Crl. Appeal No.187-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.187-SB of 1998 Date of Decision : March 11, 2008 Zora Singh S/o Malkiat Singh, ....Appellant R/o Village Takhtu Majra, P.S. Rajpura- Sadar, District Patiala (Punjab) Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. H.S.Dhindsa, 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, and the order of sentence dated 27.11.1997, rendered by the Court of Addl. Sessions Judge, Kurukshetra, vide which it convicted the accused/appellant Zora 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 1 year. 2. The facts, in brief are that on 14.7.1996, Gurdeep Singh, SI, alongwith Surinder Kumar, HC, Shish Ram, HC, and alongwith other police officials, was present at Platform No.2, of Railway Station Shahabad, for checking of the smuggling of explosive substance. At about 10.17 AM, Dadar Express No.1457-UP came from Kurukshetra side, and stopped there. The accused alighted from the train, having a bag, in his right hand. On suspicion, Crl. Appeal No.187-SB of 1998 2 he was apprehended, by Gurdeep Singh, SI. On interrogation, the accused disclosed his name as Zora Singh son of Malkiat Singh, resident of village Thaktu Majra, P.S. Sadar, Rajpura, Distt. Patiala. Jai Bhagwan, who had come to drop his relative, at the station, was associated as an independent witness, with the raiding party. Gurdeep Singh, SI, then conducted the search of the bag, being carried by the accused, in accordance with the provisions of law, which resulted into the recovery of 2 Kgs. 800 grams chura-post (poppy-husk). Out of the bulk, two samples of 50 grams each, were separated, and the remaining poppy-husk was put into the same bag. The samples, and the remaining poppy- husk, were converted into parcels, duly sealed, with the seal, bearing impression 'GS'. Thereafter, the same were taken into possession, vide a separate memo, attested by the witnesses. The seal, after use, was handed over to Jai Bhagwan, public witness. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. Visual site plan of the place of recovery was prepared. The statements of the witnesses were recorded. The accused was arrested. On his personal search, a sum of Rs.50/- was recovered, which was also taken into possession. 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 Rameshwar Dass, MHC, (PW-1), Suresh Kumar, Constable, (PW-2), Surinder Kumar, HC, (PW-3), Jai Bhagwan, independent witness (PW-4), and Gurdeep Singh, SI (PW-5). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. Crl. Appeal No.187-SB of 1998 3 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, did not lead any evidence, in his defence. 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 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 no doubt, Jai Bhagwan (PW-4), was joined by the Investigating Officer, at the time of the alleged recovery, yet he did not support the case of the prosecution. He further contended that the mere fact that the independent witness did not support the case of the prosecution, in itself, was sufficient, to prove that no recovery of poppy-husk, as alleged, was effected from the accused, but he was falsely implicated. The submission of the Counsel for the appellant, in this regard, appears to be correct. Jai Bhagwan (PW-4), did not fully support the case of the prosecution, and, as such, permission of the Court was sought to put him such questions, as are required to be put during the course of cross- examination. The permission was granted. However, he did not improve the case of the prosecution during the course of such cross-examination by the Addl. P.P. Thereafter, he was cross-examined by the Counsel for the accused. Cross-examination, by the accused, can be said to be a very effective weapon, through which he can shatter the veracity of the witness. When the Counsel for the accused, cross examined this witness, he came out with the truth. During Crl. Appeal No.187-SB of 1998 4 the course of his cross-examination, he stated that he alongwith his relative left village Kharindwa, for Railway Station at about 9.00 AM, in a three-wheeler. He further stated that his relative had to go to Ambala. He further stated that he was called by the police, when the train had left the station. He further stated that he was summoned by the police 15-20 minutes, after the departure of the train, in Police Post Shahabad, and there the police showed him the case property recovered from the accused. He further reiterated in his cross- examination, that the bag was shown to him in the police post Shahabad, in which the poppy-husk was lying. This statement made by this witness, during the course of cross-examination, by the Counsel for the accused, clearly revealed that no recovery of the contraband, in his presence, was effected from the accused, but he was only shown poppy-husk in the police-post, and thereafter, the same was planted against the accused and he was made a witness to the recovery. Had it been not so, and had the recovery been effected, in his presence, he would not have deposed that the poppy-husk was shown to him in police post Shahabad, whereas, the case of the prosecution, was that it was recovered from the accused, at the railway station, itself, when this witness was present. Since, the evidence of this witness, does not support the case of the prosecution, the Court is put on guard to scrutinize the evidence, of the official witnesses, carefully and cautiously, so as to ascertain, as to whether, the same is truthful, upon which reliance can be placed. However, one fact becomes very much clear, that the evidence of the independent witness, referred to above, cast a cloud of doubt, on the genuineness of the recovery allegedly effected from the accused, in his presence. This fact was not taken into consideration by the trial Court, as a result whereof, miscarriage of justice of occasioned. 10. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected on 14.7.1996, yet the sample was sent to the office of the Forensic Science Laboratory on 23.7.1996 i.e. after a delay of 9 Crl. Appeal No.187-SB of 1998 5 days, and no explanation was furnished by the prosecution, as to why, such a long delay was caused, in sending the sample to the Forensic Science Laboratory. He further submitted that, on account of delay, in sending the sample to the office of the Forensic Science Laboratory, the possibility of tampering with the same, could not be ruled out. No explanation, whatsoever, was furnished, as to why, the sample was not sent to the office of the Forensic Science Laboratory, for about a period of 9 days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. 