Punjab-Haryana High Court
Dogar @ Hans Raj vs State Of Haryana on 5 August, 2010
Author: Jora Singh
Bench: Jora Singh
CRA-S-167-SB of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-167-SB of 2002
Date of Decision 5.8.2010
Dogar @ Hans Raj
........ Appellant
Versus
State of Haryana
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
Present: Mr. Manvinder Singh, Advocate for
Mr. G.S. Sidhu, Advocate for the appellant.
Mr. Amandeep Singh, AAG, Haryana.
JORA SINGH, J.
Dogar @ Hans Raj, preferred this appeal to impugned the judgment of conviction and order of sentence dated 4.1.2001, passed by the Additional Sessions Judge, Sirsa, arising out of FIR No. 236 dated 7.6.1998, registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as "the Act") at Police Station Kalanwali. By the said judgment the appellant was convicted and sentenced to undergo Rigorous Imprisonment for a period of nine months and to pay a fine of Rs.2000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of three months.
Prosecution story, in brief, is that on 7.6.1998, the police party headed by ASI Bharat Singh, was holding Nakabandi on the bridge of canal in the area of village Aseer. Then sighted the accused CRA-S-167-SB of 2002 -2- on the bridge while carrying a bag on his head. On seeing the police party the accused tried to retreat. On suspicion accused was apprehended. The Investigating Officer, suspected contraband material in the plastic bag. On enquiry the accused disclosed his name as Dogar @ Hans Raj. Notice under Section 50 of the Act, was served upon the accused. Offer was given to the accused as to whether he wants to be searched before any Magistrate or any Gazetted Officer. The accused had reposed faith in the police party and agreed to be searched by the Investigating Officer. On search of the bag the same was found to be containing poppy husk. Two samples each weighing 250 gms were separated and the remaining poppy husk on weighment was found to be 14.5 Kgs. Two samples and the remaining poppy husk in the same plastic bag were separately sealed by the Investigating Officer with the seal bearing impression "KC". Sample seal impressions were also prepared separately and the seal after its use was handed over to Head Constable Krishan Chander. Ruqa was sent to the police station on the basis of which formal FIR was registered. The samples and the case property were taken into possession vide recovery memo attested by the witnesses. Rough site plan was also prepared. Statements of witnesses were also recorded. On return to the Police Station the case property alongwith the accused was produced before SI/SHO Balwan Singh. After verifying the facts SI/SHO Balwan Singh had affixed his own seal on the sealed parcels as well on the sample seals bearing seal impression "BS". The case property was deposited with the incharge of the Malkhana. One sample parcel was sent to the office of Chemical Examiner, Forensic Science Laboratory, Madhuban and per the report of the Chemical Examiner, Forensic Science CRA-S-167-SB of 2002 -3- Laboratory, Madhuban, contents of the sample parcel were found to be poppy husk. After completion of investigation challan under Section 173 Cr.P.C. was presented in the Court.
Accused was charge-sheeted under Section 15 of the Act, to which he pleaded not guilty and claimed trial.
Prosecution examined PW-1 Constable Subhash Chander, who had tendered his affidavit Ex.PA. PW-2 ASI Bharat Singh was the Investigating Officer and stated that while holding Nakabandi on the bridge of the canal in the area of village Aseer, had effected recovery of 15 Kgs of poppy husk. PW-3 Head Constable Krishan Chander, is one of the recovery witness. He had supported the version of the Investigating Officer. PW-4 Head Constable Kanwar Singh, had tendered his affidavit Ex.PK. PW-5 SI Balwan Singh, was the SHO on the day of recovery. After recovery the case property alongwith the accused was produced before him and he had affixed his own seal on the sealed parcels bearing seal impression "BS".
After the close of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He denied all the allegations of the prosecution and pleaded to be innocent.
After hearing learned Additional Public Prosecutor for the State, the learned defence counsel and from the perusal of the evidence available on the file, the appellant was convicted and sentenced by the trial Court vide order as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and carefully gone through the evidence available on the file.
Learned counsel for the appellant argued that the police CRA-S-167-SB of 2002 -4- party was holding a Nakabandi on the bridge of canal in the area of village Aseer, when apprehended the appellant. Two samples each weighing 250 grams were separated. Samples and the remaining poppy husk were made into separate parcels. All the three parcels were sealed separately by the Investigating Officer with seal bearing impression "KC" but the seal was not of the Investigating Officer and the seal was of Head Constable Krishan Chander. After use of seal the same was handed over to Head Constable Krishan Chander. Head Constable Krishan Chander and the Investigating Officer ASI Bharat Singh, remained posted in the same Police Station. The Investigating Officer and HC Krishan Chander did not state a word when appeared in the Court that sample seal impressions were deposited with the incharge of the Malkhana. SI Balwan Singh, while appearing as PW-5 stated that after checking the case property, on all the parcels he had affixed his own seal bearing impression "BS" but he has not stated a word whether he had deposited the case property with the incharge of the malkhana or after sealing the case property, the same was returned to the Investigating Officer for depositing the same with the incharge of the Malkhana. The case property was not produced in the Court. The SHO failed to state a word that the seal impression of his seal used was also prepared separately and was deposited with the incharge of the Malkhana. Ex.PA is the affidavit of Constable Subhash Chander. The affidavit is silent regarding handing of sample seal impressions by the Investigating Officer or by the SHO. Ex.PK is the affidavit of MHC Kanwar Singh but the same is also silent regarding deposit of seal impressions. Seal impressions were not handed over to Constable Subhash Chander to deposit the same in the office of Forensic Science CRA-S-167-SB of 2002 -5- Laboratory, Madhuban. Recovery was effected on 7.6.1998. There is a delay of more than one month in depositing the sample in the office of the Forensic Science Laboratory, Madhuban. Possibility of tampering with the case property cannot be ruled out.
