Criminal Appeal No. 814-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 814-SB of 2005 Date of decision : February 13, 2008 Raja alias Sukhraj Singh ... Appellant Versus State of Haryana ... Respondent ... Present: Mr. G. S. Sidhu, Advocate for the appellant. Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, for respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This appeal has been directed against the judgment dated 18.2.2005/order of sentence dated 21.2.2005 rendered by the Court of learned Additional Sessions Judge, Sirsa, whereby he convicted and sentenced the accused/appellant-Raja alias Sukhraj Singh, to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/-and in default of payment of fine, to further undergo rigorous imprisonment for 2 years under Section 15 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). Criminal Appeal No. 814-SB of 2005 -2- As set up by the prosecution case, on 21.7.2002, ASI Rajinder Singh, among other police officials, while in a Government Jeep bearing registration No. HR-24D/0983 was out for patrolling and crime detection. When they were returning from the area of Village Desujodha and reached in the area of Village Paniwala Morika, the ASI received a secret information that Raja alias Sukhraj Singh (accused) is indulging in the sale of poppy straw by concealing the same in a Kotha owned by his uncle Harjinder Singh in his fields in the revenue estate of Village Paniwala Morika. The above mentioned ASI formed a raiding party and conducted raid on the aforesaid Kotha. The accused, on catching sight of the police party, came out of the Kotha and started running. On suspicion, he was overpowered. The police party noticed two gunny bags lying in a corner of the Kotha. The ASI served notice under Section 50 of the Act apprising the accused of his right to be searched in the presence of a Gazetted Officer or a Magistrate. He opted to be searched before a Gazetted Officer. On receipt of message, Chander Singh, DSP Dabwali came at the spot in his official gypsy along with his staff. On his instructions, the ASI checked the contents of the bags. The same were found to be poppy straw. 100 grams of poppy straw was drawn from each bag to serve as sample and the same were converted into separate parcels. The remainder in each bag, when weighed, came to 39 Kgs. 800 Grams. The bags containing the residue as well as the sample parcels were sealed with the seal bearing letters RS and CS and seized vide recovery memo. The seal RS after use was handed over to HC Jaibir Singh and the other seal bearing impression CS was retained by the DSP himself. The aforesaid ASI prepared the Ruqa and sent the same to the Police Station. On its basis, formal FIR was recorded. The ASI prepared Criminal Appeal No. 814-SB of 2005 -3- the rough site-plan showing the place of recovery, recorded statements of witnesses and on return to the Police Station, produced the accused, witnesses, sample parcels, residue parcels and the report under Section 57 of the Act before SI Rajbir Singh, S.H.O Police Station Sadar, Dabwali, who after verification of the facts, affixed his own seal on the parcels and retained the seal with him and handed over the case property along with the accused to the ASI for depositing the same with the MHC of the Police Station. On receipt of FSL report and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused was charged under Section 15 of the Act, to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1- SI Rajbir Singh, PW2-Constable Raghubir Singh, PW3- MHC Rameshwar Singh, PW-4 ASI Ranjit Singh, PW5-HC Jaibir Singh, PW6 DSP Chander Singh and closed its evidence by tendering Exh.PH, report of FSL. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication due to party faction in the Village. In his defence, he examined DW-1 MHC Rajender Singh, DW-2 HC Hawa Singh and DW-3 Constable Kamal Singh. Besides this, he tendered Mark 'E' in his defence evidence. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction/sentence, he has preferred this appeal. Criminal Appeal No. 814-SB of 2005 -4- I have heard Mr. G. S. Sidhu, Advocate, counsel for the appellant as well as Mr. Tarvunveer Vashisht, Additional Advocate General, Haryana, for the State of Haryana, besides going through the record with due care and circumspection. Mr. G. S. Sidhu, Advocate appearing on behalf of the appellant, has strenuously contended that as alleged by the prosecution, the recovery was effected in pursuance of secret information but as shall appear in the cross-examination of ASI Ranjit Singh, PW-4 (Investigator), he had not reduced the secret information into writing nor sent the same to the immediate superior official and, thus, axiomatically he violated the mandatory provisions of Section 42 of the Act. On the other hand, Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, could not controvert this contention in a successful manner. I have well considered the rival contentions. The officer getting information of an offence under the Act must reduce the same into writing as contemplated under