IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Crl. Appeal No.250-SB of 1999 Date of decision : 22-04-2008 Mahender Singh son of Gurdial Singh r/o Village Manjheri, Police Station Cheeka, District Kaithal. .............Appellant State of Haryana ..............Respondent CORAM : HON'BLE MR. JUSTICE SHAM SUNDER Present : Mr. K.S. Dhaliwal, Advocate for the appellant. Mr. Ranbir Singh Arya, A.A.G., Haryana for the respondent. Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 23.02.1999, rendered by the Court of Additional Sessions Judge, Kaithal, vide which it convicted the accused/appellant Mahender Singh and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1,00,000/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year, for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as `the Act’ only) for having been found in possession of 18 kilograms and 250 grams of poppy husk, now falling within the ambit of non-commercial quantity. Crl. Appeal No.250-SB of 1999 -2- 2. The facts, in brief, are that on 04-09-1996, Sub Inspector Ashok Kumar, Station House Officer, Police Station Rajound, along with other police officials, was present on Seroha-Pundri Road, and proceeding towards village Seroha, in connection with patrolling and excise checking. UGC Om Pal met the Police Party, near village Faribad, and he was also joined. Thereafter, when the Police Party reached near Kukarkanda turning, PW Sukhchain Singh met, who was joined. In the meanwhile, Mahender Singh, accused, was seen coming, from the side of village Kukarkanda, carrying a plastic bag, on the pillion of his scooter. On seeing the Police Party, he stopped the Scooter, at some distance. He was apprehended by the Police Party, on suspicion. Search of the bag, being carried by the accused, was conducted, in accordance with the provisions of law, which resulted into recovery of 18 kilograms and 250 grams of poppy husk. A sample of 250 grams, was taken out, and the remaining poppy husk, was put into the same bag. The sample and the bag were converted into parcels, duly sealed and thereafter taken into possession vide memo Ex.PD, attested by the witnesses. Ruqa Ex.PH was sent to the Police Station, on the basis whereof, FIR Ex.PH/1 was recorded. The accused was arrested. 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 judicial trial. Crl. Appeal No.250-SB of 1999 -3- 4. The prosecution, in support of its case, examined S.K Nagpal, Senior Scientific Officer, PW-1, Ranbir Singh, Head Constable, PW-2, Des Raj, Constable, PW-3, Banarsi Singh, Sub Inspector, PW-4, Hazari Singh, D.S.P., PW-5, Karan Singh, Head Constable, PW-6, and Ashok Kumar, Sub Inspector, PW-7. Thereafter, the Additional 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, produced no 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, 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 though Sukhchain Singh, the independent witness was joined, by the Investigating Officer, at the time of effecting the alleged recovery, from the accused, yet, he was not examined, as a result whereof, a cloud of doubt was cast, on the prosecution story. The submission of the Counsel for the appellant, appears to be correct. Sukhchain Singh, the independent witness was given up, as won over, by the Public Prosecutor for the State, Crl. Appeal No.250-SB of 1999 -4- vide statement dated 11.11.1998. The Public Prosecutor for the State did not state, in his statement, as to on the basis of which information and material, he arrived at the conclusion, that Sukhchain Singh, prosecution witness had been won over by the accused. No doubt, the Public Prosecutor for the State, could give up an independent witness, if it comes to the conclusion, on the basis of some reliable information, and sound material that he had been won over by the accused, and, in case, he was examined, he would damage the case of the prosecution. However, such discretion, by the Public Prosecutor for the State, in giving up an independent witness, as won over, must be exercised on the basis of sound judicial principles and not arbitrarily and capriciously. Since, there was no material, on the record, which could persuade the Public Prosecutor, for the State, to give up Sukhchain Singh, independent witness as won over, it could be said that the discretion exercised by him, in giving up such a witness, was arbitrary and capricious. In these circumstances, it was required of the Public Prosecutor, for the State, to examine Sukhchain Singh, independent witness, and had he not supported the case of the prosecution, he could seek permission from the Court, to put the witness such questions, as are put in the course of cross examination. Even if, he had not supported the case of the prosecution, during the course of such cross-examination, conducted by the Public Prosecutor for the State, it would have been said that certainly, the witness had been won over by the accused, and non-supporting of the case of the prosecution by him, would not have been taken, as a circumstance, for disbelieving the other evidence of the prosecution. Since, the case of the prosecution is solely based, on the evidence of the official witnesses, examination of Sukhchain Singh, an independent witness, especially when Crl. Appeal No.250-SB of 1999 -5- the alleged recovery is not heavy and now falls within the ambit of non- commercial quantity would have gone a long way to lend credibility, to the case of the prosecution. It is, no doubt, true that the evidence of the official witnesses cannot be dis-believed and dis-trusted, merely, on account of non examination of an independent witness, if joined, yet the Court is put on guard to scrutinize the same carefully and cautiously. The evidence of the official witness, in the instant case, has been subjected to in-depth scrutiny, by this Court, and it is found that the same is not reliable. In Rajesh Jagdamba Avasthi Vs. State of Goa 2005(1) RCR 406 (S.C.) and State of Punjab Vs. Nachattar Singh @ Bania 2007(3) RCR (Criminal) 1040 (Division Bench) (Punjab and Haryana), independent witnesses were joined, but not examined. In these circumstances, the case of the prosecution was held to be doubtful. The principle of law, laid down, in the aforesaid cases, is applicable to the facts of the instant case. In such circumstances, non examination of Sukhchain Singh, independent witness, has caused a doubt, on the prosecution case. 10. It was next submitted by Counsel for the appellant, that the alleged recovery was effected on 04-09-1996, whereas, the sample was sent to the Forensic Science Laboratory on 13-09-1996, and, the seal after use, was handed over by the Investigating Officer to a Junior Official. He further contended that, under these circumstances, the possibility of tampering with the sample, 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 if the other evidence, produced by the prosecution, to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the sample to the Office of Chemical Examiner, Crl. Appeal No.250-SB of 1999 -6- pales into insignificance. If, on the other hand, the other evidence produced, in this regard, is found to be un-reliable, then certainly the delay assumes importance. In the instant case, the other evidence, produced by the prosecution, to prove the completion of link evidence, besides being deficient, is neither reliable, nor creditworthy. In these circumstances, the un-explained delay, referred to above, in sending the sample to the laboratory, certainly proved fatal to the case of the prosecution. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Crl.) 58 S.C. The contraband was kept in the Malkhana. The Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence produced, was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Examiner. In State of Punjab Vs. Jaswant Singh 2000(3) RCR(Criminal) 54 (Division Bench) (Punjab and Haryana), there was delay of 21 days in sending the sample to the Chemical Examiner and seal used for sealing remained with the police official, during the period. It was held that this must prove fatal to the case of the prosecution. 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. On account of this infirmity, the case of the prosecution became doubtful. 11. Affidavit (exhibit PC) of Des Raj, Constable does not speak of Crl. Appeal No.250-SB of 1999 -7- the factum, that he had deposited the sample impression of the seal, along with the sample parcel, in the Office of the Forensic Science Laboratory. There is nothing, in the report of the Forensic Science Laboratory, that the specimen impression of the seal was received by it. In State of Rajastan Vs. Gurmail Singh’s case (supra), the sample impression of the seal was not sent to the Office of the Chemical Examiner. It was, thus, held that there was no evidence to prove satisfactorily, that the seals affixed on the sample bottles, were the same, which were immediately affixed after seizure of the contraband. Ultimately, the accused was acquitted by the Apex Court. In State of Rajasthan Vs. Daulat Ram 1980 SCC (Crl.) 683, it was held that the prosecution is required to prove beyond a reasonable doubt, all the links in the evidence, starting from the seizure, until the deposit of the sample parcel, in the office of the Chemical Examiner. In that case, the parcel changed many hands, before it reached the office of the Chemical Examiner, and the prosecution miserably failed to prove the link evidence. In these circumstances, it was held by the Apex Court, in the aforesaid case, that the possibility of tampering with the parcel, until it reached the office of the Chemical Examiner, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of this case. In the instant case also, the possibility of tampering with the sample, could not be ruled out, on account of this reason, the benefit of doubt whereof, must go the appellant- accused. The trial Court, however, failed to take into consideration this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 12. It was next contended by the Counsel for the appellant that Crl. Appeal No.250-SB of 1999 -8- there was a violation of the Provisions of Section 55 of the Act, as the case property and the sample were not produced before the Magistrate. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ashok Kumar, Sub Inspector, PW-7, did not state in his statement, even a single word, that the case property and the sample were produced before the Magistrate. Section 55 of the Act lays down that an Officer Incharge of 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 sample 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.250-SB of 1999 -9- 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 violate 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, the Investigating Officer intentionally and deliberately breached the provisions of Section 55. He could not say that since the provisions of Section 55 are 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 provisions, 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 aspect of the matter, as a result whereof miscarriage of justice occasioned. Crl. Appeal No.250-SB of 1999 -10- 13. It was next contended by the Counsel for the appellant, that the provisions of Section 57, relating to the sending of full report, with regard the search and seizure, to the Superior Officer, immediately after the search and seizure, by the Investigating Officer, were also violated with impunity in the instant case. No doubt, the provisions of Section 57 of the Act are directory, in nature. However, the Investigating Officer, cannot be given a licence, to violate the same with impunity. Once, a safeguard is provided, in the Act, it is required to be adopted, at the time of search and seizure. It is the bounden duty of the person, charged with such a responsibility, to observe the same more, in compliance, than in breach. In the instant case, no explanation was furnished, by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of the Act. Had any explanation been furnished, in this regard, the matter would have been considered, in the light thereof. The avowed object of this provision, is that the officer Superior in rank, must come to know of the actions of his junior officials, in the matter of search and seizure, under the Act, to find out, whether the same were genuine, and, in accordance with the provisions of law, as also to avoid any criticism, at a later stage, against the highhandedness of the Police Officer. When the Legislature incorporates a specific provision, in the Act, with a view to safeguard the interests of the accused, at the time of search and seizure, then those safeguards cannot be ignored, merely by saying that the same being directory, were not required to be observed. Similar principle of law was laid down in Gurbax Singh's case (supra). In this view of the matter, not only that the prejudice occasioned to the accused, but a doubt was also cast, on the prosecution case. 14. In view of the above discussion, it is held that the judgment of Crl. Appeal No.250-SB of 1999 -11- the trial Court is not based on the correct appreciation of evidence, and law, on the point. The trial Court also failed to take into consideration the aforesaid infirmities and lacunae, in the prosecution case, as a result whereof, it fell into an error, in recording conviction and awarding sentence. The judgment of the trial Court, warrants interference, and is liable to be set aside. 15. For the reasons recorded hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 23-02-1999, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of the bail bonds. If he is in custody, he shall be set at liberty, at once, if not required, in any other case. (SHAM SUNDER) JUDGE April 22,2008 gurpreet