Crl. Appeal No.427-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.427-SB of 1997 Date of Decision : March 12, 2008 Sher Singh S/o Hazara Singh, ....Appellant R/o Shanti Nagar, Karnal. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms.Tanisha Peshawaria, Advocate, Amicus Curaie, for the appellant. Mr. A.K.Jindal, Asstt. A. G., Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 11.4.1997, rendered by the Court of Addl. Sessions Judge, Karnal, vide which it convicted the accused/appellant Sher Singh, 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 2 years. 2. The facts, in brief are that on 1.4.1995, Gurcharan Singh, SI, alongwith Mann Singh, HC, Surinder Kumar, and other police officials, was present at Hansi Chowk, Hansi Road, Karnal, at about 3.45 AM, when the accused was seen coming on Yamaha RX-100. On seeing the police party, he tried to turn his motor cycle, but he was apprehended. A bag was tied with rubber tube on the carrier of the motor-cycle. The search of the bag, was conducted, in accordance with the provisions of law, which was found Crl. Appeal No.427-SB of 1997 2 containing 37 Kgs. poppy-husk. A sample of 250 grams was separated therefrom, and the remaining poppy-husk was put into the same bag. The sample, and the remaining poppy-husk, were converted into parcels, duly sealed, with the seal, and taken into possession vide a separate memo. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. The statements of the witnesses, were recorded. Rough site plan of the place of recovery, with correct marginal notes, was prepared. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his 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 Bhim Singh, HC, PW-1, Krishan Dutt, Constable, PW-2, Satbir Singh, Constable, PW-3, Rati Ram, Inspector, PW-4, Mann Singh, SI, PW-5, Gurcharan Singh, SI, PW-6, and Bachan Singh, SI, PW-7. 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 on account of Municipal Elections in Karnal, due to party faction, he has been falsely challaned. He further stated that the police brought him, from his house, and made him to sit in the Police Station, and ultimately involved him in this false case. He, however, examined Sube Singh, DW-1, and placed on the file, copy of representation, Ex.DB, and postal receipt, Ex.DC. Thereafter, he 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, Crl. Appeal No.427-SB of 1997 3 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 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, contended that the alleged recovery was effected on 1.4.1995, whereas the sample was sent to the office of the Forensic Science Laboratory, on 20.4.1986, and, the seal after use was handed over to Mann Singh, SI, a junior official, by Gurcharan Singh, SI, the Investigating Officer. He further contended that no explanation was furnished by the prosecution witnesses, as to why a delay of 19 days was caused, in sending the sample, and whether the sample remained untampered with, until it reached the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the, delay of 19 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 was allegedly sent to the office of the Forensic Science Laboratory, after about 19 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 Ramji Singh Vs. State of Haryana Crl. Appeal No.427-SB of 1997 4 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. 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 19 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 sample, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 10. The second limb of this argument, that the link evidence was incomplete, as a result whereof, the case of the prosecution became doubtful, was to the effect, that the seal remained with the junior police official throughout, until the sample was allegedly sent to the office of the Forensic Science Laboratory, and, as such, the possibility of tampering with the seals, and changing the contents of the sample parcel, could not be ruled out. The submission of the Counsel for the appellant, in this regard, also appears to be correct. As stated above, the seal after use was handed over to Mann Singh, SI, by Gurcharan Singh, SI, the Investigating Officer. It means that the case property, and the seal, remained under the overall control of the Investigating Officer, until the sample was sent to the office of the Forensic Science Laboratory. As stated above, other independent evidence produced by the prosecution, to prove the completion of link evidence, has not only been found to deficient, but unreliable. In Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1) RCR (Criminal) 406 (S.C.), the packets of contraband and the seal, remained in the custody of the same person. In these circumstances, it was held Crl. Appeal No.427-SB of 1997 5 that the possibility of the seized substance, being tampered with, could not be ruled out. In State of Punjab Vs. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, the seal after use was handed over to a subordinate police official. In these circumstances, it was held by the Division Bench of this Court, in the aforesaid case, that it created a doubt in the mind of the Court, regarding tampering with the case property, and the sample parcel. In the instant case, the prosecution miserably failed to prove that none-tampered with the sample parcel, until it reached the office of the Forensic Science Laboratory, on account of the seal, having remained with the same person, under whose control, the case property and the sample parcel was. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. It, therefore, can be held that the prosecution failed to complete the link evidence, as a result whereof, its case is bound to be dwindle down. 11. It was next contended by the Counsel for the appellant, that though the alleged recovery was effected, from the accused, from a public place, no independent witness, despite availability, was joined by the Investigating Officer. He further contended that, even no effort was made by him, to join an independent witness. He further contended that on account of non-joining, and non-examination of an independent witness, the case of the prosecution became doubtful. Mann Singh, SI, (PW-5), during the course of his cross-examination, stated that there is a residential locality in Sant Nagar. He further stated that Sant Nagar locality starts from a distance of about 50-80 yards from the place, where the accused was apprehended. He further stated that the residential houses are at a distance of about 50-60 yards towards East, from the place of apprehension of the accused, on both sides of the road. He further stated that they tried to find somebody from public, to join as witness, however none was available at that time. He further stated that they did not approach anybody at the residence, to joint as witness. Gurcharan Singh, SI, Crl. Appeal No.427-SB of 1997 6 (PW-6), the Investigating