Crl. Appeal No.882-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.882-SB of 1998 Date of Decision : March 27, 2008 Kundan Singh S/o Attar Singh, ....Appellant R/o Village Singhara, P.S.Nissing, District Karnal. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sanjeev Gupta, Advocate, for the appellant. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 2.9.1998, and the order of sentence dated 3.9.1998, rendered by the Court of Addl. Sessions Judge, Karnal, vide which it convicted the accused/appellant Kundan Singh, for the offence punishable under Section 15 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 2 ½ years. 2. The facts, in brief are that on 21.2.1996, Sham Lal, ASI, alongwith Gurdial Singh, HC, and Karam Vir, Constable, was on patrol duty, and when they reached near Singhra crossing Kuchpura, a person was seen coming from the side of Karnal, having a white bag, in his hand. On seeing the police party, he turned back. On suspicion, he was apprehended. On interrogation, he disclosed his name Kundan Singh S/o Attar Singh. The search of the bag, being carried by him, was conducted, in accordance with the Crl. Appeal No.882-SB of 1998 2 provisions of law, which resulted into the recovery of 2 Kgs. Poppy-husk (chura post), now falling within the ambit of non-commercial quantity. A sample of 200 grams, was separated therefrom. The sample, and the remaining poppy- husk, were converted into parcels, duly sealed with the seal, bearing impression 'SL', 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 15 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 Ishwar Singh, ASI (PW-1), Gurdial Chand, HC (PW-2), Sham Lal, ASI (PW-3), and Bhum Singh, Inspector (PW-4). The Public Prosecutor, also tendered into evidence Ex.PA, affidavit of Shingara Ram, Constable, and Ex.PB, repot of the Assistant Chemical Examiner. Thereafter, he 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. He, however, did not lead any 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. Crl. Appeal No.882-SB of 1998 3 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 out-set, contended that though the alleged recovery was effected, from the accused, from a public place, yet no independent witness, despite availability, was joined by the Investigating Officer. He further contended that, even no effort was made by him, to join an independent witness. He further contended that, on account of non-joining and non-examination of an independent witness, the case of the prosecution became doubtful. Gurdial Chand, HC, (PW-2), during the course of his cross-examination, stated that the ASI asked 2-3 persons to become witnesses, but they showed their inability, to do so. He further stated that he could not tell their names. Sham Lal, ASI, (PW-3), the Investigating Officer, during the course of his cross-examination, stated that there are shops, near the place of recovery, and people were coming and going. He further stated that 2- 3 persons were asked to become witnesses, but they refused to do so. He further stated that no action had been taken against them. He further stated that he neither entered their names, in the case diary, nor in other documents. The statements made by these witnesses, on this aspect of the matter, do not appear to be correct. Had an effort been made, by the Investigating Officer, to join an independent witness, and, none, despite availability, had come forward, to join, he would have certainly recorded this factum, in the case diary, or any other document, prepared contemporaneously, at the time of the alleged recovery. Non-mention of this fact, in the case diary, or in other documents, clearly exhibited that these witnesses made incorrect statements that an effort was made to join an independent witness, but none came forward to join. 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, Crl. Appeal No.882-SB of 1998 4 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, 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. In these circumstances, it was held that the case of the prosecution became doubtful. In the instate 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 alleged recovery was effected on 21.2.1996, whereas, the sample was sent to the office of the Forensic Science Laboratory, on 6.3.1996, and, the seal after use was handed over to Gurdial Chand, HC, a junior official, by Sham Lal, ASI, the Investigating Officer. He further contended that no explanation was furnished by the prosecution witnesses, as to why a delay of 14 days was caused, in sending the sample, and whether the sample remained untampered with, until it reached the office of the Forensic Science Laboratory. 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 14 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 Forensic Science Laboratory. Since, the sample was allegedly sent to the office of the Forensic Science Laboratory, after about 14 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 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 Crl. Appeal No.882-SB of 1998 5 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 Forensic Science Laboratory. 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 14 days, in sending the sample to the office of the Forensic Science Laboratory, 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. 11. The affidavit, Ex.PA, tendered by Shingara Ram, Constable, is defective. According to this affidavit, Gurdial Chand, MHC, deposited with him, one parcel, duly sealed with seal bearing impression 'SL' and 'BS', for depositing the same, in the office of the Forensic Science Laboratory. There is nothing, in the said affidavit, that the sample impression of the seal was handed over to Shingara Ram, Constable, for deposit in the office of the Forensic Science Laboratory. When the sample seal was not handed over to Shingara Ram, Constable, for deposit in the office of the Forensic Science Laboratory, it Crl. Appeal No.882-SB of 1998 6 is not known, as to wherefrom the said specimen seal came in the office of the Forensic Science Laboratory. Under these circumstances, the report Ex.PB, of the Forensic Science laboratory, to the effect that the seals, on the parcel were found intact and tallied with the specimen seal, as per forwarding authority, became doubtful. 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 instant case, also became doubtful. The trial Court, did not take into consideration, this aspect of the matter,as a result whereof, miscarriage of justice occasioned. 12. 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. 13. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 2.9.1998, and the order of sentence dated 3.9.1998, are set 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 27, 2008 (SHAM SUNDER) Vimal JUDGE