Criminal Appeal No. 1342-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1342-SB of 2002 Date of Decision: 18.02.2010 Sadhu Singh son of Santa Singh son of Harnam Singh, r/o village Asmanpur, Tehsil Patiala, District Patiala. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. G.S. Punia, Advocate, for the appellant. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence, dated 30.07.02, rendered by the Judge, Special Court, Patiala, vide which, it convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be 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 thereof, to further undergo rigorous imprisonment, for a period of one year, for having been found in possession of 140 kgs of poppy husk, without any permit or licence, Criminal Appeal No. 1342-SB of 2002 2 which falls within the ambit of commercial quantity. 2. The facts, in brief, are that, on 09.02.01, Kuldeep Singh, Sub Inspector, alongwith some other Police officials, was present, at bus stand Suniarheri, where, one Surinder Pal Singh son of Hari Singh, met him, and he started talking with him. In the meanwhile, a secret in- formation, was received, that in the area of Kullemajra Bir near the Samadh of Sati Mata, one person, was in possession of the bags, con- taining poppy husk, and, if a raid was conducted, he could be appre- hended. After receiving the secret information, the Police party, pro- ceeded towards the pre-disclosed place. On seeing the Police party, the accused tried to slip away, but was overpowered on suspicion. Four gunny bags were recovered. On search of the gunny bags, in the pres- ence of Bhupinderjit Singh, Deputy Superintendent of Police (R), who was called to the spot, 140 kgs of poppy husk, was recovered. Two samples of 250 gms poppy husk, were separated from each bag, and the remaining poppy husk, was kept therein. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide separate recovery memo. On personal search of the accused, Rs. 210/-, were also recovered and taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the first information report, was registered. Rough site plan of the place of recovery was prepared. The accused, was arrested. After the completion of investigation, he was challaned. Criminal Appeal No. 1342-SB of 2002 3 3. On his appearance, in the Court, the accused, was supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 15 of the Act, was framed against the accused, which was read over and explained to him, to which, he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Sohan Singh, Moharrir Head Constable (PW1), Faquir Chand, Constable (PW2), Bhupinder Jit Singh Virk, Superintendent of Police (PW3), a witness to the recovery, Kuldeep Singh, Sub Inspector (PW4), the Investigating Officer, Gulzar Singh, Head Constable (PW5), and, Sewa Singh, Inspector (PW6). Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that, no recovery, was effected, from his possession. It was further stated by him that, he did not deal with contraband. It was further stated by him that he was arrested, from his village, in the presence of respectables. It was further stated by him that he was a poor person, having a big fam- ily to support. He, however, examined Sarwan Kumar, Head Constable (DW1), Gurcharan Bharti, PWG (DW2), and, Kuldeep Singh (DW3), in his defence. Thereafter, he closed his defence evidence. 7. After hearing the Counsel for the parties, and, on going Criminal Appeal No. 1342-SB of 2002 4 through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, the instant appeal, has been filed by the accused/appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset submitted, that Surinder Pal Singh, independent witness, though was joined, yet he was not examined, yet, on the other hand, was given up, as won over, by the Additional Public Prosecutor, for the State, without any rhyme or reason, as a result whereof, the case of the prosecution became highly doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. No doubt, Surinder Pal Singh, independent witness, was given up, as won over, by the Additional Public Prosecutor, for the State, yet, there was no material, on record, as to what persuaded him, to do so. It is, no doubt, true that the Public Prosecutor for the State, is the master of the case. It is for him, to de- cide, as to which witness he wanted to examine, and as to which wit- ness he did not want to examine. However, such discretion is required to be exercised, by the Additional Public Prosecutor, for the State, in accordance with the sound Judicial principles, and, not arbitrarily and capriciously. Since there was no material on record that Surinder Pal Singh Independent witness had actually been won over, it could be said that the discretion was exercised by the Public Prosecutor arbitrarily Criminal Appeal No. 1342-SB of 2002 5 and capriciously. Had Surinder Pal Singh, independent witness, been examined, light would have been thrown, on the true position of the case and credence would have been lent to the prosecution case, solely based on the evidence of the official witnesses. 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 dis- trusted, blind-foldely, if the same is found to be creditworthy. How- ever, when the evidence of the official witnesses, is found to be not co- gent, convincing, reliable and trustworthy, then on account of non-cor- roboration 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 the official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In State of Punjab Vs. