Crl. Appeal No.177-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.177-SB of 1995 Date of Decision : March 28, 2008 Dalbir Singh S/o Arjan Singh, ....Appellant R/o Mohalla Gogalpura, Tara Taran. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. V.K.Chaudhary, Advocate, for the appellant. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 3.1.1995, and the order of sentence of the even date, rendered by the Court of Addl. Sessions Judge, Amritsar, vide which it convicted the accused/appellant Dalbir Singh, 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 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 one year. 2. The facts, in brief are that on 26.8.1988, Sat Pal, SI, alongwith other police officials, apprehended the accused, near the culvert of a by-pass drain. On suspicion, his search was conducted, as a result whereof, 200 grams opium, wrapped in a glazed paper, was recovered, from the right pocket of the pant worn by the accused. 10 grams, was taken out as sample. The remaining opium was put in a container. The sample and the container of the remaining opium, were converted into parcels, duly sealed with the seal, bearing Crl. Appeal No.177-SB of 1995 2 impression 'SS', and thereafter, the same was taken into possession. The accused was arrested. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. Rough site plan of the place of recovery, was prepared. The statements of the witnesses, were recorded. 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 trial. 4. The prosecution, in support of its case, examined Kulwant Singh, ASI (PW-1), a witness to the recovery, Sat Pal, SI, (PW-2), the Investigating Officer. The Addl. P.P. for the State, tendered into evidence report of the Chemical Examiner, Ex.PD, affidavits of Balkar Singh and Hans Raj Singh, Ex.PE and Ex.PF, respectively, and, thereafter, closed the same. 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. It was stated by him, that he was apprehended by the police much prior to this case. He further stated that nothing incriminating was recovered from him, but he was involved, in this case. He, however, did not lead any evidence, in his defence. 6. After hearing the Addl. 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. Crl. Appeal No.177-SB of 1995 3 9. The Counsel for the appellant, at the very outset, contended that though the alleged recovery was effected at a thorough-fare, yet no independent witness was joined, despite availability. He further contended that even no effort was made by the Investigating Officer, to join an independent witness. It is further stated by him that on account of this reason, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Sat Pal Singh, SI (PW-2), during the course of his cross-examination, stated that the bridge of rohi is on the Taran Taran-Amritsar road, which is frequented by public. It was that place, where the alleged recovery was effected. He did not state even a single word that any effort was made, to join an independent witness. Even no mention was made that an effort was made to join independent witness, in the ruqa or other documents contemporaneously prepared, at the time of alleged recovery. It means that the public witnesses, were not intentionally and deliberately joined, despite availability. In similar circumstances, in Hawa Singh Vs. State of Haryana 2005(4) RCR (Criminal) 292, when an independent witness was not joined, despite availability, the accused was acquitted, in a case of recovery of 20 Kgs. of poppy-husk. In State of Punjab Vs. Ram Chand 2001(1) RCR (Criminal) 817, the 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. In these circumstances, it was held that the case of the prosecution became doubtful. In the instant case also, non-joining of an independent witness, despite availability, cast a cloud of doubt, on the prosecution story. This aspect of the matter was not taken into consideration, by the trial Court, as a result whereof, miscarriage of justice occasioned. 10. It was next contended by the Counsel for the appellant that the mandatory provisions of Section 50 of the Act, were violated, in this case, as no Crl. Appeal No.177-SB of 1995 4 offer was given to the accused, as to whether, he wanted his person to be searched before a Gazetted Officer or a Magistrate. No doubt, Sat Pal Singh, SI (PW-2) stated that he gave an offer to the accused, in this respect, yet his statement, in this regard, is no supported by the recovery memo, Ex.PA. On the other hand, in the ruqa, Ex.PB, which was sent, in this case by Sat Pal, SI, the then ASI, the Investigating Officer, he recorded that he asked the accused, as to whether, he was having a contraband, who stated that he was having a small quantity of opium. It was further recorded by him, in the ruqa Ex.PB, that he asked the accused, as to whether, he wanted his search to be conducted, before a Gazetted Officer, but he refused and repose faith in him. In the ruqa, Ex.PB, the document, which was prepared, at the spot, it was not recorded that an offer was given to the accused, as to whether, he wanted his search to be conducted before a Magistrate or a