Crl. Appeal No.1007-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.1007-SB of 1999 Date of Decision : 24.07.2008 Ramesh Kumar S/o Gajjan Singh, ....Appellant R/o Bhikhi, District Mansa, now at Ram Nagar Basti, Sangrur. Versus The State of Punjab ....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. Baljeet Puri, Advocate for the appellant. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 7.7.1999, rendered by Judge, Special Court, Sangrur, vide which it convicted the accused (now 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 one year, for having been found in possession of 9 kgs poppy-husk, (now falling within the ambit of non-commercial quantity), without any permit or licence. 2. The facts, in brief, are that on 22.1.1995, Surjit Singh, ASI, Police Station Moonak, alongwith other police officials, was going on private motor Crl. Appeal No.1007-SB of 1999 2 cycles, in connection with patrol duty, from village Dhudian towards Dhindsa, and when the police party reached, at the bridge of drain, in the area of village Dhudian, the accused was seen coming on the track of the drain from the left side on foot, carrying a bag, on his head. On seeing the police party, he tried to turn back, but was apprehended, on suspicion. On search of the bag, being carried by him, in accordance with the provisions of law, 9 kgs poppy-husk, was recovered. Two samples of 250 grams each, were separated therefrom, and the remaining poppy-husk, was put into the same bag. The samples, and the bag, 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 Niranjan Singh, Constable (PW-1), Karnail Singh, ASI (PW-2), Parshotam Lal, ASI (PW-3), Kuldeep Singh, MHC (PW-4), and Surjit Singh, ASI (PW-5). Thereafter, the Addl. 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 he was taken from his house, in the presence of the respectables, of the village, and, subsequently, the recovery of poppy-husk, was planted against him. He, however, examined Biru Singh (DW-1), in his defence, and thereafter, closed the defence evidence. 6. After hearing the Addl. Public Prosecutor for the State, the Counsel Crl. Appeal No.1007-SB of 1999 3 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 Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, submitted that no independent witness, was joined, despite availability. He further submitted that, under these circumstances, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Karnail Singh, ASI (PW-2), during the course of his cross-examination stated that the place of recovery was on the metalled road. It was further stated that there is a frequent bus service, on the road. He further stated that Labh Singh, PHG, was sent to the tubewells for bringing independent witnesses, but on return, he disclosed that none was available. He, however, did not state this factum, in his statement, under Section 161 Cr.P.C. There is nothing, in the statement of Surjit Singh, ASI (PW-5), that Labh Singh, PHG, was sent to the tubewells for bringing independent witnesses, but none was available there. There is also nothing, in the statement of Surjit Singh, ASI (PW-5), that he made a mention of this fact, in the case diary or any other document. It is, therefore, evident that, in fact, no effort to join an independent witness, was made. Only a false explanation, in this regard, was given by Karnail Singh, ASI (PW-2). It means that no effort was made to join an independent witness. 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 Crl. Appeal No.1007-SB of 1999 4 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 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 Crl. Appeal No.1007-SB of 1999 5 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 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. 10. It was next submitted by the Counsel for the appellant, that the sample impression of the seal, was not deposited with the Chemical Examiner, and, as such, it could not be said, as to whether, the seals on the samples, were the same, as were allegedly affixed thereon, at the time of search and seizure. He further submitted that, under these circumstances, the possibility of tampering with the samples, until the same reached the office of the Chemical Examiner, especially, when the seals remained with the official witness, with whom the sample parcels remained, could not be ruled out. The submission of the Counsel for the appellant, in this regard, appears to be correct. Naranjan Singh, Constable, who took the samples to the office of the Chemical Examiner, tendered his affidavit, Ex.PA. He did not state even a single word, in his affidavit, that alongwith the sample parcels, he also deposited the sample Crl. Appeal No.1007-SB of 1999 6 impression of the seals. Surjit Singh, ASI (PW-5), the Investigating Officer, did not state even a single word, in his statement, that he also deposited the sample impression of the seals, with the MHC, at the time of deposit of the case property, and the sample parcels. Parshotam Lal, ASI (PW-3), who was acting as SHO of Police Station Moonak, on the relevant day, did not state even a single word, in his statement, that he prepared the sample impression of the seals, allegedly affixed, by him, and handed over the same to Surjit Singh, ASI, to deposit the same, with the case property, and the samples, with the MHC. This all clearly goes to show that neither sample impression of the seals, was deposited with the MHC, nor the same was sent to the office of the Chemical Examiner, alongwith the sample pacels. Since, Naranjan Singh, Constable, did not deposit the sample impression of seals, in the office of the Chemical Examiner, it is not known, as to how on Ex.PH, the Chemical Examiner, appended the certificate that the seals on the parcel were intact, on arrival, till the time its analysis was started, and agreed with the specimen seals sent. Such certificate of the Chemical Examiner, therefore, does not appear to be correct. Under these circumstances, it could not be said, as to whether, the samples were received, in the office of the Chemical Examiner, with seals intact, and, as to whether, the said parcel bore the same seals, as were allegedly affixed by the Investigation Officer and the SHO, on the same. 