Crl. Appeal No.35-SB of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.35-SB of 1996 Date of Decision : May 28, 2008 Hari Chand S/o Man Singh, ....Appellant R/o Madina. Versus The State of Haryana ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. K.S.Sidhu, Sr. Advocate, with Mr. Vikrant Oberoi, 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 11.11.1995, and the order of sentence dated 13.11.1995, rendered by the Court of Addl. Sessions Judge, Rohtak, vide which it convicted the accused/appellant, for the offence, punishable under Section 20 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 three years, for having been found in possession of 500 grams charas, without any permit or licence. 2. The facts, in brief, are that on 13.7.1994, Inder Singh, SI/SHO, Crl. Appeal No.35-SB of 1996 2 alongwith Hardawari Lal, ASI, and other police officials, was on patrol duty, in his official jeep, going from village Madina towards village Girawar, and when reached at Madina turning, a person was found sitting there. On suspicion, he was apprehended. He told his name as Hari Chand. On search, in the presence of the DSP, who was called to the spot, by sending a message, 500 grams charas, was recovered, from a polythene bag, underneath his shirt. A sample of 10 grams was taken out, and the remaining charas, was put into a separate container. The sample, and the container, containing the remaining charas, were sconverted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. 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 20 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 Anil Dhawan, DSP (PW-1), Hardawari Lal, ASI (PW-2), and Inder Singh, SI/SHO (PW-3). The Public Prosecutor for the State, tendered into evidence affidavits, Ex.PH of Raghbir Singh, HC, Ex.PJ, of Jagat Singh, Constable, and Ex.PK of Som Pal, Constable. Thereafter, he 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 gone to the Police Station, to take a sum of Rs.7000/- from Inder Singh, SI/SHO, who had taken a buffalo from him, on credit. It was further stated by him, that on demanding the price of buffalo, Inder Singh, SI/SHO, became annoyed and planted this false case against him. He, however, Crl. Appeal No.35-SB of 1996 3 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/appellant, 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 out-set, submitted that the mandatory provisions of Section 50 of the Act, were not complied with, in the instant case, and, as such, the very investigation, and the trial, stood vitiated. The submission of the Counsel for the appellant, appears to be correct. In the instant case, the alleged recovery was effected from the person of the appellant. In these circumstances, the mandatory provisions of Section 50 of the Act, were applicable to the facts of the present case. Anil Dhawan, DSP (PW-1), stated that he offered his search to the accused, and, thereafter, conducted his (accused) search, as a result whereof, recovery of charas was effected from his person. Hardawari Lal, ASI (PW-2), stated that the statement of the accused was recorded, as to whether, he wanted his search to be conducted, before the Magistrate. He did not state that the accused was given an offer that whether he wanted his search to be conducted, before a Gazetted Officer or a Magistrate. Inder Singh, SI/SHO (PW-3), the Investigating Officer, stated that the accused opted to be searched by some Gazetted Officer. He did not state even a single word, as to whether, he asked the accused, as to whether, he wanted his search, to be conducted, before a Gazetted Officer or a Magistrate. In the State of Punjab Vs. Balbir Singh, 1994(1) RCR (Crl.) 737, the principle of law, laid down, was to the effect that the provisions of Section 50 of the Act, are Crl. Appeal No.35-SB of 1996 4 mandatory, and their non-compliance must prove fatal, resulting into acquittal of the accused. In similar circumstances, in Inderjit Singh Vs. State of Haryana, 1997 (2) RCR 114, only a partial offer, had been given to the accused, as to whether, he wanted his search to be conducted, before a Gazetted Officer, and this Court, held that such an offer, being partial, there was complete violation of the provisions of Section 50 of the Act, and the accused was entitled to acquittal. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In this view of the matter, non-compliance of the mandatory provisions of Section 50 of the Act, in its entirety, must prove fatal to the case of the prosecution, and result into acquittal of the appellant. The submission of the Counsel for the appellant, carries substance, and stands accepted. 10. It was next submitted by the Counsel for the appellant, that though the alleged recovery, in this case was effected on 13.7.1994, yet the sample parcels were deposited in the office of Forensic Science Laboratory, on 19.7.1994, and, thus there was a delay of 6 days. He further submitted that the delay of 6 days, in sending the sample, to the office of the Forensic Science Laboratory, was not explained, by the prosecution witnesses, as a result whereof, it could not be safely held, that the sample remained untampered with, until it reached the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true that if the other evidence is cogent and convincing, to prove that none tampered with the sample parcel, until it reached the office of the Forensic Science Labortory, then mere delay in sending the same, in itself, is not sufficient to doubt the prosecution story. However, if the other evidence is neither cogent, nor reliable, then certainly a doubt is cast on the prosecution story, that the sample might have been tampered with, until it reached the office of the Forensic Science Laboratory. In the instant case, the other evidence Crl. Appeal No.35-SB of 1996 5 produced by the prosecution, besides being deficient, is not reliable. In State of Punjab Vs. Jaswant Singh 2002(3) RCR (Crl.) 54, there was a delay of 21 days, in sending the sample to the office of the Chemical Examiner. The other evidence led by the prosecution was also not reliable. Under these circumstances, it was held by a Division Bench of this Court, that delay in sending the sample to the office of the Chemical Examiner, would prove fatal to the case of the prosecution, especially when admittedly, no independent witness was joined in the recovery proceedings, and the seal used for sealing the sample, remained with the police officials, during the period. 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. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In the instant case, the delay in sending the sample, proved fatal to the case of the prosecution, but the trial Court, did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. The submission of the Counsel for the appellant, in this regard, carries substance, and is accepted. 11. 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, Crl. Appeal No.35-SB of 1996 6 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 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 of 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 whereof, it committed an error, in recording conviction and awarding sentence. 12. 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. 13. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 11.11.1995, and the order of sentence dated Crl. Appeal No.35-SB of 1996 7 13.11.1995, 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. May 28, 2008 (SHAM SUNDER) Vimal JUDGE