IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Crl. Appeal No.586-SB of 1998 Date of decision : 29-04-2008 Karnail Singh @ Kaili son of Bishan Singh resident of village Mehmhra. .............Appellant State of Haryana ..............Respondent CORAM : HON'BLE MR. JUSTICE SHAM SUNDER Present : Mr. Vinod Arya, Advocate for the appellant. Mr. Ranbir Singh Arya, D.A.G., Haryana. Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 10.07.1998, rendered by the Court of Additional Sessions Judge, Hisar, vide which it convicted the accused/appellant Karnail Singh and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1,00,000/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years, for the offence, punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as `the Act’ only) for having been found in possession of 310 grams of opium, without any permit or licence, now falling within the ambit of non-commercial quantity. Crl. Appeal No.586-SB of 1998 -2- 2. The facts, in brief, are that on 02.08.1995, Sub Inspector Mahender Singh along with Guriya Ram and other police officials, was present in the area of village Mehmra near Mini Bank. In the meanwhile, Zora Singh, met the police party. When SI Mahender Singh was talking to Zora Singh, the accused was seen coming from the side of fields. On seeing the police party, he changed his direction. However, he was apprehended on suspicion. On personal search of the accused, in accordance with the provisions of law, 310 gms. opium, wrapped in a cloth tied by him, under his shirt, was recovered. A sample of 10 gms. was taken out and the remaining opium was put in a separate container, duly sealed and taken into possession vide recovery memo Ex.PB. Ruqa Ex.PD was sent to the Police Station, on the basis of which, formal FIR Ex.PD/1 was recorded. The accused was arrested. The statements of the witnesses, were recorded. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 18 of the Act, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Guriya Ram, ASI, PW1, Mahender Singh, Sub Inspector, PW2, Ramkishan, Head Constable, PW3, and Rattan Singh, Constable, PW4. 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, examined Jora Singh, DW1, in his defence. Crl. Appeal No.586-SB of 1998 -3- 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 correctness and legality of the judgment of conviction, and the order of sentence, 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, submitted that the link evidence, in this case was incomplete, in as much as, the sample impression of the seal was not deposited in the Forensic Science Laboratory. Exhibit PJ is the affidavit of Rattan Singh, Constable. He stated that he was handed over the sample, sealed with the seal bearing impression `BS'. He further stated that he deposited the same, in the Forensic Science Laboratory. He did not state that he was handed over the sample impression of the seal, or he deposited the same, in the Office of the Forensic Science Laboratory. Since neither this witness was handed over the sample seal nor could he deposit the same, in the Office of the Forensic Science Laboratory, it could not be said, as to whether, the seals, on the sample, were the same, as were allegedly affixed immediately after the alleged seizure. The prosecution, thus, miserably failed to prove that none tampered with the sample, until it reached the Office of the Forensic Science Laboratory. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Crl.) 58 (S.C.), the sample impression of the seal was not sent to the Office of the Chemical Examiner. It was, thus, held that there was no evidence to prove satisfactorily, that the seals affixed on the Crl. Appeal No.586-SB of 1998 -4- sample bottles, were the same, which were immediately affixed, after seizure of the contraband. Ultimately, the accused was acquitted by the Apex Court. In State of Rajasthan Vs. Daulat Ram 1980 SCC (Crl.) 683, it was held that the prosecution is required to prove beyond a reasonable doubt, all the links, in the evidence, starting from the seizure, until the deposit of the sample parcel, in the office of the Chemical Examiner. In that case, the parcel changed many hands, before it reached the office of the Chemical Examiner, and the prosecution miserably failed to prove the link evidence. In these circumstances, it was held by the Apex Court, in the aforesaid case, that the possibility of tampering with the parcel, until it reached the office of the Chemical Examiner, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of this case. In the instant case also, the possibility of tampering with the sample, could not be ruled out, the benefit of doubt whereof, must go the appellant-accused. The trial Court, however, failed to take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 10. It was next submitted by the Counsel for the appellant, that the alleged recovery was effected, in this case, on 02-08-1995, whereas, the sample was sent to the Office of the Forensic Science Laboratory, on 08-08-1995. It means that there was a delay of 6 days, in sending the sample to the Forensic Science Laboratory, Haryana, Madhuban (Karnal). Delay in sending the sample to the Office of the Forensic Science Laboratory, was not explained, by the prosecution witnesses. In these circumstances, the possibility of tampering with the sample parcel, until it reached the Forensic Science Laboratory, could not be ruled out. It is, no Crl. Appeal No.586-SB of 1998 -5- doubt, true that if the other evidence, produced by the prosecution, to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then the mere delay in sending the sample to the Office of the Forensic Science Laboratory, pales into insignificance. On the other hand, if the other evidence produced, in this regard, is found to be un- reliable, then certainly the delay assumes importance. In the instant case, the other evidence, produced