Gazetted Officer. Sat Pal Singh, SI, while appearing as PW-2, made an improvement over the contents of the ruqa, Ex.PB, by stating that he gave an oral offer to the accused, as to whether, he wanted his search to be conducted in the presence of a Gazetted Officer or a Magistrate, Such an, improved statement of Sat Pal Singh, over the contents of the ruqa, which was recorded by him, cannot be taken into consideration. The net result, is that only partial offer was given to the accused, as to whether, he wanted his search to be conducted before a Gazetted Officer. In these circumstances, the offer given by the Investigating Officer, to the accused, regarding his search, only before a Gazetted Officer, could not be said to be valid. Since, he only gave a partial offer, to the accused, as to whether, he wanted himself to be searched before a Gazetted Officer, the same could not be said to be valid. In the State of Punjab Vs. Balbir Singh, 1994(1) RCR (Crl.) 737, the principle of law, laid down, was to the effect that the provisions of Section 50 of the Act, are mandatory, and their non-compliance must prove fatal, resulting into acquittal of the accused. In similar circumstances, in Inderjit Singh Vs. State of Haryana, 1997 (2) RCR Crl. Appeal No.177-SB of 1995 5 114, reliance upon which, has been placed by the Counsel for the appellant, only a partial offer, had been given to the accused, as to whether, he wanted his search to be conducted, before a Gazetted Officer, and this Court, held that such an offer, being partial, there was complete violation of the provisions of Section 50 of the Act, and the accused was entitled to acquittal. No authority laying down the preposition to the law, to the contrary, was cited by the Counsel for the respondent. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In this view of the matter, non- compliance of the mandatory provisions of Section 50 of the Act ibid, in its entirety, must prove fatal to the case of the prosecution, and result into acquittal of the appellant/accused. The submission of the Counsel for the appellant, carries substance, and stands accepted. 11. It was next contended by the Counsel for the appellant, that the alleged recovery was effected on 26.8.1988, whereas, the sample was sent to the office of the Chemical Examiner, on 6.9.1988, and, the seal after use was handed over to Kulwant Singh, ASI, a junior official, by Sat Pal Singh, SI, the Investigating Officer. He further contended that no explanation was furnished by the prosecution witnesses, as to why a delay of 11 days was caused, in sending the sample, and whether the sample remained untampered with, until it reached the office of the Chemical Examiner. The submission of the Counsel for the appellant, appears to be correct. No explanation, whatsoever, has been furnished, by both the prosecution witnesses, with regard to the, delay of 11 days, in sending the sample to the office of the Chemical Examiner. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the sample, till the same reached the office of the Chemical Examiner. Since, the sample was allegedly sent to the office of the Chemical Examiner, after about 11 days, it could not be safely held that the same remained un- tampered with. This fact casts a shadow of doubt, on the case of the Crl. Appeal No.177-SB of 1995 6 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. 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. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Chemical Examiner. As stated above, the other evidence produced by the prosecution, in this case, is not only deficient, but also unreliable, to prove this factum. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 11 days, in sending the sample to the office of the Chemical Examiner, and non-strict proof, by the prosecution, that the same was not tampered with, till it was deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the sample, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 12. Coming to the link evidence, it may be stated here that the same was incomplete. Hans Raj Singh, MHC, in his affidavit, Ex.PF, in para No.3 stated that, he handed over to Balkar Singh, Constable, a sample parcel of the opium, alongwith a docket, for deposit in the office of the Chemical Examiner. He further stated in para No.3 that after deposit of the same, in the office of the Chemical Examiner, on 6.9.1988, handed over the receipt, to him. He did not state, in his affidavit, that he also handed over the sample impression of the Crl. Appeal No.177-SB of 1995 7 seals to Balkar Singh, Constable, for deposit in the office of the Chemical Examiner. Since, Hans Raj Singh, MHC, did not hand over the sample impressions of the seals to Balkar Singh, Constable, the question of deposit of the same, in the office of the Chemical Examiner, did not at all arise. Sat Pal Singh, SI, also stated that he deposited the case property, and not the sample impression of the seal with Hans Raj Singh, MHC, as per the directions of the SHO. Sat Pal Singh, SI, did not stated that he prepared the sample impression of the seal or deposit the same, with the MHC. It, therefore, could be said that there was no material with the Chemical Examiner to come to the conclusion that the seals on the parcel, were the same as were affixed by the Investigating Officer, immediately after the seizure. However, the Chemical Examiner, recorded a certificate that the seals on the sample, were intact and agreed with the sample seal. It is not known, as to from which material, it recorded this certificate. This part of the report, Ex.PD, of the Chemical Examiner is incorrect. 