IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. S-785-SB of 1998 Date of Decision : October 12, 2010 Amar Singh @ Amra ....Appellant Versus State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Bipan Ghai, Senior Advocate with Mr. Deepak Garg, Advocate Mr. P.S. Sidhu, Addl. Advocate General, Punjab T.P.S. MANN, J. Vide judgment and order dated 16.9.1998 passed by Additional Sessions Judge, Patiala, the appellant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo further rigorous imprisonment for two years. The period of detention already undergone by him was ordered to be set off. According to the prosecution, on 23.10.1996, ASI Kashmira Singh alongwith Constable Nishan Singh, Criminal Appeal No. S-785-SB of 1998 -2- Constable Gurdeep Singh, Constable Lal Singh and PHG Sucha Singh, was going in connection with patrol duty and search of bad elements towards village Kutbanpur, etc. Arjan Singh was joined as an independent witness by ASI Kashmira Singh from village Kutbanpur. When the police party reached at the bridge of canal minor, the appellant was seen coming on a scooter having a gunny bag tied on the pillion seat of the scooter with the help of a cycle tube. On seeing the police party, the appellant became perplexed and tried to retreat. On suspicion, he was apprehended by ASI Kashmira Singh with the help of other police officials. He disclosed his name, parentage, address, etc. Thereafter, the ASI asked him whether he wanted to be searched before a Gazetted Officer or a Magistrate. The appellant reposed faith in the police party. Statement Ex. PC of the appellant was recorded to this effect, which was attested by the witnesses and thumb marked by the accused. The search of the accused was conducted and gunny bag carried by him on his scooter bearing No. PB-42-2270 was found to contain poppy husk, which on weighing, was found to be 32½ kgs. Two samples of 250 grams each were taken out from the gunny bag and the same were put into small pieces of cloth. The gunny bag and the samples were sealed with the seal bearing impression 'KS' and seal after use was handed over to Arjan Singh PW. On further search of the dicky of the scooter, currency notes of Rs.11,000/- were recovered, which alongwith gunny bag containing poppy husk, Criminal Appeal No. S-785-SB of 1998 -3- scooter and cycle tube, was taken into possession vide memo. Ex. PD. Personal search of the appellant led to the recovery of Rs.40/-, which were taken into possession vide memo. Ex.PF attested by the witnesses and thumb marked by the appellant. Thereafter, ASI Kashmira Singh sent ruqa Ex. PF to the Police Station for registration of a case, on the basis of which formal FIR Ex. PF/1 was registered by ASI Kulbhushan. ASI Kashmira Singh also prepared rough site plan Ex. PG of the place of recovery and recorded the statements of the witnesses. On return to the Police Station, ASI Kashmira Singh produced the appellant and the case property before Inspector Ram Kumar, Incharge, Police Station Samana, who verified the investigation and sealed the case property with his seal 'RK'. Specimen of his seal Ex. P4 was also prepared on chit Ex. P1. After sealing the case property, Inspector Ram Kumar handed over the same to ASI Kashmira Singh, who deposited the same with MHC Surinder Singh on the same day and put the appellant in lock up. Upon completion of the investigation and presentation of the challan, followed by its commitment to the Court of Sessions, the appellant was charged under Section 15 of the Act, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 Constable Lal Singh, PW2 MHC Surinder Singh, PW3 Constable Nishan Singh, PW4 Inspector Ram Kumar and Criminal Appeal No. S-785-SB of 1998 -4- PW5 ASI Kashmira Singh. When examined under Section 313 Cr.P.C., the appellant denied the prosecution allegations and pleaded innocence. He stated that on 23.10.1996, a police party returning from another village took him forcibly from his house at 7.00 a.m. They also took away a sum of Rs.12,000/- which he had collected by selling pigs for the marriage of his daughter. In this respect, his mother Bhajan Kaur filed a complaint through registered post. After that complaint, the police registered a false case against him in order to cover up their misdeeds. Enquiry in this respect was also pending. The police also took away two scooters from his house. In his defence, the appellant examined HC Balbir Singh as DW1. After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court believed the prosecution version and, accordingly, convicted and sentenced the appellant, as mentioned above. I have heard learned counsel for the parties and perused the evidence with their able assistance. Learned counsel for the appellant has submitted that though according to the prosecution, ASI Kashmira Singh, who led the police party at the time of apprehension of the appellant, had joined independent witness, namely Criminal Appeal No. S-785-SB of 1998 -5- Arjan Singh but said Arjan Singh was not examined by the prosecution in support of its case. Therefore, there is no independent corroboration to the prosecution case which consists of the testimonies of only official witnesses. There is no