Crl. Appeal No.499-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.499-SB of 1995 Date of Decision : May 26, 2008 Karnail Singh S/o Amar Singh, ....Appellant R/o Village jandali, P.S.Gobind Garh, District Fatehgarh Sahib. 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. Avinash Chander Jain, 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, and the order of sentence dated 5.8.1995, rendered by the Court of Addl. Sessions Judge, Ambala, vide which it convicted the accused/appellant, 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, for having been found in possession of 3 ½ Kgs. poppy-husk, without any permit or licence. 2. The facts, in brief, are that on 9.2.1994, Ashok Raj, ASI, alongwith other police officials, was present near the railway outer gate, near the Bus Crl. Appeal No.499-SB of 1995 2 Stand, Ambala, in connection with checking. In the meanwhile, Vijay Kumar, HC, and Ashok Kumar, HC, met him there. When he was talking to them, he received a secret information, to the effect, that one sikh gentleman was coming with poppy-husk, towards Bus Stand, Ambala Cantt., and he could be apprehended, if a picket was held. As the information was reliable, wireless message was sent to Banwari Lal, Inspector/SHO, P.S.Ambala Cantt. and S.S.Rao, ASP, Ambala, to reach the spot. Thereafter, Ashok Raj, ASI, reached the disclosed place. The accused was seen coming from the side of Railway Station. On suspicion, he was apprehended. In the meanwhile, Banwari Lal, Inspector/SHO, and S.S.Rao, ASP, came there. The search of the bag, being carried by the accused, in accordance with the provisions of law, was conducted, as a result whereof 3 ½ Kgs. poppy-husk, was recovered. A sample of 500 grams, was separated therefrom, and the remaining poppy-husk, was put into a separate container. The sample, and the container, containing the remaining poppy-husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. 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. 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 Vijay Kumar, HC (PW-1), Ashok Raj, ASI, (PW-2), S.S.Rao, ASP, Ambala, (PW-3). The Public Prosecutor for the State, tendered into evidence, affidavits, Exs.PE and PF, and report of the Chemical Examiner, Ex.PG. Thereafter, he closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was Crl. Appeal No.499-SB of 1995 3 recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. The accused, 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. The Counsel for the respondent, however, submitted that as per the report of Jinder Singh, ASI, P.S. Ambala Cantt., which is marked as 'A', duly supported by a writing of the Gram Panchayat, Jandali, which is marked as 'B', the appellant demised, on 24.2.2007. 9. On the other hand, the Counsel for the appellant submitted that since the appeal cannot abate, as a whole, in view of the provisions of Section 394(2) of the Code of Criminal Procedure, as the same has also been filed, against the sentence of fine, he would address arguments, on merits. 10. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellant, at the very out-set, submitted that though the alleged recovery, in this case, was effected, on the basis of a secret information, yet, no independent witness was joined, despite availability. The Counsel for the appellant further contended that even no effort was made, to join an independent witness. He further contended that, on account of this reason, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ashok Raj, ASI (PW-2), the Investigating Officer, during the course of his cross-examination, stated that none from the public had gathered, at the spot. He further stated, that Crl. Appeal No.499-SB of 1995 4 Bus Stand, Ambala, Cantt. is a very busy place. He further stated, that there was no shop near the place of occurrence. He further stated that he had asked one or two persons to join the investigation, but none was prepared to become a witness. Vijay Kumar, HC (PW-1), a witness to the recovery, during the course of his cross-examination, stated that many persons, were coming and going nearby. He further stated that many people had collected there, at the spot, at the time of search and seizure. He further stated that the Investigating Officer, requested many persons, to join the investigation, but none of them was willing to join. He further stated that the Investigating Officer, did not enquire about the names of the persons, who refused to join the investigation. The statements of both these witnesses, on this aspect of the matter, do not appear to be correct. Had an effort been made, 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 those documents, clearly exhibited that Ashok Raj, ASI, and Vijay Kumar, HC, made incorrect statements, that an effort was made to join an independent witness, but none came forward to join. 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 other evidence produced by the Crl. Appeal No.499-SB of 1995 5 prosecution, is unreliable. 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. 