Punjab-Haryana High Court
Kashmir Singh Son Of Gulab Singh Son Of ... vs The State Of Punjab on 14 November, 2008
Crl. Appeal No. 608-SB of 2001
1
IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 608-SB of 2001
Date of decision. 14.11.2008
Kashmir Singh son of Gulab Singh son of Jaimal Singh,
resident of village Bhundri, Police Station Sidhwan Bet,
District Ludhiana.
....... Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Surya Kant Gautam, Advocate for
Mr. K.K. Goyal, Advocate,
for the appellant.
Mr. Shilesh Gupta, DAG, Punjab
for the respondent.
****
Sham Sunder, J.
This appeal is directed against the judgment of conviction and the order of sentence dated 19.04.2001, rendered by the Judge, Special Court, Ludhiana, vide which he 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. 608-SB of 2001 2 of 10 years and to pay a fine of Rs. 1 lac, and in default of payment of fine, he was to undergo further rigorous imprisonment, for a period of one year, for having been found in possession of 37 Kgs. 500 grams poppy husk, which now falls within the ambit of non-commercial quantity, without any permit or licence.
2. The facts, in brief, are that on 02.01.2000 a Police party headed by Ravinder Pal Singh, Sub Inspector, along with other police officials, was going for patrol duty, from the side of village Sidhwan Bet towards village Khurshaidpur, and at about 4.30 PM, when the Police party reached the culvert of the drain, within the area of village Sidhwan Bet, the accused was seen coming from the opposite side, on a scooter. A gunny bag had been placed, on the pillion of the scooter. He was stopped, on suspicion, by the Investigating Officer. The search of the gunny bag, was conducted in the presence of Ashok Puri, DSP, who was called to the spot, by sending a message, as a result whereof, it was found containing 37 Kgs 500 grams poppy husk. Two samples of 250 grams each poppy husk, were taken out. The samples and 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 Station, on Crl. Appeal No. 608-SB of 2001 3 the basis whereof, the FIR Ex.PD/1 was registered. The accused was arrested. The site plan Ex.PE, was prepared. The statements of the witnesses were recorded. 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 Ravinder Pal Singh, S.I., (PW-1), the Investigating Officer, Ashok Puri, DSP, (PW-2), a witness to the recovery, Baljit Singh, HC, ( PW-3 ), a formal witness, who tendered his affidavit Ex.PH, Dalip Singh, ASI, ( PW-4 ), who was acting as SHO ( officiating), was present in the Police Station, and recorded the FIR, and Balbir Singh, SI, ( PW-5 ), a witness to the recovery. Thereafter, the Additional 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, however, did not lead any evidence, in his defence.
Crl. Appeal No. 608-SB of 2001 4
6. After hearing the Additional 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 no independent witness, was joined by the Investigating Officer, despite availability. He further submitted that, on account of non-joining of an independent witness, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ravinder Pal Singh, Sub Inspector ( PW-1 ), during the course of cross-examination, admitted that the place of recovery, is a thoroughfare. He further stated that the Police party had seen the accused, from a distance of 40/50 yards. He further stated that before recording the statement of the accused, they called respectables from village Khurshedpur and V. Sidhawan. He further stated that 5/6 Crl. Appeal No. 608-SB of 2001 5 persons were asked near the place of recovery, to join the investigation, but none agreed. He further stated that he could not tell their names and addresses. He further stated that he neither made any mention of this fact, in the ruqa, nor in the documents, prepared at the spot, nor in the case diary. He further stated that no action was taken against those persons, who refused to join the investigation. Had any effort been made, to join an independent witness, and had he refused to join the alleged search and seizure, the Investigating Officer would have certainly mentioned this fact, either in the case diary, or in documents, prepared at the spot. He, however, did not do so. It means that no effort, whatsoever, was made by him, to join an independent witness, at the time of search and seizure or even thereafter. Since minimum stringent punishment is provided for the offences, punishable under the Act, and according to the provisions of Section 51 of the Act, the provisions of the Code of Criminal Procedure, relating to search, seizure and arrest shall apply to the extent the same are not inconsistent with the provisions of the Act, it was imperative, on the part of the Investigating Officer, to join an independent witness, at the time of the alleged search, and seizure, or at least to make a genuine, sincere and real effort, to join such a witness. The search and seizure, before Crl. Appeal No. 608-SB of 2001 6 an independent witness, would have imparted much more authenticity and creditworthiness, to the proceedings, so conducted. It would have also verily strengthen the prosecution case. The said safeguard was also intended to avoid criticism of arbitrary and high-handed action, against the authorized Officer. In other words, the Legislature, in its wisdom, considered it necessary to provide such a statutory safeguard, to lend credibility to the procedure, relating to search and seizure, keeping in view the severe punishment, prescribed under the Act. That being so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute, and failure to do so, must be viewed with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of statutory safeguards, committed by the authorized officer, during search and seizure operation, and may also undermine respect of law. That cannot be permitted. In the instant case, the alleged recovery being minor, now falling within the ambit of non-commercial quantity, and chances of plantation of the same, against the accused, could not be ruled out, it became the bounden duty of the Investigating Officer, to observe all the safeguards, provided under the Act, at the time of search and seizure. It Crl. Appeal No. 608-SB of 2001 7 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. Bhupinder Singh 2001 (01) RCR (Crl.) 356, a Division Bench of this Court, held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the recovery was effected from a busy locality. In State of Punjab Vs. Ram Chand 2001 (1) RCR (Crl.) 817, a Division Bench of this Court, held that it was imperative to join an independent witness, to vouchsafe the fair investigation. On account of non-joining of an independent witness, it was held that the accused was entitled to be given the benefit of doubt. The principle of law, laid Crl. Appeal No. 608-SB of 2001 8 down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution, became highly doubtful. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned.
