IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal S-1063-SB of 1998 Date of Decision : February 21, 2011 Nirdhol Singh ….Appellant Versus State of Punjab …. Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Daldeep Singh, Advocate. Mr. P.S. Sidhu, Additional Advocate General, Punjab. T.P.S. Mann, J. The present appeal had been filed against the judgment and order dated 25.11.1998 passed by Judge, Special Court, Mansa, whereby the appellant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year. According to the prosecution, on 25.4.1996, the police party headed by ASI Suraj Bhan of Police Station Sadar, Mansa was on patrol duty and going from village Dulowal to village Maujia on a Government vehicle. When the police party reached near the liquor vend within the area of village Maujia, the appellant while carrying a bag on his head was seen coming from the opposite side. On seeing the police Criminal Appeal S-1063-SB of 1998 -2- party, he tried to escape but was apprehended on suspicion. As some incriminating material was suspected from him, he was told as to whether he wanted to be searched before a Gazetted Officer or a Magistrate. The appellant disclosed that he wanted to be searched before a Gazetted Officer and his statement was also recorded. Thereafter, on receipt of wireless message, DSP Joginder Singh Kahlon reached the spot and on his directions, the search of the bag, which was being carried by the appellant, led to the recovery of poppy husk. 100 grams of poppy husk was taken as sample and the remaining when weighed came to be 19 kilograms 900 grams. It was put in the same bag and the bag as well as the sample were sealed with the seal bearing impression 'SB'. Separate sample impression of the seal was prepared and the seal after use was handed over to ASI Gulzar Singh. The samples and the bag were taken into custody vide recovery memo. Ex.PB. The appellant was formally arrested. Site plan was prepared and, thereafter, the case property as well as the samples deposited at the Police Station with the SHO. Upon completion of investigation and presentation of challan, followed by commitment of the case to the Court of Sessions, the appellant was charge sheeted for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution had examined PW1 Criminal Appeal S-1063-SB of 1998 -3- ASI Gulzar Singh, PW2 ASI Suraj Bhan, PW3 Constable Mewa Singh and PW4 Inspector Santokh Singh. When the statement of the appellant was recorded under Section 313 Cr.P.C., he denied having committed any offence and asserted that the case was false. However, he did not lead any evidence in defence. After hearing learned counsel for the parties and going through the evidence available on the record, the trial Court believed the prosecution version and, accordingly, the appellant was convicted and sentenced, as mentioned above. I had heard learned counsel for the parties and scanned the evidence available on the record with their able assistance. Learned counsel for the appellant had submitted that no independent witness was joined by the Investigating Officer despite availability and, therefore, the case of the prosecution became doubtful. Though, according to the prosecution, it was a case of chance recovery as there was no secret information received by the police that the appellant would be transporting contraband in a bag yet it was admitted by PW2 ASI Suraj Bhan that the place of recovery was a thoroughfare. PW1 ASI Gulzar Singh deposed that the police party remained at the spot for about 4/4½ hours. It was highly unlikely that Criminal Appeal S-1063-SB of 1998 -4- no independent witness would have passed the spot where the appellant was apprehended and the contraband recovered. It is true that the police officials are as good witnesses as anyone else but when the appellant had pleaded that he was arrested on 24.4.1996 from his house in the presence of the Panchayat, the Court would look for independent corroboration to the prosecution case. Such a corroboration could have been obtained by the police by associating witness from the public. As no such witness from the public was associated, the case of the prosecution would have to be viewed with suspicion. According to PW1 ASI Gulzar Singh, once the appellant was apprehended and he opted to be searched in the presence of a Gazetted Police Officer, a wireless message was flashed, pursuant to which, DSP Joginder Singh Kahlon reached the spot. When the contents of the bag were searched in the presence of the DSP, the police came to know that it was poppy husk. The bag had been brought down from the head of the appellant and placed on the ground. After the arrival of the DSP, weights and scales were brought. However, according to PW2 ASI Suraj Bhan, till the arrival of the DSP, the gunny bag remained on the head of the appellant. The weighing scale and weights were secured after some time of the arrest of the appellant. Though he could not state the time when the weighing scale and weights were secured yet he testified that they were brought at the time when Criminal Appeal S-1063-SB of 1998 -5- DSP reached the spot. He further deposed that, in fact, the constable was sent for bringing weighing scale and weights before arrival of the DSP. If the bag had remained on the head of the appellant till the arrival of the DSP, there was no occasion for the police to suspect that it would be containing poppy husk and to recover the same, weighing scale and weights would be required. Apparently, the police had come to know that the gunny bag carried by the appellant on his head contained poppy husk which was required to be weighed and, therefore, weighing scale and weights were sent for before the arrival of the DSP. According to PW2 ASI Suraj Bhan, after effecting the recovery and on return to the police, he produced the appellant and the case property before Inspector Santokh Singh. PW4 Inspector Santokh Singh testified that on 25.4.1996, ASI Suraj Bhan had produced the appellant, gunny bag and the sample before him. On the same day, he produced the sample and the case property alongwith appellant before the Ilaqa/Duty Magistrate and submitted application Ex.PH upon which the Magistrate passed order Ex.PH/1. On return to Police Station, he deposited the case property, i.e. gunny bag with MHC whereas the sample was retained by him. The sample and the case property remained intact till they remained in his possession. The appellant was put in the police lock-up. On 1.5.1996, this witness handed over the sample of the case with seal intack to C. Mewa Singh for depositing the same with the Chemical Examiner after getting it forwarded from the Criminal Appeal S-1063-SB of 1998 -6- office of SSP, Mansa. The sample was, accordingly, deposited in the office of Chemical Examiner on 2.5.1996. In cross-examination, he stated that the seal used for sealing the sample and the case property remained with him till the sample was sent to the Chemical Examiner. A perusal of order Ex.PH/1 passed by JMIC (D) on application Ex.PH submitted by Inspector Santokh Singh would reveal that the case property was ordered to be deposited with MHC under the rules. Despite the same, Inspector Santokh Singh only deposited the gunny bag with MHC, whereas he kept the sample with him. This assumes significance in view of the fact that the seal used by Inspector Santokh Singh for sealing the sample remained with him till the sample was sent to the Chemical Examiner. Possibility of tampering with the sample, therefore, could not be ruled out. The alleged recovery was made on 25.4.1996, whereas the sample was sent to the Chemical Examiner on 1.5.1996. No explanation had been given by the prosecution regarding the delay of about six days in sending the sample to the Chemical Examiner. Possibility of tampering with the sample during the said period could not be ruled out. In Ramji Singh v. 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 as it 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 Criminal Appeal S-1063-SB of 1998 -7- prosecution. The principle of law, laid down in the aforesaid authority, is fully applicable to the facts of the present case. The delay of six days in sending the sample to the office of the Chemical Examiner, and non- strict proof, by the prosecution that the sample had not been tampered with till it was deposited with the Chemical Examiner, must prove fatal to the case of the prosecution as the possibility of tampering with the same could not be ruled out. In view of the above, it would not be safe to sustain the conviction of the appellant for offence under Section 15 of the Act. He deserves the benefit of doubt. Resultantly, the appeal is accepted, conviction and sentence of the appellant is set aside and he is acquitted of the charge against him. He is on bail. His bail bonds and surety bonds shall stand discharged. ( T.P.S. MANN ) February 21, 2011 JUDGE satish