Crl. Appeal No.988-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.988-SB of 1998 Date of Decision : 16.07.2008 Sukhdev Singh S/o Lilu Singh, ....Appellant R/o Village Madh, P.S.Ratia, District Fatehabad. 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. Jitender Dhanda, 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 28.10.1998, and the order of sentence dated 30.10.1998, rendered by the Court of Addl. Sessions Judge, Hisar, vide which it convicted the accused (now appellant), for the offence punishable under Section 15 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 30 kgs poppy-husk, (now falling within the ambit of non- commercial quantity), without any permit or licence. 2. The facts, in brief, are that on 1.6.1996, Partap Singh, SI, alongwith Crl. Appeal No.988-SB of 1998 2 other police officials was holding a picket, at T-Point Dhir-Boswal, when the accused was seen coming, on a cycle, from the side of village Dhir, with a bag, on its carrier. On seeing the police party, he tried to run away, but was apprehended, on suspicion. On search of the bag, being carried by him, in accordance with the provisions of law, 30 Kgs. poppy-husk, was recovered. A sample of 250 grams of poppy-husk, was separated therefrom, and the remaining poppy-husk, was put into the same bag. The sample, and the bag, containing the remaining poppy-husk, were converted 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 15 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 Satnarain, HC, (PW-1), Ratan Singh, Constable (PW-2), Janeshwar Dass, HC, (PW-3), Ishwar Singh, ASI (PW-4), Ram Phal, HC (PW-5), and Partap Singh, SI (PW-6), the Investigating Officer. 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. It was stated by him, that he was apprehended on 29.5.1996, at village Katakheri, on suspicion. It was further stated by him, that Partap Singh, SI, demanded Rs.10,000/- from him, but he refused, as a result whereof, this false case was planted against him. It was further stated by him, that nothing was recovered from his possession. He, however, examined Om Parkash, Postal Assistant (DW-1), in his defence, Crl. Appeal No.988-SB of 1998 3 and thereafter closed the defence evidence. 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 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 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 no independent witness, despite availability, was joined by the Investigating Officer, as a result whereof, the case of the prosecution, became doubtful. Partap Singh, SI (PW-6), during the course of cross-examination stated that Driver of the gypsy namely Baldev Singh, was sent to a farm house (Dhani), to bring weighing material. He further stated that some respectable persons were summoned, through the said driver, but none was ready, to become a witness. He further stated that, he did not note their names in the case diary. Had the persons refused to join the police party, at least the Investigating Officer, would have recorded their names, in the documents, prepared by him, at the spot. However, he did not record their names, in the documents. As per his own statement, he did not record their names, in the case diary. Non-recording of such a fact, in the case diary, and other documents, clearly proved that no effort was made to join an independent witness. Since minimum stringent punishment is provided for the offences, punishable under the Act, and according to the provisions of Section 51 of the Act, the provisions of the Code of Criminal Procedure, relating to search, seizure and arrest shall apply to the extent the same are not inconsistent with the provisions of the Act, it was imperative, on the part of the Investigating Officer, to join an independent witness, at the time Crl. Appeal No.988-SB of 1998 4 of the alleged search, and seizure or at least to make a genuine, sincere and real effort, to join such a witness. The search and seizure, before an independent witness, would have imparted much more authenticity and creditworthiness, to the proceedings, so conducted. It would have also verily strengthen the prosecution case. The said safeguard was also intended to avoid criticism of arbitrary and high-handed action, against the authorized Officer. In other words, the Legislature, in its wisdom, considered it necessary to provide such a statutory safeguard, to lend credibility to the procedure, relating to search and seizure, keeping in view the severe punishment, prescribed under the Act. That being so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute, and failure to do so, must be viewed with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of statutory safeguards, committed by the authorized officer, during search and seizure operation and may also undermine respect of law. That cannot be permitted. In the instant case, the alleged recovery being minor, now falling within the ambit of non- commercial quantity, and chances of plantation of the same, against the accused, could not be ruled out, it became the bounden duty of the Investigating Officer, to observe all the safeguards, provided under the Act, at the time of search and seizure. It is, no doubt, true that, in the absence of corroboration through an independent source, the evidence of the official witnesses, cannot be disbelieved and distrusted, blind-foldely, if the same is found to be creditworthy. However, when the evidence of the official witnesses, is found to be not cogent convincing, reliable and trustworthy, then on account of non-corroboration thereof, through an independent source, certainly a doubt is cast, on the prosecution story. In the instant case, the evidence of the prosecution witnesses, does not inspire confidence, in the mind of the Court. In this view of the matter, non-corroboration of the evidence of Crl. Appeal No.988-SB of 1998 5 the official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In State of Punjab Vs. Bhupinder Singh 2001 (01) RCR (Crl.) 356, a Division Bench of this Court, held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the recovery was effected from a busy locality. In State of Punjab Vs. Ram Chand 2001 (1) RCR (Crl.) 817, a Division Bench of this Court, held that it was imperative to join an independent witness, to vouchsafe the fair investigation. On account of non-joining of an independent witness, it was held that the accused was entitled to be given the benefit of doubt. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution, became highly doubtful. The trial Court 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 though the alleged recovery was effected on 1.6.1996, yet the sample was sent to the office of the Forensic Science Laboratory, on 12.6.1996, and, as such, the delay of 11 days, was not explained, by the prosecution witnesses. He further submitted that, under these circumstances, the possibility of tampering with the case property, and the sample parcel, could not be ruled out, especially, when the seal remained in the possession of the police officials throughout. The submission of the Counsel for the appellant, in this regard, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 11 days, in sending the sample to the office of the Forensic Science Laboratory. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the sample, till the same reached the office of the Forensic Science Laboratory. Since, the sample Crl. Appeal No.988-SB of 1998 6 was allegedly sent to the office of the Forensic Science Laboratory, after 11 days, it could not be safely held that the same remained un-tampered with. This fact casts a shadow of doubt, on 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, the appellant was acquitted, in that case. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. In Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, the seal remained with the police official, and had not been handed over to any independent witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Forensic Science Laboratory. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 11 days, in sending the sample to the office of the Forensic Science Laboratory, and non-strict proof, by the prosecution, that the same was not tampered with, till it was deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. Crl. Appeal No.988-SB of 1998 7 11. In the instant case, there was violation of the provisions of Section 55 of the Act, as the case property and the samples were not produced before the Magistrate. 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 samples 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 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 Crl. Appeal No.988-SB of 1998 8 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, since the Investigating Officer, intentionally and deliberately breached the provisions of Section 55, he could not say that the provisions of Section 55 being 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 provision 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 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 submitted by the Counsel for the appellant, that the appellant was falsely implicated, in the instant case, and no recovery was effected from him. He further submitted that Partap Singh, SI, demanded a sum of Rs.10,000/- from him (accused/appellant), but when he refused to oblige him, this false case was planted against him. If a person is aggrieved against the high-handedness of the police, the only remedy with him, is to inform the higher officers, by sending a telegram or a complaint. In the instant case, when the accused was taken away by the Police, without any contraband, having been recovered from him, Lila Singh, his relative sent a telegram, copy whereof, is Crl. Appeal No.988-SB of 1998 9 Ex.DA, to the Director General of Police, Haryana, Chandigarh, narrating therein, that on 29.5.1996, the police took away Sukhdev Singh, illegally detained him, and was demanding a sum of Rs.10,000/- for releasing him, otherwise, he will be falsely implicated, in a case. Telegram (copy DA) is, dated 30.5.1996. Om Parkash, Postal Assistant, appeared as DW-1, and stated that the original record of the telegram, had been destroyed, as per the Postal Manual. He also stated that Ex.DA, is the certified copy of the telegram issued by their Post Office, and bear his signatures. The alleged recovery, in this case, was effected on 1.6.1996. Had no telegram been given, on behalf of the accused, on 30.5.1996, that he was illegally detained on 29.5.1996, it would have been said that the defence version set up by him, was false. Had the telegram been given after the arrest of the accused, and registration of the case, in those circumstances, it would have also been said, that it was an afterthought version, set up by the accused. In the instant case, as soon as on 29.5.1996, the accused was taken away by the Police, and illegally detained, as also the alleged demand of Rs.10,000/- was made by him (Partap Singh, SI), left with no alternative. Lila Ram, relative of the accused, gave telegram, copy of which, ExDA. It, therefore, cannot be said that the version contained in Ex.DA, was an afterthought. The alleged recovery of poppy-husk, in this case, being not heavy, it could be easily planted against the accused. The defence version set up, by the accused, and proved through the telegram, copy whereof is Ex.DA, being more probable, than the prosecution version, was required to be taken into consideration, by the Court concerned. It cast a cloud of doubt on the prosecution story, that the accused might have been falsely implicated, in the instant case. The trial Court wrongly discarded the defence version, resulting into miscarriage of justice. 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 Crl. Appeal No.988-SB of 1998 10 based on the correct appreciation of evidence, and law, on the point. Had the trial Court taken into consideration, the aforesaid infirmities and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 15 of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 28.10.1998, and the order of sentence dated 30.10.1998, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, then he shall be set at liberty, at once, if not required in any other case. 16.07.2008 (SHAM SUNDER) Vimal JUDGE