Crl.Appeal No.834-SB of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.834-SB of 1999 Date of decision:27.1.2010 Boota Singh and another ... Appellants versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.D.N.Ganeriwala, Advocate, for the appellants. Mr.Manish Deswal, DAG, Haryana. ... JORA SINGH, J. Boota Singh son of Lila Singh and Lila Singh son of Sunder Singh filed this appeal to challenge the judgment dated 19.8.1999 passed by Sessions Judge, Sirsa, in Sessions Case No.78 of 1996, FIR No.148 dated 7.6.1996 under Sections 15 and 16 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act'), Police Station Kalanwali. By this judgment, the appellants were convicted Section 15 of the Act and sentenced to undergo RI for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for two years, each. Case of the prosecution, in brief, is that on 7.6.1996, police party headed by ASI Gurmeet Singh while on patrol duty was present at Gahlewala Chowk in the area of Village Singhpura, then received secret information to the effect that Boota Singh and Lila Singh have kept chura post in the fields of Ram Singh situated in the revenue estate of Village Singhpura and are in search of suitable customer. In case there is a raid, then they can be caught red handed along with chura post. As per secret Crl.Appeal No.834-SB of 1999 2 information, raid was conducted. Two persons were seen while sitting on the gunny bags kept in the fields of Ram Singh. One person on seeing the police party had fled away from the spot and the second person, namely, Lila Singh, was apprehended. ASI Gurmeet Singh suspected that there seems to be contraband in the gunny bags. Offer was given to the accused as to whether he wanted the gunny bags to be searched in the presence of Gazetted Officer or any Magistrate. Accused replied that he wanted the gunny bags to be searched in the presence of a Gazetted Officer. Consent memo prepared was thumb marked by the accused, attested by the witnesses. Then ASI Gurmeet Singh along with police officials, Lila Singh with gunny bags had gone to Kalanwali Tehsil Complex. An application was produced before Naib Tehsildar with a request for search of the gunny bags. Under the supervision and direction of the Naib Tehsildar, ASI Gurmeet Singh had searched the gunny bags, which were four in number. Gunny bags were found to be containing chura post. On weighment, each bag was found containing 45 kgs of chura post. 100 grams was separated from each bag to serve as sample. 4 samples and remaining chura post in the gunny bags were sealed by the Investigating Officer with his own seal bearing impression `GS'. Case property was also sealed with the seal of Naib Tehsildar bearing impression `OPS'. Seal of the Naib Tehsildar after its use was retained by him, whereas seal of the Investigating Officer after its use was handed over to ASI Mohinder Singh. Ruqa was sent to the Police Station, on the basis of which, formal FIR was recorded. Rough site plan with correct marginal notes was prepared. Statements of the witnesses were recorded. On return to the police station, ASI Gurmeet Singh had produced the accused along with case property before SI/SHO Lachhman Crl.Appeal No.834-SB of 1999 3 Singh. The SHO after verifying the facts had affixed his own seal bearing impression `LS' on the sealed parcels. Sample parcel was sent to the office of Chemical Examiner and as per report of the laboratory, sample was found to be of poppy straw (chura post). Case property was deposited with the MHC. Boota Singh was arrested on 27.6.1996, when he surrendered himself in the Court. After completion of investigation, challan was presented in the Court. Accused were charged under Section 15 of the Act, to which they pleaded not guilty and claimed trial. To substantiate its case, prosecution examined PW1 HC Sant Lal, who had tendered his affidavit (Ex.PB). PW2 SI Ram Avtar, after completion of investigation had challaned the accused. PW3 Constable Karambir, tendered his affidavit (Ex.PC). PW4 SI Lachhman Singh is a formal witness. PW5 Om Parkash, Naib Tehsildar stated that Investigating Officer had produced accused along with 4 bags before him and under his supervision, the bags were searched. Chura post was recovered from the gunny bags. PW6 ASI Mohinder Singh is one of the recovery witnesses, whereas PW7 ASI Gurmeet Singh is the Investigating Officer. After close of the prosecution evidence, statements of accused under Sections 313 Cr.P.C. were recorded. Accused denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused is that they were implicated in this case at the instance of Mita Singh, Ex-member Panchayat, with whom they had a dispute during Crl.Appeal No.834-SB of 1999 4 elections because they were the supporters of Shri O. P. Chautala. In defence, DW1 Ajaib Singh, Sarpanch of Village Singhpura, was produced. After hearing learned Public Prosecutor for the State, counsel for the accused-appellants and from the perusal of evidence on file, trial Court convicted the appellants under Section 15 of the Act and directed to undergo imprisonment as stated