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. The trial Court, did not take into consideration, this aspect of the matter,as a result whereof, miscarriage of justice occasioned. 13. According to Sat Pal Singh, SI, on reaching the Police Station, the case property, was produced before Harbhajan Lal, SI/SHO, of the Police Station, who verified the investigation, and the case property, and directed him to deposit the same with the MHC. Harbhajan Lal, SI, was not examined as a witness. There is nothing, on the record that his statement, under Section 161 Cr.P.C., was recorded by Sat Pal Singh, SI. In case, the case property had been produced before Harbhajan Lal, SI/SHO, then he was required to be examined. Crl. Appeal No.177-SB of 1995 8 No explanation, whatsoever, was furnished by the prosecution , as to what, prevented it from examining Harbhajan Lal, SI/SHO, when the case property, was allegedly produced before him, by Sat Pal Singh, SI. The net result, therefore, is that the case property and the sample parcel, were never produced before Harbhajan Lal, SI, nor did he verify the investigation, as also the case property. There was, therefore, intentional and deliberate breach of the provisions of Section 55 of the Act. When a particular provision, in the Statute, adumberates that a particular act should be done, by the person concerned, in a particular manner, then he is bound to perform the same, in that manner, and cannot take the shelter of the factum, that since that particular provision, was directory, in nature, he was not bound to comply with the same. If such, an explanation is accepted by the Courts, then the concerned officials saddled with the responsibility of performing various duties, under a particular statute, would breach the provisions of law, by merely saying that the same being directory, they were not bound to comply with the same. Non-compliance of Section 55 intentionally and deliberately, by the Investigating Officer, cast a cloud of doubt, on the prosecution case. Similar principle of law, was laid down, in Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Criminal) 702 (S.C.). The trial Court failed to take into consideration, this aspect of the matter, as a result of whereof, it committed an error in recording conviction and awarding sentence. 14. The provisions of Section 57 of the Act, were not complied with. No report was sent by the Investigating Officer, to his superior officer, with regard to the alleged apprehension of the accused, and alleged recovery of contraband, from him. No doubt, the provisions of Section 57 of the Act, are directory in nature. That does not mean that the same, should not be complied with by the Investigating Officer, deliberately and intentionally. In Gurbax Singh's case (supra), it was held that non-compliance of the provisions of Crl. Appeal No.177-SB of 1995 9 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 such failure will have bearing on the appreciation of evidence regarding search of the accused and seizure. The object of the provisions of Section 57, is that the superior officer should be informed immediately after the alleged recovery of contraband, so that he must be aware of the genuineness of the proceedings, conducted by his junior, to ensure that no innocent person is implicated, and the allegations of high handedness against the Police officials, are averted. Had any explanation been furnished by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of the Act, the matter would have been different. In the absence of any explanation, what to speak to plausible, the Court cannot coin any of its own, to fit in with the prosecution case. Since, the provisions of Section 57 of the Act, were observed, more in breach, than in compliance, by the Investigating Officer, intentionally and deliberately, the case of the prosecution became doubtful, on account of this reason. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it committed an error, in recording conviction and awarding sentence. 15. 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. The trial Court did not take into consideration, the infirmities and lacunae, enumerated, in the aforesaid paragraphs. Had these infirmities and lacunae been taken into consideration, by the trial Court, the result would have been different. The judgment of conviction, and the order of sentence, warrant interference, and are liable to be set aside. 16. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 3.1.1995, are set Crl. Appeal No.177-SB of 1995 10 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. March 28, 2008 (SHAM SUNDER) Vimal JUDGE