Crl.Appeal No.817-DB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of decision: 14.11.2008 Laxman ... Appellant versus State of Haryana ... Respondent CORAM: Hon'ble Mr.Justice Uma Nath Singh. Hon'ble Mr.Justice A.N.Jindal. Present: Mr.Gorakh Nath, Advocate, for the appellant. Mr.S.S.Randhawa, Addl.AG, Haryana. ... UMA NATH SINGH, J. This criminal appeal arises out of a judgment dated 16.8.2004 passed by learned Special Judge, Sonepat, in Sessions Case No.22 of 2003, holding accused appellant guilty of offence under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act (for short, `the Act'), and sentencing him to undergo RI for a period of 12 years with a fine of Rs.1,00,000/-; in default of payment of fine, to undergo further imprisonment for a period of 1 year. As per prosecution case, Investigating Officer along with other police officials went to T-Point Rathdhana when accused-appellant was seen coming from that side. On seeing police party, accused-appellant Laxman became nervous, and thereafter on suspicion, he was apprehended. On enquiry by SI/SHO Mehar Singh (PW7), accused-appellant disclosed his name as Laxman son of Dewan Singh. Investigating Officer (PW7) served a notice under Section 50 of the Act informing accused-appellant about his Crl.Appeal No.817-DB of 2004 2 right to be searched before a Gazetted Officer or a Magistrate. Accused Laxman vide his reply (Ex.PD/2) consented to be searched before a DSP or a Tehsildar. The IO (PW7) produced accused-appellant Laxman before City Magistrate, Shri Anil Sharma (PW3) at his residence and on his direction, SI/SHO Mehar Singh (PW7) carried the search of bag of accused-appellant and found the presence of charas wrapped in a polythene. Contraband item charas was weighed and found to be 1.500 kgs. One sample weighing 10 grams was drawn from that quantity. Sample and residue quantity were sealed with seal bearing inscription of Investigating Officer `MS' and Shri Anil Sharma, City Magistrate (PW3), also affixed his seal as `BS' on these articles. Seal of Investigating Officer after use was handed over to ASI Balraj Singh (PW4). The sealed parcels were taken into police possession vide recovery memo (Ex.PD) which was again signed by ASI Balraj Singh (PW4); Head Constable Ram Parshad (not examined), and Jagmender (PW5), and attested by Anil Sharma, City Magistrate (PW3). As the search and seizure from conscious possession of the accused-appellant disclosed the offence under Section 20 of the Act, a ruqa (Ex.PA) was sent for registration of FIR. Pursuant thereto, HC Rajbir Singh (PW1) recorded a formal FIR (Ex.PA/2). IO/SI Mehar Singh (PW7) prepared a rough site plan (Ex.PH) and finally deposited the case property with MHC. On completion of investigation, a report under Section 173 Cr.P.C. was laid before trial Court, and accused-appellant Laxman was charge sheeted under Section 20(b) of the Act, to which he pleaded not quilty and claimed trial. During the course of trial, prosecution produced as many as 7 witnesses, namely, HC Rajbir Singh (PW1); Constable Krishan Chand (PW2); Anil Sharma, City Magistrate (PW3); ASI Balraj Singh (PW4); Crl.Appeal No.817-DB of 2004 3 Jagmender (PW5); Constable Rohtash Kanwar (PW6), and SI/SHO Mehar Singh (PW7). On the other hand, defence side produced 3 witnesses, namely, Kanshi Ram (DW1); Lal Chand (DW2), and Krishna (DW3). In his statement under Section 313 Cr.P.C. Accused-appellant refuted the allegations, however, on appreciation of rival evidence, learned trial Court found the prosecution evidence to be clinching and more reliable and thus, discarded the submissions of learned defence counsel who tried to point out certain infirmities and contradictions in the prosecution evidence. Learned counsel for accused-appellant submitted that there was no explanation to delay of 10 days in sending the sample to FSL as the contraband was recovered on 16.3.2003 while the sample was received in FSL only on 26.3.2003. According to learned counsel, delay in dispatching the sample without proper explanation would prove fatal to the credibility of prosecution case and he placed reliance on a judgment reported in 2006(1) RCR (Crl.) 635 (Boota Singh vs. State of Punjab) in support of his submissions. In that case, prosecution had failed to explain the delay of 8 days in dispatching the sample for chemical examination and it was held that such delay in sending the sample in violation of standing instruction No.1/88 dated 15.3.1988 (Narcotic Control Bureau, New Delhi), would affect the merits of the case. This is also a submission of learned counsel that instead of 2, only 1 sample of 10 grams contraband was drawn by the police, and thus, this important procedural requirement was also not complied with. Learned counsel placed reliance on the judgment