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution became doubtful. In Masalti Vs. State of UP, AIR 1965 SC 202, a four Judge Bench of the Apex Court, held that it is, un- doubtedly, the duty of the prosecution to lay before the Court, all mate- rial evidence, available to it, which is necessary for unfolding its case, but it would be unsound to lay down, as a general rule, that every wit- ness must be examined, even though, his evidence may not be very ma- Criminal Appeal No. 1342-SB of 2002 6 terial, or even if, it is known that he has been won over or terrorised. The discretion exercised by the Public Prosecutor, in giving up Balkar Singh, as won over, as stated above, was not bonafide. The prosecu- tion, thus, withheld the best evidence, on its possession, as a result whereof an adverse inference could be drawn that had he been exam- ined, he would not have fallen in line with the official witnesses, as a result whereof the case of the prosecution would have become doubt- ful. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording con- viction, and awarding sentence, to the accused. 11. It was next submitted by the Counsel for the appellant, that the appellant, was not found, in conscious possession of the contraband, and, therefore, did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, appears to be correct. Kuldeep Singh, Sub Inspector, PW4, stated that, a secret information, was received, to the effect, that in the area of Kullemajra Bir near Samadh of Sati Mata, one person was having four bags of poppy husk, and if a raid, was conducted, he could be apprehended, at the spot. He further stated that, when the Police party, reached the site, the accused, tried to slip away, but he was apprehended on suspicion. The bags were lying, at an open and accessible place. That place, did not belong to the accused. As per the statement of Kuldeep Singh, Sub Inspector, PW4, the accused was neither sitting, on the bags, nor the same, were in his possession, nor Criminal Appeal No. 1342-SB of 2002 7 was he aware of the contents thereof. The recovery, was not effected, from the house of the accused or from an enclosed place, belonging to the accused, or from a tube-well room of the accused. Since the bags, were lying, at an open and accessible place, it was for the investigating agency, to find out the source, as to wherefrom, those bags, containing poppy husk, came there, and who brought the same, and for what pur- pose. The mere fact, that the accused, was found near the site, where the bags, containing poppy husk, were lying, did not mean, that he was in possession of the same, or that he was aware of the contents of the same. Since the physical or constructive possession of the contraband or control over the bags, containing the contraband, in relation to the accused, was not proved, it could not be said, that he was in conscious possession thereof. The statutory presumption, under Sections 35 and 54 of the Act, therefore, did not operate against the accused, that he was in conscious possession thereof. In Parminder Singh Vs. State of Haryana, 2006 (4), RCR, 495, the accused, was standing near the car, in which, opium was lying. The car, did not belong to the accused. On seeing the Police party, he ran away. Under these circumstances, a Di- vision Bench of this Court, held that, the accused, could not be said to be in conscious possession of the opium, lying in the car. In State of Punjab Vs. Balkar Singh, 2004(3), SCC, 582, the accused, were found, sitting on one hundred bags of poppy husk, lying in the fields. They were acquitted by the High Court, on the ground, that their pos- session, in respect of the bags, containing poppy husk, was not proved, Criminal Appeal No. 1342-SB of 2002 8 and, as such, statutory presumption, under Sections 54 and 35 of the Act, could not operate, against them, that they were in conscious pos- session thereof. The State, feeling aggrieved, filed a Criminal Appeal, in the Apex Court. The Apex Court, held that, the mere fact that the ac- cused were allegedly found to be sitting, on the bags, containing poppy husk and their failure to give any satisfactory explanation, for being so present, did not prove that they were in possession of the said poppy husk bags, especially when they belonged to different villages, and no investigation had been conducted, by the Investigating agency, as to how the bags containing poppy husk were found lying, at that place. Para 3 of the said judgment reads as under : “3, We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimoney of PW1 Balbir Singh and PW2 ASI JarnailSingh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any Criminal Appeal No. 1342-SB of 2002 9 evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present at that place itself does not prove that the were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court. 12. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. The submission of the Counsel for the appellant, to the effect, that the appellant, was not found, in conscious possession of the poppy husk, allegedly recovered, from the area of Kullemajra Bir near Samadh of Sati Mata, and, thus, no offence punishable under Section 15 of the Act, was constituted, carries substance, and deserves to be accepted. Criminal Appeal No. 1342-SB of 2002 10 13. It was next submitted by the Counsel for the appellant, that, though, the alleged recovery, was effected, on 09.02.01, yet the sample parcels, were sent, to the office of the Chemical Examiner, on 19.02.01 i.e. after the delay of ten days, which remained unexplained. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true that if the other evidence, produced by the prosecution to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the samples to the Chemical Examiner, pales into insignificance. However, if the other evidence, is not found to be creditworthy, then delay certainly proves fatal to the prosecution case. In this case, the other evidence produced by the prosecution, to prove the completion of link evidence, is neither reliable nor trustworthy. It is for the prosecution to prove affirmatively, that right from the date of seizure, until the samples were sent to the Chemical Examiner, the same were not tampered with. If the prosecution fails to prove this factum, then its case is bound to dwindle down. In State of Rajasthan Vs. Gurmail Singh, 2005(2) RCR (Crl.), 58, S.C., the contraband, was kept in the Malkhana for 15 days. The Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence, produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Criminal Appeal No. 1342-SB of 2002 11 Examiner. In State of Punjab Vs. Jaswant Singh, 2002(3), RCR (Crl.), 54 (DB) (P&H), there was a delay of 21 days, in sending the sample to the laboratory. In these circumstances, it was held that it must prove fatal to the prosecution case, especially when admittedly no independent witness was joined, in the recovery proceedings, and seal used for sealing the sample, remained with the Police Official, during the period. 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 Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1), RCR (Criminal), 406 (S.C.), charas was recovered from the possession of the accused and sealed in two packets. The packets and the seal remained, in the custody of the same person. In these circumstances, it was held that there was every possibility of the seized substance, being tampered with. The conviction of the accused was set aside, inter-alia, on this ground. Since the possibility of tampering with the case property, and the samples, could not be ruled out, in the instant case, a serious doubt, on account of this reason, was cast on the prosecution case. 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, and the seal remained with the police official, and had not been handed over to Criminal Appeal No. 1342-SB of 2002 12 any independent witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. Since the prosecution failed to prove that none tampered with the sam- ple parcels, until the same reached the laboratory, its case became doubtful. The submission of the Counsel for the appellant, being cor- rect is accepted. 14. It was next submitted by the Counsel for the appellant, that even the sample impression of the seals, was not deposited, in the office of the Chemical Examiner. The submission of the Counsel for the appellant, in this regard, appears to be correct. Faquir Chand, Constable, PW2, tendered his affidavit PB, wherein, he did not testify, that he also deposited the sample impression of the seals, alongwith the sample parcels. Since the sample impression of the seals, was not handed over to Faquir Chand, Constable, nor the same, was deposited, in the office of the Chemical Examiner, it is not known, as to how, it was recorded, in the report, exhibit PM of the Chemical Examiner, that the seals, on the parcels, were found intact, and tallied with the specimen seals. The specimen impression of the seals, could only reach the Chemical Examiner, had the same been deposited. In the absence of deposit of the sample impression of the seals, with the Chemical Examiner, it could not be ascertained whether the seals affixed on the samples, were the same, as were allegedly affixed at the time of the alleged raid. It was for the prosecution, to complete the link, in the chain of its evidence but it failed to do so. In State of Rajasthan Vs. Criminal Appeal No. 1342-SB of 2002 13 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, the case of the prosecution became doubtful. 15. It was next submitted by the Counsel for the appellant, that there was also non-compliance with the provisions of Section 55 of the Act, in as much as, the case property and the sample parcels, were not proved to have been produced, before the Area Magistrate. The submis- sion of the Counsel for the appellant, in this regard, appears to be cor- rect. Kuldeep Singh, Sub Inspector, PW4, stated that, on the next day of the recovery, he produced the accused and the case property, before the Area Magistrate. However, during the course of his cross-examina- tion, it was stated by him, that there was no application, on the file, re- garding the production of the case property, before the Area Magis- trate. No document, was produced, on the record, that the case property and the sample parcels were produced before the Area Magistrate. Sec- tion 55 of the Act, lays down that an Officer Incharge of the Police Sta- tion, 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 Po- Criminal Appeal No. 1342-SB of 2002 14 lice 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 him. No doubt, the provisions of Sec- tion 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 ex- planation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecu- tion case. Since, there was deliberate and intentional breach of the pro- visions 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 (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 Criminal Appeal No. 1342-SB of 2002 15 of evidence, regarding search of the accused and seizure. The principle of law, laid down, in the aforesaid case, 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