Punjab-Haryana High Court
Megha Singh S/O Pritam Singh @ Chhotu ... vs The State Of Punjab on 8 April, 2010
Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Appeal No.2165-SB of 2003
Date of Decision : 08.04.2010
1. Megha Singh s/o Pritam Singh @ Chhotu Singh, r/o village Deon
District Bathinda.
2. Dinesh Kumar @ Darshan s/o Kanshi r/o Dhobiana Basti, Bathinda.
.... Appellants
Vs.
The State of Punjab
.... Respondent
2. Crl. Appeal No.2190-SB of 2003
Date of Decision: 08.04.2010
Surjit Singh @ Malkiat Singh s/o Mohinder Singh s/o Battu Singh, r/o
village Deon, District Bathinda.
.... Appellant
Vs.
The State of Punjab
.... Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present:- Mr.A.P.S. Deol, Sr. Advocate with
Mr.Vishal Rattan Lamba, Advocate
for the appellants
in Crl. Appeal No. 2165-SB of 2003.
Mr. Rajiv Verma, Advocate for
Mr. S.P.S. Sidhu, Advocate
for the appellant
in Crl. A. No. 2190-SB of 2003.
Mr. T.S. Salana, DAG, Punjab
for the respondent-State,
in both the criminal appeals.
Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003
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SHAM SUNDER, J.
Criminal appeal No. 2165-SB of 2003, filed by Megha Singh and Dinesh Kumar @ Darshan, and Criminal Appeal No. 2190-SB of 2003, filed by Surjit Singh, accused (appellants), are directed against the judgment of conviction dated 01.11.2003 and the order of sentence dated 03.11.2003, rendered by the Judge, Special Court,Bathinda, vide which he convicted the accused(now appellants), for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter called as 'the Act' only) and sentenced them to undergo rigorous imprisonment, for a period of ten years each, and to pay a fine of Rs.1 lac each, and in default of payment of the same, to undergo further rigorous imprisonment for a period of 1-1/2 years each, for having been found in possession of three bags, each containing 36 Kgs and 250 grams poppy husk, without any permit or licence, falling within the ambit of commercial quantity.
2. The facts, in brief, are that on 19.12.1999, Malkiat Singh, Assistant Sub Inspector, alongwith other police officials, was going in Govt. Canter No.PB-03-C-8622 for patrol duty and when the Police party reached near V. Gurusar, Mithu Singh, independent witness met it, who was Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 3 joined. When the Police party reached at a distance of ½ k.m. From V. Behman Jassa Singh, one Eicher Tractor bearing registration No. HRN-786 came from the opposite direction. The tractor-trolley was stopped and the accused was apprehended. Magha Singh alias Kaka Singh was the driver of the tractor, aforesaid. Surjit Singh alias Malkiat Singh and Darshan Singh alias Dinesh alias Dass, accused were sitting in the trolley. Thereafter, the search thereof, was conducted, in accordance with the provisions of law, in the presence of Brij Mohan Sarup, Deputy Superintendent of Police, who was called to the spot, as a result whereof, 3 bags, each containing 36 Kgs. and 250 grams poppy husk, were recovered. A sample of 250 grams of poppy husk was taken out of each of the bags. The remaining poppy husk, was kept in the same bags. The samples and the bags, containing the remaining poppy husk, were converted into separate parcels, duly sealed, and taken into possession along with the tractor-trolley vide separate recovery memo. The accused, however, could not produce any permit or licence for keeping in possession the poppy husk. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. The accused were arrested. The site plan was prepared. After the completion of investigation, the accused were challaned.
Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 4
3. On their 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 they pleaded not guilty and claimed judicial trial.
4. The prosecution, in support of its case, examined, Des Raj, Junior Assistant, DTO Office, Bathinda,( PW-1 ), Mohinder Singh, Constable, (PW-2), Brij Mohan Sarup, (PW-3), a witness to the recovery, Mukand Singh Malli, DSP, Gidderbaha, (PW-4), and Malkiat Singh, Assistant Sub Inspector, (PW-5), Investigating Officer. Mithu Singh, independent witness, was given up as won over, by the Additional Public Prosecutor for the State, vide separate statement on 28.11.2002. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence, after tendering into Ex.PX, report of the Chemical Examiner.
5. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded their false implication in the instant case.
6. The accused examined Mithu Singh, DW-1.
Thereafter, the accused closed their defence evidence. Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 5
7. 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.
8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the appellants.
9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
10. The Counsel for the appellants, at the very outset, submitted that though Mithu Singh, independent witness, was joined by the Investigating Officer, for effecting the alleged recovery from the accused, yet he was not examined. They further submitted that, as such, it could be said that the prosecution withheld the best evidence, in its possession. They further submitted that an adverse inference could be drawn, against the prosecution, that had Mithu Singh been examined, he would not have supported the case of the prosecution. The submission of the Counsel for the appellants, appears to be correct. No doubt, the Public Prosecutor for the State, vide statement, dated 28.11.2002, gave up Mithu Singh, independent witness, as won over, by the accused. However, there is no material, on record, as to Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 6 what persuaded the Additional Public Prosecutor for the State for coming to the conclusion that Mithu Singh, independent witness, had actually been won over, by the accused. It is, no doubt, true that the Additional Public Prosecutor for the State is the master of the case and it was for him to decide, as to which witness he wanted to examine and which witness, he did not want to examine. However, he is required to exercise such a discretion, in a bonafide manner. In the instant case, the Additional Public Prosecutor for the State, did not exercise such a discretion, in a bonafide manner. On the other hand, the discretion, exercised by the Additional Public Prosecutor for the State, could be said to be arbitrary and capricious. It means that a material witness, was not examined by the prosecution, intentionally and deliberately. It is, no doubt, true that the evidence of the prosecution witnesses, cannot be disbelieved and distrusted, for want of corroboration, through an independent source, if the same is found to be cogent, convincing, reliable and trustworthy. In the instant case, the other evidence, produced by the prosecution, does not inspire confidence in the mind of the Court. Under these circumstances, non-examination of Mithu Singh, independent witness, clearly caused a doubt on the prosecution story. Had Mithu Singh, independent witness, been examined, he would have certainly thrown light, on true Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 7 facts & circumstances of the case, relating to the alleged search and seizure. In Masalti Vs. State of UP, AIR 1965 SC 202, a four Judge Bench of the Apex Court, held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material evidence, available to it, which is necessary for unfolding its case, but it would be unsound to lay down, as a general rule, that every witness must be examined, even though, his evidence may not be very material, or even if, it is known that he has been won over or terrorised. In State of Punjab Vs. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution became doubtful. The submission of the Counsel for the appellant, being correct, is accepted.
11. No doubt, Mithu Singh, was examined as DW-1, by the accused. He stated that no recovery was effected in his presence and the memos did not bear his thumb impressions. Had Mithu Singh, been given up, as won over by the accused, on the basis of some cogent data or material, or on the strength of an application, moved by the Investigating Agency, the matter would have been different. In those circumstances, it would have been said, that he sided Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 8 with the accused and, thus, appeared as DW-1. It has been held above, that Mithu Singh, was given up by the Additional Public Prosecutor for the State, without any cogent reasons. In these circumstances, the evidence of Mithu Singh, DW-1, cannot be disbelieved. Had he stated that his thumb impressions were obtained on blank papers, it would have been said that he was telling a lie as he sided with the accused to save them from the clutches of law. When there was specific stand of Mithu Singh, DW-1, that the memos did not bear his thumb impressions, as no recovery was effected, in his presence, the prosecution had ample opportunity, to send his questioned thumb impressions, on the memos, prepared at the spot, for comparison with his admitted thumb impressions, affixed by him, on his statement as DW-1, recorded on 30.10.2003. The science with regard to the identification of thumb impressions, is conclusive. The prosecution did not move such an application for comparison of the questioned thumb impression of Mithu Singh, with his admitted thumb impressions on his statement dated 30.10.2003, made in the Court. The statement of Mithu Singh, DW-1, assumes significance and importance, in the facts and circumstances, narrated above and clearly proves that no recovery was effected from the accused, but they were falsely implicated, in the instant case. There was no reason on the part of Mithu Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 9 Singh, DW-1, to depose falsely. There is nothing, on the record, that Mithu Singh, DW-1, was interested in the accused or was having ill-will against the Police officials. The evidence of Mithu Singh, DW-1, completely falsifies the case of the prosecution.
