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2008 DIGILAW 1101 (PNJ)

Gurtej Singh v. State of Punjab

2008-05-26

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:- This appeal is directed, against the judgment of conviction and the order of sentence dated 1.9.1994, rendered by the Court of Additional Sessions Judge, Ferozepur, vide which it convicted the accused/appellant for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as ‘the Act’ only) and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for a further period of three year, for having been found in possession of 30 kgs. and 200 grams of poppy husk, now falling within the ambit of non-commercial quantiy. 2. The facts, in brief, are that on 29.3.1991 ASI Jarnail Singh along with other police officials, and Inspector Ajit Singh of BSF was holding a picket, at the bridge of canal, situated in the area of Village Wara Bhai Ka. At about 5.00 A.M. the accused along with another person appeared from the side of Village Wara Bhai Ka, on cycles and when they reached in the middle of the bridge, they were asked to stop by SI Mohinder Singh by flashing a torch light. The accused tried to slip away but was apprehended by Jarnail Singh, ASI. Search of the bag, was conducted in accordance with the provisions of law, as a result whereof 30 Kgs and 200 grams poppy husk, was recovered. A sample of 200 grams, was taken out and the remaining poppy husk was put into the same bag. The sample and the container, containing the remaining poppy husk, were converted into parcels, duly sealed and taken into possession vide memo Ex.PB. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. Rough site plan Ex. PC was prepared. The accused was arrested. After the completion of investigation, challan was presented. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Amar Singh, PW-1, Jarnail Singh, PW-2, Hardev Singh, Inspector, PW-3 and Balkrishan, Constable, PW -4. Thereafter the Public Prosecutor for the State closed the defence evidence. 5. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Amar Singh, PW-1, Jarnail Singh, PW-2, Hardev Singh, Inspector, PW-3 and Balkrishan, Constable, PW -4. Thereafter the Public Prosecutor for the State closed the defence evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence in his defence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. A perusal of the order dated 27.2.2008 reveals that the appellant died on 8.5.2001. Since the appeal was also filed against the sentence of fine, it could not abate, as a whole, in view of the provisions of Section 394 (2) of the Code of Criminal Procedure, the Counsel for the appellant contended that he would address arguments on merits. 9. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. Learned Counsel for the appellant, at the very outset contended that though the recovery was effected from a thorough-fare, yet no independent witness was joined despite availability. He further submitted that, on account of this reason, the case of the prosecution became highly doubtful. Balkrishan, PW-4 a witness to the recovery stated during the course of his cross examination that Village Wara Bhai ke is at a distance of half furlong from the place of recovery. He further stated that Village Saranwali is at a distance of 1 Km. He further stated that the recovery was effected from a thoroughfare. Neither he nor Jarnail Singh, ASI, Investigating Officer, PW-2 stated even a single word in their statements, that an attempt was made to join an independent witness. No, doubt, the alleged recovery was effected at 5.00 A.M. yet at that time, the people from the Village, come to the fields to answer the call of nature and conduct agricultural operations. Neither he nor Jarnail Singh, ASI, Investigating Officer, PW-2 stated even a single word in their statements, that an attempt was made to join an independent witness. No, doubt, the alleged recovery was effected at 5.00 A.M. yet at that time, the people from the Village, come to the fields to answer the call of nature and conduct agricultural operations. Had any effort been made by Jarnail Singh, ASI, he would have certainly been successful in joining an independent witness. Since minimum stringent punishment is provided for the offences, punishable under the Act and according to the provisions of Section 51of 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 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 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. That cannot be permitted. 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 down, in the aforesaid authorities, 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, the case of the prosecution, became highly doubtful. The trial Court, failed to take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 11. It was next contended by the Counsel for the appellant that though the alleged recovery was effected on 29.3.1991, yet the sample was sent to the office of the Chemical Examiner on 3.4.1991 i.e. after a delay of 5 days. He further contended that no explanation by the prosecution witnesses, regarding the delay in sending the sample to the office of the Chemical was furnished. He further submitted that, under these circumstances, the possibility of tampering with the sample could not be ruled out especially in view of the fact that the seals remained with the same Police Officers, who were in possession of the sample parcel. He further submitted that, under these circumstances, the possibility of tampering with the sample could not be ruled out especially in view of the fact that the seals remained with the same Police Officers, who were in possession of the sample parcel. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true that if the other evidence, produced by the prosecution, to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the sample to the Office of Chemical Examiner, pales into insignificance. If, on the other hand, the other evidence produced, in this regard, is found to be un­ reliable, then certainly the delay assumes importance. In the instant case, the other evidence, produced by the prosecution, to prove the completion of link evidence, besides being deficient, is neither reliable, nor creditworthy. In these circumstances, the un-explained delay, referred to above, in sending the sample to the laboratory, certainly proved fatal to the case of the prosecution. In State of Rajasthan Vs. Gurmail Singh, 2005 (2) RCR (Crl.) 58 S.C. contraband was kept in the Malkhana. The Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Examiner. In Gian Singh Vs. State of Punjab, [2006(2) LAW HERALD (P&H) 1006] : 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 appellant was acquitted in that case. On account of this infirmity, the case of the prosecution became doubtful. 