Crl.Appeal No.321 SB of 2002 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.321 SB of 2002 Date of decision: 30th January, 2008 Krishan @ Sethi ..Appellant. Versus State of Haryana …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: Mr.Baljinder Singh, Advocate for the appellant. Mr.Tarunveer Vashist, Additional Advocate General, Haryana *** HARBANS LAL, J. This appeal is directed against the judgment/order of sentence dated 6th September, 2001 passed by the Court of learned Judge, Special Court, Jhajjar, whereby he convicted and sentenced the appellant/accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lac and in default thereof to further undergo rigorous imprisonment for one year under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter to be referred as ‘the Act’). The minimal facts are that on 24th December, 1998, the police party headed by ASI Chattar Singh was proceeding from village Sankhol to Crl.Appeal No.321 SB of 2002 [2] village Barahi for patrolling. The police officials noticed the accused Krishan @ Sethi approaching from the side of village Barahi with a bag in his hand. On catching sight of the police party, the accused by deviating from the road, started walking in a brisk manner, which aroused suspicion in the mind of the aforesaid ASI, who intercepted the accused and served notice under Section 50 of the Act upon him in terms that he was suspected to carrying some narcotic drugs in the bag and he should tell whether he wanted to be searched before him or a Magistrate or a Gazetted Officer. The accused offered to be searched in the presence of some Gazetted Officer. Smt. Suman Manzri, DSP was apprised of the reply given by the accused. She asked the aforesaid ASI to produce the accused before her in her office and accordingly, he was produced before her. On search of the plastic bag, 2 kgs. and 500 grams charas was recovered, out of which 200 grams was separated to serve as a sample and converted into a parcel. The residue was also made into a parcel. The parcels were sealed with the seal ‘IS’ belonging to Constable Ishwar Singh. The seal after use was handed to Constable Ishwar Singh. The aforementioned DSP also affixed her own seal ‘SM’ on each parcel. Thereafter, the parcels were seized. Ruqa was sent to the police station, where on its basis formal FIR was registered. The aforesaid ASI prepared the rough site plan, showing the place of recovery, recorded the statement of the witnesses and produced the accused before Badan Singh, Sub Inspector/Station House Officer, Police Station City Bahadurgarh alongwith the case property and the witnesses. The said SHO also affixed his own seal on the parcels. The case property was deposited with the MHC Crl.Appeal No.321 SB of 2002 [3] Dharam Pal. On receipt of FSL 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 20 of the Act, to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution has examined Badan Singh, SI (retired) PW1, HC Siri Niwas PW2, Constable Ajmer Singh PW3, Constable Ram Niwas PW4, HC Ishwar Singh PW5, HC Dharam Pal PW6, ASI Chattar Singh PW7, Smt.Suman Manjri DSP PW8 and closed its evidence by tendering the Forensic Science Laboratory’s report Ex.PG. On close of the prosecution evidence, 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 innocence. He put-forth that he has been arrested at village Asaudah where his sister is married with Prem and because of party faction, charas was planted upon him. He being a Nepali national, does not know Hindi language and meaning of notice, Gazetted Officer and Magistrate. He did not lead defence evidence. After hearing the learned Public Prosecutor for the State, learned defence counsel and after examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. I have heard the learned counsel for the parties and have gone through the record with due care and circumspection. Crl.Appeal No.321 SB of 2002 [4] Mr.Baljinder Singh, Advocate appearing on behalf of the appellant agitated at the bar that the seal after use was returned to Constable Ishwar Singh. There is delay of as many as 14 days in sending the sample to the Forensic Science Laboratory. The possibility of tampering with the contents of the sample before its despatch to the FSL by getting back the seal from the aforesaid Constable cannot be ruled out. On the other hand Mr.Tarunveer Vashist, Additional Advocate General, Haryana maintained that as would be apparent from the FSL report, the specimen seal impression tallied with the seal affixed on the sample parcel when it was received in the office of FSL, which nullifies the contention raised by Mr. Baljinder Singh, Advocate. I have well considered the rival contentions. The recovery was effected on 24th December, 1998. As per the FSL report Ex.PG, the sample parcel was received in the Laboratory on 8th January, 1999. Obviously, there is a delay of 14 days in sending the sample. As observed by the Division Bench of this Court in re: Parminder Singh vs. State of Haryana 2006(4) Recent Criminal Reports (Crl.), 495(DB), according to the Narcotic Control Bureau Instructions, the sample parcel should be deposited within 72 hours with the Chemical Examiner. Herein, the prosecution has not given any explanation for withholding the sample for such a long time. In re: Jagmohan Singh alias Jago vs. State of Punjab 2007(3) Recent Criminal Reports (Crl.) 900, there was unexplained delay of 12 days in sending the sample to the Chemical Examiner. It was held that the possibility of the contraband having been tampered with cannot be ruled out Crl.Appeal No.321 SB of 2002 [5] and in such a situation, the benefit but naturally has to go to the accused. It is in the testimony of ASI Chattar Singh PW7, Investigator that the seal belonging to Constable Ishwar Singh was retuned to him after use. It was not difficult for the Investigator to get back the seal from the Constable for the purpose of tampering with the contents of the sample. Further, it is in the evidence of ASI Chattar Singh PW7 that the accused, case property and the witnesses were also produced before the SHO Badan Singh, who after verifying the facts resealed the property with his own seal ‘BS’. Ex.PB is the affidavit of Constable Ram Niwas no.4478, who carried the sample to the FSL. Para no.2 of his affidavit is absolutely silent about the presence of the seal ‘BS’ on the sample parcel. Thus, obviously the link evidence is missing. It is in the cross-examination of ASI Chattar Singh PW7 that “accused was apprehended when I was towards North of the road and had travelled 20 paces; that number of persons were passing from that place; that since the witnesses had refused to join the investigation, I could not join any independent witness; that I cannot tell the name of any such person and no action was taken against him.” It implies that there was no dearth of the independent witnesses to join the investigation. If such persons had refused to join the investigation, the action should have been initiated against them. In re : Hawa Singh vs. State of Haryana 2005(4) Recent Criminal Reports (Crl.), 292, the independent witness had refused to associate in the investigation. It was not shown who were the persons, who Crl.Appeal No.321 SB of 2002 [6] had refused to join. The testimony of official witnesses was not relied upon. In view of the preceding 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. The appellant, if not required in any other case, shall be set at liberty forthwith. 30th January, 2008 (Harbans Lal) gsv Judge