Crl. Appeal No.640-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.640-SB of 1998 Date of Decision : April 22, 2008 Harnam Singh S/o Chhota Singh, ....Appellant R/o Sher Khan Wala. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. A.K.Khunger, Advocte, 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 Harnam 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, for having been found in possession of 27 Kgs. 100 grams poppy-husk, now falling within the ambit of non-commercial quantity, without any permit or licence. 2. The facts, in brief are that on 11.9.1994, at about 6.15 PM, Gurdeep Singh, Inspector, alongwith other police officials, under the supervision of the DSP, was going from village Darayapur via kacha passage, in connection with patrolling, and when the police party was one kilometer short of village Phuluwala Dod, the accused was seen coming on his bicycle. He was carrying a bag, on the carrier of his bicycle. On seeing the police party, Crl. Appeal No.640-SB of 1998 2 he got nervous, and tried to slip away, on the unmettled passage, after leaving the bicycle, but was apprehended, on suspicion. On search of the bag, being carried by the accused, on the carrier of his bicycle, in accordance with the provisions of law, 27 Kgs. 100 grams poppy-husk, was recovered. A sample of 100 grams was separated therefrom, 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 'GS', and taken into possession. Personal search of the accused was also conducted. 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. 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 Lakhwant Singh, Constable (PW-1), Narinder Nath, DSP, (PW-2), and Gurdeep Singh, Inspector (PW-3). Thereafter, the Addl. 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. It was stated by him, that he had been falsely involved, in the instant case, at the instance of Jit Singh, who is inimical to him. In his defence, he examined Ajaib Singh (DW-1), and thereafter, closed the same. 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 Crl. Appeal No.640-SB of 1998 3 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. 9. The Counsel for the appellant, at the very outset, 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, at the time of the alleged search and seizure. 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. Gurdeep Singh, Inspector (PW-3), during the course of his cross-examination stated that he did not notice that a number of persons passed by their side. He further stated that village Daryapur is at a distance of 1/1 ½ kilometers, from the place of recovery. He further stated that village Phulowala Dod, is also at the same distance, from the place of recovery. He further stated that the Sarpanches and Namberdars, were available in both these villages. He further stated that the Sarpanch, Namberdar, and Member Panchayat, of these villages, were not joined, with the police party, at the time of the alleged search and seizure. From the statement of Gurdeep Singh, Inspector, it is proved, that no effort was made to join an independent witness, at the time of the alleged search and seizure. 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, despite availability, the accused was acquitted, in a case of recovery of 20 Kgs. of poppy-husk. In State of Punjab Crl. Appeal No.640-SB of 1998 4 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. 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 11.9.1994, yet, the sample was sent to the office of the Chemical Examiner, on 15.9.1994, though the seal remained with the Police officials. He further contended that no explanation was furnished by the prosecution witnesses, as to why a delay of 5 days was caused, in sending the sample, and whether the sample remained untampered with, until it reached the office of the Chemical Examiner. He further contended that the case of the prosecution became doubtful, on account of this reason. 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 5 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 Chemical Examiner. Since, the sample was allegedly sent to the office of the Chemical Examiner, after about 5 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 Crl. Appeal No.640-SB of 1998 5 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 Chemical Examiner. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. 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 5 days, in sending the sample to the office of the Chemical Examiner, 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. It was next submitted by the Counsel for the appellant that the sample impression of the seal, was not deposited with the Chemical Examiner. He invited my pointed attention to Ex.PA, affidavit of Lakhwant Singh, Constable, who stated that on 14.9.1994, after getting the docket issued from the office of the S.S.P., he deposited the sample parcel of this case, in the office of the Chemical Examiner, and after deposit of the same, handed over the receipt to the MHC. It means that sample impression of the seal, was never handed over to him, and, as such, the question of deposit thereof, in the office of the Chemical Examiner, did not at all arise. No doubt, in Ex.PJ, report of the Chemical Examiner, the rubber stamp was affixed, that the seal on the sample Crl. Appeal No.640-SB of 1998 6 parcels, tallied with the specimen seal sent. It is not known, as to how the Chemical Examiner, came to this conclusion, when the sample seal, as per the affidavit of Lakhwant Singh, Constable, was not deposited with him. This part of the report of the Chemical Examiner, does not appear to be correct. 