Crl.Appeal No.1101 SB of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.1101 SB of 1999 Date of decision: 5th February, 2008 Ujaggar Singh ..Appellant. Versus The State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: Mr.Rahul Vats, Advocate for the appellant. Mr.Shilesh Gupta, Deputy Advocate General, Punjab ** HARBANS LAL, J. This appeal is directed against the judgment/order of sentence dated 25th August, 1999 rendered by the Court of learned Additional Sessions Judge, Bathinda, whereby he convicted and sentenced the appellant/accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- (one lac) and in default thereof, to further undergo rigorous imprisonment for six months, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity ‘the Act’). Shorn of all unnecessary details, the prosecution case is that on 27th June, 1996, ASI Kaur Singh accompanied by other police officials Crl.Appeal No.1101 SB of 1999 -2- including HC Mithu Ram when reached on Government vehicle (Canter) bearing registration No. PB-03-1016 being driven by Constable Iqbal Singh at the outskirts of village Kanakwal for patrolling and checking of suspects, Nachattar Singh PW met them. He was joined in the police party. When the police party including Nachattar Singh was going from village Kanakwal to village Naurang through a kutcha passage and reached 2 kms ahead of village Kanakwal near the water course, the accused was spotted coming afoot from the opposite side with a bag hanging from his shoulder. On catching sight of police party's vehicle, he made an attempt to slip away towards his left side fields of Charry (Sorghum). The aforesaid ASI got the vehicle stopped and intercepted the accused with the help of his companions. The said ASI told the accused that he was suspected to be in possession of some intoxicants and asked whether he wants his search to be carried out in the presence of a Magistrate or a Gazetted Officer. He opted to be searched before an officer of some higher rank. On receipt of message from the abovesaid ASI through walky-talky, DSP Jaswant Singh came at the spot in a Government Gypsy. He inquired from the accused and then on his direction, the aforesaid ASI conducted the search of the bag, which yielded opium duly wrapped in a polythene envelope. 20 grams opium was separated to serve as a sample and the same was converted into a parcel. The remainder when weighed came to 3 kgs. 980 grams, which was also made into a parcel. Thereafter, both the parcels were sealed by the aforesaid ASI with his own seal ‘AS’. The specimen seal impression was prepared. Crl.Appeal No.1101 SB of 1999 -3- The seal after use was handed over to HC Mithu Ram. Thereafter, both the parcels were seized vide recovery memo. Ruqa was sent to the police station, where on its basis formal FIR was recorded. The accused was arrested. On receipt of Chemical Examiner’s Report and after completion of investigation, the charge-sheet was laid in the Court for trial of the accused. The accused was charged under Section 18 of the Act, to which he did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution has examined SI Dinesh Kumar PW1, ASI Kaur Singh PW2, Jaswant Singh, retired DSP PW3, and closed its evidence by tendering the affidavit Ex.PL of Constable Karnail Singh and by giving up Nachhattar Singh as having been won over by the accused. When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded that he has been falsely implicated in this case at the instance of Nachhattar Singh PW with whom, he had a dispute with regards to the money transaction. He examined Jaila Singh DW1, Chhota Singh DW2, Nachhattar Singh DW3 and closed his defence evidence. After hearing the learned Additional Public Prosecutor for the State, learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with the same, the appellant has preferred this Crl.Appeal No.1101 SB of 1999 -4- appeal. I have heard the learned counsel for the parties and have gone through the record with due care and circumspection. To begin with Mr.Rahul Vats, Advocate appearing on behalf of the appellant urged with a good deal of force that it is own case of the prosecution that Nachhattar Singh an independent witness was present with the police party at the time of alleged recovery whereas the seal was handed over to HC Mithu Ram for which the prosecution has not apportioned any reason. He further argued that SI Dinesh Kumar PW1 has testified that as per order of the Court, the parcel containing remaining opium and piece of cloth were deposited with Constable Harjinder Singh, Assistant Maharir Judicial Malkhana though, the sample parcel and the sample seal were kept by him ( SI Dinesh Kumar) in his