Criminal Appeal No. 2234-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 2234-SB of 2003 Date of Decision: 30.04.2010 Malook Singh son of Jangir Singh son of Kirpal Singh, aged 52 years, employee of Electricity Board, r/o village Kanakwal, District Bathinda. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. H.S. Rakhra, Advocate, for the appellant. Mr. Jaspreet Singh, AAG, Punjab, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgment of conviction, dated 24.11.03, and, the order of sentence, dated 25.11.03, rendered by the Judge, Special Court, Bathinda, vide which, he convicted the accused (now appellant), for the offence, punishable under Section 18 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced him to undergo Rigorous Imprisonment, for a period of 02 years, and, to pay a fine of Rs. 5,000/-, and, in default of payment thereof, to further Criminal Appeal No. 2234-SB of 2003 2 undergo rigorous imprisonment, for a period of 01 month, for having been found in possession of 2 kgs opium, without any permit or licence, falling within the ambit of non-commercial quantity. 2. The facts, in brief, are that, on 08.02.01, Krishan Singh, Sub Inspector alongwith Amar Nath, Assistant Sub Inspector, and some other Police officials, was on patrol duty, and going, in a private jeep and when the Police party reached, in the area of village Giana, one gypsy, was seen coming, from the opposite direction. The gypsy was got stopped. The accused was overpowered, on suspicion. In the meanwhile, one Major Singh, also reached the spot, who was joined as an independent witness. Thereafter, Krishan Singh, Sub Inspector, apprised the accused, that he suspected some contraband, in the gypsy, and wanted to search the same. Consequently, on search of gypsy, in the presence of Raghbir Singh, Deputy Superintendent of Police, who was called to the spot, a plastic bag, lying near the driver seat, containing 2 kgs opium, wrapped in a glazed paper, was recovered. A sample of 20 gms, was separated therefrom, and the remaining opium, was kept, in the same plastic bag. The sample and the bag, containing the remaining opium, were converted into parcels, duly sealed, and taken into possession, alongwith the gypsy and its registration certificate, vide a separate recovery memo. The driving licence of the accused was also taken into possession, vide a separate recovery memo. Site plan of the place of recovery, was prepared. Ruqa was sent to the Police Station, on the basis whereof, the first information report was registered. The accused was arrested. After the completion of Criminal Appeal No. 2234-SB of 2003 3 investigation, he was challaned. 3. On his appearance, in the Court, the accused, was supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 18 of the Act, was framed, against the accused, which was read-over and explained to him, to which, he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Raghbir Singh Chahal, Deputy Superintendent of Police (PW1), a witness to the recovery, Amar Nath, Assistant Sub Inspector (PW2), Jatinder Singh, Clerk, DTO office (PW3), and, Sukhdev Singh, Constable (PW4). Major Singh, prosecution witness, was given up, as having been won over by the accused. Thereafter, the prosecution evidence was closed. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, 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 his land, was acquired, for setting up the refinery. It was further stated by him that, he purchased one gypsy and one Marshal jeep, and, the same, were being run as taxis. It was further stated by him that the Police used to take his gypsy and Marshal jeep on begar. It was further stated by him that, on 04.01.01, at about 10/11 PM, Amarnath, Assistant Sub Inspector alongwith other Police officials, came to his house, in a drunken condition and demanded the gypsy, but, he refused. It was further stated by him that, thereafter, the Police officials, quarreled with him. It was further stated by him, that his neighbourers Joginder Singh, Criminal Appeal No. 2234-SB of 2003 4 Kala Singh and Mukhtiar Singh, also came there, and saw the occurrence. It was further stated by him that, Amarnath, Assistant Sub Inspector, threatened him, and, after about one month, he was called by the Police to Police Station Rama. It was further stated by him that, he was falsely implicated, in the instant case. It was further stated by him that, he moved an application, to the higher authorities, in this respect. He, however, examined Major Singh (DW1), and, Kala Singh (DW2), in his defence. Thereafter, he closed his defence evidence. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above . 8. Feeling aggrieved, the instant appeal, has been filed by the appellant. 9. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that, Major Singh, independent witness, though joined, was not examined, by the prosecution, and, as such, its case became highly doubtful. He further submitted that, when Major Singh, was examined, as DW1, he did not support the case of the prosecution, and denied that the documents PA, PB, PC, PD and PE, bore his thumb impressions. The submission of the Counsel for the appellant, in this regard, appears to be correct. No doubt, Major Singh, independent witness, was joined, at the time of effecting the alleged recovery, yet, he was given up as won over by the Additional Public Prosecutor, for the State, vide his Criminal Appeal No. 2234-SB of 2003 5 statement dated 03.04.03. There is no material and data, on the record, on the basis whereof, the Additional Public Prosecutor, for the State, came to the conclusion, that this witness, had actually been won over, and, in case, he was examined, he would damage the case of the prosecution. Had this witness been given up as won over, on the basis of some material, data or application, having been moved, by the Investigating Officer, the matter would have been different. It is, no doubt, true that the Additional Public Prosecutor, for the State, is the master of the case. It is for him, to decide, as to which witness he wanted to examine, and, as to which witness, he did not want to examine. However, such discretion is required to be exercised, by the Additional Public Prosecutor, for the State, in accordance with the sound Judicial principles, and, not arbitrarily and capriciously. It, therefore, could be said that the discretion was exercised by him, arbitrarily and capriciously. Had Major Singh, independent witness, been examined, light would have been thrown, on the facts and circumstances of the case, and credence would have been lent to the prosecution case, solely based on the evidence of the official witnesses. 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 the instant case, Criminal Appeal No. 2234-SB of 2003 6 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. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution became doubtful. In Masalti Vs. State of UP, AIR 1965 SC 202, a four Judge Bench of the Apex Court, held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material evidence, available to it, which is necessary for unfolding its case, but it would be unsound to lay down, as a general rule, that every witness must be examined, even though, his evidence may not be very material, or even if, it is known that he has been won over or terrorised. The discretion exercised by the Additional Public Prosecutor, for the State, in giving up Major Singh, as won over, as stated above, was not bonafide. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused. 11. Now coming to the statement of Major Singh, DW1, who was examined, by the accused, it may be stated here that, during the course of his cross-examination, he, in clear-cut terms denied, that the documents PA, PB, PC, PD and PE, bore his thumb impressions. It means that, he was not with the Police party, at the time of effecting the Criminal Appeal No. 2234-SB of 2003 7 alleged recovery. The prosecution, had an occasion, to move an application, before the Court, to obtain the specimen thumb impressions of Major Singh (DW1), so as to enable it to get the same compared with his questioned thumb impressions, on PA, PB, PC, PD and PE. The prosecution, did not avail of this opportunity. This strengthens the case of the appellant, that nothing was recovered, from him, but, he was falsely implicated, and, Major Singh, was introduced, later on, just with a view to prove, that the investigation was fair. It is settled principle of law, that the defence witnesses, are required, to be given the same respect and treatment, as is required, to be given, to the prosecution witnesses. The evidence of a defence witness, cannot be discarded only, on account of the reason, that he appeared, on behalf of the accused. Major Singh, DW1, had no enmity against the prosecution, to depose, against it. He was also not interested, in the accused, to depose, in his favour. The evidence of Major Singh, DW1, assumes importance, in view of the defence version, set up by the accused, that he was falsely implicated, by the Police, as he failed to oblige it, to give his vehicle on begar. Once the evidence of Major Singh, DW1, in the peculiar facts and circumstances of the case, is taken into consideration, then the case of the prosecution becomes highly doubtful. The trial Court, did not take into consideration, this aspect of the matter, and, thus, fell into an error, in recording conviction and awarding sentence. 