IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 67-SB of 2002 Date of decision: 30 th March, 2010 Balwinder Singh … Appellant Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. K.S. Dhaliwal, Advocate for the appellant. Mr. J.S. Bhullar, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been filed by Balwinder Singh son of Tehal Singh. He was named as an accused in case FIR No.95 dated 19.08.1999 registered at Police Station Sahnewal under Sections 15/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, ‘the Act’). The appellant was tried by the Court of Judge, Special Court, Ludhiana and was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/-, in default of payment of fine to further undergo simple imprisonment for a period of one year. The appellant, according to the trial Court, was found in possession of 30 kilograms and 500 grams of poppy husk, which is a non- commercial quantity. The appellant was released on interim bail for three weeks on 29 th January, 2002 and he had to report back to the jail authorities on 18 th February, 2002. According to the affidavit filed by Criminal Appeal No.67-SB of 2002 Surinder Pal Khanna, PPS, Superintendent of Central Jail, Ludhiana, the appellant had not surrendered before the jail authorities on the date specified. Without disclosing this fact, the appellant obtained bail from this Court on May 13, 2003. Counsel for the appellant has stated that during the period of interim bail, the appellant was arrested in another case at Karnal and therefore, he could not present himself before the jail authorities. It is further submitted that at present the appellant is confined in Karnal jail. Be that as it may, this Court shall proceed to decide the appeal on merits. The criminal machinery was set into motion against the appellant when Manjit Singh PW-4 on 29 th August, 1999, the then SHO Police Station Sahnewal, had sent a ruqa Ex.PB to the Police Station for registration of an FIR, in which it was stated that he, along with his companion police officials, was present for checking of suspected persons at Sahnewal Main Chowk, when a special informant gave information that one Balwinder Singh son of Tehal Singh alias Joginder Singh, resident of village Amupur, Police Station Neesan, District Karnal, is sitting near Dera Bapu Assa Ram around the Canal and is selling poppy husk while sitting on a gunny bag. In case raid is conducted, then the poppy husk in a heavy quantity can be recovered. Taking the information to be reliable, Inspector Manjit Singh constituted a raiding party and proceeded towards the spot. On the basis of ruqa Ex.PB, formal FIR Ex.PB/1 was registered. On reaching at the spot, Manjit Singh gave an offer to the accused to get himself searched from a Gazetted officer, a Magistrate or from himself. Vide Ex.PD, the accused had given consent to get himself searched from a Gazetted officer but not from Manjit Singh Inspector, however vide memo Ex.PE, he consented to get himself searched from DSP Harmohan 2 Criminal Appeal No.67-SB of 2002 Singh Sandhu, who had reached at the spot. In the presence of DSP Harmohan Singh Sandhu, vide recovery memo Ex.PF, 30 kilograms and 500 grams of poppy husk was recovered from the gunny bag, on which the accused appellant was allegedly sitting. Two samples of 250 grams each were drawn and the remaining 30 kilograms of poppy husk was also taken into possession vide a separate memo. The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted against the accused appellant. The Judge, Special Court, Ludhiana charged the appellant that on 29 th August, 1999, in the area of Tibba, he was found in possession of 30 kilograms and 500 grams of poppy husk, without any permit or licence and thus, he committed an offence punishable under Section 15 of the Act. The appellant pleaded not guilty and claimed trial. Prosecution examined HC Manjit Singh as PW-1. He tendered his affidavit Ex.PA to prove link evidence. ASI Dilawar Singh PW-2 stated that on 29 th August, 1999, he was posted at Police Station Sahnewal and was officiating as SHO. Manjit Singh Inspector produced before this witness, the accused Balwinder Singh, two sample parcels each of 250 grams of poppy husk and a bulk parcel of 30 kilograms of poppy husk. The case property was having seal impressions of ‘MS’ and ‘HS’. The specimen seals were also produced before this witness. Thereafter, ASI Dilawar Singh had affixed his own seal bearing impression of ‘DS’. The case property was produced before this witness on 29 th August, 1999 at 10.30 p.m. Baldev Singh PW-3 on 30th August, 1999 had produced two sample parcels each containing 250 grams of poppy husk and one bulk parcel containing 30 kilograms of poppy husk before the Judicial Magistrate (1st Class), Ludhiana. The bulk parcel contained seals of ‘MS’, ‘HS’ and ‘DS’. The Judicial Magistrate (1st Class), Ludhiana on application 3 Criminal Appeal No.67-SB of 2002 Ex.PB, had passed orders Ex.PB/1 and Ex.PB/2. Thereafter, the parcels and the chits were re-deposited with Moharrar Head Constable. This witness denied the suggestion that on the seals affixed on the bulk parcel, there were only two seals of ‘MS’ and ‘HS’. This witness was confronted with order Ex.PB/2, where only above said two seals were mentioned. At this stage, it will be apposite here to notice the contents of orders Ex.PB/1 and Ex.PB/2 respectively, passed by Judicial Magistrate (1st Class), Ludhiana on 30th August, 1999, which read as under: “A packet containing 30 kg of poppy husk and two packets of sample containing 250 gm each have been seen by him and have been signed by me. One empty ‘Daba’ (small bowl) of one litre is ordered to be deposited with the Malkhana, Sahnewal. These packets and ‘Daba’ are ordered to be deposited with the Malkhana, P.S. Sahnewal, Ludhiana for necessary action.” xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx “At this stage, ld. defence counsel has pointed out that the seal imbossed on the packed be also mentioned. I have seen the packet containing 30 kg of poppy husk and it bears the seals of ‘DS’, ‘HS’ and ‘MS’. I have also seen the slip fixed on the packet where only ‘MS’/’HS’ have been written and similarly on the other two packets of sample contains the same wording i.e. HS/MS.” A perusal of the above orders reveals that the bulk parcel had all the three seals, i.e. ‘DS’, ‘HS’ and ‘MS’, whereas, as per chits only two seals of ‘MS’ and ‘HS’ were affixed on the two sample packets. Manjit Singh Inspector appeared as PW-4. He was the Investigating Officer. This witness proved various facets of the investigation regarding apprehension of the accused, requisitioning service of the DSP at the spot, search and seizure. In cross examination, this witness stated that the place of recovery was 4 kilometers away from the place, where the secret 4 Criminal Appeal No.67-SB of 2002 information was received. He further stated that Dera of Bapu Assa Ram was ½ kilometers away from the place of recovery. Abadi of village Tibba was about 1 ½ kilometer away and the Police Station was about 4 kilometers away from the spot. This witness further stated that the Constable with the FIR number, came to the spot at 8.00 p.m. He further stated that the seals on the bulk parcel were broken and were not legible. SI Dogar Ram appeared as PW-5. He was a member of the raiding party. This witness corroborated the testimony of PW-4 Manjit Singh Inspector. In cross examination, this witness stated that the place of recovery was a thorough fare. The distance of the place of recovery was asked from this witness. He was cross-examined as to why the independent witness was not joined. Constable Satnam Singh PW-6 on 8 th September, 1999 took the sample parcel, sample seal and the docket from the MHC and deposited the same with the Forensic Science Laboratory, Punjab, Chandigarh. DSP Harmohan Singh appeared as PW-7. He testified that the recovery of the poppy husk was effected in his presence. Mr. Dhaliwal, appearing for the appellant, has stated that at the spot, when the sample was sealed, Inspector Manjit Singh PW-4 had affixed his seal ‘MS’ and DSP Harmohan Singh PW-7 had affixed his seal ‘HS’. In the Police Station, on the night of 29 th August, 1999 at 10.30 p.m., ASI Dilawar Singh had affixed his seal ‘DS’. However, when the samples were produced before the Illaqua Magistrate, as is evident from Ex.PB/2, there was no sample seal of ‘DS’ and when the samples reached the laboratory, they again contained the seal of ‘DS’. It is stated that this circumstance should be taken into consideration to infer that the samples were tampered with. It is further contended that the prosecution has not proved the place, wherefrom the recovery was effected. 5 Criminal Appeal No.67-SB of 2002 I have examined the orders Ex.PB/1 and Ex.PB/2, the slip Ex.P1 and the report of Forensic Science Laboratory Ex.PK along with the evidence of PW-2 ASI Dilawar Singh and PW-3 HC Baldev Singh. From a perusal of the same, it is evident that when the sample was signed by the Magistrate, it had no seal of ‘DS’. Subsequently, when the sample reached the laboratory, it contained the seal of ‘DS’, along with the seals of ‘MS’ and ‘HS’. When it was deposited in the Malkhana on 29 th August, 1999, there was a seal of ‘DS’, on 30 th August, 1999, when it was produced before the Magistrate, there was no seal of ‘DS’ and when the sample reached the laboratory on 8 th September, 1999, there was a seal of ‘DS’. How it had happened, has not been explained by the prosecution. The possibility that the sample was tampered with, cannot be ruled out. Furthermore, the place of recovery, where the accused was found sitting over the gunny bag of poppy husk, is not owned and possessed by the appellant. Balraj Singh Gill, PPS, Assistant Commissioner of Police, Sahnewal, Ludhiana has filed an affidavit in this Court today, a perusal whereof shows that the appellant has been convicted in another case FIR No.137 dated 05.09.2006 under Section 15 of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of ten years by the Court of Judge, Special Court, Kaithal on 2 nd March, 2009. It has also come on record that another FIR bearing No.244 dated 22.05.2002 was registered against the appellant at Police Station Tripuri, Patiala under Section 15 of the NDPS Act. There is no doubt that the appellant indulges in sale and purchase of poppy husk. But at the same time, this Court is at its wits to reconcile disappearance and appearance of the seal on the sample. The investigating agency has utterly failed to explain this serious lapse. Thus, non-examination of independent witness also assumes importance. Seal was handed over to police official. Sample was sent to 6 Criminal Appeal No.67-SB of 2002 laboratory after a delay of eight days. These all factors taken collectively compel this Court to grant benefit of doubt in the present case to the appellant. Hence, there is no option with this Court but to accept the present appeal with an advice to the investigating agency to be more careful in future. As a result of the above discussion, present appeal is accepted, conviction and sentence of the appellant is set aside and he is acquitted of the charges. [KANWALJIT SINGH AHLUWALIA] JUDGE March 30, 2010 rps 7