Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 1190 (PNJ)

Gurmit Singh @ Mitta Singh v. State of Punjab

2008-07-07

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:-This appeal is directed against the judgment of conviction dated 7.5.1997, and the order of sentence of the even date, rendered by the Addl. Sessions Judge, Sangrur, vide which it convicted the accused (now 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.l lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year, for having been found in possession of 34 Kgs. 500 grams poppy-husk (now falling within the ambit of non-commercial quantity), without any permit or licence. 2. The facts, in brief, are that on 3.7.1996, Lachhman Dass, ASI, alongwith other police officials was present, on the bridge of a Rajwaha, in the area of village Lehal Kalan, in connection with holding a picket. Chanan Singh, independent witness came from the side of village Bhutal Kalan. Lachhman Dass, ASI was talking to him, when, in the meantime, from the side of village, Lehal Kalan, one Maruti car bearing No.DID-2673 came. The ASI gave signal to the driver of the car to stop, and the same was stopped. The name of the driver of the car was Gurmit Singh. One gunny bag was lying on the adjoining seat of the driver’s seat. The search of the bag, was conducted, in accordance with the provisions of law, as a result whereof, 34 Kgs. 500 grams poppy-husk, was recovered. Two samples of 250 grams each, were separated there from, and the remaining poppy-husk was put into the same bag. The samples, and 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, the formal FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. 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 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 Ashok Mohan, SI (PW-l), Lachhman Dass, ASI (PW-2), the Investigating Officer, and Swaranjit Singh, ASI (PW-3). The Addl. Public Prosecutor for the State, tendered into evidence Ex.PG and PH, affidavits of Surinder Kumar, MHC and Karnail Singh, Constable, respectively. Thereafter, he closed the prosecution evidence, after giving up Chanan Singh, independent witness, as won over, by the accused. 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, examined Amarjit Kaur (DW-1), in his defence. Thereafter, he closed the defence evidence. 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, 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. When the appeal was fixed for regular hearing, on the Board of this Bench, and a due notice, in this regard, had been issued to the Counsel for the appellant, none appeared on behalf of the appellant. Under these circumstances, no alternative was left, with this Court, than to decide the appeal, on merits, after going through the record, and the evidence, as also hearing the Counsel for the respondent, as that amounted to due compliance of the provisions of Sections 385 and 386 Cr.P.C., in view of the ratio of law, laid down, in Dharam Pal Vs. State of UP, 2008 (1) Law Herald. 255 (S.C.). 9. I have heard the learned Counsel for the respondent, and have gone through the evidence and record of the case, carefully. 10. The Addl. Public Prosecutor for the State, tendered into evidence Exs.PG and PH, affidavits of Surinder Kumar, MHC, and Karnail Singh, Constable, respectively, vide his statement dated 12.3.1997. State of UP, 2008 (1) Law Herald. 255 (S.C.). 9. I have heard the learned Counsel for the respondent, and have gone through the evidence and record of the case, carefully. 10. The Addl. Public Prosecutor for the State, tendered into evidence Exs.PG and PH, affidavits of Surinder Kumar, MHC, and Karnail Singh, Constable, respectively, vide his statement dated 12.3.1997. He did not produce them for the purpose of affording an opportunity to the accused to cross­ examine them, and, as such, the accused was deprived of his valuable and indefeasible right of cross-examination. The affidavits aforesaid, without affording an opportunity to the accused, to cross-examine the deponents thereof, could not be taken into consideration, as legally admissible evidence. The accused has a valuable and indefeasible right to cross-examine the witnesses. He must be afforded an opportunity to do so. It is a different matter, whether he avails of that opportunity or not. The prosecution cannot take up the plea, that when the affidavits of these witnesses, were tendered into evidence, and they were not present, the accused could ask that he wanted to cross-examine them, and, thus, they could be produced. By not producing these witnesses, for cross­ examination by the accused, he was deprived of his valuable and indefeasible right. In Padam Singh Vs. State of Haryana 1997(4) RCR (Criminal) 172 (Division Bench) (P&H), the affidavits of the formal witnesses were tendered, but they were not produced for cross-examination by the accused. It was held that the affidavits could not be read into evidence. Ultimately, the appellant was acquired, inter-alia, on this ground. In Gian Singh Vs. Stale of Punjab, [2006(2) LAW HERALD (P&H) 1006] : 2006(2) RCR (Criminal) 611, the affidavits of police Constables, were tendered into evidence, but they were not produced, in the Court for cross-examination. In these circumstances, it was held that the link evidence was missing, which was a material infirmity, and, ultimately, the conviction was set aside. In Jai Singh Vs. State of Haryana, 1995 (3) RCR 627, the affidavits of the Police Constable and the HC were tendered into evidence, but both of them, were not kept present, in the Court for cross-examination. In these circumstances, it was held that the affidavits could not be read into evidence and, as such, the link evidence was incomplete and the case of the prosecution was bound to fail. In these circumstances, it was held that the affidavits could not be read into evidence and, as such, the link evidence was incomplete and the case of the prosecution was bound to fail. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. Under these circumstances, the affidavits, Ex.PG and PH, without offering the deponents thereof, for cross-examination by. the accused, could not be read into evidence. As such, the link evidence, being incomplete, the appellant is liable to be acquitted. The trial Court, in my opinion, was wrong in holding that the link evidence was complete. 