Crl. Appeal No.98-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.98-SB of 2003 Date of Decision : 24.12.2008 1. Jagir Singh S/o Makhan Singh, ...Appellants R/o Mehmara, Tehsil Ratia, District Fatehabad. 2. Sunder Pal S/o Gad Singh, R/o Sulkhania, P.S. Hamirwas, District Churu (Rajasthan). 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. Atul Lakhanpal, Sr. Advocate, with Mr. R.S.Chahal, Advocate, Advocate, for appellant No.1. Mr. R.N.Khush, Advocate, for appellant No.2. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 17.12.2002, and the order of sentence dated 19.12.2002, rendered by the Court of Addl. Sessions Judge, Fatehabad, vide which it convicted Jagir Singh and Sunder Pal, accused/appellants, for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced them, to undergo Crl. Appeal No.98-SB of 2003 2 rigorous imprisonment for a period of 10 years each, and to pay a fine of Rs.1 lac each, and in default of payment of the same, to undergo rigorous imprisonment for another period of three years each, for having been found in possession of 10 bags, each containing 40 kgs. poppy-husk, without any permit or licence. However, the trial Court, acquitted Laloo @ Lal Singh and Amrik @ Raju, accused. 2. The facts, in brief, are that on 17.1.1997, a police party headed by Badan Singh, SI, was present, on Budhlada road, near Ghaghar ravine, when a tractor bearing registration No.HYF-1146, to which a trolley was attached came from the side of Ratia. The tractor was signalled to stop. It was stopped. The driver and one occupant sitting in the trolley, however, succeeded in running away, whereas, the remaining two persons, were apprehended. Since, Badan Singh, SI, suspected that some contraband was lying in the tractor-trolley, R.S.Bohria, Naib Tehsildar- cum-Executive Magistrate, Ratia, was called to the spot, who came there. On search 10 bags, containing poppy-husk, were found in the tractor- trolley. Each bag was found containing 40 kgs. poppy-husk. A sample of 100 grams, from each of the bags, was taken out, and the remaining poppy-husk, was kept in the same bags. The samples, and the bags, containing the remaining poppy-husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo, alongwith the tractor-trolley. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. Jagir Singh and Sunder Pal, accused were arrested, at the spot. However, Laloo @ Lal Singh and Amrik @ Raju, accused, who fled away from the spot, were arrested later on. After the Crl. Appeal No.98-SB of 2003 3 completion of investigation, the accused were challaned. 3. On their 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 them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Ramesh Kumar, SI (PW-1), Sube Singh, Inspector (PW-2), Om Parkash, Reader to the DSP (PW-3), Ram Phal, HC (PW-4), Ram Kishan, HC (PW-5), Badan Singh, ASI (PW-6), the Investigating Officer, Raghubir Singh Bhodia, Tehsildar (PW-7), Ram Niwas, MHC (PW-8), and Dharambir, ASI (PW-9). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, did not lead any evidence, in their 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 jagir Singh and Sunder Pal, accused, and acquitted Laloo @ Lal Singh and Amrik @ Raju, 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 Jagir Singh and Sunder Pal, appellants. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully. Crl. Appeal No.98-SB of 2003 4 9. The Counsel for the appellants, at the very outset, submitted that the link evidence, in the instant case, was totally incomplete. They further submitted that according to Ram Phal, HC (PW-4), vide his affidavit, Ex.PB, testified that he was handed over the sample parcels, on 3.2.1997, and he deposited the same, in the office of the Forensic Science Laboratory, and handed over the deposit receipt to the MHC, on the same day. He further submitted that, on the other hand, according to Ex.P-11, report of the Forensic Science Laboratory, the sample parcels were received therein, on 7.2.1997. In case, Ram Phal, had deposited the sample parcels, of this case, in the Forensic Science Laboratory, on 3.2.1997, then how the said Laboratory received the samples on 7.2.1997, is not known. Where the samples for 4 days remained, is not known. Non-explanation of the factum, as to where the samples, remained for 4 days, must prove fatal. It means that the samples, which were allegedly received by the Laboratory on 7.2.1997, did not relate to the instant case. No explanation was furnished, by the prosecution witnesses, with regard to this material discrepancy, occurring in the affidavit, Ex.PB, vis-a-vis, the report of the Forensic Science Laboratory. The very factum, as to on which date, the samples, in this case, were allegedly deposited, in the office of the Forensic Science Laboratory, thus, remained shrouded in mystery. The prosecution is duty bound to prove the completion of link evidence, right from the date of seizure, until the samples reached the office of the Laboratory. If, any link, in the chain of the prosecution evidence, is found missing, then its whole case becomes highly doubtful. 