aforesaid. Learned counsel for the appellants argued that police party headed by ASI Gurmeet Singh while present in the area of Village Singhpura, received a secret information to the effect that the appellants are present in the fields of Ram Singh with chura post and are in search of suitable customer. In case there is a raid, then they can be apprehended with chura post, but secret information was not reduced into writing. There is a violation of mandatory provisions of the Act. Ram Singh was not produced to state whether he was owning land situated in Village Singhpura or not. Police party had ample opportunity to join independent witness but no effort was made to join independent witness. Recovery was on 7.6.1996, whereas the sample parcels were deposited in the office of Chemical Examiner on 20.6.1996. Case property was not produced in the Court. With delay in sending sample parcels to the office of Chemical Examiner, possibility of tampering with the case property cannot be ruled out particularly, when seal impressions of the seals used were not deposited in the laboratory. In the absence of seal impressions, laboratory was not right to opine that seals on the sample parcels were tallying with the specimen of seals. Learned counsel further argued that Boota Singh, as per story had fled away from the spot, but no evidence on the file that Boota Singh appellant is the same man, who had fled away from the spot. Boota Singh was not known to the police Crl.Appeal No.834-SB of 1999 5 officials. No independent witness was with the party, so the police officials cannot state that Boota Singh, facing trial, is the same man, who had fled away from the spot. Identity of Boota Singh is doubtful. Learned State counsel argued that evidence on the file was rightly scrutinized. Recovery was in the presence of Gazetted Officer. Sealed parcels were also sealed with the seal of Gazetted Officer. Office of the Gazetted Officer was separate from the Police Station. So, there was no occasion to re-seal the case property after getting the seal of the Gazetted Officer. I have heard learned counsel for the appellants and the State and gone through the evidence on the file. As per story, police party headed by ASI Gurmeet Singh while present in the area of Village Singhpura, received secret information. Then as per secret information, raid was conducted. On seeing the police party, one of the accused, i.e., Boota Singh, had fled away from the spot. Second accused was apprehended by the police. Boota Singh is one of the appellants. Now the question is whether Boota Singh appellant is the same person, who had fled away from the spot on seeing the police party. Recovery was on 7.6.1996. Before that date, no criminal case was registered against Boota Singh. Boota Singh was not summoned to the Police Station in connection with any dispute. Boota Singh was not known to any of the police officials earlier to the present recovery. Independent witness was not with the party. Except ASI Mohinder Singh, one of the recovery witnesses, no other witness stated a word that Boota Singh was earlier known to him, so when the police officials had gone to the place of recovery, then they had identified Boota Singh while fleeing from the spot. Crl.Appeal No.834-SB of 1999 6 Mohinder Singh when appeared as PW6, then stated that on seeing them, one person, later on known as Boota Singh accused, had fled away from the spot. But statement of Mohinder Singh inspires no confidence qua identification of Boota Singh because 1-1/2 months earlier to the present occurrence, Mohinder Singh was posted in Police Station, Kalanwali. During this period, he had not apprehended Boota Singh in any case, nor he had summoned Boota Singh in connection with any case. Mohinder Singh stated that whenever he was on patrol duty during this period of 1-1/2 months, then Boota Singh had met him, but this fact is not correct one because Mohinder Singh failed to disclose as to who was the Sarpanch of Village Singhpura, and whether Mita Singh was the Panch of the Village. He lastly stated that he cannot tell whether the appellants are the supporters of Lok Dal. When Mohinder Singh cannot tell as to who was the Sarpanch or Panch of Village Singhpura and Boota Singh was not apprehended by Mohinder Singh in any case, then Mohinder Singh was not in a position to identify the accused, who had fled away from the spot and state in Court that the accused, who had fled away from the spot, was Boota Singh, now facing trial. Boota Singh was arrested on 27.6.1996, but no test identification parade was arranged. When Boota Singh was not wanted in any case by the Police Station, Kalanwali, then ASI Mohinder Singh, who was posted in this Police Station only 1-1/2 months earlier, was not in a position to state that Boota Singh is the same man, who had fled away from the spot on seeing the police party. Identity of Boota Singh appellant is doubtful, but the trial Court without any reasoning opined that the accused, who had fled away from the spot, was Boota Sigh, appellant. Next submission of learned counsel for