly showed the the sample seal was deposited in the office of the Chemical Examiner. This submission of the Addl. Public Prosecutor for the State, cannot Crl. Appeal No.690-SB of 1998 7 be taken as correct. Since, the report was in the office of the SSP or with the SHO, who submitted the same with the challan, it is not known, as to by whom, and, at what time, the slip containing the sample impression of the seals, was pasted on the same. 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, miscarriage of justice occasioned. 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, and the order of sentence dated 23.7.1998, 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 is in custody, he shall be set at liberty at once, if not required in any other case. March 27, 2008 (SHAM SUNDER) Vimal JUDGE