Punjab-Haryana High Court
Lachhman Dass vs State Of Punjab on 10 September, 2009
Criminal Appeal No.2266-SB of 2005 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.2266-SB of 2005
Date of Decision:10.09.2009
Lachhman Dass
.....Appellant
Vs.
State of Punjab
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Nirmal Mittal, Advocate for the appellant.
Mr. Arshvinder Singh, Deputy Advocate General, Punjab.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ order of sentence dated 25.10.2005 passed by the Court of learned Judge, Special Court, Muktsar whereby he convicted and sentenced Lachhman Dass accused to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lac under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, `the Act') or in default of payment of fine to further undergo rigorous imprisonment for one year.
The facts in brief are that on 27.10.1997, Sub Inspector Ranjodh Singh amongst other police officials was going in official Gypsy No.PB-08-2218 from the side of Village Gurusar to Village Sham Khera via katcha path. When the police party neared the canal minor bridge, the accused was spotted approaching from the side of Village Sham Khera Criminal Appeal No.2266-SB of 2005 -2- carrying a gunny bag on his head. On catching sight of the police party, he turned towards the fields on his left hand side. On suspicion, he was intercepted. Sub Inspector told the accused that the gunny bag was suspected to contain some contraband. He asked him to tell as to whether he wants to have search before a Gazetted Officer or a Magistrate. The accused opted to have the same in the presence of a Gazetted Officer. On receipt of wireless message, DSP Sajjan Singh came at the spot. On his directions, Sub Inspector carried out search of the gunny bag, which revealed opium duly wrapped in a glazed paper. 100 grams opium was separated to serve as sample and converted into a parcel. The remainder when weighed came to 11 Kgs. 900 grams, which was also turned into a parcel. The specimen seal impression was prepared. The seal after use was handed over to HC Malkiat Singh. The DSP Sajjan Singh also affixed his seal bearing impressions `SSC' on the parcels. These parcels were seized vide recovery memo. The accused was arrested. On return to the Police Station, the case property was deposited with MHC Major Singh with seals intact. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused.
The accused were charged under Section 18 of the Act to which he did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution has examined PW1 HC Gurcharan Singh, PW2 C. Chanan Ram, PW3 MHC Major Singh, PW4 DSP Sajjan Singh Cheema, PW5 SI Ranjodh Singh Investigating Officer, PW6 HC Malkiat Singh and closed its evidence by tendering the Chemical Examiner's report. When examined under Section 313 of Cr.P.C, the accused denied all the Criminal Appeal No.2266-SB of 2005 -3- incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication. He has put forth as under:
"I was leading the agitating villagers of my village as we had made a temporary bandh with earth to obstruct the seepage/ rainy water from entering the village and the same was flowing towards Malout City and the local administration wanted to cut away our bandh or to obstruct second Bandh towards Malout side. This enraged the Police. I was taken from my house on 26.10.97 at about 1:30 P.M in the presence of panchayat though nothing incriminating was recovered from me. A resolution to this effect was also passed by the panchayat, but the police falsely implicated me in this case. I had strained relationship with Kuldip Singh who is `phuphar' of Darshan Singh Mann, S.P of Police Amritsar and they got occasion for my false implication in this case."
In his defence, he examined DW1 Talwinder Singh, Panchayat Secretary, DW2 Gurdev Singh and DW3 Gurbaj Singh and closed his defence.
