Crl. Appeal No.376-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.376-SB of 1995 Date of Decision : May 23, 2008 Ramesh Chand S/o Sukh Ram, ....Appellant R/o Village Fokar, Police Station Kupani, District Shimla (H.P.) 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: Mr.Jainainder Saini, Advocate, and Mr. Girish Kumar, 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 6.4.1995, and the order of sentence of the even date, rendered by the Court of Addl. Sessions Judge, Ambala, vide which it convicted the accused/appellant, for the offence punishable under Section 20 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 1 Kg. 100 grams charas, without any permit or licence. 2. The facts, in brief, are that on 20.1.1993, Phool Chand, SI, accompanied by Gurdial Singh, HC, Babu Ram, HC, and other police officials, Crl. Appeal No.376-SB of 1995 2 was present near an octroi post on Ambala-Kalka road, holding a picket. A secret information was received by Phool Chand, SI, to the effect that one person, would come from the side of Kalka, with some contraband, through Sukhna river, and if a raid was conducted, he could be apprehended. Thereafter, Phool Chand, SI, tried to join an independent witness, but none was ready. Thereafter, Phool Chand, SI, alongwith other police officials, held a picket, near the bank of Sukhna river, in the area of village Bheron Ki Sair. At about 11.00 AM, the accused, came from Kalka side, through Sukhna river, holding a bag (thaila), in his right hand. He was apprehended, on suspicion. The accused was given an option, as to whether, he wanted his search to be conducted, in the presence of a Gazetted Officer, or a Magistrte. He opted that the search of the bag, be conducted in the presence of a Gazetted Officer. Thereafter, Phool Chand, SI, took the accused, to the office of Bishan Singh, DSP, Panchkula, and produced him, as also the witnesses, who was present in his office. Phool Chand, SI, submitted a written report, Ex.PB, and apprised the DSP of the facts and circumstances of the case. Thereafter, Bishan Singh, DSP, directed Phool Chand, SI, to conduct the search of the bag, being carried by the accused. As per his directions, Phool Chand, SI, conducted the search, resulting into the recovery of 1100 grams charas. Two samples of 50 grams each, were separated therefrom, and the remaining charas, was put into a separate container. The samples, and the container, containing the remaining charas, were converted into parcels, duly sealed, with the seal bearing impression 'BSK', and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. The accused was arrested. The statements of the witnesses, were recorded. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied Crl. Appeal No.376-SB of 1995 3 upon by the prosecution, were supplied to the accused. Charge under Section 20 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 Gurdial Singh, HC (PW-1), Phool Singh, SI (PW-2), Bhag Singh, Constable (PW-3), Shiv Kumar, HC (PW-4), and Bishan Singh, DSP (PW-5). 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. He, however, did not lead any evidence, in his defence. 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, no independent witness was joined, despite availablity. He further submitted that even no effort was made, to join an independent witness. He further submitted that, on account of this reason, the case of the prosecution, became doubtful. No doubt, Phool Chand, SI (PW-2), stated that he tried to join an independent witness, but none was ready to join. He, however, did not record the name of the person, who refused to join the police party, in the case diary, or any other document, simultaneously prepared, at the spot. He also did not state, as to what, action was taken, against the persons, who refused to join the police party. Crl. Appeal No.376-SB of 1995 4 The statement made by this witness, on this aspect of the matter, does not appear to be correct. Had an effort been mde, 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 this witness made incorrect statement, that an effort was made to join an independent witness, but none came forward to join. It means that no real and sincere effort was made by Phool Chand, SI, the Investigating Officer. It means that the public witnesses, were not intentionally and deliberately joined, despite availability. In similar circumstances, in Hawa Singh Vs. State of Haryana 2005(4) RCR (Criminal) 292, when an independent witness was not joined, despite availability, the accused was acquitted, in a case of recovery of 20 Kgs. of poppy-husk. In State of Punjab Vs. Ram Chand 2001(1) RCR (Criminal) 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. In these circumstances, it was held that the case of the prosecution became doubtful. The evidence produced by the prosecution, on the other hand, does not inspire confidence. In this view of the matter, non-joining of an independent witness, despite availability, cast a cloud of doubt, on the prosecution story. 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 submitted by the Counsel for the appellant, that the sample impression of the seal, was not sent to the office of the Forensic Science Laboratory, as a result whereof, it could not be said, as to whether, the seal, on the sample was the same, as was allegedly affixed, at the time of the alleged Crl. Appeal No.376-SB of 1995 5 recovery. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ex.PF, is the affidavit of Bhag Singh, Constable. It is evident from the affidavit, Ex.PF, of Bhag Singh, Constable, that on 1.2.1993, he was handed over the sample parcel, of this case, and he deposited the same, in the office of the Forensic Science Laboratory. He did not state that the sample impression of the seal, was also given to him, and he deposited the same, in the office of the Forensic Science Laboratory. It means that sample impression of the seal, was never handed over to him, and, as such, the question of deposit thereof, in the office of the Forensic Science Laboratory, did not at all arise. No doubt, in Ex.PE, report of the Forensic Science Laboratory, a certificate was recorded to the effect that the seals, on the parcel, were found intact, and tallied with the specimen seal, as per forwarding authority. It is not known, as to how, the Laboratory came to this conclusion, when the sample seal, as per the affidavit of Bhag Singh, Constable, was not deposited with it. This part of the report of the Forensic Science Laboratory, does not appear to be correct. 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. 11. It was next submitted that according to Bhag Singh, Constable, he was handed over the sample parcels, of this case, on 1.2.1993, and he deposited the same, on the same day, in the office of the Forensic Science Laboratory. On the other hand, the report of the Forensic Science Laboratory, has a different tale to tell. It is evident from Ex.PE, report of the Forensic Science Laboratory, that the sample parcels, were received, in the Laboratory, on 4.2.1993, and not Crl. Appeal No.376-SB of 1995 6 on 1.2.1993. Where the sample parcels remained from 1.2.1993 to 4.2.1993, has not been explained by the prosecution witnesses. The prosecution is required, to prove beyond a reasonable doubt, affirmatively, that right from the date of seizure, until the samples were deposited, in the office of the Forensic Science Laboratory, none tampered with the same. If the prosecution fails to prove this fact, then the link, in the chain of its evidence, becomes incomplete. In the instant case, as stated above, the prosecution failed to prove, beyond a reasonable doubt, as to where the sample from 1.2.1993 to 4.2.1993, remained. If, the sample was deposited by Bhag Singh, Constable, on 1.2.1993, in the office of the Forensic Science Laboratory, in this case, then the sample, which was received in the Laboratory on 4.2.1993, could be said to be not relating to this case. Accordingly, the report, Ex.PE, also could be said to be not relating to this case, and no reliance thereon, could be placed. It was held in State of Rajasthan Vs. Daulat Ram 1980 SCC (Criminal) 683, that it is for the prosecution, to prove affirmatively, beyond a reasonable doubt, all the links starting from seizure, till the sample is deposited, in the office of the Chemical Examiner. If the prosecution fails to prove so, then link in the chain of the prosecution case becomes incomplete. The submission of the Counsel for the appellant, to the effect, that the sample, and the case property, were tampered with, therefore, carries weight, and is accepted. 12. 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, Crl. Appeal No.376-SB of 1995 7 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 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 Crl. Appeal No.376-SB of 1995 8 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. 13. 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. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 6.4.1995, 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 is in custody, he shall be set at liberty, at once, if not required in any other case. May 23, 2008 (SHAM SUNDER) Vimal JUDGE