Punjab-Haryana High Court
Chand Mohd. vs State Of Punjab on 10 July, 1996
Equivalent citations: 1997CRILJ810
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. This appeal is directed against the judgment/order dated 25-9-1995 passed by the Additional Sessions Judge, Sangrur, whereby the appellant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 10,00,0007- (Ten lacs) and in default of payment of fine to undergo further rigorous imprisonment for two years.
2. The brief facts leading to this appeal are that on 7-9-1994, ASI Banarsi Dass of Police Station Bhawanigarh, along with two Constables and one S. P.O. was coming back after the investigation of a case. When the Police party reached near the canal bridge, the appellant was sighted while coming on foot having a gunny bag on his head. On seeing the police party, he got perplexed and turned on his left hand side and tried to slip away. On suspicion he was over powered and detained . ASI Banarsi Dass informed the appellant that his gunny bag was to be searched and if he so desired, the search could be conducted before a Gazetted Officer or a Magistrate but the appellant declined the offer and reposed faith in him. Written record of the reply given by the appellant was prepared. On conducting search of the gunny bag, 10 Kgs. of poppy husk was recovered. Two samples weighing 250 gms. each were separated. Both the sample parcels and the remaining contents were converted into separate sealed parcels with the seal of 'BD'. A ruga (Exhibit PD) was sent to the Police Station, on the basis of Which FIR (Exhibit PD/1) was recorded. Case property was deposited in the malkhana. On the receipt of the result of the chemical examination in respect of the sample parcels sent to it, and on completing the investigation, a charge-sheet against the appellant was submitted to the Court.
3. A charge under Section 15 of the Act was framed against the appellant to which he denied and claimed trial.
4. In support of its case the prosecution examined four witnesses. ASI Banarsi Dass (PW1) and constable Major Singh (PW 4) are the witnesses of the search and recovery. ASI Banarsi Dass (PW 1) is the investigating Officer also. SI Darbara Singh (PW 2) was posted as S.H.O. on the day of occurrence at Police Station Bhawanigarh, before whom the appellant along with the said case property and the sample parcels were produced and he had affixed his own seal of the impression of 'DS' on the sample parcels and the gunny bag. HC Baldev Singh (PW 3) was the Moharrir Malkhana on that day at Police Station Bhawanigarh. He has tendered his affidavit Exhibit PH. Affidavit Exhibit PG sworn by constable Nachhattar Singh and Exhibit PF, the report of the Chemical Examiner, were tendered in evidence.
5. The appellant was examined under Section 313 of the Code of Criminal Procedure (for short called 'the Act'), wherein he denied the allegations of the prosecution, pleaded his innocence and false implication. He did not examine any witness in his defence.
6. On an appraisal of the evidence produced before him, the Additional Sessions Judge, found the appellant to be guilty under Section 15 of the Act and convicted and sentenced him as stated above.
7. Feeling aggrieved, the appellant submitted this appeal through Jail. He has been provided the legal services of Shri Narottam Kaushal, Advocate, as amicus curiae.
8. I have heard the learned Counsel for the parties and have gone through the record.
9. Shri Narottam Kaushal, Advocate, learned Counsel for the appellant, has assailed the order of conviction on several grounds, but he has laid great stress on two of them i.e. firstly, that the conviction of the appellant should not be upheld on the uncorroborated testimony of two police officials when time and opportunity was available to the Investigating Officer to join independent public persons to witness the search of the appellant and secondly, that the link evidence in the form of an affidavit sworn by Constable Nachhattar Singh cannot be read in evidence against the appellant inasmuch as Constable Nachhattar Singh was never offered and tendered for cross-examination by the appellant. If this affidavit is ignored, the case of the prosecution becomes suspect.
10. On the other hand Shri Ramanjit Singh, learned Assistant A. G., Punjab, has argued that there is no rule of law that conviction cannot be based on the uncorroborated testimony of the police officials; that testimony of ASI Banarsi Dass (PW 1) and Constable Major Singh (PW 2) has not been shaken in any way in their cross-examination nor any of these two witnesses had any animus against the appellant to implicate him falsely in this case. It has been further argued by the learned A.A.G. that the testimony of Constable Nachhattar Singh was of formal nature and as such his sworn affidavit was tendered in evidence as permitted by law.