12. It was next contended by the Counsel for the appellant that there was violation of the Provisions of Section 55 of the Act, as the case property and the sample were not produced before the Illaqa Magistrate. Ultimately, the appellant was acquitted in that case. On account of this infirmity, the case of the prosecution became doubtful. 12. It was next contended by the Counsel for the appellant that there was violation of the Provisions of Section 55 of the Act, as the case property and the sample were not produced before the Illaqa Magistrate. Section 55 of the Act, lays down, that an Officer lncharge 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 sample 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 Illaqa 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 Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Crl.) 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 violate the trial or conviction. In Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Crl.) 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 violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, the Investigating Officer intentionally and deliberately breached the provisions of Section 55. He could not say that since the provisions of Section 55 are 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 consideration, this aspect of the matter, as a result whereof miscarriage of justice occasioned. 13. It was next contended by the Counsel for the appellant that the provisions of Section 57 relating to the sending of full report with regard the search and seizure to the superior officer, immediately after the search and seizure, by the Investigating Officer, have also been violated with impunity, in the instant case. No doubt, the provisions of Section 57 of the Act are directory, in nature. However, the Investigating Officer, cannot be given a licence, to violate the same with impunity. Once, a safeguard is provided, in the Act, it is required to be adopted, at the time of search and seizure. No doubt, the provisions of Section 57 of the Act are directory, in nature. However, the Investigating Officer, cannot be given a licence, to violate the same with impunity. Once, a safeguard is provided, in the Act, it is required to be adopted, at the time of search and seizure. It is the bounden duty of the person, charged with such a responsibility, to observe the same, more in compliance, than in breach. In the instant case, no explanation was furnished, by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of the Act. Had any explanation been furnished, in this regard, the matter would have been considered, in the light thereof. The avowed object of this provision is that the officer superior, in rank, must come to know of the actions of his junior officials, in the matter of search and seizure, under the Act, to find out, whether the same were genuine and, in accordance with the provisions of law, as also to avoid any criticism at a later stage, against the highanded-ness of the Police Officer. When the Legislature incorporates a specific provision, in the Act, with a view to safeguard the interests of the accused, at the time of search and seizure, then those safeguards cannot be ignored merely by saying that the same being directory were not required to be observed. Similar principle of law was laid down in Gurbax Singh’s case (supra). In this view of the matter, not only that a prejudice occasioned to the accused, but a doubt was also cast, on the prosecution case. 14. It was next contended by the Counsel for the appellant that the sample impression of the seal was not sent along with parcel to the office of the Chemical Examiner and, as such, it could not be said that the seals on the sample parcels were the same as were allegedly affixed at the time of alleged recovery. The submission of the Counsel for the appellant, in this regard, appears to be correct. Amar Singh, Constable, PW-1 took the sample parcel to the office of the Chemical Examiner. He stated that he was handed over the sample parcel of this case bearing seal impressions ‘JS’ and ‘HS’ by the SHO, Hardev Singh, with seals intact, for depositing the same in the office of Chemical Examiner. Amar Singh, Constable, PW-1 took the sample parcel to the office of the Chemical Examiner. He stated that he was handed over the sample parcel of this case bearing seal impressions ‘JS’ and ‘HS’ by the SHO, Hardev Singh, with seals intact, for depositing the same in the office of Chemical Examiner. He further stated that on 3.4.1991 he deposited the sample parcel, in the office of the Chemical Examiner. He further stated that none tampered with the same, till it remained in his custody. He did not state even a single word, that the sample impression was handed over to him and he deposited the same in the office of the Chemical examiner. In State of Rajasthan’s case (supra), the sample impression of seal was not sent to the Laboratory for comparison of the seals, on the sample. It was held that, therefore, there was no evidence to prove satisfactorily that the seals found, were, infact, the same, as were affixed on the sample parcel immediately after seizure. The other evidence produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Examiner. Ultimately, the appellant was acquitted in that case. On account of this infirmity, the case of the prosecution became doubtful. 15. No other point was urged, by the Counsel for the parties. 16. In view of the above discussion, it is held that the judgment of the trial Court is not based on the correct appreciation of evidence, and law, on the point, The trial Court, failed to take into consideration, the aforesaid infirmities and lacunae, in the prosecution case, as a result whereof, it fell into an error, in recording conviction and awarding sentence. The judgment of the trial Court, warrants interference, and is liable to be set aside. 17. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 1.9.1994 are set aside. The appellant shall stand acquitted of the charge, framed against him. --------------------