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 with his conviction and sentence, he has preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Criminal Appeal No.2266-SB of 2005 -4-
To begin with, the learned counsel for the appellant valiantly urged that Chemical Examiner's report has not been exhibited and it is not included even in the index of exhibits. He further puts that the copy of such report supplied in adherence to the provisions of Section 207 of Cr.P.C to the appellant was unsigned and the same has been got exhibited as DA at the trial. In the absence of such a report, it does not lie in the mouth of the prosecution to contend that the substance allegedly recovered from the appellant was opium. To gloss over this submission, the learned State Counsel argued that it is in the evidence of SI Ranjodh Singh PW5, the Investigator that " I challaned the accused on receipt of Chemical Examiner's report Ex.PC." This piece of evidence speaks volumes of there being exhibited Chemical Examiner's report. This contention merits rejection. A meticulous perusal of Ex.PC would reveal that it was marked as such by the Presiding Officer in his own hand on 9.4.2001, on Form No.M-29, whereas the report of the Chemical Examiner is on its backside. This exhibit was marked for the first time on 9.4.2001 in the cross- examination of MHC Major Singh PW3 who says that "Ex.PC Form No.29 was got filled by me from AMHC on 3.11.1997. This form was not deposited with me along with the case property by the SHO on 28.10.1997." The statement of Sub Inspector Ranjodh Singh PW5 was recorded on 10.12.1001. The afore-extracted cross-examination of MHC Major Singh PW3 leave no room for doubt that indeed it was form No.M-29 which was exhibited as PC and not the Chemical Examiner's report. The statement of the Investigator Sub Inspector Ranjodh Singh having been recorded subsequent to Major Singh's statement, the same Ex.PC could have not been Criminal Appeal No.2266-SB of 2005 -5- marked on the Chemical Examiner's report. A glance through Chemical Examiner's report would reveal that it does not bear any exhibit. A careful delving into Ex.DA would reveal that the same is unsigned photostat copy of Chemical Examiner's report, which was supplied to the accused in compliance with the provisions of Section 207 of the Code of Criminal Procedure. At this juncture, the learned counsel for the appellant pointed out that as a matter of fact, the investigating agency procured a subsequent chemical report by getting the same signed from the Chemical Examiner in the back date and to save his own skin, the Public Prosecutor whosoever was conducting the case did not tender it in evidence. There appears to be a substance in this submission.
The learned State Counsel has not denied the supply of Ex.DA to the appellant. It implies that initially unsigned report of Chemical Examiner was appended to the challan. There appears to be a logic that when the prosecution agency felt that the unsigned report cannot be looked into evidence, procured a signed report in the back date and placed it on the record, but unfortunately, the same could also not be tendered. Thus, to say the least of it, there is no Chemical Examiner's report showing that the contents of the substance which was allegedly recovered from the unauthorised possession of the appellant was opium. Unless the prosecution discharges onus to the effect that the recovered substance was opium, the conviction cannot be maintained. The prosecution has also not couraged to prove Chemical Examiner's report by calling the Chemical Examiner along with the record on the basis of which he gave the alleged report. The rule of appreciation of evidence contemplates that unless a Criminal Appeal No.2266-SB of 2005 -6- document is proved in a manner as provided by law, it cannot be received into evidence. Section 293 of Cr.P.C reads as under:
"293. Reports of certain Government Scientific experts. -
(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Inspector of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
Criminal Appeal No.2266-SB of 2005 -7-
(e) the Director [Deputy Director or Assistant Director] of a
Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government."
In the factual scenario, there was a necessity to prove the report under consideration by summoning the chemical examiner. There being no Chemical Examiner's report, in fact the trial stands vitiated. A meticulous perusal of the entire record with due care and caution would reveal that the alleged Chemical Examiner's report was never tendered in evidence by the Public Prosecutor whosoever was conducting the case at the relevant time.