11. Chanan Singh, an independent witness, though joined by the Investigating Officer, at the time of the alleged recovery, yet he was not examined, and given up as won over, by the accused. It is not known, as to, on the basis of which material and data, the Addl. Public Prosecutor for the State, came to conclusion that Chanan Singh, independent witness, had been won over, and if examined, he would damage the case of the prosecution. The evidence of Chanan Singh, independent witness, in my opinion, in this case, was very material, especially, when the possibility of planting poppy-husk against him, could not be ruled out. It is, no doubt, true that the Public Prosecutor for the State, is the master of the case. It is for him, to decide, as to which witness he wanted to examine and as to which witness, he did not want to examine. However, such discretion is required to be exercised by the Public Prosecutor, in accordance with the sound Judicial principles, and not arbitrarily and capriciously. In the instant, in the absence of any data or material, which persuaded the Public Prosecutor, not to examine this witness, it could be said that the discretion was exercised by him, arbitrarily and capriciously. It is no doubt, true that in the absence of corroboration to the evidence of the Official witnesses, through an independent source, the case of the prosecution cannot be thrown out, over-board. However, when an independent witness was joined, but was not examined, without any rhyme or reason, then certainly a doubt is cast, on the prosecution story. It is no doubt, true that in the absence of corroboration to the evidence of the Official witnesses, through an independent source, the case of the prosecution cannot be thrown out, over-board. However, when an independent witness was joined, but was not examined, without any rhyme or reason, then certainly a doubt is cast, on the prosecution story. Had Chanan Singh, independent witness, been examined, light would have been thrown, on the facts and circumstances of the case, and credence would have been lent to the prosecution case, solely based on the evidence of the official witnesses. It is equally 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. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution, became doubtful. In the instant case, non-examination of Chanan Singh, made the case of the prosecution doubtful, as the evidence of the official witnesses, does not inspire confidence. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused. 12. The alleged recovery was effected on 3.7.1996, whereas, the sample was sent to the office of the Chemical Examiner, on 9.7.1996, i.e. after a delay of 6 days. The seal after use by Lachhman Dass, ASI, was kept by him, whereas, Ashok Mohan, SI/SHO, retained the seal, after use. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 6 days, in sending the sample to the office of the Chemical Examiner. The seal after use by Lachhman Dass, ASI, was kept by him, whereas, Ashok Mohan, SI/SHO, retained the seal, after use. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 6 days, in sending the sample to the office of the Chemical Examiner. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the sample, till the same reached the office of the Chemical Examiner. Since, the sample was sent to the office of the Chemical Examiner, after 6 days, it could not be safely held that the same remained un-tampered with. This fact casts a shadow of doubt, on the case of the prosecution. In Gian Singh Vs. State of Punjab 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. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58. (Supreme Court), 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 Ramji Singh Vs. State of Haryana, 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, the seal remained with the police official, and had not been handed over to any independent witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Chemical Examiner. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable t6 the facts of the present case. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable t6 the facts of the present case. The delay of 6 days, in sending the sample to the office of the Chemical Examiner, and non-strict proof, by the prosecution, that the same was not tampered with, till it was deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused. 13. In the instant case, there was violation of the provisions of Section 55 of the Act, as the case property and the samples were not produced before the Magistrate. Section 55 of the Act, lays down that an Officer Incharge 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 samples 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. 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. 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, since the Investigating Officer, intentionally and deliberately breached the provisions of Section 55, he could not say that the provisions of Section 55 being 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. 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. 14. The provisions of Section 57 of the Act, were not complied with. No report was sent by the Investigating Officer, to his Superior Officer, with regard to the alleged apprehension of the accused, and the 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. Similar principle of law, was laid down, in Gurbax Singh’s case (supra). However, the Investigating Officer, cannot totally ignore these provisions, as 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 the contraband, so that he must be aware of the genuineness of the proceedings, conducted by his junior, to ensure that no innocent person is 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 provisions 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, prejudice was caused to the accused, and, 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. 15. So many major discrepancies and contradictions I occurred in the, statements of the official witnesses, which remained unexplained, on record. 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. 15. So many major discrepancies and contradictions I occurred in the, statements of the official witnesses, which remained unexplained, on record. Lachhman Dass, ASI (PW-2), stated that Chanan Singh, independent witness, was not known to them, earlier, whereas, Swaranjit Singh, ASI, (PW-3) stated that he was known to the police earlier. Lachhman Dass, ASI (PW-2) stated that the police party was armed with weapons, whereas, Swaranjit Singh, ASI (PW-3), stated that the police party was empty handed. Lachhman Dass, ASI (PW-2), stated that Sarpanch or Lambardar, from the near villages, were called, but they were not present, whereas, Swaranjit Singh, ASI (PW-3), stated that they were not called. Such like discrepancies, when taken individually, may not be said to be sufficient to cast doubt, on the prosecution story. When these discrepancies are taken collectively, especially, in view of the fact, that the case of the prosecution is only based on the evidence of the official witnesses, the same assume added significance, to throw doubt, on the prosecution case. Had any explanation, been furnished, by the prosecution witnesses, as to how, these discrepancies occurred, the matter would have been viewed, in the light of the same. In the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. These discrepancies, therefore, clearly, established that either the recovery was not effected, in the manner, deposed by the prosecution witnesses, or at least one of the witnesses, was not present, at the time of the alleged recovery. These discrepancies, made the case of the prosecution doubtful, but the trial Court, did not take into consideration the same, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused. 16. 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 1 based on the correct appreciation of evidence, and law, on the point. Had the trial Court taken into consideration, the aforesaid infirmities, and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 15 of the Act. Had the trial Court taken into consideration, the aforesaid infirmities, and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 15 of the Act. The judgment of conviction, and the order of sentence are, thus, 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 7.5.1997, 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, then he shall be set at liberty, at once, if not required in any other case. ----------------------------