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2005 DIGILAW 933 (PNJ)

Hawa Singh v. State Of Haryana

2005-09-02

PRITAM PAL

body2005
Judgment Pritam Pal, J. 1. Appellant Hawa Singh has brought this appeal against judgment dated 10.8.2002 and order dated 12.8.2002 passed by the learned Addl. Sessions Judge, Hisar, whereby he was convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act), and then sentenced to undergo R.I. for five years with a fine of Rs. 10,000/-. In default of payment of fine, he was further ordered to undergo R.I. for six months. 2. In nut-shell, the facts culminating to the commencement of this appeal may be capitulated thus :- On 23.3.2001, in the after-noon, Raj Singh ASI (PW-4) along with other police officials, was present in connection with patrol duty near village Chuli Bagrian in the area of Police Station, Adampur. At about 4.30 p.m., the appellant was seen coming from the side of village Chuli Kalan, who, on seeing the police party, sat on the pretext of urinating. At that time, he was carrying a plastic bag on his head. On suspicion, he was apprehended by Raj Singh ASI, who is the Investigating Officer and gave notice Ex. PE for search of his bag to be conducted in the presence of a Gazetted Officer or a Magistrate, but he reposed confidence in the Investigating Officer vide reply notice Ex. PE/1. Then, he (the Investigating Officer) searched the bag of the appellant, as a result of which, 20 kg. of poppy husk, was recovered, out of which, 100 grams was taken out a sample which was made into parcel and sealed with the seal of `RS. The remaining bulk of poppy husk and the sample were taken into possession vide recovery memo Ex. PF. Thereafter, ruqa Ex. PB was sent to the Police Station for registration of the case, on the basis of which formal FIR Ex. PB/1 was recorded. In the meantime, the Investigating Officer completed all other formalities of the case at the spot. 3. On return to the Police Station, the accused and the case property were produced before Kapoor Singh SI/SHO and thereafter, the case property was deposited with the MHC. On receipt of the report Ex. PD with regard to the sample sent to the Forensic Science Laboratory, Madhuban, and completion of formal investigation in this case, the appellant was challaned for commission of offence under Section 15 of the Act. 4. On receipt of the report Ex. PD with regard to the sample sent to the Forensic Science Laboratory, Madhuban, and completion of formal investigation in this case, the appellant was challaned for commission of offence under Section 15 of the Act. 4. The appellant was charge-sheeted under Section 15 of the Act, by the learned Court vide its order dated 4.7.2001, to which he pleaded `not guilty and claimed trial. 5. The prosecution in order to subordinate its case examined as many as five witnesses, namely, PW-1, Constable Randhir Singh; PW-2 SI/SHO Kapoor Singh; PW-3 HC Dalip Singh; PW-4 ASI Raj Singh, Investigating Officer and PW-5 HC Sunder Lal. 6. After closure of the prosecution case, the appellant was examined in terms of Section 313 Cr.P.C., wherein he denied all the incriminating evidence appearing against him. When he was called upon to enter his defence, he chose in the negative. 7. The learned trial Court after appraisal of the evidence brought on record and hearing the learned counsel for the parties, convicted and sentenced the appellant, as indicated in the opening part of this judgment. This is how feeling aggrieved, the appellant has come up in this appeal before this Court. 8. I have heard Mr. Arvind Kashyap, learned Amicus-curiae, appearing on behalf of the appellant, Mr. Man Mohan Sikka, learned AAG, appearing on behalf of the State of Haryana and have perused the entire case file carefully. 9. The noticeable points of arguments raised on behalf of the appellant in this case are that no independent witness was joined in this case by the Investigating Officer at the time of effecting the recovery and that at the time of investigation, no compliance was made as required under Section 55 of the Act and that no second sample out of the case property was taken by the Investigating Officer. Besides that, learned Amicus-curiae also pointed out some contradictions in the statements of the police witnesses, namely PW-3 HC Dalip Singh and PW-4 ASI Raj Singh. In support of his aforesaid points of arguments, he relied upon Chhabil Dass v. State of Haryana, 1998(1) RCR(Criminal) 133. 10. On the other hand, learned Mr. Man Mohan Sikka, learned AAG, appearing on behalf of the State of Haryana, argued that no prejudice is shown to have been caused to the appellant by non-compliance of the requirement under Section 55 of the Act. 10. On the other hand, learned Mr. Man Mohan Sikka, learned AAG, appearing on behalf of the State of Haryana, argued that no prejudice is shown to have been caused to the appellant by non-compliance of the requirement under Section 55 of the Act. It was also then submitted that in fact, now-a-days, no person from the public is ready to join the investigation of such like cases and, therefore, none had come forward from the public to be a witness in this case. Moreover, none from the public had come and crossed the place of occurrence. 11. I have given my thoughtful consideration to the aforesaid points of arguments raised on behalf of the learned counsel for the parties and find that the pleas put-forward by learned Amicus-curiae, are not devoid of merits inasmuch as recovery of the alleged contraband substance in this case had taken place in a day time. Place of occurrence is admittedly near the abadi of village Chuli Kalan as well as the bus stand. It has also come in the evidence that it was a busy place, and as such, the explanation given by the prosecution that none from the public had crossed the place of occurrence, is not convincing one. Further, it has also come in the evidence that some efforts were made to join independent witnesses from the village, but they had refused to be associated in the investigation of this case. This assertion made by the learned AAG, Haryana, again does not appeal to the conscious (conscience ?) inasmuch as it could not be shown, as to who were those persons, who had refused to be the witnesses during the investigation of this case. All this goes a long-way to show that in fact, (no ?) serious efforts were made by the Investigating Officer to join the independent witnesses during the investigation for the reasons best known to him. No doubt, conviction can be based on the basis of testimony of the official witnesses also, but that must inspire confidence. Here, in the instant case, a close scrutiny of the evidence consisted in the statements of the two material witnesses, namely PW-3 HC Dalip Singh and PW-4 Raj Singh, the Investigating Officer shows that they are not in unison on many material points, which go to the root of this case. 12. Here, in the instant case, a close scrutiny of the evidence consisted in the statements of the two material witnesses, namely PW-3 HC Dalip Singh and PW-4 Raj Singh, the Investigating Officer shows that they are not in unison on many material points, which go to the root of this case. 12. Not only that PW-3 H.C. Dalip Singh also made embellishments/improvements while deposing against the appellant. He was also confronted with his earlier statement Ex. DA recorded under Section 161 Cr.P.C. Thus, on examination of the statements of the police officials, it can be safely inferred that the same do not inspire confidence on many material points. Now adverting to the non-compliance of Section 55 of the Act, in this regard, it is an admitted fact that even two samples as required under the Act, were not taken and only one sample was taken. This fact has been so admitted by PW-4 Raj Singh ASI, Investigating Officer while appearing before the learned trial Court. Further, he also did not testify if grounds of arrest were supplied to the appellant in writing. All this shows that the Investigating Officer has failed to comply with the mandatory provisions as contained in Section 55 of the Act. Learned counsel for the State has no answer to the points made out by learned Amicus-curiae. Learned trial Court also did not give any valid reasons for ignoring the non-compliance of the provisions of law in this case. In such like cases where heavy dose of punishment is provided, the statutory provisions of law should be complied with before holding the accused guilty under the Act. 13. In the totality of the facts and circumstances of this case as discussed above, the impugned judgment of conviction and order of sentence are set aside. In the result, this appeal is allowed.