It is in the evidence of Sub Inspector Ranjodh Singh (sic.) that the seal after use was handed over to HC Malkiat Singh and DSP retained his seal with him. It is in the cross-examination of this witness that "I returned the seal to SI Ranjodh Singh on the next day in the Police Station. As per Ex.PC, the sample parcel was dispatched on 3.11.1997 whereas the recovery was effected on 27.10.1997. It implies that the sample parcel was still either in the Police Station, when the seal was received back by the Investigator. Furthermore, it is in the cross-examination of HC Malkiat Singh (sic.) that "Ex.DA is the photocopy of the sample seal impression pasted on the CFSL form. However, this form itself was not prepared at the spot. I do not know when it was prepared and it is photostat copy of Ex.PC." It is worth pointing out here that DA has been marked on two afore-referred documents. It is also in the cross-examination of MHC Major Singh PW3 that "Ex.PC form No.29 was got filled by me from AMHC on 3.11.1997. This form was not deposited with me along with the case Criminal Appeal No.2266-SB of 2005 -8- property by the SHO on 28.10.1997." This evidence clearly indicates that the CFSL form was prepared on 3.11.1997 though the recovery was effected on 27.10.1997. It is also indicative of the fact that this form was not filled at the spot. In re: Gurcharan Singh v. State of Punjab, 2005(4) Recent Criminal Reports (Criminal) 681, the seal affixed on seized opium was given to HC and not to the public witness. The CFSL form was not prepared at the spot. It was held that preparation of CFSL form at the spot is an important safeguard against an allegation of tampering with the sample. Further in re: Baldev Singh v. State of Punjab, 2005(1) Recent Criminal Reports (Criminal) 823, it has been held that till the case property has been dispatched to the Office of Forensic Science Laboratory, the seal could not be available to the prosecution agency and in the absence of such safeguard, the possibility of the seal being tampered with, substance being changed and the containers being resealed cannot be ruled out. In re:
Bhola Singh v. State of Punjab, 2005(2) Recent Criminal Reports (Criminal) 520, it has been held that CFSL form should be prepared at the spot and deposited in the malkhana. Where the seal remained with the police after use and the CFSL form was neither prepared on the spot nor deposited in the malkhana, such circumstance would be fatal to the prosecution case. Filling of such form at the spot is a very valuable safeguard to ensure that the seal sample is not tampered with till its analysis by the Forensic Science Laboratory.
If the matter is viewed in the background of the above observations, the possibility of the seal being tampered with, substance being changed and the containers being resealed cannot be ruled out. Criminal Appeal No.2266-SB of 2005 -9-
It is in the evidence of PW5 Ranjodh Singh SI/ SHO that "We remained at the spot for four and half hours. Number of persons passed our side during our stay there." It is also in the evidence of PW4 Sajjan Singh DSP that "Number of witnesses met me but I did not join any one of them. There are residential houses and farm houses also. Abadi was at a distance of 200/300 yards." This evidence speaks volumes of the fact that there was no dearth as to the availability of independent witnesses. The prosecution has not apportioned any reason for non-joining of such witness. The evidence tendered by the police officials does not find corroboration from any source.
SI Ranjodh Singh admittedly kept the case property with him from 27.10.1997 to 28.10.1997. It was on 28.10.1997 that he produced the accused and the case property before the Illaqa Magistrate, i.e., Sub Divisional Judicial Magistrate, Malout. He did not produce any of the prosecution witnesses before the said Magistrate.
Talwinder Singh Panchayat Secretary DW1 has proved the resolutions, the copies of which are Ex.D1 and Ex.D2. Ex.D1 reads as under:-
"(i) Ex.D1 (31) is Panchayat Resolution dated 26.10.1997 contents of which reads as under:-
"Today, a meeting of Panchayat of Village Thehri is convened under the Chairmanship of Sardar Manmohan Singh Sarpanch. Gurdeep Singh Member is authorized to scribe the following proceedings. The following resolution is hereby passed.Criminal Appeal No.2266-SB of 2005 -10-
It is resolved that to-day at about 1:30 P.M (day) Police of Malout had come in the house of Lachhman Dass son of Bansi Lal of Village Thehri. Whole Panchayat had reached there at the spot. House of Lachhman Dass was searched in presence of the Panchayat. Nothing illegal was recovered in presence of Panchayat from the house of Lachhman Dass. But in presence of the Panchayat, police of Malout took Lachhman Dass forcibly with it. Police had committed a wrong in taking Lachhman Dass in its custody without any reason in front of the whole Panchayat. In this way, the whole Panchayat is insulted. All this has been done for the reason that the surplus water of village Thehri was to go to Malout; Police of Malout wanted to stop it by constructing of an embankment; that Lachhman Dass and the whole village opposed it; that Lachhman Dass was ahead in this opposition; and that police of Malout has taken Lachhman Dass unlawfully after apprehending him for his this opposition. In this respect, the whole matter is necessary to be brought in notice of Hon'ble Chief Minister, Punjab, Senior Officers and the Police. This Resolution is hereby passed unanimously.
