Punjab-Haryana High Court
Surinder Alias Sudama vs State Of Haryana on 17 February, 2010
Criminal Appeal No. 2116 SB of 2005(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 2116 SB of 2005(O&M)
Date of decision: 17.02.2010
Surinder alias Sudama ..............Appellant
Versus
State of Haryana ................Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present: Mr G.S.Sandhu, Advocate, for the appellant
Mr Tarunveer Vashist, Additional Advocate General Haryana
HARBANS LAL,J.
This appeal is directed against the judgment dated 18.11.2005/order of sentence dated 24.11.2005 passed by the court of learned Judge, Special Court, Karnal whereby he convicted and sentenced the accused Surinder alias Sudama to undergo rigorous imprisonment for a period of 4 years and to pay a fine of Rs.15,000/- under Section 21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the Act) and in default of payment of fine, to further undergo rigorous imprisonment for six months.
As the prosecution story goes, on 7.10.2001 Inspector Ram Phal the then Incharge C.I.A.-II alongwith other police officials happened to be present in CIA-II, Karnal. Around 1 P.M., he received secret information that accused Surinder alias Sudama alongwith his wife Satish residing in House No. 758, Sector 7 Karnal was possessing one Indica car and one Hero Honda Splendor Motor Cycle. He used to deal in smack and Criminal Appeal No. 2116 SB of 2005(O&M) 2 on that day they both had gone to U.P. on their motorcycle for fetching smack and if nakabandi is held at Merrut road, they can be apprehended. On receipt of this information, they went to T-point, Sector 6, Karnal and set up naka there. On the next day, on 8.10.2001 at about 1.30 P.M. while the nakabandi was being held continuously at T-point Sector 6, Merrut road, Karnal, Illam Singh Ex-sarpanch came there. Meanwhile, the accused Surinder came there from U.P. side holding a red colour bag in his hand. On catching sight of the police party, he made an attempt to beat a retreat, but on suspicion he was intercepted. He was told that he was suspected to be in possession of some contraband. He was apprised of his right to have his search in the presence of a Gazetted Officer or a Magistrate. He opted to have the search of his bag in the presence of a Gazetted Officer. On receipt of message, K.K.Rao, D.S.P. came at the spot. On search of the bag, 105 grams smack alongwith a scale, weights of 50 grams, 10 grams, 5 grams empty plastic pouches of small size and Rs.30,000/- yielded. One sample of 5 grams was drawn to serve as sample and converted into a parcel. The residue was also turned into a parcel. The case property including the sample parcel was sealed with seals bearing letters RF and KK and seized vide recovery memo. The seal RF after use was handed over to ASI Janak Singh whereas aforesaid D.S.P. retained his own seal with him. The accused was arrested. After completion of investigation, the charge-sheet was laid in the court for trial of the accused.
The accused was charged under Section 21 of the Act to which he did not plead guilty and claimed trial. In order to bring home guilt against the accused, prosecution examined ASI Virender Singh PW-1, Ram Mehar HC PW-2, Constable Balwinder Singh PW-3, ASI Azad Singh PW- Criminal Appeal No. 2116 SB of 2005(O&M) 3 4, ASI Janak Singh PW-5, K.K.Rao DSP(now S.P.) PW-6, Inspector Ram Phal PW-7 and closed its evidence.
When examined under Section 313 of Cr.P.C., the accused denied the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication.
After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
To begin with Mr. G.S.Sandhu, Advocate, on behalf of the appellant urged with a good deal of force that there is a inexplicate delay of as many as 15 days in sending the sample to the Forensic Science Laboratory. The seal being with ASI Janak Singh PW-5 the possibility of the contents of the sample being tampered with cannot be ruled out. It is further argued that the provisions of Section 50 of the Act have not been adhered to. This being a case of secret information, it was obligatory upon the Investigator to have informed his immediate superior officers. A glance through the statement of the accused-appellant recorded under Section 313 of Cr.P.C. would reveal that no specific question with regard to his being in conscious possession has been put to him. When all these infirmities are put together, it transpires that the prosecution edifice collapses like a horse of cards.
To tide over these submissions, Mr. Vashisth maintained that a glance through the Forensic Science Laboratory's report would reveal that Criminal Appeal No. 2116 SB of 2005(O&M) 4 the seals affixed on the sample parcels were intact and agreed with the sample seal and thus the possibility of tampering with the contents of the sample stands ruled out. These contentions merit rejection for the reasons to be recorded hereinafter:-
Head Constable Ram Mehar PW-2 with whom the case property including the sample parcel was deposited has testified in his cross-examination that " It is correct that in the relevant register, the entry pertaining to the present FIR originally contained the date 8.10.2001, which has been changed to 7.10.2001 (the digit '8' and the remaining details of the case are given in red ink while the digit '7' over-written, is in blue ink)." This witness has not furnished any explanation for converting the date 8.10.2001 into 7.10.2001. Needless to say, it is the specific case of the prosecution that the recovery was effected on 8.10.2001 at about 1.30 P.M. whereas according to the above entry in the relevant register the case property was deposited with MHC on 7.10.2001. It clearly indicates that the prosecution has put the cart before the horse. By no process of reasoning the case property alongwith the sample could have been deposited before its recovery. The said MHC has not given any cogent and convincing reason for altering the date from 8 to 7-10-2001. In view of the above admission, the recovery was effected on 7.10.2001 which is not the case of the prosecution. Palpably, the date of deposit of the case property has been materially altered for the reasons best known to the concerned official.
