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2004 DIGILAW 227 (PNJ)

Kapil Dev v. State of Punjab

2004-02-25

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Kapil Dev son of Muni Lal stands convicted by the learned Additional Sessions Judge, Hoshiarpur vide judgment/order dated 10.7.1993 under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) for allegedly keeping in his conscious possession 1-1/2 kgs of charas. He has been sentenced to undergo RI for ten years and to pay a fine of Rs one lac, in default of payment of fine to further undergo RI for one year. Aggrieved by the said judgment of conviction and sentence, he has preferred the present appeal. 2. On 12.5.1992, ASI Mandip Singh PW1 was patrolling between the area of Sessions Chowk towards Railway Station, Hoshiarpur when the present appellant was spotted. He after seeing the police party tried to retreat back. He was apprehended. An offer was given by ASI Mandip Singh to the present appellant as to whether he wanted his search to be conducted before the Magistrate or before the Gazetted Officer. The appellant expressed his desire to be searched before the gazetted officer. Consequently a message was sent to Prag Jain, Superintendent of Police (City) who came to the place of recovery and in his present the search was conducted from the Jhola of the appellant which he was carrying with him. 1-1/2 Kgs. of charas was recovered from the said Jhola. 20 grams of charas was taken out as sample and the remaining charas was separately sealed with the seal impression bearing letters PJ (Prag Jain) and thereafter that parcel and the sample were taken into possession vide recovery memo Ex.PA. Personal search of the appellant was also conducted and a sum of Rs 370/- was also recovered. On the basis of the ruqa Ex.PC sent by ASI Mandip Singh PW1 formal FIR Ex. PC/1 was recorded in the police station. ASI Mandip Singh also prepared site plan Ex.PD at the spot. The case property was thereafter deposited with Moharrir Head Constable Kewal Singh with all the seals intact. 3. After completing the investigation, the appellant was challaned to face the trial. He was charged under Section 20 of the Act. 4. The prosecution in order to substantiate its case has examined PW1 ASI Mandip Singh who is the investigating officer of the case. HC Ranjit Singh PW2 is another witness of the recovery. Besides this, the prosecution tendered into evidence two affidavits Ex. He was charged under Section 20 of the Act. 4. The prosecution in order to substantiate its case has examined PW1 ASI Mandip Singh who is the investigating officer of the case. HC Ranjit Singh PW2 is another witness of the recovery. Besides this, the prosecution tendered into evidence two affidavits Ex. PF and PG of Constable Yash Pal Singh and MHC Kewal Singh respectively and report of the Chemical Examiner Ex.PE. 5. The stand of the appellant as is clear from his statement under section 313 Criminal Procedure Code is that he has been falsely implicated in this case at the instance of his landlord who was pressurising him to vacate the house. The appellant, however, has not adduced any defence evidence. 6. The learned trial Court after appreciating the entire evidence has convicted and sentenced the appellant as stated above. He is, thus, in this appeal. 7. I have heard Mr. H.S. Rakhra, learned counsel for the appellant and Mrs. R.K. Nihalsinghwala, learned Deputy Advocate General, Punjab. With their assistance, I have also gone through the entire record minutely. 8. Learned counsel for the appellant very fairly submits that as the recovery of the contraband was made from the Jhola allegedly carried by the appellant the non-compliance, if any, of provisions of section 50 of the Act would not render any help to him. However, attacking the case of the prosecution on other counts, the learned counsel contends that one of the main infirmities in the present case is that S.P. City Sh. Prag Jain before whom the recovery effected has not been produced by the prosecution and this lacuna goes deep to the root of the case. Developing his arguments, the learned counsel further contends that as per the prosecution case the parcels were sealed with the seal bearing letters PJ of Prag Jain only insomuch so that he has also signed Ex.PA (recovery memo) and Ex. PB (Personal search memo) and his non- examination would be fatal to the prosecution. 9. The other weakness of the prosecution case as projected by the learned counsel is that when the affidavits Ex. PF and PG of Constable Yash Pal and MHC Kewal Singh was tendered by the learned Public Prosecutor on 2.3.1993, the deponents were not present in the Court for cross-examination. 9. The other weakness of the prosecution case as projected by the learned counsel is that when the affidavits Ex. PF and PG of Constable Yash Pal and MHC Kewal Singh was tendered by the learned Public Prosecutor on 2.3.1993, the deponents were not present in the Court for cross-examination. The learned counsel contends that the aforesaid affidavits were, in fact, sworn on 8.8.1992 whereas those were tendered on 2.3.1993. He further contends that these affidavits were not even put to the appellant when he was examined under section 313 Criminal Procedure Code This infirmity with regard to the link evidence has caused a substantial prejudice to the appellant making the entire prosecution case doubtful. In support of his arguments, the learned counsel has relied upon Ramesh v. State of Haryana, 1998(1) RCR(Crl.) 146 and a latest judgment of this Court rendered in Sawant Ram v. State of Haryana, Criminal Appeal No. 97-SB of 1989, decided on January 16, 2004. 