Criminal Appeal No. 1093-SB of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1093-SB of 2008 Date of Decision: 31.10.2008 Partap Singh, s/o Mukhtiar Singh, r/o Village Salpani Kalan, P.S. Jhansa, District Kurukshetra. ... Appellant Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: None for the appellant. Mr. A.K. Jindal, AAG, Haryana, for the respondent-State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence, dated 04.02.2008, rendered by the Presiding Officer, Special Court, Kurukshetra, vide which, she convicted the accused for the offence, punishable under Section 18 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the Act only), sentenced him to undergo Rigorous Imprisonment from 17.10.2004 to 18.11.2004 (period already undergone) and to pay a fine of Rs. 3,000/-, and in default of payment of fine, to undergo simple imprisonment, for a period of one month, for having been found in possession of 100 grams opium, without any permit of licence, which falls within the ambit of non- commercial quantity. Criminal Appeal No. 1093-SB of 2008 2 2. On 16.10.2004, ASI Malkiat Singh, alongwith other police officials was present at T. Point of village Bishangarh, on Hansa road, in connection with patrol duty and detection of crime, under the Excise Act. The accused was seen coming from the side of village Durala, on a motorcycle, bearing No. HR-7F-9021 make Bajaj Pulsar of silver Colour. On seeing the police party, he turned back and started moving. On the basis of suspicion, that he was carrying some contraband, he was apprehended. On enquiry, he disclosed his identity. On personal search of the accused, 100 grams of opium was recovered from the polythene cover, from the right pocket of the trouser worn by him. Two samples of 10 grams each, were separated. Separate parcels of the samples, and the residue, were prepared and sealed with seal, bearing letter MS. The same were taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the FIR was recorded. Rough site plan was prepared. The statement of the witnesses were recorded. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. 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 HC Mange Ram (PW-1), who was posted as Reader in the office of DSP, Head Quarter, Kurukshetra, HC Joginder Singh (PW-2), Constable Jasmer Singh (PW-3), HC Ranbir Singh (PW-4), ASI Sultan Singh (PW-5), Constable Subhash Chander (PW-6), DSP Ram Chander (PW-7) and ASI Malkiat Singh (PW-8). Thereafter, the Public Prosecutor for the State, closed the Criminal Appeal No. 1093-SB of 2008 3 prosecution evidence. 5. The statement of the accused, under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that nothing was recovered from him, nor any proceedings had been conducted, at the alleged spot. It was further stated by him that his father Mukhtiar Singh, had filed a Writ Petition No. 322 of 1995, against SI Hari Krishan Sharma, SHO, HC Virender Kumar and Head Constable Didar Singh of Police Station Jhansa, in the High Court, in which, a Warrant Officer was appointed, by the High Court, who had visited Police Station Jhansa, and, found that his (accused) mother Balwinder Kaur, brother Jarnail Singh and two servants namely Swaran Singh and Malkiat Singh, were sitting in the Police Station. Due to the above mentioned Writ Petition, he was falsely implicated. The accused, however, did not lead evidence, in defence, and closed the same. 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 above. 7. Feeling aggrieved, the instant appeal, was filed by the accused. 8. Since none appeared, on behalf of the appellant, despite due notice to his Counsel, no alternative, was left with this Court, than to go through the trial Court judgment, evidence and record of the case, hear arguments of the Counsel for the respondent, and decide the appeal, on merits, as that would amount to due compliance of the provisions of Section 386 Cr.P.C., as held in Dharampal V/s. State of U.P., 2008(1), Law Herald (SC), 225. Criminal Appeal No. 1093-SB of 2008 4 9. I have heard the Counsel for the respondent, and have gone through the evidence and record of the case, carefully. 10. In this case, the alleged recovery of 100 gms opium was effected from the personal search of the accused. It has come, in the evidence of the Investigating Officer, that, as soon as, the accused was apprehended, he entertained suspicion against him, that he was carrying some contraband. The moment the Investigating Officer, entertained a suspicion, against the accused, that he was carrying some contraband, it was required of him, to give him an option, in terms of the provisions of Section 50 of the Act, as to whether, he wanted his search to be conducted, in the presence of a Gazetted Officer or a Magistrate. The investigating officer admitted that no offer was given to the accused, as to whether, he wanted the search of his person to be effected, in the presence of a Gazetted Officer or a Magistrate. The Counsel for the respondent, also frankly admitted that no such option was given by the Investigating Officer, to the accused. The provisions of Section 