12. It was next submitted by the Counsel for the appellant, that the alleged recovery, in this case, was effected, on 08.02.01, whereas, Criminal Appeal No. 2234-SB of 2003 8 the sample, was sent, to the office of the Chemical Examiner, on 24.02.01 i.e. after a delay of about 13 days, without any explanation, 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, 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 Chemical Examiner, pales into insignificance. However, if the other evidence, is not found to be creditworthy, then delay certainly proves fatal to the prosecution case. In this case, the other evidence, produced by the prosecution, to prove the completion of link evidence, is neither reliable nor trustworthy. It is for the prosecution, to prove affirmatively, that right from the date of seizure, until the sample was sent to the Chemical Examiner, the same was not tampered with. If the prosecution fails to prove this factum, then its case is bound to dwindle down. In State of Rajasthan Vs. Gurmail Singh, 2005(2) RCR (Crl.), 58, S.C., the contraband, was kept in the Malkhana for 15 days. 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, 2002(3), RCR (Crl.), 54 (DB) (P&H), there was a delay of 21 days, in Criminal Appeal No. 2234-SB of 2003 9 sending the sample to the laboratory. In these circumstances, it was held that it must prove fatal to the prosecution case, especially when admittedly no independent witness was joined, in the recovery proceedings, and seal used for sealing the sample, remained with the Police Official, during the period. 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 Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1), RCR (Criminal), 406 (S.C.), charas was recovered from the possession of the accused, and sealed in two packets. The packets and the seal remained, in the custody of the same person. In these circumstances, it was held that there was every possibility of the seized substance, being tampered with. The conviction of the accused was set aside, inter-alia, on this ground. 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, and 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. Since the possibility of tampering with the case property, and the sample, could not be ruled out, in the instant case, a serious doubt, on account of this reason, was cast on the prosecution case. The submission of the Counsel for the appellant, Criminal Appeal No. 2234-SB of 2003 10 being correct is accepted. 13. It was next submitted by the Counsel for the appellant, that, as per exhibit PX, affidavit of Sukhdev Singh, Constable, originally, he was handed over the sample of this case, on 14.02.01, and some objections, were raised, by the laboratory, and, again he allegedly deposited the same with the laboratory, on 21.02.01, after the objections were removed. No doubt, in PX affidavit, Sukhdev Singh, Constable, stated that, on 15.02.01, he handed over the sample parcel with objections, to Krishan Singh, Sub Inspector. However, when he appeared, as PW4, he stated, during the course of his cross- examination, that his statement, under Section 161 of the Code of Criminal Procedure, exhibit DB, was recorded, on 27.02.01. He further stated that, he did not state therein, that the objections, were raised, by the Chemical Examiner, when he took the sample, on 15.02.01, to his office. He further stated that, after the sample, was handed over, to him, he did not sign any register. He further stated that, in exhibit DB, his statement, under Section 161 of the Code of Criminal Procedure, he did not state, that the sample, was taken, by him, on 21.02.01, again for deposit. Had he been handed over the sample again, on 21.02.01, he would have certainly stated, in his statement, under Section 161 of the Code of Criminal Procedure, made before the Police. In the absence of any statement, under Section 161 of the Code of Criminal Procedure, and, without any explanation, as to why, such a fact, was not got recorded therein, it is not known, as to where, the sample, from 15.02.01 to 21.02.01 remained. It was for the prosecution, to prove, Criminal Appeal No. 2234-SB of 2003 11 beyond reasonable doubt, that none tampered with the sample, at any point of time, until, it was received, in the office of the Chemical Examiner. The other evidence, produced by the prosecution, in this case, to complete the link evidence has already been held to be unreliable. In view of the affidavit PX and the statement, made by Sukhdev Singh, Constable, during the course of his cross-examination, the possibility of tampering with the sample, until it reached the office of the Chemical Examiner, could not be ruled out. The trial Court, did not take into consideration, this aspect of the matter, and, thus, fell into an error, in recording conviction and awarding sentence. 