by the prosecution, to prove the completion of link evidence, besides being deficient, is neither reliable, nor creditworthy. In these circumstances, the un-explained delay, referred to above, in sending the sample to the laboratory, certainly proved fatal to the case of the prosecution. In State of Rajasthan's case (supra), the contraband was kept in the Malkhana for 15 days. The Malkhana register was not produced, to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence, produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Examiner. In State of Punjab Vs. Jaswant Singh 2002(3) RCR (Criminal) 54 (Division Bench) (Punjab and Haryana), there was a delay of 21 days, in sending the sample to the Chemical Examiner. It was held that it would prove fatal to 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, Crl. Appeal No.586-SB of 1998 -6- the appellant was acquitted, in that case. The principle of law, laid down, in the aforesaid authorities, is applicable to the facts of the instant case. The case of the prosecution was rendered highly doubtful, on account of the aforesaid infirmity. The trial was completely remiss in ignoring this infirmity. 11. It was next submitted by the Counsel for the appellant, that there was a violation of the Provisions of Section 55 of the Act, as the case property and the sample were not produced before the Magistrate. The submission of the Counsel for the appellant, in this regard, appears to be correct. Section 55 of the Act lays down that an Officer Incharge of the Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized, under this Act, 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-in-charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the sample are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband was recovered, from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the search and seizure, the matter would have been considered, in the light Crl. Appeal No.586-SB of 1998 -7- thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh Vs. State of Haryana 2001(1) RCR (Crl.) 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, as such, failure will have bearing, on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, the Investigating Officer intentionally and deliberately breached the provisions of Section 55. He could not say that since the provisions of Section 55 are directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provisions, is an indicator towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Crl. Appeal No.586-SB of 1998 -8- Section 55 certainly caused prejudice to the accused, and cast a doubt on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof miscarriage of justice occasioned. 12. It was next contended by Counsel for the appellant, that there were certain contradictions and discrepancies, material in nature, which occurred in the statements of the prosecution witnesses, and remained un-explained and, as such, went to the root of the case of the prosecution. ASI Guriya Ram, PW1 had stated that the place of occurrence was close to the residential houses, while, Sub Inspector, Mahender Singh, PW2, stated that there was no residential house nearby ASI Guriya Ram, PW1, stated that the police party passed through many villages, while, Sub Inspector, Mahender Singh, PW2, stated that the police party went straight to the place of recovery. ASI Guriya Ram, PW1, stated that the writing work was done in the sun-light, while Sub-Inspector, Mahender Singh, PW2, stated that some of the writing work was done, in the sun-light, and some in the torch light. ASI Guriya Ram, PW1, stated that the tin was in the investigating bag, whereas, Sub Inspector, Mahender Singh, PW2, stated that the same was arranged from somewhere else. ASI Guriya Ram, PW1, stated that the writing work was done, while sitting on a chair, whereas, Sub Inspector, Mahender Singh, PW2, stated that it was done by keeping the papers, on the bon-net, of the vehicle. All these discrepancies, when taken cumulatively, must prove fatal to the case of the prosecution, especially when the recovery allegedly effected, in this case, was minor and the evidence of the official witnesses was not corrborated through an independent source. The accused could shatter the veracity of the evidence of the prosecution witnesses, by bringing out some material, during the course of their cross-examination, which may make their statements inconsistent with each other. Had any explanation been Crl. Appeal No.586-SB of 1998 -9- furnished, as to how these discrepancies occurred, the matter would have been considered, in the light thereof. In the absence of any explanation having been furnished, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Occurrence of these unexplained discrepancies, and contradictions, when taken cumulatively, affect the merits of the case. These also go to indicate that either one of the prosecution witnesses, was not present, at the time of effecting the alleged recovery, or no recovery was at all effected. The case of the prosecution, therefore, becomes doubtful, on account of the aforesaid reasons. 13. No other point, was urged, by the Counsel for the parties. 14. In view of the above discussion, it is held that the judgment of the trial Court, is not based, on the correct appreciation of evidence, and law, on the point. The trial Court, also failed to take into consideration, the aforesaid infirmities and lacunae, in the prosecution case, as a result whereof, it fell into an error, in recording conviction and awarding sentence. The judgment of the trial Court, warrants interference, and is 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 10-07-1998, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of the bail bonds. If he is in custody, he shall be set at liberty, at once, if not required, in any other case. (SHAM SUNDER) JUDGE April 29,2008 gurpreet