11. I have carefully considered the respective arguments advanced at the Bar. ASI Banarsi Dass (PW 1) has stated in his cross-examination that they had reached the place of occurrence at about 3.30 p.m.; that the place of recovery is at about 1 k.m. from village Ramgarh that there is a Panchayat Chowkidar and a Lambardar in the said village and that Constable Sukhminder Singh was sent to village Ramgarh to bring independent witnesses but he told that none was willing to join. Similar is the statement made in his cross-examination by Constable Major Singh (PW 4).
12. The aforesaid explanation given by ASI Banarsi Dass and Constable Major Singh (PW 4) does not inspire any confidence. The ruqa Exhibit PD contains the earlier version of the occurrence and is the foundation of the prosecution case. There is absolutely no mention in this ruqa that any effort was made to join independent public persons to witness the search of the appellant or the bag which he was allegedly carrying on his head. The explanation has been given by these two witnesses that Constable Sukhminder Singh was sent to village Ramgarh to bring independent witnesses but he was told that none was ready to join. Strangely enough, Constable Sukhminder Singh has not been produced and examined on this point. In the absence of examination of Sukhminder Singh, the testimony of ASI Banarsi Dass and Constable Major Singh is hearsay and as such inadmissible.
13. At the conclusion of the trial, the prosecution can succeed only on discharging the initial burden of proving its case against the accused, and strongest of suspicion does not constitute the proof required. Even though the statute does not make it obligatory, as a rule of prudence, the Police Officer should carry out the search, if it is possible, to secure the presence of independent persons in their presence. The Court will be extremely reluctant to uphold the prosecution case which is solely based on recovery made as a result of search not witnessed by independent and respectable persons unless it was unreasonable and improbable to procure the presence of such witnesses.
14. In the present case, there is no reliable and credible evidence on the record to show that ASI Banarsi Dass had made any genuine effort to call for independent public witnesses to witness the search of the appellant or the bag which he was allegedly carrying, particularly when he had ample time, means and opportunity to procure the presence of independent public witnesses to witness the search. This serious omission on the part of the Investigating Officer, in itself, is enough to cast a grave suspicion as regards the alleged recovery of the poppy husk from the possession of the appellant.
15. Coming to the next contention put forward by the learned counsel for the appellant, it may be stated that one of the essential facts to be proved affirmatively by the prosecution is that right from the stage of seizure till it reached the hands of the Chemical Examiner, there was no possibility of change or tampering with the sample parcel of the recovered material. In other words, the prosecution is bound to produce the entire link evidence in this respect. In the present case, Constable Nachhattar Singh is alleged to have taken the sealed sample parcel from the Moharrir Malkhana and had deposited the same in the office of Forensic Science Laboratory. Instead of examining Nachhattar Singh, his affidavit Exhibit PG has been tendered in evidence. The most important factor in this respect is that Constable Nachhattar Singh was neither present on the date when this affidavit was tendered in prosecution evidence, nor he was produced for cross-examination by the appellant. The evidence of Constable Nachhattar Singh could be one of the links in the chain to rule out the possibility that the sample was not tampered with by anybody till it reached the hands of the Chemical Examiner. Unless the appellant had been given an opportunity to test the credibility of Constable Nachhatar Singh, the affidavit Exhibit PG cannot be used against him. If this link evidence is omitted from consideration, the resultant effect would be that the report Exhibit PF prepared by the Chemical Examiner cannot be read in evidence against the appellant. In other words, it cannot be said that the prosecution has ruled out the possibility of the sample parcel having not been tampered with by anybody till it reached the hands of the Chemical Examiner. This circumstance further makes the case of the prosecution a suspect.
16. For the foregoing reasons, I hold that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. Consequently, this appeal succeeds. The conviction and sentence of the appellant are hereby set aside and he is acquitted of the charge under Section 15 of the Act. The appellant shall be released forthwith, if not wanted in any other case.