Officer, during the course of his cross-examination stated that they did not approach anybody, at their residential house, to join as a witness. He further stated that there are shops all around, where the accused was apprehended. He further stated that the place of recovery is a Bazar. From their evidence, it is evident that no effort was made by them, to joint an independent witness, despite availability. It is, no doubt, true that in the absence of the joining of an independent witness, the case of the prosecution cannot be distrusted and disbelieved. However, if it is proved from the evidence, on record, that the public witnesses, were not intentionally and deliberately joined, despite availability, then certainly a doubt is cast on the prosecution story. In similar circumstances, in Hawa Singh Vs. State of Haryana 2005(4) RCR (Criminal) 292, when independent witness was not joined, despite availability, the accused was acquitted, in a case of recovery of 20 Kgs. of poppy-husk. In State of Punjab Vs. Nachattar Singh @ Bania 2007 (3) RCR (Criminal) 1040, (D.B.) (P&H), an independent witness was joined, but no examined. In these circumstances, it was held that the case of the prosecution became doubtful. This aspect of the matter was not taken into consideration by the trial Court, as a result whereof, miscarriage of justice occasioned. 12. Ex.PB, is the affidavit of Bhim Singh, MHC, at that time. It is evident from Para No.4 of this affidavit that on 20.4.1995, Bhim Singh HC, handed over to Krishan Dutt, Constable, a parcel of poppy-husk for deposit in the office of the Forensic Science Laboratory. There is nothing in his affidavit, that the parcel was sealed with the seals, and the same were intact, and that he also handed over the seal impression of the seal, to him. Ex.PC, is the affidavit of Krishan Dutt, Constable. He did not state even a single word, in his affidavit that, he was also handed over the specimen impression of the seal, for deposit in the office of the Forensic Science Laboratory. On the other hand, Ex.PA, in Crl. Appeal No.427-SB of 1997 7 report of the Forensic Science Laboratory, it was recorded that the seals on the parcel, were found intact, and tallied with the specimen seal. It is not know, as to from which material, the Forensic Science Laboratory, came to the conclusion that the seals on the sample, tallied with the sample impression of the seal, when the same had not been sent there. This certificate of the Forensic Science Laboratory, appears to be incorrect. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the sample seal was not sent to the Laboratory, at the time of sending the sample parcel. The Apex Court, held that the case of the prosecution was doubtful, on account of this reason. In this view of the matter, the case of the prosecution also became doubtful. The trial Court, did not take into consideration, this aspect of the matter,as a result whereof, miscarriage of justice occasioned. 13. The discrepancies and contradictions appeared in the evidence of the witnesses. According to Gurcharan Singh, SI, (PW-6), no injury was caused to the accused, when he fell down from the motor-cycle, while Mann Singh, SI, (PW-5), during the course of his cross-examination, stated that the accused suffered injuries, on his both knees, right elbow and right shoulder, when he fell down from the motor-cycle. Man Singh, SI, (PW-5), stated that fodder machine was towards Western side, whereas Gurcharan Singh, SI, (PW-6), stated that the fodder machine was towards Sourthern side. Mann Singh (PW-5), stated that the recovered bag, containing the contraband, was carried by Sahi Ram, and Inderjit, Constables, while PW-6, stated that Surinder Singh, HC, and Inderjit, Constable, carried the same. No doubt, such discrepancies and contradictions, when taken singly, do not assume any importance. However, when the same are taken collectively, keeping in view the factum that no independent witness, was joined, and the link evidence, was also not complete, then the same prove fatal to the case of the prosecution, especially, when no explanation was furnished by the prosecution witnesses, with regard to the occurrence thereof. Had any Crl. Appeal No.427-SB of 1997 8 plausible explanation, been furnished, in that regard, the Court would have considered the matter, in the light thereof. In the absence of any explanation, what to speak of plausible, the Court cannot coin any explanation of its own, to fit in with the prosecution case. These discrepancies cast a cloud of doubt, on the prosecution story, especially, when it is solely based on the evidence of the official witnesses. The trial Court, however, did not take into consideration, these discrepancies, as a result whereof, miscarriage of justice occasioned. 14. No doubt, Gurcharan Singh, SI (PW-6), stated that he produced the case property, and the sample, before Rati Ram, SHO, on the relevant date, who on verification put his own seal, on the sample parcel, and the parcel of the remaining poppy-husk, which bore the impression 'RR', and, thereafter, he was instructed to deposit the same, with the MMHC. On the other hand, Rati Ram, Inspector, (PW-4), during the course of his cross-examination stated that he did not prepare any document, regarding the production of the accused, and the case property, before him. He further stated that when the case property produced, before him, it bore the seal with letters 'GS'. He further stated that he put one seal, on both the parcels. However, when he was shown the parcel, containing the remaining poppy-husk, it did not bear either his seal, or the seal of 'GS'. He further stated that parcel also did not bearing the FIR number, Malkhana number, or any other particulars of the case. Even, Rati Ram, Inspector, did not state in his examination-in-chief that he affixed his own seal, on the case property and the sample. It becomes doubtful, as to whether the case property and the sample, were produced before Rati Ram, Inspector. Had the same been produced, then the same would have certainly born the impressions of their seals, and other particulars of the case. The factum regarding the production of the property before him, therefore, could not be said to be correct. This also casts a doubt on the prosecution story. 15. The provisions of Section 57 of the Act, were not complied with. Crl. Appeal No.427-SB of 1997 9 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, 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 to 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 of whereof, it committed an error in recording conviction and awarding sentence. 16. 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 Crl. Appeal No.427-SB of 1997 10 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. 17. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 11.4.1997, 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. March 12, 2008 (SHAM SUNDER) Vimal JUDGE