Crl.Appeal No.139-SB of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.139-SB of 1999 Date of decision:19.1.2010 Suresh Kumar ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.K.S.Dhaliwal, Advocate, for the appellant. Mr.Manish Deswal, DAG, Haryana. ... JORA SINGH, J. Suresh Kumar directed this appeal to impugn the judgment dated 21.1.1999 rendered by Additional Sessions Judge, Kaithal, in Sessions Case No.146 of 1995 in FIR No.187 dated 2.9.1995 under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act'). By this judgment, appellant was convicted under Section 15 of the Act and was directed to undergo RI for ten years and to pay fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for one year. Prosecution story, in brief, is that on 2.9.1995, police party headed by SI Dhanna Ram was present in front of the gate of Bus Stand, Pundri, then received secret information that two persons dealing in the business of sale-purchase of intoxicants, are present at the Bus Stand, Pundri. In case, there is a raid, then they can be apprehended. As per secret information, raid was conducted. Suresh Kumar and Daya Singh were Crl.Appeal No.139-SB of 1999 2 apprehended by the police party. Suresh Kumar was carrying a bag in his hand. SI Dhanna Ram suspected that the bag contains intoxicants. Offer was given to the appellant as to whether he wanted to be searched before a Gazetted Officer or a Magistrate. The appellant replied that he wanted to be searched before some Gazetted Officer. DSP Hajari Singh was summoned to the spot. Then as per direction of the DSP, bag was searched and the same was found to be containing poppy husk. 200 grams was separated to serve as sample. On weighment, the remaining poppy husk was found to be 11 kgs 800 grams. Sample and the remaining poppy husk were separately sealed by the Investigating Officer with his own seal bearing impression `DR' and with the seal of DSP bearing impression `HS'. Seal impressions of the seals used were prepared separately. Seal of the Investigating Officer after its use was handed over to Krishan Dutt, whereas seal of the DSP after its use was retained by the DSP. Sealed parcels were taken into police possession vide memo attested by the witnesses. Ruqa was sent to the Police Station, on the basis of which, formal FIR was registered. Rough site plan with correct marginal notes was prepared. Statements of the witnesses were recorded. On return to the Police Station, case property was deposited with the MHC. Sample parcel was sent to the office of Chemical Examiner and as per report of the laboratory, sample parcel was found to be of poppy straw. After completion of investigation, challan was presented. Accused was charged under Section 15 of the Act, to which he pleaded not guilty and claimed trial. Prosecution examined PW1 HC Randhir Singh, who tendered his affidavit (Ex.PA). Crl.Appeal No.139-SB of 1999 3 PW2 ASI Ram Pal had simply recorded FIR (Ex.PB/1) on receipt of ruqa (Ex.PB) from SI Dhanna Ram. PW3 Constable Ram Dia has tendered his affidavit (Ex.PC). He had deposited sample parcel in the office of Chemical Examiner. PW4 DSP Hazari Singh stated that as per message from the Investigating Officer, he had gone to the spot. Investigating Officer had produced accused before him along with another person, namely, Daya Singh. Appellant-accused was carrying a bag in his hand. Investigating Officer was directed to search the bag and on search of bag, 12 kgs. of poppy husk was recovered. 200 grams was separated to serve as sample. Sample and the remaining poppy husk were separately sealed. Seal impressions of both the seals used were also prepared. Case property was taken into police possession vide memo attested by the witnesses. PW5 SI Dhanna Ram is the Investigating Officer and deposed as to how the poppy husk was recovered from the appellant-accused. PW6 Krishan Dutt stated that on 2.9.1995, he was deputed at Bus Adda, Pundri, for checking of bad elements. He was with the party headed by SI Dhanna Ram. 12 kgs. of poppy husk was recovered from the possession of the appellant-accused. After close of the prosecution evidence, statement of appellant- accused was recorded under Section 313 Cr.P.C. Appellant denied all the prosecution allegations and pleaded to be innocent. Opportunity was given to lead evidence, but no defence was led. After hearing learned PP for the State, counsel for the appellant and from the perusal of evidence on the file, trial Court opined that 12 kgs of poppy husk was recovered from the possession of appellant. Appellant Crl.Appeal No.139-SB of 1999 4 was convicted under Section 15 of the Act and was sentenced to undergo imprisonment as stated aforesaid. I have heard learned counsel for the appellant and the State and gone through the evidence on the file. Learned counsel for the appellant argued that police party headed by SI Dhanna Ram had a secret information to the effect that two persons are present at Bus Stand, Pundri, with intoxicants and in case there is a raid, then they can be apprehended, but secret information was not reduced into writing. There is a violation of Section 42 of the Act. Section 42 of the Act is mandatory. Link evidence is also missing. Recovery was on 2.9.1995. According to the story, case property was sealed with the seals of Investigating Officer and of Gazetted Officer. Seal impressions were prepared, but seal impressions were not sent to the office of Chemical Examiner. So, report of the laboratory that seal impressions were tallying with the seals on the sample parcel is not correct one. Ex.PC is the affidavit of Constable Ram Dia, but affidavit nowhere shows that he had received sample parcel from the Incharge of Malkhana and along with sample parcel had deposited seal impressions in the office of Chemical Examiner. Place of recovery was Bus Stand, Pundri. Independent witnesses were present, but no one was joined. Seal of the Investigating Officer after its use was handed over to Krishan Dutt. Investigating