IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Crl. Appeal No.644-SB of 1998 Date of decision : 22-04-2008 Amar Singh @ Kabu son of Piara Singh, resident of Village Rajpur, P.S. Manglaur District Haridwar (U.P.) .............Appellant State of Haryana ..............Respondent CORAM : HON'BLE MR. JUSTICE SHAM SUNDER Present : Mr. Vinod Arya, Advocate for the appellant. Mr. Ranbir Singh Arya, D.A.G., Haryana for the respondent. Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 20.07.1998, rendered by the Presiding Officer Special Court, Kurukshetra, vide which it convicted the accused/appellant, Amar Singh, and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1,00,000/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of two and a half years, for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as `the Act’ only) for having been found in possession of 900 grams of opium, now falling within the ambit of non-commercial quantity, without any permit or licence. Crl. Appeal No.644-SB of 1998 -2- 2. The facts, in brief, are that on 17-01-1997, Sham Lal, Sub Inspector, S.H.O. Police Station Jhansa, along with other police officials, was present near the turning of Chattarbhuj Majra Village in connection with patrol duty. He received the secret information that a trolla bearing registration No.HR-29A/5420, which was coming from Kurukshetra side was being driven by the driver, who was possessing opium and if, a raid was conducted, he could be apprehended with the same. In the meantime, the trolla, aforesaid came. It was stopped by the police party. Amar Singh, accused, was found driving the same. Personal search of the accused was conducted in the presence of Deputy Superintendent of Police, Pehowa who was called to the spot. 900 grams of opium, was recovered from his personal search. He could not produce any permit or licence, for keeping in possession the said opium. A sample was taken out, and the remaining opium was put into a separate container. The sample and the remainder were converted into parcels, duly sealed with the seals and, thereafter, taken into possession vide separate memo. Ruqa was sent to the Police Station, on the basis whereof, FIR was recorded. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. On 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 18 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Balbir Singh, Head Constable, PW-1, Amar Singh, Constable, PW-2, Raghubir Singh, Crl. Appeal No.644-SB of 1998 -3- ASI, PW3, Ram Chander, ASI, PW4, Yoginder Singh Nehra, Deputy Superintendent of Police, Pehowa, PW-5, Varinder Singh, ASI, PW-6 and Sham Lal, Sub Inspector, PW-7. Thereafter, the Additional 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 Additional 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 correctness and legality of the judgment of conviction, and the order of sentence, 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 outset, submitted that no independent witness was joined by the Investigating Officer, despite availability, at the time of effecting the alleged recovery from the accused. He further contended that, even no effort was made, by the Investigating Officer to join an independent witness, as a result whereof, a doubt was cast on the prosecution case. The submission of the Counsel for the appellant, in this regard appears to be correct. Yoginder Singh Nehra, DSP, PW-5, stated during the course of cross-examination that the public witnesses were tried to be joined by the Investigating Officer, but they Crl. Appeal No.644-SB of 1998 -4- showed their unwillingness. He further stated that the names of the public witnesses who refused to join the police party, were not recorded and no action was taken against them. Varinder Singh, ASI, during the course of cross-examination, stated that there were several shops near the police station, Jhansa. The shops were open at that time. He further stated that the Investigating Officer did not join any public witness, during the course of investigation, from those shops. Sham Lal, Sub Inspector, PW-7, during the course of cross-examination, stated that there were several shops, in front of Police Station, Jhansa. He further stated that there was also a bus-stop, in front of the Gate of Police Station, Jhansa. He further stated that he did not join any independent witness, from the nearby shops. From the conjoint reading of the evidence of the aforesaid witnesses, one thing becomes very much clear, that no genuine, sincere and real effort was made to join an independent witness. Had any effort been made to join an independent witness and he had refused to join the investigation, his name would have been recorded in the ruqa or other documents. However, this factum was not recorded in any document. 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 Crl. Appeal No.644-SB of 1998 -5- 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. The evidence of the official witnesses, in the instant case, does not inspire confidence, in the mind of the Court. In this view of the matter, non-corroboration of the Crl. Appeal No.644-SB of 1998 -6- evidence of 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 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. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 10. It was next contended by the Counsel for the appellant, that the alleged recovery was effected on 17-01-1997, whereas, the sample was sent to the Chemical Examiner on 24-01-1997, and the seal, in this case, remained with the official witnesses, through-out, until the sample was sent to the office of the Chemical Examiner. He further contended that the delay of 7 days, in sending the sample to the office of the Chemical Examiner, was not explained, and, as such, the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, appears to be correct. 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, Crl. Appeal No.644-SB of 1998 -7- then mere delay in sending the sample to the Office of Chemical Examiner, pales into insignificance. On the other hand, if the other evidence produced, in this regard, is found to be un-reliable, then certainly the delay assumes importance. In the instant case, the other evidence, produced by the prosecution, to prove the completion of link evidence, besides being deficient, is neither reliable, nor creditworthy. In these circumstances, the un-explained delay, referred to above, in sending the sample to the laboratory, certainly proved fatal to the case of the prosecution. In State of Rajasthan 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 Rajesh Jagdamba Avasthi vs. State of Goa 2005(1) RCR (Crl.) 406 (S.C.), the packets and seal remained in the custody of the same person. It was held that the possibility of the seized substance, being tampered with, could not be ruled out. In State of Punjab Vs. Jaswant Singh 2002(3) RCR (Criminal) 54 (Division Bench) (Punjab and Haryana), there was a delay of 21 days in sending the sample to the Chemical Examiner. It was held that it would prove fatal to the case of the prosecution, especially when admittedly no independent witness was joined in the recovery proceedings, and the seal used for sealing the sample remained with the police officials, 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 Crl. Appeal No.644-SB of 1998 -8- 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. The principle of law laid down, in the aforesaid authorities, is applicable to the facts of the instant case. The case of the prosecution was rendered highly doubtful, on account of the aforesaid infirmity. The trial was completely remiss in ignoring this infirmity. 11. It was next contended by learned Counsel for the appellant that the link evidence, in this case, was incomplete, in as much as, the sample seal was not sent to the Office of Forensic Science Laboratory. PB is the affidavit of constable Amar Singh. In para 3 of the affidavit, it was stated by him that he had deposited the sample, duly sealed, in the Office of Chemical Examiner. He did not state even a single word, that he was handed over the sample impression of the seal, or he deposited the same, in the Office of the Forensic Science Laboratory. In State of Rajastan's case (supra), the sample impression of the seal, was not sent to the Office of the Chemical Examiner. It was, thus, held that there was no evidence to prove satisfactorily that the seals affixed, on the sample bottles, were the same, which were immediately affixed after seizure of the contraband. Ultimately, the accused was acquitted by the Apex Court. In State of Rajasthan Vs. Daulat Ram 1980 SCC (Crl.) 683, it was held that the prosecution is required to prove beyond a reasonable doubt, all the links in the evidence, starting from the seizure, until the deposit of the sample parcel, in the office of the Chemical Examiner. In that case, the parcel changed many hands, before it reached the office of the Chemical Examiner, and the prosecution miserably failed to prove the link evidence. Crl. Appeal No.644-SB of 1998 -9- In these circumstances, it was held by the Apex Court, in the aforesaid case, that the possibility of tampering with the parcel, until it reached the office of the Chemical Examiner, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of this case. In the instant case also, the possibility of tampering with the sample, could not be ruled out on account of this reason, the benefit of doubt, whereof, must go the appellant-accused. The trial Court, however, failed to take into consideration this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 12. It was next contended by the Counsel for the appellant that there was a violation of the Provisions of Section 55 of the Act, as the case property and the sample were not produced before the Illaqa Magistrate. The submission of the Counsel for the appellant, in this regard, appears to be correct. 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 Crl. Appeal No.644-SB of 1998 -10- 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 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 the 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. 13. In view of the above discussion, it is held that the judgment of the trial Court is not based on the correct appreciation of evidence, and law, on the point. The trial Court also failed to take into consideration the Crl. Appeal No.644-SB of 1998 -11- aforesaid infirmities and lacunae, in the prosecution case, as a result whereof, it fell into an error, in recording the conviction, and awarding sentence. The judgment of the trial Court, warrants interference, and is liable to be set aside. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 20-07-1998, are set aside. The appellant, if, on bail, he shall stand discharged of the bail bonds. If he is in custody, he shall be set at liberty, at once, if not required, in any other case. (SHAM SUNDER) JUDGE April 22,2008 gurpreet