reported in 1998 (1) RCR(Crl.) 133 (Chhabil Dass vs. State of Haryana) to substantiate his submission. In the said judgment, this was held that two samples are required to be taken under the Act. That apart, this is also a Crl.Appeal No.817-DB of 2004 4 submission of learned counsel that in the examination under Section 313 of the Code of Criminal Procedure, the Court did not put a specific question to the accused-appellant like as to whether he was in conscious possession of the contraband item. Learned counsel referred to the judgment of Full Bench of this Court reported in 2006(2) RCR(Crl.) 477 (Kashmir Singh vs. State of Punjab), to argue that in such a case, presumptions as contained in Section 35 or 54 of the Act and under Section 114 of the Indian Evidence Act, against the accused would not be attracted. Section 35 and 54 of the Act, on reproduction, read as: “35. Presumption of culpable mental state – (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.” Explanation – In this section, “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe a fact. (2) For the purpose of this Section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.” “54. Presumption from possession of illicit articles – In trials under the Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an Crl.Appeal No.817-DB of 2004 5 offence under this Act in respect of- (a)any narcotic drug or psychotropic substance or controlled substance; (b)any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d)any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.” In the above judgment of Kashmir Singh, the questions that came up for consideration were (i) as to under what circumstances and in what manner the presumption of “culpable mental state” is to be raised under Section 35 of the Act, and (ii) as to under what circumstances and in what manner under Section 54 of the Act, is the Court to presume that the accused committed an offence in respect of possession of any drug, the possession of which he fails to account satisfactorily. The Hon'ble Full Bench answered these questions as under: “....we would answer the question raised by stating that no Crl.Appeal No.817-DB of 2004 6 presumption under Sections 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement under Section 313 Cr.P.C., by being called upon to explain the circumstances which give rise to the presumptions. Thereafter, the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of “possession” which needs to be resolved...” That apart, learned counsel also submitted that there was no evidence on record to show that CFSL Form No.29 was filled up on the spot by the Investigating Officer at the time of taking the possession of contraband. Learned counsel also cited the judgment of this Court reported in 2005(2) RCR(Crl) 250 (Bhola Singh vs. State of Punjab), wherein, it has been held that Form No.29 was supposed to be deposited alongwith the samples and the case property in the malkhana. Relevant portion on reproduction read as: “........where the seals remained with the police after use and the CFSL form was neither prepared on the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case. Filing of such form at the spot is a very valuable safeguard to ensure that the seal sample is not tampered with till its analysis by the F.S.L. The CFSL form should not only be prepared and sealed by the officer making seizure at the place where the case property is seized from the accused, it should also be sealed by the S.H.O., to whom the sample and the case property is handed over and the Crl.Appeal No.817-DB of 2004 7 same should accompany the sample to Chemical Examiner. The idea behind taking such a precaution is to complete the material link in the prosecution evidence by eliminating the possibility of the sample being tampered with. The prosecution has miserably failed to prove the link evidence....” Besides, learned counsel submitted that the case property was not produced before learned Judicial Magistrate when the accused-appellant was produced to seek remand. Learned counsel placed reliance on the judgment reported in 1997(3) RCR 87 (Sukhwinder Singh vs. State of Punjab). In that case, the case property was not produced before the learned Magistrate at the time when accused was produced before him to seek remand. Thus, the accused was acquitted of the charge inter-alia on this ground also. Learned counsel further argued that as Sub-Inspector Mehar Singh (PW7) himself is the complainant, so, he could not have investigated this case and in support of his submission, he referred to the judgment of Hon'ble the Apex Court reported in AIR 1995 SC 2339 (Megha Singh vs. State of Haryana), wherein the Hon'ble Court has observed as: “.....we have also noted another disturbing feature in this case. PW-3, Siri