As alleged by the prosecution, the recovery was effected within the view of Illam Singh Sarpanch. The seal after use was allegedly handed over to ASI Janak Singh PW. There is unexplained delay of as many as 15 days in sending the sample parcel to the Forensic Science Laboratory for Criminal Appeal No. 2116 SB of 2005(O&M) 5 chemical analysis. It is in the cross-examination of Constable Balwinder Singh PW-3 who carried the sample parcel to the Forensic Science Laboratory that " I have seen my statement Ex.D-1 but there was no mention of regarding depositing and handing over of sample seal impression in it." As per this evidence the sample seal impression was neither handed over to him not it was deposited by him with the sample. If it be so, it has been left in the womb of mystery as to how the Analyst had matched the seals affixed on the sample with the sample seal.
It is in the cross-examination of ASI Janak Singh PW-5 that the accused was seen coming on foot. So is in the evidence of Ram Phal Investigator PW-7. It is unintelligible and inconceivable that the accused appellant would have undertaken his journey from U.P. towards Haryana on foot. It is also in the cross-examination of Ramphal Inspector(sic) that "it is correct that place of recovery is thorough fare. I did not call any witness from the public at large who were passing from the place of recovery because independent witness was with us alongwith DSP K.K.Rao." This evidence leaves nor room for doubt that there was no dearth as to the availability of the independent witnesses. To strengthen the credit- worthiness of recovery some passers-by could have been joined. The Investigator has not given any lucent reason for non-joining such passers- by. This also cast a cloak of suspicion over the prosecution story.
On taking into consideration all these flaws cumulatively, it leads to an irresistible conclusion and inescapable inference that there is dent in the prosecution case. Illam Singh PW when examined in defence as DW-1 denied that the recovery was effected from the accused-appellant in his presence. He also went on to say that Inspector Ram Phal did not record Criminal Appeal No. 2116 SB of 2005(O&M) 6 his statement on 8.10.2001 and that he had obtained his signatures on Ex.PD, Ex.PL and Ex.PF in the Police Station. In his cross-examination, he has testified that "on that day, there was a dispute of Harijans of our village. The name of that person was Satpal. Some theft has taken place in Basant Vihar, Karnal and he was called by the police in that connection." In Jagdish Vs. State of Madhya Pradesh 2003(9) Supreme Court Cases 159, a three Judges Bench of Hon'ble Supreme Court set aside the judgment of conviction as in that case the independent witnesses had denied that search and seizure for recovery of opium had taken place in their presence. In the present case also Illam Singh Sarpanch has denied these facts.
In Kashmir Singh Vs. State of Punjab 2006(2) Recent Criminal Reports(Criminal) 477, the Full Bench of this Court has observed as under:-
"12. When the Trial Judge records the statement of an accused person under Section 313 Cr.P.C. with regard to the circumstances which have appeared in evidence against him, the learned judge gives the accused an opportunity to explain those circumstances. The accused generally denies the prosecution case against him, but it is an opportune moment for him to plead any type of defence that he may like to take. Therefore, by extending the provisions of Section 313 Cr.P.C. and on first principles of fair trials as well, there is need to give every accused person an opportunity to explain the case against him. Wheresoever the presumption under Sections 35 & 54 is to be raised, it would be advisable for the Trial Court to frame a question under S. 313 Cr.P.C. in order to give the accused a fair opportunity to rebut the presumption, but it is strange that Criminal Appeal No. 2116 SB of 2005(O&M) 7 Trial Court do not give the accused this opportunity. Unless the accused have been given the opportunity to prove that he had no such mental state as presumed under S.35 or that he had satisfactorily accounted for the possession which was being presumed against him under Section 54, the respective presumptions cannot be raised against the accused.
19. For the above reasons, we would answer the question raised by stating that no presumption under Sections 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement under Section 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter, the accused should be given an opportunity to lead to the presumptions. Thereafter, the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of "possession" which needs to be resolved."
In State of Punjab Vs. Hari Singh and Others 2009(2) Recent Criminal Reports (Criminal) 143 it has been observed by the Hon'ble Supreme Court as under:-
"19. For the above reasons, we would answer the question raised by stating that no presumption under Section 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement under Section 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter, Criminal Appeal No. 2116 SB of 2005(O&M) 8 the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of "possession"
which needs to be resolved."
A meticulous perusal of the statement of the appellant recorded under Section 313 would reveal that neither the specific question with regard to conscious possession has been framed nor put to him, while he was being examined under the said Section. That being so, in view of the afore quoted law, the presumption arising under Section 35 and Section 54 of the Act does not operate in favour of the prosecution.
For the reasons indicated above, this appeal succeeds and is accepted by setting aside impugned judgment/order of sentence. The accused-appellant is hereby acquitted of the charged offence by giving him benefit of reasonable doubt.
Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of.
(HARBANS LAL) JUDGE February 17, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No