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2008 DIGILAW 1135 (PNJ)

Kashmir Singh S/o Arjun Singh v. State Of Punjab

2008-05-30

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction, and the order of sentence dated 25.8.1995, rendered by the Court of Addl. Sessions Judge, Ferozepur, vide which it convicted the accused/appellant, for the offence, punishable under Section 15 of the Narcotic Drugs & 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 another period of six months, for having been found in possession of 50 Kgs, poppy-husk, without any permit or licence. 2. The facts, in brief, are that on 11.7.1992, at about 6.00 P.M., Shiv Shambu Nath, SI/SHO, alongwith other police official, was on patrol duty, in Government Jeep, driven by Surjit Singh, Constable, and when the police party after patrolling Village Daulewala, was going towards Village Rajpura, accused Kashmir Singh, was seen coming on a cycle. On seeing the police party, he tried to slip away, but was apprehended, on suspicion. The accused was carrying a gunny bag, on the carrier of his cycle. The search of the bag, in accordance with the provisions of law, was conducted, as a result whereof, 50 Kgs. poppy-husk, was recovered therefrom. A sample of 100 grams, was taken out, and the remaining poppy-husk, was put into the same bag. The sample, and the bag, containing the remaining poppy-husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On 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 trial. 4. The prosecution, in support of its case, examined Des Raj, ASI (PW-1), Shiv Shambhu Nath, SI (PW-2), and Santokh Singh, Constable (PW-3). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution 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. Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution 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 Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused/appellant, as stated herein before. 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. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, submitted that the alleged recovery was effected from the accused, from an open place, but no independent witness was joined, at the time of search and seizure. He further submitted that even no effort was made, to join and independent witness. He further submitted that the Constable, who was sent to bring weights and scale was also not asked to bring an independent witness. He further submitted that on account of this reason, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, appears to be correct. Shiv Shambhu Nath, SI (PW-1), the Investigating Officer, during the course of his cross-examination stated, that efforts were made to join a public witness, but none was available. He, however, admitted that the recovery was effected from a thoroughfare. Had an effort been made to join an independent witness, when the alleged recovery was effected, from a thoroughfare, and had no-body been available, this fact would have been recorded, either in the ruqa, or in the case diary, or the other documents, which were prepared contemporaneously, at the time of the alleged recovery. This factum was not mentioned, in any of the documents. It means that no effort, whatsoever, was made by the Investigating Officer, to join an independent witness, though the alleged recovery was effected from a thoroughfare. This clearly shows that such an explanation was furnished by the Investigating Officer, just with a view to cover up his lapse. This factum was not mentioned, in any of the documents. It means that no effort, whatsoever, was made by the Investigating Officer, to join an independent witness, though the alleged recovery was effected from a thoroughfare. This clearly shows that such an explanation was furnished by the Investigating Officer, just with a view to cover up his lapse. In fact, he did not make any effort, to join an independent witness. Had any effort been made, to join an independent witness, the matter would have been considered, in the light thereof. Since minimum stringent punishment is provided for the offences, punishable under the Act, and according to the provisions of Section 51 of 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. 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. In the instant case, the alleged recovery being minor, now falling within the ambit of non-commercial quantity, and chances of plantation of the same, against the accused, could not be ruled out, it became the bounded duty of the Investigating Officer, to observe all the safeguards, provided under the Act, at the time of search and seizure. 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 v. Bhupinder Singh 2001(1) R.C.R. (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 v. Ram Chand 2001(1) R.C.R. (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 mater, as a result whereof miscarriage of justice occasioned. 10. 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 mater, as a result whereof miscarriage of justice occasioned. 10. It was next submitted by the Counsel for the appellant, that though the alleged recovery, in this case, was effected on 11.7.992, yet the sample parcel was deposited in the office of Chemical Examiner, on 23.7.1992, and, thus, there was a delay of 12 days. He further submitted that the delay of 12 days, in sending the sample, to the office of the Chemical Examiner, was not explained, by the prosecution witnesses, as a result whereof, it could not be safely held, that the sample remained untempered with, until it reached the office of the Chemical Examiner, especially, in view of the fact that the seal after use, and the sample parcel, remained with the Investigating Officer throughout. 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 is cogent and convincing, to prove that none tampered with the sample parcel, until it reached the office of the Chemical Examiner, then mere delay in sending the same, in itself, is not sufficient to doubt the prosecution story. However, if the other evidence is neither cogent, nor reliable, then certainly a doubt is cast on the prosecution story, that the sample might have been tampered with, until it reached the office of the Chemical Examiner. In the instant case, the other evidence produced by the prosecution, besides being deficient, is not reliable. In State of Punjab v. Jaswant Singh 2002(3) R.C.R. (Criminal) 54, there was a delay of 21 days, in sending the sample to the office of the Chemical Examiner. The other evidence led by the prosecution was also not reliable. Under these circumstances, it was held by a Division Bench of this Court, that the delay in sending the sample to the office of the Chemical Examiner, would prove fatal to the case of the prosecution, especially when admittedly, no independent witness was joined in the recovery proceedings, and the seal used for sealing the samples, remained with the police officials, during the period. In State of Rajasthan v. Gurmail Singh 2005(2) R.C.R. (Criminal) 58 (S.C.), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. In Cian Singh v. State of Punjab 2005(2) R.C.R. (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. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In the instant case, the delay in sending the sample, proved fatal to the case of the prosecution, but the trial Court, did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. The submission of the Counsel for the appellant, in this regard, carries substance, and is accepted. 11. The next limb of the argument of the Counsel for the appellant, that the link evidence was incomplete, was to the effect, that the prosecution failed to produce all the witnesses, who handled the case property, and the sample parcel, until the same (sample parcel) reached the office of the Chemical Examiner. He further submitted that, on account of this reason, the case of the prosecution, was bound to fail. The submission of the counsel for the appellant, in this regard, appears to be correct. Shiv Shambhu Nath, SI (PW-2), during the course of his cross-examination, stated that the ASI, alongwith the case property, the sample parcel, and the accused, was sent to the Illaqa Magistrate. He further stated, that ASI produced the case property, and the sample parcel, before the Illaqa Magistrate. There is nothing, in the statement of this witness, that the ASI, deposited back the case property, with him, after production thereof, before the Illaqa Magistrate. Even, he stated during the course of his cross-examination, that he did not remember the name of that ASI, who was deputed to produce, the case property, and the sample parcel, before the Illaqa Magistrate. Even, he stated during the course of his cross-examination, that he did not remember the name of that ASI, who was deputed to produce, the case property, and the sample parcel, before the Illaqa Magistrate. From the statement of Shiv Shambhu Nath, SI (PW-2), it was proved, that the case property, and the sample parcel, were handled by an ASI, whose name, he did not remember. That ASI was not examined, in the Court, as a witness. Under these circumstances, it could not be safely held that the sample parcel, remained untempered with, till it remained in the custody of that ASI. Why that ASI, was not examined, by the prosecution, is not known? It was held in State of Rajasthan v. Daulat Ram, that it is the duty of the prosecution, to prove that the sample was not tampered with, at any stage. It was further held that if the sample parcel, changes many hands, before reaching the office of the Chemical Examiner, then the prosecution, should prove through cogent and convincing evidence, that none of them tampered with the sample parcel, until it reached the office of the Chemical Examiner. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the present case. As stated above, since the ASI, who handled the sample parcel, before it reached the office of the Chemical Examiner, was not examined, the possibility of tampering with the sample, could not be ruled out. The submission of the Counsel for the appellant, in this regard, carries weight, and is accepted. 12. The next limb of the argument of the Counsel for the appellant, that the sample parcel, did not remain safe, and the possibility of tampering with the same, could not be ruled out, was to the effect, that the seal, and the sample parcel, remained with Shiv Shambu Nath, SI (PW-2), throughout. He further submitted that, thus, the link evidence was incomplete. The submission of the Counsel for the appellant, in this regard, appears to be correct. As stated above, the other evidence produced by the prosecution, has been held to be unreliable, to prove the link evidence. In Rajesh Jagdamba Avasthi v. State of Goa 2005(1) R.C.R. (Criminal) 406 (S.C.), charas was recovered from the possession of the accused, and sealed in two packets. As stated above, the other evidence produced by the prosecution, has been held to be unreliable, to prove the link evidence. In Rajesh Jagdamba Avasthi v. State of Goa 2005(1) R.C.R. (Criminal) 406 (S.C.), charas was recovered from the possession of the accused, and sealed in two packets. The packets and the seal remained in the custody of the same person. In these circumstances, it was held that there was every possibility of the seized substance, being tampered with. The conviction of the accused was set aside, inter-alia, on this ground. In the instant case, the possibility of tampering with the case property, could not be ruled out. A serious doubt, on account of this reasons, was cast on the prosecution case. The submission of the Counsel for the appellant, carries weight, and is accepted. 13. The provisions of Section 57 of the Act, were not complied with. No report was sent by the Investigating Officer, to his superior officer immediately, with regard to the alleged apprehension of the accused, and alleged recovery of contraband, from him. No doubt, the provisions of Section 57 of the Act, are directory in nature. That does not mean that the same, should not be complied with by the Investigating Officer, deliberately and intentionally. In Gurbax Singh v. State of Haryana 2001(1) R.C.R. (Criminal) 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 vitiate the trial or conviction. However, the Investigating Officer, cannot totally ignore these provisions, and such failure, will have bearing on the appreciation of evidence regarding search of the accused and seizure. The object of the provisions of Section 57, is that the superior officer should be informed immediately after the alleged recovery of contraband, so that he must be aware of the genuineness of the proceedings, conducted by his junior, to ensure that no innocent person was implicated, and the allegations of high handedness against the Police officials, are averted. Had any explanation been furnished by the Investigating Officer, as to what prevented him, from complying with the provision of Section 57 of the Act, the matter would have been different. In the absence of any explanation, what to speak of plausible, the Court cannot coin any of its own, to fit in with the prosecution case. Had any explanation been furnished by the Investigating Officer, as to what prevented him, from complying with the provision of Section 57 of the Act, the matter would have been different. In the absence of any explanation, what to speak of plausible, the Court cannot coin any of its own, to fit in with the prosecution case. Since, the provisions of Section 57 of the Act, were observed, more in breach, than in compliance, by the Investigating Officer, intentionally and deliberately, the case of the prosecution became doubtful, on account of this reason. The trial Court failed to take into consideration this aspect of the matter, as a result whereof, it committed an error, in recording conviction and awarding sentence. 14. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, are not based on the correct appreciation of evidence, and law, on the point. The trial Court did not take into consideration, the infirmities and lacunae, enumerated, in the aforesaid paragraphs. Had these infirmities and lacunae, been taken into consideration, by the trial Court, the result would have been different. The judgment of conviction and the order of sentence, warrant interference, and are liable to be set aside. For the reasons recorded, herein before, the appeal is accepted. The judgment of conviction, and the order of sentence dated 25.8.1995, are set aside. The appellant shall stand acquitted of the charge framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty at once, if not required in any other case.