the appellants is that Crl.Appeal No.834-SB of 1999 7 police had a secret information but the same was not reduced into writing. There is non-compliance of mandatory provisions of Section 42 of the Act. Submission of learned counsel for the appellants seems to be reasonable one. PWs in Court stated that police party while present in the area of Village Singhpura had received secret information to the effect that Boota Singh and Lila Singh with chura post are present in the fields of Ram Singh and in case there is a raid, then they can be apprehended with chura post. But secret information was not reduced into writing. ASI Gurmeet Singh is the Investigating Officer and in chief, he did not state a word that secret information was reduced into writing or sent to higher authorities. In cross- examination, he admitted that secret information was received at about 12.00 noon, but the same was not reduced into writing. Place where secret information was received is a busy place. In Beckodan Abdul Rahiman vs. State of Kerala, 2002(2) RCR (Crl.) 385, police party received secret information on telephone, but information was not reduced into writing as per Section 42 of NDPS Act. Hon'ble the Supreme Court opined that there is a violation of mandatory provision of Section 42 of the Act. In Gurnam Singh vs. State of Punjab, 2006(3) RCR (Crl.) 205, SHO, Police Station Lohian, along with police party while on patrol duty was present in the area of Village Majrawala, then received secret information to the effect that accused were unloading bags containing poppy husk in the area of Village Chak Wadala-Secret information was not reduced into writing-Conviction was set aside. In Balbir Singh vs. State of Punjab, 2008(1) Law Herald (P&H) 703, police party had secret information but the same was not reduced into Crl.Appeal No.834-SB of 1999 8 writing. Prosecution story was ignored. In the case in hand also, while present in the area of Village Singhpura, police party received secret information. After receipt of secret information, party had passed through the village to reach the fields of Ram Singh. The place where secret information was received was a busy place, but secret information was not reduced into writing. No case of the prosecution that police party had no time to reduce into writing the secret information to avoid escape of the accused with incriminating article. Failure to comply with mandatory provisions of Section 42 of the Act is doubtful. After reaching the fields of Ram Singh, Lila Singh appellant was apprehended while sitting on 4 bags of chura post. As per Section 50 of the Act, offer was given to the appellant as to whether he wanted to be searched before Gazetted Officer or Magistrate and as per reply of the appellant, the appellant along with case property was produced before Om Parkash, Naib Tehsildar. As per direction of Naib Tehsildar, bags were checked and on checking, the same were found to be containing chura post. On weighment, each bag was found to be containing 45 kgs of chura post. 100 grams was separated from each bag to serve as sample. 4 samples and remaining chura post in the gunny bags were sealed by the Investigating Officer with his own seal bearing impression `GS'. Case property was also sealed with the seal of Naib Tehsildar bearing impression `OPS'. After return to the Police Station, the appellant along with case property was produced before SHO Lachhman Singh. The SHO after verifying the facts had affixed his own seal bearing impression `LS' on the sealed parcels. Meaning thereby, there were three seals on each parcel, i.e., one of Crl.Appeal No.834-SB of 1999 9 Investigating Officer bearing impression `GS', second of Naib Tehsildar bearing impression `OPS' and the third one of SHO bearing impression `LS', but Naib Tehsildar, Mohinder Singh, one of the recovery witness, or ASI Gurmeet Singh, Investigating Officer, did not state a word that seal impressions of the seals used were prepared separately. Investigating Officer stated that on return to the Police Station, case property was produced before the SHO but did not state a word that after sealing the case property by the SHO with his seal bearing impression `LS', case property was returned to him and he had deposited the same with the Incharge of Malkhana. SHO Lachhman Singh stated that he had also sealed the case property with his own seal bearing impression `LS'. Then the case property was handed over to the Investigating Officer with a direction to deposit the same with the MHC. That means, case property was deposited with the MHC by the Investigating Officer, but this fact was not stated by the Investigating Officer while appeared as PW7. On the day of recovery or the next day, case property was not produced before the Ilaqa Magistrate. When seal impressions of the seals used were not prepared at the time of sealing of the case property, then there was no idea to deposit the seal impressions with the MHC. Story is doubtful as to who had deposited the case property with the Incharge of Malkhana. When seal impressions were not prepared while