Crl. Appeal No.439-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.439-SB of 1997 Date of Decision : February 4, 2008 Major Singh S/o Chhotu Singh, ....Appellant R/o Raipur. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. C.M.Munjal, Advocate, for the appellant. Mr. O.P.Dabla, AAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 26.4.1997, rendered by the Court of Addl. Sessions Judge, Mansa, vide which it convicted the accused/appellant Major Singh, 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. 2. The facts, in brief are that on 8.12.1994, Mohinder Singh, ASI, alongwith Baldev Singh, HC, Prem Singh, HC, and other police officials, was going on official vehicle, from village Mussa towards Autawali, on link road, and when the policy party was 1-½ k.m. ahead of village Mussa, the accused and an other person, were seen coming from the opposite side, having plastic bags on their heads, who tried to slip, on seeing the police party. On suspicion, they were apprehended. Major Singh, accused, was apprehended by Mohinder Singh, ASI, who disclosed his identity. The search of the bag, being carried by the accused, was conducted, by Mohinder Singh, ASI, in the presence of DSP, Crl. Appeal No.439-SB of 1997 2 who was called to the spot, through wireless message. The bag was found, containing 5 Kgs. poppy-husk. A sample of 100 grams, was taken out of the same. The sample, and the remaining poppy-husk, were converted into two parcels, duly sealed, with the seal bearing impressions 'MS', and taken into possession, vide memo Ex.PS. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. The accused was arrested. Special report was sent to S.P.(H), Mansa. On reaching the Police Station, the case property alongwith the accused was produced before Hardevinder Singh, SHO. He produced the case property and the sample parcel, before the Illaqa Magistrate. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, 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 Mohinder Singh, ASI, (PW-1), the Investigating Officer, Baldev Singh, HC, (PW-2), a witness to the recovery, and Hardevinder Singh, SI, (PW-3). The Public Prosecutor for the State, tendered into evidence, affidavit Ex.PH of Raghbir Singh, Constable, and Ex.PJ/2, report of the Chemical Examiner. Thereafter, he 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 examined Harbilias, Assistant C.R.S. SSP Office, Mansa, DW-1, Balwinder Singh, Constable, DW-2, and Jangir Singh, DW-3. Thereafter, he closed his defence evidence. 6. After hearing the Public Prosecutor for the State, the Counsel for Crl. Appeal No.439-SB of 1997 3 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 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, contended that the link evidence, in the instant case, was incomplete in as much as Raghbir Singh, Constable, who allegedly took the sample to the Office of the Chemical Examiner, was never tendered for cross-examination by the accused. It was further contended by him that only his affidavit Ex.PH, was tendered by the Addl. PP for the State. This affidavit, without offering an opportunity to the accused, to cross-examine Raghbir Singh, Constable, could not be taken into consideration, as legally admissible evidence. In Gian Singh Vs. State of Punjab 2006(2) RCR (Criminal) 611, affidavits of police Constables were tendered into evidence, but they were not produced, in the Court for cross- examination. In these circumstances, it was held that the link evidence was missing, which was a material infirmity, and, ultimately, the conviction was set aside. In Jai Singh Vs. State of Haryana, 1995 (3) RCR 627, the affidavits of the Police Constable and the HC were tendered into evidence, but both them, were not kept present, in the Court, for cross-examination. In these circumstances, it was held that the affidavits could not be read into evidence and, as such, the link evidence was incomplete, and the case of the prosecution was bound to fail. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. Under these circumstances, the affidavit, without offering the deponent thereof, for cross-examination to the accused, could not be read into evidence. As such, the link evidence being Crl. Appeal No.439-SB of 1997 4 incomplete, the appellant/accused was liable to be acquitted. The trial Court, in my opinion, was wrong in holding that the link evidence was complete. 