50 of the Act, are mandatory, in nature. In terms of Section 50 of the Act, a right is conferred, upon the accused to opt, as to whether, he wanted his personal search to be conducted, in the presence of a Gazetted Officer, or a Magistrate. The compliance of the provisions of Section 50 of the Act, is required to be adhered to, in letter and spirit. The compliance thereof, is not merely a formality. In the instant case, the mandatory provisions of Section 50 were completely violated. Once, it is held that the mandatory provisions of Section 50 of the Act, were not complied with, the conviction and sentence stands vitiated. In State of Punjab Vs Baldev Singh, 1999(6), SCC, 172 and Smt. Krishna Kanwar Thakraeen Vs State of Rajasthan, JT, 2004(1), SC, 597, it was held that Criminal Appeal No. 1093-SB of 2008 5 the provisions of Section 50 of the Act are mandatory, in nature, and the same are required to be adhered to, in letter in spirit. If there is transgression of the provisions of Section 50 of the Act, the very conviction and the sentence stand vitiated. It was further held that mere non-compliance with the provisions of Section 50 of the Act, in itself, is sufficient to vitiate the conviction and trial of the accused, and he is not required to prove independently that any prejudice was caused to him, on account of non- compliance therewith. The trial Court, over-looked this aspect of the matter, by holding that the recovery was effected, in a routine checking. The trial Court, did not take into consideration, that before the search of the accused, the Investigating Officer entertained a suspicion, against him, that he was carrying some contraband. Had the trial Court taken into consideration, this aspect of the matter, it would not have fallen into an error, in holding that there was no necessity of complying with the provisions of Section 50 of the Act. The finding of the trial Court, is not in consonance with the provisions of Section 50 of the Act, and the principle of law, laid down in Baldev Singh's and Smt. Krishna Kanwar Thakraeen's cases (supra). The finding of the trial Court, in this regard, being perverse, is reversed, and it is held that on account of non-compliance of the provisions of Section 50 of the Act, the conviction and sentence stood vitiated. 11. Even the link evidence, in this case, was incomplete. Jasmer Singh, Constable, was handed over the sample parcel, for depositing the same in the office of the Forensic Science Laboratory. He stated that one parcel of sample, duly sealed, was handed over to him. He did not state in his affidavit PC, that the sample seal was also handed over to him, for deposit alongwith the sample parcel. Under these circumstances, it could be Criminal Appeal No. 1093-SB of 2008 6 said that seal impression alongwith a sample parcel was not deposited by Jasmer Singh, Constable. In the absence of deposit of sample impression of the seal, Forensic Science Laboratory was deprived of comparing the seals on the sample parcel, with the seal, which was allegedly affixed at the time of the alleged recovery. The possibility of tampering with the parcel, therefore, could not be ruled out. 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. 12. No independent witness was joined, in this case, despite availability. ASI Malkiat Singh, PW8, the Investigating Officer, stated that the alleged place of recovery is a busy road, and many persons, and vehicles were coming and going, at the time, when the accused was apprehended. He further stated that he asked 4-5 independent witnesses, to join the investigation, but they refused to join. He further stated that he did not know their names and parentage. He further stated that no action was taken against them. Even the names of those persons, were not mentioned, in the case diary or other documents, prepared at the spot. It means that such an explanation, was furnished, by the Investigating Officer, just with a view to cover up his lapse. It can be said that no independent witness was joined intentionally and deliberately despite availability. 13. 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, Criminal Appeal No. 1093-SB of 2008 7 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 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 Criminal Appeal No. 1093-SB of 2008 8 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 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. 14. For the reasons recorded above, Criminal Appeal No. 1093-SB of 2008, is accepted. The judgment of conviction and the order of sentence, dated 04.02.2008, are set aside. The appellant is acquitted of the charge framed against him. If the appellant is on bail, he shall stand discharged of Criminal Appeal No. 1093-SB of 2008 9 his bail bonds. If he is in custody, he shall be set at liberty at once, if not required in any other case. 15. The Chief Judicial Magistrate, Kurukshetra, shall comply with the judgment, forthwith and send the compliance report, within a period of 15 days, from the date of receipt of a copy of the same. 31.10.2008 (SHAM SUNDER) AMODH JUDGE