14. In the affidavit PX, Sukhdev Singh, did not state even a single word, that he was also handed over the sample impression of seal and he deposited the same, in the office of the Chemical Examiner, alongwith the sample parcel. Since he was not handed over the sample impression of the seal, there was no question of deposit of the same, in the office of the Chemical Examiner. It is not known, as to how, a certificate, was given, by the Chemical Examiner, that the seals on the sample parcel tallied with the sample seal. 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. 15. Now coming to the version, set up by the accused, in his statement, under Section 313 of the Code of Criminal Procedure, that Criminal Appeal No. 2234-SB of 2003 12 he was falsely implicated, it may be stated here, that the same appears to be probable. In his statement, under Section 313 of the Code of Criminal Procedure, the accused, stated that, his land, was acquired, for setting up refinery and out of the amount of compensation, he purchased one gypsy and one Marshal jeep. It was further stated by him that the same were being run as taxis. It was further stated by him that, the Police, used to take his gypsy and Marshal jeep on begar. It was further stated by him that, on 04.01.01, at about 10.00/11.00 PM, Amarnath, Assistant Sub Inspector alongwith other Police officials, came to his house, and demanded the gypsy, but, he refused. It was further stated by him that, the Police officials, quarreled with him, when they were in drunken condition. It was further stated by him that, his neighbourers Joginder Singh, Kala Singh and Mukhtiar Singh, also came there and saw the occurrence. It was further stated by him that, Amarnath, Assistant Sub Inspector, threatened him, and, then after about one month, he was called by the Police to Police Station Rama, and falsely implicated, in the instant case. It was further stated by him that, he moved an application, to the higher authorities, in this respect. Kala Singh, DW2, has his house, opposite the house of the accused. He also deposed that, the land of the accused, was acquired, and, he purchased a gypsy and TATA sumo. He further stated that, 2 ¾ years, before 08.02.01, he heard a noise, at about 9.00/10.00 PM, and saw Amar Nath, Assistant Sub Inspector, and 2-3 other Police officials quarreling with Malook Singh, accused, and, were demanding vehicle, from him, but he refused. No doubt, he stated, during the course of his Criminal Appeal No. 2234-SB of 2003 13 cross-examination, that the accused, is his uncle from brotherhood. Since this witness, was residing opposite the house of the accused, he could be said to be the natural witness, to the incident of quarrel, which took place, between the accused and Amar Nath, Assistant Sub Inspector. His presence, at that time, therefore, could be said to be probable. The mere fact that, he was related, to him, from brotherhood, in itself, was not sufficient, to disbelieve his statement. The version of the accused, which was set up by him, during the course of cross- examination of the prosecution witnesses, as also, in his statement, under Section 313 of the Code of Criminal Procedure, was duly supported, by Kala Singh, DW2. From the statements of Major Singh, DW1, and, Kala Singh, DW2, the defence version is proved to be probable. Once the defence version, is held, to be probable, the case of the prosecution becomes doubtful. The possibility of false implication of the accused, in this case, in view of the peculiar facts and circumstances of the same, could, therefore, not be ruled out. The submission of the Counsel for the appellant, being correct is accepted. 16. No other point, was urged, by the Counsel for the parties. 17. In view of the above discussion, it is held, that the judgement of conviction and the order of sentence, are not based, on the correct reading and due appreciation of evidence, as also law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would have certainly come to the conclusion, that the prosecution, had failed, to prove its case, beyond a reasonable doubt. The findings, recorded by the trial Court, recording conviction Criminal Appeal No. 2234-SB of 2003 14 and awarding sentence, to the accused (now appellant), are perverse and illegal, and, as such, liable to be set aside. 18. For the reasons recorded above, the appeal, is accepted. The judgement of conviction and the order of sentence, rendered by the trial Court, are set aside. The appellant is acquitted of the charge framed against him. If the appellant 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. 19. The concerned Chief Judicial Magistrate, 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. 30.04.2010 (SHAM SUNDER) Amodh JUDGE