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. Narinder Nath, DSP (PW-2), during the course of his cross- examination, stated that he remained at the spot till 8.00 PM. He further stated that the recovery memos were prepared, before sending the ruqa. He further stated that similarly the memo regarding disclosure of grounds of arrest, was also prepared before sending the ruqa. He further stated that his statement was recorded after sending the ruqa, but before the Constable, who carried the ruqa, reached back the spot. When these documents were prepared, after sending the ruqa, how the same bore the FIR Number, was not explained by this witness, or any other witness. Had he explained, as to how the FIR number, in these documents, was incorporated, the matter would have been considered, in the light thereof. Even Gurdeep Singh, Inspector, did not state even a single word, as to how, the FIR number, in the aforesaid documents, was incorporated, when the FIR number had not been received, when the same were prepared. This clearly casts a doubt, on the prosecution story, that either the alleged seizure was not effected, in the manner deposed to, by the prosecution witnesses, or at least one of them was not present, at the time of the alleged recovery. In this view of the matter, the case of the prosecution became highly doubtful. This Crl. Appeal No.640-SB of 1998 7 important aspect of the matter, was not taken into consideration, by the trial Court, as a result whereof, miscarriage of justice occasioned. 13. There is another lacuna, in the case of the prosecution, which must prove fatal to it. Narinder Nath, DSP, (PW-2) stated that when the accused was apprehended, he was asked by Gurdeep Singh, Inspector, whether he wanted to be searched before a Magistrate or a DSP. He further stated that the accused reposed faith in him, and, thereafter, Gurdeep Singh, Inspector, conducted the search of the bag, being carried by the accused. On the other hand, Gurdeep Singh, Inspector (PW-3), did not state even a single word, in his statement, that the accused was asked by him, as to whether, he wanted his search to be conducted in the presence of a DSP, or a Magistrate. He, during the course of his cross-examination, stated that no consent memo, in writing, was prepared. He, however, stated that he recorded in the ruqa that option was given to the accused, as to whether, he wanted the search to be conducted, in the presence of a Magistrate or a DSP. However, Ex.PE, ruqa recorded by him, does not reveal this factum. No doubt, in the instant case, it was not necessary to give an option to the accused, regarding his search, before a Magistrte or a Gazetted Officer, as the recovery was not effected from his personal search, but from a bag, being carried by him, yet, when it was the definite case, set up by Narinder Nath, DSP (PW-2), in his statement, that such an option was given to the accused, then it was required to be proved beyond a reasonable doubt, so as to satisfy the Court, as to whether, the proceedings were actually conducted, in the manner, deposed to by the witnesses or not. Absence of this fact, in the statement of Gurdeep Singh, Inspector, the Investigting Officer, as also in the ruqa, Ex.PE, clearly showed that either no recovery was allegedly effected from the accused, or one of these witnesses, was not present, at the time of the alleged search and seizure. Since, the case of the prosecution is solely based on the evidence of the official witnesses, and minimum stringent punishment is Crl. Appeal No.640-SB of 1998 8 provided for the commission of the offences, under the Act, various tests are required to applied to cross-check, as to whether, the witnesses were present at the time of the alleged search and seizure, or not, so as to ensure that the minimum statutory safeguards, which are provided in the Act, are observed and no innocent is implicated. This fact also casts a doubt, on the prosecution story. 14. The case of the accused, in his statement under Section 313 Cr.P.C., was to the effect, that he was falsely implicated, in the instant case, at the instance of Jit Singh, who was inimical to him. In this regard, he examined Ajaib Singh (DW-1). Ajaib Singh (DW-1), in his statement, stated that there was altercation between the accused and Jit Singh, of their village. He further stated that, in view of that altercation, the police took both of them to the Police Station. He further stated that no compromise was arrived at, between the parties, in the Police Station. He further stated that Harnam Singh, accused, was being unnecessarily harassed by the police, at the instance of Jit Singh. He was not released from the Police Station, on that day, and after a few days, he (Ajaib Singh) came to know that the accused was falsely implicated, in the instant case. He further stated that, in his presence , and in the presence of some other persons, the father of the accused filed an application before the D.S.P., Mansa, who kept the application, and assured for taking necessary action, but no action was taken. The version set up by the accused appears to be correct. No question, was put to Ajaib Singh (DW-1), during the course of his cross-examination, that no altercation took place, between the accused and Jit Singh. No question, was also put to him, that he and Jit Singh, were not taken to the Police Station, in view of that altercation. No question was put to him, during the course of his cross-examination, that no application was moved by the father of the accused, before the D.S.P., Mansa, regarding his (accused) false implication. It means that the veracity of Ajaib Singh (DW-1), was not shattered, during the course of cross-examination. He was not cross-examined Crl. Appeal No.640-SB of 1998 9 on material points, deposed to by him, in his examination-in-chief. If a person is falsely implicated, the only remedy with him, or his kith and kin, is to move an application, before the higher Police Authorities, expressing their grievance. The father of the accused, in the instant case, lost no time, in moving an application, before the D.S.P., that no recovery was effected from the accused, but he was falsely implicated, in the instant case, at the instance of Jit Singh, of their village, by the Police. No action was, however, taken thereon. The defence version, therefore, was more probable than the prosecution version, and the accused was required to be given the benefit of doubt. The trial Court, however, failed to take into consideration the same, as a result whereof, miscarriage of justice occasioned. 15. 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. 16. 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. April 22, 2008 (SHAM SUNDER) Vimal JUDGE