IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.42-SB of 1996 Date of Decision : January 23, 2008 Sat Pal S/o Bansi Lal ....Appellant R/o Dhangu Road, Pathankot Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr.Bipan Ghai, Advocate for the appellant. Mr. Sandeep Moudgil, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence dated 10.1.1996, rendered by the Court of IInd Addl. Sessions Judge, Gurdaspur, vide which it convicted the accused/appellant Sat Pal, for the offence punishable under Section 20 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 two years. 2. The facts, in brief, are that on 30.12.1993, a police party headed by Rattan Singh, Sub Inspector, apprehended the accused, in the area of G.T.Road, Jalandhar Bye-pass, Pathankot and on search of the bag, which he was carrying on his left shoulder, recovery of 2 Kgs 500 gms. Charas, was effected. He could not produce any permit or licence. After drawing a sample, the remaining charas, was put into a tin container. The sample, and the tin container, were sealed with the seal, bearing impression 'RS' and taken into possession, vide memo PB. The accused was arrested. After the completion of investigation, the accused was challaned. Crl. Appeal No.42-SB of 1996 (2) 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 20 of the Act, was framed against him, to which he pleaded not guilty and claimed trial. 4. The prosecution, in support of his case, examined Swaran Singh, L.C. (PW-1), Rattan Singh, Sub Inspector (PW-2) the Investigating Officer. The Addl. PP for the State, tendered into evidence affidavit Ex.PE of Sulakhan Singh, MHC and Ex.PF of Ajit Masih, Constable, report of the Chemical Examiner Ex.PG and thereafter, closed the same. 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 Ram Lal, Patwari (DW-1), Randeep Singh, Patwari Halka Mamoon (DW-2), Samuel Masih, LC (DW-3) and Mangat Ram (DW-4) . Thereafter, he closed the defence evidence. 6. After hearing the Addl. 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, vehemently, contended that the link evidence, in the instant case, was totally incomplete, in as much, Sulkhan Singh, MHC and Ajit Masih, Constable, whose affidavits Exs. PE and PF, respectively, were tendered into evidence on 1.12.1994, by the Addl. PP for the State, were not Crl. Appeal No.42-SB of 1996 (3) offered for cross-examination, to the accused, and, as such, he was deprived of his valuable right of shaking their veracity. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is evident from the perusal of the order dated 1.12.1994 passed by the trial Court, that the Addl. PP for the State, tendered into evidence the affidavits Ex.PE of Sulkhan Singh, MHC and Ex.PF of Ajit Masih, Constable, and also the report of the Chemical Examiner Ex.PG. There is nothing in the order, that on that date, both these witnesses were present for their cross-examination. The mere fact that on that date, the Counsel for the accused, was present, did not mean that the prosecution was absolved of its responsibility, of producing these witnesses for cross-examination by the accused. The accused has a valuable and indefeasible right to cross-examine the witnesses. He must be afforded an opportunity to do so. It is a different matter, whether he avails of that opportunity or not. The prosecution cannot take up the plea, that when the affidavits of the witnesses were tendered into evidence, and they were not present, the accused could ask that he wanted to cross-examine them, and, thus, they could be produced. By not producing, these witnesses for cross-examination by the accused, he was deprived of his valuable and indefeasible right. In Gian Singh Vs. State of Punjab 2006(2) RCR (Criminal) 611, affidavits of police Constables were tendered into evidence, but they were not produced, in the Court for cross-examination. In these circumstances, it was held that the link evidence was missing, which was material infirmity, and ultimately the conviction was set aside. In Jai Singh Vs. State of Haryana, 1995 (3) RCR 627, the affidavits of the Police Constable and the HC were tendered into evidence, but both them, were not kept present in the Court for cross- examination. In these circumstances, it was held that the affidavits could not be read into evidence and, as such, the link evidence was incomplete and the case of the prosecution was bound to fail. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. Under Crl. Appeal No.42-SB of 1996 (4) these circumstances, both these affidavits, without offering the deponents thereof, for cross-examination to the accused, could not be read into evidence. As such, the link evidence being incomplete, the appellant/accused is liable to be acquitted. The trial Court, in my opinion, was wrong in holding that the link evidence was complete. 10. The counsel for the State, however, submitted that in case, the accused wanted to cross-examine these witnesses, though their affidavits were tendered into evidence in their absence, he could make a request to the Court or move an application in that regard. He further submitted that since the accused did not make any application that he wanted to cross-examine the witnesses, it now does not lie in his mouth to say that he was not afforded an opportunity to do so. He, therefore, submitted that, the link evidence was complete. The submission of the counsel for the respondent, does not appear to be correct. As stated above, it was the duty of the prosecution, to produce both the formal witnesses, referred to above, for their cross-examination, by the accused. The legal duty, which was cast on the prosecution, could not be said to have been discharged, by merely taking the plea, that the accused could ask that the witnesses be produced for cross-examination. As stated above, the accused has a valuable and indefeasible right of cross-examining the witnesses, so as to shatter their veracity. Once, he is deprived of such a valuable and indefeasible right, he can be said to have been condemned unheard. The trial Court, no doubt, recorded in the judgment, that the accused could ask for the cross-examination of the witnesses by moving an application or making a request, but he did not do so, and, as such, the affidavits of the formal witnesses, could not be ruled out of consideration. The approach adopted by the trial Court, in this regard, to repel the arguments of the Counsel for the accused, does not appear to be in consonance with the provisions of law. The trial Court forgot that it was the legal duty of the prosecution, to produce the witnesses, for examination and Crl. Appeal No.42-SB of 1996 (5) cross-examination. If the prosecution failed to discharge its legal duty, then it could not be said that the accused could fill in the lacuna. In view of the principle of law, laid down, in the aforesaid authorities, the submission of the Counsel for the respondent, pales into insignificance, and stands rejected. 11. No independent witness was joined by the Investigating Officer, despite availability. Rattan Singh, Sub Inspector (PW-2), stated in his examination-in-chief, that he tried to join independent witnesses, but they showed their reluctance to join. However, during the course of cross-examination, it was clarified by him, that such a fact was not recorded by him, in the ruqa, the document, which was prepared by him, at the spot. He stated during the course of his cross-examination, that some persons were passing, when the accused was apprehended. He also admitted, during the course of cross-examination, that there were shops near the place of recovery. He, however, stated that he had summoned a witness from the nearby shop, but none was willing to become a witness. He did not remember the name of any such person. He further stated that he did not take any legal action, against those persons. It is, no doubt, true that the evidence of the official witnesses, cannot be doubted, merely, on account of reason, that no independent witness was joined by the Investigating Officer. However, in peculiar circumstances of the present case, when the accused alleged that he was falsely implicated, in this case, at the instance of one Sarwan Kumar, from whom he was get Rs.13,500/-, it can be held that non-joining of an independent witness, despite availability, clearly cast a doubt on the prosecution story. Since, the independent witnesses were present even at the time, when the accused was allegedly apprehended, it became the bounden duty of the Investigating Officer, to join one of them, so as to show the genuineness of the proceedings. The prosecution case also becomes doubtful, on this ground. 12. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based on Crl. Appeal No.42-SB of 1996 (6) the correct appreciation evidence and law on the point, and the same are liable to be set aside. 13. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction and the order of sentence dated 10.1.1996, are set aside. The appellant shall stand acquitted of the charge framed against him. He is discharged of the bail bonds. January 23 , 2008 (SHAM SUNDER) Vimal JUDGE