Crl. Appeal No.747-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.747-SB of 2004 Date of Decision : February 28, 2008 Niranjan @ Niranjan Singh S/o Kartar Singh ....Appellant R/o village Shergarh, Distt. Sirsa. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. D.N.Ganeriwala, Advocate, for the appellant. Mr. Kartar Singh, AAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 24.2.2004 and the order of sentence dated 26.2.2004, rendered by the Court of Addl. Sessions Judge, Sirsa, vide which it convicted the accused/appellant Niranjan @ Niranjan 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 two years. 2. The facts, in brief, are that on 30.8.2002, Jagdish Singh, ASI, alongwith other police officials, was out for patrolling and crime detection duty. When the police party was crossing a street, one person was seen sitting on a couple of gunny bags, in front of the Nohra of Leeladhar Jaat, resident of Shergarh, who, on seeing the police party, started running. He was chased, but he made good his escape. He was identified as Niranjan Singh son of Kartar Singh, Jat Sikh, resident of Shergarh. When the gunny bags, 2 in number, were checked, the same were found containing poppy straw. From each of the Crl. Appeal No.747-SB of 2004 2 bags, two samples of 100 grams, were separated. The residue in one of the gunny bags was found to be 39 kgs. 800 grams, and in the other gunny bag was found to be 17 kgs. 800 grams. The samples and the residue, in the gunny bags, were sealed, with the seal bearing impression 'JS'. Specimen seal impression was prepared. Thereafter, the case property was taken into possession. 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, ultimately, arrested on 28.12.2002. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court of the Addl. Sessions Judge, 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 trial. 4. The prosecution, in support of his case, examined Ami Lal, ASI (PW-1), Piare Lal, HC (PW-2), Jagdish Singh, ASI/Investigating Officer (PW- 3), Ram Avtar, HC (PW-4), Randhir Singh, Constable (PW-5), and Ram Rattan, Inspector (PW-6). 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, stated that he was falsely involved in this case due to political rivalry with Shri Radhey Ram, Sarpanch of the village. In defence, he also examined Leela Dhar, DW-1, and 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, as stated hereinbefore. Crl. Appeal No.747-SB of 2004 3 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 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 according to the prosecution story, the accused was allegedly found sitting on two bags, containing poppy straw, in a street i.e. public place, in front of the house of Leela Dhar, when he made good his escape, though chased, but could not be arrested. The accused was ultimately arrested on 28.12.2002 i.e. after more than 3 ½ months. According to Piare Lal, HC, the public street, in which the gunny bags were lying, a number of public-men were passing. He further stated that the accused was spotted from a distance of 30 paces. No doubt, the prosecution witnesses claimed that they knew the accused earlier, yet no legally admissible material, was placed, on the record, to prove their source of knowledge, in respect of the identity of the accused. Piare Lal, HC, during the course of cross-examination stated that the accused was never cited as a witness earlier in any case by him. He further stated that he never arrested the accused, in any criminal case. He could not tell, as to how many brothers and uncles, the accused was having. He further stated that the accused is neither Namberdar, nor Sarpanch, nor Panch nor respectable inhabitant of the village. Jagdish Singh, ASI (PW-3), during the course of cross-examination also stated that he had never arrested the accused, in any criminal case, nor he cited the accused, as a witness, in any criminal case. He further stated that the accused had got two more brothers, but he could not tell their names. He further stated that he did not know about the family of the accused. He further stated that the accused was neither the Sarpanch, nor Namberdar, nor any Panch, nor inhabitant of the village. He further stated that no identification parade was Crl. Appeal No.747-SB of 2004 4 conducted, during the course of investigation, to pin-point the identity of the accused. The claim of the prosecution witnesses, with regard to the factum, that the accused was earlier known to them, was falsified from the evidence discussed above. Since the accused was not know to the prosecution witnesses earlier, it was not possible for them to identify him, from a distance of 150 ft. that too in a public street, in which admittedly a number of persons were passing. No identification parade, admittedly, was held during the course of investigation to pin-point the identity of the accused. In these circumstances, the plea taken up by the accused and proved through the evidence of Leela Dhar (DW-1), that he was falsely implicated, in the instant case, at the instance of Radhey Sham, Sarpanch, belonging to Indian Lok Dal Party, whereas, he belonged to the Congress Party appears to be correct. With a view to prove its case, beyond a reasonable doubt, it is incumbent upon the prosecution to pin- point the identity of the accused, as perpetrator of crime. In case, the prosecution fails to pin-point the identity of the accused, as perpetrator of crime, its case is bound to dwindle down. It was a fit case, in which the Investigation Officer was required to hold the test identification parade, to pin- point the identity of the accused, as perpetrator of crime, but he failed to do so. In Budhsen and Another Vs. State of U.P., AIR 1970 SC 1321, it was held that facts which establish the identity of an accused person, are relevant under Section 9. As a general rule, the substantive evidence of a witness is a statement made in the Court. The evidence of mere identification of the accused person, at the trial, for the first time, is from its very nature, inherently of a weak character. The evidence, in order to carry conviction, should ordinarily clarify, as to how, and, under what circumstances, he came to pick out the particular accused person, and the details of the part which the accused played, in the crime, in question, with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness Crl. Appeal No.747-SB of 2004 5 of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court, as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation, with the primary object of enabling the witnesses, to identify persons, concerned, in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses, and also to furnish evidence to corroborate their testimony in Court. Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out, are persons, whom they recognize as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162 Cr.P.C. The principle of law, laid down, with regard to test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under :- “Identification parades have been in common use for a very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident but they claim that although they did not know him earlier, they could recall his features in sufficient details and would be able to identify him if and when they Crl. Appeal No.747-SB of 2004 6 happened to see him. The holding of a test identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit, it saves the suspect or the accused form the sudden risk of being identified in the dock by the self same witnesses during the course of the trial. The line up of the suspect in a test identification parade is therefore a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice.” 9-A The principle of law, laid down in the aforesaid authorities, is fully applicable to the facts of the present case. Since, the prosecution failed to pin-point the identity of the accused as perpetrator of crime, it could be safely held that he was falsely implicated, in the present case. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 10. It was next submitted by the Counsel for the appellant, that the accused was not found in conscious possession of the bags, allegedly containing poppy-straw. He further contended that, in the absence of proof of such a fact, by the prosecution, through cogent and convincing evidence, no liability of the accused for the commission of offence under Section 15 of the Act, could not be fastened. The submission of the Counsel for the appellant, in this regard, appears to be correct. It was not that the accused was sitting on the Crl. Appeal No.747-SB of 2004 7 bags containing poppy husk in a tractor trolley, or a truck. It was also not that he had kept the bags containing poppy husk, in his house, or in any enclosed place, where he was residing. It was also not that he had kept the bags containing poppy husk, at a place, of which he was having exclusive knowledge. The accused admittedly did not belong to the village, from where the alleged recovery was effected. The bags were found lying in the public street, where admittedly a number of public-men were passing, at the time, when he (accused), allegedly made good his escape and could not be arrested. In these circumstances, even if, it is assumed, that some person was allegedly found sitting on the gunny bags containing poppy husk, he could not be said to be in conscious possession thereof. A passer-bye, in the public street, might be found sitting on the bags with a view to take rest for some-time, but he could not be attributed any knowledge, with regard to the contents of the same. Since, the identity of the accused, as perpetrator of crime, was not proved, as held above, his possession in respect of the gunny bags, containing poppy husk, could also not be established. Since, his possession, in respect of the gunny bags, containing poppy-husk, was not established, the question that he was found in conscious possession thereof, did not at all arise. Had his possession been proved, in respect of the bags, containing poppy husk, only then the presumption under Sections 35 and 54 of the Act, could operate. The submission of the Counsel for the appellant, to the effect, that the accused was not found in conscious possession of the bags, containing poppy-husk, carries substance, and is accepted. 11. It was next contended by the Counsel for the appellant, that no independent witness, was joined, by the Investigating Officer, at the time of effecting the alleged recovery, though the bags were found lying in a public street. No explanation, whatsoever, has been furnished by the Investigating Officer, as to what prevented him from doing so. The accused allegedly Crl. Appeal No.747-SB of 2004 8 escaped. Any public witness, passing through the street could be joined at the time of, search of the bags. It could not be said that no independent witness was available. Non-joining of an independent witness, especially in the peculiar facts and circumstances of the case, that the identity of the accused was not proved and that his conscious possession was also not established, clearly cast a cloud of doubt, on the prosecution story, the benefit whereof, must go to the accused. 12. The provisions of Section 57 of the Act, were not complied with, in this case. It is, no doubt, true that the provisions of Section 57 of the Act are directory in nature, but that does not mean the same should not be complied with. In view of the peculiar facts and circumstances of the case, when the identity of the accused was not established, nor his conscious possession in respect of the poppy-husk was proved, the Investigating Officer was required to be extra cautious, in complying with even the directory provisions of the Act, so as to ensure that the investigation was fair. Non-compliance with the provisions of Section 57 of the Act, in the peculiar facts and circumstances of the case, also cast a doubt, on the case of the prosecution. 13. According to Investigating Officer, the case property on reaching the Police Station, was produced before Ram Rattan, Insepctor, S.H.O., Police Station Dabwali, who verified the facts of the case and put his own seal bearing 'RR' monogram and directed the Investigating Officer to deposit the case property with MHC, with seals intact. With a view to find out the authenticity of the statement of Jagdish Singh, ASI, the Investigating Officer, as to whether, the case property was produced before the S.H.O. of the Police Station concerned, it was required of the prosecution to prove that his statement was recorded. Had the statement under Section 161 of the S.H.O. been recorded by the Investigating Officer, in regard to the factum, that the case property was produced before him, and he checked the same, it would have been said that the Crl. Appeal No.747-SB of 2004 9 same was actually produced before him. In the instant case, however, no statement under Section 161 of the concerned S.H.O. was found on the record. It means that the case property was never produced before the S.H.O., and as such, the provisions of Section 55 of the Act, though directory, in nature, were not complied with. In view of the peculiar facts and circumstances of the case, non-production of the case property before the S.H.O., cast a doubt on the prosecution story, the benefit, whereof, must go to the accused. 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, and the same are liable to be set aside. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 24.2.2004 and the order of sentence dated 26.2.2004, are set aside. The appellant shall stand acquitted of the charge, framed against him. February 28, 2008 (SHAM SUNDER) Vimal JUDGE