Learned State counsel argued that recovery was effected on 7.6.1998. No independent witness was present. Sealed parcels were sealed with the seals bearing impressions "KC" and "BC" due to mistake. MHC Kanwar Singh and Constable Subhash Chander, failed to mention in their affidavits that sample seal impressions were also deposited by the Investigating Officer and were handed over to Constable Subhash Chander for depositing the same alongwith the sample parcels in the office of the Forensic Science Laboratory, Madhuban. Evidence on file was rightly scrutinized. There was no reason to implicate the appellant when the police party had no enmity with the appellant.
According to the prosecution story, police party headed by ASI Bharat Singh was holding Nakabandi on the bridge of canal in the area of village Aseer. When the appellant was apprehended and15 Kgs of poppy husk was recovered. Two samples each weighing 250 grams were separated. The remaining poppy husk was re-transferred into the same plastic bag. All these parcels were sealed with the seal bearing impression "KC". The Investigating Officer while appearing in the Court stated that he did not have his own seal on the day of recovery, due to this reason seal of Head Constable Krishan Chander was affixed. He further stated that seal impressions were also prepared and seal after its use was handed over to HC Krishan Chander-PW 3. After recovery, the case property was produced before the SI/SHO Balwan Singh, who CRA-S-167-SB of 2002 -6- had affixed his own seal on the sealed parcels bearing impression "BS". But the SHO did not state a word that seal impression of his seal used was prepared separately. SHO did not state a word that he had deposited the case property with the incharge of the Malkahana with seal impressions or the case property was handed over to the Investigating Officer for deposit with the incharge of the Malkhana. The Investigating Officer and SHO Balwan Singh while appearing in the Court did not state a word that seal impressions were also deposited alongwith the case property with the incharge of the Malkhana.
Ex. PK is the affidavit of MHC Kanwar Singh. According to the affidavit the case property was deposited with him by Bharat Singh ASI on 7.6.1998 and on 9.7.1998. One sample parcel was handed over to Constable Subhash Chander for depositing the same in the office of Forensic Science Laboratory, Madhuban. In the affidavit Ex.PK there is not a word that seal impressions were also deposited with him either by the SHO or by the Investigating Officer.
Ex.PA is the affidavit of Constable Subhash Chander and according to the affidavit sample parcel was handed over to him on 9.7.1998, by MHC Kanwar Singh for depositing the same in the office of Forensic Science Laboratory, Madhuban. Sample parcel was deposited in the laboratory. Receipt of the same was handed over to MHC Kanwar Singh. In the affidavit of Constable Subhash Chander there is not a word that seal impressions were also handed over to him alongwith the sealed sample parcel for deposit in the laboratory. Ex.PJ is the report of the laboratory. The report is to the effect that seals on the sample parcel were found tallying with the seal impressions. When the seal impressions were not prepared by the SHO or the Investigating CRA-S-167-SB of 2002 -7- Officer, then no question to deposit the seal impression with the incharge of the Malkhana. When MHC had not handed over seal impressions to Constable Subhash Chander alongwith sample parcel then no question to deposit the seal impressions in the office of chemical examiner.
Recovery was effected on 7.6.1998. Seal used was of HC Krishan Chander PW-3. After sealing the case property, seal was handed over to HC Krishan Chander by the Investigating Officer. HC Krishan Chander and Investigating Officer, remained posted in the same police station till the sample parcels were sent to the Forensic Science Laboratory. The case property was not produced before the Illaqa Magistrate. When the case property was not produced before the trial Court and at the time of evidence seals were not legible and found broken then evidence is doubtful. Ex.PD is the recovery memo and as per recovery memo the case property was sealed with the seal bearing impression "BK", but after cutting the case property was shown to be sealed with seal bearing impression "KC". The Investigating Officer when appeared as PW-2 then admitted that it is correct that the seal impression "KC" in the recovery memo has been corrected from impression "BC" to "KC".
In JT 2005 (2) SC 574 "State of Rajasthan Vs. Gurmail Singh" seized articles are said to have been kept in the malkhana on 20.5.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on 5.6.1995. No sample of the seal was sent alongwith the sample to Excise Laboratory Jodhpur. No evidence to prove satisfactorily that the seals found were CRA-S-167-SB of 2002 -8- infact the same seals as were put on the sample bottles immediately after the seizure of the contraband. Accused acquitted.
In 2008(1) RCR (Criminal) 266 "State of Punjab Vs. Surjit Singh" recovery was of 4 Kgs. of opium. There was a delay of two weeks in depositing the sample parcel with the laboratory. The prosecution story was held doubtful. Accused was acquitted.
In the present case also recovery was effected on 7.6.1998. Seal impressions of the seal used was not prepared. Seal impressions were not deposited with the incharge of the malkhana or with the office of Forensic Science Laboratory, Madhuban. Seal used was of HC Krishan Chander and after its use was handed over to HC Krishan Chander who remained posted in the same police station with the Investigating Officer till the sample parcel was sent to Forensic Science Laboratory, Madhuban. The case property was not produced in the Court. So possibility of tampering with the case property cannot be ruled out.
For the reasons recorded above, I am of the opinion that the impugned judgment of conviction and order of sentence suffers from infirmity and illegality and the same is ordered to be set aside. The appellant is acquitted of the charge levelled against him.
Appeal accepted.
August 5, 2010 ( JORA SINGH ) rishu JUDGE