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 Crl. Appeal No.98-SB of 2003 5 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 appellants, to the effect, that the link evidence, in the instant case, was totally incomplete, carries weight, and is accepted. 10. It was next submitted by the Counsel for the appellants, that there was a delay of 18 days, in sending the samples, which remained unexplained, as a result whereof, the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellants, in this regard, appears to be correct. In the normal course, mere delay in sending the samples, would not have proved fatal, had the other evidence been found to be cogent and convincing to prove the link evidence. In the instant case, as stated above, there is factual dispute, as to on which date, the samples were deposited in the office of the Forensic Science Laboratory, and, thus, the link evidence was incomplete. Thus, in view of the peculiar facts and circumstances of the case, they delay of 18 days, in sending the samples, must prove fatal, to the case of the prosecution. This fact casts a shadow of doubt, on the case of the prosecution. 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 State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Crl. Appeal No.98-SB of 2003 6 Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Forensic Science Laboratory. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. 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 18 days, in sending the samples, to the office of the Forensic Science Laboratory, and non-strict proof, by the prosecution, that the same were not tampered with, till the same were deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the samples, could not be ruled out. The submission of the Counsel for the appellants, in this regard, being correct, is accepted. 11. It was next submitted by the Counsel for the appellants, that no independent witness, despite availability was joined, by the Investigating Officer, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellants, in this regard, appears to be correct. Badan Singh, ASI (PW-6), the Investigating Officer, during the course of his cross-examination stated that the place, where Jagir Singh and Sunder Pal, accused, were apprehended, is about 200 yards from the abadi of Ratia town. He further stated that the road, on which both the accused were apprehended, leads to Budlada town of Punjab. He, in clear-cut terms, stated during the course of cross- Crl. Appeal No.98-SB of 2003 7 examination, that he did not call any witness, from the public, before giving notices to the accused, as to whether, they wanted the search of the tractor-trolley, to be conducted in the presence of a Gazetted Officer or a Magistrate. It means that no effort was made by the Investigating Officer, to join an independent witness, despite availability. Since minimum stringent punishment is provided for the offences, punishable under the Act, and according to the provisions of Section 51 of the Act, the provisions of the Code of Criminal Procedure, relating to search, seizure and arrest shall apply to the extent the same are not inconsistent with the provisions of the Act, it was imperative, on the part of the Investigating Officer, to join an independent witness, at the time of the alleged search, and seizure, or at least to make a genuine, sincere and real effort, to join such a witness. The search and seizure, before an independent witness, would have imparted much more authenticity and creditworthiness, to the proceedings, so conducted. It would have also verily strengthen the prosecution case. The said safeguard was also intended to avoid criticism of arbitrary and high-handed action, against the authorized Officer. In other words, the Legislature, in its wisdom, considered it necessary to provide such a statutory safeguard, to lend credibility to the procedure, relating to search and seizure, keeping in view the severe punishment, prescribed under the Act. That being so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute, and failure to do so, must be viewed with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of statutory safeguards, committed by the authorized officer, during search Crl. Appeal