Crl.Appeal No.1344-SB of 2004 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.1344-SB of 2004 (O&M) Date of Decision: 19th August, 2009 Joginder Singh …Appellant Versus State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: None for the appellant Mr.T.S.Salana, Deputy Advocate General, Punjab ** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ order of sentence dated 17.4.2004 rendered by the court of learned Special Judge, Ferozepur whereby he convicted and sentenced the accused Joginder Singh to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lac under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the Act’) and in default of payment of fine, to further undergo rigorous imprisonment for one year. Shortly put, the facts of the prosecution case are that on 6.9.2001, S.I./S.H.O. Jaspal Singh amongst other police officials laid Nakabandi at about 7 P.M. on Canal minor in the area of village Dibwala, where a katcha rasta coming from village Mundi Chhuri Mar join the metalled road Paluwala to Dibwala. Around 7.30 P.M. the accused came from the side of aforesaid katcha rasta on cycle. On suspicion, he was Crl.Appeal No.1344-SB of 2004 (O&M) 2 intercepted by the abovementioned Sub Inspector. The accused threw the cycle on the ground. Two bags were found to have been tied on the carrier of the cycle. Suspecting that the contents of the bags were of poppy husk, the accused was offered to be searched before a Gazetted Officer or a Magistrate. He opted to give search of the bags in the presence of a Gazetted Officer. On receipt of message Gurmeet Singh DSP, Zira came at the spot. He also disclosed his identity to the accused. On his direction, search of the bags was carried out by the Investigating Officer. On their search, poppy husk was recovered. Two samples of 250 grams each were drawn from each bag and were converted into parcels. The remainder of each bag when weighed came to 34.5 Kgs and these were also turned into parcels. Thereafter, all the parcels were sealed with seals ‘JS’ and ‘GS’. The seal 'JS' after use was handed over to ASI Bakshish Singh. The accused was put under arrest. Ruqa was sent to the police station, where on its basis formal FIR was registered. After completion of investigation, the charge- sheet was filed 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 DSP Gurmeet Singh, PW2 ASI Jassa Singh, PW3 SI Jaspal Singh, PW4 Constable Balwinder Singh, PW5 ASI Bakshish Singh and closed its evidence. When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He came up with the plea that “he was picked up from his house much earlier to 6.9.2001 i.e. the alleged date of recovery, in the presence of his Crl.Appeal No.1344-SB of 2004 (O&M) 3 family members and respectables of the village and was kept in illegal detention for a few days. Thereafter, he was falsely implicated in this case.” In his defence, he examined DW1 Kikkar Singh. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on the 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. This case was adjourned for number of times for arguments. This apart, it was also displayed on the net for arguments, but despite that none had put in appearance on behalf of the appellant. I have heard the learned counsel for the State, besides perusing the record with due care and circumspection. It is in the evidence of PW3 SI Jaspal Singh, Investigating Officer that “On return, I kept the case property in my custody in the police station on 9.9.2001. I proceeded on leave and I handed over the case property alongwith samples as per Register No.19 to ASI Jassa Singh. On 13.9.2001, when I came back from my leave, I took over the case property back from ASI Jassa Singh.” It is in the testimony of ASI Jassa Singh PW2 that “ on 9.9.2001 SHO Jaspal Singh handed over to me the case property as well as the samples and sample seal after getting entry in the DDR and on 10.9.2001, I handed over two samples and sample seal of this case to Constable Balwinder Singh No.3011 for depositing the same in the office of Chemical Examiner, Jalandhar.” In his affidavit Ex.P14 Constable Balwinder Singh, who carried the sample parcels to the office of Chemical Crl.Appeal No.1344-SB of 2004 (O&M) 4 Examiner has solemnly affirmed that on 10.9.2001 SHO Jassa Singh had handed over two parcels containing poppy husk to him. It is worth pointing out here that Jassa Singh is not the SHO. He is an Assistant Sub Inspector. Jaspal Singh PW3 was the SHO. Thus, obviously this affidavit is not being connected either with Jassa Singh ASI or Jaspal Singh SHO. Furthermore, towards the end of his cross-examination, this Constable Balwinder Singh as PW4 has testified that “I had handed over the docket of sample to Head Clerk for checking and getting it signed and putting despatch number.” It implies that the sample parcels remained with Head Clerk, who has not been examined on the point that during the period such parcels remained in his custody, their contents were not tampered with by him nor the same were allowed to be tampered with by anyone else. As per Form No.29 Ex.P4, this docket for sending the sample parcels to the Chemical Examiner was got prepared on 10.9.2001 and it was received in the Office of Chemical Examiner on the next day. If it is assumed that Jaspal Singh SHO had handed over the sample parcels to the aforesaid Constable for being delivered in the office of Chemical Examiner, then Ex.P14 is falsified for the simple and obvious reasons that Jaspal Singh SHO was on leave on that day as testified by him. Assuming that these parcels were given to this Constable by Jassa Singh ASI, then the story given in Ex.P14 that these parcels were handed over by SHO is again falsified. Thus, on putting all these infirmities together, it emerges out that the link evidence is missing in this case. Furthermore, it is in the cross-examination of Jaspal Singh SI PW3 that “specific information on the basis of which Nakabandi was held, Crl.Appeal No.1344-SB of 2004 (O&M) 5 was received by me on the way from police station to Dibwala and this information was not noted down.” He has not apportioned any reason for not reducing this information in writing and forwarding the same to the Superior officers in compliance with the provisions of Section 42 of the Act. It is also in the cross-examination of ASI Bakshish Singh PW5 that “I had stated in my statement under Section 161 Cr.P.C. that the impression of seal of DSP was also put on the sample seal impression.” When he was confronted with his such statement Ex.DI, it was not found so recorded therein. Thus, he has introduced material improvement. Now a word about defence needs to be recorded. Kikkar Singh DW1 Ex.Sarpanch has stated in nutshell that “about 2 years and 8 months back, SHO Jaspal Singh of Police Station Makhu alongwith other police officials came to the house of the accused and took the search of his house, but no incriminating article was recovered and he was taken to the police station, where he was implicated in this case.” It is worth pointing out here that the prosecution version does not find corroboration from any independent source. To conclude finally, there being a dent in the prosecution case, this appeal is accepted, setting aside the impugned judgment/order of sentence. The accused /appellant is hereby acquitted of the charged offence. 19th August, 2009 (HARBANS LAL) gsv JUDGE Whether to be referred to the Reporter? Yes/No