Crl. Appeal No.182-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.182-SB of 1998 Date of Decision : March 26, 2008 Mohinder Singh S/o Gulab Singh, ....Appellant R/o Kailash, P.S.Dhan Khurd, District Ferozpur. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Narottam Kaushal, 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 4.3.1998, and the order of sentence of the even date, rendered by the Court of Addl. Sessions Judge, Panipat, vide which it convicted the accused/appellant Mohinder 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 two years. 2. The facts, in brief are that on 27.7.1996, Zile Singh, SI, alongwith other police officials, was proceeding towards G.T.Road, from village Manana, for patrol duty and detection of crime, and when they reached near G.T.Road, the accused was seen coming, who was apprehended, on suspicion. Search of the bag, being carried by him, was conducted, in accordance with the provisions of law, in the presence of the D.S.P., who reached the spot, on the basis of the Crl. Appeal No.182-SB of 1998 2 message sent to him, and the same was found containing 20 Kgs. poppy straw. A sample of 200 grams, was separated therefrom, and the remaining poppy straw was put into the same bag. The sample, and the remaining poppy straw, were converted into parcels, duly sealed, with the seals, bearing impressions 'ZS' and 'MS', and thereafter, the same were taken into possession. The accused was arrested. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. 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 Krishan Chand, HC (PW-1), Randhir Singh, SI (PW-2), Dalbir Singh, Constable (PW-3), Jai Narain, HC (PW-4), and Zile Singh, SI (PW-5). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 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. 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.182-SB of 1998 3 9. The Counsel for the appellant, at the very outset, contended that the alleged recovery was effected on 27.7.1996, whereas, the sample was sent to the office of the Forensic Science Laboratory, on 9.8.1996, and, the seal after use was handed over to Jai Narain, HC, a junior official, by Zile Singh, SI, the Investigating Officer. He further contended that no explanation was furnished by the prosecution witnesses, as to why a delay of 12/13 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 12/13 days, in sending the sample to the office of the Forensic Science Laboratory. 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 12/13 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 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 Crl. Appeal No.182-SB of 1998 4 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 12/13 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. 10. It was next contended by the Counsel for the appellant, that though the alleged recovery was effected, from the accused, from a public place, 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. Zile Singh, SI (PW-5), during the course of his cross-examination stated that, no public person was available at the spot, for joining in the investigation. He further stated that he had no knowledge, as to whether the Tehsildar, was present in his office or not. This statement of Zile Singh, SI, does not appear to be correct. The alleged recovery was effected from the G.T.Road, where a number of persons, could be said to be passing. Since, the public witnesses, were not intentionally and deliberately joined, despite availability, a doubt is cast on the prosecution story. In similar circumstances, in Hawa Singh Vs. State of Haryana 2005(4) RCR (Criminal) 292, when 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, (D.B.) (P&H), and Crl. Appeal No.182-SB of 1998 5 State of Punjab Vs. Bhupinder Singh 2001(1) RCR (Criminal) 356 (D.B.) (P&H), the independent witnesses, despite availability, were not joined, and, as such, the case of the prosecution was held to be doubtful. In these circumstances, it was held that the case of the prosecution became doubtful. The evidence of the official witness, on which the case of the prosecution rests, has been carefully perused, and there are so many infirmities therein, as would be discussed, in the subsequent paragraphs. On account of this reason too, non- joining of an independent witness, despite availability, casts 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. 11. Ex.PB is the affidavit of Dalbir Singh, Constable. In Para No.3 of his affidavit, it was stated by him, that on 9.8.1996, he deposited the parcel and handed over the deposit receipt to the MHC. He did not state even a single word, as to whether, the said parcel, was bearing the seals, and, if so, what were the impressions of those seals. He also did not state in Para No.3 of his affidavit, that he was handed over the sample seal, and he deposited the same in the office of the Forensic Science Laboratory. Zile Singh, SI, (PW-5), stated that he reached the Police Station, alongwith the accused witnesses, sample, and the case property, which were produced by him before Randhir Singh, SHO. Randhir Singh, SHO, after making enquiry affixed his seal bearing impression 'RS', on the sample and the case property, and the same were returned to him, which he handed over to the MMHC, with seals intact. Even Zile Singh, SI, did not state that any sample impression of the seal was deposited with the MMHC. Since, Zile Singh, SI, did not hand over the sample impression of the seal to the MMHC, the question of deposit of the same, in the office of the Forensic Science Laboratory, did not at all arise. It, therefore, could be said that there was no material with the Forensic Science Laboratory to come to the Crl. Appeal No.182-SB of 1998 6 conclusion, that the seals on the parcel, were the same, as were affixed at the time of seizure, and tallied with the sample seal. However, the Forensic Science Laboratory, recorded a certificate that the seals on the sample, were found intact, and tallied with the specimen seal, as per the forwarding authority. It is not known, as to from which material, it recorded this certificate. This part of the report, Ex.PF, of the Forensic Science Laboratory is, therefore, 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. 12. 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 Vs. State of Haryana 2001 (1) RCR (Criminal) 702 (S.C.), it was held that non-compliance of the provisions of 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 was Crl. Appeal No.182-SB of 1998 7 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 of whereof, it committed an error in recording conviction and awarding sentence. 13. Even the provisions of Section 55 of the Act, though the same are directory in nature, were not complied with by the Investigating Officer. According to Section 55 of the Act, an officer Incharge of a Police Station, shall take charge of and keep in safe custody, pending the orders of the Magistrate, all the articles seized, within the local area of that Police Station, and which may be delivered to him, and shall allow any officer, who may accompany such articles to the Police Station, or who may be deputed for the purpose to affix his seal to such articles, or to take samples of and from them and all samples so taken shall also be sealed with a seal of the Officer Incharge of the Police Station. This provision casts a duty on the Officer Incharge of the Police Station, to produce the case property, before a Magistrate, and obtain his orders, with regard to the factum, that the seals on the case property, as also on the sample parcel were intact. If, the case property and the sample, are produced, immediately after the seizure, before the Magistrate, and he verifies the factum of intactness of the seals, on the same, and also affixes his own seal thereon, by passing a separate order, in regard thereto, then certainly a genuineness is lent to the recovery proceedings. Why this provision was not strictly complied with, by Crl. Appeal No.182-SB of 1998 8 the Investigating Officer, is not known. No explanation, is forthcoming, from his mouth, as to what prevented him (the Investigating Officer) from producing the case property, and the sample parcel, before the Magistrate. In this case, the provisions of Section 55 were intentionally and deliberately observed more in breach, than in compliance, by the Investigating Officer. 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, casts a cloud of doubt, on the prosecution case. Similar principle of law, was laid down, in Gurbax Singh,s case (supra). 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. 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. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 4.3.1998, are set Crl. Appeal No.182-SB of 1998 9 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 26, 2008 (SHAM SUNDER) Vimal JUDGE