Punjab-Haryana High Court
Labh Singh vs State Of Haryana on 27 July, 2010
Crl. Appeal No.521-SB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.521-SB of 2002
Date of Decision:- 27.07.2010
Labh Singh ....Appellant
vs.
State of Haryana ....Respondent(s)
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CORAM:- HON'BLE MR.JUSTICE ARVIND KUMAR
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Present:- Mr.S.S.Dinarpur, Advocate,
for the appellant.
Mr.Rajeev Malhotra, Addl.A.G., Haryana
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ARVIND KUMAR, J.
This appeal is directed against the judgment and order dated 22/26.3.2002 passed by the Special Judge, Panchkula, whereby in case FIR No.65 dated 20.6.2001 at Police Station Kalka under Section 18 of the N.D.P.S. Act, the accused-appellant has been convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo R.I. For three months.
In brief the facts of the case are that on 20.6.2001, a police party headed by SI Onkar Singh, SHO, Police Station Kalka, was present at the bus stand when it received secret information that accused-appellant Labh Singh who was in the habit of selling and consuming opium, was present at the bus stand. Accordingly, a raiding party was formed and it reached the disclosed place and interrogated the accused-appellant Labh Singh. Then the said SHO served upon him a notice under Section 50 of the NDPS Act. The accused-appellant opted to be searched before a gazetted officer. Accordingly, a V.T. message was sent to D.S.P. Kalka who reached at the spot and asked the Investigating Officer to carry out the Crl. Appeal No.521-SB of 2002 2 search of the accused. Upon search of the accused-appellant, 25 grams of opium was recovered. The samples were drawn and converted into parcels and thereafter, the present case came to be registered against the accused and he was arrested. On completion of investigation and certain formalities, the accused was challaned under Section 18 of the Act ibid whereafter charge under the said Section was framed by the trial Court to which he pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined as many as six witnesses and after tendering into evidence the report Exhibit PG of the Forensic Science Laboratory, closed its evidence.
Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded by putting him incriminating evidence qua him to which he pleaded innocence and false implication by the police which came to his workshop and had an altercation with him. He, however, did not produce any evidence in defence.
The learned Special Judge, Panchkula, upon appreciation of evidence adduced on record, vide the above stated impugned judgment and order held the accused appellant guilty and convicted and sentenced him in the manner indicated above. Hence, the present appeal.
I have heard counsel for the parties.
The provisions of Section 100 Cr.P.C. would be applicable to arrest and search in the case relating to NDPS Act. In a large number of cases, this Court as also various High Courts have emphasized the need of conducting search in the presence of an independent witness. The law requires that the search should normally be conducted in the presence of independent witness(es) to inspire confidence in the mind of the Court. The search and seizure before 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. However, in the instant case, it is evident from the statement of PW-5 SI Onkar Singh that Crl. Appeal No.521-SB of 2002 3 the search and seizure had been effected at the gate of Subzi Mandi, Kalka, which is a busy place. No independent witness had been associated. The only explanation that has been submitted by SI Onkar Singh is that he tried his best to join the witnesses in the investigation but they showed their inability. This explanation is not at all convincing for the reason that no effort was made by the Investigating Officer to even know the names of the persons who had refused to join as witnesses. Legally he could take action against them. By giving the prosecution some latitude in this regard, the Investigating Officer could record their names at least so as to convince this Court about sanctity of the search. However, in absence of it, it can comfortably be inferred that in fact, no attempt was made by the Investigating Officer to join the independent witnesses for the reasons best known to him. In State of Punjab v. Bhupinder Singh, 2001(1) RCR (Criminal) 356, this Court held the case of the prosecution to be doubtful on account of non-joining of an independent witness, though recovery was effected from a busy locality. In State of Punjab v. Ram Chand 2001(1) RCR(Criminal) 817, it was held that it was imperative to join an independent witness, to vouchsafe the fair investigation and on account of non-joining of independent witness, the accused was entitled to be given the benefit of doubt. Bhupinder Singh's and Ram Chand's cases(supra) have been duly followed in Dharambir v. The State of Haryana 2008(4) RCR (Criminal) 40. In Hawa Singh v. State of Haryana 2005(4) RCR (Criminal) 292, recovery of contraband was effected near the bus stand. As all the persons refused to join and it was not shown as to who were those persons who had refused to be witnesses, it was held that the testimony of the official witnesses cannot be relied upon and the conviction was set aside. Hawa Singh's case(supra) has been duly followed in Amarjit Singh v. State of Haryana 2008(3) RCR(Criminal) 502.
There is yet another staggering circumstance which weakens the case of the prosecution. It is well settled that till the case property has not been dispatched to the office of the Forensic Science Laboratory, the seal should not be available to the prosecuting Agency and in absence of such safeguard, the possibility of the seal being tampered with, substance being changed and the containers being re-sealed, cannot be ruled out. In Fateh Singh v. State of Haryana, 2006(2) RCR(Criminal) 762, this Crl. Appeal No.521-SB of 2002 4 Court has observed that where the seals had remained throughout with the police official, who was working with the Investigating Officer, the possibility of the seal being tampered with cannot be ruled out. Similarly, in the instant case also, the seal throughout had remained with the Investigating Agency and as such, the case of the prosecution comes under clouds. More the worse, CFSL form was neither prepared on the spot nor deposited in the Malkhana. In Gurcharan Singh v. State of Punjab 2005 (4) RCR(Criminal) 681, the seal affixed on seized opium was given to the Head Constable and not to the public witness. Since the CFSL form was not prepared at the spot, it was held therein that preparation of CFSL form at the spot is an important safeguard against an allegation of tampering with the sample. In Bhola Singh v. State of Punjab 2005(2) RCR(Criminal) 520, it was held that the CFSL form should be prepared at the spot and deposited in the malkhana. Where the seal remained with the police after use and the CFSL form was neither prepared on the spot nor deposited in the malkhana, such circumstance would be fatal to the prosecution case. Filling up of CFSL form at the spot is a very valuable safeguard to ensure that the seal sample is not tampered with till its analysis by the Forensic Science Laboratory.
Thus, if the matter is viewed in the background of the above observations, the possibility of the seal being tampered with, substance being changed and the containers being resealed cannot be ruled out. Gurcharan Singh's and Bhola Singh's cases(supra) have been duly followed in Lachhman Dass v. State of Punjab 2010(1) RCR(Criminal)
666. In view of the discussion made in the foregoing paras, the present appeal is allowed, the conviction and sentence of the present appellant is set aside and he stands acquitted of the charge. His bail bonds stand discharged.
July 27, 2010 ( ARVIND KUMAR ) JS JUDGE