sealing the case property, then report of the laboratory that seals on the sample parcels were intact and were tallying with the specimen of seals is not correct. Recovery was on 7.6.1996, whereas sample parcels were handed over to Constable Karambir Singh on 19.6.1996 for depositing in the office of Chemical Examiner. Ex.PC is the affidavit of Constable Crl.Appeal No.834-SB of 1999 10 Karambir Singh. As per this affidavit, sample parcels were deposited in the office of Chemical Examiner on 19.6.1996. Ex.PA is the report of the FSL and the report is to the effect that sample parcels were received in the office on 20.6.1996, but affidavit of Constable Karambir Singh (Ex.PC) is silent as to whether sample parcels were deposited in the office of Chemical Examiner on 19.6.1996 or 20.6.1996. Suppose, sample parcels were deposited in the office of Chemical Examiner on 20.6.1996, then question is how the laboratory opined that seals on the sample parcels were found to be tallying with the seal impressions when seal impressions were not prepared on the spot by the Investigating Officer or the SHO and later on, seal impressions were not deposited with the Incharge of Malkhana. Delay in depositing the sample parcels in the office of Chemical Examiner when case property was not produced in Court on any date along with the appellants, shows that possibility of tampering with the case property cannot be ruled out. ASI Mohinder Singh, one of the recovery witnesses, stated that Lila Singh was apprehended while present in the fields of Ram Singh with 4 gunny bags containing poppy husk. Lila Singh with gunny bags was produced before the Naib Tehsildar and in the office of Naib Tehsildar, bags were searched. Samples were drawn from each bag. Samples and remaining chura post in the bags were sealed separately. After recovery of chura post from the bags and sealing the case property, the appellant along with case property was produced before the SHO, PS Kalanwali. Mohinder Singh did not state a word that after producing the case property before the Naib Tehsildar, the police party had again gone to the place of recovery. Contrary to the statement of ASI Mohinder Singh, ASI Gurmeet Singh, Crl.Appeal No.834-SB of 1999 11 Investigating Officer, stated that after production of the case property before the Executive Magistrate in his office, bags were checked, samples were drawn, and samples and remaining chura post in the bags were sealed separately with his own seal bearing impression `GS' and of Naib Tehsildar bearing impression `OPS'. After that, ruqa was sent to the Police Station. Then the party had gone to the spot, i.e., fields of Ram Singh. Rough site plan with correct marginal notes was prepared. Statements of the witnesses were recorded. Thereafter, police party came to the Police Station along with the appellant and the case property. Appellant with case property was produced before the SHO. Statement of ASI Mohinder Singh is contrary to the statement of Investigating Officer. That means story is doubtful. While present in the area of Village Singhpura, police party received secret information. After that, the party had passed through the village to reach the fields of Ram Singh. Place where secret information was received was a busy place, but no independent witness was joined by the party. Naib Tehsildar while appearing as PW5 did not state a word that he had disclosed his identity to the appellant and after sealing the case property, his statement was recorded. Investigating Officer in cross- examination admitted that statement of Naib Tehsildar was recorded, but statement of Naib Tehsildar under Section 161 Cr.P.C. is not on the file. Investigating Officer frankly admitted that he has seen the judicial file and there is no statement of Naib Tehsildar on the file. Naib Tehsildar when appeared as PW5 then did not state a word that his statement was recorded by the Investigating Officer. No explanation where statement of Naib Tehsildar has gone. Story is doubtful as to whether statement of Naib Tehsildar was recorded or not. When no statement of Naib Tehsildar under Crl.Appeal No.834-SB of 1999 12 Section 161 Cr.P.C., then statement of Naib Tehsildar while appearing as PW5 is without any evidentiary value. Lila Singh appellant was sighted while sitting on the bags in the fields of Ram Singh, but Ram Singh was not joined in the investigation of this case. Nothing on the file that Ram Singh was owning land in Village Singhpura. If Ram Singh was not owning land in the revenue estate of Village Singhpura, then story is doubtful that the appellant was seen while sitting on the gunny bags kept in the fields of Ram Singh. Failure to join Ram Singh in the investigation of this case is also fatal. No other submission was put forward. All discussed above shows that evidence on the file was not properly scrutinized by the trial Court. Judgment of the trial Court suffers from illegality and infirmity and the same is set aside. Appellants are acquitted of the charges levelled against them. Appeal is, accordingly, accepted. 27.1.2010 ( JORA SINGH ) pk JUDGE