denial of the fact that Arjan Singh, an independent witness, was joined ASI Kashmira Singh at the time of apprehension of the appellant and recovery of the contraband from him. Upon completion of the investigation, challan was presented against the appellant. Arjan Singh was cited as one of the prosecution witnesses. He was, however, given up as having been won over by the appellant. In this regard, police request Ex.PK was submitted by the Additional Public Prosecutor. It is true that there is general tendency amongst independent witnesses in not joining the police party or if joined, not to come forward to support the prosecution case but that by itself is not sufficient to withhold production of such an independent witness before the Court. Merely making written request of giving up such an independent witness on the ground that he was won over by the accused is not sufficient. Rather, the matter ought to have been left to the trial Court to record the testimony and then to hold that he had been won over by the appellant. A perusal of the written request Ex.PK submitted by ASI Kashmira Singh and forwarded by the Additional Public Prosecutor shows that no reasons were mentioned therein from which it could be gathered that Arjan Singh had been won over by the appellant and, therefore, need not be produced before the Criminal Appeal No. S-785-SB of 1998 -6- Court. Said Arjan Singh was a material witness of the prosecution as in his presence, the appellant was apprehended and the search of the bag carried by him on his motorcycle led to recovery of poppy husk. After taking into possession the two samples of the contraband and the remainder bulk, ASI Kashmira Singh sealed them and, thereafter, entrusted the seal to the independent witness. On account of the independent witness not being produced before the trial Court, this Court feels handicapped in finding out as to when the seal was returned by the said independent witness to ASI Kashmira Singh. Therefore, the possibility cannot be ruled out of such a seal being returned by Arjan Singh before the sample of the contraband was despatched to the Chemical Examiner. In fact, PW5 ASI Kashmira Singh admitted the fact that the seal was returned to me by Arjan Singh before despatch of the sample to the Chemical Examiner. If such is the position, possibility of tampering with the sample could not be ruled out. It is true that the conviction of an accused can be recorded on the testimonies of only official witnesses. However, when the appellant, during his cross- examination under Section 313 Cr.P.C., claimed that he was falsely implicated as his mother Bhajan Kaur had sent a written complaint under registered cover to the police high-ups that he was taken from his house on 23.10.1996 at 7.00 a.m. by a police party, which was returning from another village and the said police party had taken away a Criminal Appeal No. S-785-SB of 1998 -7- sum of Rs.12,000/-, which the appellant had collected by selling his pigs for the marriage of his daughter and only, thereafter, that the present case came to be registered against the appellant at the instance of the police in order to cover its mis-deeds and enquiry in that respect was pending, it would not be safe to accept the testimonies of the official witnesses as gospel truth. DW1 HC Balbir Singh, who stood posted in the Complaint Branch of the office of Senior Superintendent of Police, Patiala produced before the trial Court the summoned record pertaining to the complaint of the mother of the appellant against the police officials regarding his false involvement in an NDPS Act case. The said record contained the report of Deputy Superintended of Police as well as the letter of Senior Superintendent of Police. PW5 ASI Kashmira Singh admitted it to be correct that on some applications, enquiry was held against him and others in connection with this case. The applications were filed by Bhajan Kaur, mother of the appellant. Therefore, lack of any independent corroboration to the prosecution case assumes significance. Though the provisions of Section 52 of the Act are only directory in nature and not mandatory but where the accused is able to prima facie show that he was not supplied the grounds of arrest, the non-compliance of the provisions of Section 52 of the Act is fatal. Merely because the appellant was apprehended on suspicion and the search of the bag carried by him led to recovery of the Criminal Appeal No. S-785-SB of 1998 -8- contraband is not sufficient to hold that ASI Kashmira Singh was not required to supply to the appellant the grounds of arrest. On re-appreciation of the evidence available on the record, this Court is of the considered view that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. Under these circumstances, the judgment of conviction and sentence passed by the trial Court cannot be sustained. Resultantly, the appeal is accepted, impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charge against him. The appellant is on bail. His bail bonds and surety bonds shall stand discharged. ( T.P.S. MANN ) October 12, 2010 JUDGE satish Satish Kumar 2014.04.24 15:31 I attest to the accuracy and integrity of this document Chandigarh