10. It was next submitted by the Counsel for the appellant that the link evidence, in this case, was incomplete, in as-much-as sample impression of the seals was not deposited in the office of the Chemical Examiner. He further submitted that, on account of this reason, the Examiner was deprived of comparing the seals, on the sample parcels with the specimen seal. He further submitted that, the possibility of tampering with the sample parcels, until the same reached the Laboratory, therefore, could not be ruled out. The submission of the Counsel for the appellant, appears to be correct. Jagir Singh, Constable, tendered his affidavit Ex.PK. This Constable allegedly took the sample parcels to the office of the Chemical Examiner. He did not mention even a single word, in his affidavit, that he was handed over the sample impression of the seals and he deposited the same, along with the sample parcels, in the office of the Chemical Crl. Appeal No. 608-SB of 2001 9 Examiner. In this view of the matter, there was no material, with the office of the Chemical Examiner, to compare the seals on the sample parcels, with the specimen seals, so as to ascertain, as to whether, the same tallied with the seals allegedly affixed on the same, at the time of the alleged recovery. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. Non-strict proof, by the prosecution, that the sample was not tampered with, until it was deposited in the office of the Chemical Examiner, must prove fatal to the case of the prosecution. In these circumstances, the possibility of tampering with the sample parcel could not be ruled out. In State of Rajasthan v. Gurmail Singh 2005(2) RCR ( Criminal )58, ( Supreme Court ) , the sample seal was not sent to the Laboratory, at the time of sending the sample parcel. The Apex Court, held that the case of the prosecution was doubtful, on account of this reason. In this view of the matter, the case of the prosecution also became doubtful. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned.
11. It was next submitted by the Counsel for the appellant that the statements of Baljit Singh, HC, PW3, with whom the case property and the sample parcel, were Crl. Appeal No. 608-SB of 2001 10 allegedly deposited, and Balbir Singh, SI, PW-5, in whose presence the alleged recovery was effected, were not recorded, under Section 161 Cr.P.C., by the Investigating Officer.He further submitted that under these circumstances, the case of the prosecution became doubtful. In Padam Singh Vs. State of Haryana 1997 (4) RCR (Criminal) 172 (Division Bench) (P&H), the statement of the DSP, who allegedly reached the spot, at the time of search and seizure, under Section 161 Cr.P.C, was not recorded. The Division Bench, in the aforesaid authority, under these circumstances, held that non-recording of the statement of such an important witness, was a serious irregularity, which considerably prejudiced the accused and may make his testimony tainted. Ultimately, on this ground, and, on other grounds, the conviction was set aside. On account of non-recording of the statements of Baljit Singh, HC, and Balbir Singh, Sub Inspector, material witnesses, under Section 161 Cr.P.C., the accused was deprived of confronting them, with their previous statements, so as to shatter their veracity. Thus, it was a serious irregularity, committed by the Investigating Officer. This caused a serious prejudice, to the accused, in his defence, and made the statements of the material witnesses, referred to above, tainted. The principle of law, laid down, in Crl. Appeal No. 608-SB of 2001 11 the aforesaid authority, is, thus, fully applicable to the facts of the present case. Non-recording of the statements of Baljit Singh, HC, and Balbir Singh, Sub Inspector, must prove fatal, to the case of the prosecution. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, it fell into an error in awarding conviction.
