Crl. Appeal No.373-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.373-SB of 1995 Date of Decision : February 08, 2008 Surjan Singh S/o Gian Singh, ....Appellant R/o Ambala City, Haryana. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. M.S.Rakhar, Sr. Advocate with Mr. Pritam Singh Advocate, for the appellant. Mr. S.S.Mor, Sr. DAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 25.5.1995, and the order of sentence dated 26.5.1995, rendered by the Court of Addl. Sessions Judge, Ambala, vide which it convicted the accused/appellant Surjan Singh, for the offence punishable under Section 18 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 one year. 2. The facts, in brief, are that on 18.2.1993, Suraj Bhan, ASI, was present near Power House, in connection with patrolling and crime checking, alongwith other police officials. He received a secret information that the accused will come with opium and will sell the same at the diary, established by him. The description of the accused was also given. In the meanwhile, the accused was seen coming from the side of Pole crossing (Khamba chowk) having a cloth bag in his right hand. On interrogation, he told his name and parentage. The Assistant Sub Inspector suspected opium in the bag, being Crl. Appeal No.373-SB of 1995 2 carried by the accused. Search of the bag was conducted, in accordance with the provisions of law, which was containing 300 grams opium. Two samples of 50 grams each, were separated therefrom. These samples, and the remaining opium, were converted into three parcels and sealed with the seal bearing impressions 'KS', and taken into possession vide memo Ex.PC, duly attested by the witnesses. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Site plan of the place of recovery was prepared. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 18 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 Karan Singh, DSP (PW-1), Ranbir Singh, HC (PW-2), Varinder Singh, Constable (PW-3), Balwan Singh, ASI (PW-4), Sat Pal, HC (PW-5), Chaudhary Ram, Inspector (PW-6), Suraj Bhan, SI (PW-7), Kartar Singh, MHC (PW-8), and Karan Singh, District Inspector (PW-9). Thereafter, the Public Prosecutor for the State also tendered into evidence, report of the Forensic Science Laboratory, Ex.PF, and 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, produced no 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, as stated hereinbefore. Crl. Appeal No.373-SB of 1995 3 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, submitted that though a secret information was received, against the accused, by the Investigating Officer, yet the same was not reduced into writing, nor sent to the Officer superior, and as such, the mandatory provisions of Sections 42 (1) and 42 (2) of the Act, were violated, as a result whereof, the investigation, and the subsequent proceedings, stood vitiated. The submission of the Counsel for the appellant, in this regard, appears to be correct. Suraj Bhan, SI, (PW-7), did not state even a single word, in his statement, that secret information, which was received, against the accused, was reduced into writing, and sent to the Officer superior. When the accused came to the spot, according to the Investigating Officer, he sent a message to the D.S.P., who came to the spot at 12.40 pm. According to Suraj Bhan, Sub Inspector, (PW-7), the accused was apprehended at 11.45 am. It means that there was sufficient time, with the Investigating Officer, to reduce the secret information received by him, against the accused, and send the same to the Officer superior. Had there been shortage of time, and had it been the case that if, secret information had been reduced into writing, the accused would have escaped, and the very purpose of the raid would have been defeated, the matter would have been different. In the peculiar facts and circumstances of the instant case, when there was sufficient time, with the Investigating Officer to reduce the secret information into writing, and send the same to the Superior Officer, non-compliance of the provisions of Sections 42 (1) and 42(2) of the Act, clearly caused a prejudice, to the accused, and cast a cloud a doubt, on the prosecution story. The trial Court failed to take into Crl. Appeal No.373-SB of 1995 4 consideration, this very important fact, as a result whereof, miscarriage of justice occasioned. The submission of the Counsel for the appellant, carries substance, and stands accepted. 10. It was next contended by the Counsel for that appellant, that though the alleged recovery was effected at a public place, and the independent witnesses, were available, yet none of them was joined, by the Investigating Officer. Suraj Bhan, Sub Inspector, during the course of cross-examination stated that he asked the persons, who were coming and going at the place, where the picket had been held, to join, but they refused. He further stated that even the shops were open near the said place. He further stated that he asked 15/16 persons, to join the investigation, but all of them declined to join them. He further stated that he did not note their names in his diary. In case, the Investigating Officer had made an attempt to join independent persons, and they refused to join, he would have certainly recorded this fact, in the ruqa, and other documents prepared at the spot. There is no mention of this fact, in the documents. In these circumstances, it could be said that the explanation, that he asked 15/16 persons, but they declined to do join, was not correct. He just concocted such an explanation, with a view to absolve him of his responsibility. It is, no doubt, true that the evidence of the official witnesses, cannot be distrusted and disbelieved, merely, on account of the reason, that no independent witness was joined and examined. However, when in a particular case, it is proved that the recovery was effected from a public place, and independent witnesses were available, but no effort was made to join them, certainly a doubt is cast on the prosecution story. Had any independent witness been joined, in the peculiar facts and circumstances of this case, his evidence would have certainly lent genuineness to the case of the prosecution, which is solely based on the evidence of the official witnesses. The prosecution case became doubtful on account of this reason. Crl. Appeal No.373-SB of 1995 5 11. It was next submitted by the Counsel for the appellant, that there was a delay of 25 days, in sending the sample, as the alleged recovery was effected in this case on 18.2.1993, whereas the sample of the opium, was sent to the office of the Forensic Science Laboratory, Madhuban on 15.3.1993. No explanation, whatsoever, was furnished, as to why the sample was not sent to the office of the Forensic Science Laboratory, Madhuban, for about 25 days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. 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. On account of this infirmity, the case of the prosecution became doubtful. 12. The link evidence was also incomplete, in this case. Kartar Singh, MHC (PW-8) stated that Suraj Bhan, ASI of CIA Staff, Ambala, had deposited three sealed parcels, sealed with the seal bearing impression 'KS'. He further stated that, he handed over one sealed sample parcel bearing seal of 'KS' to Virender Singh, Constable, No.1332, Police Station, Ambala, through R.C.No.725 dated 15.3.1993, for depositing the same with Forensic Science Laboratory, Madhuban. He further stated that Virender Singh, Constable, deposited the said parcel with Forensic Science Laboratory, Madhuban on the same day, and delivered the receipt to him, regarding deposit. He further stated that during this period, none tampered with the same. Since, he did not hand over the sample seal to Virender Singh, it is not known, as to where, from the said Constable got the sample seal and allegedly deposited the same, in the Office of the Forensic Science Laboratory, Madhuban. Had any explanation Crl. Appeal No.373-SB of 1995 6 been furnished by Kartar Singh, MHC, or other official witnesses, with regard to this discrepancy, the matter would have been considered, in the light of the same. In the absence of any explanation having been furnished, in this regard, the Court cannot coin any of its own. Since, the sample seal according to Kartar Singh, MHC was not handed over by him to Virender Singh, Constable, the question of tallying the seals on the sample parcel with the specimen seal, did not at all arise by the office of the Forensic Science Laboratory, Madhuban (Karnal). It was the duty of the prosecution to prove that none tampered with the sample till it reached the office of the Forensic Science Laboratory. In the instant case, the prosecution failed to do so. The link evidence was, therefore, incomplete. The trial Court failed to take into consideration, this important fact, as a result whereof, the miscarriage of justice occasioned. 13. 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, and the same are liable to be set aside. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 25.5.1995, and the order of sentence dated 26.5.1995, are set aside. The appellant shall stand acquitted of the charge framed again him. He is discharged of the bail bonds. February 8, 2008 (SHAM SUNDER) Vimal JUDGE