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 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 the instant case, the other evidence produced by the accused, to prove the completion of link evidence is deficient and unreliable as would be discussed hereinafter. 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 9 days, in sending the sample to the office of the Forensic Science Laboratory, by the prosecution, must prove fatal to the case of the prosecution. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 11. Suresh Kumar, Constable (PW-2), tendered his affidavit, Ex.PB. It is evident from Para No.3 of the said affidavit that on 23.7.1996, he got a Crl. Appeal No.187-SB of 1998 6 docket issued from the office of the Superintendent of Police, and, thereafter, deposited the parcel of poppy-husk, in the office of the Forensic Science Laboratory. He further testified vide his affidavit that, after deposit of the same, he handed over the receipt to the MHC. In para No.3 of the affidavit Ex.PB, he did not state that the parcel, which was entrusted to him, bore the seals, the same bore particular impressions, and the same were intact. He also did not state in Para No.3 that the sample seal was handed over to him, by the MHC, and that he deposited the same, in the office of the Forensic Science Laboratory. On the other hand, Ex.PG, report of the Forensic Science Laboratory, shows that the seals on the parcel, were found intact, and tallied with the specimen seals, as per the forwarding authority. Since, the sample impression of the seal was not deposited with the Forensic Science Laboratory, it is not know as to on the basis of which material, the said Laboratory, came to the conclusion that the seals on the sample, tallied with the sample impression of the seal. This part of the report of the Forensic Science Laboratory, appears to be incorrect. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58 (S.C.), the sample impression of the seal, was not sent to the Laboratory for the comparison of the seals, on the sample. It was held that, therefore, there was no evidence, to prove satisfactorily that the seals found, on the sample parcel, were in fact, the same, as were affixed, on the sample parcel, immediately after the seizure of the contraband. In these circumstances, in the aforesaid case, the appellant was acquitted. In the instant case also, in the absence of deposit of the sample impression of seal, the Forensic Science Laboratory, had no material with it, to compare, as to whether, the seals on the sample parcel, tallied with the sample impression of the seal, or, as to whether the seals, actually affixed, on the sample parcel, were the same, as were affixed thereon, immediately after the seizure. There is no other evidence, on record, to prove that the seals on the sample parcel, were the same, as were affixed immediately after the seizure. In Crl. Appeal No.187-SB of 1998 7 these circumstances, the possibility of tampering with the sample, could not be ruled out. The link evidence, on account of the aforesaid reason, became incomplete, as a result whereof, the case of the prosecution was bound to fail, but the trial Court did not take into consideration this important factor, as a result whereof, miscarriage of justice occasioned. 12. The provisions of Section 57 of the Act, were not complied with. 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, 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 of 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 Crl. Appeal No.187-SB of 1998 8 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. 13. Even the provisions of Section 55 of the Act, though the same are directory in nature, were not complied with by the Investigating Officer. According to Section 55 of the Act, an officer Incharge of a Police Station, shall take charge of and keep in safe custody, pending the orders of the Magistrate, all the articles seized, 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 Incharge of the Police Station. This provision casts a duty on the Officer Incharge of the Police Station, to produce the case property, before a Magistrate, and obtain his orders, with regard to the factum, that the seals on the case property, as also on the sample parcel were intact. If, the case property and the sample, are produced, immediately after the seizure, before the Magistrate, and he verifies the factum of intactness of the seals on the same, and also affixes his own seal thereon, by passing a separate order, in regard thereto, then certainly a genuineness is lent to the recovery proceedings. Why this provision was not strictly complied with, by the Investigating Officer, is not known. No explanation is forthcoming from his mouth, as to what prevented him (the Investigating Officer or the SHO) from producing the case property, and the sample parcel, before the Magistrate. In this case, the provisions of Section 55 were intentionally and deliberately observed, more in breach, than in compliance, by the Investigating Officer. When a particular provision, in the statute, adumberates that a particular act should be done, by the person concerned, in a particular manner, then he is bound to perform the same, in that manner, and cannot take the shelter of the Crl. Appeal No.187-SB of 1998 9 factum, that since that particular provision, was directory, in nature, he was not bound to comply with the same. If such, an explanation is accepted by the Courts, then the concerned officials saddled with the responsibility of performing various duties, under a particular Statute, would breach the provisions of law, by merely saying that the same being directory, they were not bound to comply with the same. Non-compliance of Section 55 intentionally and deliberately, by the Investigating Officer, cast a cloud of doubt, on the prosecution case. Similar principle of law, was laid down, in Gurbax Singh's case (supra). 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. 14. 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 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. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 27.11.1997, 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 11, 2008 (SHAM SUNDER) Vimal JUDGE