Punjab-Haryana High Court
Satpal Singh vs State Of Haryana on 30 May, 2008
Equivalent citations: (2008)3PLR272, 2008 CRI. L. J. (NOC) 1238 (P. & H.), 2009 (1) AJHAR (NOC) 86 (P. & H.)
JUDGMENT Sham Sunder, J.
1. This appeal is directed against the judgment of conviction dated 11.10.1995 and the order of sentence dated 13.10.1995 rendered by the Court of Additional Sessions Judge, Hisar, vide which it convicted the accused/appellant for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereunder called as 'the Act' only) and sentenced him to undergo rigorous imprisonment for a period often years, and to pay a fine of Rs. 1 lac, and in default of payment of the same, to undergo rigorous imprisonment for a further period of two years, for having been found in possession of 12 Kgs. of poppy husk, without any permit or licence.
2. The facts, in brief, are that on 12.10.1993 Ram Niwas, ASI, Police Station, Adampur along with other police officials was present at Village Daroli in connection with patrol duty and crime checking. A secret information was received by him that the accused was dealing in poppy husk which was reduced into writing and sent to the Police Station, on the basis of which FIR was registered. Thereafter a picket was held on the unmetalled path. After a short while, the accused with a plastic bag, on his head, was seen coming from the side of village Biran. On seeing the police party, he turned back and on suspicion he was apprehended. On search of the bag, 12 Kgs, of poppy husk was recover d, in the presence of Tehsildar, who was called to spot by sending a message. A sample of 200 grams of poppy husk was taken out from the bag. The remaining poppy husk was kept in the same bag. The samples and the bag were converted into parcels, duly sealed with the seal, bearing impression 'MRG' and taken into possession vide a separate recovery memo, attested by the witnesses. Rough site plan of the place of recovery 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 IS of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial.
4. The prosecution, in support of its case, examined timed Singh, PW-1, M.R. Gupta, PW-2, Ronki Ram, PW-3, Vijay Singh, PW-4, Dharampal, PW-5, and Ram Niwas, ASI, PW-6. Thereafter, the Public Prosecutor for the State closed the prosecution evidence.
5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He however, led no evidence in his defence.
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 accused/appellant.
8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. Learned Counsel for the appellant, at the very outset contended that though a secret information was received against the accused, yet no attempt was made to join an independent witness. The submission of the Counsel for the appellant appears to be correct. As per the prosecution story, a secret information was received, that the accused was dealing in poppy husk and could be apprehended if a picket was held. There was sufficient time with the Investigating Officer to join an independent witness but he did not do so. Had any effort been made, to join an independent witness, the matter would have been considered, in the light thereof. Even no efforts was made to join an independent witness. 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 an independent witness, would have imparted much more authenticity and credit worthiness, 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, 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, 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-foldly, if the same is found to be credit worth. However, when the evidence of the official witness, is found to be not cogent convening, 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 witness does not inspire confidence, in the mind of the Court. In this view of the matter, non-corroboration of the evidence of the official witness, through an independent source, certainly makes the case of the prosecution suspect, in State of Punjab v. Bhupinder Singh 2001(1) R.C.R. (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 v. Ram Chand 2001(1) R.C.R. (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 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 is evident, that the alleged recovery was effected, in this case, on 12.10. 1993, where, the sample parcel was sent to the office of Forensic Science Laboratory on 21.10.1993 and there was therefore a delay of 10 days, in sending the sample to the office of the Forensic Science Laboratory which was not explained, and, as such, the possibility of tampering with the same, could not be ruled out. It is, no doubt, true that if the other evidence, produced by the prosecution, to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the sample to the Office of the Forensic Science Laboratory pales into insignificance. If, on the other hand, the other evidence produced, in this regard, is found to be un-reliable, then certainly the delay assumes importance. In the instant case, the other evidence produced by the prosecution, to prove the completion of link evidence, besides being deficient, is neither reliable, nor creditworthy. In these circumstances, the un-explained delay, referred to above, in sending the sample to the laboratory, certainly proved fatal to the case of the prosecution. In State of Rajasthan v. Gurmail Singh 2005(2) R.C.R. (Crls.) 58 (S.C.), the contraband was kept in the Malkhana. 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 Gian Singh v. State of Punjab 2006(2) R.C.R. (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. On account of this infirmity, the case of prosecution became doubtful.
11. It was next contended by the Counsel for the appellant that there was a violation of the provisions of Section 55 of the Act, as the case property and the sample, were not produced, before the Magistrate. The submission of the Counsel for the appellant, in this regard, appears to be correct. Section 55 of the Act lays down that an Officer Incharge of 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, 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 sample 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 v. State of Haryana 2001(1) R.C.R. (Crl.) 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 violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, the Investigating Officer intentionally and deliberately breached the provisions of Section 55. He could not say that since the provisions of Section 55 are 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 authorised 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, miscarriage of justice occasioned.
12. Ram Niwas, PW-6, did not state even a single word that he recorded the statement under Section 161 Cr.P.C. of M.R. Gupta, Tehsildar, PW-2 and Ronki Ram, SHO, PW-3. Ronki Rani, PW-3 did not state, in his statement that his statement was recorded by the Investigating Officer. M.R. Gupta, PW-2, also did not state that his statement was recorded by Ram Niwas, ASI, PW-1. The statements under Section 161 Cr.P.C. of these witnesses are not on record. It means that the statements under Section 161 Cr.P.C. of these material witnesses were not recorded by the Investigating Officer. This clearly goes to prove that M.R. Gupta, PW-2 was not present at the time of the alleged search and that the case property was not produced before Ronki Ram, SHO. Non recording of their statements casts a doubt, on the prosecution story. Had any explanation been furnished by the Investigating Officer, as to what prevented him, from recording the statements of these witnesses, under Section 161 Cr.P.C., the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. In Padam Singh v. State of Haryana 1997(4) R.C.R. (Crl) 172 the statement of the DSP under Section 161 Cr.P.C., was not recorded, by the Investigating Officer. In these circumstances, a Division Bench of this Court, in the aforesaid case, held that non-recording of the statement of such an important witness was a serious aspect, and made his testimony dented. Keeping this fact, in view, the case of the prosecution was held to be doubtful, and the conviction was set aside. In the instant case, non-recording of the statements of the witnesses, referred to above, by the Investigating Officer, as admitted by him, in his cross-examination, clearly cast a doubt, on the prosecution case. The trial Court did not take into consideration this aspect of the matter as a result whereof, miscarriage of justice occasioned.
No other point was urged, by the Counsel for the parties.
13. In view of the above discussion, it is held that the judgment of the trial Court, is not based on the correct appreciation of evidence, and law, on the point. The trial Court failed to take into consideration the aforesaid infirmities and lacunas, in the prosecution case, as a result whereof, it fell into an error, in recording conviction and awarding sentence. The judgment of the trial Court, warrants interference, and is liable to be set aside.
14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 11.10.1995 and the order of sentence dated 13.10.1995, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of the bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required, in any other case.