12. There is another very important circumstance, in this case in as much as according to Brij Mohan Sarup, DSP, PW-3, the seal after use was handed over to Mithu Singh, independent witness. When that seal was returned by Mithu Singh, independent witness, to the Deputy Superintendent of Police and the Investigating Officer, is not known. The CFSL Form was not prepared at the spot. When there is nothing, on the record, as to when the seal was returned by Mithu Singh, independent witness, to the Investigating Officer and the DSP, how on the CFSL Form, the seal of Malkiat Singh, Assistant Sub Inspector bearing impressions 'MS' was found to be affixed on 22.12.1999, is not known. It was for the prosecution to prove beyond a reasonable doubt that none tampered with the sample parcels, until their deposit in the Laboratory. In the absence of any clarification on the aforesaid aspect of the matter, the link evidence in the instant case, certainly became in-complete. Non-examination of Mithu Singh, independent witness, on account of this reason, also cast a cloud of doubt on the Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 10 prosecution story.
13. It was next submitted by the Counsel for the appellants, that though the alleged recovery was effected on 19.12.1999, yet the sample parcels, were sent on 23.12.1999 i.e. after a period of four days, which remained unexplained, and, as such, the possibility of tampering with the same, until, the same reached the office of the Chemical Examiner, could not be ruled out. The submission of the Counsel for the appellants, in this regard, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of four days, in sending the sample parcels to the office of the Chemical Examiner. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the sample parcels, till the same reached the office of the Chemical Examiner. Since, the sample parcels were allegedly sent to the office of the Chemical Examiner, after four days, it could not be safely held that the same remained un-tampered with. This fact casts a shadow of doubt, on the case of the prosecution. 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 Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 11 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 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. 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 samples, till the same 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 cases, is fully applicable to the facts of the present case. The delay of four days, in sending the sample parcels, to the office of the Chemical Examiner, and non-strict proof, by the prosecution, that the same were not tampered with, till the same were deposited, in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 12 could not be ruled out. The submission of the Counsel for the appellants, in this regard, being correct, is accepted.
14. No doubt, Mohinder Singh, Constable, PW-1, tendered his affidavit Ex.PA, wherein it was stated by him that he handed over the sample impression of the seal alongwith sample parcels. However, when he was examined as PW-2, during the course of cross -examination, it was stated by him that besides the samples of this case, the samples of other cases were also handed over to him. He, however, made it clear that he was only handed over the sample parcels in this case, and nothing else. The cross
-examination of Mohinder Singh, Constable, PW-2, who allegedly deposited the sample impression of the seal, in the office of the Chemical Examiner, clearly showed that he was neither handed over the sample impression of the seal, nor he deposited the same in the Laboratory. If the statement of Mohinder Singh , Constable, PW-2, referred to above, is admitted as correct and there is nothing, on the record, to do otherwise, then it could not be ascertained by the Chemical Examiner whether the seals allegedly affixed on the sample parcels were the same, and tallied with the sample impression of the seal. The certificate of the Chemical Examiner to the effect that the seals on the samples tallied with the sample seal, is belied by the cross-examination of Mohinder Singh, Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 13 Constable, PW-2. In State of Rajasthan Vs. 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, it fell into an error in recording conviction.
15. No other point was urged, by the Counsel for the parties.
16. 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 15 of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside.
17. For the reasons recorded, hereinbefore, the aforesaid appeals are accepted. The judgment of conviction dated 01.11.2003, and the order of sentence dated 03.11.2003, are set aside. The appellants shall stand acquitted of the Crl. Appeal No. 2165-SB of 2003 &Crl. Appeal No.2190-SB of 2003 14 charge, framed against them. If, they are on bail, they shall stand discharged of their bail bonds. If, they are in custody, they shall be set at liberty, at once, if not required, in any other case.
18. The Chief Judicial Magistrate, shall comply with the judgment, in accordance with the provisions of law, and send the compliance report, within 2 months, from the date of receipt of a certified copy of the judgment.
08.04.2010 (SHAM SUNDER)
dinesh JUDGE