Crl. Appeal No.1008-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.1008-SB of 1999 Date of Decision : October 20, 2008 Karnail Singh S/o Balkar Singh, ...Appellant R/o Village Pipli-Majra. 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. Devinder Kumar Kaushal, Advocate, Amicus Curiae, for the appellant. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 8.9.1999, and the order of sentence dated 9.9.1999, rendered by the Presiding Officer, Special Court, Kurukshetra, vide which he 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 10 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 15 Kgs., poppy-husk, now falling within the ambit of non-commercial quantity, Crl. Appeal No.1008-SB of 1999 2 without any permit or licence. 2. The facts, in brief, are that on 1.12.1995, Baljit Singh, ASI, alongwith other police officials, was on patrol duty, at Rajbaha bridge, at Jalbehra head, when the accused was seen coming with a plastic bag, on his shoulder, who on seeing the police party, tried to retreat, but was apprehended, on suspicion. Some narcotic substance was suspected, in the bag, being carried by the accused. On search of the bag, being carried by the accused, in the presence of Paramjit Singh Ahlawat, DSP, who was called to the spot, by sending a message, 15 Kgs. Poppy-husk, was recovered. Two samples of 200 grams each, from the bag, were taken out, and the remaining poppy-husk, was kept in 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 judicial trial. 4. The prosecution, in support of its case, examined Som Nath, HC (PW-1), Paramjit Singh Ahlawat, DSP, (PW-2), Dilpazir Singh, SI, (PW-3), Raja Ram, HC, (PW-4), Surjit Singh, HC (PW-5), and baljit Singh, ASI (PW-6). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. Crl. Appeal No.1008-SB of 1999 3 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. He, however, examined Karnail Singh (DW-1), in his defence. Thereafter, he closed the defence evidence. 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 appellant. 8. I have heard the learned 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 by the Investigating Officer, at the time of alleged search and seizure, despite availability. He further submitted that even no effort was made, to join an independent witness, and, as such, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. During the course of his cross-examination, Baljit Singh, ASI (PW-6), the Investigating Officer, stated that he tried to join an independent witness, but nobody was ready. Surjit Singh, HC, (PW-5), a witness to the recovery, however, during his statement, did not state even a single word that Baljit Singh, ASI, the Investigating Officer, tried to join an independent witness, but none was ready. He, however, admitted Crl. Appeal No.1008-SB of 1999 4 during the course of cross-examination, that near the place, where the accused was apprehended, the office of the Deputy Superintendent of Police, the Court of Judicial Magistrate Ist Class, the Court of Sub Divisional Magistrate, the Courts of Tehsildar, and Naib Tehsildar, are located. He further stated that Sudhir, Constable, had brought the weighing scale from the Bazar. Had an effort been made by the Investigating Officer, to join an independent witness, Sujit Singh, HC, a witness to the recovery, would have certainly made such a statement. Even, the factum that an attempt was made to join the independent witness, was not recorded in the case diary, or other documents, prepared at the spot, at the time of alleged search and seizure. In view of the statement of Surjit Singh, HC (PW-5), and keeping in view that no mention was made, either in the case diary, or other documents, prepared at the spot, by the Investigating Officer, that he made an attempt to join an independent witness, but none was ready, to join, it could be said that such an explanation given by the Investigating Officer, was nothing, but a tissue of lies. In this case, despite availability of independent witnesses, the Investigating Officer, did not join any of them, intentionally and deliberately. 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, Crl. Appeal No.1008-SB of 1999 5 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 Crl. Appeal No.1008-SB of 1999 6 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 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 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. The alleged recovery, in this case, was effected on 1.12.1995, whereas, the sample was sent to the Forensic Science Laboratory, on 19.12.1995. No explanation, was furnished regarding the delay of 18 days, in sending the sample, to the office of the Forensic Science Laboratory. The Counsel for the appellant, therefore, submitted that the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, appears to be Crl. Appeal No.1008-SB of 1999 7 correct. It is, no doubt, true that mere delay in sending the sample to the office of the Forensic Science Laboratory, in itself, is not sufficient to come to the conclusion, that the sample parcel, was tampered with, at any stage, until it reached the laboratory. The prosecution could certainly produce other evidence on record, to prove that the link evidence was complete, and none tampered with the sample parcel, until it reached the office of the Forensic Science Laboratory. In the instant case, the evidence produced by the prosecution, to prove the completion of link evidence is not only deficient, but also unreliable. In this view of the matter, it could be safely held that the sample parcel, did not remain untampered with, until it reached the office of the Forensic Science Laboratory, especially when the seals after use, remained with the police officials, with whom the case property, and the sample parcel remained. 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 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. In Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, the seal remained with the police official, and Crl. Appeal No.1008-SB of 1999 8 had not been handed over to any independent witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. 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 sample to the office of the Forensic Scinece Laboratory, and non-strict proof, by the prosecution, that the same was not tampered with, till it was deposited in that Laboratory, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 11. No doubt, Dilpazir Singh, SI (PW-3), stated that the case property was produced before him, and he verified the same. However, he did not state even a single word, that his statement was recorded, by the Investigating Officer. He further stated, during the course of his cross-examination, that there was no mention, in any document of the fact that he had verified the facts of the case, when the accused, the prosecution witnesses, and the case property, were produced before him. He also admitted it correct, that there is no mention of this factum, in the report, under Section 173 Cr.P.C. He further stated that he did not make an entry, in the daily diary, with regard to the production of the accused, and the case property, before him. This clearly goes to show that the case-property was neither produced before him, nor did he verify the same, nor he sealed the same, in the manner deposed to, by him. In the absence of the statement of this witness, under Section 161 Cr.P.C., the accused was deprived of confronting him, with his previous statement, so as to challenge his veracity. Under these circumstances, it could not be Crl. Appeal No.1008-SB of 1999 9 definitely said, as to whether, the case property, and the sample parcels, were produced before 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 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. The case of the prosecution, therefore, became highly doubtful, on account of this reason. 12. The link evidence, in this case, was also incomplete. Dilpazir Singh, SI (PW-3), before whom, the case property, and the sample parcels, were produced, stated that he deposited the case property with the MHC. He did not state, as to whether, the seals on the case property, were intact, when the same was deposited with the MHC. He did not state even a single word, that the specimen impression of the seals, was prepared by him, and deposited with the MHC. There is no other document, on the record, to show that the impression of the seals was deposited with the MHC, either by the Investigating Officer, or by Dilpazir Singh, SI. No doubt, Som Nath, HC (PW-1), stated that the sample impression of the seals was deposited with him. However, this fact did not find mention, in his statement, under Section 161 Cr.P.C. When the sample impression of the seals, was not deposited with Som Nath, HC, then it is not known, as to how, he could send the same, to the Crl. Appeal No.1008-SB of 1999 10 Laboratory, with the sample parcel, through the Constable concerned. This clearly goes to show that the sample impression of the seals, was not sent to the Laboratory, and, as such, it was deprived of comparing the seals, on the sample parcel, with the specimen seal, which was affixed, on the case property, and the sample parcels, at the time of alleged recovery. 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. 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. 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 8.9.1999/9.9.1999, 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, he shall be set at liberty, Crl. Appeal No.1008-SB of 1999 11 at once, if not required in any other case. The Chief Judicial Magistrate, Kurukshetra, shall comply with the judgment, in accordance with the provisions of law, and send the compliance report, within 2 months, from the date of receipt of a copy of the judgment. October 20, 2008 (SHAM SUNDER) Vimal JUDGE