Crl. Appeal No.847-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.847-SB of 1997 Date of Decision : October 20, 2008 Rajbir Singh S/o Hukam Singh, ...Appellant R/o Village Manpura, District Sahranpur (UP) 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. R.S.Takoria, 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 dated 9.10.1997, and the order of sentence dated 10.10.1997, rendered by the Court of Addl. Sessions Judge, Karnal, 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 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 13 Kgs. 500 Crl. Appeal No.847-SB of 1997 2 grams, poppy-husk, (now falling within the ambit of non-commercial quantity), without any permit or licence. 2. The facts, in brief, are that on 18.2.1994, Hari Ram, SI, (since deceased), alongwith other police officials, was present at bus stand, Karnal, when Jai Singh, ASI, met him. The accused was present in booth No.14 of the bus stand, having a raxin bag, in his hand. On seeing the police party, he hurriedly proceeded towards the office of General Manager, but he was apprehended, on suspicion. The enquiry was made by Hari Ram, SI, as to what he was carrying in the bag. The accused informed him, that he was carrying poppy-husk, in he bag. Search of the bag, was conducted, in accordance with the provisions of law, in the presence of Rajbir Singh Deswal, Addl. SP, who was called to the spot, by sending a message, as a result whereof, 13 kgs. 500 grams poppy- husk, was recovered. A sample of 500 grams was taken out therefrom, and the remaining poppy-husk, was kept in the same bag. The sample, 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 Om Parkash, Crl. Appeal No.847-SB of 1997 3 ASI (PW-1), Ram Karan, HC (PW-2), Om Parkash, Inspector (PW-3), Rajbir Singh Deswal, SP (PW-4), at the relevant time Addl. S.P., and Jai Dev Singh, ASI (PW-5). Thereafter, the 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. He, 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 appellant. 8. The appeal was decided by this Court, on merits on 8.7.1998, on the sole ground that the provisions of Section 50 of the Act, though mandatory, in nature, were not complied with, and, as such, the trial, conviction, and sentence, stood vitiated. 9. Feeling aggrieved, the appellant preferred Crl. Appeal No.1187 of 1999, in the Apex Court, which was decided on 14.9.2005, accepting the appeal, and setting aside the judgment dated 8.7.1998, rendered by this Court. The case was remanded back, to this Court, by the Apex Court, to decide the same afresh, in accordance with the provisions of law, after the appreciation of evidence, on record. 10. I have heard the learned Counsel for the parties, and have gone Crl. Appeal No.847-SB of 1997 4 through the evidence and record, of the case, carefully. 11. The Counsel for the appellant, at the very outset, submitted that no independent witness was joined by the Investigating Officer, despite availability, as the alleged recovery was effected, at the public place. He further submitted that even no effort was made, to join, an independent witness, by the Investigating Officer. 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. No doubt, Hari Ram, SI, the Investigating Officer, died during the trial of the case, and could not be examined. However, Jai Dev, ASI (PW-5), who was accompanying him, at the time of alleged search, and seizure, during the course of his cross-examination, stated that there were stalls at the bus stand, and at the near-by place. He further stated that the passengers were present, in a large number, at the bus stand. He further stated that the Sub Inspector, tried to join an independent witness, but none was ready. He further stated that no action was taken against the persons, from the public, who refused to join the search and seizure. He further stated that, he did not know, as to whether any entry was made in the DDR, or not, in this respect. The explanation furnished by Jai Dev, ASI (PW-5), that an attempt was made by the Investigating Officer, to join an independent witness, appears to be totally false. Admittedly a number of public witnesses, were present, at the spot. Had any effort been made, to join an independent witness, and had he refused to join the search, and seizure, the Investigating Officer would have certainly taken action against him. Not only this, he would have also certainly recorded this factum, either in the case diary, or in the documents, which were Crl. Appeal No.847-SB of 1997 5 prepared at the spot. This factum was not recorded by the Investigating Officer, either in the case diary, or in any of the documents prepared at the spot. This clearly belies the explanation furnished by Jai Devi, ASI. This clearly goes to show that, in fact, no effort was made to join an independent witness, despite availability, but the explanation aforesaid, was furnished by Jai Dev, ASI, just with a view to cover up the lapse, of the Investigating Officer. Had no independent witness been available, the matter would have been different. In this case, independent witnesses, despite availability, were not intentionally and deliberately joined by the Investigating Officer, nor an attempt was made to join them. Since, the 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, 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 Crl. Appeal No.847-SB of 1997 6 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 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 Crl. Appeal No.847-SB of 1997 7 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. 12. It was next submitted by the Counsel for the appellant, that there was a delay of 5 days, in sending the sample parcel, to the office of the Forensic Science Laboratory, without any explanation, and, as such, 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 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. As stated above, Hari Ram, SI, the Investigating Officer, died during the pendency of the trial, Crl. Appeal No.847-SB of 1997 8 and could not be examined. Jai Dev, ASI, (PW-5), did not state even a single word, as to in which state the property was produced before Om Parkash, Inspector (PW-3). He did not state that the seals on the property, were intact, when the same was produced before Om Parkash, Inspector. Om Parkash, Inspector (PW-3), also did not state, as to whether the seals, on the case property, and the sample parcel, were intact, when the same were produced before him. There is no evidence, on the record, to prove that with whom the case property was deposited, either by the SHO, or by the Investigating Officer, and, if so, in which condition, the same was deposited. 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, Crl. Appeal No.847-SB of 1997 9 the seal remained with the police official, and 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. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 5 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. 13. Even the sample impression of the seals, was not sent to the office of the Forensic Science Laboratory, and, as such, the said Laboratory, was deprived of comparing the seals, on the sample parcel, with the seals, which were affixed, at the time of alleged recovery. Ex.PX, is the affidavit of Atma Ram, Constable, who allegedly took the sample parcel, to the office of the Forensic Science Laboratory. In Para No.3 of his affidavit, it was stated by him, that on 22.2.1994, the MHC, entrusted to him, one sample parcel, sealed with the seals, bearing impressions 'HR' and 'OP', for deposit in the office of the Forensic Science Laboratory. He did not state that he was also handed over the sample impression of the seals, prepared. He also did not state that he deposited the sample impression of the seals, in the Laboratory. Thus, it becomes clear that sample impression of the seals, was never deposited in the Laboratory. It is not known, as to how in Ex.PY, the report of the Forensic Science Laboratory, it was recorded that the seals tallied with Crl. Appeal No.847-SB of 1997 10 the specimen seals. 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. 14. The statement of Om Parkash, Inspector (PW-3), before whom the case property, and the sample parcel, were allegedly produced, was not recorded by the Investigating Officer. This fact was admitted by Om Parkash, Inspector (PW-3), during the course of his cross-examination. Under these circumstances, it could not be said, as to whether, the case property, and the sample parcel, were produced before him, or not. 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. Non-recording of the statement of Om Parkash, Inspector, by the Investigating Officer, clearly proved that the case property had not been produced before the SHO. Crl. Appeal No.847-SB of 1997 11 The case of the prosecution, therefore, became highly doubtful, on account of this reason. 15. No other point was urged, by the Counsel for the parties. 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. 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. 17. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 9.10.1997, and the order of sentence dated 10.10.1997, 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, at once, if not required in any other case. The Chief Judicial Magistrate, Karnal, shall comply with the judgment, in accordance with the provisions of law, and send compliance report, within 2 months, from the date of receipt of certified copy of the judgment. October 20, 2008 (SHAM SUNDER) Vimal JUDGE