Section 42 (1) of the Act and further he is required to send a copy of the same to the immediate superior official as provided under Section 42 (2) ibid. In re: T. Hamza v. State of Kerala, 2000 (1) Supreme Court Cases 300, it has been laid down that “ non-compliance of the mandatory provisions of recording the information in writing and sending the information to the Superior Officer resulted in miscarriage of justice which vitiates the trial and conviction. ” Here in this case, the Investigator did not reduce the secret information into writing nor sent the same to his immediate superior officer and, thus, he acted in contravention of the mandatory provisions of law. Criminal Appeal No. 814-SB of 2005 -5- Mr. Sidhu further argued that as is being evidenced by Exh. PH, report of F.S.L, the sample parcel was received in the Laboratory on 6.8.2002, whereas recovery was allegedly effected on 21.7.2002 and thus evidently the sample parcel was sent for chemical analysis after 15 days, though as per the standing instruction no. 1/88 dated 15.3.1988 of Narcotic Control Bureau, New Delhi, the sample parcel should be despatched within 72 hours. He further contended that the evidence of the Investigating Officer is absolutely silent about the preparation of C.F.S.L form at the spot or its deposit in the Malkhana. Furthermore, the seal of the Investigator after use was handed over to HC Jaibir Singh, PW-5 and the seal CS of DSP was retained by him and thus the seals remained with the police officials. In such circumstances, the possibility of the contents of the sample parcel and the bags being tampered with, cannot be ruled out. Mr. Tarunveer Vashisht could not reconcile this contention in any manner. In re: Bhola Singh v. State of Punjab, 2005 (2) Recent Criminal Reports (Criminal) 520, this Court held that where the seal remained with the police after use and the C.F.S.L form was neither prepared at the spot nor deposited in the Malkhana, such circumstance would be fatal the the prosecution case. Filling of such form at the spot is a very valuable safeguard to ensure that the sealed sample is not tampered with till its analysis by the F.S.L. Thus, on examining the matter in the background of these observations, there could be every possibility of the contents of the sample parcel being tampered with. This apart, the sample was not despatched for chemical examination within 72 hours in adherence to the standing instruction referred to by Mr. Sidhu. To add further to it, it is in the cross-examination of Constable Raghubir Singh,PW-2, the carrier Criminal Appeal No. 814-SB of 2005 -6- of the sample parcel, that the samples were handed over to him on 8.5.2002 and he deposited the same in the office of D.F.S.L on 9.5.2002, whereas according to Rameshwar Singh MHC-PW-3, he handed over the sample to Constable Raghubir Singh on 29.7.2002 for onward transmission to F.S.L., Madhuban. Palpably, both these witnesses are discrepant and contradict each other with regard to the date of the handing over and taking over of the sample parcels. It is in the testimony of Ranjit Singh ASI that “ the accused Raja alias Sukhraj Singh was seen emerging out of Kotha and he was nabbed there; that 2 bags were found lying in the Kotha.” In his cross- examination, he has stated that the accused was nabbed outside the Kotha and there was no window attached to the Kotha. It means that the appellant was not found present inside the Kotha nor he was found sitting on the bags. In re: Avtar Singh and others v. State of Punjab, 2002 (4) Recent Criminal Cases 682, sixteen bags of poppy husk were recovered. Five persons including three appellants were charged under Section 15 of the Act. They were all travelling in a truck. One person who was sitting in the front seat by the side of the driver and another person sitting on the back side of the truck ran away leaving the vehicle. The other two sitting at the back and the driver were apprehended on the spot. The Apex Court ruled that the persons who were merely sitting on the bags, in the absence of proof of any thing more, cannot be presumed to be in possession of the goods. The present case is on better footing for the reason that, as noted supra, the appellant was not found sitting over the bags. More to the point, there was no window attached to the Kotha. Still worse, the Kotha from which recovery was effected, did belong to Harjinder Singh. In these premises, it is very difficult to countenance the ownership as well as Criminal Appeal No. 814-SB of 2005 -7- exclusive possession of the appellant qua the bags of poppy husk. There is no evidence as to how the bags were transported. Mere presence of the appellant outside the Kotha by itself does not prove that he was in possession of the bags. Reference may be made to the observations rendered in re: State of Punjab v. Balkar Singh and another, AIR 2004 Supreme Court 4606. In view of the foregoing discussion, this appeal is accepted, setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE February13, 2008 RS Whether to be referred to the Reporter ? Yes/No