Chand, Head Constable arrested the accused and on search being conducted by him, a pistol and the cartridges were recovered from the accused. It was on his complaint, a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the Crl.Appeal No.817-DB of 2004 8 complainant in the case, but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to say that there may not be any occasion to suspect fair and impartial investigation...” In addition to the aforesaid arguments, this is also a contention of learned counsel that the seal of Investigating Officer was handed over to another police officer i.e. Assistant Sub-Inspector Balraj Singh (PW4) instead of giving it to a public witness Jagmender (PW5). According to learned counsel, this goes to establish that public witness Jagmender was not associated with the investigation at the time of search and seizure of contraband and had he been there, the seal of Investigating Officer would have been given to him. Moreover, witness Jagmender (PW5) has not supported the prosecution case and, thus, he was declared hostile. Learned counsel took us through evidence to point out contradictions between the statements of Shri Anil Sharma, City Magistrate (PW3) on the one hand and two police officers, namely Assistant Sub- Inspector Balraj Singh (PW4) and Sub-Inspector Mehar Singh (PW7) on the other. Regarding the aforesaid contradictions between the statements, they related to the form and shape of the contraband. Shri Anil Sharma, City Magistrate (PW3) stated that the articles recovered from the bag were round in shape, whereas, ASI Balraj Singh (PW4) and SI Mehar Singh (PW7) have stated that the articles, so recovered from the accused-appellant, were sticks. That apart, learned counsel also submitted that there are discrepancies regarding the retention of seal by City Magistrate. This is his submission that the sample in question along with seal was not sent to Crl.Appeal No.817-DB of 2004 9 Forensic Science Laboratory and for that he has pointed out the statements of Head Constable Rajbir Singh (PW1) and Constable Krishan Chand (PW2) with reference to his affidavit (Ex.PB). In Ex.PB, this is stated that only the parcel of charas was deposited in Forensic Science Laboratory and there is no mention about the deposit of any seal alongwith that. That apart, this is also submitted that only police officers were produced in the witness box in support of prosecution case and in the circumstances pointed out herein-above, this would not be safe to place reliance on their testimonies for recording conviction of the accused-appellant. On the other hand, learned counsel for the State pointed out from the FSL report (Ex.PC) that the sample seals were sent to the Laboratory and the seals on the parcels were found to be tallying. Learned Additional Advocate General also submitted that though, there was a delay in dispatch of the sample to the Forensic Science Laboratory, but since the search had been conducted in the presence of an Executive Magistrate and there is no allegation that the delay in sending the sample has caused any prejudice to the right of accused-appellant, this delay would not erode the credibility of the prosecution case. Learned Additional Advocate General argued that though the sample was received on 26.3.2003 in the Laboratory, but since the position has been explained on affidavit vide Ex.PB by Constable Krishan Chand (PW2), delay in dispatch of sample could be ignored. As regards failure to put a specific question in respect of conscious possession to the accused, this is submitted on behalf of the State that since the accused-appellant alone was carrying the bag, he was under obligation to explain the possession of contraband item. Crl.Appeal No.817-DB of 2004 10 We have carefully considered the rival submissions and perused the record. Regarding the first submission of learned counsel for appellant that there was a delay of 10 days in sending sample to FSL, his submission is supported by a judgment of this Court in Boota Singh's case (supra), rendered by one of us sitting single (Uma Nath Singh, J.). We do not find any explanation in testimony of SI Mehar Singh (PW7). Similarly in testimony of Moharrir Head Constable Rajbir Singh (PW1), there is no explanation for delay either. He has only stated that on 16.3.2003, he was posted as Moharrir Head Constable at Police Station Sadar, Sonepat. He received a ruqa (Ex.PA) and made an endorsement on that vide Ex.PA/1. He recorded a formal FIR (Ex.PA/2) and the case property was deposited with him the same day by SI Mehar Singh (PW7). On 26.3.2003, after a gap of 10 days, he handed over the sealed parcel of sample to Constable Krishan Chand (PW2) for delivery in FSL, Madhuban, vide RC No.79 dated 26.3.2003. Sample was delivered and a receipt