Criminal Appeal No. 1031-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1031-SB of 2002 Date of Decision: 07.01.2010 Amrik Singh son of Sh. Santa Singh, r/o village Daban Kheri, Tehsil Guhla, District Kaithal. ... Appellant Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bajinder Singh, Advocate, for the appellant. Mr. Jaspreet Singh, Assistant Advocate General, Punjab, for the respondent - State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence, dated 07.05.02, rendered by the Judge, Special Court (N.D.& P.S), Patiala, vide which, he convicted the accused, for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced him to undergo Rigorous Imprisonment, for a period of 2 ½ years, and to pay a fine of Rs. 5,000/-, and, in default thereof, to further undergo rigorous imprisonment, for a period of one month, for having been found in Criminal Appeal No. 1031-SB of 2002 2 possession of 30 ½ kgs of poppy husk, without having any permit or licence, falling within the ambit of non-commercial quantity. 2. The facts, in brief, are that, on 08.06.98, Arshdeep Singh, Sub Inspector, alongwith other Police Officials, being on patrol duty, was going, on unmetaled path of Bhakra canal Chupki, from village Chupki, in a government vehicle, bearing registration No. PB-11-C- 7027, and when the Police party, was 10 karams, behind Bhakra bridge, in the area of village Chupki, one Sarabjit Singh, Panch, met it, and was joined. In the meantime, from the side of Gurdialpura, one mare rider, was seen coming with two bags, loaded on the khurjies. He was apprehended by the Police party. On enquiry, he disclosed his name as Amrik Singh. Thereafter, Arshdeep Singh, Sub Inspector, told the accused, that he suspected poppy husk, in the bags, loaded on the mare, and wanted to search the same. He gave an option of being searched, to the accused, either in the presence of a Gazetted Police Officer or a Magistrate, to which, he gave his nod. Thereafter, the statement of the accused, was recorded, and, a wireless message was sent to, Pritpal Singh Thind, Deputy Superintendent of Police, who reached the spot. The statement of the accused, was produced, before the Deputy Superintendent of Police, who attested the same. The Deputy Superintendent of Police, disclosed his identity to the accused. Thereafter, the search of the bags, was conducted, as a result whereof, poppy husk, was recovered, from the same. Poppy husk of both the bags, was mixed. Two samples of poppy husk, weighing 250 grams, Criminal Appeal No. 1031-SB of 2002 3 were taken out, and converted into parcels. The remaining poppy husk, after weightment, came to be 30 kgs, and was put back, in the bags. Both the bags, were converted into parcels, one containing 14 kgs and the other containing 16 kgs of poppy husk. Both the sample parcels and the bags, were sealed with the seal, bearing impression 'AS', belonging to Arshdeep Singh, Sub Inspector. The seal after use, was handed over to Pritpal Singh Thind, Deputy Superintendent of Police. The case property, was taken into possession, vide recovery memo. The accused was arrested. Ruqa was sent, to the Police Station, on the basis whereof, the first information report, was registered. Rough site plan of the place of recovery, was prepared, with correct marginal notes. On return to the Police Station, the case property, duly sealed, was deposited with the Moharrir Head Constable. Report of the Chemical Examiner, was received. After the completion of investigation, the accused, was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 15 of the Act, was framed against the accused, which was read-over and explained to him, to which he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Kamal Narayan Singh, Assistant Sub Inspector (PW1), Arshdeep Singh, Sub Inspector (PW2), the Investigating Officer, Satnam Singh, Moharrir Head Constable (PW3), Hardial Singh, Head Constable No. 1153 Criminal Appeal No. 1031-SB of 2002 4 (PW4), Pritpal Singh, Deputy Superintendent of Police (PW5), and Savtantar Pal Singh, Constable No. 2459 (PW6). The Additional Public Prosecutor for the State, gave up Sarabjit Singh, prosecution witness, being won over by the accused and Surjit Singh, Assistant Sub Inspector, being unnecessary. Thereafter, he tendered into evidence the report of the Chemical Examiner PH, and closed the same. 6. 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 pleaded false implication. It was stated by him, that nothing was recovered from him. It was further stated by him, that he was a labourer, and worked, as such, during the construction of the kothi of Thanedar. It was further stated by him, that when he asked for his payment, the Investigating Officer, planted false case against him, as he had refused to do further labour work, without payment. The accused, however, examined Kuldeep Singh, Constable No. 786, in his defence. Thereafter, he closed his defence evidence. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, the instant appeal, has been filed by the appellant. 