Punjab-Haryana High Court
Shanker Dass Son Of Gurdial Singh Son Of ... vs The State Of Punjab on 19 September, 2008
Crl.Appeal No.1061-SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.1061-SB of 2000
Date of Decision : September 19,2008
Shanker Dass son of Gurdial Singh son of Sunder Singh, resident of Balad
Khurd, Police StatIon Bhawanigarh,District Sangrur.
..................appellant.
Versus
The State of Punjab ....Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.Dinesh Goyal,Advocate,for
the appellant.
Mr. C.S.Brar,DAG,Punjab
for the respondent.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction and the order of sentence dated 23.9.2000, rendered by the Court of Addl. Sessions Judge , Gurdaspur, vide which it convicted the accused (now appellant), for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him to undergo rigorous imprisonment for a period of ten years , and to pay a fine of Rs.1 lac , and in default of payment of the same, to undergo rigorous imprisonment for another period of two year , for having been found in possession of 825 grams charas , without any permit or licence.
2. The facts, in brief, are that during the night intervening 20/21.10.1997 at around 2 am, the police party headed by SI/SHO Yash Pal along with ASI Satish Chander and other police officials were holding a Crl.Appeal No.1061-SB of 2000 2 picket on the defence road Chowk Wala Khu, in the area of Police Station Shahpur Kandi, when the accused was seen coming from the side of Madhopur on foot, who was directed to stop. He was found carrying a bag ( Jhola) on his left shoulder. On seeing the police party, he tried to turn back, but was apprehended. On search of the bag, in the presence of DSP Inderjit Sharma, 825 grams charas was recovered therefrom. A sample of 25 grams was separated therefrom, and put into a separate container. The remaining charas was also put into a separate container. The sample, and the container, containing the remaining charas, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned.
3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 20 of the Act, was framed against him, to which they pleaded not guilty, and claimed trial.
4. The prosecution, in support of its case, examined HC Paramjit Kumar PW1, a formal witness, HC Lakhwinder singh,PW2, SI Yash Pal,PW3, Investigating Offier,ASI Satish Chander,PW4, Constable Amir Masih, PW5,Constable Vijay Kumar PW6, and DSP Inderjit Sharma,PW7. Thereafter, the Additional 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. It was stated by him that he was searched at Police Post Madhopur by the Crl.Appeal No.1061-SB of 2000 3 concerned police official and his personal amount of Rs.27,000/- was taken by the said police official. He further stated that a criminal case was got registered against him on his complaint and having this grouse the instant false case had been registered against him by the police of police station Shahpur Kandi. He further stated that he was coming along with his colleague in a car which was being driven by Paramjit Singh, who was eye witness to the whole occurrence. He further stated that he was taken into Police custody at Police Post Madhopur at about 2 pm prior to the registration of the present case. He further stated that he was not searched nor anything was recovered from him at Shahpur Kandi or Chowk Wala Khuh Madhopur as alleged. He, however, examined Bhag Singh, Account Assistant, DW1. Thereafter, the accused closedhis defence evidence.
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 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 the appellant was falsely implicated in the instant case. He further submitted that actually the appellant was search at the picket being held at Madhopur and an amount of Rs.27,000/- was recovered from his search. The police party which was holding the picket, took a sum of Rs.27,000/- as bribe and thereafter let off the accused. He further submitted that a corruption case was registered against the Incharge of that police party. He further submitted that thereafter out of grudge, the other police party at Crl.Appeal No.1061-SB of 2000 4 another picket, apprehended the accused and falsely implicated him in the instant case. The submission of the Counsel for the appellant appears to be correct. A specific stand was taken in this regard by the accused in his statement under Section 313 Cr.P.C. It is settled principle of law that the accused is not required to prove his evidence beyond a reasonable doubt. He is only required to prove the same through preponderance of evidence. In other words, he is only required to probalise his defence vis-a-vis prosecution version. SI Yash Pal PW3, the Investigating Officer admitted during the course of cross-examination that it was correct that a regular naka was held at Madhopur for checking purposes of the traffic coming from the side of Jammu & Kashmir. He further stated that during the course of cross-examination he had asked the accused as to whether he was checked at Madhopur Naka. He further stated that the accused disclosed him that the naka party at Madhopur had apprehended him and after receiving Rs.17000/- or 18000/- as bribe had let him off. This witness had voluntarily stated that a corruption case was registered against ASI Parsan Singh in this regard. He further stated that he did not know the final details of that corruption case. From the cross-examination of this witness, the defence version was proved. Since at the instance of the accused, a corruption case against Parsan Singh,ASI had been registered, certainly, the police party was having grudge against him. Had the accused been having charas in his possession at the time his search was conducted at Madhopur picket, then the same would have been recovered by that police party. Since the information by Madhopur party was sent to the other naka, on account of grudge, the accused was apprehended and a false case was registered against him. The defence version in this case was thus more probable then the prosecution version. The trial Court was,therefore, not correct in discarding the same without any rhyme or reason. Once the defence version is held to be more probable than the prosecution version, Crl.Appeal No.1061-SB of 2000 5 the accused is entitled to acquittal.
10. It was next submitted by the Counsel for the appellant that the alleged recovery was effected in this case on 21.10.1997 but the sample parcel was sent to the office of the Chemical Examiner on 27.10.1997.He further submitted that there was no explanation for delay in sending the sample and as such the possibility of tampering with the same could not be ruled out. The submission of the Counsel for the appellant appears to be correct. It is no doubt proved that the mere fact that there was no explanation regarding the delay for deposit of sample parcel in the office of the Chemical Examination in self is not sufficient to come to the conclusion that it was tampered with at any point of time. In such a situation the Court is required to go through the other evidence, produced by the prosecution to come to the conclusion as to whether the sample remained intact throughout or not. In the instant case the other evidence produced by the prosecution is not only deficient but unreliable also. It was for the prosecution to prove beyond reasonable doubt that none tampered with the sample parcel until it reached the office of the Chemical Examiner. In the instant case, the prosecution miserably failed to do so. As such the possibility of tampering with the sample parcel until it reached the office of the Chemical Examiner could not be ruled out. 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 State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 days. The Malkhana register was not produced, to prove that it was so kept in the Malkhana, till the sample was handed over to the Constable. In these circumstances, in the Crl.Appeal No.1061-SB of 2000 6 aforesaid case, the appellant was acquitted. 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. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Chemical Examiner. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 6 days, in sending the sample to the office of the Chemical Examiner, and non-strict proof, by the prosecution, that the same was not tampered with, till it was deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted.
11. No other point was urged by the Counsel for the parties.
12. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, 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 lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 20 of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside.
13. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 23.9.2000, are set aside. The appellant shall stand acquitted of the charge, framed against Crl.Appeal No.1061-SB of 2000 7 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.
September 19.2008 (SHAM SUNDER) sks JUDGE