custody. The non-production of Constable Harjinder Singh causes a dent in the prosecution story. He further pressed into service that the recovery was allegedly effected on 27th June, 1996 whereas the sample parcel reached in the office of the Chemical Examiner on 4th July, 1996. The prosecution has not assigned any reason worth the name for withholding the sample parcel for six days, though, according to the Narcotic Control Bureau, the sample parcel should be sent for chemical analysis within 72 hours and the delay in its despatch beyond this period is a circumstance fatal to the prosecution case. To buttress this stance, he has sought to place abundant reliance upon the observations made by the Division Bench of this Court in re: Parminder Singh vs. State of Haryana Crl.Appeal No.1101 SB of 1999 -5- 2006(4) Recent Criminal Reports (Crl.), 495(DB) The next argument raised by Mr.Vats is that Nachhattar Singh, who was allegedly with the police party at the material time when appeared as DW3, deposed that he does not know the accused Ujaggar Singh and that on 27th June, 1996 nothing was recovered from the accused in his presence and when he was cross-examined, no material favourable to the prosecution could be elicited. Thus, the learned trial court was not justified in recording the conviction and sentence against the appellant. To controvert these submissions, Mr. Shilesh Gupta, Deputy Advocate General, Punjab maintained that as per the Chemical Examiner Report Ex.PC, the sample seal tallied with the seals affixed on the sample and this documentary evidence obviously rules out the possibility of tampering with the contents of the sample. He further submitted that by appearing in defence, Nachhattar Singh has confirmed the apprehension of the prosecution that if he was examined by the prosecution, he might have deposed there-against. The contentions raised by Mr.Gupta are unsustainable for the reasons to be recorded hereinafter. ASI Kaur Singh PW2, Investigator under the stress of cross-examination has deposed that usually the seal after use is handed over to independent witness, if joined with the police party. In his next breath, he stated that he cannot give any specific reason for not giving the seal to Nachhattar Singh PW in this case after sealing. This evidence gives an inkling that either Nachhattar Singh PW was not with the police Crl.Appeal No.1101 SB of 1999 -6- party at the time of recovery and due to that reason, the seal was given to the official witness HC Mithu Ram or the seal was deliberately handed over to the police official with a view to get it back for tampering with the contents of the sample. It is in his further cross-examination that seal was returned to him (ASI Kaur Singh) by HC Mithu Ram at 2/2.15 AM in the Police Station; that at 1.15 AM, the accused was produced before SI/SHO Dinesh Kumar and no memo was prepared in this respect. Axiomatically, the seal was received back by the Investigator shortly after production of the accused before the SHO. There is no vouch for the fact that the accused alongwith the case property was produced before the SI/SHO Dinesh Kumar at 1.15 AM. HC Mithu Ram has been withheld by the prosecution. Undeniably, the sample was received in the office of Chemical Examiner after 6 days of recovery, whereas according to the Narcotic Control Bureau, the sample parcel should be despatched within 72 hours to the Chemical Examiner. A “fortiori” Constable Harjinder Singh, Assistant Maharir Judicial Malkhana with whom the remaining opium was deposited has not been examined nor his affidavit has been put on record. In the face of these flaws, the possibility of the contents of the sample parcel, being tampered with cannot be ruled out. Further, these lead to the conclusion that link evidence is missing in this case. DSP Jaswant Singh has not given any reason for not affixing his own seal on the sample parcel as well as the case property. Only recovery memo bears his attestation. It is in his cross- examination that he cannot say whether he joined four cases on that day nor Crl.Appeal No.1101 SB of 1999 -7- he can tell the location of other cases; nor remembers if he was present in a case against Jaskaran Singh minor. A meticulous perusal of his cross- examination would reveal that he has given evasive replies to the material questions. In these circumstances, his presence at the time of recovery has to be looked upon with grave suspicion. In view of the forgoing discussion, this appeal succeeds and is accepted by setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charged offence. His bail bonds shall also stand discharged. 5th February, 2008 (Harbans Lal) gsv Judge