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 consideration, this aspect of the matter,as a result whereof, miscarriage of justice occasioned. 11. It was next submitted by the Counsel for the appellant, that no doubt, according to the prosecution story, the case property was produced before Crl. Appeal No.1007-SB of 1999 7 Parshotam Lal, ASI, who was acting as SHO, on the relevant day, yet there is no evidence, in this regard, produced by the prosecution. He further submitted that, under these circumstances, the provisions of Section 55 of the Act, were breached, as a result whereof, a prejudice was caused to the accused. The submission of the Counsel for the appellant, in this regard, appears to be correct. Parshotam Lal, ASI (PW-3), during the course of cross-examination stated that he did not prepare any separate zimni, regarding the production of the case property before him. He further stated that he did not know whether Surjit Singh, ASI, had given the note in his diary to the effect, that he had produced the case property before him. Even Surjit Singh, ASI (PW-5), did not state even a single word, in his statement, that he made any mention of the factum, that he allegedly produced the case property, before Parshotam Lal, ASI, acting as SHO, on the relevant day, in the case diary or any other document. No separate memo was prepared, by Parshotam Lal, ASI, showing that actually the case property, was produced before him, and he took the same into possession or that after verification, he handed over the same to Surjit Singh, ASI. No doubt, a presumption of correctness is attached to the acts, performed in the due discharge of official duties. However, when a doubt is cast, regarding the adoption of a proper procedure, then certainly such a presumption cannot be drawn. In the absence of any documentary proof, the bald statement of Parshotam Lal, ASI (PW-3), to the effect, that the case property and the sample parcels, were produced before him, cannot be attached any credence. There was, thus, transgression of the provisions of Section 55 of the Act, as a result whereof, prejudice was caused to the accused, and doubt was cast on the prosecution case. 12. 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 the alleged recovery of Crl. Appeal No.1007-SB of 1999 8 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. 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 ipso-facto vitiate the trial or conviction. However, the Investigating Officer, cannot totally ignore these provisions, as 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 the 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, prejudice was caused to the accused, and, 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. 13. It was next submitted by the Counsel for the appellant, that material contradictions, discrepancies, and omissions cropped up, in the statements of the prosecution witnesses, which remained unexplained, as a result whereof, a doubt was cast on the prosecution story. Karnail Singh, ASI (PW-2), stated that Crl. Appeal No.1007-SB of 1999 9 10 Kgs. Poppy-husk was recovered from the accused, whereas, Surjit Singh, ASI (PW-5), the Investigating Officer, stated that 9 Kgs. Poppy-husk was recovered from the accused. According to Karnail Singh, ASI (PW-2), Labh Singh, PHG, was sent for bringing the independent witnesses, near the tubewells, who on return told that none was available. On the other hand, Surjit Singh, ASI (PW-5), did not state even a single word, that Labh Singh, PHG, was sent to the tubewells, for bringing an independent witness, who on return told that none was available. Karnail Singh, ASI (PW-2), stated that the place of recovery was the metalled road, and there were tubewells nearby. Surjit Singh, ASI (PW-5), however, did not state even a single word, in this regard. Karnail Singh, ASI (PW-2), stated that no person passed by the side, where the recovery was effected. On the other hand, Surjit Singh, ASI (PW-5), stated that 5/7 persons passed nearby them, during the period they stayed at the spot. These discrepancies, if taken individually may not prove fatal to the case of the prosecution. However, when these discrepancies are taken collectively together with the factum that the case of the prosecution is based on the evidence of the official witnesses only, and the chances of tampering with the case property, could not be ruled out, then the same certainly prove fatal to the case of the prosecution. These discrepancies, could not be said to be such, as occur in the normal course. In the absence of any explanation, having been furnished, by the prosecution witnesses, with regad to the occurrence of these discrepancies, the Court cannot coin any of its own, to fit in with the prosecution case. These discrepancies, therefore, cast a cloud of 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. 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 Crl. Appeal No.1007-SB of 1999 10 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. The judgment of conviction, and the order of sentence are, thus, liable to be set aside. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 7.7.1999, 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. If, he is in custody, then he shall be set at liberty, at once, if not required in any other case. 24.07.2008 (SHAM SUNDER) Vimal JUDGE