Criminal Appeal No. 704-DBA of 1997 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 704-DBA of 1997 Date of decision : 7.5.2008 State of Punjab .....Appellant Versus Bant Simgh ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. D.S. Brar, Deputy Advocate General, Punjab for the appellant. S. D. ANAND, J. Inspite of notice, none has put in appearance on behalf of the respondent/accused. However, in view of the fact that leave to appeal in this case had been granted by a Coordinate Bench as early as on 15.10.1997, we opted to examine the record. The prosecution allegations in case FIR No. 73 dated 22.5.1996 under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 against the respondent/accused were as under:- On 22.5.1996, Inspector Nagaur Singh PW-1 was present on the minor canal bridge in the area of village Badrukhan, alongwith ASI Kirpal Singh, ASI Chamkaur Singh and other police officials, when he received a secret information that the respondent/accused was into the business of keeping and selling poppy straw and that adequate quantity of poppy straw could be recovered if an immediate raid was conducted. On Criminal Appeal No. 704-DBA of 1997 -2- *** receipt of the information, Inspector Nagaur Singh PW-1 sent ruqqa (Ex. PA) to the Police Station, on the basis of which formal FIR (Ex. PA/1) was recorded by ASI Sawaran Singh. Simultaneously, Inspector Naguar Singh PW-1 flashed a wireless message to obtain the presence of DSP ( R), Sangrur . Thereafter, the police party headed by Inspector Nagaur Singh PW-1 reached the house of respondent/accused who was found available over there. Before reaching there, police party had associated Nachatar Singh, Sarpanch of the village in the party. In the meantime, DSP Lakhwinder Pal Singh reached the spot. On interrogation, the respondent/accused made disclosure statement (Ex. PB) to the effect that he had kept concealed 14 plastic bags containing poppy straw in a room of his residential house and he offered to get recovery thereof effected. Thereafter, the respondent/accused raided the place indicated in the disclosure statement and got the recovery of 14 gunny bags containing poppy straw effected. Each bag was found to contain 20 Kgs. of poppy straw. Two samples of 250 grams were separated from each bag. Thereafter, the samples and the bags were separately sealed with the own seal of Inspector Nagaur Singh PW-1 and also that of DSP Lakhwinder Singh. The usual formalities were complied with and the report under Section 173 Cr.P.C. was filed in due course. Learned Trial Judge recorded a finding of acquittal in view of the fact that the link evidence to prove the intactness of samples was missing and further that the recovery effected at the instance of accused was not within the ambit of provisions of Section 27 of the Indian Evidence Act. It is in evidence that after initial despatch, the samples were Criminal Appeal No. 704-DBA of 1997 -3- *** returned by the Chemical Examiner with some objection. The nature of objection was not proved at the trial. In that context, the learned Trial Judge recorded the following finding:- “Now coming to the proof of link evidence, it is necessary to refer to the statements of PW4 and 5 Cst. Jaswant Singh and ASI Baljinder Singh, who had tendered their affidavits ( Exs. PH and PG) in evidence. PW4 constable Jaswant Singh has admitted in his cross examination that he had taken the sample twice to the Chemical Examiner and for the first time the samples were brought back on account of objections raised by the Chemical Examiner and for the second time the samples were taken to the Chemical Examiner, objection were removed, but he was not able to tell the nature of the objections raised by the office of Chemical Examiner. He deposed that he could not say if the objections were regarding non sealing of samples. PW5 ASI Baljinder Singh who was working as MHC at that time and had kept the bags and sample parcels in the Malkhana was also not able to tell about the nature of objections. He admitted that no entry regarding the nature of objections was made in any Register. In view of the fact that the parcels of samples were taken out twice and were sent back by the office of Chemical Examiner on account of some objections which is not known to PW4 and PW5 creates doubt regarding the fact that the seals on the sample parcels were not tampered with during the period those remained in the custody of PW5. This Criminal Appeal No. 704-DBA of 1997 -4- *** circumstance also create doubt regarding the seals on the sample parcels being in tact, the benefit of which must go the accused. As per the prosecution plea, seal after use had not been handed over to the only independent witness i.e. Nachtar Singh but to an official member of the police party. Though there is no law which provides that a seal must be necessarily handed over to an independent witness, the rule of prudence requires the adoption of that procedure. In such like circumstances, this Court granted benefit of doubt to the accused. In a case reported as 1995 (2) Criminal Courts Judgments (Sees Vs. State of Punjab). We would like to quote hereunder the concluding observations recorded by the learned Trial Judge. “In view of the above discussion, I am of the opinion that the prosecution has miserably failed to prove its case against the accused beyond shadow of reasonable doubt because there has been non-compliance of the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotripic Substances Act; that the provision of Section 42 (2) of the Act has been mis-used; that there is also mis-utilisation of the provisions of Section 27 of the Evidence Act; that there is absence of clear proof of link evidence; that there is violation of the provisions of Section 100 (4) of the Code of Criminal Procedure; that there is no independent corroboration to the statements of official witnesses and that there are inherent contradictions in the statements of the prosecution witnesses. Thus, the case of the Criminal Appeal No. 704-DBA of 1997 -5- *** prosecution is not free from doubt.” We scanned through the entire prosecution evidence in the light of criticism directed at the impugned findings and we find that the findings of the Trial Judge deserve affirmation and we so order accordingly. The State plea for invalidation of the finding of exoneration shall stand rejected. ( S. D. ANAND ) JUDGE May 07, 2008 (ADARSH KUMAR GOEL) Pka JUDGE