Punjab-Haryana High Court
Hari Singh Son Of Risal Singh vs State Of Haryana on 3 February, 2010
Criminal Appeal No. 1992-SB of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 1992-SB of 2008
Date of Decision : 03.02.2010
Hari Singh son of Risal Singh, aged 66 years, Agriculturist,
r/o village Dhanana, District Bhiwani.
...Appellant
Versus
State of Haryana.
...Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Aman Chaudhary, Advocate,
for the appellant.
Mr. Sandeep Mann, Senior Deputy Advocate General,
Haryana, for the respondent - State.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction, dated 27.09.08, and the order of sentence, dated 30.09.08, rendered by the Court of Additional Sessions Judge-II, Bhiwani, vide which, it convicted the accused (now appellant), and sentenced him, as under, for having been found in possession of 250 gms of opium, and, 850 gms charas, without any permit or licence, which falls within the ambit of non-commercial quantity:-
Name of the accused Offence for which Sentence (now appellant) convicted awarded 1 2 3 Criminal Appeal No. 1992-SB of 2008 2 Hari Singh (a) Under Section 18 of To undergo the Narcotic Drugs rigorous and Physchotropic imprisonment for Substances Act, a period of five 1985 (hereinafter to years, and to pay a be called as the Act fine of only) Rs. 50,000/-, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of one year and six months. (b) Under Section 20 of To undergo the Act. rigorous imprisonment for a period of five years, and to pay a fine of Rs. 50,000/-, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of one year and six months.
The substantive sentences, were, however, ordered to run concurrently.
2. On 11.09.03, in the area of village Dhanana, District Bhiwani, Ram Avtar, Inspector, alongwith some other Police officials, was on patrol duty. The Police party, was going towards Mundhal, and when it reached near the bus stand of Dhanana, towards Mundhal Side, the accused, was seen coming. He was having one bag, in his hand. He was apprehended on suspicion. On search of the bag, 250 gms opium Criminal Appeal No. 1992-SB of 2008 3 and 850 gms charas, were recovered, from the same. Two samples of 25 gms each of opium were separated. Two samples of 50 gms each of charas, were also separated. The samples of opium and charas, and also the remaining contraband, were converted into parcels, duly sealed and taken into possession, vide separate recovery memo. The accused, was arrested. Ruqa was sent, to the Police Station, on the basis whereof, the FIR was registered. After the completion of investigation, the accused, was challaned.
3. On his appearance, in the Court of the Committing Magistrate, the accused, was supplied the copies of documents, relied upon by the prosecution.
4. After the case, was received by commitment, in the Court of Sessions, charge under Sections 18 and 20 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined Dilbagh Singh, EHC (PW1), Ram Kishan, Head Constable (PW2), Shiv Charan, Deputy Superintendent of Police, Vigilance, Hisar (PW3), and, Ram Avtar, Inspector (PW4), the Investigating Officer. Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence.
6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that the Criminal Appeal No. 1992-SB of 2008 4 documents, were prepared, in the Police Station.
7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above.
8. Feeling aggrieved, the instant appeal, has been filed by the accused/appellant.
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 appellant, submitted that, no independent witness, was joined despite availability, by the Investigating Officer. He further submitted that, this fact, casts a cloud of doubt, on the prosecution story. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ram Avtar, Inspector, the Investigating Officer, during the course of his cross- examination, stated that, he tried to join the independent witnesses, but everybody showed his inability. He further stated that, no action, was taken, against the persons, who refused to join the Police party. He further stated that their names, were also not recorded, in the case diary or any other document prepared, at the spot. He further stated that there was a Primary Health Centre, near the place of recovery and a doctor was posted there. He also stated that Industrial Training Institute, and a School of the village, are also situated, near the place of recovery. He further stated that, no effort, was made, to call an independent witness, from these places. From the statement of this witness, it is evident, that Criminal Appeal No. 1992-SB of 2008 5 actually no real and sincere effort, was made, to join an independent witness. Had such an effort been made, the matter, would have been different. Had an attempt been made, to join an independent witness, and he had refused to join the Police party, then his name would have certainly been mentioned, in the case diary, and the other documents prepared, at the spot. Since, the 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 creditworthiness, 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. That 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 Criminal Appeal No. 1992-SB of 2008 6 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. It was 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-foldely, if the same is found to be creditworthy. However, when the evidence of the official witnesses, is found to be not cogent convincing, 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 witnesses, does not inspire confidence, in the mind of the Court. In this view of the matter, non-corroboration of the evidence of the official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In State of Punjab Vs. Bhupinder Singh 2001 (01) RCR (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 Vs. Ram Chand 2001 (1) RCR (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 Criminal Appeal No. 1992-SB of 2008 7 down, in the aforesaid cases, 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 despite availability, the case of the prosecution, became highly doubtful.