Officer and Krishan Dutt were posted in the same Police Station. Case property was not produced before the Magistrate. Sample parcel was handed over to Constable Ram Dia for depositing in the office Chemical Examiner on 8.9.1995. No explanation regarding delay. Delay is fatal. Possibility of tampering with the case property cannot be ruled out. But all these facts were not taken into Crl.Appeal No.139-SB of 1999 5 consideration by the trial Court. Learned State counsel argued that police party had secret information but no prejudice was caused to the appellant in case the Investigating Officer failed to reduce into writing the secret information. Immediately after receipt of secret information, raid was conducted because there was a possibility of escape of the accused if the Investigating Officer would have reduced into writing the secret information for sending the same to the higher authorities. Case property was sealed with the seals of Investigating Officer and Gazetted Officer. Gazetted Officer was not posted in the same Police Station. Residence/office of Gazetted Officer was separate from the Police Station. No question to get the seal of Gazetted Officer to re-seal the case property. First submission of learned counsel for the appellant is that on 2.9.1995, police party headed by SI Dhanna Ram had received a secret information to the effect that two persons are present at Bus Stand, Pundri, with some intoxicants and if there is a raid, then they can be apprehended. After receipt of secret information, raid was conducted. No doubt, secret information was not reduced into writing, but failure to reduce into writing the secret information is not fatal. If the Investigating Officer would have spent some time to reduce into writing secret information, then by that time, there was a possibility of the accused to escape. Immediately after receipt of secret information, raid was conducted to apprehend the accused. Wireless message was sent to the Gazetted Officer as per reply of the appellant. In the presence of Gazetted Officer, recovery was effected. Secret information was by name. No evidence on the file that place of recovery was a public place or private. Suppose place of recovery was a Crl.Appeal No.139-SB of 1999 6 private one, even then failure to reduce into writing the secret information is not fatal because Investigating Officer had no time to reduce into writing the secret information, as there was a possibility of the accused to escape. To apprehend the accused with incriminating article, immediately raid was conducted. Something could be said if Investigating Officer had the time to reduce into writing the secret information for sending the same to the higher authorities. After receipt of secret information when no time to reduce into writing the secret information, then story is not to be ignored on this short ground. Next submission of learned counsel for the appellant is that link evidence is missing. I have gone through the evidence on the file and am of the opinion that submission of learned counsel for the appellant seems to be reasonable one. Recovery was on 2.9.1995. Case property was sealed with the seals of Investigating Officer and Gazetted Officer. Seal impressions of both the seals were prepared at the spot. On return to the Police Station, case property was deposited with the Incharge of Malkhana. On 8.9.1995, sample parcel was handed over to Constable Ram Dia for depositng the same in the office of Chemical Examiner, but seal impressions were not handed over to Constable Ram Dia. When impressions of seals used were not handed over to Constable Ram Dia, then no question to deposit the same in the laboratory, whereas report of the laboratory is to the effect that seals on the sealed parcel were tallying with the seal impressions. When seal impressions of the seals used were not sent to the office of Chemical Examiner, then how the laboratory opined that seals on the sealed parcel were tallying with the seal impressions. In Gurjant Singh vs. State of Punjab, 2007(4) RCR (Crl.) 226, Crl.Appeal No.139-SB of 1999 7 recovery was of 25 bags of poppy husk, each weighing 40 kgs. Form No.29 was not sent to the laboratory. Case property was also not produced before the Court. In the present case also, case property was not produced before the Court. Story was held doubtful. Form No.29 was not sent to the laboratory. So, recovery is doubtful. Independent witnesses were available but no one was joined. Investigating Officer and Constable Krishan Dutt, to whom seal of the Investigating Officer, after its use was handed over, were posted in the same Police Station. Case property along with the appellant was not produced before the Illaqa Magistrate. Failure to join independent witness available also creates doubt. In Balbir Kaur vs. State of Punjab, 2009(4) RAJ 330, Sample was sent to the laboratory after 4 days. Hon'ble the Supreme Court opined that delay is fatal if not explained. But in the present case, Form No.29 was not sent to the laboratory. Independent witnesses were available but no one was joined. Seal after its use was handed over to Constable Krishan Dutt, who remained posted in the same Police Station. Then, report of Chemical Examiner to the effect that seals of sample parcel were tallying with the seal impressions was not correct one, when seal impressions of the seals used were not handed over to Constable Ram Dia and on 8.9.1995, he had not deposited the same with sample parcel in the laboratory. So, possibility of tampering with the case property cannot be ruled out. On this short ground, appellant is entitled to acquittal. No other submission was put forward. As a sequel to the above discussion, I am of the opinion that evidence on the file was not properly scrutinized. Impugned judgment Crl.Appeal No.139-SB of 1999 8 suffers from illegality and infirmity and is set aside. Appellant is acquitted of the charge levelled against him. Appeal is accepted. 19.1.2010 ( JORA SINGH ) pk JUDGE