10. The other argument advanced on behalf of the appellant is that there is non-compliance of section 55 of the Act as well because there is no evidence worth the name that ASI Mandip Singh who was posted in Police Station City Hoshiarpur had taken the seized articles to the Incharge of the Police Station for keeping the same in the safe custody. The only evidence adduced is that he on return to the police station had deposited the case property with MHC Kewal Singh. The learned counsel contends that non-compliance of section 55 of the Act also damages to the prosecution case. In support of his arguments, he relied upon Baba Budh Giri Chela v. State of Haryana, 1996(1) RCC 410. 11. It is then contended that no sanctity can be attached to the report Ex.PE of the FSL as no scientific test/experiment has been disclosed by the expert for arriving at the conclusion that the sample sent to him was charas. He then contends that even the report itself indicates that when the sample was sent for the purpose of analysis, it was already disclosed to the Chemical Examiner that it contained 20 grams of charas. My attention in this regard has been drawn to the report Ex.PE and the Form No. M.29 which is part of the report where the column No. 3, it has been mentioned that the sample contains charas. My attention in this regard has been drawn to the report Ex.PE and the Form No. M.29 which is part of the report where the column No. 3, it has been mentioned that the sample contains charas. The learned counsel while relying upon a judgment of Gujarat High Court rendered in Mahmad Hanif Shaikh Ibrahim v. State of Gujarat, II (1995) RCR 146 (DB) contends that the appellant deserves acquittal. 12. The learned counsel then contends that non-joining of independent witness can also be considered as one of the weaknesses of the prosecution case as it cannot be believed that at 7 PM in the month of May in the busy vicinity, there was no independent witness who could be joined by ASI Mandip Singh the Investigating Officer in order to give sanctity to the search. 13. The learned counsel has also pointed out certain discrepancies in the statements of the witnesses to the recovery. 14. On account of aforesaid submissions, the learned counsel asks for acquittal of the appellant. 15. The learned State counsel has refuted the arguments advanced on behalf of the appellant and submits that there is no reason to disbelieve two police officials of the recovery who have no animosity against the appellant for which they would falsely implicate him. He then contends that even if Prag Jain, S.P. City has not been produced by the prosecution, this by itself would not be considered as a basic infirmity which would uproot the case of the prosecution. It is further contended the even if prosecution has failed to put the link evidence to the appellant in his statement under section 313 Criminal Procedure Code this would not prejudice the case of the appellant as the report of the FSL Ex. PE was put to him and the said report indicates that the sample sent to the Chemical Examiner was of charas. 16. After hearing the rival contentions of both the sides, I am of the view that the prosecution has not been able to prove charge against the appellant beyond reasonable doubt and the case of the prosecution suffers from many infirmities. 17. Greater the charge, stricter is the proof, is the accepted principle of criminal jurisprudence. The initial duty is always upon the prosecution to prove the charge by producing reliable and satisfactory evidence. 18. 17. Greater the charge, stricter is the proof, is the accepted principle of criminal jurisprudence. The initial duty is always upon the prosecution to prove the charge by producing reliable and satisfactory evidence. 18. The case of the prosecution is that Prag Jain, Superintendent of Police is the witness to the recovery. He has signed Ex.PA recovery memo and Ex.PB personal search memo. The samples are also sealed by his seal impression (PJ). Admittedly, he has not been produced. The zimni order dated 14.5.1993 indicates that inspite of bailable warrants of arrest issued against him to secure his presence, he did not appear and ultimately the prosecution evidence had been closed by the order of the Court. In my considered view, his non- examination can certainly be considered as one of the weaknesses of the prosecution case. 19. The other infirmity which goes to the root of the case is that the prosecution has not been able to prove the link evidence in this case. I have minutely seen the records. Affidavits Ex.PF and PG of Constable Yash Pal and MHC Kewal Singh were sworn on 8.8.1992. These affidavits were tendered by the public prosecutor on 2.3.1993. Admittedly, the two dependents were not present in the Court on that day. For reference the statement of Public Prosecutor is reproduced as under :- "I tender into evidence report Ex.PE of the Chemical Examiner Punjab and affidavits Exs. PF and PG of C. Yash Pal and MHC Kewal Singh and seek another adjournment for the statement of Shri Prag Jain, S.P." 20. From the aforesaid factual position, it is very clear that two officials who had to prove the link evidence were not present for the cross-examination. Their Affidavits prepared earlier were simply tendered into evidence without affording an opportunity to the appellant to put question to them with regard to the link evidence. The matter does not rest here. Another material infirmity in this regard is that these two affidavits in order to prove the chain of link evidence were not even put to the appellant when he was examined under section 313 Criminal Procedure Code I have seen the statement of the appellant in this regard. The only question put to him is that the sample was sent to the Chemical Examiner, Punjab Chandigarh who on analysis found the same as charas vide report Ex.PE. The only question put to him is that the sample was sent to the Chemical Examiner, Punjab Chandigarh who on analysis found the same as charas vide report Ex.PE. No incriminating evidence (link evidence) with regard to the affidavits Ex.PF and PG was put to the appellant. The resultant effect, in my considered view, is that the report of the Chemical Examiner cannot be acted upon as possibility cannot