Criminal Misc. No. 321-MA of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 321-MA of 2008 Date of Decision: 31.10.2008 State of Haryana ... Applicant/Appellant Versus Dharampal ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. A.K. Jindal, AAG, Haryana, for the applicant/appellant. Mr. Parminder Singh, Advocate, for the respondent. SHAM SUNDER, J. This petition, under Section 378(3) Cr.P.C. (amended upto date), has been filed by the State of Haryana, applicant/appellant, seeking leave, to institute an appeal, against the judgment of acquittal, dated 29.03.2008, rendered by the Judge, Special Court, Karnal. 2. On 30.12.2004, ASI Varinder Singh, CIA Staff, Karnal alongwith EASI Ashok Kumar, Head Constable Parmal Singh, Constable Bijinder Singh, and Constable Amarjeet Singh, in a government vehicle TATA Sumo bearing No. HR-05E-8403, being driven by Head Constable Sewa Singh, was going from Gharaunda towards Arainpura Chaura and Sadarpur, in connection with crime detection, and when they reached in the area of village Arainpura at T point of village Kalram, the accused/respondent was seen coming from the side of village Arainpura, Criminal Misc. No. 321-MA of 2008 2 having a cloth bag, in his right hand, who on seeing the police party turned back, and started running towards village Arainpura. On suspicion, he was apprehended. He disclosed his name as Dharam Pal s/o Chunni Lal, r/o Gharaunda. As he was suspected to be carrying some narcotic substance, a notice, in terms of Section 50 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the Act only), was given to him. He opted for the search of bag, being carried by him, in the presence of a gazetted officer. Thereafter, the bag was searched, in the presence of Ashok Kumar, DSP, Assandh, as a result whereof, 5 kgs 200 gms poppy husk, was recovered. Two samples of 100 grams each, were taken out of the recovered poppy husk. The remaining poppy husk, was kept in the same bag. The samples and the bag, aforesaid, were converted into separate parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station. The statements of the witnesses were recorded. The accused/respondent was arrested. After the completion of investigation, he was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Constable Parveen Kumar (PW-1), ASI Jagdish Singh (PW-2), Constable Balraj Singh (PW-3), Sub Inspector Sandeep Singh (PW-4), DSP Ashok Kumar (PW-5), ASI Ashok Kumar (PW-6), and ASI Varinder Singh, Investigating Officer (PW-7). Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. Criminal Misc. No. 321-MA of 2008 3 5. The statement of the accused under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He did not lead evidence in defence. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, acquitted the accused, on the following grounds:- i. That no independent witness, despite availability was joined, as a result whereof, the case of the prosecution became doubtful. ii. That the sample was sent to the Forensic Science Laboratory after delay of four days, the same remained with the police officials and, as such, the possibility of tampering with the same, when no other evidence was produced, to complete the link evidence, could not be ruled out. 7. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. 8. The Counsel for the applicant-appellant, submitted that the trial Court, acquitted the accused, on flimsy grounds. He further submitted that an effort was made to join an independent witness, but none was ready. He further submitted that the other evidence, produced by the prosecution, was sufficient to bring home the guilt to the accused. It was further submitted that the mere delay of four days, in sending the sample, did not mean that the sample parcels were tampered with, at any point of time. 9. On the other hand, the Counsel for the respondent, submitted that Varinder Singh , ASI (PW-7), stated that, during investigation many persons came to the spot, and he tried to join Anchal Singh, Ex-Sarpanch of Village Arainpura and Daulat Singh, Ex-Chairman, Arainpura, but they expressed their inability, but no action was taken against them. He further submitted that such an explanation was furnished by Varinder Singh, ASI Criminal Misc. No. 321-MA of 2008 4 (PW-7), just with a view to cover up his lapse. He further submitted that neither any action was taken against these independent witnesses, for their non-joining the search and seizure, nor their names were recorded in any document. He further submitted that since the recovery of poppy husk allegedly effected, from the accused/respondent, was minor, the possibility of plantation of the same, against him, could not be ruled out. He further submitted that no evidence was led by the prosecution to prove that none tampered with the sample parcel, until the same reached the office of the Forensic Science Laboratory and, as such, delay of four days was fatal. He further submitted that the judgment of the trial Court is based on the correct appreciation of the evidence and law, on the point, and does not suffer from illegality or perversity. 10. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, no ground is made out, for grant of leave, for instituting the appeal, against the Judgement of acquittal dated 29.03.08, for the reasons to be recorded hereinafter. From the perusal of the judgment, it appears that actually, no effort was made by the Investigating Officer, to join an independent witness. He mentioned the names of two persons i.e. Anchal Singh, Ex- Sarpanch of Village Arainpura and Daulat Singh, Ex-Chairman, Arainpura, who according to him, refused to join. Neither their names were recorded in the Ruqa, nor in the case diary, nor in any other document, nor any action was taken against them, on their alleged refusal to join search and seizure. It, therefore, could be said that such an explanation was furnished by the Investigating Officer, just with a view to cover up his lapse. Since, the minimum stringent punishment is provided for the offences, punishable Criminal Misc. No. 321-MA of 2008 5 under the Act, and according to the provisions of Section 51 of the Act, the provisions of the Code of Criminal Procedure, relating to search, seizure and arrest shall apply to the extent the same are not inconsistent with the provisions of the Act, it was imperative, on the part of the Investigating Officer, to join an independent witness, at the time of the alleged search, and seizure or at least to make a genuine, sincere and real effort, to join such a witness. The search and seizure, before an independent witness, would have imparted much more authenticity, and creditworthiness, to the proceedings, so conducted. It would have also verily strengthen the prosecution case. The said safeguard was also intended to avoid criticism of arbitrary and high-handed action, against the authorized Officer. In other words, the Legislature, in its wisdom, considered it necessary to provide such a statutory safeguard, to lend credibility to the procedure, relating to search and seizure, keeping in view the severe punishment, prescribed under the Act. That being so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute, and failure to do so, must be viewed with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of statutory safeguards, committed by the authorized officer, during search and seizure operation and may also undermine respect of law. That cannot be permitted. In the instant case, the alleged recovery being minor, now falling within the ambit of non-commercial quantity, and chances of plantation of the same, against the accused, could not be ruled out, it became the bounden duty of the Investigating Officer, to observe all the safeguards, provided under the Act, at the time of search and seizure. It is, no doubt, true that, in the absence of corroboration through an Criminal Misc. No. 321-MA of 2008 6 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, 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. Bhupinder Singh 2001 (01) RCR (Crl.) 356, a Division Bench of this Court, held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the recovery was effected from a busy locality. In State of Punjab Vs. Ram Chand 2001 (1) RCR (Crl.) 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. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution, became highly doubtful. The trial Court was also right, in holding so. 11. Though the alleged recovery was effected on 30.12.2004, yet the samples were sent to the office of the Forensic Science Laboratory after the delay of four days, and the same was not explained, by the prosecution witnesses. Under these circumstances, the possibility of tampering with the Criminal Misc. No. 321-MA of 2008 7 case property, and the sample parcels, could not be ruled out, especially, when the samples and the seals remained with the police officials throughout. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the samples, till the same reached the office of the Forensic Science Laboratory. Since, the samples were allegedly sent to the office of the Forensic Science Laboratory, after the delay of four days, it could not be safely held that the same remained un-tampered with. This fact cast 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 State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. 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. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The trial Court was right in coming to the conclusion that the possibility of tampering with the sample could not be ruled out Criminal Misc. No. 321-MA of 2008 8 12. The judgement of the trial Court, is based on the correct appreciation of evidence, and law on the point. It does not suffer from any illegality or perversity. It is a settled principle of law, that if two views are possible, from the evidence, produced, one favourable to the accused and the other to the prosecution, then the former shall prevail over the latter. The Appellate Court can only interfere with the judgment of acquittal, if it comes to the conclusion, that the trial Court, misread or did not appreciate the evidence, in its proper perspective, or that the judgment suffered from inherent illegality or perversity. As stated above, since the judgment of the trial Court, does not suffer from any illegality and perversity and the view taken by it, could be said to be possible, on the basis of the evidence, no ground to interfere with the same, is made out. Accordingly, Criminal Misc. No. 321-MA of 2008, deserves to be dismissed. 13. For the reasons, recorded above, Criminal Misc. No. 321-MA of 2008, seeking leave to institute an appeal, against the judgment of acquittal, dated 29.03.2008, rendered by the Judge, Special Court, Karnal, being devoid of merit, is dismissed. 31.10.2008 (SHAM SUNDER) AMODH JUDGE