12. It was next submitted by the Counsel for the appellant, that there are so many discrepancies and contradictions, in the statements of the official witnesses,which remained unexplained, as a result whereof, the case of the prosecution, became doubtful. Ashok Puri, the then DSP, Jagraon, ( PW-2 ), during the course of cross- examination stated that about 45 minutes were spent in drawing the samples weighing and sealing the poppy husk, whereas, Ravinder Pal Singh, SI/SHO ( PW-1 ), during the course of cross-examination, stated that this process took about 1 -1/2 hours, and Balbir Singh, SI ( PW-5 ), during the course of cross-examination, stated that it took about 20 minutes. Ravinder Pal Singh, SI/SHO ( PW-1 ), during the course of cross-examination, stated that the writing work, which was in the hand of SI Balbir Singh, took about 3 to 4 hours, whereas Ashok Kumar, DSP, ( PW-2 ), during the course of cross-examination, stated that some of the writing Crl. Appeal No. 608-SB of 2001 12 work was done by Balbir Singh, Sub Inspector, but he did not remember as to who did the other writing work. Ravinder Pal Singh, SI/SHO ( PW-1 ), during the course of cross- examination, stated that the samples were also weighed at the floor scale. He further stated that, in the ruqa, it was mentioned that two samples of the poppy husk were taken and the remaining poppy husk was weighted after arranging the floor scale. He further stated that the weights were of the denomination of 250 grams, 200 grams, 50 grams, and 2/3 of 10 Kgs each, whereas Balbir Singh, SI, ( PW-5 ), during the course of cross-examination, stated that the weights of 200 grams, 500 grams, 20 KG, 10 KG and 5 KG were used. Ravinder Pal Singh, SI/SHO ( PW-1 ), during the course of cross-examination,stated that 5/6 persons were asked near the place of recovery, to join the investigation, but none agreed, whereas, Balbir Singh, SI, ( PW-5 ) , during the course of cross-examination, stated that none passed by the side, during the recovery proceedings. Ravinder Pal Singh, SI/SHO ( PW-1 ), during the course of cross-examination, stated that he had asked Satbir Singh, Constable, to bring an independent witness, whereas, Balbir Singh, SI, ( PW-5 ) , during the course of cross-examination, denied this factum. Ravinder Pal Singh, SI/SHO ( PW-1 ), during the course of cross-
Crl. Appeal No. 608-SB of 2001 13 examination, stated that floor scale was brought by Satbir Singh, Constable, from Village Sidhwan Bet, before the arrival of the DSP, whereas, Balbir Singh, SI, ( PW-5 ), during the course of cross-examination, stated that the DSP reached the spot at 5 PM, the said constable had brought the floor scale, at about 5.20 PM, and had gone at 5.10 PM i.e. after the arrival of the DSP at the spot. Ravinder Pal Singh, SI/SHO ( PW-1 ), during the course of cross-examination, stated that the Constable, who was sent with ruqa, went on a scooter. He further stated that the DSP was still present, at the spot, at about 8.00 PM. He further stated that the Constable, who was sent with ruqa, met the Police party on the way, when it was returning to the Police station, whereas Ashok Puri, the then DSP, ( PW-2 ), during the course of cross- examination, stated that the Constable with FIR No. had not returned, in his presence. Balbir Singh, DSP, ( PW-5 ), during the course of cross-examination, stated that the said constable returned to the spot, in the absence of the DSP. Ravinder Pal Singh, SI, ( PW-1 ), during the course of examination-in-chief, stated that the remaining poppy husk was weighed, which came to be 37 Kgs, whereas Ashok Puri, DSP, ( PW-2 ), during the course of examination-in-chief, stated that after weighing the remaining contraband, the same Crl. Appeal No. 608-SB of 2001 14 was put in the same bag. He also stated that two samples of 250 grams each had already been taken out, whereas Dalip Kumar, ASI, ( PW-4 ) stated that the Additional SHO, verified the investigation and the case property. He further stated that the exact weight of the bulk of poppy husk was 36- 1/2 Kgs. These discrepancies, if taken individually, may not be significant. When these discrepancies are considered collectively, then it can be said that either one of the prosecution witnesses, was not present, at the time of the alleged search and seizure, or no recovery was effected, in the manner, deposed to by the prosecution witnesses. These unexplained discrepancies and contradictions, assume added importance, especially, in view of the fact, that the case of the prosecution is not corroborated through an independent source. The aforesaid discrepancies, cast a shadow of doubt, on the prosecution case.
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 Crl. Appeal No. 608-SB of 2001 15 lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 15 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 19.04.2001, 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.
November 14, 2008 (SHAM SUNDER) dinesh JUDGE