9. I have heard the Counsel for the parties, and, have gone the evidence and record of the case, carefully. Criminal Appeal No. 1031-SB of 2002 5 10. The Counsel for the appellant, at the very outset, submitted that though Sarabjit Singh, Panch, was joined as an independent witness, at the time of the alleged recovery, yet he was not examined, but, on the other hand, was given up as won over by the accused, by the Addl. Public Prosecutor for the State, vide his statement dated 24.10.01, without assigning any valid reason. He further submitted that, as such, the prosecution withheld the best evidence, in its possession, and, thus, an adverse inference could be drawn, that had Sarabjit Singh, independent witness, been examined, he would not have supported its case. He further submitted that, on account of this reason, the case of the prosecution became highly doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. There is nothing, in the statement of the Addl. Public Prosecutor for the State, as to on the basis of which material and data, he came to the conclusion, that this witness, had been won over, by the accused. There is nothing, on the record, that any application was moved, by the Investigating Officer, that he had come to know, from reliable sources, that Sarabjit Singh, independent witness, was not going to support the case of the prosecution, and, thus, he be given up. It is, no doubt, true that the Public Prosecutor for the State, is the master of the case. It is for him, to decide, as to which witness he wanted to examine, and as to which witness he did not want to examine. However, such discretion is required to be exercised, by the Public Prosecutor, in accordance with the sound Judicial principles, and, not arbitrarily and capriciously. In Criminal Appeal No. 1031-SB of 2002 6 the instant case, it is not known, as to what, persuaded the Public Prosecutor to give up this witness, as won over. It, therefore, could be said that the discretion was exercised by him, arbitrarily and capriciously. It is, no doubt, true that, in the absence of corroboration, through an independent source, to the evidence of the official witnesses, the case of the prosecution cannot be thrown out. Had Sarabjit Singh, independent witness been examined, light would have been thrown, on the facts and circumstances of the case, and credence would have been lent to the prosecution case, solely based on the evidence of the official witnesses. It is, no doubt, true that, in the absence of corroboration through an independent source, the evidence of the official witnesses, cannot be disbelieved and distrusted, blind- foldely, if the same is found to be creditworthy. However, when the evidence of the official witnesses, is found to be not cogent, convincing, reliable and trustworthy, then on account of non- corroboration thereof, through an independent source, certainly a doubt is cast, on the prosecution story. In the instant case, the evidence of the prosecution witnesses, does not inspire confidence, in the mind of the Court. In this view of the matter, non-corroboration of the evidence of the official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In State of Punjab Vs. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held Criminal Appeal No. 1031-SB of 2002 7 that the case of the prosecution became doubtful. In Masalti Vs. State of UP, AIR 1965 SC 202, a four Judge Bench of the Apex Court, held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material evidence, available to it, which is necessary for unfolding its case, but it would be unsound to lay down, as a general rule, that every witness must be examined, even though, his evidence may not be very material, or even if, it is known that he has been won over or terrorised. The discretion exercised by the Public Prosecutor, in giving up Sarabjit Singh, as won over, as stated above, was not bonafide. The principle of law, laid down, in the aforesaid cases, reveals that the witness whose evidence is material to unfold the case of the prosecution, must be examined, until and unless, he has been won over or terrorized. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused. 11. It was next contended, by the Counsel for the appellant, that though the alleged recovery, was effected, on 08.06.98, yet the samples, were sent, to the Chemical Examiner, on 15.06.98, after a delay of 08 days. He further submitted that no explanation was furnished by the prosecution witnesses, for such a delay, in sending the samples to the office of the Chemical Examiner, as a result whereof, the possibility of tampering with the same, could not be ruled out, especially when Arshdeep Singh, Sub Inspector, after using the seal, handed over the same to Pritpal Singh Thind, Deputy Superintendent of Criminal Appeal No. 1031-SB of 2002 8 Police, and not to Sarabjit Singh, independent witness. The submission of the Counsel for the appellant, in this regard, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 08 days, in sending the samples to the office of the Chemical Examiner. The other evidence to prove the link evidence is not only deficient but unreliable also. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the samples, till the same reached the office of the Chemical Examiner. Since, the samples were allegedly sent to the office of the Chemical Examiner, after 08 days, it could not be safely held that the same remained un-tampered with. This fact casts a shadow of doubt, on the case of the prosecution. In State of Rajasthan Vs. Gurmail Singh, 2005(2) RCR (Crl.), 58, S.C., the contraband, was kept in the Malkhana for 15 days. The Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence, produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Examiner. In State of Punjab Vs. Jaswant Singh, 2002(3), RCR (Crl.), 54 (DB) (P&H), there was a delay of 21 days, in sending the sample to the laboratory. In these circumstances, it was held that it must prove fatal to the prosecution case, especially when the seal used for sealing the samples, remained with the Police Official, during the Criminal Appeal No. 1031-SB of 2002 9 period. 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 Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1), RCR (Criminal), 406 (S.C.), charas was recovered from the possession of the accused and sealed in two packets. The packets and the seal remained, in the custody of the same person. In these circumstances, it was held that there was every possibility of the seized substance, being tampered with. The conviction of the accused was set aside, inter-alia, on this ground. 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. This aspect of the matter was also not taken into consideration by the trial Court, as a result whereof, it fell into a grave error in recording conviction. 12. It is evident, from exhibit D1, copy of the extract from Register No. 19 of the Police Station, that there was no entry of taking the case property, for producing before the Illaqa Magistrate or before the trial Court. No doubt, Arshdeep Singh, Sub Inspector, stated, in his statement, that on reaching the Police Station, on 09.06.98, he Criminal Appeal No. 1031-SB of 2002 10 deposited the case property with Kamal Narayan Singh, Assistant Sub Inspector. After verifying the facts, Kamal Narayan Singh, Assistant Sub Inspector, further sealed the case property with the seal, bearing impression 'KNS'. After taking the case property, from Kamal Narayan Singh, the same, was deposited with the Moharrir Head Constable. He further stated that, on the next day, after taking the same from the Moharrir Head Constable, the same, was produced, before the Illaqa Magistrate. Had it been taken from the Malkhana, the entry, with regard to the same, must have been made, in the Mal Khana Register No. 19. However, no explanation, was furnished, as to why, such entry, was not made, in the said register. Non-making of an entry, in the Mal Khana Register No. 19, in itself, clearly proved, that the case property and the samples, were never produced, before the Illaqa Magistrate. As such, there was non-compliance with the provisions of Section 55 of the Act. Section 55 of the Act, lays down that an Officer Incharge of the Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized, under this Act, 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- in-charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the Criminal Appeal No. 1031-SB of 2002 11 samples are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. 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, which 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 principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, since the Investigating Officer, intentionally and deliberately breached the provisions of Section 55, he could not say Criminal Appeal No. 1031-SB of 2002 12 that the provisions of Section 55, being directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer, is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provision is an indicator towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, the prosecution case became doubtful. 13. No other point, was urged, by the Counsel for the parties. 14. In view of the above discussion, it is held, that the judgement of conviction and the order of sentence, are not based, on the correct reading and due appreciation of evidence, as also law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would have certainly come to the conclusion, that the prosecution, had failed, to prove its case, beyond a reasonable Criminal Appeal No. 1031-SB of 2002 13 doubt. The findings, recorded by the trial Court, recording conviction and awarding sentence, to the accused (now appellant), are perverse and illegal, and, as such, liable to be set aside. 15. For the reasons recorded above, the appeal, is accepted. The judgement of conviction and the order of sentence, rendered by the trial Court, are set aside. The appellant is acquitted of the charge framed against him. If the appellant 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. 16. The concerned Chief Judicial Magistrate, shall comply with the judgment, forthwith and send the compliance report, within a period of 15 days, from the date of receipt of a copy of the same. 07.01.2010 (SHAM SUNDER) Amodh JUDGE