be ruled out that after the seizure and before the analysis the same was not tampered with. 21. In Jai Singh v. State of Haryana, 1996(1) All India Criminal Law Reporter 394, this Court while dealing with this factual infirmity in para No. 16 observed as under :- "16. This contention has force. In both the cases, affidavits were tendered in evidence, but in the zimni order, there is no mention that Constable Karan Singh and HC Surat Singh were present in Court for cross- examination. Even in the order-sheet of this date, there is no mention that these witnesses were present in the Court for cross-examination. Thus, no opportunity was given to the accused-appellant to cross examine these witnesses. When accused- appellant was examined under section 313 Criminal Procedure Code in question No. 2, he was asked that the sample was taken out from the seized contraband, both parcels were duly sealed with the seal of DS and in question No. 3 it was asked that the sample was sent to the Chemical Examiner and his report Ex.PD shows that the articles recovered from the accused was opium/charas. Thus, it is apparent that the aforesaid link evidence is not put to the accused under section 313 of the Criminal Procedure Code." The judgment rendered in Sawant Rams case (supra) also strengthens the plea of the appellant in this regard. 22. In Rameshs case (supra) the judgment relied by learned counsel, the link evidence having not been put to the appellant when examined under section 313 Criminal Procedure Code was considered as a lacuna and the report of the Chemical Examiner was not read into evidence against the appellant. 23. There is non-compliance of section 55 of the Act as well in this case. ASI Mandip Singh who is the investigating officer of this case gives a complete go-bye to the provisions of section 55 of the Act. 23. There is non-compliance of section 55 of the Act as well in this case. ASI Mandip Singh who is the investigating officer of this case gives a complete go-bye to the provisions of section 55 of the Act. His statement in the Court indicates that after the recovery was effected and the ruqa was sent to the police station for the registration of formal FIR, the case property was deposited by him with MHC Kewal Singh. He does not state that the articles seized were taken to the Incharge of the Police Station and thereafter he had affixed his seal to such articles and then were taken in his custody. The relevant portion from the statement of ASI Mandip Singh is reproduced for reference :- " xxx xxxx xxxx xxxx I sent ruqa Ex. PC to the Police Station and on its basis, FIR Ex. PC/1 was recorded by Shri Balbir Singh ASI. I also prepared site plan Ex.PD with correct marginal notes and recorded the statements of the prosecution witnesses. On return to the Police Station, I deposited the case property with MHC Kewal Singh with seals intact. After completion of investigation, the accused was challaned by SHO, P.S. Model Town." xxx xxx xxx xxx 24. From the aforesaid statement, it is now very clear that the case property was straightaway deposited with the MHC of the concerned police station and the Incharge of the police station had not kept it in his safe custody pending the orders of the Magistrate. In Thandi Ram v. State of Haryana, 1999 AIR SCW 468, the appellant was acquitted on the point of non-compliance of section 55 and 57 of the Act observing that the conviction in such type of cases stands vitiated. Reference can also be made another judgment of Honble Apex Court rendered in Gurbax Singh v. State of Haryana, 2001 SCC(Crl.) 426 in which their Lordship have held that provisions of sections 52, 55 and 57 of the Act are directory in nature and violations thereof would not ipse facto vitiats the trial or conviction. However, investigating officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the articles. However, investigating officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the articles. These provisions if not complied with and the investigation is found faulty it is not safe to convict the accused of serious offence under the Act. In the instant case also, in my considered view, when the aforesaid infirmities are taken collectively, it can be safely concluded that the prosecution has not been able to prove its case against the appellant beyond reasonable shadow of doubt and as such he deserves acquittal. 25. I, however, do not agree with the other contention raised by the learned counsel for the appellant to the effect that no truthfulness or genuineness to the report Ex.PE can be attached for the reasons that it does not disclose the scientific test carried out by the Chemical Examiner or that the Chemical Examiner was informed in advance that the sample which was being sent to him for analysis was of charas. I have seen the repot minutely. For reference the relevant portion is reproduced as under :- "Macroscopic :- Brownish green mass Microscopic :- Cystolethic hair present Indian Hemp Resin :- Present Resin% :- 28.4% Opinion :- The analysis indicates that the contents of the exhibit marked here 2-C-May-92. are of Charas." The judgment rendered in Mahmad Hanif Shaikh Ibrahims case (supra) would not render any help to the contention raised by the appellant because in the aforesaid case the muddamal (article) sent was simply declared as charas without carrying out any test or experiment. In the present cases that is not the situation. 26. I do not feel the necessity of discussing other contentions with regard to non-joining of independent witness or even certain other discrepancies pointed out in the statements of the official witnesses for the reason that I have otherwise disbelieved the prosecution on account of aforesaid reasoning. 27. To sum up, the net result is that the charge against the appellant is not proved. The appeal consequently allowed and the appellant stands acquitted. His bail bond/surety bond stands discharged forthwith. Appeal allowed.