Copy of this Resolution is being sent to Block Development and Panchayat Officer Giddarbaha for necessary action.Criminal Appeal No.2266-SB of 2005 -11-
Ex.D2 reads as under:
"(ii) Ex.D2 (35) is Panchayat Resolution dated 11.11.1997 contents of which reads as under:-
"Today, a meeting of Panchayat of Village Thehri is convened under the Chairmanship of Sardar Manmohan Singh Sarpanch in the Panchayat- House AND the following proceedings have been effected. Quorum of Members is complete.
After consideration, Resolution is passed that Police of Sadar Malout has lodged false case of Opium on Lachhman Dass son of Bansi Lal of Village Thehri after apprehending him in front of the Panchayat. Panchayat has learnt it from the newspaper. Police had taken him after apprehending him in front of the Panchayat from his house. Panchayat had also passed previously a resolution in this regard. But as per the newspaper, Police has shown apprehension of Lachhman Dass from Village Gurusar, and has accused him of Opium. All this action of police is false and unlawful whereas Lachhman Dass is a poor, noble and a good character person. Police has lodged a false case. Resolved."
DW2 Gurdev Singh has stated as under:-
"I was member Panchayat of Gram Panchayat Village Thehri in the year 1997. In Sept and October 1997 there were excessive Criminal Appeal No.2266-SB of 2005 -12- rain and flood like situation was developing. To prevent the water entering in Village Thehri, the Panchayat with the help of other resident of Village constructed Bandh near the road. Again said Malout people constructed the above said bandh and due to the construction of said bandh the water entered in our village and causing damage. We wanted to demolish the said bandh but the police was preventing us from doing so. Lachhman Dass accused present today in Court was also present with us. Due to this police was against the accused and us. On 26.10.97 police of Malout came to our village and went to the house of accused Lachhman Dass. Manmohan Singh Sarpanch, myself and other members and residents of village also went to the house of accused. In our presence police conducted search of the house of the accused, but nothing incriminating thing was recovered. Police forcibly took away the accused with it although we opposed it. Thereafter we passed resolution and Ex.D1 is the photostat copy of the same. I have seen the original resolution in the proceeding book and the same is in my hand and bears my signatures and signatures of other members of Panchayat. After 5/7 days we came to know that accused has been falsely involved in case of recovery of opium. On this, we again passed resolution dated 11.11.97 and Ex.D2 is the photostat copy. The original resolution bears my signatures and others."
As ruled by the Division Bench of this Court in re: Sanjay v. Criminal Appeal No.2266-SB of 2005 -13- State of Haryana, 2005(2) Recent Criminal Reports (Criminal) 561, the evidence of prosecution witnesses and defence witnesses stand on equal footing. No premium is to be given to the prosecution witnesses. If the evidence of defence witnesses is truthful and reliable, then reliance should be placed on the same. The defence evidence should not be discarded simply on the ground that they were appearing in defence. Further in re:
State of Haryana v. Ram Singh, 2002(1) Recent Criminal Reports (Criminal) 443 (SC), it has been ruled that evidence tendered by defence witnesses cannot always be termed as a tainted one. Defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution.
On evaluating the above discussed defence evidence, it transpires that the same competes in probability with the prosecution evidence.
As a sequel of the above discussion, this appeal is accepted setting aside the impugned judgment. The accused is acquitted of the charged offence.
September 10, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No