No.98-SB of 2003 8 and seizure operation, and may also undermine respect of law. That cannot be permitted. In the instant case, the alleged recovery being minor, now falling within the ambit of non-commercial quantity, and chances of plantation of the same, against the accused, could not be ruled out, it became the bounden duty of the Investigating Officer, to observe all the safeguards, provided under the Act, at the time of search and seizure. It is, no doubt, true that, in the absence of corroboration through an independent source, the evidence of the official witnesses, cannot be disbelieved and distrusted, blind-foldely, if the same is found to be creditworthy. However, when the evidence of the official witnesses, is found to be not cogent convincing, reliable and trustworthy, then on account of non-corroboration thereof, through an independent source, certainly a doubt is cast, on the prosecution story. In the instant case, the evidence of the prosecution witnesses, does not inspire confidence, in the mind of the Court. In this view of the matter, non-corroboration of the evidence of the official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In State of Punjab Vs. Bhupinder Singh 2001 (01) RCR (Crl.) 356, a Division Bench of this Court, held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the recovery was effected from a busy locality. In State of Punjab Vs. Ram Chand 2001 (1) RCR (Crl.) 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. The principle of Crl. Appeal No.98-SB of 2003 9 law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution, became highly doubtful. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 12. It was next submitted by the Counsel for the appellants, that the statements of Sube Singh, Inspector/SHO (PW-7), before whom the case property was allegedly produced, and who verified the same, Ram Phal, HC (PW-4), a formal witness, and Ram Niwas, MHC (PW-8), a formal witness, under Section 161 Cr.P.C. were not recorded, by the Investigating Officer, as a result whereof, a great prejudice was caused to the accused, as he was deprived of confronting them, with their previous statements, under Section 161 Cr.P.C., during the course of their cross- examination, and, therefore, could not challenge their veracity. The submission of the Counsel for the appellants, in this regard, appears to be correct. There is nothing, in the statement of the Investigating Officer, that the statements, under Section 161 Cr.P.C., of Sube Singh, Inspector/SHO (PW-7), Ram Phal, HC (PW-4), and Ram Niwas, MHC (PW-8), were recorded, by him. In Padam Singh Vs. State of Haryana 1997 (4) RCR (Criminal) 172 (Division Bench) (P&H), the statement of the DSP, who allegedly reached the spot, at the time of search and seizure, under Section 161 Cr.P.C, was not recorded. The Division Bench, in the aforesaid authority, under these circumstances, held that non-recording of the statement of such an important witness, was a serious irregularity, which considerably prejudiced the accused and may Crl. Appeal No.98-SB of 2003 10 make his testimony tainted. Ultimately, on this ground, and, on other grounds, the conviction was set aside. The principle of law, laid down, in the aforesaid authority, is applicable to the facts of the present case. Non-recording of the statements of Sube Singh, Inspector/SHO (PW-7), Ram Phal, HC (PW-4), and Ram Niwas, MHC (PW-8), by the Investigating Officer, cast a doubt on the prosecution story. The case of the prosecution, therefore, became highly doubtful, on account of this reason. The submission of the Counsel for the appellants, in this regard, being correct, is accepted. 13. No other point was urged, by the Counsel for the parties. 14. 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. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 15 of the Act. In view of the peculiar facts, circumstances, the infirmities, and lacunae enumerated above, the judgment of conviction, and the order of sentence are liable to be set aside. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 17.12.2002, and the order of sentence dated 19.12.2002, are set aside. The appellants shall stand acquitted of the charge, framed against them. If, they are on bail, they shall stand discharged of their bail bonds. If, they are in custody, they shall be set at liberty, at once, if not required in any other case. The Chief Judicial Magistrate, Fatehabad, shall comply with the judgment, in accordance Crl. Appeal No.98-SB of 2003 11 with the provisions of law, and send the compliance report, within 2 months, from the date of receipt of certified copy of the judgment. 24.12.2008 (SHAM SUNDER) Vimal JUDGE