11. It was next submitted by the Counsel for the appellant, that there was a delay of four days, in sending the sample parcels, to the Forensic Science Laboratory, which remained explained, and, as such, the possibility of tampering with the same, until, it reached the office of the Forensic Science Laboratory, could not be ruled out. The submission of the Counsel for the appellant, 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 Forensic Science Laboratory. 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 Forensic Science Laboratory. Since, the sample parcels were allegedly sent to the office of the Forensic Science Laboratory, after four days, and the seal remained in possession of the Police officials, throughout, 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 was incomplete. Ultimately, the Criminal Appeal No. 1992-SB of 2008 8 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, and 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 samples, till the same reached the office of the Forensic Science Laboratory. 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 Forensic Science Laboratory, 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, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. Criminal Appeal No. 1992-SB of 2008 9
12. It was next submitted by the Counsel for the appellant, that even the prosecution, miserably failed, to prove, as to whether, the sample parcels, were sent, to the Forensic Science Laboratory, on 14.10.03 or 20.10.03, as the affidavits PA of Dilbagh Singh, Constable, and PB of Ram Kishan, Moharrir Head Constable, bore interpolation, with regard to the date. He further submitted that, on account of this reason, the link evidence, became totally incomplete. The submission of the Counsel for the appellant, in this regard, appears to be correct. The perusal of exhibits PA and PB, the affidavits aforesaid, clearly goes, to show that, in the first instance, date 20.10.03 was written. Thereafter, date 20.10.03, was changed, into 14.10.03. Digit 20, was converted into digit 14, in both the affidavits. Even, in para 2 of his affidavit, Ram Kishan, Moharrir Head Constable, stated that, it was on 14.09.03, that he handed over the sample parcels, to the Constable concerned, but, in the next para, the interpolated date 14.10.03, was written. During the course of his cross-examination, Dilbagh Singh, EHC, stated that, it was correct, that in his statement DA, it was written, that the Moharrir Head Constable, had given the samples of this case, to him, on 20.10.03, for depositing the same with the Forensic Science Laboratory, Madhuban. The prosecution, was required, to prove, beyond a reasonable doubt, that right from the date, when the alleged recovery, was affected, till the date, the samples, were sent, to the office of the Forensic Science Laboratory, the same, remained untampered with. In view of the interpolation of the material dates, in the affidavits aforesaid and the statement of Dilbagh Singh, Criminal Appeal No. 1992-SB of 2008 10 EHC, made by him, during the course of his cross-examination, referred to above, it was clearly proved, that the prosecution, miserably failed, to complete the link evidence. Under these circumstances, it could not be definitely said, as to, on which date, the samples, were sent, to the office of the Forensic Science Laboratory. The report of the Forensic Science Laboratory, to the effect, that the samples, were received, on 14.10.03, in the face of the affidavits PA and PB, and the evidence of Dilbagh Singh, EHC, cannot be given any credence, especially, with regard to the date of receipt of the samples. The trial Court, failed to take into consideration this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction and awarding sentence.
13. It was next submitted by the Counsel for the appellant, that even the provisions of Section 55 of the Act, were not complied with intentionally and deliberately, as the case property, was not produced, before the area Magistrate for verification, at any point of time. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ram Avtar, Sub Inspector, the Investigating Officer, when appeared, as PW4, did not state even a single word, that he produced the case property, before the area Magistrate, at any point of time. Ram Kishan, Moharrir Head Constable, with whom, the case property, was deposited, did not state even a single word, in his affidavit PB, that Ram Avtar, Sub Inspector, took the case property, from him, for producing the same, before the area Magistrate. Even Dilbagh Singh, EHC, vide affidavit PA, did not state that Ram Avtar, Sub Inspector, Criminal Appeal No. 1992-SB of 2008 11 took the case property, from him, and produced the same before the area Magistrate. Section 55 of the Act, lays down, that an Officer Incharge of the 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, or 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 samples 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 area 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 Criminal Appeal No. 1992-SB of 2008 12 Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Criminal) 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 vitiate the trial or conviction. However, the Investigating Officer, cannot totally ignore these provisions, and such failure will have bearing, on the appreciation of evidence, regarding search of the accused and seizure. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. As stated above, since the Investigating Officer, intentionally and deliberately breached the provisions of Section 55, he could not say that the provisions of Section 55, being 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 authorized 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 Criminal Appeal No. 1992-SB of 2008 13 consideration, this aspect of the matter, as a result whereof, it fell into a grave error in recording conviction.
14. It was next submitted by the Counsel for the appellant, that when the case property, was produced, in the Court, the seals, on the same were broken. He further submitted that, under these circumstances, it could not be said, that the case property, which was produced, in the Court, remained untampered with, and, whether the same belonged to this case, or to some other case. It was the duty of the Incharge, Malkhana, to keep the case property, in safe custody. The mere fact, that the case property, was produced, in the Court, after about one year of the alleged recovery, in itself, could not be said to be sufficient, to hold that, the seals, on the case property stood broken, on account of shortage of space or mis-handling. No explanation, was furnished, by the prosecution witnesses, as to how, the seals stood broken. There is also no evidence, on the record, that any report, in the Roznamcha or any other register of Police Station, was made, so as to explain, as to at what point of time, the seals stood broken. The case property, therefore, did not stand connected with the case. This also casts a cloud of doubt, on the prosecution story, but the trial Court, did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction and awarding sentence.
15. No other point, was urged, by the Counsel for the parties. Criminal Appeal No. 1992-SB of 2008 14
16. In view of the above discussion, it is held that the judgement of conviction and the order of the sentence, rendered by the trial Court, are not based on the correct appreciation of evidence and law, on the point. The same are liable to be set aside.
17. For the reasons recorded above, the appeal, is accepted. The judgment of conviction, and the order of sentence, rendered by the trial Court, are set aside. The appellant shall stand acquitted. If the appellant, is on bail, he shall stand discharged of the bail bonds. If he is in custody, he shall be set at liberty, if not required, in any other case.
18. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude.
03.02.2010 (SHAM SUNDER) AMODH JUDGE