Crl. Appeal No.127-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.127-SB of 1998 Date of Decision : March 11, 2008 Kaka Singh S/o Sita Singh, ....Appellant R/o Indra Colony, Sunam, District Sangrur (Punjab) Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. S.S.Joshi, 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 17.1.1998, and the order of sentence dated 20.1.1998, rendered by the Court of Addl. Sessions Judge, Hisar, vide which it convicted the accused/appellant Kaka 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 two years. 2. The facts, in brief are that on 29.2.1996, Sajjan Kumar, ASI, alongwith other police officials, was coming towards village Laharian from Village Rehan Kheri, in connection with patrol duty, when accused Kaka Singh, was seen coming from the side of Village Laharian, with a bag, on his head. On seeing the police party, he tried to slip away, but was apprehended, on suspicion. Search of the bag, being carried by the accused, was conducted, in accordance with the provisions of law, which resulted into the recovery of 20 Crl. Appeal No.127-SB of 1998 2 kgs. poppy-husk, now 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 'JC'. Thereafter, the same were taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. The accused was arrested. 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 Suraj Bhan, HC (PW-1), Krishan Kumar, Constable, (PW-2), Chhaju Ram, ASI, (PW-3), Jagdish Chander, HC, (PW-4), Sajjan Kumar, ASI, (PW-5), and Badri Parshad, SI, (PW-6). 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. It was stated by him, that nothing was recovered from his possession. 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, 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 Crl. Appeal No.127-SB of 1998 3 through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, contended that though the alleged recovery was effected, from the accused, from a public place, no independent witness, despite availability, was joined by the Investigating Officer. He further contended that, even no effort was made by him, to join an independent witness. He further contended that, on account of non-joining, and non-examination of an independent witness, the case of the prosecution became doubtful. Sajjan Kumar, ASI, (PW-5), during the course of his cross-examination, stated that the accused was apprehended at 1.00 PM. He further stated that people were coming and going at that time. He further stated that some persons were asked to join the investigation, but they showed their inability to become witnesses. He further stated that he did not record the name of those persons, who refused to become witnesses, in the case diary. He further stated that the weights and scale were brought by Devi Singh, Constable, from village Laharian. He further stated that he did not ask Devi Singh, Constable, to call any independent witness, from the village. He further stated that it took about 5 hours in completing all the proceedings. On the other hand, Jagdish Chander, HC, (PW-4), during the course of his cross-examination, stated that they tried to associate the passers-bye, but they refused to join the investigation. He further stated that, at that time, the people were coming and going. One thing becomes clear, from the evidence of both these witnesses, that the public witnesses were present, at the time of the alleged recovery, from the accused. No doubt, both the witnesses have stated that an effort was made to join them, but they refused. However, the statements made by these witnesses, on this aspect of the matter, is not correct. Had the public witnesses been asked to join, and had they not joined, then action would have been taken against them. Even, according to Sajjan Kumar, ASI, the names of those persons, who refused to join the investigation, were not recorded by him, in the Crl. Appeal No.127-SB of 1998 4 case diary. Even, the names of such persons, who refused to join the investigation, were not recorded in any other document, prepared contemporaneously, with the recovery proceedings. Had such an effort been made, then Sajjan Kumar, ASI, the Investigating Officer, of this case, must have recorded the names of such persons, in the case diary, or in the documents contemporaneously prepared, at the spot. No explanation, was furnished, as to why, their names were not recorded, in the case diary or in the documents contemporaneously prepared, at the spot. Had any explanation been furnished, the matter would have been considered in the light thereof. The net result is that, no effort was made by the Investigating Officer, to join an independent witness, despite availability. It is, no doubt, true that, in the absence of joining of an independent witness, the case of the prosecution cannot be distrusted and disbelieved. However, once it is proved from the evidence, on record, that the public witnesses, were not intentionally and deliberately joined, despite availability, then certainly a doubt is cast on the prosecution story. 