Crl. Appeal No.649-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.649-SB of 2001 Date of Decision : 28.11.2008 Jai Singh S/o Sohla, ...Appellant R/o Umedpura Bhilwara, Rajasthan. 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: None for the appellant. Mr. R.S.Arya, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 7.4.2001, and the order of sentence dated 10.4.2001, rendered by the Judge, Special Court, Karnal, vide which it convicted the accused/appellant, for the offence, punishable under Section 18 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 2½ years, for having been found in possession of 1 Kg. opium, (now falling within the ambit of non-commercial quantity), without any Crl. Appeal No.649-SB of 2001 2 permit or licence. 2. The facts, in brief, are that on 4.5.2000, Jai Singh, SI, Incharge Police Post, Nilokheri, alongwith other police officials, was on patrol duty, near Mata Ka Mandir, Nilokheri, where the accused was seen coming from the side of Mandir, having a bag in his hand, who on seeing the police party, turned back, but was apprehended, on suspicion. On enquiry, he disclosed his identity. Thereafter, the search of the bag, being carried by him, was conducted, in accordance with the provisions of law, in the presence of Ashwani Kumar, Tehsildar-cum-Executive Magistrate, Nilokheri, who was called to the spot, as a result whereof, 1 kg. Opium, was recovered therefrom. A sample of 50 grams was taken out of the same, and the remaining opium, was put into a separate container. The sample, and the container, containing the remaining opium, 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 18 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 Joginder Singh, HC (PW-1), Randhir Singh, Inspector (PW-2), Mahinder Pal, Retd. SI (PW-3), Jain Sahab, Constable (PW-4), Rajinder Kumar, HC (PW-5), Jai Singh, ASI (PW-6), and Ashwani Kumar, Naib Tehsildar Crl. Appeal No.649-SB of 2001 3 (PW-7). 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, examined Kaku @ Ramesh (DW-1), and tender into evidence, original newspapers Dainik Jagran dated 19.5.2000 and 10.5.2000, as Exs. DA and DB, respectively. 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 Counsel for the respondent, and have gone through the evidence and record, of the case, carefully. 9. The alleged recovery, in this case, was effected on 4.5.2000, whereas, the sample was sent to the Forensic Science Laboratory, on 17.5.2000. No explanation, was furnished regarding the delay of 13 days, in sending the sample, to the office of the Forensic Science Laboratory. The possibility of tampering with the same, therefore, could not be ruled out. 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 Crl. Appeal No.649-SB of 2001 4 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 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 Crl. Appeal No.649-SB of 2001 5 authorities, is fully applicable to the facts of the present case. The delay of 13 days, in sending the sample to the office of the Forensic Science Laboratory, and non-strict proof, by the prosecution, that the same was not tampered with, until it was deposited in the Laboratory, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The case of the prosecution, in this view of the matter, became highly doubtful. 10. No independent witness, was joined, by the Investigating Officer, despite availability, and, as such, the case of the prosecution became doubtful. Jai Singh, ASI (PW-6), the Investigating Officer, during the course of his cross-examination, stated that he did not send any police official, to summon any public witness, from the factory, or from the Temple nearby. He further stated that the people were coming and going at the spot, but he had not joined any person, from the public. This clearly goes to show that Jai Singh, ASI, did not make any effort, to join an independent witness, despite availability. 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. Crl. Appeal No.649-SB of 2001 6 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 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.649-SB of 2001 7 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 the alleged search and seizure, the case of the prosecution, became highly doubtful. 11. The statements of Randhir Singh, Inspector (PW-2), Mahinder Pal, Retd. SI (PW-3), Jain Sahab, Constable (PW-4), and Rajinder Kumar, HC(PW-5), material witnesses, under Section 161 Cr.P.C. were not recorded, as a result whereof, the accused was deprived of confronting these witnesses, with their previous statements, to shatter their veracity. 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 Crl. Appeal No.649-SB of 2001 8 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 sample impression of the seals, alongwith the sampel parcel, was not sent to the office of the Forensic Science Laboratory, as a result whereof, it was deprived of comparing the seals, on the sample parcel, with the specimen impression of the seals. Under these circumstances, the possibility of tampering with the sample parcel, until it reached the office of the Forensic Science Laboratory, could not be ruled out. In the affidavits, Ex.PE, of Rajinder Kumar, HC, who was the MHC, at the relevant time, and Ex.PD of Jain Sahab, Constable, who allegedly took the sample parcel, to the office of the Forensic Science Laboratory, there is addition of the words, "alongwith the sample seal 'JS' and 'RS'". At what point of time, these words were added, in these affidavits, has not been explained, by both these witnesses, when they appeared in the Court. In case, these words had been added at the time of scribing the affidavits, they could explain the same, but they failed to do so. Under these circumstances, it could be said that these words were added, in these affidavits, later on, just with a view to cover up the lapse. This clearly goes to show, that the sample impression of the seals, was not sent alongwith the sample parcel. It, therefore, could not be said that the seals, on the sample parcel, were the same, as were affixed, at the time of Crl. Appeal No.649-SB of 2001 9 the alleged recovery. In the absence of such a proof, the link evidence became incomplete, and the case of the prosecution became doubtful. 13. In the instant case, there was violation of the provisions of Section 55 of the Act, as the case property and the sample, were not produced before the Magistrate. Section 55 of the Act, lays down that an Officer Incharge of the Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized, under this Act, within the local area of that Police Station, and which may be delivered to him, and shall allow any officer who may accompany such articles, to the Police Station, or who may be deputed for the purpose, to affix his seal to such articles, or to take samples of, and from them, and all samples, so taken, shall also be sealed with a seal of the Officer-in-charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the samples are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and Crl. Appeal No.649-SB of 2001 10 intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Crl.) 702 (S.C.), it was held that non-compliance of the provisions of Sections 52,55 and 57, which are, no doubt, directory and violation thereof, would not ipso-facto vitiate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, since the Investigating Officer, intentionally and deliberately breached the provisions of Section 55, he could not say that the provisions of Section 55 being directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provision is an indicator towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non- compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt on the prosecution story. The trial Court did not take into consideration, this Crl. Appeal No.649-SB of 2001 11 aspect of the matter, as a result whereof, the case of the prosecution, thus, became doubtful. 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 18 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 dated 7.4.2001, and the order of sentence dated 10.4.2001, 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 a certified copy of the same. November 28, 2008 (SHAM SUNDER) Vimal JUDGE