in respect thereof was deposited with him, the same day. Constable Krishan Chand (PW2), who carried sample to FSL, Madhuban, also tendered his evidence on affidavit (Ex.PB). Vide FSL report (Ex.PC) dated 2.5.2003, seals were found to be intact and tallied with specimen seal. Parcel was sealed with two seals of `MS' and `BS'. But, there is no explanation for delay in dispatch of sample to FSL. This would create a doubt about credibility of prosecution case when secret information received by the I.O. (PW7) was not reduced into writing. Independent witness Jagmender turned hostile and did not support Crl.Appeal No.817-DB of 2004 11 the prosecution case. Besides, this is also not clear that the seal used by SI Mehar Singh (PW7) in sealing the sample and residue quantity of contraband was given to ASI Balraj Singh was later not returned to him. Moreover, in his testimony, SI Mehar Singh (PW7) stated that he handed over his seal to ASI Balraj Singh, who returned it after 4-5 days whereas Balraj Singh made a categorical statement that seal was never handed over to him and it was given to HC Ram Parshad. But, HC Ram Parshad has not been examined. Accepting for sake of argument the statement of SI Mehar Singh (PW7) that he handed over his seal to ASI Balraj Singh (PW4), this is his own admission in cross-examination that seal was returned to him by ASI Balraj Singh after 4-5 days. If seal was returned after 4-5 days and the case property was sent to FSL for examination after 10 days, it creates a doubt about the safe custody of case property. Moreover, the case property was also not produced with the accused before the learned Judicial Magistrate for verification. As regards the question of conscious possession, a Full Bench of this Court in Kashmir Singh's case (supra) has held that a presumption under Sections 35 and 54 of the Act would be available to the prosecution only when accused is asked a specific question during his examination under Section 313 Cr.P.C., by the Court and he is given opportunity to explain the position. We do not find any such question put to accused by the Court. Regarding Form No.29, we do not find any assertion in prosecution case that this form was filled up on spot. A learned Single Judge of this Court in Bhola Singh's case (supra) and also one of us (Uma Nath Singh, J.) in case reported in 2005 (4) RCR (Crl.) 681 (Gurcharan Crl.Appeal No.817-DB of 2004 12 Singh versus State of Punjab), have taken the view that in order to safeguard the interest of accused, such form should be filled up on spot itself. During the course of hearing, a departmental circular of Delhi police was also brought to our notice wherein this is mentioned for use of all police officers that CFSL/FSL/CRCL forms be filled up immediately on spot. Though search and seizure have been shown to have been carried before a City Magistrate, Anil Sharma (PW3) but alongwith accused-appellant, the case property was not produced before learned Illaqa Judicial Magistrate. We could have believed in the search and seizure carried out in the presence of an Executive Magistrate but as there is apparent conflict between the testimonies of City Magistrate, Anil Sharma (PW3), and two police officers namely ASI Balraj Singh (PW3) and IO/SI Mehar Singh (PW7) regarding the shape of contraband item, we have made a cautious scrutiny of the testimony of Anil Sharma (PW3). Thus, non-production of case property alongwith accused-appellant before learned Illaqa Magistrate also creates a doubt about the bonafide manner of search and seizure. This is a settled principle of law that if a police officer himself is complainant, he should not investigate the case. At one place in his cross-examination IO/SI Mehar Singh (PW7) has stated that he telephonically called a second Investigating Officer but nothing has come further in his testimony or the testimony of other police official to clarify that any second Investigating Officer had ever joined the investigation. This principle is highlighted in the judgment of Hon'ble the Apex Court in Megha Singh's case (supra). Though FSL report indicated that the seal affixed on sample tallied with sample seal but again nothing is mentioned about the shape of contraband item to resolve the Crl.Appeal No.817-DB of 2004 13 contradictory testimonies of City Magistrate, Anil Sharma (PW3) on one hand and ASI Balraj Singh (PW4) and IO/SI Mehar Singh (PW7) on the other. As mentioned hereinabove, Jagmender, a public witness, turned hostile, and did not support the prosecution case. In view of the aforesaid apparent contradictions and infirmities, we accept this Crl.Appeal No.817-DB of 2004 and set aside the impugned judgment dated 16.8.2004 passed in Sessions Case No.22 of 2003. ( UMA NATH SINGH ) JUDGE ( A.N.JINDAL ) 14.11.2008 JUDGE