Crl. Appeal No. 755-SB of 2001 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 755-SB of 2001 Date of decision. 17.12.2008 Phuman Singh son of Bagga Singh, resident of Kheowali, Police Station Sadar, Sirsa. ....... Appellant Versus The State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sanjiv Gupta, Advocate, for the appellant. Mr. Gaurav Dhir, AAG, Haryana for the respondent. **** Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 04.05.2001, rendered by the Court of Additional Sessions Judge, Sirsa, vide which it convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period Crl. Appeal No. 755-SB of 2001 --2-- of 10 years and to pay a fine of Rs. 1 lac, and in default of payment of fine, to undergo further rigorous imprisonment, for a period of one year, for having been found in possession of four bags, each containing 40 Kgs. poppy husk, which falls within the ambit of non-commercial quantity, without any permit or licence. 2. The facts, in brief, are that on 29.12.1996 Dharam Singh, Assistant Sub Inspector, along with other Police officials, had held a picket at Ottu Head, when a maruti car bearing registration No. CHE- 5353, came from the side of Sirsa. Dharam Singh, ASI, gave a signal to the car to stop with torch light, but the driver thereof, did not stop. The car was chased and intercepted at Ottu Head. The driver of the car, aforesaid, fled, after leaving the same, at the spot. The search of the car, was conducted. Four bags each containing 40 kgs. Poppy-straw, were recovered from car. A sample of 100 grams, from each of the bags, was taken out, and the remaining poppy husk was kept in the same bags. The samples and the bags containing the remaining poppy husk, were converted into separate parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa Ex.PD was sent to the Police Crl. Appeal No. 755-SB of 2001 --3-- Station, on the basis whereof, the FIR Ex.PD/1 was registered. The site plan Ex.PE, was prepared. The statements of the witnesses were recorded. Later on, the accused was arrested. After the completion of investigation, the accused was challaned. 3. On his 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 the accused, to which he pleaded not guilty, and claimed trial. 4. The prosecution, in support of its case, examined Shiv Kumar, Head Constable, (PW-1), Jagbir Singh, Constable, (PW-2), Rajbir Singh, Head Constable, ( PW-3 ), Dharam Singh, Sub Inspector ( the then ASI ), ( PW-4 ), the Investigating Officer, and Kanwarjeet Singh, Sub Inspector, ( PW-5 ). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. 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 also examined Randhir Singh, DW-1, Satpal Singh, DW-2, and Gurcharan Singh, DW-3, in Crl. Appeal No. 755-SB of 2001 --4-- his defence. Thereafter, the accused, closed his defence evidence. 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 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, at the very outset, submitted that the identity of the accused, as the perpetrator of crime, was not established by the prosecution, beyond a reasonable doubt. The alleged recovery, in this case, was effected at about 10.00 PM, when it could be said to be too much darkness. According to the prosecution case, the accused fled from the car, and could not be arrested on the same day. There was no source of light at the spot. No doubt, it was stated by Rajbir Singh, Head Constable, PW-3, that he identified the accused, because he was already familiar with Crl. Appeal No. 755-SB of 2001 --5-- him. However, the statement of this witness, could not be said to be reliable,in this regard. There is nothing, on the record, that the accused was apprehended by Rajbir Singh, Head Constable, earlier to the present incident. There is also nothing, on the record, to indicate that Rajbir Singh, Head Constable, PW-3, was a witness to the recovery, in a case, in which the accused was earlier apprehended. There is also nothing, on the record, that the accused used to visit the Police Station, frequently, where Rajbir Singh, Head Constable, was posted earlier to the instant case, and that was why, he identified him. Rajbir Singh, Head Constable, had only a glimpse of the accused and, as such, it could not be said that he could correctly identify him at about 10.00 PM, when there was a complete darkness. The identity of the accused, as the perpetrator of crime, therefore, did not stand proved, in the instant case, beyond a reasonable doubt. It was a fit case, in which the identification parade should have been held. It was held in Budhsen and another Vs. State of U.P., AIR 1970 SC 1321 that the facts, which establish the identity of an accused person, are relevant under Section 9. As a general rule, the substantive evidence of a witness, is a statement, made in Court. The evidence of mere Crl. Appeal No. 755-SB of 2001 --6-- identification of the accused person, at the trial, for the first time, is from its very nature, inherently of a weak character. The evidence of the witnesses, in order to carry conviction, should ordinarily clarify, as to how, and, under what circumstances, they came to pick out the particular accused person, and the details of the part, which the accused played, in the crime, in question, with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in Court, as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held, during the course of investigation, with the primary object of enabling the witnesses, to identify persons concerned, in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the Crl. Appeal No. 755-SB of 2001 --7-- bona-fides of the prosecution witnesses, and also to furnish evidence, to corroborate their testimony in Court. Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail, or some other place, and make statements either express or implied, that certain individuals, whom they point out, are persons, whom they recognize, as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162 Cr.P.C. The principle of law, laid down, with regard to the test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under :- “Identification parades have been in common use for a very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident but they claim that although they did not know him earlier, they could recall his features in sufficient details and would be able to identify him if and when they happened to see him. The holding of a test Crl. Appeal No. 755-SB of 2001 --8-- identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit, it saves the suspect or the accused form the sudden risk of being identified in the dock by the self same witnesses during the course of the trial. The line up of the suspect in a test identification parade is therefore a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice.” 9-A Keeping in view the principle of law, laid down, in the aforesaid authorities, now let us see, as to whether, the prosecution, was able to prove that the appellant was the perpetrator of crime. The appellant was identified, in the Court, at the time of his evidence, for the first time, and that identification was hardly of any consequence, to pin-point his identity, as the perpetrator of crime. With a view to prove its case, against the accused, it was obligatory upon the Crl. Appeal No. 755-SB of 2001 --9-- prosecution, to prove his identity, as the perpetrator of crime beyond a reasonable doubt. In the instant case, the prosecution miserably failed to prove the identity of the accused, beyond a reasonable doubt, as the perpetrator of crime. Since the identity of the accused, as the perpetrator of crime, was not proved, beyond a reasonable doubt, he was not connected with the present case. He was, thus, liable to be acquitted. The trial Court was wrong in convicting him. 10. It was next submitted by the Counsel for the appellant, that the evidence of the prosecution was completely unreliable and the trial Court was wrong in acting upon the same, to convict the accused. The submission of the Counsel for the appellant, in this regard, appears to be correct. Rajbir Singh, Head Constable, PW-3, stated that, from the spot, the Police party went to Police Station, Rania, where Dharam Singh, ASI, produced the accused, witnesses and the case property, before the Station House Officer, Kanwarjeet Singh, SI, who verified the same and affixed his seal 'KS'. Dharam Singh, SI, ( the then ASI ), PW-4, also made a statement to the same effect. However, according to the prosecution story, the accused succeeded in running away, from the spot. It is evident from the file that he ( accused ) Crl. Appeal No. 755-SB of 2001 --10-- was arrested in this case on 21.03.1997, when he was lodged in some other case in the State of Rajasthan. When the accused. for the first time, was arrested in this case on 21.03.1997, it is not known, as to how on 29.12.1996, he could be brought to the Police Station, and produced before Kanwarjeet Singh, Sub Inspector, ( PW- 5 ). This all goes to show that, no recovery, whatsoever, was effected from the accused, but he was falsely implicated, in the instant case. 11. It was next submitted by the Counsel for the appellant that according to the affidavit Ex.PA of Shiv Kumar, Constable, he deposited the sample parcels, in this case, in the office of the Forensic Science Laboratory on 29.01.1997, whereas, according to the report of the Laboratory, the same were deposited on 06.02.1997. Where the sample parcels remained from 29.01.1997 to 06.02.1997, is not known. Ex.PG, report of the Forensic Science Laboratory, falsifies the affidavit Ex.PA of Shiv Kumar, Constable. The link, in the chain of the prosecution evidence, was, thus, found missing. Thus, it can be held that the prosecution miserably failed to prove the completion of link evidence, in the instant case. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with Crl. Appeal No. 755-SB of 2001 --11-- the samples, until the same reached the office of the Forensic Science Laboratory. In State of Rajasthan v. Daulat Ram 1980 SCC ( Crl. ) 683, the prosecution failed to prove beyond doubt all the links starting from seizure until the deposit of samples in the Laboratory. It was, under these circumstances, held that the possibility of the samples being tampered with, when the same changed several hands, till the reaching thereof in the office of the Public Analyst, could not be ruled out. It was held that the case of the prosecution became doubtful. In this view of the matter, the instant case also became doubtful. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, it erred in recording conviction and awarding sentence. 12. It was next submitted by the Counsel for the appellant, that the sample parcels were sent to the office of the Forensic Science Laboratory, after 39 days, and, as such, the possibility of tampering with the same, could not ruled out. He further submitted that no explanation, whatsoever, was furnished, as to why, the samples were not sent to the office of the Forensic Science Laboratory, for about 39 days. Had any explanation, been furnished, the matter would have been considered, in the light thereof, but in Crl. Appeal No. 755-SB of 2001 --12-- 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 State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. 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. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the samples, till the same reached the Crl. Appeal No. 755-SB of 2001 --13-- office of the Forensic Science Laboratory. The other evidence produced by the prosecution, in this case, to prove the link evidence, as stated above, is not only deficient, but also unreliable. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 39 days, in sending the samples to the office of the Forensic Science Laboratory, and non-strict proof, by the prosecution, that the same were not tampered with, till the same were deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 13. No other point was urged, by the Counsel for the parties. 14. 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 the correct appreciation of evidence, and law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 15 Crl. Appeal No. 755-SB of 2001 --14-- of the Act. The judgment of conviction, and the order of sentence are, thus, 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 04.05.2001, 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. (SHAM SUNDER) JUDGE December 17, 2008 dinesh