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, (D.B.) (P&H), and State of Punjab Vs. Bhupinder Singh 2001(1) RCR (Criminal) 356 (D.B.) (P&H), the independent witnesses despite availability were not joined, and, as such, the case of the prosecution was held to be doubtful. The evidence of the official witness, on which the case of the prosecution rests, has been carefully perused, and there are so many infirmities therein, as would be discussed, in the subsequent paragraphs. On account of this reason too, 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. Crl. Appeal No.127-SB of 1998 5 10 It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected on 29.2.1996, yet the sample was sent to the office of the Forensic Science Laboratory on 12.3.1996 i.e. after a delay of 12 days. He further contended that the delay of 12 days in sending the sample to the office of the Forensic Science Laboratory, especially, when the seals and the sample parcel, remained with the police officials, remained unexplained, as a result whereof, the case of the prosecution became doubtful. No explanation, whatsoever, was furnished, as to why, the sample was not sent to the office of the Forensic Science Laboratory, for about a period of 12 days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. 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, and the link evidence was incomplete. Ultimately, the appellant was acquitted, in that case. In Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, the seal remained with the police official, and had not been handed over to any independent witness. In Rajesh Jagdamba Avasthi Vs. State of Goa 2005(1) RCR 406 (S.C.), the packets and the seal, remained in the custody of the police officials. It was held that the possibility of the seized substance, being tampered with, could not be ruled out. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the present case. The delay of 12 days, in sending the sample to the office of the Forensic Science Laboratory, by the prosecution, must prove fatal to the case of the prosecution. Crl. Appeal No.127-SB of 1998 6 The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 11. Even the provisions of Section 55 of the Act, though the same are directory in nature, were not complied with by the Investigating Officer. According to Section 55 of the Act, an officer Incharge of a Police Station, shall take charge of and keep in safe custody, pending the orders of the Magistrate, all the articles seized, 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 and from them and all samples so taken shall also be sealed with a seal of the Officer Incharge of the Police Station. This provision casts a duty on the Officer Incharge of the Police Station, to produce the case property, before a Magistrate, and obtain his orders, with regard to the factum, that the seals on the case property, as also on the sample parcel were intact. If, the case property and the sample, are produced, immediately after the seizure, before the Magistrate, and he verifies the factum of intactness of the seals on the same, and also affixes his own seal thereon, by passing a separate order, in regard thereto, then certainly a genuineness is lent to the recovery proceedings. Why this provision was not strictly complied with, by the Investigating Officer, is not known. No explanation is forthcoming from their mouth, as to what prevented them (the Investigating Officer or the S.H.O.) from producing the case property, and the sample parcel, before the Magistrate. In this case, the provisions of Section 55 were intentionally and deliberately observed more in breach, than in compliance, by the Investigating Officer. When a particular provision, in the statute, adumberates that a particular act, should be done, by the person concerned, in a particular manner, then he is bound to perform the same, in that manner, and cannot take the shelter of the factum, that since that particular provision, was directory, in nature, he was not Crl. Appeal No.127-SB of 1998 7 bound to comply with the same. If such, an explanation is accepted by the Courts, then the concerned officials saddled with the responsibility of performing various duties, under a particular statute, would breach the provisions of law, by merely saying that the same being directory, they were not bound to comply with the same. Non-compliance of Section 55 intentionally and deliberately, by the Investigating Officer, casts a cloud of doubt, on the prosecution case. Similar principle of law, was laid down, in Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Criminal) 702 (S.C.). In the aforementioned case, 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 vitiate the trial or conviction. However, the investigating Officer cannot totally ignore these provisions, and such failure will have bearing on the appreciation of evidence, regarding search of the accused and seizure. The trial Court failed to take into consideration, this aspect of the matter, as a result of whereof, it committed an error in recording conviction and awarding sentence. 12. 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. 13. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 17.1.1998, and the order of sentence dated 20.1.1998, 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. Crl. Appeal No.127-SB of 1998 8 If he is in custody, he shall be set at liberty at once, if not required in any other case. March 11, 2008 (SHAM SUNDER) Vimal JUDGE