10. It was next contended by the Counsel for the appellant, that despite the fact that the alleged recovery was effected at a thoroughfare, no independent witness was joined by the Investigating Officer, at the time of search, 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 cross-examination Mohinder Singh, ASI, (PW-1), he admitted that the place of recovery was a thoroughfare. He further stated that it was a link road. There is nothing, in the ruqa, which was sent, first in point of time, that any effort was made to join an independent witness. Even, Mohinder Singh, ASI, did not state a single word, in his statement, that he made efforts to join an independent witness, at the time of the alleged recovery. Since, the alleged recovery was effected from a thoroughfare, a number of independent witnesses, could be available. In case, they were not available, they could be summoned from the village, to witness thesearch and seizure. Had any explanation been furnished, by the Investigating Officer, as to what, prevented him from joining an independent witness, the matter would have been considered, in the light thereof. However, in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. It is, no doubt, true that the evidence of the official witnesses cannot be distrusted and disbelieved, merely on account of the reason that no independent witness was joined and examined. However, when in a particular case, it is proved that the alleged recovery was effected, from a thoroughfare, and the independent witnesses were available, but no effort was made to join them, certainly a doubt is cast on the prosecution story. Had any independent witness been joined, in the peculiar facts and circumstances of this case, his evidence would have certainly lent genuineness to the case of the prosecution, Crl. Appeal No.439-SB of 1997 5 which is solely based on the evidence of the official witnesses. The prosecution case became doubtful on account of this reason. 11. The seal, after use, was kept by Mohinder Singh, ASI. There is nothing in his evidence that he handedover the seal, to any other police official, after affixing the same, on the sample parcel, and the case property. Since the seal remained with Mohinder Singh, ASI, there was every possibility of tampering with the sample parcel, and the case property, by him. It was the duty of the prosecution to prove that none tampered with the sample, till it reached the office of the Chemical Eaxminer. In the instant case, the prosecution failed to do so. The trial Court failed to take into consideration, this important fact, as a result whereof, the miscarriage of justice occasioned. 12. It was next submitted by the Counsel for the appellant, that the alleged recovery was effected from the accused on 8.12.1994, but the sample was sent to the office of the Chemical Examiner on 15.12.1994 i.e. after a delay of about 7 days. He further contended that, no explanation, whatsoever, was furnished by the prosecution witnesses, with regard to the delay, in sending the sample to the office of the Chemical Examiner, 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 evident from Ex.PJ/2, the report of the Chemical Examiner that the sample in his office was received on 15.12.1994. The alleged recovery effected, in this case, was very minor. As stated above, since the seal, which was used by the Investigating Officer, after allegedly sealing the sample parcel, and the remaining poppy-husk, remained with him, as also the seal of the S.H.O., which he affixed on the case property, remained with him, they could change the contents of the parcels, and thus, the possibility of tampering with the same, during the period of 7 days, could not be ruled out. In Gian Singh Vs. State of Punjab 2006(2) RCR (Criminal) 611, there was a delay of 14 days, in sending Crl. Appeal No.439-SB of 1997 6 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. On account of this infirmity, the appellant is liable to be acquitted. 13. The trial Court was wrong, in not taking into consideration, the factum that on account of non-production of Raghbir Singh, Constable, for cross-examination by the accused, his (accused) valuable and indefeasible right was defeated; that non-joining of an independent witness, despite availability, cast a cloud of doubt on the genuineness of the case of prosecution; that delay in sending the sample to the office of the Chemical Examiner, was fatal to the prosecution case; and since, the seals remained with the Investigating officer and the S.H.O. concerned, until the sample, reached the office of the Chemical Examiner, after a period of 7 days of the alleged recovery, the possibility of tampering with the contents of the parcels, could not be ruled out. Had the trial Court taken into consideration these factors, the decision would have been otherwise. The judgment of conviction and the order of sentence, rendered by the Court below are, thus, not based on the correct appreciation of evidence, and law, on the point. The same warrant interference, and are liable to be set aside. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 26.4.1997, are set aside. The appellant shall stand acquitted of the charge framed again him. He is discharged of the bail bonds. February 4, 2008 (SHAM SUNDER) Vimal JUDGE