Crl. Appeal No.698-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.698-SB of 1998 Date of Decision : March 27, 2008 Amarjit Singh S/o Mohinder Singh, ....Appellant R/o Village Dhapali. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: None 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 4.7.1998, and the order of sentence of the even date, rendered by the Court of Addl. Sessions Judge, Bathinda, vide which it convicted the accused/appellant Amarjit 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 six months. 2. The facts, in brief are that on 18.8.1996, Ajaib Singh, ASI, alongwith other police officials, including Gurinder Singh, HC, was going from village Lehra Dhur Kot to village Kotra Keurian Wala via Kacha Rasta, in connection with patrol duty. Jagdev Singh was joined in the police party, from village Lehra Dhur Kot, and when the police party reached in the Revenue Limits of village Kotra Kaurian Wala, near the bridge of the Canal Minor, Amarjit Singh, accused, was seen coming from the opposite direction, who on seeing the police party, tried to slip away, towards his left hand, but was Crl. Appeal No.698-SB of 1998 2 apprehended, on suspicion. On enquiry, he disclosed his name as Amarjit Singh. He was carrying a gunny bag, at that time. Search of the gunny bag, being carried by the accused, was conducted, in accordance with the provisions of law, in the presence of Varinder Kumar, IPS, ASP, Phul, who came to the spot, on receipt of wireless message, which resulted into the recovery of 12 Kgs. Poppy-husk. 100 grams poppy-husk was separated therefrom, as a sample, and the remaining poppy-husk, was put into the same bag. The sample and the remaining poppy-husk, were converted into parcels, duly sealed, with the seal, bearing impression 'AS', and thereafter, the same were taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. The statements of the witnesses, were recorded. The accused was arrested. 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 Ajaib Singh, ASI (PW-1), Santokh Singh, ASI (PW-2), Varinder Kumar, IPS, S.P.(H) (PW-3), and Om Parkash, Constable, (PW-4). Thereafter, the Addl. Public Prosecutor for the State, gave up Jagdev Singh, independent witness, and 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 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. Crl. Appeal No.698-SB of 1998 3 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. None appeared on behalf of the appellant, despite due notice, that the appeal was fixed for regular hearing, on the board of this Bench. 9. I have heard Mr. S.S.Bhullar, DAG, Punjab, for the respondent, and have gone through the evidence and record of the case, carefully. 10. It is the duty of the prosecution to prove affirmatively that right from the seizure, till the sample reached the office of the Chemical Examiner, there was no possibility of changing the contents thereof, or tampering with the same. Now, let us see, as to whether, in the instant case, the prosecution, proved beyond a reasonable doubt, that none tampered with the sample parcel, until it was deposited in the office of the Chemical Examiner. According to Ajaib Singh, the Investigating Officer, sample impression of the seal was prepared. Varinder Kumar, ASP, also deposed that the sample impression of the seal was prepared. However, Om Parkash, Constable, (PW-4), who was handed the sample for deposit of the same, in the office of the Chemical Examiner, during the course of cross-examination stated that except docket and the sample parcel, nothing else was deposited by him in the Forensic Science Laboratory. He further stated that docket Ex.PH, did not bear the sample seal. Ex.PG is the affidavit of Om Parkash, Constable, which does not speak of the factum, that he was handed over the sample impression of the seal, for deposit in the office of the Chemical Examiner. Since, sample impression of the seal, was not handed over to Om Parkash, Constable, the question of deposit of the same, in the office of Chemical Examiner, did not at all arise. No doubt, there is stamp affixed on Ex.PH, report of the Chemical Examiner, that the seals on the exhibits were intact and agreed with the sample seal sent. It is not known, as to how, this rubber stamp was affixed on Ex.PH, the report of the Chemical Crl. Appeal No.698-SB of 1998 4 Examiner, when there is no independent evidence, on the record, that the sample seal, was deposited with the Chemical Examiner. This certificate, therefore, does not appear to be correct. In these circumstances, the possibility of tampering with the sample, and changing the contents thereof, until the same reached the office of the Chemical Examiner, could not be ruled out. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the sample impression of the seal was not sent to the Laboratory, for the comparison of the seals, on the samples. It was held that, therefore, there was no evidence to prove satisfactorily that the seals found were, in fact, the same, as were affixed on the sample parcel, immediately after seizure of the contraband. The principle of law, laid down, in the aforesaid authority, is fully applicable, to the facts of the present case. In the instant case, since, no sample impression of the seal was deposited, with the Chemical Examiner, it could not be said that the seals, which were found, on the sample parcel, were, in fact, the same, as were affixed, immediately after the seizure of the contraband. This clearly proved that the link evidence, in the instant case, was incomplete. This important aspect of the matter, was not taken into consideration, by the trial Court, and, thus, it fell into error, in recording conviction, and awarding sentence to the accused. Non-completion of link evidence, on account of the aforesaid factum, made the case of the prosecution highly doubtful. 11. Jagdev Singh, independent witness, was joined by the Investigating Officer, at the time of effecting the alleged recovery, but he was given up as won over, by the accused, by the Addl. P.P. for the State, vide his statement dated 3.3.1998. There is nothing, in the statement of the Addl.P.P. for the State, as to on the basis of which data or material, he came to the conclusion, that this witness had been won over, by the accused. There is nothing, on the record, that any application was moved, by the Investigating Officer, that he had come to know, from reliable sources, that Jagdev Singh, Crl. Appeal No.698-SB of 1998 5 independent witness, was not going to support the case of the prosecution, and, thus, he was giving him up as won over. It is, no doubt, true that the Public Prosecutor for the State, is the master of the case. It is for him, to decide, as to which witness he wanted to examine and as to which witness, he did not want to examine. However, such discretion is required to be exercised by the Public Prosecutor, in accordance with the sound Judicial principles, and not arbitrarily and capriciously. In the instant case, in the absence of any data or material, which persuaded the Public Prosecutor to give up this witness, as won over, it could be said that the discretion was exercised by him, arbitrarily and capriciously. It is, no doubt, true that, in the absence of corroboration, through an independent source, to the evidence of the official witnesses, the case of the prosecution cannot be thrown out, simply on that ground. However, when an independent witness was joined, but was given up, without any rhyme or reason, then certainly a doubt is cast, on the prosecution story. Had Jagdev Singh, independent witness been examined, light would have been thrown, on the facts and circumstances of the case, and credence would have been lent to the prosecution case, solely based on the evidence of the official witnesses. It is, no doubt, true that, in the absence of corroboration through an 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. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided Crl. Appeal No.698-SB of 1998 6 by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution, became doubtful. In the instant case, non-examination of Jagdev Singh, made the case of the prosecution doubtful, as the evidence of the official witnesses, does not inspire confidence, on account of the reason that it suffers from many infirmities and lacunae. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error in recording conviction, and awarding sentence, to the accused. 12. The alleged recovery was effected on 18.8.1996, whereas the sample was sent to the office of the Chemical Examiner, on 29.8.1996, and the analysis was completed on 23.9.1996. It means that the sample was sent to the office of the Chemical Examiner after 11 days of the alleged recovery. Mere delay in sending the sample, if the other evidence produced, with regard to the proof of completion of link evidence, is found to be reliable, and trustworthy, would not, in a particular case, cast a doubt, on the prosecution story. If, however, the other evidence, on this aspect of the matter, is found to be unreliable and untrustworthy, then certainly unexplained delay in sending the sample, cast a doubt, on the prosecution case. In the instant case, the other evidence produced, as stated above, does not inspire confidence. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58 (S.C.), the contraband remained in the malkhana for 15 days. 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, it was held that the case of the prosecution became doubtful. 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. Ultimately, the appellant was acquitted in that case. In view of the peculiar Crl. Appeal No.698-SB of 1998 7 facts and circumstances of the case, this infirmity cast a doubt on the prosecution case. 13. 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. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 4.7.1998, 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