12. It was next submitted by the Counsel for the appellant, that though the affidavits of Balwant Singh, HC, Ex.PE, and Rajinder Kumar, Constable, Ex.PF, were tendered into evidence, by the Public Prosecutor for the State, yet they were not produced in the Court, on that date, or even later on, for their cross-examination. These affidavits, without offering an opportunity to the accused, to cross-examine Balwant Singh, HC, and Rajinder Kumar, could not be taken into consideration, as legally admissible evidence. The accused has a valuable and indefeasible right to cross-examine the witnesses. He must be afforded an opportunity to do so. It is a different matter, whether he avails of that opportunity or not. The prosecution cannot take up the plea, that when the affidavits of the witnesses, were tendered into evidence, and they were not present, the accused could ask that he wanted to cross-examine them, and, thus, they could be produced. By not producing, these witnesses for cross- examination by the accused, he was deprived of his valuable and indefeasible right. In Gian Singh Vs. State of Punjab 2006(2) RCR (Criminal) 611, the affidavits of police Constables were tendered into evidence, but they were not produced, in the Court for cross-examination. In these circumstances, it was held that the link evidence was missing, which was a material infirmity, and, ultimately, the conviction was set aside. In Jai Singh Vs. State of Haryana, 1995 (3) RCR 627, the affidavits of the Police Constable and the HC, were tendered into evidence, but both of them, were not kept present, in the Court for cross-examination. In these circumstances, it was held that the affidavits could not be read into evidence and, as such, the link evidence was incomplete and the case of the prosecution was bound to fail. The principle of law, laid down, in Crl. Appeal No.499-SB of 1995 6 the aforesaid authorities, is fully applicable to the facts of the present case. Under these circumstances, both these affidavits, without offering the deponents thereof, for cross-examination to the accused, could not be read into evidence. As such, the link evidence being incomplete, the appellant/accused is liable to be acquitted. The trial Court, in my opinion, was wrong in holding that the link evidence was complete. 13. It was next submitted by the Counsel for the appellant, that the sample impression of the seal, was never deposited in the office of the Forensic Science Laboratory, as a result whereof, the link evidence became incomplete. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ex.PF, is the affidavit of Rajinder Kumar, Constable, who deposited the sample parcel, in the office of the Forensic Science Laboratory. According to para No.2 of his affidavit, on 18.2.1994, he deposited the sampel parcel, in the office of the Forensic Science Laboratory, and thereafter, handed over the deposit receipt to Balwant Singh, MHC. 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.PG, 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 the forwarding authority. It is not known, as to how, the Laboratory came to this conclusion, when the sample seal, as per the affidavit of Rajinder Kumar, 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 Crl. Appeal No.499-SB of 1995 7 consideration, this aspect of the matter,as a result whereof, miscarriage of justice occasioned. 14. 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, 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 Crl. Appeal No.499-SB of 1995 8 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 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. 15. The provisions of Section 57 of the Act, were not complied with. No report was sent by the Investigating Officer, to his superior officer, with regard to the alleged apprehension of the accused, and alleged recovery of contraband, from him. No doubt, the provisions of Section 57 of the Act, are directory, in nature. That does not mean that the same, should not be complied with by the Investigating Officer, deliberately and intentionally. Similar principle of law was, laid down, in Gurbax Singh's case (supra). However, the Investigating Crl. Appeal No.499-SB of 1995 9 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 object of the provisions of Section 57, is that the superior officer should be informed immediately after the alleged recovery of contraband, so that he must be aware of the genuineness of the proceedings, conducted by his junior, to ensure that no innocent person was implicated, and the allegations of high-handedness against the Police officials, are averted. Had any explanation been furnished by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of the Act, the matter would have been different. In the absence of any explanation, what to speak of plausible, the Court cannot coin any of its own, to fit in with the prosecution case. Since, the provisions of Section 57 of the Act, were observed, more in breach, than in compliance, by the Investigating Officer, intentionally and deliberately, the case of the prosecution became doubtful, on account of this reason. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it committed an error, in recording conviction and awarding sentence. 16. 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. 17. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 5.8.1995, are set aside. May 26, 2008 (SHAM SUNDER) Vimal JUDGE